Opinion
Civil Action 22-cv-02680-NYW-JPO
09-30-2024
ROCKY MOUNTAIN GUN OWNERS, NATIONAL ASSOCIATION FOR GUN RIGHTS, CHARLES BRADLEY WALKER, BRYAN LAFONTE, GORDON MADONNA, JAMES MICHAEL JONES, and MARTIN CARTER KEHOE,[1] Plaintiffs, v. THE TOWN OF SUPERIOR, CITY OF LOUISVILLE, COLORADO, CITY OF BOULDER, COLORADO, and BOARD OF COUNTY COMMISSIONERS OF BOULDER COUNTY, Defendants.
MEMORANDUM OPINION AND ORDER
Nina Y. Wang United States District Judge.
This matter comes before the Court on Plaintiffs' Motion for Summary Judgment (“Plaintiffs' Motion”), [Doc. 76],and Defendants' Motion for Summary Judgment (“Defendants' Motion,” and together with Plaintiffs' Motion, the “Cross-Motions”), [Doc. 78], both filed October 20, 2023; and Plaintiffs' Motion for Additional Discovery, [Doc. 92], filed August 16, 2024 (together, the “Motions”). The Court has reviewed the Motions and related briefing and concludes that oral argument would not materially assist in the resolution of the Motions. For the reasons set forth in this Order, Plaintiffs' Motion is DENIED without prejudice, Defendants' Motion is DENIED without prejudice, and Plaintiffs' Motion for Additional Discovery is DENIED without prejudice.
When referring to documents filed in this action, this Court uses the convention [Doc. __], referring to the docket and page number assigned by the Court's Electronic Court Files (“ECF”) System. When referring to documents filed in another matter, this court uses the convention [ECF No. __], still referring to the docket and page number assigned by the ECF System.
BACKGROUND
Plaintiffs Rocky Mountain Gun Owners (“RMGO”), National Association for Gun Rights (“NARG”), Charles Bradley Walker (“Plaintiff Walker” or “Mr. Walker”), Bryan LaFonte (“Plaintiff LaFonte” or “Mr. LaFonte”), Gordon Madonna (“Plaintiff Madonna” or “Mr. Madonna”), James Michael Jones (“Plaintiff Jones” or “Mr. Jones”), and Martin Carter Kehoe (“Plaintiff Kehoe” or “Mr. Kehoe”) (collectively, “Plaintiffs,” and excluding RMGO and NARG, the “Individual Plaintiffs”) filed this suit to challenge the constitutionality of various county and municipal ordinances enacted by Defendants the Town of Superior, City of Louisville, City of Boulder, and Board of County Commissioners of Boulder County (“Defendants”), which ban “assault weapons” and “large capacity magazines” (“LCMs”).Plaintiffs assert a single claim under the Second and Fourteenth Amendments of the United States Constitution. See [Doc. 1 at 15].
While Plaintiffs take issue with the terminology of “large-capacity magazine,” [Doc. 1 at ¶ 18], this Court uses the terminology used in the Ordinances at issue. “Assault weapon” and “LCMs” are defined uniformly throughout the Ordinances; for example, LCMs are defined as “any ammunition feeding device with the capacity to accept more than ten (10) rounds,” with three limited exceptions not relevant to the instant Motions. See, e.g., [Doc. 20-1 at 9].
“[T]he Second and Fourteenth Amendments protect an individual right to keep and bear arms for self-defense.” New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1, 17 (2022). The right is codified in the Second Amendment and made applicable to the states and municipalities through the Fourteenth Amendment. Id. at 34.
The Ordinances. The Ordinances at issue include Town of Superior, Colorado, Code Ch. 10, art. IX (the “Superior Ordinance”), [Doc. 96-1]; City of Boulder, Colorado, Rev. Code Title 5, Ch. 8 (the “Boulder Ordinance”), [Doc. 96-2]; City of Louisville, Colorado, Code Title 9, Ch. VIII (the “Louisville Ordinance,” and together with the Superior and Boulder Ordinances, the “Municipal Ordinances”), [Doc. 96-3]; and Boulder County, Colorado, Ord. No. 2022-5 (the “Boulder County Ordinance,” and collectively with the Municipal Ordinances, “the Ordinances”), [Doc. 96-4]. Boulder County is one of 64 counties in the State of Colorado.
For ease of use, the Court attaches and refers to the clean versions of all of the Ordinances because the ECF markings and pagination on the versions filed by Plaintiffs and Defendants are often obscured. See [Doc. 76-2; Doc. 76-4; Doc. 78-1; Doc. 78-2; Doc. 78-3].
The Town of Superior and the cities of Louisville and Boulder are incorporated municipalities within Boulder County (“collectively, “Municipalities”), and the Municipal Ordinances each apply within the boundaries of the respective incorporated municipalities, whereas the Boulder County Ordinance applies to “unincorporated Boulder County.” [Doc. 1 at ¶¶ 19, 23, 27, 30]. The Municipal Ordinances share a similar structure and provide, in relevant part, that “[n]o person shall knowingly possess or sell or otherwise transfer an illegal weapon,” and “illegal weapon” is defined to include “an assault weapon [or] large-capacity magazine.” [Doc. 96-1 at 8, 10; Doc. 96-2 at 13-14; Doc. 96-3 at 6, 9]. The Boulder County Ordinance provides, in relevant part, that “[n]o person . . . in unincorporated Boulder County may manufacture, import, purchase, sell or transfer any assault weapon [or] large capacity magazine.” [Doc. 96-4 at 6]. Plaintiffs concede that the Boulder County Ordinance does not necessarily prohibit the possession of assault weapons or LCMs. [Id.; Doc. 1 at ¶¶ 27-29].
All four Ordinances define the term “assault weapon” to include semi-automatic center-fire rifles, pistols, and shotguns with certain characteristics. See [Doc. 96-1 at 67; Doc. 96-2 at 12-13; Doc. 96-3 at 5-6; Doc. 96-4 at 4-6]. These definitions have various exceptions. The Ordinances do not prohibit or restrict firearms that are not semiautomatic, nor do the Ordinances prohibit or restrict semi-automatic firearms lacking certain features (e.g., pistol grips, flash suppressors, barrel shrouds). [Doc. 96-1 at 6-7; Doc. 96-2 at 12-13; Doc. 96-3 at 5-6; Doc. 96-4 at 4-6]. The Ordinances consistently define the term “large-capacity magazines” to encompass “ammunition feeding device[s] with the capacity to accept more than 10 rounds.” [Doc. 96-1 at 8; Doc. 96-2 at 13; Doc. 96-3 at 6; Doc. 96-4 at 6]. The Ordinances do not prohibit or restrict any magazines with a maximum capacity of 10 rounds or less. [Doc. 96-1 at 8; Doc. 96-2 at 13; Doc. 96-3 at 6; Doc. 96-4 at 6].
The Plaintiffs. Each of the Individual Plaintiffs challenges the Ordinance governing the municipality or unincorporated Boulder County in which he resides: Plaintiffs Walker and Jones and reside in Superior and Boulder, respectively. [Doc. 7612 at ¶ 3; Doc. 76-7 at ¶ 3]. Plaintiffs LaFonte and Madonna reside in Louisville. [Doc. 76-9 at ¶ 3; Doc. 76-10 at ¶ 3]. Plaintiff Kehoe resides in unincorporated Boulder County. [Doc. 76-8 at ¶ 3]. Plaintiffs RMGO and NAGR are nonprofit membership- and donor-supported organizations that “seek to defend the right of all law-abiding individuals to keep and bear arms.” [Doc. 76-6 at ¶ 3]. The Individual Plaintiffs all are members of at least one of the organizations. [Doc. 76-7 at ¶ 2; Doc. 76-8 at ¶ 2; Doc. 76-9 at ¶ 2; Doc. 76-10 at ¶ 2; Doc. 76-12 at ¶ 2].
Procedural History. Plaintiffs initiated this action on October 12, 2022. [Doc. 1].
On November 3, 2022, and pursuant to the Parties' stipulation, the Court entered an Order approving a stay of enforcement of the Ordinances during the pendency of this litigation, insofar as they prohibit the possession, sale, or transfer of assault weapons and LCMs. [Doc. 38]. Pursuant to the Scheduling Order entered on January 19, 2023, discovery in this case closed on July 28, 2023. [Doc. 49 at 10-11].
The Parties subsequently filed motions under Rule 56 of the Federal Rules of Civil Procedure, which are fully briefed. See [Doc. 76; Doc. 82; Doc. 84]; see also [Doc. 78; Doc. 81; Doc. 83]. Both sides move for summary judgment in their favor on Plaintiffs' claim brought pursuant to the Second and Fourteenth Amendments. [Doc. 76; Doc. 78]. Defendants challenge Plaintiffs' claim on the merits, asserting that they are entitled to summary judgment because Plaintiffs' claim for a violation of the Second and Fourteenth Amendments fails as a matter of law. See generally [Doc. 78]. Plaintiffs move for summary judgment as to their standing to bring their claim, [Doc. 76 at 15-26], and on the merits, [id. at 26-45]. With respect to standing, Plaintiffs request that the Court find that “there is no genuine dispute concerning the material facts supporting Plaintiffs' standing, and those facts are sufficient to establish their standing to bring their constitutional challenge to the Ordinances.” [Id. at 26]. Because it respectfully disagrees, this Court's analysis focuses on the issue of standing and does not reach the substantive constitutional question presented by the Parties at this time.
On August 16, 2024, and with leave of Court, both Parties filed supplemental statements of authority regarding the issues briefed in their respective Motions for Summary Judgment. [Doc. 91; Doc. 93]. That same day, Plaintiffs also filed the instant Motion for Additional Discovery. [Doc. 92]. Defendants responded to the Motion for Additional Discovery on August 23, 2024. [Doc. 95]. The supplemental authority does not pertain to the issue of standing.
LEGAL STANDARDS
I. Standing
Federal courts are courts of limited jurisdiction. Under Article III of the United States Constitution, federal courts only have jurisdiction to hear certain “cases” and “controversies.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157 (2014). As such, courts “are duty bound to examine facts and law in every lawsuit before them to ensure that they possess subject matter jurisdiction.” Wilderness Soc. v. Kane Cnty., 632 F.3d 1162, 1179 n.3 (10th Cir. 2011) (Gorsuch, J., concurring). Indeed, courts have an independent obligation to determine whether subject matter jurisdiction exists, even in the absence of a challenge from any party. 1mage Software, Inc. v. Reynolds & Reynolds, Co., 459 F.3d 1044, 1048 (10th Cir. 2006) (citing Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006)). A court may not simply presume jurisdiction to reach the substantive issues before it. See Colo. Outfitters Ass'n v. Hickenlooper, 823 F.3d 537, 543 (10th Cir. 2016). Rather, a federal court must resolve jurisdictional issues before reaching the merits. United States v. Springer, 875 F.3d 968, 973 (10th Cir. 2017).
The doctrine of standing serves as “[o]ne of those landmarks” in identifying “the ‘Cases' and ‘Controversies' that are of the justiciable sort referred to in Article III.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992); see also Citizen Ctr. v. Gessler, 770 F.3d 900, 906 (10th Cir. 2014) (standing is jurisdictional). Under Article III, standing requires three elements: injury in fact, causation, and redressability. Colo. Outfitters, 823 F.3d at 544. These three elements of standing are “an indispensable part of the plaintiff's case,” and thus the plaintiff must support each element “with the manner and degree of evidence required at the successive stages of the litigation.” Id. at 561 (quotation omitted). At the summary judgment stage, a plaintiff's standing must be supported by specific evidentiary facts and not by mere allegations. Id.
II. Rule 56 of the Federal Rules of Civil Procedure
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is warranted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A dispute is genuine if there is sufficient evidence so that a rational trier of fact could resolve the issue either way. A fact is material if under the substantive law it is essential to the proper disposition of the claim.” Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1194 (10th Cir. 2011) (citation and quotations omitted). When considering the evidence in the record, the Court cannot and does not weigh the evidence or determine the credibility of witnesses. See Fogarty v. Gallegos, 523 F.3d 1147, 1165 (10th Cir. 2008). At all times, the Court views each Motion in the light most favorable to the nonmoving party. Banner Bank v. First Am. Title Ins. Co., 916 F.3d 1323, 1326 (10th Cir. 2019).
“[T]he proof required to establish standing increases as the suit proceeds.” Rio Grande Found. v. Oliver, 57 F.4th 1147, 1162 (10th Cir. 2023) (quotation omitted). “At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, while on summary judgment, the plaintiff must set forth by affidavit or other evidence specific facts which for purposes of the summary judgment motion will be taken to be true.” Id. (cleaned up).
ANALYSIS
I. Individual Plaintiffs
With respect to all four Ordinances, Plaintiffs assert that they have standing to challenge them because the Ordinances make it illegal to acquire or transfer assault weapons or LCMs within the Municipalities and unincorporated Boulder County, each of them owns and wishes to acquire and transfer assault weapons and LCMs in the future, and a prohibition on assault weapons and LCMs that are protected by the Second Amendment causes an injury in fact. [Doc. 76 at 18-19]. In their Response, Defendants argue that Plaintiffs lack standing because each Individual Plaintiff has failed to proffer sufficient factual evidence that he currently possesses firearms falling within the Ordinances or has definite plans to engage in Ordinance-violating conduct in the future.[Doc. 82 at 25-27]. Specifically, Defendants challenge the sufficiency of Plaintiffs' Declarations on the basis that they do not state facts, arguing that Plaintiffs have not “specified model numbers, brand names, features or specifications, or purchase dates regarding firearms and LCMs that they allegedly own,” and only express a “vague “desire” to acquire more firearms and LCMs, or transfer them to others, at some undefined point in the future. [Id. at 26]. The Municipalities and unincorporated Boulder County further argue that RMGO and NAGR cannot establish organizational standing because they have not established that any of their members are permitted to sue in his or her own right. [Id. at 27].
Defendants did not raise lack of standing as a basis for their affirmative Motion for Summary Judgment. [Doc. 78].
In reply, Plaintiffs contend that because the Ordinances are criminal statutes, the Individual Plaintiffs are capable of determining, should be permitted to determine, whether their firearms and magazines fall within the bans; otherwise, due process concerns would abound. [Doc. 84 at 13].
A. Injury in Fact
The injury in fact element requires that a plaintiff “offer something more than the hypothetical possibility of injury. The alleged injury must be concrete, particularized, and actual or imminent.” Colo. Outfitters, 823 F.3d at 544. “[I]mminence is . . . a somewhat elastic concept, [but] it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes-that the injury is certainly impending.” Clapper v. Amnesty Int'l USA, 568 U.S. 398, 409 (2013) (quotation omitted).
In Colorado Outfitters, the plaintiffs brought a Second Amendment preenforcement challenge to a Colorado criminal statute. 823 F.3d at 542, 545 & n.7. The United States Court of Appeals for the Tenth Circuit (“Tenth Circuit”) observed that to satisfy the requirements of standing, “a plaintiff must typically demonstrate (1) an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by the challenged statute, and (2) that there exists a credible threat of prosecution thereunder.” Id. at 545 (cleaned up). Most recently, in DeWilde v. Attorney General of United States, the Tenth Circuit again considered whether a plaintiff sufficiently demonstrated standing to bring a pre-enforcement challenge to a firearm regulation based on the Second Amendment. See No. 23-8054, 2024 WL 1550708, at *1-2 (10th Cir. Apr. 10, 2024). Though not entirely clear, to the extent that Plaintiffs suggest that a different or more relaxed standard for standing applies in this action based on Peck v. McCann, 43 F.4th 1116, 1129 (10th Cir. 2022), [Doc. 76 at 21-22], this Court respectfully disagrees. The DeWilde court did not deviate from, but rather followed, the test set out in Colorado Outfitters. See DeWilde, 2024 WL 1550708, at *2. This Court follows suit.
2. Application
The Court now turns to whether Plaintiffs have presented sufficient evidence to establish that their conduct or contemplated conduct is proscribed by the Ordinances. The Ordinances at issue in this case criminalize, inter alia, the sale or transfer of assault weapons and LCMs as defined under the Ordinances. The Municipal Ordinances also criminalize the possession of assault weapons and LCMs.
Existing Conduct. The Court first considers whether Plaintiffs are currently engaged in conduct proscribed by the Ordinances. In support of their argument with respect to standing, Plaintiffs submit Declarations of the following Individual Plaintiffs: (1) Mr. Jones, [Doc. 76-7]; (2) Mr. Kehoe, [Doc. 76-8]; (3) Mr. LaFonte, [Doc. 76-9]; (4) Mr. Madonna, [Doc. 76-10]; and (5) Mr. Walker, [Doc. 76-12].
Each Individual Plaintiff declares, in substantially the same language:
I currently own and possess within the Municipality a number of firearms and firearm magazines which l possess and use for a variety of lawful purposes, including target shooting and self-defense.
I currently own and possess within the Municipality firearms that are considered AW Firearms under the Ordinance. l desire to continue to own and possess these AW Firearms within the Municipality and my home in particular. l also desire to be able to freely transfer these AW Firearms to others, including members of my family.
I own and possess within the Municipality a number of LCMs.
I have acquired AW Firearms in the past. I would like to continue to be able to do so in the future and own and possess such AW Firearms in the Municipality.
I have acquired LCMs in the past. I would like to continue to be able to do so in the future and own and possess such LCMs in the Municipality.[Doc. 76-7 at ¶¶ 7-8, 10-12; Doc. 76-8 at ¶¶ 7-11; Doc. 76-9 at ¶¶ 7-8, 10-12; Doc. 76 10 at ¶¶ 7-8, 10-12; Doc. 76-12 at ¶¶ 7-8, 10-12]. Each Individual Plaintiff defines the terms “AW Firearms” and “LCM” as used in each of their Declarations to have the same meaning as the terms are used in the respective Ordinances, with no other specifications. [Doc. 76-7 at ¶¶ 5-6; Doc. 76-8 at ¶¶ 5-6; Doc. 76-9 at ¶¶ 5-6; Doc. 76-10 at ¶¶ 5-6; Doc. 76-12 at ¶¶ 5-6].
