Peterson v LaCabe Case (CO Residency Requirment)

[krucam]

Peterson v Garcia Case (CO Residency Requirement)

Peterson v. LaCabe is a suit challenging CO's residency requirement for obtaining a CCW/CHL. The Plaintiff (Gray Peterson) is a MDS member who lives in Washington State. He often contributes in a highly positive manner. He is also at the forefront of our 2A Challenges as a Plaintiff.

His case is one of the currently 30 I'm tracking for Post-McDonald. See the link in my sig. Gray has been instrumental in helping me get this list of cases to the point it is...

Thanks Gray and this thread is long overdue...maybe you were too bashful to start it yourself...I'm not.

The Docket is here

Gray's initial Plaintiff complaint is here

Today's events are positive for Gray...
Defendant's Cross Motion for Summary Judgement has been denied.

2010-10-20 26 0 ORDER granting 6 Motion to Dismiss Executive Director Peter Weir and Colorado Attorney General's Request to be Heard.
All claims against Defendant Peter Weir shall be dismissed. John W. Suthers, Attorney General for the State of Colorado, is a party to this action as an intervenor. The Attorney General may file a response to Plaintiff's Motion for Summary Judgment against Defendant LaCabe 17 within 30 days of the date of this order.
Denying 19 Defendant LaCabe's Cross Motion for Summary Judgment Against Plaintiff, by Judge Walker D. Miller on 10/20/10.(ebs, ) (Entered: 10/20/2010)

Further Discussion at Calguns is here

 

[Gray Peterson]

Thanks, Mark. I was going to post this myself. *bows to Yoda*

 

[krucam]

A lot of docs filed in this one over the last few days:

11/17/2010 27 NOTICE of Entry of Appearance by Matthew David Grove on behalf of John W. Suthers (Grove, Matthew) (Entered: 11/17/2010)

11/17/2010 28 First MOTION for Extension of Time to File Response/Reply as to 17[RECAP] MOTION for Summary Judgment against Defendant LaCabe by Intervenor John W. Suthers. (Grove, Matthew) (Entered: 11/17/2010)
11/17/2010 29 Unopposed MOTION for Leave to File Cross-motion for Summary Judgment by Intervenor John W. Suthers. (Grove, Matthew) (Entered: 11/17/2010)

11/18/2010 30 MEMORANDUM regarding 28 First MOTION for Extension of Time to File Response/Reply as to 17[RECAP] MOTION for Summary Judgment against Defendant LaCabe filed by John W. Suthers. Motions referred to Magistrate Judge Michael E. Hegarty by Judge Walker D. Miller on 11/18/10. TEXT ONLY ENTRY - NO DOCUMENT ATTACHED(wdmsec, ) (Entered: 11/18/2010)

11/18/2010 31 MINUTE ORDER granting 29 Intervenor's Motion to File Cross-Motion, by Judge Walker D. Miller on 11/18/10.(ebs, ) (Entered: 11/18/2010)

11/19/2010 32[RECAP] MINUTE ORDER granting 28 the Attorney General's Motion for Extension of Time to File Response Brief to Plaintiff's Motion for Summary Judgment. The Attorney General shall respond to Plaintiff's Motion for Summary Judgment on or before December 10, 2010. Plaintiff may reply within fourteen days of the Attorney General's response. By Magistrate Judge Michael E. Hegarty on 11/19/2010. (mehcd) (Entered: 11/19/2010)

Basically Defendants requested time to respond to 17 Plaintiff MSJ. This was granted...Def response to MSJ due 12/10/2010. Plaintiff reply to Defendant response due 14 days later, 12/24/2010.

Peterson Docket is HERE. The latest entries will be there shortly...

 

[press1280]

I don't see how CO can defend this policy. Its important to note WV and KS had this same law repealed this year. The other states with this policy either recognize all other resident state permits (MI) or issue non-res permits(NH,ME,FL). The one exception is SC, who could probably get hit with a similiar lawsuit.

The law im referring to BTW is the "3rd party permit" ban.

