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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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    Post Peterson v. LaCabe (now-Martinez) MSJ Filed

    Hello all,

    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.Â* 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.
    Last edited by Gray Peterson; 01-03-2012 at 04:42 AM.

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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.Â* 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)Â* 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.Â* These are purely a styling difference in terms of filing for MSJ and honestly, it's a desperation tactic.Â* 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.Â* IMHO, Defendant's lawyers presuming that the court is too stupid to read is generally a bad idea.

    5) The defendant's lawyer seems to think I should sue the State of Colorado directly. I guess she hasn't read the 11th amendment recently.

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    Founder's Club Member - Moderator Gray Peterson's Avatar
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    Plaintiff's Reply to defendant'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, Defendant’s sole defense for his actions (in denying Plaintiff’s 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 Defendant’s 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 Defendant’s denial of Plaintiff’s 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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    Regular Member Anubis's Avatar
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    Thanks for reporting your lawsuit. I hope you win it; surely it will be boosted by the McDonald decision.

    You mentioned that the Florida CC permit of a Washington state resident is not recognized in Colorado. I am sure you are aware of why a Washington state permit of a Washington resident is not recognized in Colorado. It would be, if Washington would simply recognize the Colorado permit, because that is the only requirement for Colorado to recognize the Washington permit. So your problem of being unarmed in Denver is caused jointly by both Colorado and Washington.

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    Founder's Club Member - Moderator Gray Peterson's Avatar
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    Quote Originally Posted by Anubis View Post
    Thanks for reporting your lawsuit. I hope you win it; surely it will be boosted by the McDonald decision.

    You mentioned that the Florida CC permit of a Washington state resident is not recognized in Colorado. I am sure you are aware of why a Washington state permit of a Washington resident is not recognized in Colorado. It would be, if Washington would simply recognize the Colorado permit, because that is the only requirement for Colorado to recognize the Washington permit. So your problem of being unarmed in Denver is caused jointly by both Colorado and Washington.
    No, it's caused by Colorado and Denver. Washington State has nothing to do with my lack of ability to apply for a carry license in Denver and my complete and total lack of ability to carry. Denver enforced an unconstitutional state statute which discriminated against me on the account of my residency in another state, combining with the city's open carry ban to completely prevent me from carrying in Denver at all.

    I was hoping that the situation would be fixed politically next year, but both Scott McInnis and Dan Maes' candidacies just imploded, and Denver Mayor John Hickenlooper is about to just walk into the Governor's mansion. There is no political solution or political will to fix this problem for the residents of 22 states who cannot carry at all in Colorado's capital city. Fundamental rights is not subject to lack political will to fix unconstitutional laws on the books. They must be fought. The state courts in Colorado are hopelessly results driven (they decided that Article II, Section XIII is not a fundamental right, and Denver could ban open carry), so that leaves federal court.

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    So what's next, oral arguments? When?

    Another question: Assume you didn't have a FL permit. If your lawsuit proceeded with that fact, do you think a Federal Court would tell you to go get a FL permit as opposed to CO changing its law to issue non-resident permits or recognizing WA permits?
    Last edited by press1280; 07-23-2010 at 10:26 PM. Reason: question

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    Regular Member Dreamer's Avatar
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    Grey,

    Empty your PM box. I can't respond to your PM because it's too full...

    Thanks.
    It is our cause to dispel the foggy thinking which avoids hard decisions in the delusion that a world of conflict will somehow mysteriously resolve itself into a world of harmony, if we just don't rock the boat or irritate the forces of aggression—and this is hogwash."
    --Barry Goldwater, 1964

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    Founder's Club Member - Moderator Gray Peterson's Avatar
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    go ahead and resend.

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    Founder's Club Member - Moderator Gray Peterson's Avatar
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    Quote Originally Posted by press1280 View Post
    So what's next, oral arguments? When?

    Another question: Assume you didn't have a FL permit. If your lawsuit proceeded with that fact, do you think a Federal Court would tell you to go get a FL permit as opposed to CO changing its law to issue non-resident permits or recognizing WA permits?
    No, because Denver still has to answer for it's actions for their denial. Oral arguments are a possibility, but I've been told "that should be announced soon".

  11. #11
    Founder's Club Member - Moderator Gray Peterson's Avatar
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    Defendant's response to Plaintiff's reply to Motion for Summary Judgment

    Peterson v. LaCabe entire docket

    Last desperate response from Denver. This is pretty much it for pleadings. Desperation and more desperation.

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    Total side question just because it's easier to ask than look it up: Am I reading this right that if you have an out of state CC permit that CO recognizes, Denver will not allow you to CC unless it is a CO issued permit?

