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Thread: Peterson v. LaCabe (Denver, CO) MSJ Filed

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    Founder's Club Member - Moderator Gray Peterson's Avatar
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    Hello all,

    I haven't posted here much as I have been extraordinarily busy with buying a new house among other projects.

    Besides assisting California gun owners by fixing up the Sheriffs Departments who violate the clear mandates of the California CCW issuance law (illegally charging fees and requiring liability insurance), approximately 6 months ago, I filed a 42USC1983 lawsuit against Denver Manager of Safety Alvin LaCabe and Colorado DPS Director Peter Weir. John Monroe, who is the Vice President of GeorgiaCarry.org and a very good win-loss ratio in terms of statutory and constitutional law challenges, is my attorney in this case.

    The lawsuit essentially challenges two laws:

    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 I have a carry license from the state of Florida among, I would be able to carry a functional firearm for self defense in Denver if he were a resident of Florida. This effects residents of every state which does not recognize Colorado's licenses, including those from Washington, Oregon, and California.

    Three weeks ago, my attorney filed for a Motion for Summary Judgment against Defendant LaCabe, based on his admission in his answer to my amended complaint that he denied me due to lack of residency within the state of Colorado. MSJ's are commonly filed when there are no factual disputes, as there is none at least with Defendant LaCabe.

    An excerpt:

    The instant case involves just such a fundamental constitutional right. The right to keep and bear arms is an “individual right to possess and carry weapons in case of confrontation.” District of Columbia v. Heller, 128 S.Ct. 2783, 2797 (2008). There is no doubt that this right is a fundamental one (“By the time of the founding, the right to have arms had become fundamental….”). Id. at 2798. Moreover, “the American people have considered the handgun to be the quintessential self-defense weapon.” Id. at 2818. Thus, the right to carry a handgun for self defense in case of confrontation is a fundamental constitutional right.

    The Colorado system denies Plaintiff the exercise of a fundamental constitutional right based solely on the fact that Plaintiff is not a Colorado resident. It heavily penalizes Washington residents who engage in travel to Colorado, just as surely as if it denied Washington residents to right to worship while visiting Colorado or if it imposed warrant-less searches on every Washingtonian who flies into Denver International Airport.


    My entire case against LaCabe and Weir can be seen here, as it is RECAP'ED and therefor available for free. Also, my case's play by play is available on the CalGuns Foundation Wiki.

    If any of you want to help monetarily with the case, both the CalGuns Foundation and Second Amendment Foundation have offered assistance. The CGF link will donate it properly, and the SAF link will require putting in the comments "Peterson v. LaCabe" or "Peterson Denver Case" in order to have it routed to my attorney.

    This case is the first case filed since Heller to completely challenge the idea that one may be denied their civil right to bear arms during their travels merely on the basis of their non-residency in a state. Even if we win in the district court and the defendants do not appeal, a win would generate persuasive case law in the federal district courts with jurisdiction over the several states which deny the ability to even apply for a license to carry and deny non-resident licensees the ability to carry.

    Just a little bit of pre-McDonald news for everyone to chew on.

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    Gray,

    Do you know if anyone has considered suing a state to force CPL Reciprocity using the "full faith and credit clause" of the federal constitution (Article IV section I)

    "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.............." http://topics.law.cornell.edu/constitution/articleiv

    It seems to me that this would oblige any state that has a CPL to honor the CPL of any another state, or am I way off base on this.

    What are your thoughts on this?








    A wise and frugal Government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government.- Thomas Jefferson March 4 1801

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    Founder's Club Member - Moderator Gray Peterson's Avatar
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    END_THE_FED wrote:
    Gray,

    Do you know if anyone has considered suing a state to force CPL Reciprocity using the "full faith and credit clause" of the federal constitution (Article IV section I)

    "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state.............." http://topics.law.cornell.edu/constitution/articleiv

    It seems to me that this would oblige any state that has a CPL to honor the CPL of any another state, or am I way off base on this.

    What are your thoughts on this?







    My case doesn't foreclose a future case where that can be argued. CHL's, at the moment, are not considered "public records" insofar as our current legal understanding. Our arguments about Article 4's privileges and immunities clause, and also the 14th amendment's section 1, has more legal support.

    Also, my case doesn't foreclose the possibility of a future challenge against Denver's open carry ban or now weakened AW ban, as the prayer for relief is narrow.

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    Campaign Veteran gogodawgs's Avatar
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    Gray,

    Thank you.
    Live Free or Die!