 

[Gray Peterson]

I don't see how CO can defend this policy. Its important to note WV and KS had this same law repealed this year. The other states with this policy either recognize all other resident state permits (MI) or issue non-res permits(NH,ME,FL). The one exception is SC, who could probably get hit with a similiar lawsuit.

The law im referring to BTW is the "3rd party permit" ban.

They will try. This situation will extend to the beginning of next year.

What I wonder, however, is how politically the situation will play out. Will the Legislature fix the statute? Don't know yet. I'm sure it is being talked about in Denver.

 

[Patrick]

I am curious what arguments the AG will use. It's obvious to the court that LaCabe had no constitutional arguments and the judge assumes the AG will present them.

Denver pretty much elects everyone out there. At least they did when I was working there. Has it gone uber-liberal in recent years? Has California completed their invasion?

I thought the state was a bit of a mixed bag politically, which usually bodes well for issues like guns.

Gray, I hope you get this either way. But right about now I am betting a win in court would be sweeter. If for no other reason than you can go after fees. We all owe you for taking this on. It could set the precedent we all need in the next few years.

 

[press1280]

I am curious what arguments the AG will use. It's obvious to the court that LaCabe had no constitutional arguments and the judge assumes the AG will present them.

Denver pretty much elects everyone out there. At least they did when I was working there. Has it gone uber-liberal in recent years? Has California completed their invasion?

I thought the state was a bit of a mixed bag politically, which usually bodes well for issues like guns.

Gray, I hope you get this either way. But right about now I am betting a win in court would be sweeter. If for no other reason than you can go after fees. We all owe you for taking this on. It could set the precedent we all need in the next few years.

I'm curious too. The only possible argument I can think of is that since CO will honor permits from any state who honors theirs, then its a way of putting pressure on the states that don't honor CO permits to change their ways and expand CO's reciprocity. But, that argument basically says they will punish the residents of non-reciprocal states. That can't possibly fly. You also have CO honoring FL permits from FL residents, but they won't honor FL permits from non-FL residents. Are they going to say one is more dangerous than another???
As far as issuing a CO non-res permit they'll claim they aren't staffed or don't have resources to do proper background checks on non-residents.
They had a chance to remedy this a while back but chose to not honor ANY non-resident permits(instead of just for CO residents), and thus sealed their fate.
So easily avoidable, yet, like government, won't admit they're wrong and will use taxpayers money fighting a futile fight.

 

[Patrick]

All of the above excuses essentially require a finding that denial of carry is constitutional. It requires that the "conveniece" of the government outweigh the rights of the people.

I know you are not suggesting this, but I just wanted to flavor the discussion over the CO AG's approach.

The AG has basically two options to argue against Peterson: argue against the constitutional right; or agree that the right exists but then argue that one individual state need not concern itself with another state's citizen - it is up to that citizen's state to meet the fair burden of CO. In that argument, the CO training/whatever requirements would need to be met, but a state that refuses these minimums is the one causing harm to their citizen - not CO.

That approach would of course cause reciprocity to become a game, where anti-gun states cause the laws of pro-gun state to be made more restrictive that they otherwise would. Again, the feds need to get involved here soon. Maybe even 2011 (as long as they do not upset our federal cases).

I'm curious whether the AG will go against the constitution here. I doubt it.

Because the third option is one we are not expecting (being pessimistic as we are in MD): that AG Suthers will file a brief in which he says that this portion of CO law is illegal in the face of Heller and McDonald, and that CO requests a little time to fix it.

Because the current AG is a Republican who won re-election with 57% of the popular vote (vs 43% for his opponent) and was endorsed by the NRA with an A- overall grade. The Dem opponent scored no rating from the NRA but said McDonald was wrong and that preemption was wrong. In the words of the Dem opponent, localities like Chicago should be able to enact common-sense laws to solve their unique problems (and Chicago's laws were fine with him). He accused Suthers of "wasting time" on an amicus brief in McDonald. He lost handily.

So Colorado chose a pro-gun AG in an election where guns came up, but were not the primary issue (that would have been ObamaCare). Suthers joined an amicus brief in support of McDonald and called the outcome a good decision. Suthers believes that 2A espouses an individual right that needs protection from the state.

