Peterson v LaCabe Case (CO Residency Requirment)

[esqappellate]

From the amended complaint:



Since Denver is a Home Rule city, this ordnance actually supercedes the State law. Defendant LaCabe could have issued a non-resident permit, but chose not to (ostensively in complaince to a State law that he did not have to obey).

Now look at Count 5 of the amended complaint (my emphasis):



This was said several times at orals. Right there is what both the district court and the CA10 wholly and fully, ignored.

Instead, the court centered itself with concealed carry alone. That is error.

Al: I am not at all sure that the court is wrong on this. The court of appeals did not ignore the argument, they held it had been waived. The court stated:

Peterson has repeatedly expressed, however, that he is not challenging the Denver ordinance. After Suthers advocated for the constitutionality of the Denver ordinance in his motion for summary judgment, Peterson clarified that he was not arguing that the ordinance is unconstitutional, but that it is Colorado’s “refusal to allow Plaintiff to obtain a CHL that is unconstitutional.” Claiming that Suthers was attempting a “back door attack of Denver’s ban on open carry of firearms,” Peterson stated that “this case is not the proper vehicle for his attack.”
In light of Peterson’s explicit statement that “this case is not the proper vehicle” for an attack on the validity of the Denver ordinance, Peterson has clearly waived any such challenge. See United States v. Zubia-Torres, 550 F.3d 1202, 1206 (10th Cir. 2008) (an issue is waived, rather than forfeited, when a party “deliberately considered the unraised issue and made an intentional decision to forego it”). Because the district court accepted Peterson’s formulation of the case in ruling on the parties’ cross-motions for summary judgment, Peterson cannot be heard to complain of any alleged error he himself invited. See United States v. DeBerry, 430 F.3d 1294, 1302 (10th Cir. 2005) (“[T]he invited-error doctrine precludes a party from arguing that the district court erred in adopting a proposition that the party had urged the district court to adopt.”). We see no reason that a plaintiff could not challenge both the statute and the ordinance in the same suit, but Peterson has made a conscious decision not to challenge the constitutionality of the Denver ordinance.

As a general proposition, all of this is sound law. Regardless of what you allege in the complaint, if you disclaim a claim in the pleadings or on summary judgment, the courts can and should hold you to it on grounds of waiver. If the district court rules on that basis, you will not be permitted to challenge on appeal that ruling on a ground that you waived.

 

[Al Norris]

However it may seem, after going over the orals (one more time), I'm in agreement.

The court all but begged counsel to broaden the claim to include the Denver ordnance. Monroe choose not to go there, thus conceding the argument.

 

[Maestro Pistolero]

Had they acted on the admonishment of the court, the open carry restriction in Denver may have been struck creating extremely useful precedent at the circuit court level. The city ordinance certainly seems highly vulnerable for a challenge now.

 

[Hopalong]

So does this decision, combined with the recent 7th decision that concealed carry must be made legal in IL, set up a circuit split? Or are the details different enough that it won't?

 

[esqappellate]

So does this decision, combined with the recent 7th decision that concealed carry must be made legal in IL, set up a circuit split? Or are the details different enough that it won't?

Nope, no split from this decision.

 

[esqappellate]

pet. for rehearing

and order requiring a response. Both attached.

 

[press1280]

I thought the brief was pretty good, they are definitely trying to get the court to make a call on carry outside the home. I do think Moore is relevant here, as it wasn't mentioned in the opinion and the convergence of CO and Denver law turn Denver into Illinois for the residents of 20 plus states.

 

[esqappellate]

I thought the brief was pretty good, they are definitely trying to get the court to make a call on carry outside the home. I do think Moore is relevant here, as it wasn't mentioned in the opinion and the convergence of CO and Denver law turn Denver into Illinois for the residents of 20 plus states.

I was actually confused by this brief as the petition never purported to take on directly the court's ruling that attack on the Denver statute/practice was waived.

 

[press1280]

I was actually confused by this brief as the petition never purported to take on directly the court's ruling that attack on the Denver statute/practice was waived.

What I gather is if they attack the Denver statute specifically as it stands next to CO law, they'd be asking for OC without a permit? I think it's like the challenges in NY and CA-they're saying Denver has already chosen that they prefer concealed carry w/permit, and that's fine with them. The court took Robertson v. Baldwin out of context to hold that ONLY OC was protected, even when the juristiction bans it in favor of concealed carry. I don't think the court understood how the law works either, thanks to the state and Denver not understanding it either(each claimed the other administered reciprocity).

