Vance v. Aldrich.
No. 25-1326. 9/9/2026. D.Colo. Judge Phillips. Substantive Due Process—42 USC § 1983—State-Created-Danger Theory of Liability—Wrongful Death Claims—Colorado Premises Liability Act—Causation—Negligence—Supplemental Jurisdiction.
September 9, 2026
In 2022, Aldrich murdered five people and injured 25 others at Club Q, an LGBTQIA+ nightclub in Colorado Springs. Aldrich was prosecuted and pleaded guilty in state court to five counts of first degree murder and 46 counts of attempted murder, and pleaded no contest to two hate crimes. In federal court, Aldrich pleaded guilty to 74 federal hate crimes and gun offenses. He received multiple life sentences. The survivors of the shooting and the families of three people Aldrich murdered sued the El Paso County Board of County Commissioners and the El Paso County Sheriff (collectively, county defendants), as well as individuals and entities associated with Club Q (collectively, Club Q defendants). Plaintiffs brought substantive due process claims through 42 USC § 1983 against the county defendants under a state-created-danger theory of liability, alleging that their policies prohibited law enforcement from seeking emergency protection orders, which would have kept dangerous individuals such as Aldrich from accessing firearms. Plaintiffs also brought related wrongful death claims. Plaintiffs brought state law claims under the Colorado Premises Liability Act (CPLA) and related negligence and wrongful death claims against the Club Q defendants, alleging that they caused injuries by not using sufficient security and safety measures to protect patrons. The county defendants and the Club Q defendants separately moved to dismiss under Fed. R. Civ. P. 12(b)(6). The district court granted the county defendants’ motion in full. It granted the Club Q defendants’ motion in part, dismissing the § 1983 and related wrongful death claims because plaintiffs didn’t plausibly allege that the county defendants engaged in affirmative danger-creating conduct. The court also dismissed the CPLA claims because plaintiffs didn’t plausibly allege causation. The court declined to dismiss the negligence and wrongful death claims against the Club Q defendants, who had argued that the CPLA provided the exclusive remedy for plaintiffs’ claims against them, ruling that deciding this issue involved a “fact intensive inquiry” inappropriate at the pleading stage. With no federal claims remaining, on the parties’ motions, the district court declined to exercise supplemental jurisdiction over the remaining state law claims and entered judgment. Plaintiffs and the Club Q defendants both appealed. The clerk’s office consolidated two appeals from different plaintiffs and one from a subset of the Club Q defendants. This opinion addresses all three.
Plaintiffs argued that they sufficiently pleaded their § 1983 claims. As relevant here, the Colorado Violence Prevention Act (CVPA) allows law enforcement, at its discretion, to request Extreme Risk Protection Orders (ERPOs). The county defendants were opposed to the CVPA, and the El Paso County Sheriff’s Office issued a formal statement saying that it wouldn’t seek ERPOs absent exigent circumstances and probable cause of a crime. Plaintiffs alleged that county law enforcement should have sought an ERPO against Aldrich after he was charged with several felonies (which were later dismissed). According to plaintiffs, the failure to seek an ERPO allowed Aldrich to collect guns and ammunition to prepare for the Club Q shooting. Generally, it is not a Fourteenth Amendment Due Process Clause violation for a state actor to fail to protect an individual against private violence. But there is a duty to protect if the state actor intentionally or recklessly created the danger that precipitated the deprivation. To state a claim under a state-created-danger theory, a plaintiff must plead (1) certain affirmative conduct by a state official and (2) private violence. Although the county defendants’ adoption and maintenance of the ERPO policies was more than negligence or inaction, that alone didn’t satisfy the affirmative-conduct precondition. The state actor’s conduct must also create an immediate threat of harm directed at a specific plaintiff. Here, most of plaintiffs’ allegations concerned the county defendants’ inaction, rather than affirmative harm; they didn’t allege that the county defendants’ conduct put plaintiffs, specifically, at immediate risk of harm. Accordingly, their allegations didn’t satisfy the state-created-danger theory’s affirmative conduct precondition, and the district court correctly dismissed the § 1983 claims.
The Club Q defendants contended that the district court lacked subject matter jurisdiction over the state law claims against them. The Club Q defendants moved under Rule 12(b)(1) for the district court to dismiss the state law claims for lack of subject matter jurisdiction under 28 USC § 1367(a) and, in the alternative, for the court to decline supplemental jurisdiction under § 1367(c). Plaintiffs also asked the court to decline supplemental jurisdiction under § 1367(c). Courts may decline supplemental jurisdiction under § 1367(c) only if they have subject matter jurisdiction under § 1367(a), which gives federal courts “subject-matter jurisdiction over specified state-law claims.” Here, the district court had subject matter jurisdiction under § 1367(a) because the federal and state claims both arise from the Club Q shooting and the events preceding it. Thus, under § 1367(a), the district court properly exercised supplemental jurisdiction over the state law claims against the Club Q defendants.
Plaintiffs also argued that the district court erred in its ruling on their CPLA claims, maintaining that they plausibly alleged that the Club Q defendants substantially contributed to their injuries by not providing adequate security or safe property conditions. The CPLA provides the exclusive legal remedy for plaintiffs’ injuries, which arose from Club Q’s conditions. Here, the district court correctly held that under the 2022 CPLA amendment, plaintiffs didn’t plausibly allege causation.
The Club Q defendants further argued that the CPLA preempts plaintiffs’ negligence and wrongful death claims, so the district court should have dismissed them. Because the CPLA provides the exclusive remedy for plaintiffs’ alleged injuries from Club Q’s safety and security conditions, the district court should have granted the Club Q defendants’ motion to dismiss the negligence and wrongful death claims.
The dismissal of plaintiffs’ § 1983 and CPLA claims was affirmed. The denial of the Club Q defendants’ motion to dismiss the negligence and wrongful death claims was reversed, and the case was remanded for further proceedings.