While Plaintiffs insist that they have satisfied the requirements for injury in fact because “a person of ordinary intelligence can know whether . . . he owns an AR-15 (a weapon banned by name) or a magazine with a capacity greater than ten rounds,” [Doc. 84 at 13], the operative question is not whether Plaintiffs are capable of determining whether their respective firearms and magazines fall within the categories of arms proscribed by the Ordinances. Rather, the Court must be able to discern, based on factual evidence in the record at the summary judgment stage, that Plaintiffs have established an injury in fact as a matter of law. In this respect, Plaintiffs' conclusory assertions are insufficient. None of the Declarations includes any specific factual averments to allow the Court to satisfy itself that the Individual Plaintiffs are currently engaged in a course of conduct that is proscribed by the Ordinances.
For instance, there are no factual allegations regarding what types of firearms and/or magazines each of the Individual Plaintiffs possesses; or what features the firearms and/or magazines have; or how long the Individual Plaintiffs have possessed them; or when each of the Individual Plaintiffs came into possession of them. See generally [Doc. 76-7; Doc. 76-8; Doc. 76-9; Doc. 76-10; Doc. 76-12]. With respect to Mr. Kehoe, his mere possession of “assault weapons” and “LCMs” as defined by the Boulder County Ordinance would not necessarily establish that he is currently engaged in a course of conduct that is proscribed by it, as it does not criminalize the possession of assault weapons or LCMs possessed prior to August 2, 2022. Compare [Doc. 76-8 at ¶¶ 7-8] with [Doc. 96-4 at 6-7]; see also Bronson v. Swensen, 500 F.3d 1099, 1106 (10th Cir. 2007) (observing that “[e]ach plaintiff must have standing to seek each form of relief in each claim”).
And to the extent that each Individual Plaintiff declares and seeks to rely on the factual averment that “[m]any firearms, even those not considered [assault weapon] [f]irearms under the Ordinances, come standard with an LCM,” [Doc. 76 at 8 ¶ 38, 20; Doc. 76-7 at ¶ 13; Doc. 76-8 at ¶ 12; Doc. 76-9 at ¶ 13; Doc. 76-10 at ¶ 13; Doc. 76-12 at ¶ 13], to suggest that the Individual Plaintiffs necessarily possess proscribed LCMs, this statement alone provides the Court no facts as to whether they still possess LCMs associated with those firearms. This alleged fact is also disputed by Defendants, citing an expert report that is provided under penalty of perjury, [Doc. 82 at 34-35 ¶ 38 (citing [Doc. 78-16 at 45-46 ¶ 128])], creating a genuine issue of material fact precluding summary judgment, see Fabian v. State Farm Mut. Auto. Ins. Co., No. 21-cv-03031-WJM-SKC, 2023 WL 5179113, at *4 (D. Colo. Aug. 11, 2023) (holding that even an unsworn expert report can create a genuine issue of material fact at the summary judgment stage). And consistent with the well-understood principles of summary judgment, this Court must resolve all evidence, and reasonable inferences derived from the evidence presented, in favor of Defendants as the non-moving party at this stage. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986).
Indeed, in Second Amendment cases where courts have found standing, plaintiffs have provided more factual evidence. See, e.g., Rocky Mountain Gun Owners v. Polis, 685 F.Supp.3d 1033, 1046 n.8 (D. Colo. 2023) (finding that the plaintiffs' declarations that they were under 21, when challenging a Colorado law that criminalized the purchase of firearms by anyone under the age of 21, were sufficient for demonstrating that their proposed course of conduct was proscribed by the statute); Lane v. Rocah, No. 7:22-cv-10989-KMK, 2024 WL 54237, at *9 (S.D.N.Y. Jan. 4, 2024) (“[T]he weapons Plaintiffs seek to purchase are ‘squarely proscribed' by the Assault Weapons Ban. The statute defines ‘assault weapons' as, among other things, semiautomatic rifles, with detachable magazines and certain military-style features, including ‘a flash suppressor, muzzle break, or muzzle compressor.' And the Complaint contains allegations that Plaintiffs would like to acquire rifle models with those exact characteristics.” (alterations and citations omitted)); Kolbe v. O'Malley, 42 F.Supp.3d 768, 774 n.3 (D. Md. 2014) (“Exercising its independent duty to ensure that jurisdiction is proper, the court is satisfied that individual plaintiffs Kolbe and Turner face a credible threat of prosecution under the Firearm Safety Act. Kolbe currently owns a semi-automatic handgun that comes with detachable magazines holding more than ten rounds.... Turner currently owns three long guns classified as assault weapons, all of which come with detachable magazines holding in excess of ten rounds.” (citations omitted)).
Future Conduct. Similarly, the Individual Plaintiffs' statements regarding future conduct fail to establish, as a matter of law, plans that would violate the Ordinances. Each Plaintiff declares that he has acquired assault weapons and LCMs in the past, and he “would like to continue to be able to do so in the future.” [Doc. 76-7 at ¶¶ 11-12; Doc. 76-8 at ¶¶ 10-11; Doc. 76-9 at ¶¶ 11-12; Doc. 76-10 at ¶¶ 11-12; Doc. 76-12 at ¶¶ 1112]. But the vague possibility that an Individual Plaintiff would like to acquire more unidentified firearms and magazines “[p]roscribed by the Ordinances,” [Doc. 76 at 23],sometime in the undefined future, fails to demonstrate an imminent injury for purposes of mounting a pre-enforcement challenge to the Ordinances, see DeWilde, 2024 WL 1550708, at *3 (holding that a “vague desire” to engage in some potentially violative conduct was not enough to establish standing because “a plaintiff must describe concrete plans” (quoting Baker v. USD 229 Blue Valley, 979 F.3d 866, 875 (10th Cir. 2020))). Indeed, there is no guarantee that the Ordinances will still be in effect as written at the time of any future purchase, see, e.g., [Doc. 96-1 at 4 (discussing the sunset of the federal ban on the manufacture, transfer, and possession of assault weapons and the transfer and possession of LCMs in 2004)], or that any of the Individual Plaintiffs will reside in one of the Municipalities or unincorporated Boulder County at that time, see [Doc. 71 at ¶¶ 12 (stipulating to the dismissal of plaintiff who moved from Boulder County)], or that a particular Plaintiff will not be exempt from the applicable Ordinance at the time of possession or transfer.
Indeed, Plaintiffs' failure to provide the Court specific facts about any future firearm and/or LCM purchase suffers from the same fatal flaws as discussed above with respect to their current possession.
Each Individual Plaintiff also states that he “desire[s] to be able to freely transfer these AW Firearms to others, including members of [his] family.” [Doc. 76-7 at ¶ 8; Doc. 76-8 at ¶ 8; Doc. 76-9 at ¶ 8; Doc. 76-10 at ¶ 8; Doc. 76-12 at ¶ 8]. For the same reasons as set forth above, without specific facts about the time frame for such transfers; what specific firearms and/or LCMs each Individual Plaintiff wishes to transfer; and specific traits of the individuals to whom Individual Plaintiffs seek to transfer firearms and/or LCMs, this Court has insufficient evidence to conclude, as a matter of law, whether such transfers may be proscribed by the Ordinances and not subject to any exemption. See, e.g., [Doc. 96-1 at 10]. As observed by the Supreme Court in Clapper, a party may not “manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending.” 568 U.S. at 416.
Defendants also cite Clapper for the proposition that the Individual Plaintiffs cannot manufacture standing by voluntarily refusing to avail themselves of certificates of ownership or possession from the Boulder County Sheriff's Office. [Doc. 82 at 26 n.8]. Presumably, the certificates of ownership and possession would only apply to Plaintiffs Jones, LaFonte, Madonna, and Walker due to the Municipal Ordinances. Plaintiffs do not address this argument in their Reply. See generally [Doc. 84]. The Court DIRECTS Plaintiffs to address this argument in response to the Order to Show Cause, see infra, in the context of not only injury in fact, but also traceability.
Based on the record before it, this Court respectfully concludes that the Individual Plaintiffs have failed to adduce sufficient evidence to establish their respective standing, as a matter of law.
II. Organizational Standing
An organization may bring claims on behalf of its members so long as (a) its members would otherwise have standing to sue in their own right; (b) the interests the organization seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. N. N.M. Stockman's Ass'n v. U.S. Fish & Wildlife Serv., 30 F.4th 1210, 1219 (10th Cir. 2022). Organizations may also have standing for injuries they directly sustain, “but organizations must satisfy the usual standards for injury in fact, causation, and redressability that apply to individuals.” See FDA v. All. for Hippocratic Med., 602 U.S. 367, 369 (2024).
Members' Standing in their Own Right. Plaintiffs have submitted the Declaration of Dudley Brown (“Mr. Brown”), President of RMGO and NAGR, in support of their assertion of associational standing. [Doc. 76-6]. While each of the Individual Plaintiffs is a member of at least one of the two organizations, [Doc. 76-7 at ¶ 2; Doc. 768 at ¶ 2; Doc. 76-9 at ¶ 2; Doc. 76-10 at ¶ 2; Doc. 76-12 at ¶ 2], RMGO and NAGR cannot base organizational standing on the Individual Plaintiffs because the Court has found their evidence insufficient. Nat'l Ass'n for Gun Rights v. Polis, No. 24-cv-00001-GPG-STV, 2024 WL 3085865, at *9 (D. Colo. May 2, 2024) (finding no organizational standing when members do not have standing in their own right). Nor are Mr. Brown's other statements sufficient. Mr. Brown's statements suffer from the same lack of factual basis. For example, Mr. Brown declares that he has
communicated with RMGO and NAGR members who reside in the Defendant Municipalities who have informed me that (a) they currently own and possess within the municipality in which they reside firearms that are considered “assault weapons” under the Ordinances and they would like to continue to possess these firearms; (b) they have not obtained certificates of possession and do not intend to do so; and (c) they own and possess within the municipality in which they reside one or more “large capacity magazines” (as that term is used in the Ordinance[s]). All of these activities would be illegal if the Ordinances were effective.[Doc. 76-6 at ¶ 6]. There is no identification of these “RMGO and NAGR members” and where they live specifically;the specific firearms and LCMs the respective members own or possess within the Municipalities; the features of such firearms and/or magazines; or how long the respective members have possessed such firearms and/or magazines. [Id.]; see also Lujan, 504 U.S. at 561 (“[E]ach element [of standing] must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.”); Speech First, Inc. v. Shrum, 92 F.4th 947, 950 & n.1 (10th Cir. 2024) (observing that at the summary judgment stage, a district court may verify the existence and status of anonymous plaintiffs for purposes of standing).
This Court is not suggesting that the failure to identify these members by name is fatal to establishing standing. Under binding Tenth Circuit authority, “organizational standing is proper even when the qualifying member of the plaintiff organization is anonymous.” Speech First, Inc. v. Shrum, 92 F.4th 947, 951 (10th Cir. 2024) (citing Am. Humanist Ass'n, Inc. v. Douglas Cnty. Sch. Dist. RE-1, 859 F.3d 1243, 1254 n.4 (10th Cir. 2017)). Here, RMGO and NAGR have not adequately described any individual members proceeding anonymously or by pseudonym who may have standing in their own right.
As discussed above, the possession of an assault weapon or LCM in unincorporated Boulder County does not necessarily violate the Boulder County Ordinance. See supra p. 11.
And Mr. Brown's statement that “RMGO and NAGR represent the interests of those of their members whose Second Amendment rights have been infringed by the Ordinances challenged in this action,” [Doc. 76-6 at ¶ 5], is also insufficient even if there is a statistical probability that some of their members are threatened with running afoul of the Ordinances, see Summers v. Earth Island Inst., 555 U.S. 488, 498 (2009) (rejecting “novel approach to the law of organizational standing,” based on statistical probability that some of an organization's members were threatened with concrete injury, because it “would make a mockery of [Supreme Court's] prior cases, which have required plaintifforganizations to make specific allegations establishing that at least one identified member had suffered or would suffer harm” (emphasis added)). Indeed, Mr. Brown's statement undermines any conclusion that all members of the organizations are affected by the challenged Ordinances-which, if true, might dispense of the requirement to identify specific, affected members. See id. at 499.
Direct Injury. Mr. Brown further declares that “RMGO and NAGR are nonprofit membership and donor-supported organizations that seek to defend the right of all lawabiding individuals to keep and bear arms.” [Doc. 76-6 at ¶ 3]. Neither RMGO nor NAGR provides any evidence that permits this Court to conclude that the Ordinances make it difficult or impossible for the organizations to fulfill any of their essential goals or purposes. Thus, this Court concludes that RMGO and NAGR have failed to establish as a matter of law that either organization has suffered an injury in fact in its own right. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982).
Finally, it is also not enough for Mr. Brown to conclude that the organizations' members' activities would be illegal if the Ordinances were effective. See [Doc. 76-6 at ¶ 6]. RMGO and NAGR must present this Court with sufficient factual evidence so as to allow the Court to independently draw such a conclusion as a matter of law. See Summers, 555 U.S. at 499.
For these reasons, Plaintiffs' Motion for Summary Judgment is DENIED with respect to standing.
III. Order to Show Cause
This Court has determined that Plaintiffs have failed to establish that they have standing to bring this action on the record before it. However, Defendants did not move for summary judgment on the basis of standing. See generally [Doc. 78]. After giving notice and a reasonable time to respond, a court may grant summary judgment for a nonmovant or on grounds not raised by a party. Fed.R.Civ.P. 56(f)(1)-(2). Accordingly, Plaintiffs are ORDERED to SHOW CAUSE as to why summary judgment should not enter in favor of Defendants and against Plaintiffs based on lack of subject matter jurisdiction by no later than October 15, 2024. To the extent that Plaintiffs discharge the Order to Show Cause by that date, the Court will sua sponte reinstate the Cross-Motions and Plaintiffs' Motion for Discovery, [Doc. 76; Doc. 78; Doc. 92], and their related briefing, as appropriate and proceed expeditiously to their merits without any further briefing.
CONCLUSION
For the reasons set forth herein, it is ORDERED that:
(1) Plaintiffs' Motion for Summary Judgment [Doc. 76] is DENIED without prejudice;
(2) Defendants' Motion for Summary Judgment [Doc. 78] is DENIED without prejudice;
(3) Plaintiffs' Motion for Additional Discovery [Doc. 92] is DENIED without prejudice; and
(4) Plaintiffs are ORDERED to SHOW CAUSE as to why summary judgment should not enter in favor of Defendants for lack of subject matter jurisdiction by no later than October 15, 2024. Defendants may then RESPOND to any filing by Plaintiffs by no later than October 29, 2024. To the extent that Plaintiffs discharge the Order to Show Cause, Plaintiffs' Motion for Summary Judgment, [Doc. 76]; Defendants' Motion for Summary Judgment, [Doc. 78]; and Plaintiffs' Motion for Additional Discovery, [Doc. 92], shall be reinstated by the Court, sua sponte, for disposition on the merits, without any further briefing. Failure to show cause may lead to entry of summary judgment in favor of Defendants and against Plaintiffs pursuant to Rule 56(f) of the Federal Rules of Civil Procedure without any further notice from the Court.