 

[esqappellate]

What I gather is if they attack the Denver statute specifically as it stands next to CO law, they'd be asking for OC without a permit? I think it's like the challenges in NY and CA-they're saying Denver has already chosen that they prefer concealed carry w/permit, and that's fine with them. The court took Robertson v. Baldwin out of context to hold that ONLY OC was protected, even when the juristiction bans it in favor of concealed carry. I don't think the court understood how the law works either, thanks to the state and Denver not understanding it either(each claimed the other administered reciprocity).

What I did not see in the petition was a response to this statement in the court's opinion:

Peterson has repeatedly expressed, however, that he is not challenging the Denver ordinance. After Suthers advocated for the constitutionality of the Denver ordinance in his motion for summary judgment, Peterson clarified that he was not arguing that the ordinance is unconstitutional, but that it is Colorado’s “refusal to allow Plaintiff to obtain a CHL that is unconstitutional.” (Slip op. at 18)

That is the heart of the court's opinion as to Denver. The plaintiff cannot both attack and not attack the Denver statute. If the court is correct (and that may be a big "if"), that Peterson did not attack the Denver statute in district corut, then I don't see how the petition can challenge Denver's refusal to allow OC. And if he isn't challenging that refusal to allow OC, that only leaves the attack on Colorado's refusal to give him a non-resident CCW, and the court says it is bound by the Robertson dicta on that. Now you can now say that the Robertson dicta was overruled by Heller and that is a fair argument, but you can not still attack the Denver ordinance that you did not attack in D.Ct. As I understand it, Colorado allows OC without a permit and concealed carry with a permit but allows the CC permit only to residents. Denver, by ordinance that the court says that Peterson did not challenge, bans OC completely and only allows CC with the Colorado permit. So, if, as Peterson says, OC is fine as one alternative, he *must* challenge the Denver ordinance banning open carry. Or he can challenge the State restriction of the CC permit to residents, but the petition does not raise that argument. So it is OC or bust. The court says bust cuz he didn't challenge the Denver ordinance. QED. So where am I wrong in this?

 

[press1280]

The Panel decision misconstrues the difference between directly
attacking a city ordinance and attacking the denial of a license that is
required by the city ordinance in order to comply with a city ordinance.
Peterson made clear throughout this case that his goal was to carry a firearm
in conformance with the Second Amendment when he visits Denver. He
stated that his preference is to carry a firearm openly, but that he would
abide by Denver law and carry one concealed if he were allowed to do so.

Peterson alleged in his Complaint that the
Director administers the reciprocity program for Colorado. The District
Court dismissed the Director, notwithstanding Peterson’s allegation, on
the grounds that the District Court construed Colorado law to require the
several Colorado sheriffs to administer the reciprocity program.

He's attacking Denver's ordinance in the regard that a CHL is required to carry, and (wrongly IMO) the District Court believes the Denver sheriff is indeed vested with authority to administer the reciprocity scheme. The introduction focuses more on Peterson's FL permit not being recognized because he isn't a FL resident. That seems to be more the focus this time.

 

[esqappellate]

The Panel decision misconstrues the difference between directly
attacking a city ordinance and attacking the denial of a license that is
required by the city ordinance in order to comply with a city ordinance.
Peterson made clear throughout this case that his goal was to carry a firearm
in conformance with the Second Amendment when he visits Denver. He
stated that his preference is to carry a firearm openly, but that he would
abide by Denver law and carry one concealed if he were allowed to do so.

Peterson alleged in his Complaint that the
Director administers the reciprocity program for Colorado. The District
Court dismissed the Director, notwithstanding Peterson’s allegation, on
the grounds that the District Court construed Colorado law to require the
several Colorado sheriffs to administer the reciprocity program.

He's attacking Denver's ordinance in the regard that a CHL is required to carry, and (wrongly IMO) the District Court believes the Denver sheriff is indeed vested with authority to administer the reciprocity scheme. The introduction focuses more on Peterson's FL permit not being recognized because he isn't a FL resident. That seems to be more the focus this time.

I agree that is the theory of the petition. But, that theory would seemingly require challenging the constitutionality of the Denver ordinance, and that is precisely what the court says that Peterson waived in DCT. After all, if you want OC you got to challenge the law that bans it. And arguing that he raised the Sheriff's duties in the complaint is not responsive to the court's holding that the question is a point of law on which the CA affirmed expressly the DCT's legal ruling. The law trumps a factual allegation if the law is to the contrary. And this petition does not challenge the legal ruling. If the attack is on the refusal to recognize the out of state permit, then there is either a 2A right or a P&I right. He doesn't raise the P&I argument, and never really argues that the 2A compels such recognition of the out of state permit. It would be a loser if he did.