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    Founder's Club Member - Moderator Gray Peterson's Avatar
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    Quote Originally Posted by mahkagari View Post
    Total side question just because it's easier to ask than look it up: Am I reading this right that if you have an out of state CC permit that CO recognizes, Denver will not allow you to CC unless it is a CO issued permit?
    Not a side question at all. Colorado does not recognize non-resident licenses. This is their method of dealing with in state residents bypassing the local Colorado system (and there was an alternative method of dealing with it in the sense of the Washington, Arizona, and Kansas models). Colorado recognizes states that recognizes Colorado. Washington doesn't recognize Colorado for various reasons, so Washington residents and the residents of 21 other states cannot carried concealed there.

    That by itself isn't a really huge issue, because one can open carry. The problem is Denver's open carry ban. Denver's requirement that all guns carried be concealed with CHL, the ban against issuance of CHL's to non-residents of the state of Colorado, plus their ban against recognition of non-resident licenses, all together ban me from carrying in Denver. Denver created their problem here by picking fights with the state when the state passed preemption and they would not tolerate the idea of "rural folk open carrying in their town". So I sued both Denver as well as Colorado for constitutional violations by their actions, resulting in the hilarious responses from Denver saying that I "MSJ'd the wrong person". We cited case law supporting our proposition, and the defendant's lawyer says we cited no case law.

    They're good at fighting in state court, but they're not so good at fighting something in federal. Fine with me.

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    Regular Member Half Live's Avatar
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    Good luck mate. I hope you win. Since I don't have a CHL yet I don't always OC because I live so close to Denver and the boarder of Denver is so f***ed up it makes it hard to tell if you're in Denver or not.

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    WA vs CO reciprocity

    Grey:
    There are several reasons why Colorado elected to not recognize non-resident license. 1) Florida does not have a Domestic Violence limitation, which Colorado does. 2) They want to have tighter controls on those that have a CWP. The reason they do not recognized WA CPL is that it does not have a picture on it, along with the minimal background check that is required to obtain a WA CPL. I hold a FL non-Resident, and will get my WA Non Resident when I am in Seattle next month, but neither are accepted in CO. One of current gov's issues was to close the loop hole as mentioned about with respect to Domestic Violence and they did not want to have people that could not get a CCW in CO get one from another state with less restrictions, but all of this is kinda water under the bridge. I support what you are doing and agree that the City, County of Denver doesn't hire the brightest law folks... They rely on delay's and tactics to drive people away from making real claims. You continue your fight and god speed...

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    Founder's Club Member - Moderator Gray Peterson's Avatar
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    Quote Originally Posted by ColoradoFlyer View Post
    Grey:
    There are several reasons why Colorado elected to not recognize non-resident license. 1) Florida does not have a Domestic Violence limitation, which Colorado does. 2) They want to have tighter controls on those that have a CWP. The reason they do not recognized WA CPL is that it does not have a picture on it, along with the minimal background check that is required to obtain a WA CPL. I hold a FL non-Resident, and will get my WA Non Resident when I am in Seattle next month, but neither are accepted in CO. One of current gov's issues was to close the loop hole as mentioned about with respect to Domestic Violence and they did not want to have people that could not get a CCW in CO get one from another state with less restrictions, but all of this is kinda water under the bridge. I support what you are doing and agree that the City, County of Denver doesn't hire the brightest law folks... They rely on delay's and tactics to drive people away from making real claims. You continue your fight and god speed...
    I've heard various different explanations as for the situation at hand. I've also heard, as an alternative explanation, that someone concealed carried at a community college and it became exposed, community college called the police, police call the sheriff. Guy was kicked out of community college, but their inability to do anything caused them to hastily draft the bill.

    I suggested to Senator John Morse, who sponsored the bill, to change the bill to a system similar to Arizona and Washington State, where if you were a resident, you had to get an in state license, but if you're not, they don't care about where you reside. I told him that it would prevent me from carrying concealed in Denver, and to consider at least adding a provision to allow out of state residents to apply for licenses and be subjected to their licensing system, but my emails were summarily "dismissed" and generally ignored. I did not even reside in their state, why should they care?