TOWN OF SUPERIOR ORDINANCE NO. 0-9 SERIES 2022
AN ORDINANCE OF THE BOARD OF TRUSTEES OF THE TOWN OF SUPERIOR REPEALING AND REENACTING ARTICLE IX OF CHAPTER 10 OF THE SUPERIOR MUNICIPAL CODE, REGARDING THE POSSESSION AND USE OF WEAPONS IN THE TOWN
WHEREAS, gun violence poses a grave public safety threat in the Town. Statewide in Colorado, guns are the leading cause of death for children under 18 and cause the deaths of nearly two-thirds of women who are killed by intimate partners;
WHEREAS, Colorado has the 18th-highest gun death rate among the 50 states and saw elevated levels of mass shootings in 2020 and early 2021, when a mass shooter killed 10 people at King Soopers in Boulder using an assault weapon and large-capacity magazines;
WHEREAS, assault weapons are semiautomatic firearms with large ammunition capacities and specific features that are useful in military and criminal applications yet are unnecessary in shooting sports or self-defense. These weapons include semiautomatic assault rifles that can accept large-capacity magazines holding up to 100 rounds, and with features that enhance concealability, control, and the ability to fire many dozens of rounds without pause. They also include assault pistols and high-capacity "combat" shotguns;
WHEREAS, the Town has a higher population density than more rural parts of Colorado and is characterized by the presence of traffic and commuters, and business districts, and these areas have a greater number of potential targets for large-scale school and workplace violence, mass shootings, and interpersonal gun violence, and therefore, these demographic attributes create a special need to restrict weapons that facilitate mass shootings, including assault weapons, trigger activators, and large-capacity magazines;
WHEREAS, assault weapons are semiautomatic versions of firearms, and although these semiautomatic versions of military firearms are marketed to civilians, they are military-grade weapons: the U.S. military calls semiautomatic rifle fire the "most important firing technique during fast-moving, modern combat" and the "most accurate technique of placing a large volume of fire.";
WHEREAS, assault weapons fire bullets with a velocity three times greater than 9 mm handguns, leaving softball-sized exit wounds that are much more likely to kill than to incapacitate victims;
WHEREAS, perpetrators of the five deadliest shootings in modern U.S. history (Las Vegas, Orlando, Sandy Hook, Sutherland Springs, and El Paso) used assault rifles with military-style features, and Colorado's deadliest mass shooters have also used assault rifles or pistols, including the Aurora movie theater shooter, who used an assault rifle and a 100-round drum magazine; and the King Soopers shooter, who used an AR-style pistol that an ATF expert described as "made for the military and designed for short-range combat";
WHEREAS, researchers have found that firearm purchasers with criminal histories are more likely to buy assault weapons, and that probability was even higher if purchasers have more serious criminal histories;
WHEREAS, assault weapons are regularly used in violent crime beyond mass shootings, including violence against police officers;
WHEREAS, assault weapons are inappropriate for civilian use due to their unique features that allow shooters to rapidly fire a large number of rounds-more than are ever needed for lawful selfdefense-while maintaining control of the firearm in order to accurately target and kill more victims;
WHEREAS, in addition to military-style assault rifles, gun manufacturers have also begun marketing AK-style and AR-style pistols with the same features that enable a shooter to continue shooting the weapon numerous times without losing control over the weapon, and these pistols are also designed to fire rifle rounds capable of penetrating body armor, but that are concealable like handguns;
WHEREAS, AK-style and AR-style pistols pose a similar if not identical threat to public safety as do short-barreled rifles, because of their short length and ability to fire rifle rounds that can penetrate ballistic resistant vests worn by patrol officers, and because their lethality is on par with highly restricted short-barreled rifles, yet they have almost entirely evaded regulation. Armor-piercing, concealable firearms have been used in murders across the country, including at the 2021 King Soopers shooting and at the 2019 mass shooting in Dayton, Ohio;
WHEREAS, high-capacity "tactical" or "combat" shotguns are assault weapons modeled after firearms originally used for riot control by foreign law enforcement, and after the Armsel Striker, popular in South Africa and marketed in the U.S. as the Street Sweeper and designated as a "destructive device" under the National Firearms Act such that gun makers designed workaround weapons as powerful as the Street Sweeper that inflict catastrophic injuries by rapidly firing a dozen or more shotgun slugs, and these weapons are unfit for lawful sporting or self-defense uses;
WHEREAS, at the 2017 Mandalay Bay shooting in Las Vegas, Nevada, the shooter modified semiautomatic assault rifles with bump stocks so they could fire at speeds approaching fully automatic machine guns. Bump stocks, as well as binary triggers, burst triggers, rotating trigger cranks, and other after-market rapid-fire trigger activators enable firing many rounds per second and serve no lawful self-defense function;
WHEREAS, several years after the Las Vegas shooting drew attention to the dangers of bump stocks that give shooters automatic firepower, the ATF adopted a federal rule effectively banning their possession. However, state and local action is needed to restrict other rapid-fire trigger activators, and legal challenges to the federal bump stock rule are still pending;
WHEREAS, large-capacity magazines are ammunition feeding devices that hold more than 10 rounds and may hold as many as 100 rounds of ammunition. Mass. shootings that involve large-capacity magazines result in nearly five times as many people shot compared to mass shootings that do not involve high-capacity magazines. These magazines increase the number of victims injured and killed by enabling shooters to fire more rounds before reloading-a critical moment when many criminal shooters are stopped before they can further increase their death tolls;
WHEREAS, large-capacity magazines also make gun violence far more lethal in situations other than mass shootings, including interpersonal gun violence and shootings by organized crime or street groups, and firearms equipped with large-capacity magazines account for 22 to 36% of crime guns in most places, and research shows upwards of 40% of crime guns used in serious violent crimes, including murders of police officers, are equipped with large-capacity magazines;
WHEREAS, the Board of Trustees is unaware of any reported incidents where someone engaged in self-defense fired more than 10 rounds of a large-capacity magazine to fend off an attack. Despite analyzing several decades of evidence about defensive shootings, gun-rights groups raising legal challenges to magazine restrictions in other jurisdictions have been unable to identify a single incident anywhere in the nation in which someone needed to fire more than 10 rounds at once in lawful self-defense, and conversely, numerous high-profile mass shootings nationally and in Colorado have been carried out with large-capacity magazines, including the King Soopers shooting and the Aurora movie theater shooting. Nationally, the five deadliest mass shootings of the last decade all involved the use of large-capacity magazines holding more than 10 rounds of ammunition;
WHEREAS, in 1994, a federal ban on the manufacture, transfer, and possession of assault weapons and the transfer and possession of large-capacity magazines was enacted, but the law included a 10-year sunset provision and in 2004, Congress allowed the law to expire;
WHEREAS, studies show that the federal assault weapon ban resulted in a marked decrease in the use of assault weapons and large-capacity magazines in crime;
WHEREAS, one study found that in several major cities, the share of recovered crime guns that were assault weapons declined by 32% to 40% after the federal ban was adopted, and another study in Virginia found a clear decline in the percentage of crime guns that were equipped with large-capacity magazines after the federal ban was enacted;
WHEREAS, federal law restricting assault weapon and large-capacity magazines also had a significant protective effect in lowering mass shooting fatalities, and during the 10-year period the law was in effect, mass shooting fatalities were 70% less likely to occur compared to when the ban was not in effect, and the number of high-fatality mass shootings fell by 37%, and the number of people dying in such shootings fell by 43% after the ban lapsed, there was a 183% increase in high-fatality mass shootings and a 239% increase in deaths from such shootings;
WHEREAS, state-level prohibitions on large-capacity magazines have been shown to reduce the frequency and lethality of the deadliest mass shootings-strong evidence that regional and local legislation can be effective even absent a federal ban, and a peer-reviewed study published in the American Journal of Public Health found that "states without an LCM ban experienced significantly more high-fatality mass shootings and a higher death rate from such incidents," seeing more than double the number of such shootings and three times the number of deaths from high-fatality mass shootings, as compared to states that ban large-capacity magazines;
WHEREAS, survey data and gun-industry supplied statistics suggest that, at most, only a small fraction of U.S. gun owners possess semiautomatic assault rifles and private ownership of these weapons is concentrated in the hands of super-owners who have 10 or more firearms, and similar claims about the ubiquity of large-capacity magazines are contradicted by the fact that most magazines for handguns hold 10 rounds or fewer;
WHEREAS, because assault weapons, trigger activators, and large-capacity magazines are designed for and have repeatedly been used to inflict mass casualties and enable other violent crimes, and the fact that these weapons and accessories are ill-suited to and unnecessary for responsible self-defense, and are not chosen or used by most law-abiding gun owners for this purpose, the Board of Trustees finds that it is in the best interests of the public health, safety and welfare to prohibit the possession, sale, manufacture, and transfer of assault weapons, rapid-fire trigger activators, and large-capacity magazines;
WHEREAS, there are certain areas where firearms pose an acute risk to the health and well-being of children, office workers and members of the public;
WHEREAS, the presence of firearms in government buildings and offices, polling places, ballot counting facilities and public demonstrations poses a serious threat to First Amendment rights, voting rights and the functioning of our democracy;
WHEREAS, firearms pose a substantial danger in the vicinity of intoxicated people at facilities that serve alcohol, as research demonstrates a strong link between alcohol use and domestic violence, gun crimes and self-inflicted firearm injuries;
WHEREAS, waiting periods are consistent with the Second Amendment and fit squarely within the American tradition of ensuring responsible gun ownership through reasonable firearm regulations, and the U.S. Court of Appeals for the Ninth Circuit upheld California's 10-day waiting period law against a constitutional challenge in Silvester v. Harris, 843 F.3d 816, 819, 828 (9th Cir. 2016), pointing out that there is "nothing new in having to wait for the delivery of a weapon. Before the age of superstores and superhighways, most folks could not expect to take possession of a firearm immediately upon deciding to purchase one.
As a purely practical matter, delivery took time." Id. at 828;
WHEREAS, there are gaps in current laws that make it easy for people with dangerous histories to purchase widely available firearms parts without a background check and easily convert them into firearms without a serial number; and
WHEREAS, this Ordinance recognizes the enactment of Senate Bill 21-256 and is intended to be consistent with that law.
NOW BE IT ORDAINED BY THE BOW OF TRUSTEES OF THE TOWN OF SUPERIOR, COLORADO, as follows:
Section 1. Article IX of Chapter 10 of the Superior Municipal Code is hereby repealed in its entirety and reenacted as follows:
ARTICLE IX - Weapons
Sec. 10-9-10. - Purpose and applicability.
The purpose of this Article is to protect the public health, safety and welfare by regulating the possession, storage and use of weapons.
Sec. 10-9-20. - Definitions.
For purposes of this Article, all terms shall be defined as they are defined in C.R.S.
§ 18-1-101, et seq., unless otherwise defined as follows:
About the person means sufficiently close to the person to be readily accessible for immediate use.
Assault weapon means:
(a) A semi-automatic center-fire rifle that has the capacity to accept a detachable magazine and that has any of the following characteristics:
(1) A pistol grip or thumbhole stock;
(2) A folding or telescoping stock;
(3) A flash suppressor; or
(4) A shroud attached to the barrel, or that partially or completely encircles the barrel, allowing the bearer to hold the firearm with the non-trigger hand without being burned, but excluding a slide that encloses the barrel.
(b) A semi-automatic center-fire pistol that has any of the following characteristics:
(1) A threaded barrel;
(2) A secondary protruding grip or other device to allow the weapon to be stabilized with the non-trigger hand;
(3) A shroud attached to the barrel, or that partially or completely encircles the barrel, allowing the bearer to hold the firearm with the non-trigger hand without being burned, but excluding a slide that encloses the barrel;
(4) A flash suppressor;
(5) The capacity to accept a detachable ammunition feeding device at some location outside of the pistol grip;
(6) A manufactured weight of fifty (50) ounces or more when unloaded; or
(7) A buffer tube, arm brace, or other part that protrudes horizontally under the pistol grip.
(c) A semi-automatic center-fire pistol with a fixed magazine that has the capacity to accept more than ten (10) rounds.
(d) All semi-automatic shotguns with any of the following characteristics:
(1) A pistol grip or thumbhole stock;
(2) A folding or telescoping stock;
(3) A fixed magazine capacity in excess of five (5) rounds; or
(4) The capacity to accept a detachable magazine.
(e) Any firearm which has been modified to be operable as an assault weapon, as defined herein.
(f) Any part or combination of parts designed or intended to convert a firearm into an assault weapon, including any combination of parts from which an assault weapon may be readily assembled if those parts are in the possession or under the control of the same person.
(g) An assault weapon does not include any firearm that has been made permanently inoperable, an antique firearm manufactured before 1899 or a replica of an antique firearm.
Blacack means any billy club, sand club, sandbag or other hand-operated striking weapon consisting, at the striking end, of an encased piece of lead or other heavy substance and, at the opposite end, a strap or springy shaft that increases the force of the object.
Constructive knowledge means knowledge of facts or circumstances sufficient to cause a reasonable person to be aware of the fact in question.
Deadly weapon means any of the following that in the manner it is used or intended to be used is capable of producing death or serious bodily injury: a firearm, whether loaded or unloaded; a knife; a bludgeon; or any other weapon, device, instrument, material or substance, whether animate or inanimate.
Federal licensee means a federally licensed firearms manufacturer, importer or dealer licensed under 18 U.S.C. § 923(a) or other federal licensee authorized to identify firearms with serial numbers.
Firearm means any handgun, automatic revolver, pistol, rifle, shotgun, or other instrument or device capable or intended to be capable of discharging bullets, cartridges or other explosive charges, but excludes an "antique firearm", as defined in 18 U.S.C. § 921(a)(16).
Frame or receiver means the part of a firearm that, when the complete weapon is assembled, is visible from the exterior and provides the housing or structure designed to hold or integrate one (1) or more fire control components, even if pins or other attachments are required to connect those components to the housing or structure. For models of firearms in which multiple parts provide such housing or structure, the part or parts that the Director of the Federal Bureau of Alcohol, Tobacco, Firearms & Explosives has determined are a frame or receiver constitute the frame or receiver. For purposes of this definition, the term "fire control component" means a component necessary for the firearm to initiate, complete or continue the firing sequence, and includes a hammer, bolt, bolt carrier, breechblock, cylinder, trigger mechanism, firing pin, striker or slide rails.
Gas gun means a device designed for projecting gas-filled projectiles that release their contents after having been projected from the device and includes projectiles designed for use in such a device.
Gas or mechanically operated gun means an air or gas operated gun that discharges pellets, arrows or darts, including without limitation spring guns but excluding BB guns and toy guns.
Gravity knife means any knife with a blade that may be released from the handle or sheath thereof by the force of gravity or the application of centrifugal force, which when released is locked in place by means of a button, spring, lever or other device.
Illegal weapon means an assault weapon, large-capacity magazine, rapid-fire trigger activator, blackjack, gas gun, metallic knuckles, gravity knife or switchblade knife.
Knife means any dagger, dirk, knife or stiletto with a blade over three and one-half (3.5) inches in length, or any other dangerous instrument capable of inflicting cutting, stabbing or tearing wounds, but does not include a hunting or fishing knife carried for sports use.
Large-capacity magazine means any ammunition feeding device with the capacity to accept more than ten (10) rounds but shall not be construed to include any of the following: a feeding device that has been permanently altered so that it cannot accommodate more than ten (10) rounds; a twenty-two (22) caliber tube rim-fire ammunition feeding device; or a tubular magazine that is contained in a lever-action firearm.
Licensed //rearms dealer means any person who is a licensed importer, licensed manufacturer or dealer licensed pursuant to 18 U.S.C. § 923, as amended, as a federally licensed firearms dealer and has obtained all necessary state and local licenses to sell firearms in Colorado.
Locked container means a secure container which is enclosed on all sides and locked by a padlock, key lock, combination lock or similar device but does not include the utility compartment, glove compartment or trunk of a motor vehicle.
Minor means anyone under the age of twenty-one (21), as defined in C.R.S. § 2-4401(6).
Pistol grip means a grip that protrudes conspicuously beneath the action of the weapon and that allows for a pistol style grasp in which the web of the trigger hand (between the thumb and index finger) can be placed below the top of the exposed portion of the trigger while firing.
Provide means to give, lend, sell or place in an unsecured location where a minor, unauthorized person or an incompetent person could foreseeably gain access to a firearm.
Rapid-fire trigger activator means a device that attaches to a firearm to allow the firearm to discharge two (2) or more shots in a burst when the power is activated; or a manual or power-driven trigger-activating device that, when attached to a firearm, increases the rate of fire of that firearm.
Sale means the actual approval of the delivery of a firearm in consideration of payment or promise of payment.
Semi-automatic means a firearm that fires a single round for each pull of the trigger and automatically chambers a new round immediately after a round is fired.
Site means the facility or location where a sale or transfer of firearms is conducted.
Switchblade knife means any knife, the blade of which opens automatically by hand pressure applied to a button, spring or other device on its handle.
Transfer means the intended delivery of a firearm from a dealer to another person without consideration of payment or promise of payment including without limitation gifts and loans. "Transfer" does not include the delivery of a firearm owned or leased by an entity licensed or qualified to do business in Colorado to, or return of such firearm by, any of that entity's employees or agents for lawful purposes in the ordinary course of business.
Unfinished frame or receiver means any forging, casting, printing, extrusion, machined body or similar article that: has reached a stage in manufacturing where it may readily be completed, assembled or converted to be used as the frame or receiver of a functional firearm; or is marketed or sold to the public to become or be used as the frame or receiver of a functional firearm once completed, assembled or converted. For purposes of this definition, the term "assemble" means to fit together component parts. In determining whether a forging, casting, printing, extrusion, machined body or similar article may be readily completed, assembled or converted to a functional state, the Town Manager may consider any available instructions, guides, templates, jigs, equipment, tools or marketing materials.
Sec. 10-9-30. - Discharge of firearms.
No person shall discharge any projectile from a firearm or gas or mechanically operated gun. For purposes of this Section, any person who was the proximate cause of the discharge shall be deemed to have discharged the firearm. It is a violation of this Section if the discharge occurs within the jurisdiction of the Town, or if the projectile travels over such jurisdiction.
Sec. 10-9-40. - Possession and sale of illegal weapons.
(a) Prohibition. No person shall knowingly possess, sell or otherwise transfer an illegal weapon.
(b) Exemptions. This Section shall not apply to:
(1) Any person holding a valid federal firearms license from possession of any firearm authorized pursuant to such license;
(2) A firearm for which the U.S. Government has issued a stamp or permit pursuant to the National Firearms Act;
(3) A firearm that has been modified either to render it permanently inoperable or to permanently make it not an assault weapon; or
(4) A person traveling with a firearm or other weapon in a private automobile or other private means of conveyance for lawful hunting, lawful competition or lawful protection of a person, another person or property while traveling into, through or within the Town, regardless of the number of times the person stops in the Town.
(5) A person performing their official duties as set forth in § 10-9-220 of this Article.
Sec. 10-9-50. - Possessing and discharging firearm or bow in park or open space.
(a) No person shall possess any firearm or gas or mechanically operated in any park or open space.
(b) No person shall discharge a missile from, into or over, or possess any bow, slingshot or crossbow in any park or open space.
Sec. 10-9-60. - Negligently shooting bow or slingshot.
No person shall shoot a bow and arrow, crossbow or slingshot in a negligent manner.
Sec. 10-9-70. - Aiming weapon at another.
No person shall knowingly aim a loaded or unloaded firearm or gas or mechanically operated at another person.
Sec. 10-9-80. - Flourishing deadly weapon in alarming manner.
No person shall display or flourish a deadly weapon in a manner calculated to alarm another person.
Sec. 10-9-90. - Possession of loaded firearms.
(a) Except as set forth in this Section, no person shall possess a loaded firearm. For the purposes of this Section, a firearm is loaded if there is a projectile, with charge, in the chamber, in the cylinder, or in the clip in the firearm.
(b) A law enforcement officer shall not undertake an arrest under this Section without first giving due consideration to the Town's burden of proof with regard to the affirmative defenses set forth in Section 10-9-190.
(c) This Section shall not apply to persons possessing a loaded firearm:
(1) In their own domiciles or places of business or on property owned by or under their control;
(2) In private automobiles or other private means of conveyance who are carrying a firearm for hunting or the lawful protection of themselves or another person or property while traveling;
(3) Who, prior to the time of carrying a loaded firearm, has been issued a written permit to carry such firearm and is in compliance with such permit;
(4) Who is a U.S. Marshal, sheriff, constable, peace officer or member of the U.S. Armed Forces, Colorado National Guard or Reserved Officer Training Corps as set forth in Section 10-9-220 herein; and
(5) Who is employed in any other profession whereby possession of a loaded firearm is necessary and is authorized in the performance of their official duties.
Sec. 10-9-100. - Carrying a concealed weapon.
(a) No person shall have a knife or firearm concealed on or about their body.