Will Suthers do the right thing here and add some weight to Gray's case?

 

[krucam]

Defendant's response to Plaintiff's MSJ was released and surprise, they filed a Cross Motion for Summary Judgement!

Docket: http://ia700202.us.archive.org/18/items/gov.uscourts.cod.117112/gov.uscourts.cod.117112.docket.html

Lots of files added, items 33-35 by the Defendants in their MSJ.

I had a company Christmas party last night and need lotsa coffee this morning...

 

[Inigoes]

I had a company Christmas party last night and need lotsa coffee this morning...

 

[Dave MP]

Yoda with a lampshade sitting on the copy machine is not a sight anybody really wants to see

 

[press1280]

Defendant's response to Plaintiff's MSJ was released and surprise, they filed a Cross Motion for Summary Judgement!

Docket: http://ia700202.us.archive.org/18/items/gov.uscourts.cod.117112/gov.uscourts.cod.117112.docket.html

Lots of files added, items 33-35 by the Defendants in their MSJ.

I had a company Christmas party last night and need lotsa coffee this morning...

I didn't see the AG's motion(unless I missed it) say anything about the fact CO accepts resident FL permits, but won't accept non-res FL permits. The ability of CO to "monitor" a FL resident permit holder and a non-res FL permit holder would be the same I would think?
It's basically echoing the Peruta case. The 2A is only in the "home" according to them. So Gray can exercise the 2A IF he goes and buys property in CO? What a load of crap.

 

[Gray Peterson]

I wanted until the latest replies have been filed by our team. Notables:

Reply to CO AG's Response to plaintiff MSJ Filed 1/12/2011

Suthers’ own advocacy in McDonald belies this argument. In an amicus curiae brief that Suthers filed in the Supreme Court in the McDonald case, Suthers argued:

Accordingly, the States have an interest in ensuring that citizens who must travel in the course of their personal or professional lives remain free from unconstitutional arrest and prosecution for engaging in their right to self-defense by carrying properly-licensed weapons. If local governments may completely ban possession of handguns – the most popular weapon chosen by Americans for self-defense –citizens of all the States may find that they are unable to travel to certain jurisdictions unless they are willing to forego their Second Amendment rights.

Brief of States Amicus Curiae, p. 2 (filed contemporaneously with this Reply for the Court’s convenience).

Either Suthers was disingenuous to the Supreme Court when he made that argument, or he is being disingenuous to this Court now, for he certainly is satisfied now that it is permissible for Denver and Colorado to require Plaintiff to leave his Second Amendment rights in Washington when Plaintiff travels to Colorado.


Source of the brief:

Amicus Curiae of 38 States, Including Colorado

More Chester goodness:


A recent Fourth Circuit decision helps explain why Suthers’ proposed standard of review is inappropriate. First, the Fourth Circuit joined other circuits in ruling that Second Amendment cases should be reviewed analogously to First Amendment cases. United States v. Chester, 2010 U.S. App. LEXIS 26508, 24, No. 09-4084 (4th Cir. December 30, 2010) (“[W]e agree with those who
advocate looking to the First Amendment as a guide in developing a standard of review for the Second Amendment”), citing cases from the Third and Seventh Circuits. Second, the Chester court determined that “severe burdens” on the Second Amendment right should be subject to strict scrutiny, and that lesser burdens should be subject to intermediate scrutiny. Id. at 26. Because Plaintiff in the instant case has been completely disarmed in Denver, his Second Amendment rights have been eradicated and strict scrutiny must therefore apply.
Even assuming arguendo that an intermediate scrutiny should be applied, the form of intermediate scrutiny that would apply is very different from what Suthers urges. The Chester court explained that intermediate scrutiny in Second Amendment cases means there must be “a reasonable fit between the challenged regulation and a substantial government objective.” Id. at 27. Defendant LaCabe’s actions and the Colorado law cannot pass that test, as explained below in Part I

more...