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    Founder's Club Member - Moderator Gray Peterson's Avatar
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    Defendant LaCabe's Response to Plaintiff MSJ

    Defendant LaCabe's Cross Motion for Summary Judgment

    So, a few comments on these crap motions (disclaimer, IANAL, all of that jazz):


    1) The Defendant's lawyer doesn't bother even defend the constitutionality of the Colorado Revised Statutes requiring Colorado residency.

    2) The Defendant's lawyer makes a statement that LaCabe has a ministerial duty to deny and then says that we needed to file an MSJ against the state. It's clear that the this attorney here doesn't understand that you must file the case against the enforcers of the law under 42USC1983 (LaCabe, as he was the one who denied my license, not the state).

    3) The Defendant's lawyer nitpicks and states that we didn't put in undisputed facts into the MSJ, which is not true, we merely did not number them inside of the MSJ, but she chose to respond to them anyway (what a way to torpedo your own argument).

    4) The defendant's lawyer is nitpicking saying that because we don't ask for in the conclusion that the law be declared unconstitutional, the statute is presumed to be valid. These are purely a styling difference in terms of filing for MSJ and honestly, it's a desperation tactic. We repeatedly proved the unconstitutionality of the statute throughout the plaintiff MSJ, and our amended complaint makes it clear the relief against LaCabe that is being sought. IMHO, Defendant's lawyers presuming that the court is too stupid to read is generally a bad idea.

    I feel real good about our chances.

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    Regular Member SaintJacque's Avatar
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    Thank you, Gray! Please keep us updated, the work you're doing is very important and very much appreciated.

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    Regular Member 1245A Defender's Avatar
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    you GO Gray!!! much respect from me for your work!
    EMNofSeattle wrote: Your idea of freedom terrifies me. So you are actually right. I am perfectly happy with what you call tyranny.....

    If ever a time should come, when vain and aspiring men shall possess the highest seats in Government, our country will stand in need of its experienced patriots to prevent its ruin.

    Stand up for your Rights,, They have no authority on their own...

    All power is inherent in the people,
    it is their right and duty to be at all times ARMED!

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    Regular Member sudden valley gunner's Avatar
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    Right on!!!!!
    I am not anti Cop I am just pro Citizen.

    U.S. v. Minker, 350 US 179, at page 187
    "Because of what appears to be a lawful command on the surface, many citizens, because
    of their respect for what only appears to be a law, are cunningly coerced into waiving their
    rights, due to ignorance." (Paraphrased)

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    Founder's Club Member - Moderator Gray Peterson's Avatar
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    Since this was asked of me in an IM:

    The reason my attorney and I didn't directly made pursuit towards flat out overturning the Denver OC ban is due to us following the path of Charles Hamilton Houston. A lot of folk think the Heller decision is the 2A's version of Brown v. Board of Education, which is not correct. Charles Houston won several Supreme Court rulings before the BIG win that was Brown, which he never lived long enough to see.

    Alan Gura, who pursued Parker v. District of Columbia (which later became District of Columbia v. Heller), is following this path as well. By not asking for the courts to do too much, you can litigate around the margins and build up good case law. If a license is available but you can't do it for some stupid reason (like non-residency in a city/county or they refuse to register a type of gun after a certain date), you litigate to establish that it's a civil right due to right to travel and RKBA, and that ask for a license to do so effectively in Denver.

    After you win that, then you litigate the fact of the prior restraint of licensing and the charging of a fee. The court is not going to question why you didn't litigate the issue beforehand. This is shown by McDonald, Palmer, Sykes, and now, Peterson. After McDonald, we'll have a LOT more cases to look at along these lines. The purpose of these cases is not to enshrine registration and licensing as constitutionally acceptable. The judge in this case can choose to strike down the OC ban (in the complaint, there is an "any other relief the court deems proper" provision) if he should choose to.

    Denver has been so used to winning in state court on almost everything that they rested on their laurels thinking they could easily beat this with their flawed understanding of 42USC1983. I think you'll like our response.

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    Gray Peterson wrote:
    Since this was asked of me in an IM:

    The reason my attorney and I didn't directly made pursuit towards flat out overturning the Denver OC ban is due to us following the path of Charles Hamilton Houston. A lot of folk think the Heller decision is the 2A's version of Brown v. Board of Education, which is not correct. Charles Houston won several Supreme Court rulings before the BIG win that was Brown, which he never lived long enough to see.