(b) This Section shall not apply to persons carrying a concealed weapon:
(1) In their own domiciles or places of business or on property owned by or under their control;
(2) In private automobiles or other private means of conveyance who are carrying a weapon for hunting or the lawful protection of themselves or another person or property while traveling;
(3) Who, prior to the time of carrying a concealed weapon, has been issued a written permit to carry such weapon and is in compliance with such permit;
4) Who is a U.S. Marshal, sheriff, constable, peace officer or member of the U.S. Armed Forces, Colorado National Guard or Reserved Officer Training Corps as set forth in Section 10-9-220 herein; and
(5) Who is employed in any other profession whereby carrying a concealed is necessary and is authorized in the performance of their official duties.
Sec. 10-9-110. - Possessing firearm while intoxicated.
No person shall possess any firearm while such person's ability is impaired by alcohol, drugs, as defined by C.R.S. § 27-80-203(13), or any controlled substance, as defined by C.R.S. § 18-18-102(5).
Sec. 10-9-120. - Providing firearm to intoxicated persons or minors.
No person shall provide any firearm to any person whose ability is impaired by alcohol, drugs, as defined by C.R.S. § 27-80-203(13); any controlled substance, as defined by C.R.S. § 18-18-102(5); to any person in a condition of agitation and excitability; or to any minor unless the person providing the firearm has obtained the consent of the minor's parent or legal guardian. Knowledge of the minor's age shall not be an element of this offense.
Sec. 10-9-130. - Setting spring gun.
No person shall knowingly set a loaded gun, trap or device designed to cause an explosion upon being tripped or approached and leave it unattended by a competent person immediately present.
Sec. 10-9-140. - Possession of firearms by minors.
(a) Prohibition. No minor shall knowingly possess a firearm.
(b) Defenses. It is a specific defense to a charge of violating this Section that the minor was, with the consent of their parent or legal guardian:
(1) In attendance at a hunter's safety course or a firearms safety course;
(2) Engaging in practice in the use of a firearm or target shooting in an area designated as a target range for the type of weapon involved;
(3) Engaging in an organized competition involving the use of a firearm or participating in or practicing for a performance by an organized group exempt from payment of income tax under 26 U.S.C. § 50l (c)(3) as determined by the federal internal revenue service which uses firearms as a part of such performance;
(4) Hunting or trapping pursuant to a valid license issued to such person pursuant to C.R.S. § 33-4-101, et seq.;
(5) Traveling with a loaded firearm in such minor's possession to or from any activity described in subsection (b)(1), (b)(2), (b)(3) or (b)(4) hereof or to or from an established range authorized by the governing body of the jurisdiction in which such range is located or any other area outside the Town where target practice is legal and the minor has permission from the landowner for such practice;
(6) Possessing a firearm at such minor's residence for the purpose of exercising the rights contained in C.R.S. §§ 18-1-704 or 18-1-704.5; and
(7) For purposes of subsection (b)(5) hereof, a firearm is loaded if there is a cartridge in the chamber or cylinder of the firearm or in a clip in the firearm; or the firearm, and the ammunition for such firearm, is carried on the person of the minor or is in such close proximity to the minor that the minor could readily gain access to the firearm and the ammunition and load the firearm.
Sec. 10-9-150. - Providing rifle or shotgun to minors.
(a) No person shall provide a rifle or shotgun with or without remuneration to any minor under circumstances that cause the minor to be in violation of Section 10-9-140. Knowledge of the minor's age shall not be an element of this offense.
(b) No parent or legal guardian of a minor shall provide a rifle or shotgun to the minor for any purpose or shall permit the minor to possess a rifle or shotgun for any purpose if the parent or guardian has actual or constructive knowledge of a substantial risk that the minor will use the rifle or shotgun to violate a federal, state or local law.
(c) No parent or legal guardian of a minor shall provide a rifle or shotgun to, or permit the minor to possess, a rifle or shotgun for any purpose if the minor has been convicted of a crime of violence, as defined in C.R.S. § 18-l.3-406(2)(a)(I), or if the minor has been adjudicated a juvenile delinquent for an act which would have constituted a crime of violence, as so defined, if committed by an adult.
(d) It is a specific defense to a charge of violating this Section that the firearm had been stolen from the defendant either by the minor or by another person who subsequently provided the firearm to the minor.
Sec. 10-9-160. - Unlawful storage of assault weapons.
(a) Prohibition. No person shall store, control or possess any assault weapon within any premises of which that person has an ownership interest, custody or control, in such a manner that the person knows, or has constructive knowledge, that a minor is likely to gain possession of the assault weapon or in fact does obtain possession of the assault weapon.
(b) Defenses. It is a defense to a charge or violation of this Section that:
(1) The assault weapon was located within a room or closet from which all minors were excluded by locks; or
(2) The assault weapon was stored in a locked container.
Sec. 10-9-170. - Unlawful storage of firearms.
(a) Prohibition. No person shall store, control or possess any firearm within any premises of which that person has an ownership interest, custody or control, in such manner that the person knows, or has constructive knowledge, that a minor is likely to gain possession of the firearm or in fact does obtain control of the firearm and either injures or kills themselves or another person with the firearm or uses the firearm in violation of federal, state or local law.
(b) Defenses. It is a specific defense to a charge of violation of this Section that:
(1) The firearm was located within a room or closet from which all minors were excluded by locks;
(2) The firearm was stored in a locked container; or
(3) The firearm was used by a minor at such minor's residence with the permission of the minor's parent or legal guardian, for the purpose of exercising the rights contained in C.R.S. §§ 18-1-704 or 18-1-704.5.
Sec. 10-9-180. - Parent or legal guardian liability.
(a) No parent or legal guardian, having actual or constructive knowledge of illegal possession of a firearm by a minor shall fail to either:
(1) Immediately take possession of the firearm; or
(2) Immediately notify law enforcement authorities of the details of the illegal possession so that law enforcement authorities can act to take possession of the firearm.
(b) This Section does not create a duty on a parent or legal guardian to search the bedroom of a minor for firearms.
(c) As used in this Section, illegal possession of a firearm by a minor means possession in violation of Section 10-9-140 or any provision of state or federal law concerning possession of a firearm by a minor.
Sec. 10-9-190. - Defenses.
(a) It is an affirmative defense to a charge of violating Sections 10-9-30, 10-9 50, 10-9-60, 10-9-80 and 10-9-90 that the defendant was:
(1) Reasonably engaged in lawful self-defense under applicable law; or
(2) Reasonably exercising the right to keep and bear arms in defense of the defendant's or another's home, person and property or in aid of the civil power when legally thereto summoned.
(b) It is an affirmative defense to a charge of violating Sections 10-9-90, 10-9100, and 10-9-110 that the defendant was:
(1) In the defendant's own dwelling or place of business or on property owned or under the defendant's control at the time;
(2) In a private automobile or other private means of conveyance at the time and was carrying the weapon for lawful protection of the defendant's or another's person or property while traveling; or
(3) Charged with carrying a knife that was a hunting or fishing knife carried by the defendant for sport use.
(c) It is a specific defense to a charge of violating Sections 10-9-90 and 10-9100 that the defendant was carrying the weapon pursuant to a concealed weapons permit valid under the statutes of the State of Colorado.
(d) It is a specific defense to a charge of violating Sections 10-9-30 and 10-990 that the loaded firearm or gas or mechanically operated gun was possessed or
discharged in a building with the permission of the property owner and the projectile did not leave the building.
(e) It is a specific defense to a charge of violating Section 10-9-40 that:
(1) The person had a valid permit for such weapon pursuant to federal law at the time of the offense; or
(2) That the illegal weapon was an assault weapon accompanied by a valid certificate of ownership.
(f) It is a specific defense to a charge of violating Section 10-9-50 that the firearm, gas or mechanically operated gun, bow, slingshot or crossbow possessed by the person was being transported in a motor vehicle. This defense does not apply to a charge of violation involving discharge of a missile.
(g) It is an affirmative defense to any charge of a violation of this Article relating to carrying firearms that the defendant was carrying the firearm in a private automobile or other private means of conveyance for lawful protection of such person or another person or property or for hunting while traveling in, into or through the Town, as permitted by C.R.S. § 18-12-105.6.
Sec. 10-9-200. - Seizure.
A law enforcement officer who has probable cause to believe that a violation of this Article has occurred may, in addition to taking any other action, seize the weapons or items used in said violation. Any weapon or items so seized shall be secure by the law enforcement officer in accordance with the rules of the Boulder County Sheriffs office.
Sec. 10-9-210. - Forfeiture and disposition of deadly weapons.
After final conviction, every person convicted of any violation of any provision of this Article shall forfeit to the Boulder County Sheriffs Office the weapon involved, and the Boulder County Sheriffs Office shall dispose of the weapon or item, as the Boulder County Sheriffs Office deems appropriate.
Sec. 10-9-220. - Exemptions.
(a) Nothing in this Article shall be construed to forbid the following persons from having in their possession, displaying, concealing or discharging such weapons as are necessary in the authorized performance of their official duties:
(1) A U.S. Marshal, sheriff, constable or their deputies;
(2) A peace officer; or
(3) A member of the U.S. Armed Forces, Colorado National Guard or Reserve Officer Training Corps, to the extent such person is otherwise authorized to acquire or possess an assault weapon or large-capacity magazine and does so within the scope of their duties.
(b) Nothing in this Article shall be construed to authorize the Town to restrict the manufacture or sale of items pursuant to a military or law enforcement contract.
Sec. 10-9-230. - Firearms dealers; display of weapons.
No secondhand dealer, pawnbroker or any other person engaged in the wholesale or retail sale, rental or exchange of any firearms shall display or place on exhibition any firearm in any show window or other window facing upon any street of the Town.
Sec. 10-9-240. - Assault weapons.
(a) Any person who, prior to July 1, 2022, was legally in possession of an assault weapon shall have until December 31, 2022 to obtain a certificate for the assault weapon as provided in subsection (c) hereof.
(b) Any person who, prior to July 1, 2022, was legally in possession of a rapid fire trigger activator shall have until August 1, 2022 to do any of the following without being subject to prosecution:
(1) Remove the rapid-fire trigger activator from the Town; or
(2) Surrender the rapid-fire trigger activator to the Boulder County Sheriffs Office for destruction.
(c) Any person seeking to certify an assault weapon that they legally possessed prior to July 1, 2022, unless they obtained a certificate of ownership under previous ordinances, must comply with the following requirements:
(1) Submit to a background check conducted by the appropriate agency to confirm that they are not prohibited from possessing a firearm pursuant to 18 U.S.C. § 922 or C.R.S § 18-12-108; and
(2) Unless the person is currently prohibited by law from possessing a firearm, prior to December 31, 2022 apply for a certificate for the assault weapon from the Boulder County Sheriffs Office.
(d) All persons who hold a certificate issued prior to December 31, 2022 or who obtain a certificate pursuant to subsection (c) of this Section shall:
(1) Safely and securely store the assault weapon pursuant to the regulations adopted by the appropriate law enforcement agency;
(2) Possess the assault weapon only on property owned or immediately controlled by the person, or while on the premises of a licensed gunsmith for the purpose of lawful repair, or while engaged in the legal use of the assault weapon at a duly licensed firing range, or while traveling to or from these locations, provided that the assault weapon is stored unloaded in a locked container during transport. The term "locked container" does not include the utility compartment, glove compartment or trunk of a motor vehicle; and
(3) Report the loss or theft of a certified assault weapon to the appropriate law enforcement agency within forty-eight (48) hours of the time the discovery was made or should have been made.
(e) Certified assault weapons may not be purchased, sold or transferred in the Town, except for transfer to a licensed gunsmith for the purpose of lawful repair, or transfer to the appropriate law enforcement agency for the purpose of surrendering the assault weapon for destruction.
(f) Persons acquiring an assault weapon by inheritance, bequest, or succession shall, within ninety (90) days of acquiring title, do one of the following:
(1) Modify the assault weapon to render it permanently inoperable;
(2) Surrender the assault weapon to the Boulder County Sheriffs Office for destruction;
(3) Transfer the assault weapon to a firearms dealer who is properly licensed under federal, state and local laws; or
(4) Permanently remove the assault weapon from the Town.
(g) The owner of a certified assault weapon may not possess in the Town any assault weapons purchased after July 1, 2022.
Sec. 10-9-250. - Possession of firearms in buildings and areas under the Town's control.
(a) Prohibition. No person shall knowingly carry any firearm, whether in an open or concealed manner, in any of the following locations:
(1) Any building or real property owned or operated by the Town, or an entity created or controlled by the Town;
(2) The portion of any building that is being used for governmental purposes by the Town or an entity created or controlled by the Town;
(3) Any public parks, playgrounds or open space;
(4) Any recreation or community center facility owned, operated or managed by the Town;
(5) At any demonstration as described in this Section held on public property;
(6) Within five hundred (500) feet of any polling location within the Town on the day of an election or at a place officially designated for the counting of ballots on any day when ballots are being counted or conducting activities related to a federal, state or municipal election;
(7) The area of any facility licensed to serve alcohol pursuant to C.R.S. § 44-3-101, et seq.;
(8) A hospital;
(9) A facility or office that has medical, mental health, or substance abuse professionals to provide screening, evaluation, or treatment for mental health or substance abuse disorders;
(10) Any property or facility owned or operated by a church, synagogue, mosque, temple or other place of worship without explicit permission from the operating authority;
(11) A stadium or arena;
(12) A courthouse;
(13) A depository financial institution or a subsidiary or affiliate of a depository financial institution;
(14) A theater; or
(15) A childcare center, preschool or other school or educational setting.
(b) Signage. A sign providing notice that the concealed and open carry of firearms is prohibited shall be posted conspicuously at all public entrances to the locations identified in subsection (a) hereof as required by C.R.S. §§ 29-11.7-104 and 18-12-214(1)(c)(II). The form of such sign shall be approved by the Town. No person shall be charged with a violation of this Section if such signs are not posted.
(c) Exemptions. This Section shall not apply to:
(1) Any federal, state, or local law enforcement officer when engaged in official duties;
(2) Any member of the United States Armed Forces or Colorado National Guard when engaged in official duties;
(3) Private security guards; or
(4) The carrying or possession of a firearm in a motor vehicle or other private means of conveyance.
(d) Definitions. As used in this Section, "demonstration" means demonstrating, picketing, speech making, marching, holding vigils and all other like conduct occurring in a public place that involve the communication or expression of views or grievances engaged in by one (1) or more persons, the conduct of whom has the effect, intent or propensity to draw a crowd of onlookers, but excludes casual use of property by visitors or tourists who do not have an intent or propensity to attract a crowd of onlookers.
(e) Violation and Penalty.
(1) Any person violating the provisions of this Section shall be subject to immediate removal from the premises.
(2) Any person violating the provisions of this Section who knew or reasonably should have known that their conduct was prohibited, including because notice of the firearm prohibition was posted conspicuously as required by this Section, shall be punished as follows:
a. For a first offense, by a fine not to exceed fifty dollars ($50.00);
b. For a second or subsequent offense, by a fine not to exceed five hundred dollars ($500.00);
c. For any violation where the person refuses to leave the premises after receiving oral notice from the property owner or authorized representative, the person shall be subject to the fines as provided in this Section or to a period of imprisonment not to exceed thirty (30) days, or both.
Sec. 10-9-260. - Open carry of firearms.
(a) Prohibitions. No person shall knowingly openly carry a firearm on or about their person in a public place.
(b) Exemptions. This Section shall not apply to:
(1) Any federal, state, or local law enforcement officer when engaged in official duties;
(2) Any member of the U.S. Armed Forces or Colorado National Guard when engaged in official duties;
(3) A person carrying a firearm when engaged in target shooting or when engaged in lawful hunting activity;
(4) The carrying of a firearm on a person's own property, business or dwelling or on the property of another with permission from the property owner;
(5) The carrying of a firearm in a motor vehicle or private means of conveyance;
(6) The carrying of an unloaded firearm in a locked or enclosed case that must be recognizable as a gun carrying case by a reasonable person. A plain shaped case must be clearly marked to be deemed recognizable under this standard. A holster satisfies the requirement of a carrying case for a pistol;
(7) The carrying of a concealed handgun by a person with a valid permit to carry issued or recognized pursuant to C.R.S. § 18-12-201, et seq., or the otherwise lawful use of a handgun by a person with a valid permit to carry; or
(8) Private security guards.
(c) As used in this Section, "public place" means a place to which the public or a substantial number of the public has access.
Sec. 10-9-270. - Disclosure.
(a) At any site where firearm sales or transfers are conducted in the Town, a licensed firearms dealer shall conspicuously display a sign containing the information set forth in subsection (b) hereof in any area where the sales or transfers occur. Such sign shall be posted in a manner so that it can be easily viewed by persons to whom firearms are sold or transferred, and shall not be removed, obscured or rendered illegible. If the site where the sales or transfers occur are the premises listed on the licensed firearms dealer's federal license(s), an additional sign shall be placed at or near the entrance.
(b) Each informational sign shall be at least eight and one-half (8.5) inches high by eleven (11) inches wide and feature black text against a white background and
letters that are at least one-half (0.5) inch high. The sign shall not contain other statements or markings other than the following text:
WARNING: Access to a firearm in the home significantly increases the risk of suicide, death during domestic violence disputes, and the unintentional death of children, household members, or others. If you or a loved one is experiencing distress or depression, call 1-844-493-8255. Posted pursuant to Section 10-9-270, Superior Municipal Code.
(c) The Town shall make available a down loadable sign as described in this
Section in English and make such sign available on the Town's website.
(d) When violations of this Section occur, a warning shall first be given to the licensed firearms dealer or other person in charge of the site. Any subsequent violation is subject to punishment as set forth in Section 1-3-20 of this Code.
Sec. 10-9-280. - Waiting period prior to firearm purchase.
(a) Prohibition. No licensed firearms dealer shall deliver a firearm, and no person shall take possession of a firearm from a licensed dealer, until both of the following have occurred:
(1) Ten (10) days have elapsed from the date the dealer initiated the Colorado Bureau of Investigation check of the purchaser pursuant to C.R.S. § 2433.5-424; and
(2) The dealer has received approval for the firearms transfer as required by C.R.S § 18-12-112.5.