Third, Suthers overlooks the fact that Colorado provides reciprocity to CHL holders of over half the states.
Nothing in Colorado’s reciprocity provisions restrict reciprocity to states that
perform or consider any kind of “local” databases or municipal court violations. Colorado law, in fact, is indifferent to the existence, use, or accuracy of the databases or other sources of information used by reciprocal states in the conduct of background checks for the other states’ issuance of their own CHLs. Thus, Suthers’ asserted governmental interest in protecting the public by allowing the carrying of firearms only by people known by Colorado to be law abiding is fallacious. The majority of people Colorado allows to carry firearms (the CHL holders of the many states listed in FN 2) are strangers to Colorado. Suthers simply cannot with a straight face represent to this Court that the availability of local information is so vital to the safety of the people of Colorado that Colorado law allows people from over half the states in the Union to carry firearms without regard to
the availability of local information for those people.

Response to CO AG MSJ

He also notes that in an 8-year period, Colorado processed 109, 127 CHP applications. Suthers stops short, then, of connecting the dots by calculating that 10% of 109,000 is 10,900, and that 10,900 applications spread over an 8-year period would be less than 1,400. That is, using Suthers’ own statistics, the entire state of Colorado would only expect just over 1,000 non-resident CHL applications if Colorado were to receive them. This is hardly the “flood” that Suthers’ direly predicts.
Moreover, Suthers provides no legal support for his argument that constitutional rights can be reduced to a statistical analysis. The Supreme Court ruled in Doe v. Bolton, 410 U.S. 179, 200 (1973) that Georgia may not limit the availability of abortions to Georgia residents only. This ruling was not qualified with “unless a lot of non-residents come to Georgia and use of Georgia’s abortion providing resources.” The rights guaranteed to the people in the Constitution are not subject to deprivation by the states on a state’s theory that it is easier, cheaper, or more expedient to trample the rights of the people than to respect those rights. If the Constitution limits a state’s power, the power is so limited. Period. Even if there were a “flood” of non-resident CHL applications, therefore, that only would be an indication that a “flood” of non-residents desire to exercise their Constitutional rights to bear arms in Denver and Colorado. Whether one thousand or one million citizens desire to exercise their rights is not determinative of, nor relevant to, whether the government has the power to usurp those rights.

Citing of 10th Circuit Precedent:

Suthers overlooks, however, that a fundamental right is implicated and that strict scrutiny must be applied. Vasquez v. Cooper, 862 F.2d 250, 252 (10th Cir. 1988), citing Kadrmas v. Dickinson Public Schools, 487 U.S. 450 (1988)) (“A state practice will not require strict judicial scrutiny unless it interferes with a ‘fundamental right’”)

More Chester goodness:

The court also indicated that a law-abiding citizen’s right to bear arms cannot be severely curtailed without being subject to strict scrutiny, while a person convicted of violent crimes may be subject to stiffer restrictions if the restrictions pass intermediate scrutiny. Id. ("Although Chester asserts his right to possess a firearm in his home for the purpose of self-defense, we believe his claim is not within the core right identified in Heller—the right of a law-abiding, responsible citizen to possess and carry a weapon for self-defense—by virtue of Chester’s criminal history as a domestic violence misdemeanant.") Conversely, a law-abiding citizen’s interest in bearing arms is within the core right identified in Heller. Because there is nothing in the record indicating anything other than that Plaintiff is a law-abiding citizen, the severe restrictions on his right to keep and bear arms to which Defendant and the State of Colorado have subjected him must be subject to strict scrutiny.

Suthers backdoor attack on Denver:

Suthers is trying, in effect, to engage in a back door attack of Denver’s ban on open carry of firearms. While he is free to commence his own action against Denver if he chooses to do so, this case is not the proper vehicle for his attack. It is notper se unconstitutional for Denver to have such a ban, because citizens still have an adequate alternative for exercising the right to bear arms: they may obtain a CHL and bear them concealed. It is Defendant’s (and Colorado’s) refusal to allow Plaintiff to obtain a CHL that is unconstitutional. Because Plaintiff must obtain a CHL in order to bear arms in Denver, Defendant violates Plaintiff’s right to bear arms when he refuses to issue a CHL to Plaintiff solely on account of Plaintiff’s non-residency.

