Scott v. Allen.
No. 24-1349. 9/3/2025. D.Colo. Judge Tymkovich. Service of Process on Law Enforcement—CRS § 18-9-313(2.7)—Pre-Enforcement Challenge to Statute—Standing—Injury-in-Fact—Ripeness.
September 3, 2025
Scott is a professional process server. He was hired to serve a subpoena from the Colorado Department of Revenue on Colorado State Trooper Hiller. Hiller filed complaints against Scott with the Colorado Office of Private Investigator Licensure (OPIL) and the Process Servers Association of Colorado (association) alleging that Scott included Hiller’s personal information in an affidavit of service that was to be filed and publicly available in violation of CRS § 18-9-313(2.7), which prohibits disclosure of law enforcement personal information. The OPIL dismissed its complaint, but the association terminated Scott’s membership on the basis that he violated § 18-9-313(2.7). Scott then decided to create a website to publish allegations of police officer misconduct and to publicize police officers accused of abusing the public trust. Scott created CopScore, LLC and copscore.org to effectuate his plan. He purchased the domain copscore.org and spent $30,000 developing the website. Specifically, Scott wants to publish the affidavit of service and bodycam video from the camera he wore while serving Trooper Hiller and to develop copscore.org to help serve process and subpoenas on law enforcement and hold police officers accountable for their conduct. But Scott, fearing prosecution under § 18-9-313(2.7), has not published any content on his website. Instead, Scott sued Hiller, Hiller’s supervisor, and District Attorney Allen in their individual and official capacities, seeking a declaration that the statute is facially unconstitutional and unconstitutional as applied to him. On defendants’ motion to dismiss challenging subject matter jurisdiction, the district court dismissed the claims against Hiller and his supervisor in their entirety but declined to dismiss the suit against Allen in his official capacity. Both parties then moved for summary judgment. The district court found that Scott did not show an injury in fact because he failed to show that his conduct was “arguably proscribed” by the statute. The court concluded that Scott lacked standing to pursue a pre-enforcement challenge to the statute, and it granted summary judgment to Allen and dismissed the complaint.
On appeal, Scott asserted that the district court erred by ruling on the Article III standing inquiry without notice to the parties or adequate briefing and argument by the parties. However, any party, including the court sua sponte, can raise standing for the first time at any stage of litigation. The district court may, but is not required to, order supplemental briefing. Here, both parties moved for summary judgment, so the record was not inadequate to determine standing. Therefore, the district court did not err in sua sponte addressing its subject matter jurisdiction.
Scott also argued that the district court erred by construing the statute to require him to confess that he wishes to violate the law to have standing. Under CRS § 18-9-313(2.7), it is illegal to place on the internet personal information about a protected person or their family if such information could create an imminent and serious threat to the protected person. But such acts are criminalized only if the person making the information available knows or should know of the threat. As relevant here, to prove an injury-in-fact for standing purposes in a pre-enforcement challenge to a law that might chill an individual’s First Amendment rights, the plaintiff must show (1) intent to engage in conduct arguably affected with a constitutional interest that is statutorily proscribed and (2) that a credible threat of prosecution exists thereunder. Here, the association terminated Scott’s membership because it believed he violated the statute, and Allen has refused to state he will not prosecute under the statute. Further, Hiller claims that publishing his personal information would subject him to threat from individuals he has interacted with as a peace officer. The record thus supports the claim that Scott’s conduct is arguably proscribed by the statute and that Allen or other prosecutors might credibly enforce the statute against proscribed conduct. The district court thus erred in its standing analysis.
Scott further contended that the district court erred by determining in a footnote to its order that his as-applied claim is unripe. When a claim is determined to be unripe, it means that the court lacks subject matter jurisdiction, so the district court’s ripeness conclusion appears to mirror its standing conclusion. And as discussed above, the Tenth Circuit found that Scott has standing, so his claims are ripe.
Scott also requested that the Tenth Circuit resolve his claims on the merits. However, the district court found that Scott lacked standing, so it did not reach the merits. And the Tenth Circuit declined to analyze the issue without the benefit of the district court’s analysis.
The judgment was reversed and the case was remanded for consideration on the merits.