(b) Exemptions. This Section shall not apply to:
(1) A law enforcement or corrections agency, or law enforcement or corrections officer acting within the course and scope of their employment or official duties;
(2) A U.S. Marshal or member of the U.S. Anned Forces or the National Guard, or a federal official transferring firearms as required in the operation of their official duties;
(3) A licensed firearms manufacturer, importer or dealer, while engaged in the course and scope of their activities as licensees, provided that the transfers are between licensees and all such licensees are properly licensed under federal, state and local law;
(4) A gunsmith who receives a firearm for service or repair;
(5) A properly licensed private security firm, or private security personnel, who acquires the firearms for use in the course and scope of employment; or
(6) A common carrier, warehouser or other person engaged in the business of transporting or storing goods, to the extent that the possession or receipt of any firearm or having on or about the person of any firearm, is in the ordinary course of business and not for the personal use of such person.
Sec. 10-9-290. - Serial numbers.
(a) Prohibition. No person shall possess any firearm that has not been identified with a serial number by a federal licensee.
(b) Exemptions. This Section shall not apply to:
(1) A federal licensee;
(2) Any firearm made before October 22, 1968 (unless remanufactured after that date); or
(3) A local, state, or federal law enforcement officer who possesses a firearm pursuant to their official duties.
Section 2. Severability. If any article, section, paragraph, sentence, clause, or phrase of this Ordinance is held to be unconstitutional or invalid for any reason, such decision shall not affect the validity or constitutionality of the remaining portions of this Ordinance. The Board of Trustees hereby declares that it would have passed this Ordinance and each part or parts hereof irrespective of the fact that any one or part or parts be declared unconstitutional or invalid.
Section 3. Safety. This Ordinance is deemed necessary for the protection of the health, welfare and safety of the community.
INTRODUCED, READ, PASSED AND ORDERED PUBLISHED this 7th day of June, 2022.
ORDINANCE 8494
AN ORDINANCE AMENDING CHAPTER 5, “GENERAL OFFENSES,” B.R.C. 1981, REPEALING ORDINANCES 8245 AND 8259, BANNING THE SALE AND POSSESSION OF ASSAULT WEAPONS, LARGE-CAPACITY MAGAZINES AND RAPID-FIRE TRIGGER ACTIVATORS, RAISING THE AGE TO PURCHASE FIREARMS, AMENDING SECTION 5-2-26, “MATTERS OF LOCAL AND MIXED CONCERN,” B.R.C. 1981, AND ADDING A NEW SECTION 5-8-42, “SEVERABILITY,” B.R.C. 1981; AND SETTING FORTH RELATED DETAILS.
THE CITY COUNCIL OF THE CITY OF BOULDER, COLORADO, FINDS AND RECITES THE FOLLOWING:
A. Gun violence poses a grave public safety threat in Boulder. Statewide in Colorado, guns are the leading cause of death for children ages one through 17 and cause the deaths of nearly two-thirds of women who are killed by intimate partners.
B. Colorado has the 18th highest gun death rate among the 50 states and saw elevated levels of mass shootings in 2020 and early 2021, when a mass shooter killed 10 people at King Soopers in Boulder using an assault weapon and large-capacity magazines.
C. Assault weapons are semiautomatic firearms with large ammunition capacities and specific features that are useful in military and criminal applications yet are unnecessary in shooting sports or self-defense. These weapons include semiautomatic assault rifles that have the ability to accept large-capacity magazines holding up to 100 rounds, and with features that enhance concealability, control, and the ability to fire many dozens of rounds without pause. They also include assault pistols and high capacity “combat” shotguns.
D. Boulder has a higher population density than more rural parts of the state, and is characterized by the presence of traffic and commuters, business districts, the University of Colorado and Naropa University, and entertainment and nightlife venues. These areas have a greater number of potential targets for large-scale school and workplace violence, mass shootings, and interpersonal gun violence, and, therefore, these demographic attributes create a special need to restrict weapons that facilitate mass shootings, including assault weapons, trigger activators, and large-capacity magazines.
E. Assault weapons are semiautomatic versions of firearms. Although these semiautomatic versions of military firearms are marketed to civilians, they are military-grade weapons; the U.S. military calls semiautomatic rifle fire the “most important firing technique during fast-moving, modern combat” and “most accurate technique of placing a large volume of fire.” These rifles fire bullets with a velocity three times greater than 9mm handguns, leaving “softball-sized exit wounds” much more likely to kill than to incapacitate victims.
F. Perpetrators of the five deadliest shootings in modern U.S. history-Las Vegas, Orlando, Sandy Hook, Sutherland Springs, and El Paso-used assault rifles with military-style features. Colorado's deadliest mass shooters have also used assault rifles or pistols, including the Aurora movie theater shooter, who used an assault rifle and a 100-round drum magazine; and the King Soopers shooter, who used an AR-style pistol that an ATF expert described as “made for the military and designed for short-range combat.”
G. Researchers have found that firearm purchasers with criminal histories are more likely to buy assault weapons, and that probability was even higher if purchasers have more serious criminal histories. These weapons are regularly used in violent crime beyond mass shootings, including violence against police officers.
H. Assault weapons are inappropriate for civilian use due to the unique features that allow shooters to rapidly fire a large number of rounds-more than is ever needed for lawful self- defense-while maintaining control of the firearm in order to accurately target and kill more victims. Specific features that allow an assault weapon to perform this way are:
Detachable magazine: Firearms that can accept detachable magazines allow a shooter to attach magazines of any size available for the firearm and quickly reload the weapon with prefilled magazines. In some cases, magazines can hold as many as 100 rounds.
Pistol grip: To counteract the movement that occurs during rapid fire, assault weapons are typically equipped with features that allow the shooter to steady the weapon. A pistol grip, not typically found on a sporting rifle or shotgun (which would be fired from the shoulder), allows the shooter to control the firearm more accurately-and lethally-by maneuvering the weapon or shooting from the hip during rapid fire;
Thumbhole stock: As with a pistol grip, a thumbhole stock allows the shooter to control the firearm during rapid fire;
Folding or telescoping stock: A folding or telescoping stock folds or collapses to make the weapon easier to conceal and transport;
Flash Suppressor: A flash suppressor enables a shooter to mask their location by reducing the visible signature of the firearm when it fires; and
Barrel shroud: As with a pistol grip and thumbhole stock, a barrel shroud allows the shooter to steady the firearm during rapid fire. The shroud encircles the barrel of the firearm and allows the shooter to hold it without getting burned.
I. In addition to military-style assault rifles, gun manufacturers have also begun marketing AK-style and AR-style pistols with the same features that enable a shooter to continue shooting the weapon numerous times without losing control over it. These pistols are also designed to fire rifle rounds capable of penetrating body armor, but which are concealable like handguns.
J. AK-style and AR-style pistols pose a similar if not identical threat to public safety as do short-barreled rifles, because of the short length and ability to fire rifle rounds that can penetrate ballistic resistant vests worn by patrol officers. Because the lethality is on par with highly restricted short-barreled rifles, yet have almost entirely evaded regulation, armor-piercing, concealable firearms have been used in murders across the country, including at the 2021 King Soopers shooting and at the 2019 mass shooting in Dayton, Ohio.
K. High capacity “tactical” or “combat” shotguns are assault weapons modeled after firearms originally used for riot control by foreign law enforcement. After the Armsel Striker, popular in South Africa and marketed in the U.S. as the Street Sweeper, was designated a “destructive device” under the National Firearms Act, gunmakers designed workaround weapons as powerful as the Street Sweeper that inflict catastrophic injuries by rapidly firing a dozen or more shotgun slugs.
L. At the 2017 Mandalay Bay shooting in Las Vegas, Nevada, the shooter modified semiautomatic assault rifles with bump stocks so they could fire at speeds approaching fully automatic machine guns. Bump stocks, as well as binary triggers, burst triggers, rotating trigger cranks, and other after-market rapid-fire trigger activators enable firing many rounds per second.
M. Several years after the Las Vegas shooting drew attention to the dangers of bump stocks that give shooters automatic firepower, the ATF adopted a federal rule effectively banning their possession. However, state and local action is needed to restrict other rapid-fire trigger activators.
N. Large-capacity magazines are ammunition feeding devices that hold more than 10 rounds and may hold as many as 100 rounds of ammunition. Mass. shootings that involve large-capacity magazines result in nearly five times as many people shot compared to mass shootings that do not involve high capacity magazines. These magazines increase the number of victims injured and killed by enabling shooters to fire more rounds before reloading-a critical moment when many criminal shooters are stopped before they can further increase their death tolls.
O. Large-capacity magazines also make gun violence far more lethal in situations other than mass shootings, including interpersonal gun violence and shootings by organized crime or street groups. Firearms equipped with large-capacity magazines account for 22% to 36% of crime guns in most places, and research shows upwards of 40% of crime guns used in serious violent crimes, including murders of police officers, are equipped with large capacity magazines.
P. City Council is unaware of any reported incidents where someone engaged in selfdefense fired more than 10 rounds of a large capacity magazine to fend off an attack. Despite analyzing several decades of evidence about defensive shootings, gun-rights groups raising legal challenges to magazine restrictions in other jurisdictions have been unable to identify a single incident anywhere in the nation in which someone needed to fire more than ten rounds at once in lawful self-defense. Conversely, numerous high-profile mass shootings nationally and within Colorado have been carried out with LCMs, including the King Soopers shooting and the Aurora movie theater shooting.
Q. In 1994, a federal ban on the manufacture, transfer, and possession of assault weapons and the transfer and possession of large capacity magazines was enacted. The law included a ten-year sunset provision. In 2004, Congress allowed the law to expire.
R. Studies show that the federal assault weapon ban resulted in a marked decrease in the use of assault weapons and large capacity magazines in crime during its effective period. One study found that in several major cities, the share of recovered crime guns that were assault weapons declined by 32% to 40% after the federal ban was adopted. Another study in Virginia found a clear decline in the percentage of crime guns that were equipped with large capacity magazines after the federal ban was enacted. The percentage of guns seized by Virginia police reached a low of 10% in 2004 and then steadily climbed after Congress allowed the ban to expire; by 2010, the percentage was close to 22%.
S. The federal law restricting assault weapon and large capacity magazines also had a significant protective effect in lowering mass shooting fatalities. During the 10-year period the law was in effect, mass shooting fatalities were 70% less likely to occur compared to when the ban wasn't in effect. In addition, the number of high-fatality mass shootings fell by 37%, and the number of people dying in such shootings fell by 43%. After the ban lapsed, there was a 183% increase in high-fatality mass shootings and a 239% increase in deaths from such shootings.
T. State-level prohibitions on large capacity magazines have been shown to reduce the frequency and lethality of the deadliest mass shootings-strong evidence that regional and local legislation can be effective even absent a federal ban. A peer-reviewed study published in the American Journal of Public Health found that “states without an LCM ban experienced significantly more high-fatality mass shootings and a higher death rate from such incidents,” seeing more than double the number of such shootings and three times the number of deaths from high-fatality mass shootings, as compared to states that ban large capacity magazines.
U.Survey data and gun-industry supplied statistics suggest that, at most, only a small fraction of U.S. gun owners possess semiautomatic assault rifles and private ownership of these weapons is concentrated in the hands of super-owners who have 10 or more firearms. Similar claims about the ubiquity of large capacity magazines is contradicted by the fact that most magazines for handguns-the “quintessential self-defense weapon,” see District of Columbia v. Heller, 554 U.S. 570, 629 (2008)-hold 10 rounds or fewer.
V. Because assault weapons, trigger activators, and large capacity magazines are designed for and have repeatedly been used to inflict mass casualties and enable other violent crimes, and the fact that these weapons and accessories are ill-suited to and unnecessary for responsible self-defense, and are not chosen or used by most law-abiding gun owners for this purpose, City Council finds that it is in the best interests of the health, safety, and welfare of Boulder residents to prohibit the possession, sale, manufacture, and transfer of assault weapons, rapid-fire trigger activators, and large capacity magazines.
W. Individuals 18 to 20 commit gun homicides at rates four times higher than those 21 and older. Research shows that there are fundamental developmental differences between the minds of adults and teenagers and that regions of the mind governing behavior do not fully mature until the twenties.
X. Evidence shows that the firearm suicide rate among young men increases 26.9% between the ages of 20 and 21.
Y. This ordinance recognizes the enactment of Senate Bill 21-256 and is intended to be consistent with that law.
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF BOULDER, COLORADO:
Section 1. Ordinances 8245 and 8259 are hereby repealed. The provisions of this ordinance shall apply prospectively only.
Section 2. Section 5-1-1, “Definitions,” B.R.C. 1981, is reenacted to read as follows:
5-1-1. - Definitions.
The following terms used in this title have the following meanings unless the context clearly indicates otherwise:
Act means a bodily movement and includes words and possession of property.
Affirmative defense means a defense in which the defendant, to raise the issue, presents some credible evidence on that issue, unless the City's evidence raises the issue involving the alleged defense. If the issue involved in an affirmative defense is raised, then the guilt of the defendant must be established beyond a reasonable doubt as to that issue as well as all other elements of the violation.
Age shall mean the chronological age of a person.
Antipersonnel device means any assemblage of material that is designed to, or does, kill, injure or trap people when activated.
Approach means to move closer with any part of the body or any extension thereof.
Blackjack means any billy club, sand club, sandbag or other hand-operated striking weapon consisting, at the striking end, of an encased piece of lead or other heavy substance and, at the opposite end, a strap or springy shaft that increases the force of impact.
Bias motivated crime shall mean the commission of any of the underlying offenses specified below if the offense is committed by reason of the actual or perceived race, color, religion, religious expression, national origin, age, disability, sex, sexual orientation, gender, gender identity or gender expression of another individual or group of individuals, regardless of the existence of any other motivating factor or factors. The underlying offenses are Sections 5-3-1, “Assault in the Third Degree,” 5-3-2, “Brawling,” 5-3-3, “Physical Harassment,” 5-3-4, “Threatening Bodily Injury,” 5-3-6, “Use of Fighting Words,” 5-3-9, “Brandishing a Weapon,” 54-1, “Damaging Property of Another,” 5-4-14, “Graffiti Prohibited,” 5-4-15, “Posting Signs on Property of Another Prohibited,” 5-8-6, “Aiming Weapon at Another,” or 5-8-7, “Flourishing Deadly Weapon in Alarming Manner,” B.R.C. 1981. No “bias motivated crime” finding shall occur unless the allegation of bias motivation has been specifically charged and sustained by an in-court admission of a defendant, or by a specific finding established beyond a reasonable doubt by a judge or jury in a contested trial.
Bodily injury means physical pain, illness or any impairment of physical or mental condition.
Code enforcement officer means any city employee or person employed under independent contract by the City who is appointed by the city manager to enforce the laws of the City. “Code enforcement officer” also means an authorized volunteer appointed by the city manager to enforce the laws concerning parking of vehicles in spaces reserved for the handicapped by issuing parking tickets.
Conduct means an act or omission and its accompanying state of mind, if any, or, where relevant, a series of acts or omissions.
Culpable mental state means intentionally, or with intent, or knowingly, or willfully, or recklessly, or negligently as set forth below:
(a) Intentionally or with intent means that one's conscious objective is to cause the specific result proscribed by the provision of this code or the ordinance defining the violation. All violations defined in this code in which the mental culpability requirement is expressed as intentionally or with intent are specific intent offenses. It is immaterial to the issue of specific intent whether or not the result actually occurred.
(b) Knowingly or willfully means, with respect to conduct or to a circumstance described by a section of this code or an ordinance defining a violation, that a person is aware that such person's conduct is of that nature or that the circumstance exists. With respect to a result this means that a person is aware that such person's conduct is practically certain to cause the result. All violations defined in this code in which the mental culpability requirement is expressed as knowingly or willfully are general intent offenses.
(c) Recklessly means consciously to disregard a substantial and unjustifiable risk that a result will occur or that a circumstance exists.
(d) Negligently means to act with negligence with respect to a result or to a circumstance described by a section of this code by failing to exercise the degree of care that would be exercised by the ordinarily reasonable and prudent inhabitant of the City under the same or similar circumstances.
Deadly physical force means force, the intended, natural and probable consequence of which is to produce death, and which does, in fact, produce death.
Deadly weapon means any of the following that in the manner it is used or intended to be used is capable of producing death or serious bodily injury:
(a) A firearm, whether loaded or unloaded;
(b) A knife;
(c) A bludgeon; or
(d) Any other weapon, device, instrument, material or substance, whether animate or inanimate.
Disability shall mean a physical or mental impairment that substantially limits one or more major life activities, a record of such impairment or being regarded as having such impairment. The term excludes current use of alcohol or drugs.
Dwelling means a building that is used, intended to be used or usually used by a person for habitation, but excludes lobbies, boiler rooms, hallways and other common areas of hotels, motels, apartments, condominiums, nursing homes and similar communal residential buildings.
Firearm means any handgun, automatic revolver, pistol, rifle, shotgun, or other instrument or device capable or intended to be capable of discharging bullets, cartridges, or other explosive charges. This definition does not include an antique firearm as defined in 18 U.S.C. § 921(a)(16).
Gas gun means a device designed for projecting gas-filled projectiles that release their contents after having been projected from the device and includes projectiles designed for use in such a device.
Gas or mechanically operated gun means an air or gas operated gun that discharges pellets, BB shots, arrows or darts, including, without limitation, BB guns, spring guns and other similarly operated guns or weapons.
Gender shall have the same meaning as the term “sex” defined in Section 12-1-1, “Definitions,” B.R.C. 1981.
Gender identity and gender expression shall have the meanings defined in Section 12-1-1, “Definitions,” B.R.C. 1981.
Gravity knife means any knife with a blade that may be released from the handle or sheath thereof by the force of gravity or the application of centrifugal force, which when released is locked in place by means of a button, spring, lever or other device.
Health care facility means a state-licensed general hospital, psychiatric hospital or community clinic, as defined in Colorado state statutes, as they may be amended from time to time, or a building containing an office or other place where a state-licensed physician practices medicine, on a full- or part-time basis, which is not required to be licensed under Colorado state statutes, but which is identified by a sign, visible from the adjacent public way.