Consider, by way of example, if Colorado centralized the processing of CHL applications and assigned one part-time person to the task of processing them. Suppose it took, on average, five years to process an application. In the meantime, the CHL applicant could not carry a firearm in Denver. Would the limitations Colorado has imposed on its own system make the unreasonably long wait times constitutional? Of course not. If Colorado is going to impose a regulatory scheme that burdens citizens’ Second Amendment rights, it must do so in a manner that comports with the Second Amendment, and a flawed or bureaucratically-limited scheme cannot save itself from its own unconstitutionality.

It is wholly immaterial what the sheriff of a different county thinks about the value of local information. Defendant did not raise the issue of local information in his own response to Plaintiff’s Motion, nor in his own motion, nor in Suthers’ instant Motion. If Suthers was not able to obtain such evidence from Defendant in Suthers’ own collateral defense of Defendant’s denial of Plaintiff’s CHL application, one cannot help but conclude that no such evidence exists and that the lack of local information played no role in Defendant’s denial. For this and other reasons stated in this Response, Suthers’ Motion should be denied.

This is why I love John Monroe's work on this.

 

[Patrick]

Gray, this is great stuff.

I especially like using Suthers' own brief in McDonald. How the hell can he defend this? He is an A-rated NRA politician yet wants to keep lawful people from bearing arms. I don't know the details of his rationale, but guessing it has something to do with the politics of reciprocity between various states?

It doesn't matter. His whole argument hinges on an assumption that the states are free to regulate a fundamental right into oblivion for a select class of lawful persons. I don't like Due Process complaints for 2A (even when we are forced into them), but this is an obvious example of one that fits the mold perfectly.

Any concern by you that the rumored Thune Amendment could moot this case?

 

[Gray Peterson]

Gray, this is great stuff.

I especially like using Suthers' own brief in McDonald. How the hell can he defend this? He is an A-rated NRA politician yet wants to keep lawful people from bearing arms. I don't know the details of his rationale, but guessing it has something to do with the politics of reciprocity between various states?

There's a mistaken belief that the Attorneys General must defend the law. This is not generally true. He could have agreed with us and settled and saddled Denver with the issuing authority for non-resident licenses because they ban open carry but he didn't.

The real reason the problem occured is because they were trying to prevent Colorado residents from evading their local system and getting an out of state license to just carry in Colorado. Rather than narrowly tailoring their law to do so, like Washington, Arizona, and Kansas, they went the lazy route and went too far, screwing the residents of 22 states who fly into Denver and visit Denver, because their state courts refuse to hold the cities into account and keep not taking their state RKBA seriously, which would require striking the Denver OC ban.

It doesn't matter. His whole argument hinges on an assumption that the states are free to regulate a fundamental right into oblivion for a select class of lawful persons. I don't like Due Process complaints for 2A (even when we are forced into them), but this is an obvious example of one that fits the mold perfectly.

Exactly. As horribly regarded as an abortion case like Doe v. Bolton is, the case is important to prove that non-residents cannot be discriminated against. Bolton made similar arguments to Suthers. He lost...

Any concern by you that the rumored Thune Amendment could moot this case?

I don't believe that Thune will occur until 2012 if at all. Tuscon shooting and all. If Thune happens, I'll be able to carry in states such as New York, Jersey, California, etc. If I had a choice between saving my case and Thune passing, Thune wins every time. Saving people's lives in a very full fashion is more important than merely getting a case with my name up to the SCOTUS......

 

[Patrick]

I don't believe that Thune will occur until 2012 if at all. Tuscon shooting and all. If Thune happens, I'll be able to carry in states such as New York, Jersey, California, etc. If I had a choice between saving my case and Thune passing, Thune wins every time. Saving people's lives in a very full fashion is more important than merely getting a case with my name up to the SCOTUS......

Starting to lean that way myself, but for different reasons that have more to do with backroom horse trades regarding pet programs that need saving from the budget axe. Oh well.

