Rocky Mountain Gun Owners v. Polis.
No. 23-1251. 11/5/2024. D.Colo. Judge Federico. Second Amendment—SB 23-169—Preliminary Injunction—Standing—Mootness—Business Record.
November 5, 2024
The Colorado General Assembly passed SB 23-169, establishing 21 as the minimum age for the sale and purchase of guns in Colorado with certain exceptions for the military, law enforcement, and peace officers. Governor Polis signed the bill, and the law was to become effective on August 7, 2023. Rocky Mountain Gun Owners (RMGO), a firearms advocacy group, and individual plaintiffs Mosgrove and Pineda—who were over age 18 but under age 21—(collectively, plaintiffs) filed suit alleging that the law infringed on their Second Amendment rights under the US Constitution. They requested declaratory and injunctive relief and actual or nominal damages, and they later moved for a preliminary injunction. The district court concluded that RMGO lacked standing to seek an injunction either on its own right or on behalf of its members but that Mosgrove and Pineda had each established standing. The district court then determined that Mosgrove and Pineda demonstrated a likelihood of success on the merits of their Second Amendment challenge, and the court granted the motion and enjoined enforcement of the law.
On appeal, the Tenth Circuit first assessed whether Mosgrove and Pineda’s challenge to SB 23-169 was justiciable. Because Mosgrove reached age 21 during the pendency of this appeal his challenge to SB 23-169 became moot, so the Tenth Circuit dismissed him from the appeal. As to Pineda, Governor Polis argued that the declaration Pineda submitted to establish standing and in support of the motion for a preliminary injunction is insufficient to establish standing. To establish standing, a plaintiff must establish an injury-in-fact, causation, and redressability. To establish an injury-in-fact, a plaintiff must show that they have suffered or likely will suffer a concrete and actual invasion of a legally protected interest. Here, Pineda’s declaration asserted his intention to lawfully purchase a firearm for lawful purposes, which was sufficient to establish a concrete and particularized future injury. And because SB 23-169 will categorically bar Pineda, who is under 21 and ineligible for an exception, from purchasing firearms from licensed gun dealers and private sellers, Pineda sufficiently articulated a plan to engage in conduct potentially violative of SB 23-169, once it becomes effective. Further, Pineda faces a credible threat of future enforcement were he to attempt to effectuate a purchase of a gun in Colorado. Pineda also satisfied the causation element because his future inability to purchase firearms will directly be caused by enforcement of SB 23-169 by Governor Polis and the State of Colorado; and enjoining SB 23-169 would redress his alleged future injury by allowing him to make a lawful purchase within the limits set by federal law. Accordingly, Pineda has established standing to support his pre-enforcement challenge to SB 23-169.
Governor Polis also argued that the district court erred by concluding that Pineda satisfied the preliminary injunction factors. A plaintiff seeking such an injunction must establish that (1) they have a substantial likelihood of succeeding on the merits; (2) they are likely to suffer irreparable harm without preliminary relief; (3) this threatened harm outweighs the harm a preliminary injunction may pose to the opposing party; and (4) if issued, the injunction will not adversely affect the public interest. As to the first prong, Pineda had to establish that the Second Amendment’s explicit text, “as informed by history,” encompasses the conduct he sought to engage in. Here, Pineda met his burden of demonstrating that he is part of “the people” as defined by the Second Amendment and that the arms he wanted to purchase constitute protected “arms.” But the Tenth Circuit held that SB 23-169’s aged-based condition or qualification on the commercial sale of firearms is a presumptively lawful regulation under District of Columbia v. Heller, 554 U.S. 570, 592 (2008), and other relevant US Supreme Court precedent, so SB 23-169 falls outside of the scope of the Second Amendment’s right to “keep and bear” arms. And SB 23-169 is not being used for abusive ends. Therefore, the district court abused its discretion in determining that Pineda proved that he is substantially likely to succeed on the merits. Because Pineda did not establish a likelihood of success on his Second Amendment claim, he likewise could establish irreparable injury in the enforcement of SB 23-169. And lastly, balancing Pineda’s nonexistent harms against the real harms of nonenforcement of SB 23-169 weighs in favor of Governor Polis; and the public interest strongly favors Colorado’s enforcement of SB 23-169. Accordingly, the district court erred by concluding that these factors weighed in favor of Pineda. The district court thus abused its discretion and erred in granting plaintiffs’ motion for a preliminary injunction and enjoining enforcement of SB 23-169.
The order enjoining enforcement of SB 23-169 was reversed and the case was remanded with instructions to dissolve the injunction and for further proceedings.