Knife means any dagger, dirk, knife or stiletto with a blade over three and one-half inches in length, or any other dangerous instrument capable of inflicting cutting, stabbing or tearing wounds, but does not include a hunting or fishing knife carried for sports use.
Mall means the Downtown Boulder Mall as defined in Ordinance No. 4267, as amended by Ordinance No. 4543.
The ordinances generally describe the area included within the mall as the entire right-of-way of Pearl Street from approximately the east curb line of 11th Street to the west curb line of 15th Street except for the roadway at the intersections at Broadway, 13th and 14th Streets; and, the area directly south of the Boulder County courthouse complex, specifically, the area bounded by the east curb line of 13th Street on the west, the west curb line of 14th Street on the east, the north boundary line of the Pearl Street right-of-way on the south and, on the north, by a line coinciding with the south wall of the west wing of the County courthouse complex and extending westerly at a right angle from the west wall thereof to the east curb line of 13th Street and extending easterly at a right angle from the east wall thereof to the west curb line of 14th Street; excepting, however, any buildings or portions of buildings which are owned by the County of Boulder and located in such area.
Omission means a failure to perform an act as to which a duty of performance is imposed by law.
Peace officer means any police officer or city code enforcement officer.
Police officer means:
(a) Any city police officer commissioned by the city manager;
(b) Any person appointed by the city manager pursuant to Charter Section 72;
(c) Any peace officer of another jurisdiction who is also commissioned by the city manager to enforce the laws of the City;
(d) Any city park patrol officer commissioned by the city manager;
(e) Any city fire chief or fire marshal or firefighter commissioned by the city manager; and
(f) Any other city employee designated by the city manager to exercise police powers, including the power of arrest, and commissioned by the city manager.
Religious expression shall have the meaning defined in Section 12-1-1, “Definitions,” B.R.C. 1981.
Serious bodily injury means bodily injury that involves a substantial risk of death, serious permanent disfigurement or protracted loss or impairment of the function of any part of an organ of the body.
Specific defense means a defense in which the defendant, to raise the issue, presents some credible evidence on that issue, unless the City's evidence raises the issue involving the defense. If the issue involved in the specific defense is raised, it may be submitted to the trier of fact along with other issues, but the defendant bears the burden of proving the issue by a preponderance of the evidence, although the City must prove all other issues by proof beyond a reasonable doubt in any criminal action.
Switchblade knife means any knife, the blade of which opens automatically by hand pressure applied to a button, spring or other device in its handle.
Section 3. Section 5-2-26, “Matters of Local and Mixed Concern,” B.R.C. 1981, is amended to read as follows:
5-2-26. - Matters of Local and Mixed Concern.
It is the intention of the City Council that those ordinances and provisions of this code that deal with matters of “local” concern supersede the laws of the State of Colorado to the extent that they conflict and that those that deal with matters of “mixed” concern apply concurrently with the laws of the State of Colorado. No provision of this code on a matter of “mixed” concern is to be construed expressly or by implication to permit conduct that is illegal under the laws of the State of Colorado or to prohibit conduct that is expressly permitted by the laws of the state. The provisions of this code are to be construed to apply to misdemeanors and other minor and petty offenses only and are not to be interpreted to apply conduct that is defined as a felony under the laws of the State of Coloradosubject to the jurisdiction of the City of Boulder.
Section 4. Section 5-8-2, “Definitions,” B.R.C. 1981, is reenacted to read as follows:
5-8-2. - Definitions.
The following terms used in this Chapter have the following meanings unless the context clearly requires otherwise:
About the person means sufficiently close to the person to be readily accessible for immediate use.
Assault weapon means:
(a) All semi-automatic center-fire rifles that have the capacity to accept a detachable magazine and that have any of the following characteristics:
(1) A pistol grip or thumbhole stock;
(2) A folding or telescoping stock;
(3) A flash suppressor; or
(4) A shroud attached to the barrel, or that partially or completely encircles the barrel, allowing the bearer to hold the firearms with the non-trigger hand without being burned, but excluding a slide that encloses the barrel.
(b) All semi-automatic center-fire pistols that have any of the following characteristics:
(1) A threaded barrel;
(2) A secondary protruding grip or other device to allow the weapon to be stabilized with the non-trigger hand;
(3) A shroud attached to the barrel, or that partially or completely encircles the barrel, allowing the bearer to hold the firearm with the non-trigger hand without being burned, but excluding a slide that encloses the barrel;
(4) A flash suppressor;
(5) The capacity to accept a detachable ammunition feeding device at some location outside of the pistol grip;
(6) A manufactured weight of 50 ounces or more when unloaded;
(7) A buffer tube, arm brace, or other part that protrudes horizontally under the pistol grip; or
(8) A fixed magazine that has the capacity to accept more than 10 rounds.
(c) All semi-automatic shotguns that have any of the following characteristics:
(1) A pistol grip or thumbhole stock;
(2) A folding or telescoping stock;
(3) A fixed magazine capacity in excess of five rounds; or
(4) The capacity to accept a detachable magazine.
(d) Any firearm which has been modified to be operable as an assault weapon as defined herein.
(e) Any part or combination of parts designed or intended to convert a firearm into an assault weapon, including any combination of parts from which an assault weapon may
be readily assembled if those parts are in the possession or under the control of the same person.
Constructive knowledge means knowledge of facts or circumstances sufficient to cause a reasonable person to be aware of the fact in question.
Illegal weapon means an assault weapon, large-capacity magazine, rapid-fire trigger activator, blackjack, gas gun, metallic knuckles, gravity knife or switchblade knife.
Large-capacity magazine means any ammunition feeding device with the capacity to accept more than 10 rounds, but shall not be construed to include any of the following:
(a) A feeding device that has been permanently altered so that it cannot accommodate more than 10 rounds.
(b) A 22-caliber tube rim-fire ammunition feeding device.
(c) A tubular magazine that is contained in a lever-action firearm.
Locked container means a secure container which is enclosed on all sides and locked by a padlock, key lock, combination lock, or similar device, but does not include the utility compartment, glove compartment, or trunk of a motor vehicle.
Minor means a person under twenty-one years of age.
Pistol Grip means a grip that protrudes conspicuously beneath the action of the weapon and that allows for a pistol style grasp in which the web of the trigger hand (between the thumb and index finger) can be placed below the top of the exposed portion of the trigger while firing.
Provide means to give, lend, sell, or to place in an unsecured location where a minor, an unauthorized person or an incompetent person could foreseeably gain access to a firearm.
Rapid-Fire Trigger Activator means:
(a) A device that attaches to a firearm to allow the firearm to discharge two or more shots in a burst when the device is activated; or
(b) A manual or power-driven trigger-activating device that, when attached to a firearm, increases the rate of fire of that firearm.
Semi-automatic means a firearm that fires a single round for each pull of the trigger and automatically chambers a new round immediately after a round is fired.
Section 5. Section 5-8-10, “Possession of Illegal Weapons,” B.R.C. 1981, is reenacted to read as follows:
5-8-10. - Possession and Sale of Illegal Weapons.
(a) No person shall knowingly possess or sell or otherwise transfer an illegal weapon.
(b) Nothing in this section shall be construed to forbid any person:
(1) Holding a Federal Firearms License issued by the United States Government from possession of any firearm authorized pursuant to such license;
(2) From possessing a firearm for which the United States Government has issued a stamp or permit pursuant to the National Firearms Act; or
(3) Selling an illegal weapon to a person identified in Section 5-8-25, “Exemptions from this Chapter,” B.R.C. 1981.
(c) Nothing in this section shall be deemed to apply to any firearm that has been modified either to render it permanently inoperable or to permanently make it not an assault weapon.
(d) Nothing in this section shall be deemed to restrict a person's ability to travel with a firearm in a private motor vehicle or other private means of conveyance for lawful hunting, for lawful competition, or for lawful protection of a person or another person or property while traveling into, though, or within, the City of Boulder, regardless of the number of times the person stops in the City of Boulder.
Section 6. Section 5-8-22, “Defenses,” B.R.C. 1981, is reenacted to read as follows:
5-8-22. - Defenses.
(a) It is an affirmative defense to a charge of violating Sections 5-8-3, “Discharge of Firearms,” 5-8-4, “Possessing and Discharging Firearm or Bow in Park or Open Space,” 5-8-5, “Negligently Shooting Bow or Slingshot,” 5-8-6, “Aiming Weapon at Another,” 5-8-7, “Flourishing Deadly Weapon in Alarming Manner,” and 5-8-8, “Possession of Loaded Firearms,” B.R.C. 1981, that the defendant was:
(1) Reasonably engaged in lawful self-defense under the statutes of the State of Colorado; or
(2) Reasonably exercising the right to keep and bear arms in defense of the defendant's or another's home, person and property or in aid of the civil power when legally thereto summoned.
(b) It is a specific defense to a charge of violating Sections 5-8-3, “Discharge of Firearms,” 5-8-4, “Possessing and Discharging Firearm or Bow in Park or Open Space,” and 5-88, “Possession of Loaded Firearms,” B.R.C. 1981, that the events occurred in an area designated as a target range by the city manager under Section 5-8-26, “City Manager May Designate Target Ranges,” B.R.C. 1981, for the type of weapon involved. It is a specific defense to a charge of violating Section 5-8-4, “Possessing and Discharging Firearm or Bow in Park or Open Space,” B.R.C. 1981, by possession that the defendant was going directly to or returning directly from such a target range.
(c) It is an affirmative defense to a charge of violating Sections 5-8-8, “Possession of Loaded Firearms,” 5-8-9, “Carrying a Concealed Weapon,” and 5-8-11, “Possessing Firearm While Intoxicated,” B.R.C. 1981, that the defendant was:
(1) In the defendant's own dwelling or place of business or on property owned or under the defendant's control at the time; or
(2) In a private automobile or other private means of conveyance at the time and was carrying the weapon for lawful protection of the defendant's or another's person or property while traveling; or
(3) Charged with carrying a knife that was a hunting or fishing knife carried by the defendant for sport use.
(d) It is a specific defense to a charge of violating Sections 5-8-8, “Possession of Loaded Firearms,” and 5-8-9, “Carrying a Concealed Weapon,” B.R.C. 1981, that the defendant was carrying the weapon pursuant to a concealed weapons permit valid under the statutes of the State of Colorado.
(e) It is a specific defense to a charge of violating Sections 5-8-3, “Discharge of Firearms,” and 5-8-8, “Possession of Loaded Firearms,” B.R.C. 1981, that the loaded gas or mechanically operated gun was possessed or discharged in a building with the permission of the property owner and the projectile did not leave the building.
(f) It is a specific defense to a charge of violating section 5-8-10, “Possession of Illegal Weapons,” B.R.C. 1981:
(1) That the person had a valid permit for such weapon pursuant to federal law at the time of the offense; or
(2) That the illegal weapon was an assault weapon accompanied by a certificate of ownership, issued under Section 5-8-28I, or previously issued prior to December 31, 2018, by the Boulder Police Department.
(g) It is a specific defense to a charge of violating Section 5-8-4, “Possessing and Discharging Firearm or Bow in Park or Open Space,” B.R.C. 1981, that the firearm, gas or mechanically operated gun, bow, slingshot or crossbow possessed by the person was being transported in a motor vehicle. This defense does not apply to a charge of violation involving discharge of a missile.
(h) It is an affirmative defense to any charge of a violation of this Chapter relating to carrying firearms that the defendant was carrying the firearm in a private automobile or other private means of conveyance for hunting while traveling in, into or through the city, as permitted by § 18-12-105.6, C.R.S.
Section 7. Section 5-8-25, “Exemptions from Chapter,” B.R.C. 1981, is reenacted to read as follows:
5-8-25. - Exemptions from Chapter.
Nothing in this Chapter shall be construed to forbid the following persons from having in their possession, displaying, concealing or discharging such weapons as are necessary in the authorized and proper performance of their official duties:
(a) United States Marshals, any sheriffs, constables, and their deputies.
(b) Any regular or ex officio police officer.
(c) Any government agent, officer, or employee, any other peace officer, or Members of the United States Armed Forces, Colorado National Guard or Reserve Officer Training Corps acting in the course and scope of their duties.
Section 8. Section 5-8-28, “Assault Weapons,” B.R.C. 1981, is reenacted to read as follows:
5-8-28. - Assault Weapons.
(a) Any person who, prior to July 1, 2022, was legally in possession of an assault weapon or large capacity magazine shall have until December 31, 2022 to obtain a certificate for the assault weapon as provided in subsection (c) of this section.
(b) Any person who, prior to July 1, 2022, was legally in possession of a rapid-fire trigger activator shall have until August 1, 2022 to do any of the following without being subject to prosecution:
(1) Remove the rapid-fire trigger activator from the City of Boulder; or
(2) Surrender the rapid-fire trigger activator to the Boulder Police Department for destruction.
(c) Any person seeking to certify an assault weapon that he or she legally possessed prior to July 1, 2022, unless they obtained a certificate of ownership prior to December 31, 2018, must comply with the following requirements:
(1) Submit to a background check conducted by the appropriate law enforcement agency to confirm that he or she is not prohibited from possessing a firearm pursuant to 18 U.S.C. § 922 or C.R.S § 18-12-108; and
(2) Unless the person is currently prohibited by law from possessing a firearm, prior to December 31, 2022 apply for a certificate for the assault weapon from the Boulder Police Department.
(d) All persons who hold a certificate issued prior to December 31, 2018 or who obtain a certificate pursuant to subsection I of this section shall:
(1) Safely and securely store the assault weapon pursuant to the regulations adopted by the appropriate law enforcement agency;
(2) Possess the assault weapon only on property owned or immediately controlled by the person, or while on the premises of a licensed gunsmith for the purpose of lawful repair, or while engaged in the legal use of the assault weapon at a duly licensed firing range, or while traveling to or from these locations, provided that the assault weapon is stored unloaded in a locked container during transport. The term “locked container” does not include the utility compartment, glove compartment, or trunk of a motor vehicle; and
(3) Report the loss or theft of a certified assault weapon to the appropriate law enforcement agency within 48 hours of the time the discovery was made or should have been made.
(e) If a certified assault weapon is used in the commission of a crime, the owner shall be civilly liable for any damages resulting from that crime. The liability imposed by this subsection shall not apply if the assault weapon was stolen and the certified owner reported the theft of the firearm to law enforcement within 48 hours of the time the discovery was made or should have been made.
(f) Certified assault weapons may not be purchased, sold or transferred in the City of Boulder, except for transfer to a licensed gunsmith for the purpose of lawful repair, or transfer to the appropriate law enforcement agency for the purpose of surrendering the assault weapon for destruction.
(g) Persons acquiring an assault weapon by inheritance, bequest, or succession shall, within 90 days of acquiring title, do one of the following:
(1) Modify the assault weapon to render it permanently inoperable;
(2) Surrender the assault weapon to the Boulder Police Department for destruction;
(3) Transfer the assault weapon to a firearms dealer who is properly licensed under federal, state and local laws; or
(4) Permanently remove the assault weapon from the City of Boulder.
(h) The owner of a certified assault weapon may not possess in the City of Boulder any assault weapons purchased on or after July 1, 2022.
(i) The city manager shall charge a fee for each certificate sufficient to cover the costs of administering the certificate program. The city manager shall issue to qualified applicants two original copies of each certificate issued. The City of Boulder shall not maintain any records of certificates issued. The person who received the certificate shall keep one copy with the weapon certified and the second copy in a secure place to replace the certificate maintained with the weapon.
Section 9. A new Section 5-8-42, “Severability,” B.R.C. 1981, is added to read as follows:
5-8-42. - Severability.
If any section, subsection, sentence or clause of this Chapter is for any reason declared unconstitutional or invalid or unenforceable by any court of competent jurisdiction, such decision shall not affect the constitutionality, validity or enforceability of the remaining portions of this Chapter or any part thereof. The City Council hereby declares that it would have adopted this Chapter notwithstanding the unconstitutionality, invalidity or unenforceability of any one or more of its sections, subsections, sentences or clauses.
Section 10. This ordinance is necessary to protect the public health, safety, and welfare of the residents of the city, and covers matters of local concern.
Section 11. The City Council deems it appropriate that this ordinance be published by title only and orders that copies of this ordinance be made available in the office of the city clerk for public inspection and acquisition.
INTRODUCED, READ ON FIRST READING, AND CONTINUED this 10th day of May 2022.
Aaron Brockett, Mayor.
READ ON CONTINUED FIRST READING, AND ORDERED PUBLISHED BY TITLE ONLY this 24th day of May 2022.
Second Reading Amendments
Ordinance No. 1831, Series 2022 is revised to read as follows (amendments are shown in bold underline and bold strikeout):
ORDINANCE NO. 1831
SERIES 2022
AN ORDINANCE AMENDING TITLE 9, ARTICLE VIII OF THE LOUISVILLE MUNICIPAL CODE BANNING THE SALE AND POSSESSION OF ASSAULT WEAPONS, LARGE-CAPACITY MAGAZINES AND RAPID-FIRE TRIGGER ACTIVATORS, AND ESTABLISHING A MINIMUM AGE TO POSSESS FIREARMS
WHEREAS, the City of Louisville (the “City”), is a Colorado home rule municipal corporation duly organized and existing under laws of the State of Colorado and the City of Louisville Home Rule Charter (the “City Charter”); and
WHEREAS, gun violence poses a grave public safety threat to public safety, public health, and public education in the City of Louisville. Statewide in Colorado, guns are the leading cause of death for children ages 1-17 and cause the deaths of nearly 2/3 of women who are killed by intimate partners; and
WHEREAS, Colorado has the 18th-highest gun death rate among the 50 states and saw elevated levels of mass shootings in 2020 and early 2021, when a mass shooter killed 10 people at King Soopers in Boulder using an assault weapon and large-capacity magazines; and
WHEREAS, assault weapons are semiautomatic firearms with large ammunition capacities and specific features that are useful in military and criminal applications yet are unnecessary in shooting sports or self-defense. These weapons include semiautomatic assault rifles that have the ability to accept large-capacity magazines holding up to 100 rounds, and with features that enhance concealability, control, and the ability to fire many dozens of rounds without pause. They also include assault pistols and high-capacity “combat” shotguns; and
WHEREAS, assault weapons are semiautomatic versions of firearms. Although these semiautomatic versions of military firearms are marketed to civilians, they are military-grade weapons: the U.S. military calls semiautomatic rifle fire the “most important firing technique during fast-moving, modern combat” and “most accurate technique of placing a large volume of fire.” These rifles fire bullets with a velocity three times greater than 9mm handguns, leaving “softball-sized exit wounds” much more likely to kill than to incapacitate victims; and
WHEREAS, perpetrators of the five deadliest shootings in modern U.S. history-Las Vegas, Orlando, Sandy Hook, Sutherland Springs, and El Paso-used assault rifles with militarystyle features. Colorado's deadliest mass shooters have also used assault rifles or pistols, including the Aurora movie theater shooter, who used an assault rifle and a 100-round drum magazine; and the King Soopers shooter, who used an AR-style pistol that an ATF expert described as “made for the military and designed for short-range combat”; and
WHEREAS, researchers have found that firearm purchasers with criminal histories are more likely to buy assault weapons, and that probability was even higher if purchasers have more serious criminal histories. These weapons are regularly used in violent crime beyond mass shootings, including violence against police officers; and
WHEREAS, assault weapons are inappropriate for civilian use due to their unique features that allow shooters to rapidly fire a large number of rounds-more than is ever needed for lawful self-defense-while maintaining control of the firearm in order to accurately target and kill more victims. Specific features that allow an assault weapon to perform this way are:
Detachable magazine: Firearms that can accept detachable magazines allow a shooter to attach magazines of any size available for the firearm and quickly reload the weapon with pre-filled magazines. In some cases, magazines can hold as many as 100 rounds, but even smaller detachable magazines can greatly increase firepower.