Your case is important. The CO AG is doing a hell of a bit of damage to 2A and not being called on it due to his NRA rating. His entire argument cannot exist with a national fundamental right. At all.

If he were to prevail, Heller and McDonald would mean nothing.

At least New York, California and Maryland are honest about it: they hate guns and hate people who like guns. Guys like Suthers talk a good game. It isn't that he hates guns, it's that he likes power more.

Heller and McDonald take power from the states. Likewise the Federal. It does not matter how much they claimed in the past that 2A was a right - now that it has become a fact they will fight it tooth and nail to maintain the control they have. Because with that control comes leverage and votes.

Before Mad Max ( )comes along to claim this is proof of an imperial overlord, I'll say the answer is much simpler: they like being in charge and need votes to do it. If they lose 2A as a wedge issue, they potentially lose issue voters. And our group is one of the biggest and most reliable out there.

 

[Gray Peterson]

Starting to lean that way myself, but for different reasons that have more to do with backroom horse trades regarding pet programs that need saving from the budget axe. Oh well.

Your case is important. The CO AG is doing a hell of a bit of damage to 2A and not being called on it due to his NRA rating. His entire argument cannot exist with a national fundamental right. At all.

If he were to prevail, Heller and McDonald would mean nothing.

At least New York, California and Maryland are honest about it: they hate guns and hate people who like guns. Guys like Suthers talk a good game. It isn't that he hates guns, it's that he likes power more.

The problem with a guy like Suthers, and this is commonly a problem of those of the more "conservative" bent, is that they defend laws on some misguided notion that it must be defended and any arguments used against it, regardless of the weakness of their position. It's either some misguided belief about "judicial and executive activism nullifying the legislature", or it's a belief that if they "roll" for a plaintiff for purely injunctive relief, it'll encourage more suits against the state for torts and damage claims.

A good example for some of these supposedly pro-gun AG's to follow, though not trying to get into the tangent of "gay marriage", as it where, but in the California federal prop 8 case, the Governor and the AG's office (Arnie and Jerry Brown respectively) agreed with the plaintiffs that Prop 8 violated the the 14th amendment of the US constitution, stated so in their responses to the suit, and then declined to defend the law. Many folks like Suthers look at that with scorn, but they learn the wrong lesson from it....

 

[hvymax]

Many believe that if it's the law no matter how unjust or unconstitutional it's the law and they will enforce it on the lowlife nonLE population.

 

[Gray Peterson]

Many believe that if it's the law no matter how unjust or unconstitutional it's the law and they will enforce it on the lowlife nonLE population.

Except it isn't enforcement. It's defending the law itself. It's not the same thing. Jerry Brown and Arnie had no issue with enforcing prop 8 while it is still in effect. Why can't our supposedly pro-gun champions stand with us like Jerry Brown did for gay couples in California? Marriage and bearing arms are both fundamental rights, but the first is not enumerated whereas bearing arms is.

 

[Patrick]

The problem with a guy like Suthers, and this is commonly a problem of those of the more "conservative" bent, is that they defend laws on some misguided notion that it must be defended and any arguments used against it, regardless of the weakness of their position. It's either some misguided belief about "judicial and executive activism nullifying the legislature", or it's a belief that if they "roll" for a plaintiff for purely injunctive relief, it'll encourage more suits against the state for torts and damage claims.

A good example for some of these supposedly pro-gun AG's to follow, though not trying to get into the tangent of "gay marriage", as it where, but in the California federal prop 8 case, the Governor and the AG's office (Arnie and Jerry Brown respectively) agreed with the plaintiffs that Prop 8 violated the the 14th amendment of the US constitution, stated so in their responses to the suit, and then declined to defend the law. Many folks like Suthers look at that with scorn, but they learn the wrong lesson from it....

I see what you are saying and have seen it on other non-gun cases. They claim the executive cannot/should not nullify the legislative, even when they personally don't like it.

Unless it is about abortion or gay rights. Then belief does modify approach. I guess they are not the believers in the Bill of Rights they said they were.