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    Quote Originally Posted by ColoradoFlyer View Post
    Grey:
    There are several reasons why Colorado elected to not recognize non-resident license. 1) Florida does not have a Domestic Violence limitation, which Colorado does. 2) They want to have tighter controls on those that have a CWP. The reason they do not recognized WA CPL is that it does not have a picture on it, along with the minimal background check that is required to obtain a WA CPL. I hold a FL non-Resident, and will get my WA Non Resident when I am in Seattle next month, but neither are accepted in CO. One of current gov's issues was to close the loop hole as mentioned about with respect to Domestic Violence and they did not want to have people that could not get a CCW in CO get one from another state with less restrictions, but all of this is kinda water under the bridge. I support what you are doing and agree that the City, County of Denver doesn't hire the brightest law folks... They rely on delay's and tactics to drive people away from making real claims. You continue your fight and god speed...
    It's one thing for CO not to accept permits from a certain state, like lack of training requirement, DV limitations, fingerprints,whatever the case may be. In this case though, CO accepts certain permits(like FL), but Gray, a WA resident, can't carry in CO. A FL resident w/FL permit, CAN carry in CO. Makes NO SENSE, whatsoever. CO in effect discriminates against the RESIDENTS of 20-something states, not the permit itself(which would pass muster at this point). Add in no CO non-resident permit, which is why this case is here.

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    Nothing new in the docket. What's the latest and greatest on this development?

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    Really nothing new to add here?

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    Just a guess- The judge can either make a ruling or decide on setting up oral arguments. This should be an easy call, but hopefully the judge doesn't delay it needlessly like Palmer v. DC.

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    Founder's Club Member - Moderator Gray Peterson's Avatar
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    Defendant's Cross Motion for Summary Judgement has been denied.

    Highlights:

    I am not entirely persuaded by LaCabe’s contention that he is not a proper defendant in this action. I note that a basic element of standing for Article III purposes is an injury “fairly traceable to the challenged action of the defendant” and a likelihood that the injury will be redressed by a favorable decision. Bronson v. Swensen, 500 F.3d 1099, 1106 (10th Cir. 2007). Here, it is undisputed that LaCabe is the responsible official in enforcing the statutory scheme in Denver. Moreover, LaCabe’s action in denying Plaintiff’s application is the cause of Plaintiff’s alleged injury (inability to obtain a concealed handgun permit) and a favorable decision will redress the injury. Therefore, for the purposes of Article III standing, it appears that LaCabe is an appropriate defendant.

    Moreover, that LaCabe could not exercise discretion does not necessarily bar an action against him. See, e.g., Finberg v. Sullivan, 634 F.2d 50, 54 (3d Cir. 1980) (examining whether, under Ex Parte Young, local officials enforcing statutory scheme were proper defendants and concluding that the fact that their duties were entirely ministerial was not a defense to liability; “Under Ex Parte Young the inquiry is not the nature of an official’s duties but into the effect of the official’s perform nce of his duties on the plaintiff’s rights”). The court in Finberg similarly rejected any notion that the defendants did not have a sufficient interest in the constitutionality of the rules to be adverse to the plaintiff, similar to what LaCabe argues here. Id. (“Once the [local officials] have relied on the authority conferred by the [state] procedures to work an injury to the plaintiff, they may not disclaim interest in the constitutionality of these procedures.”). Accordingly, I disagree that the motion for summary judgment should be denied on this basis.

    LaCabe has provided no legal authority to show why he cannot address the constitutional arguments presented by Plaintiff regarding the statute. Nonetheless, given that the Attorney General is now a party and will presumably respond to these issues, I will also reserve ruling on Defendant LaCabe’s liability.

    .......

    Accordingly, it is ordered:
    1. The Motion to Dismiss Executive Director Peter Weir and Colorado Attorney General’s Request to Be Heard (ECF No. 6) is granted.
    2. All claims against Defendant Peter Weir shall be dismissed.
    3. John W. Suthers, Attorney General for the State of Colorado, is a party to this action as an intervenor.
    4. The Attorney General may file a response to Plaintiff’s Motion for Summary Judgment against Defendant LaCabe (ECF No. 17) within 30 days of the date of this order and Plaintiff may file a reply brief in accordance with D.C.COLO.LCivR 56.1.A..
    5. Defendant LaCabe’s Cross Motion for Summary Judgment Against Plaintiff (ECF No. 19) is denied.

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    Sweet......

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    Carry on DUDE!

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    Regular Member Anubis's Avatar
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    Quote Originally Posted by Gray Peterson View Post
    ...4. The Attorney General may file a response to Plaintiff’s Motion for Summary Judgment against Defendant LaCabe (ECF No. 17) within 30 days of the date of this order and Plaintiff may file a reply brief in accordance with D.C.COLO.LCivR 56.1.A..
    The judge's ruling was issued Oct 20, so the 30 days lapsed on Nov 19. I see that the 30-day interval was extended (according to http://wiki.calgunsfoundation.org/in...rson_v._LaCabe ) to Dec 10 and the response was filed Dec 9.
    Last edited by Anubis; 12-25-2010 at 11:50 AM.

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    Sounds like the case just got extremely focused!

    Go get em!
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