Pistol grip: To counteract the movement that occurs during rapid fire, assault weapons are typically equipped with features that allow the shooter to steady the weapon. A pistol grip, not typically found on a sporting rifle or shotgun (which would be fired from the shoulder), allows the shooter to control the firearm more accurately-and lethally-by maneuvering the weapon or shooting from the hip during rapid fire;
Thumbhole stock: As with a pistol grip, a thumbhole stock allows the shooter to control the firearm during rapid fire;
Folding or telescoping stock: A folding or telescoping stock folds or collapses to make the weapon easier to conceal and transport;
Flash Suppressor: A flash suppressor enables a shooter to mask their location by reducing the visible signature of the firearm when it fires; and
Barrel shroud: As with a pistol grip and thumbhole stock, a barrel shroud allows the shooter to steady the firearm during rapid fire. The shroud encircles the barrel of the firearm and allows the shooter to hold it without getting burned; and
WHEREAS, in addition to military-style assault rifles, gun manufacturers have also begun marketing AK-style and AR-style pistols with the same features that enable a shooter to continue shooting the weapon numerous times without losing control over it. These pistols are also designed to fire rifle rounds capable of penetrating body armor, but which are concealable like handguns; and
WHEREAS, AK-style and AR-style pistols pose a similar if not identical threat to public safety as do short-barreled rifles, because of their short length and ability to fire rifle rounds that can penetrate ballistic resistant vests worn by patrol officers. Because their lethality is on par with highly restricted short-barreled rifles, yet they have almost entirely evaded regulation, armor-piercing, concealable firearms have been used in murders across the country, including at the 2021 King Soopers shooting and at the 2019 mass shooting in Dayton, Ohio; and
WHEREAS, high-capacity “tactical” or “combat” shotguns are assault weapons modeled after firearms originally used for riot control by foreign law enforcement. After the Armsel Striker, popular in South Africa and marketed in the U.S. as the Street Sweeper, was designated a “destructive device” under the National Firearms Act, gunmakers designed workaround weapons as powerful as the Street Sweeper that inflict catastrophic injuries by rapidly firing a dozen or more shotgun slugs. These weapons are unfit for lawful sporting or self-defense uses; and
WHEREAS, at the 2017 Mandalay Bay shooting in Las Vegas, Nevada, the shooter modified semiautomatic assault rifles with bump stocks so they could fire at speeds approaching fully automatic machine guns. Bump stocks, as well as binary triggers, burst triggers, rotating trigger cranks, and other after-market rapid-fire trigger activators enable firing many rounds per second and serve no lawful self-defense function; and
WHEREAS, several years after the Las Vegas shooting drew attention to the dangers of bump stocks that give shooters automatic firepower, the ATF adopted a federal rule effectively banning their possession. However, legal challenges to the federal bump stock rule are still pending and state and local action is needed to restrict other rapid-fire trigger activators; and
WHEREAS, large-capacity magazines are ammunition feeding devices that hold more than 10 rounds and may hold as many as 100 rounds of ammunition. Mass. shootings that involve large-capacity magazines result in nearly five times as many people shot compared to mass shootings that do not involve high capacity magazines. These magazines increase the number of victims injured and killed by enabling shooters to fire more rounds before reloading-a critical moment when many criminal shooters are stopped before they can further increase their death tolls; and
WHEREAS, large-capacity magazines also make gun violence far more lethal in situations other than mass shootings, including interpersonal gun violence and shootings by organized crime or street groups. Firearms equipped with large-capacity magazines account for 22 to 36% of crime guns in most places, and research shows upwards of 40% of crime guns used in serious violent crimes, including murders of police officers, are equipped with large-capacity magazines; and
WHEREAS, City Council is unaware of any reported incidents where someone engaged in self-defense fired more than 10 rounds of a large-capacity magazine to fend off an attack. Despite analyzing several decades of evidence about defensive shootings, gun-rights groups raising legal challenges to magazine restrictions in other jurisdictions have been unable to identify a single incident anywhere in the nation during which someone needed to fire more than ten rounds at once in lawful self-defense. Conversely, numerous high-profile mass shootings nationally and within Colorado have been carried out with LCMs, including the King Soopers shooting and the Aurora movie theater shooting. Nationally, the five deadliest mass shootings of the last decade all involved the use of LCMs holding more than 10 rounds of ammunition; and
WHEREAS, in 1994, a federal ban on the manufacture, transfer, and possession of assault weapons and the transfer and possession of large-capacity magazines was enacted. The law included a ten-year sunset provision. In 2004, Congress allowed the law to expire; and
WHEREAS, studies show that the federal assault weapon ban resulted in a marked decrease in the use of assault weapons and large-capacity magazines in crime. One study found that in several major cities, the share of recovered crime guns that were assault weapons declined by 32% to 40% after the federal ban was adopted. Another study in Virginia found a clear decline in the percentage of crime guns that were equipped with large-capacity magazines after the federal ban was enacted. The percentage of guns seized by Virginia police reached a low of 10% in 2004 and then steadily climbed after Congress allowed the ban to expire; by 2010, the percentage was close to 22%; and
WHEREAS, the federal law restricting assault weapon and large-capacity magazines also had a significant protective effect in lowering mass shooting fatalities. During the 10-year period the law was in effect, mass shooting fatalities were 70% less likely to occur compared to when the ban wasn't in effect. In addition, the number of high-fatality mass shootings fell by 37%, and the number of people dying in such shootings fell by 43%. After the ban lapsed, there was a 183% increase in high-fatality mass shootings and a 239% increase in deaths from such shootings; and
WHEREAS, state-level prohibitions on large-capacity magazines have been shown to reduce the frequency and lethality of the deadliest mass shootings-strong evidence that regional and local legislation can be effective even absent a federal ban. A peer-reviewed study published in the American Journal of Public Health found that “states without an LCM ban experienced significantly more high-fatality mass shootings and a higher death rate from such incidents,” seeing more than double the number of such shootings and three times the number of deaths from high-fatality mass shootings, as compared to states that ban large-capacity magazines; and
WHEREAS, survey data and gun-industry supplied statistics suggest that, at most, only a small fraction of U.S. gun owners possess semiautomatic assault rifles and private ownership of these weapons is concentrated in the hands of super-owners who have 10 or more firearms. Similar claims about the ubiquity of large-capacity magazines is contradicted by the fact that most magazines for handguns-the “quintessential self-defense weapon,” see District of Columbia v. Heller, 554 U.S. 570, 629 (2008)-hold 10 rounds or fewer; and
WHEREAS, because assault weapons, trigger activators, and large-capacity magazines are designed for and have repeatedly been used to inflict mass casualties and enable other violent crimes, and the fact that these weapons and accessories are ill-suited to and unnecessary for responsible self-defense, and are not chosen or used by most law-abiding gun owners for this purpose, City Council finds that it is in the best interests of the health, safety, and welfare of Louisville residents to prohibit the possession, sale, manufacture, and transfer of assault weapons, rapid-fire trigger activators, and large-capacity magazines; and
WHEREAS, this ordinance recognizes the enactment of Senate Bill 21-256 and is intended to be consistent with that law.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF LOUISVILLE, COLORADO:
Section 1. Title 9, Article VIII of the Louisville Municipal Code (Weapons) is hereby amended by a new Chapter 9.80 to read as follows:
Chapter 9.80
General Provisions
Sec. 9.80.010 Definitions.
For the purposes of this Article the following terms, phrases, words, and their derivatives shall have the meanings given in this section:
About the person means sufficiently close to the person to be readily accessible for immediate use.
Assault weapon means:
(a) All semi-automatic center-fire rifles that have the capacity to accept a detachable magazine and that have any of the following characteristics:
(1) A pistol grip or thumbhole stock;
(2) A folding or telescoping stock;
(3) A flash suppressor; or
(4) A shroud attached to the barrel, or that partially or completely encircles the barrel, allowing the bearer to hold the firearms with the non-trigger hand without being burned, but excluding a slide that encloses the barrel.
(b) All semi-automatic center-fire pistols that have any of the following characteristics:
(1) A threaded barrel;
(2) A secondary protruding grip or other device to allow the weapon to be stabilized with the non-trigger hand;
(3) A shroud attached to the barrel, or that partially or completely encircles the barrel, allowing the bearer to hold the firearm with the non-trigger hand without being burned, but excluding a slide that encloses the barrel;
(4) A flash suppressor;
(5) The capacity to accept a detachable ammunition feeding device at some location outside of the pistol grip;
(6) A manufactured weight of 50 ounces or more when unloaded;
(7) A buffer tube, arm brace, or other part that protrudes horizontally under the pistol grip; or
(8) A fixed magazine that has the capacity to accept more than 10 rounds.
(c) All semi-automatic shotguns that have any of the following characteristics:
(1) A pistol grip or thumbhole stock;
(2) A folding or telescoping stock;
(3) A fixed magazine capacity in excess of five rounds; or
(4) The capacity to accept a detachable magazine.
(d) Any firearm which has been modified to be operable as an assault weapon as defined herein.
(e) Any part or combination of parts designed or intended to convert a firearm into an assault weapon, including any combination of parts from which an assault weapon may be readily assembled if those parts are in the possession or under the control of the same person.
Constructive knowledge means knowledge of facts or circumstances sufficient to cause a reasonable person to be aware of the fact in question.
Firearm means any handgun, automatic revolver, pistol, shotgun, or other instrument or device capable or intended to be capable of discharging bullets, cartridges, or other explosive charges. This definition does not include an antique firearm as defined in 18 U.S.C. § 921(a)(16).
Illegal weapon means an assault weapon, large-capacity magazine, rapidfire trigger activator, blackjack, gas gun, metallic knuckles, gravity knife or switchblade knife.
Large-capacity magazine means any ammunition feeding device with the capacity to accept more than 10 rounds, but shall not be construed to include any of the following:
(a) A feeding device that has been permanently altered so that it cannot accommodate more than 10 rounds.
(b) A 22-caliber tube rim-fire ammunition feeding device.
(c) A tubular magazine that is contained in a lever-action firearm.
Locked container means a secure container which is enclosed on all sides and locked by a padlock, key lock, combination lock, or similar device, but does not include the utility compartment, glove compartment, or trunk of a motor vehicle.
Minor means a person under twenty-one years of age.
Pistol grip means a grip that protrudes conspicuously beneath the action of the weapon and that allows for a pistol style grasp in which the web of the trigger hand (between the thumb and index finger) can be placed below the top of the exposed portion of the trigger while firing.
Provide means to give, lend, sell, or to place in an unsecured location where a minor, an unauthorized person or an incompetent person could foreseeably gain access to a firearm.
Purchase and sale mean the transfer of ownership of a firearm in consideration of payment or promise of payment.
Rapid-Fire Trigger Activator means:
(a) A device that attaches to a firearm to allow the firearm to discharge two or more shots in a burst when the device is activated; or
(b) A manual or power-driven trigger-activating device that, when attached to a firearm, increases the rate of fire of that firearm.
Semi-automatic means a firearm that fires a single round for each pull of the trigger and automatically chambers a new round immediately after a round is fired.
Sec. 9.80.020 Matters of local and mixed concern.
It is the intention of the City Council that those ordinances and provisions contained in this Article that deal with matters of “local” concern supersede the laws of the State of Colorado to the extent that they conflict and that those that deal with matters of “mixed” concern apply concurrently with the laws of the State of Colorado. No provision of this code on a matter of “mixed” concern is to be construed expressly or by implication to permit conduct that is illegal under the laws of the State of Colorado. The provisions of this code are to be construed to apply to misdemeanors and other minor and petty offenses only and are not to be interpreted to apply to conduct that is defined as a felony under the laws of the State of Colorado subject to the jurisdiction of the City of Louisville .
Sec. 9.80.030 Affirmative defense.
It is an affirmative defense to any charge of a violation of this Article relating to carrying firearms that the defendant was carrying the firearm in a private automobile motor vehicle or other private means of conveyance for lawful protection of such person or another person or property or for hunting while traveling in, into or through the City, as permitted by § 18-12-105.6, C.R.S.
Sec. 9.80.040 Exemptions.
Nothing in this Article shall be construed to forbid the following persons from having in their possession, displaying, concealing or discharging such weapons as are necessary in the authorized and proper performance of their official duties:
(1) United States Marshals, any sheriffs, constables and their deputies,
(2) Any regular or ex officio police officer,
(3) Any government agent, officer, or employee, any other peace officer, or Members of the United States Armed Forces, Colorado National Guard or Reserve Officer Training Corps, to the extent such person is otherwise authorized to acquire or possess an assault weapon and/or large capacity magazine, and does so within the scope of his or her acting in the course and scope of their duties.
Section 2. Chapter 9.82 of the Louisville Municipal Code is hereby amended by the addition of a new Section 9.82.130 to read as follows:
Sec. 9.82.130 Sales to and purchases by minors prohibited.
(a) No person under the age of twenty-one shall purchase a firearm.
(b) No person shall sell a firearm to a person under the age of twenty-one.
(c) This section shall not apply to:
(1) Any federal, state or local law enforcement officer when purchasing or selling firearms in connection with official duties.
(2) Any member of the United States Armed Forces or Colorado National Guard when engaged in official duties.
Section 2 3. Title 9, Article VIII of the Louisville Municipal Code (Weapons) is hereby amended by a new Chapter 9.84 to read as follows:
Chapter 9.84
Illegal Weapons
Sec. 9.84.010 Possession and sale of illegal weapons.
(a) No person shall knowingly possess or sell or otherwise transfer an illegal weapon.
(b) Nothing in this section shall be construed to forbid any person:
(1) Holding a Federal Firearms License issued by the United States Government from possession of any firearm authorized pursuant to such license;
(2) From possessing a firearm for which the United States Government has issued a stamp or permit pursuant to the National Firearms Act; or
(3) Selling an illegal weapon to a person identified in Section 9.80.030 of this Code, “Exemptions from this Article.”
(4) Engaged in the manufacture or sale of items pursuant to a United States military or law enforcement procurement contract in accordance with C.R.S. § 2911.7-103(3) from possessing a weapon that is subject to such procurement contract.
(c) Nothing in this section shall be deemed to apply to any firearm that has been modified either to render it permanently inoperable or to permanently make it not an assault weapon.
(d) Nothing in this section shall be deemed to restrict a person's ability to travel with a firearm in a private automobile motor vehicle or other private means of conveyance for lawful hunting, for lawful competition, or for lawful protection of a person or another person or property while traveling into, though, or within, the City of Louisville, regardless of the number of times the person stops in the City of Louisville.
(e) It is a specific defense to a charge of violating this Section:
(1) That the person had a valid permit for such weapon pursuant to federal law at the time of the offense; or
(2) That the illegal weapon was an assault weapon accompanied by a certificate of ownership, under Section 9.86.010(c), issued by the Louisville Police Department.
Section 3 4. Title 9, Article VIII of the Louisville Municipal Code (Weapons) is hereby amended by a new Chapter 9.86 to read as follows:
Chapter 9.86
Assault Weapons
Sec. 9.86.010 Assault weapons.
(a) Any person who, prior to July 1, 2022, was legally in possession of an assault weapon or large capacity magazine shall have until December 31, 2022 to obtain a certificate for the assault weapon as provided in subsection (c) of this section.
(b) Any person who, prior to July 1, 2022, was legally in possession of a rapid-fire trigger activator shall have until August 1, 2022 to do any of the following without being subject to prosecution:
(1) Remove the rapid-fire trigger activator from the City of Louisville; or
(2) Surrender the rapid-fire trigger activator to the Louisville Police Department for destruction.
(c) Any person seeking to certify an assault weapon that he or she legally possessed prior to July 1, 2022, unless they obtained a certificate of ownership under previous ordinances, must comply with the following requirements:
(1) Submit to a background check conducted by the appropriate law enforcement agency to confirm that he or she is not prohibited from possessing a firearm pursuant to 18 U.S.C. § 922 or C.R.S § 18-12-108; and
(2) Unless the person is currently prohibited by law from possessing a firearm, prior to December 31, 2022 apply for a certificate for the assault weapon from the Louisville Police Department.
(d) All persons who obtain a certificate pursuant to subsection (c) of this section shall:
(1) Safely and securely store the assault weapon pursuant to the regulations adopted by the appropriate law enforcement agency;
(2) Possess the assault weapon only on property owned or immediately controlled by the person, or while on the premises of a licensed gunsmith for the purpose of lawful repair, or while engaged in the legal use of the assault weapon at a duly licensed firing range, or while traveling to or from these locations, provided that the assault weapon is stored unloaded in a locked container during transport. The term “locked container” does not include the utility compartment, glove compartment, or trunk of a motor vehicle; and
(3) Report the loss or theft of a certified assault weapon to the appropriate law enforcement agency within 48 hours of the time the discovery was made or should have been made.
