by Richard Sweetman
On March 20, 2013, Governor John Hickenlooper signed into law HB13-1224, prohibiting large-capacity ammunition magazines, and HB13-1229, requiring background checks for private transfers of firearms. Two months later, a group of plaintiffs — including 55 of the 62 county sheriffs of Colorado — filed suit against the Governor in federal district court, asserting that several provisions of HB13-1224 and HB13-1229 are unconstitutional or unconstitutionally vague.
Here is a timeline summarizing what’s happened so far in the case and where things stand as of August 28, 2013:
May 16: Attorney General John Suthers (the AG) issues a memorandum to James H. Davis, executive director of the Department of Public Safety, entitled “Technical Guidance on the Interpretation and Application of House Bill 13-1224, Large-Capacity Magazine Ban”. The memo addresses two specific provisions of HB13-1224.
First, with regard to the phrase “designed to be readily converted to accept more than fifteen rounds of ammunition”, which appears in the law’s definition of “large-capacity magazine,” the AG states that “design features that fulfill more than one function, and whose function is not specifically to increase the capacity of a magazine, do not fall under the definition.” This means that “a magazine that accepts fifteen or fewer rounds is not a ‘large-capacity magazine’ simply because it includes a removable baseplate.”
Second, with regard to the phrase “continuous possession,” which appears in the so-called “grandfather clause” exception within HB13-1224, the AG states:
Responsible maintenance, handling, and gun safety practices, as well as constitutional principles, dictate that these provisions cannot be reasonably construed as barring the temporary transfer of a large-capacity magazine by an individual who remains in the continual presence of the temporary transferee, unless that temporary transferee is otherwise prohibited by law. . . . For similar reasons, the bill’s requirement that an owner must maintain “continuous possession” in order to ensure the application of the grandfather clause cannot reasonably be read to require continuous physical possession.
May 17: Plaintiffs file their amended complaint stating six claims for relief.
June 7: The AG, acting as counsel for the Governor, files an answer to the plaintiff’s amended complaint.
June 10: The AG files a motion for certification of two questions of law to the Colorado Supreme Court. The AG’s motion requests that the district court allow the Colorado Supreme Court to provide “clear guidance . . . as to the scope and meaning” of two challenged provisions of HB13-1224 — specifically, the provisions concerning the phrase “designed to be readily converted to accept more than fifteen rounds of ammunition” and the phrase “continuous possession.”
June 12: Plaintiffs file a motion for a temporary restraining order and preliminary injunction to enjoin the Governor from enforcing certain provisions of HB13-1224.
June 14: Plaintiffs file a response opposing the AG’s motion for certification of two questions of law.
June 20: Plaintiffs file a supplemental brief concerning the plaintiffs’ standing to bring the suit.
June 21: The AG files a response in support of his motion for certification of two questions of law.
June 24: The AG files a response opposing plaintiffs’ motion for a temporary restraining order and preliminary injunction.
June 27: Plaintiffs file a response in support of their motion for a temporary restraining order and preliminary injunction.
July 1: Plaintiffs file a second amended complaint.
July 10: The district court holds the first formal hearing of the case. The hearing concerns the narrow issue of the plaintiffs’ motion for a temporary restraining order and preliminary injunction.
At the conclusion of the hearing, the plaintiffs withdrew their motion, and the court did not order a preliminary injunction. Later that day, the AG issued a second memo to the executive director of the department of public safety, entitled “Additional Technical Guidance on the Interpretation and Application of House Bill 13-1224, Large-Capacity Magazine Ban”. This second “Technical Guidance” memo reiterated the substance of the first memo:
Magazines with a capacity of 15 or fewer rounds are not large-capacity magazines as defined in HB 13-1224 whether or not they have removable base plates. . . . To actually convert them to higher capacity, one must purchase additional equipment or permanently alter their operation mechanically. Unless so altered, they are not prohibited.
The second memo also states:
“Continuous possession” does not require a large-capacity magazine owner to maintain literally continuous physical possession of the magazine. “Continuous possession” is only lost by a voluntary relinquishment of dominion and control.
August 1: The AG files a motion to (1) dismiss three of the plaintiffs’ six stated claims, each of which relates to charges of vagueness, and (2) dismiss the sheriffs as plaintiffs acting in their official capacity.
In his motion, the AG points out that he has twice issued “Technical Guidance” memos that clearly limit the interpretation and enforcement of the provisions that are the bases of the plaintiffs’ claims. The AG argues that, as a result of the assurances expressed in the “Technical Guidance” memos, the plaintiffs face no credible threat of prosecution as a result of the alleged vagueness. Therefore, they lack standing to bring the vagueness claims.
The second portion of the AG’s motion seeks to have the sheriffs dismissed as plaintiffs in their official capacity. The AG argues that courts typically do not permit political subdivisions to sue their parent states. Because sheriffs are county officers, and counties are political subdivisions of the state, the sheriffs lack standing to bring suit in their official capacities against the Governor. The AG does not contend that the sheriffs lack standing in their individual capacities.
August 22: Plaintiffs file a response to the AG’s motion to dismiss, rejecting the AG’s arguments.
The case is John B. Cooke, Sheriff of Weld County, Colorado, et al., v. Governor John W. Hickenlooper, United States District Court for the District of Colorado, Civil Action No. 13-cv-01300-MSK-MJW.