    Alan Gura, who pursued Parker v. District of Columbia (which later became District of Columbia v. Heller), is following this path as well. By not asking for the courts to do too much, you can litigate around the margins and build up good case law. If a license is available but you can't do it for some stupid reason (like non-residency in a city/county or they refuse to register a type of gun after a certain date), you litigate to establish that it's a civil right due to right to travel and RKBA, and that ask for a license to do so effectively in Denver.

    After you win that, then you litigate the fact of the prior restraint of licensing and the charging of a fee. The court is not going to question why you didn't litigate the issue beforehand. This is shown by McDonald, Palmer, Sykes, and now, Peterson. After McDonald, we'll have a LOT more cases to look at along these lines. The purpose of these cases is not to enshrine registration and licensing as constitutionally acceptable. The judge in this case can choose to strike down the OC ban (in the complaint, there is an "any other relief the court deems proper" provision) if he should choose to.

    Denver has been so used to winning in state court on almost everything that they rested on their laurels thinking they could easily beat this with their flawed understanding of 42USC1983. I think you'll like our response.
    I just asked a question on this (didn't send you a PM) and I don't see my post. Anyway...keep us posted and yes, this was a nice bit before McDonald.


    Thanks Gray!!!

  11. #11
    Founder's Club Member - Moderator Gray Peterson's Avatar
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    Our response

    Plaintiff's Reply to plaintiff's response

    Comments:

    1) "Those who are in glass houses should not cast stones". Defendant LaCabe's lawyer apparently violated seven different provisions of both the FRCP and the local rules in order to file for a motion for sanctions against us.

    2) Text from the reply:

    II. Defendant Failed to Defend the Constitutionality of His Actions
    IIA. Just Following State Law Is Not a Defense

    Somewhat surprisingly, Defendants sole defense for his actions (in denying Plaintiffs CHL application) is that Defendant followed state law. He argues that because he lacks discretion in issuing CHLs and he is performing a ministerial task, he cannot be liable for his violations of federal law. Not surprisingly, Defendant provides no authorities to support this novel claim. There are none.

    Quite the contrary, it is clear that government officials are obligated to follow the Constitution of the United States. An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed. Norton v. Shelby County, 118 U.S. 425, 443 (1886). See also Kovacs v. First Union Home Equity Bank, 408 F.3d 291, 294 (6th Cir 2005); Towboat One, Inc. v. M/V Waterdog, 2008 U.S. Dist. LEXIS 48628, 2008 AMC 1730 (S.D. Fla 2008). Local officials are under a duty to obey the Constitution. Board of Education v. York, 429 F.2d 66, 69



    ********

    Perhaps the heart of Defendants issue can best be summed up with his statement, Defendant LaCabe reasonably believed that he would be a nominal defendant in a legal battle played out between Plaintiff and the state of Colorado over the constitutionality of the state statute. Doc. 18, p. 13. Plaintiff is not familiar with the concept of a nominal defendant. Nor does Plaintiff understand why Defendant thought he could sit on the sidelines of this case when Defendants denial of Plaintiffs application is the injury at the front and center of the controversy. Surely Defendant realized that Plaintiff would be seeking an injunction against him, requiring him to issue Plaintiff a CHL. That is exactly what Plaintiff has done.

    Defendant is entitled to choose not to defend his actions (or the statute). He cannot, however, be heard to complain that the State of Colorado has failed to step into the breach he left by failing to defend himself. Defendant claims in his Brief that he has no legal duty to defend the statute. Doc. 18, p. 11. He does not have such a duty. But, he does have an obligation to defend his own actions or suffer the consequences of his failure to do so. He has failed to do so.


    3) There should be two more filings: Our reply to their Motion for Summary Judgment, and their response to said reply. We have 21-24 days from June 21st for our reply to their MSJ, and they'll have 14-17 days after we post our reply to do their own response...

    Then we wait.

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    Founder's Club Member - Moderator Gray Peterson's Avatar
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    Plaintiff's Response to Defendant LaCabe's Motion for Summary Judgment filed yesterday.

    Gems:

    Defendant may not hide behind Colorado law and wait for the State of Colorado to
    come along to defend his actions. They were, after all, his actions. Obedience to the
    Constitution of the United States is not discretionary. Those who choose to violate the Constitution in deference to state law do so at their own peril.

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    Go Gray, thanks for doing this for all of us.

    Jeff

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