(e) If a certified assault weapon is used in the commission of a crime, the owner shall be civilly liable for any damages resulting from that crime. The liability imposed by this subsection shall not apply if the assault weapon was stolen and the certified owner reported the theft of the firearm to law enforcement within 48 hours of the time the discovery was made or should have been made.
(f) Certified assault weapons may not be purchased, sold or transferred in the City of Louisville, except for transfer to a licensed gunsmith for the purpose of lawful repair, or transfer to the appropriate law enforcement agency for the purpose of surrendering the assault weapon for destruction.
(g) Persons acquiring an assault weapon by inheritance, bequest, or succession shall, within 90 days of acquiring title, do one of the following:
(1) Modify the assault weapon to render it permanently inoperable;
(2) Surrender the assault weapon to the Louisville Police Department for destruction;
(3) Transfer the assault weapon to a firearms dealer who is properly licensed under federal, state and local laws; or
(4) Permanently remove the assault weapon from the City of Louisville.
(h) The owner of a certified assault weapon may not possess in the City of Louisville any assault weapons purchased after July 1, 2022.
(i) The City Manager shall charge a fee for each certificate sufficient to cover the costs of administering the certificate program. The City Manager shall issue to qualified applicants two original copies of each certificate issued. The City of Louisville shall not maintain any records of certificates issued. The person who received the certificate shall keep one copy with the weapon certified and the second copy in a secure place to replace the certificate maintained with the weapon.
Section 4 5. If any portion of this ordinance is held to be invalid for any reason, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council hereby declares it would have passed and approved this ordinance and each part hereof irrespective of the fact that any one part be declared invalid.
Section 5 6. The repeal or modification of any provision of the Municipal Code of the City of Louisville by this ordinance shall not release, extinguish, alter, modify, or change in whole or in part any penalty, forfeiture, or liability, either civil or criminal, which shall have been incurred under such provision, and each provision shall be treated and held as still remaining in force for the purpose of sustaining any and all proper actions, suits, proceedings, and prosecutions for the enforcement of the penalty, forfeiture, or liability, as well as for the purpose of sustaining any judgment, decree, or order which can or may be rendered, entered, or made in such actions, suits, proceedings, or prosecutions.
Section 6 7. All other ordinances or portions thereof inconsistent or conflicting with this ordinance or any portion hereof are hereby repealed to the extent of such inconsistency or conflict.
Section 7 8. Any person convicted of violating this ordinance may be punished as set forth in 1.28.010 of the Louisville Municipal Code, as may be amended but which currently provides violations shall be punished by a fine of not more than $2,650.00, as shall be adjusted for inflation on January 1, 2014 and on January 1 of each year thereafter, or by imprisonment not to exceed 364 days, or by both such fine and imprisonment.
INTRODUCED, READ, PASSED ON FIRST READING, AND ORDERED PUBLISHED this 17th day of May, 2022.
Ashley Stdlzmann, Mayor.
ORDINANCE NO. 2022-5
AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF BOULDER COUNTY, COLORADO PROHIBITING THE SALE AND PURCHASE OF ASSAULT WEAPONS, LARGE CAPACITY MAGAZINES, AND TRIGGER ACTIVATORS
RECITALS
A. Gun violence poses a grave public safety threat in Boulder County. According to data from Centers for Disease Control and Prevention, Wide-ranging Online Data for Epidemiologic Research, statewide in Colorado guns are the leading cause of death for children ages one through 17 and cause the deaths of nearly two thirds of women who are killed by intimate partners.
B. Colorado has the 18th-highest gun death rate among the 50 states and saw elevated levels of mass shootings in 2020 and early 2021, when a mass shooter killed 10 people at a King Soopers in Boulder using an assault weapon and large-capacity magazines.
C. Assault weapons are semiautomatic firearms with large ammunition capacities and specific features that are useful in military and criminal applications yet are unnecessary in shooting sports or self-defense, these weapons include semiautomatic assault rifles that can accept large-capacity magazines holding up to 100 rounds, and with features that enhance concealability, control, and the ability to fire many dozens of rounds without pause, They also include assault pistols and high-capacity “combat” shotguns.
D. Assault rifles are semiautomatic versions of firearms. Although these semiautomatic versions of military firearms are marketed to civilians, they are military-grade weapons: the U.S. military has called semiautomatic rifle fire the “most important firing technique during fast-moving, modem combat? and “most accurate technique of placing a large volume of fire. ” These rifles fire bullets with a velocity three times greater than 9mm handguns, leaving softball-sized exit wounds much more likely to kill than to incapacitate victims.
E. Perpetrators of the five deadliest shootings in modem U.S. history-Las Vegas, Orlando, Sandy Hook, Sutherland Springs, and El Paso-used assault rifles with military-style features. Colorado's deadliest mass shooters have also used assault rifles or pistols, including the Aurora movie theater shooter, who used an assault rifle and a 100-round drum magazine; and the King Soopers shooter, who used an AR-style pistol that an expert from the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATE”) described as “made for the military and designed for short-range combat.”
F. Researchers have found that firearm purchasers with criminal histories are more likely to buy assault weapons, and that probability was even higher if purchasers have more serious criminal histories. These weapons are regularly used in violent crime beyond mass shootings, including violence against law enforcement officers.
G. Assault Weapons are inappropriate for civilian use due to their unique features that allow shooters to rapidly fire a large number of rounds-more than is ever needed for lawful self-defense-while maintaining control of the firearm in order to accurately target and kill more; victims. Specific features that allow an assault weapon to perform this way are:
• Detachable magazine: Firearms that can accept detachable magazines allow a shooter to attach magazines of any size available for the firearm and quickly reload the weapon with pre-filled magazines. In some cases, magazines can hold as many as 100 rounds, but even smaller detachable magazines can greatly increase firepower.
* Pistol grip: To counteract the movement that occurs during rapid fire., assault weapons are typically equipped with features that allow the shooter to steady the weapon. A pistol grip, not typically found on a sporting rifle or shotgun (which would be fired from the shoulder), allows the shooter to control the firearm more accurately-and lethally-by maneuvering the weapon or shooting from the hip during rapid fire;
* Thumbhole stock: As with a pistol grip, a thumbhole stock allows the shooter to control the firearm during rapid fire;
• Folding or telescoping stock: A folding or telescoping stock folds or collapses to make the weapon easier to conceal and transport;
• Flash Suppressor: A flash suppressor enables a shooter to mask their location by reducing the visible signature of the firearm when it fires; and
• Barrel shroud: As with a pistol grip and thumbhole stock, a barrel shroud allows the shooter to steady the firearm during rapid fire. The shroud encircles the barrel of the firearm and allows the shooter to hold it without getting burned.
H. In addition to military-style assault rifles, gun manufacturers have also begun marketing AK-style and AR-style pistols with the same features that enable a shooter to continue shooting the weapon numerous times without losing control over it. These pistols are also designed to fire rifle rounds capable of penetrating body armor, but which are concealable like handguns.
I. AK-style and AR-style pistols pose a similar if not identical threat to public safety as do short-barreled rifles, because of their short length and ability to fire rifle rounds that can penetrate ballistic resistant vests worn by patrol officers. Because their lethality is on par with highly restricted short-barreled rifles, armor-piercing, concealable firearms have been used in murders across the country, including at the 2021 King Soopers shooting in Boulder and at the 2019 mass shooting in Dayton, Ohio.
J. High-capacity “tactical” or “combat” shotguns are assault weapons modeled after firearms originally used for riot control by foreign law enforcement. After the Armsel Striker, popular in South Africa and marketed in the U.S. as the Street Sweeper, was designated a “destructive device” wider the National Firearms Act, gunmakers designed workaround weapons as powerful as the Street Sweeper that inflict catastrophic injuries by rapidly firing a dozen or more shotgun slugs. These weapons are unfit for lawful sporting or self-defense uses.
K. At the 2017 Mandalay Bay shooting in Las Vegas, Nevada, the shooter modified semiautomatic assault rifles with bump slocks so they could fire at speeds approaching fully automatic machine guns. Bump stocks, as well as binary triggers, burst triggers, rotating trigger cranks, and other after-market rapid-fire trigger activators enable firing many rounds per second and serve no lawful self-defense function.
L. Several years after the Las Vegas shooting drew attention to the dangers of bump stocks that give shooters automatic firepower, the ATF adopted a federal rule effectively banning their possession. However, local action is needed to restrict other rapidfire trigger activators.
M. Large-capacity magazines are ammunition feeding devices that hold more than 10 rounds and may hold as many as 100 rounds of ammunition. Mass. shootings that involve large-capacity magazines result in nearly five times as many people shot compared to mass shootings that do not involve high-capacity magazines. These magazines increase the number of victims injured and killed by enabling shooters to fire more rounds before reloading:-a critical moment when criminal shooters can be stopped before they can further increase their death tolls.
N. Large-capacity magazines also make gun violence far more lethal in situations other than mass shootings, including interpersonal gun violence and shootings by organized crime or street groups.
O. The Board of County Commissioners of Boulder County is unaware of any reported incidents in Boulder County or nationally where a civilian who was engaged in self-defense fired more than 10 rounds of a large-capacity magazine to fend off an attack. In Worman v Healey, 922 F.3d 26 (1st Cir. 2019), the court noted that even six expert witnesses could not identify a single example of a self-defense episode in which ten or more shots were fired. Conversely, numerous high-profile mass shootings nationally and within Colorado have been carried out with large-capacity magazines, including the Boulder King Soopers shooting and the Aurora movie theater shooting.
P. In 1994, a federal bail on the manufacture, transfer and possession of assault weapons and the transfer and possession of large-capacity magazines was enacted, but the law included a 10-year sunset provision. In 2004, Congress allowed the law to expire.
Q. Studies show that the federal assault weapon ban resulted in a marked decrease in the use of assault weapons and large-capacity magazines in crime.
R. State-level prohibitions on large-capacity magazines have been shown to reduce the frequency and lethality of the deadliest mass shootings-strong evidence that regional and local legislation can be effective. A peer-reviewed study published in the American Journal of Public Health found that “states without an LCM ban experienced significantly more high-fatality mass shootings and a higher death rate from such incidents,” seeing more than double the number of such shootings and three times the number of deaths from high- fatality mass shootings, as compared to states that ban large-capacity magazines.
S. Survey data and gun-industry supplied statistics suggest that, at most, only a small fraction of IS. gun owners possess semiautomatic assault rilles and private ownership of these weapons is concentrated in the hands of super-owners who have 10 or more firearms.
T. The nation has a historical tradition of regulating weapons that are unusual and dangerous, and this tradition supports the adoption of regulations that prohibit the carrying of dangerous and unusual weapons. N.Y. State Rifle & Pistol Ass'n v. Bruen, 142 S.Ct. 2111 (2022); Dist. of Columbia v. Heller, 554 U.S. 570 (2008).
S Because assault weapons, trigger activators, and large-capacity magazines are designed for and have repeatedly been used to inflict mass casualties and enable other violent crimes, and the fact that these weapons and accessories are ill-suited to and unnecessary for responsible self-defense, and are not chosen or used by most law-abiding gun owners for this purpose, the Board of County Commissioners of Boulder County finds that it is in the best interests of the health, safety, and welfare of Boulder C ounty residents to prohibit the sale, manufacture, and transfer of assault weapons, rapid-fire trigger activators, and large-capacity magazines.
V. Pursuant to Section 30-11-101(2) of the Colorado Revised Statutes, a county has the authority to adopt and enforce ordinances regarding issues of health, safety, and welfare.
W. Pursuant to Section 29-11.7-103 of the Colorado Revised Statutes, a county has the authority to adopt and enforce ordinances regulating the sale, purchase, transfer and possession of firearms.
BE IT ORDAINED, by the Board of County Commissioners of Boulder County, the following:
SECTION 1. DEFINITIONS
(a) “Assault weapon” means any:
(1) Semiautomatic center-fire rifle that has the capacity to accept a detachable magazine and has one or more of the following characteristics:
(i) A pistol grip or thumbhole stock;
(ii) Any feature capable of functioning as a protruding grip that can be held by the non-trigger hand;
(iii) A folding or telescoping stock;
(iv) A flash suppressor;
(v) A shroud attached to the barrel, or that partially or completely encircles the barrel, allowing the bearer to hold the firearm with the non-trigger hand without being burned, but excluding a slide that encloses the barrel.
(2) Semiautomatic center-fire pistol that has the capacity to accept a detachable ammunition feeding device and any one of the following:
(i) A threaded barrel;
(ii) A second pistol grip, or second other feature capable of functioning as a protruding grip that can be held by the non-trigger hand;
(iii) A shroud attached to the barrel, or that partially or completely encircles the barrel, allowing the bearer to hold the firearm with the non-trigger hand without being burned, but excluding a slide that encloses the barrel;
(iv) A flash suppressor;
(v) The capacity to accept a detachable ammunition feeding device at some-location outside of the pistol grip;
(vi) A manufactured weight of 50 ounces or more when unloaded; or
(vii) A buffer tube, arm brace, or other part that protrudes horizontally behind the pistol grip.
(3) Semiautomatic center-fire pistol with a fixed magazine that has the capacity to accept more than 10 rounds.
(4) Semiautomatic shotgun that has one or more of the following features:
(i) A pistol grip or thumbhole stock;
(ii) Any feature capable of functioning as a protruding grip that can be held by the non-trigger hand;
(iii) A folding or telescoping stock;
(iv) A fixed magazine capacity in excess of 5 rounds; or
(v) An ability to accept a detachable magazine.
(5) Any firearm that has been modified to be operable as an assault weapon as defined herein;
(6) Any part or combination of parts designed or intended to convert a firearm into an assault weapon, including any combination of parts from which an assault weapon
may be readily assembled if those parts are in the possession or under the control of the same person.
(b) “Assault weapon” does not include any firearm that has been made permanently inoperable, an antique firearm manufactured before 1899, or a replica of an antique firearm.
(c) “Large-capacity magazine” or “LCD” means any ammunition feeding device with the capacity to accept more than 10 rounds, but shall not be construed to include any of the following:
(1) A feeding device that has been permanently altered so that it cannot accommodate more than 10 rounds.
(2) A .22 caliber tube ammunition feeding device.
(3) A tubular magazine that is contained in a lever-action firearm.
(d) “Rapid-fire trigger activator” means any device, including a removable manual or power-driven activating device, constructed so that, when installed in or attached to a semiautomatic firearm:
(1) the rate at which the trigger is activated substantially increases; or
(2) the rate of fire substantially increases.
SECTION 2. PROHIBITION ON SELLING AND PURCHASING ASSAULT WEAPONS, LARGE-CAPACITY MAGAZINES, OR RAPID-FIRE TRIGGER ACTIVATORS
(a) No person, corporation or other entity in unincorporated Boulder County may manufacture, import, purchase, sell or transfer any assault weapon, large-capacity magazine, or rapid-fire trigger activator.
(b) Section (a) shall not apply to:
(1) Any government officer, agent, or employee, member of the armed forces of the United States; or peace officer, to the extent that such personas otherwise authorized to acquire or possess an assault weapon and/or large-capacity magazine, and does so while acting within the scope of his or her duties; or
(2) The manufacture of an assault weapon or large-capacity magazine for the purpose of sale to any branch of the armed forces of the United States, or to a law enforcement agency in unincorporated Boulder County for use by that agency or its employees, provided the manufacturer is properly licensed under federal, state and local laws.
(3) The sale or transfer of an assault weapon or large-capacity magazine by a dealer that is properly licensed under federal, state and local laws to any
branch of the armed forces of the United States, or to a law enforcement agency in unincorporated Boulder County for use by that agency or its employees for law enforcement purposes.
(4) The transfer of an assault weapon to a licensed gunsmith for the purpose of lawful repair.
(5) The transfer of an assault weapon, large-capacity magazine, or trigger activator to the Boulder County Sheriffs Office for the purpose of surrendering the weapon. LCD or trigger activator.
SECTION 3. VIOLATIONS AND PENALTIES
Any violation of this ordinance by a person who knew or reasonably should have known that their conduct was prohibited is a misdemeanor and upon conviction shall be punished by a fine of not more than one thousand dollars, by incarceration of up to one year in jail, or by both such fine and incarceration.
SECTION 4. SEVERABILITY
If any section, clause, sentence, or pail of this ordinance is adjudged by any court of competent jurisdiction to be invalid, such invalidity shall not affect, impair, or invalidate the other provisions of this ordinance which can be given effect without such invalid provision.
SECTION 5. SAFETY CLAUSE
This ordinance shall take effect immediately upon its adoption. This ordinance is necessary to protect the public health, safety, and welfare of the residents of the county due in part to the need to control the activity subject to this ordinance as soon as possible.
ADOPTED WITH AMENDMENTS ON SECOND AND FINAL READING at a public hearing on.
THE BOARD OF COMMISSIONERS OF THE COUNTY OF BOULDER. COLORADO
Marta Loachamin, Chair.
CERTIFICATION AND ATTESTATION
I. Molly Fitzpatrick, Boulder County Clerk and Recorder, do hereby certify that the foregoing Ordinance No. 2022-5. entitled “AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS OF BOULDER COUNTY, COLORADO PROHIBITING THE SALE AND PURCHASE OF ASSAULT WEAPONS, LARGE CAPACITY MAGAZINES, AND TRIGGER ACTIVATORS is a true, correct and complete copy from the records in my office, that said ordinance was duly adopted by the Board of County Commissioners of the County of Boulder. The first reading of Ordinance 2022-5 took place on July 5. 2022. at a regular Board of County Commissioners Meeting. It was published in full in the Boulder Daily Camera on July 8. 2022. The Ordinance was adopted with amendments on second reading al a public hearing held before the Board of County Commissioners on August 2, 2022. Further, one (I) copy of the Ordinance is now filed in the office of the Clerk and Recorder for the County of Boulder. Colorado, and may be inspected during regular business hours.