Peterson v. LaCabe

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Peterson v. Martinez

Peterson v. Martinez is a case challenging two provisions of Colorado's Concealed Handgun Licensing law, specific to the legal circumstances of the City & County of Denver, Colorado. The case is now known as Peterson v. Martinez et al in the United States Court of Appeals for the Tenth Circuit, as defendant LaCabe has retired.

As Denver has an an open carry ban (which it has sued the state to protect this ban under the state constitution's home rule provisions and won in district court), the combination of this factor and the state's law against concealed carry without license combined together to deny Peterson his right to carry a functional firearm for personal protection while visiting Denver.

Gray Peterson is the plaintiff in this case (and frequent poster in the CalGuns forum). Alvin LaCabe was the first named defendant as the ex oficio sheriff of the County of Denver (He is called the Manager of Safety, and he is the issuer of Denver's Concealed Handgun Licenses). Peter Weir is the second named defendant the Executive Director of the Colorado Department of Public Safety, which handles the determinations of which states Colorado will recognize for it's concealed handgun licensing provisions.

Peterson is a frequent visitor to the City of Denver, and applied for a CHL from the Denver Police Department (which acts as the designee for CHL applications for LaCabe). A month later he received a written letter of denial.

The attorney for this case is John Monroe, who is the Vice President of GeorgiaCarry.org.

GeorgiaCarry.org v. Toomer is a cousin case filed against a county probate judge (who are the issuing authorities for firearms licenses in Georgia). Peterson differentiates from the GeorgiaCarry.org case due to the plaintiff applying for and being denied the license by Denver, and a denial of a license or registration is considered automatically an injury under Article III of the United States Constitution.

U.S. Tenth Circuit Court of Appeals Status

  • This case was scheduled for oral argument on November 17th, 2011, 8:30AM.
  • The pertinent case filings can be found here
  • The 1st oral argument can be downloaded here.
  • An unofficial transcript of the proceedings can be downloaded here.
  • The 10th Circuit Panel (Circuit Judges Lucero, Hartz, and Baldock) stated in panel that they would be rehearing the case after appellant counsel had no opportunity to argue the merits of the case.
  • The 10th Circuit Panel rescheduled the case for March 19th, 2012, 2:00PM, for a special session of the court.
  • The 10th Circuit Panel also granted amici curiae 10 minutes for oral argument.
  • All "amicus" (made up of SAF, NRA-CRDF, and the Brady Center) filed a joint motion to enlarge time to 20 minutes. This was approved by the court.
  • The panel had stated that they may be asking for supplemental briefing, but has not done so at this time.
  • The 2nd oral argument can be downloaded here
  • Status currently is awaiting decision.

District Court Status

United States District Court for the District of Colorado case number 10-CV-00059-WDM-MEH. Docket from RECAP.

  • April 8th, 2011: Notice of appeal filed with the District Court to appeal to the United States Court of Appeals for the Tenth Circuit, case #11-1149
  • March 8, 2011: Denial of Plaintiff MSJ in full, Granted Defendant-Intervenor Suthers MSJ granted in full Judge Miller follows the Peruta v. County of San Diego path.
  • February 18, 2011:AG Suthers Reply to Plaintiff Response to Defendant MSJ filed. Next is the decision on the MSJ.
  • January 21, 2011:Response to AG Suthers MSJ against plaintiff filed. Equal protection arguments mostly against AG Suthers. Also cites United States v. Chester. Of note: 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.
  • January 12, 2011: Reply to AG Response to Plaintiff's MSJ Also filed for reference the McDonald 38 States Amicus Brief, which points out that AG Suthers stated the following to the US Supreme Court in the McDonald case: 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. Plaintiff Peterson (through attorney John Monroe) challenged the Attorney General, pointing out the opposite conclusions raised in his amicus to the Supreme Court of the United States.
  • December 9, 2010: Response to Plaintiff's MSJ and AG MSJ Filed Against Plaintiff, also filed Exhibit A, B, C, D and E filed in support.. CO AG Suthers makes numerous claims, including that Heller and McDonald only apply in the home, that sheriff's being forced to issue would cause a massive burden on them them, using Florida's carry licensing program as an example. They also make the claim that there is no right to carry outside of the home.
  • February 8, 2010: Amended Complaint filed, removing Sgt. Lawrence Valencia entirely and removing Alvin LaCabe's personal capacity from the suit.

Intent

This suit seeks to do two things.

1. To challenge Denver's enforcement of CRS 18-12-203(1)(a), which is the requirement that a person be a Colorado resident. Unlike all of the other jurisdictions in Colorado, Denver has an ban on carrying firearms openly, and only allows the concealed carrying of a firearm with a Colorado state-issued or recognized license.

2. To challenge the state's enforcement of CRS 18-12-213(1)(b)(I), which prohibits the recognition of non-resident licenses to carry. As Peterson possesses a carry license from the state of Florida, he would be able to carry a functional firearm for self defense in Denver if he were a resident of Florida. This affects residents of every state which does not recognize Colorado's licenses, including those from California.

This case may also influence case law in other jurisdictions which have significant restrictions against carrying functional firearms for personal protection, but issue licenses which eliminate those restrictions which non-residents cannot gain access to (CA, OR, SC, NY, MI, DC, HI).

-Gray Peterson

Donations to support case

Though individual CGF board members along with the plaintiffs are financially supporting the case, it is not a "CGF-official" case in the manner of Sykes and Pena, more similar to Palmer where there isn't direct CGF support (Second Amendment Foundation is the lead organizational group for Palmer).

A fund raising post was made by Gene Hoffman at the CalGuns.net forum, which you can see here.

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