 

[press1280]

I agree that is the theory of the petition. But, that theory would seemingly require a challenging to the constitutionality of the Denver ordinance, and that is precisely what the court says that Peterson waived in DCT. After all, if you want OC you got to challenge the law that bans it. And arguing that he raised the Sheriff's duties in the complaint is not responsive to the court's holding that the question is a point of law on which the CA affirmed expressly the DCT's legal ruling. The law trumps a factual allegation if the law is to the contrary. And this petition does not challenge the legal ruling. If the attack is on the refusal to recognize the out of state permit, then there is either a 2A right or a P&I right. He doesn't raise the P&I argument, and never really argues that the 2A compels such recognition of the out of state permit. It would be a loser if he did.

Does he have to specifically spell it out in the petition? Seems the district court made numerous errors which should have been fixed.

 

[Les Gawlik]

I think what he's saying is that banning or licensing of open or concealed carry is not unconstitutional. A political subdivision may make those decisions as a matter of policy. Therefore, the Denver CC ordinance is not impermissible. What is impermissible is filling in the decision matrix in such a fashion that no ability to carry is available.

For example, Gansler-land would look like this

Ban No license Req'd Shall Issue License with Qualifications
OC X

CC X

Part of his argument was that Marylanders do have an option for self-defense, and that is the open carry of long guns. That "fact" in part justifies the G&S requirement for handgun concealed carry.

Peterson's argument is not that he has a constitutional right to CC, but he has a constitutional right to bear arms. The government has considerable latitude to decide how it is going to allow him to exercise his rights, and it could include banning some sorts of carry. Choosing one policy may prohibit others if the net effect is a ban on carrying weapons for self-protection. Each individual ordinance may represent a constitutional policy choice, but if when read together the result is a ban on self-protection, the result is unconstitutional.

The court cannot answer the question he presented by simply saying that CC is not a constitutional right. He is not saying that it is. Of course, if it were he'd win, but because they say it isn't doesn't mean he loses. The court opinion misses the point, and misunderstands his argument. I think he's right.

(I see my matrix did not format properly, but I think you can figure it out.)

 

[Maestro Pistolero]

Esquapellate, what is your position on the constitutionality of discretionary CCW licensing where OC is prohibited? It seems Gray's case is attempting to force an answer to that question. In the many examples of CCW ban cases, few to none sustained also banning OC. I don't see how the court gets around the fact that CCW bans are only presumptively constitutional when OC is available (which Denver prohibits).

 

[esqappellate]

Esquapellate, what is your position on the constitutionality of discretionary CCW licensing where OC is prohibited? It seems Gray's case is attempting to force an answer to that question. In the many examples of CCW ban cases, few to none sustained also banning OC. I don't see how the court gets around the fact that CCW bans are only presumptively constitutional when OC is available (which Denver prohibits).

I agree with Gura on this. If OC is barred, then permits are constitutional only if they are essentially "shall issue." The State might well be able to attach training conditions and certainly background investigations are fine, but the exercise of a fundamental constitutional right cannot be left to an official's discretion.

 

[Maestro Pistolero]

I agree with Gura on this. If OC is barred, then permits are constitutional only if they are essentially "shall issue." The State might well be able to attach training conditions and certainly background investigations are fine, but the exercise of a fundamental constitutional right cannot be left to an official's discretion.

In that context then, isn't Gray's challenge strong on the merits? Isn't the essence of his argument that discretionary licensing is unconstitutional as applied in Denver?

 

[esqappellate]

In that context then, isn't Gray's challenge strong on the merits? Isn't the essence of his argument that discretionary licensing is unconstitutional as applied in Denver?

Denver did not challenge discretionary licensing in Denver. Denver accepted the shall issue permits issued by Colorado. It banned OC. Gray did not challenge the Denver ordinance that banned OC.

 

[Maestro Pistolero]

From The Firing Line thread on this same case:

esqappellate:

So, if, as Peterson says, OC is fine as one alternative, he *must* challenge the Denver ordinance banning open carry. Or he can challenge the State restriction of the CC permit to residents, but the petition does not raise that argument. So it is OC or bust. The court says bust cuz he didn't challenge the Denver ordinance. QED. So where am I wrong in this?

Isn't that exactly the requested relief at the top of the original complaint?

This action, under 42 U.S.C. § 1983, seeks a declaratory judgment that the Colorado statute requiring an applicant for a permit to carry a concealed handgun (“CHL”) to be a resident of the State of Colorado violates the Privileges and Immunities Clause of the Constitution of the United States, the Second Amendment to the Constitution of the United States, and the Fourteenth Amendment to the Constitution of the United States, together with an appropriate injunction.

esqappellate:

Yup, and he lost on the merits of the P&I argument. He does not see rehearing on that point.

 

[Maestro Pistolero]

So he lost own the merits if the P or I argument, but what about the 2A argument? Does that just go away, too? He did raise it. I'm sure I'm missing something, bear with me.