Professional Documents
Culture Documents
Caldara Et Al vs. City of Boulder
Caldara Et Al vs. City of Boulder
JON C. CALDARA;
BOULDER RIFLE CLUB, INC., a Colorado nonprofit corporation;
GENERAL COMMERCE, LLC, d/b/a Bison Tactical, a Wyoming limited liability company; and
TYLER FAYE,
Plaintiffs,
v.
Defendants.
COMPLAINT
Plaintiffs, Jon C. Caldara (“Caldara”); Boulder Rifle Club, Inc. (the “Club”); General
Commerce, LLC, d/b/a Bison Tactical (“Bison Tactical”); and Tyler Faye (“Faye”), by and
through their attorneys, Mountain States Legal Foundation, by Cody J. Wisniewski and Sean P.
Smith, hereby bring this action against Defendants, City of Boulder (“Boulder”); Jane S.
Brautigam, City Manager of the City of Boulder, in her official capacity (“Brautigam”); Gregory
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Testa, Chief of Police of the City of Boulder, in his official capacity (“Testa”); Suzanne Jones,
Mayor of the City of Boulder, in her official capacity (“Jones”); Aaron Brockett, Mayor Pro Tem
of the City of Boulder, in his official capacity (“Brockett”); Cynthia A. Carlisle, Boulder City
Council Member, in her official capacity (“Carlisle”); Lisa Morzel, Boulder City Council Member,
in her official capacity (“Morzel”); Mirabai Kuk Nagel, Boulder City Council Member, in her
official capacity (“Nagle”); Samuel P. Weaver, Boulder City Council Member, in his official
capacity (“Weaver”); Robert Yates, Boulder City Council Member, in his official capacity
(“Yates”); Mary D. Young, Boulder City Council Member, in her official capacity (“Young”); Jill
Adler Grano, Boulder City Council Member, in her official capacity (“Grano”); and J. Does 1–10
INTRODUCTION
1. On May 15, 2018, the Boulder City Council voted 9–0 to approve Ordinance 8245,
banning some of the most popular firearms and magazines in use by law-abiding citizens across
the United States. In addition, Ordinance 8245 raised the age for legal firearm purchase and
possession from eighteen to twenty-one years of age. Upon passage, Ordinance 8245 immediately
became law in the City of Boulder, thereby infringing upon the rights of all of Boulder’s 108,707
residents.
2. Ordinance 8245 and the actions of Defendants violate multiple provisions of the
U.S. Constitution, including Article VI, the First Amendment, the Second Amendment, the Fifth
3. Ordinance 8245 and the actions of Defendants violate multiple provisions of the
Colorado State Constitution, including Article 2, section 3 and Article 2, section 13.
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4. Ordinance 8245 and the actions of Defendants violate multiple Colorado State
5. Plaintiffs intend and desire to continue to acquire, possess, use, sell, and/or transfer
6. This Court has original jurisdiction over this matter pursuant to 28 U.S.C. § 1331,
because a majority of Plaintiffs’ claims arise under the Constitution of the United States of
7. This Court has jurisdiction under 28 U.S.C. § 1343(a)(3) and 42 U.S.C. § 1983
because this action seeks redress for the deprivation of constitutionally protected rights by those
8. This Court has jurisdiction to grant the declaratory relief sought, pursuant to 18
9. This Court has jurisdiction over Plaintiffs’ claims for attorneys’ fees pursuant to 42
U.S.C. § 1988.
substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in this district.
PARTIES
I. Plaintiffs
11. Plaintiff Jon C. Caldara is a resident of the City of Boulder, Colorado, and a law-
abiding citizen of the United States. Caldara currently owns one or more firearms, in compliance
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with state and federal law, that are banned under Ordinance 8245, one or more of which he has
12. Caldara owns one or more magazines that are capable of accepting more than 10
rounds, in compliance with federal and state law, that are banned under Ordinance 8245, one or
14. Caldara intends to continue possessing his lawfully owned property, to acquire
additional property implicated by Ordinance 8245, and to devise or transfer his lawfully owned
property to his children or others. But for Boulder’s restrictions on certain types of firearms and
magazines, Caldara would continue possessing his lawfully-owned property, acquiring property
that is banned by Ordinance 8245, and devising or otherwise transferring it to his children or others.
15. Plaintiff Boulder Rifle Club, Inc. is a Colorado nonprofit corporation and donor-
supported organization, qualified as tax-exempt under 26 U.S.C. § 501(c)(4), with its headquarters
located in Boulder, Colorado. The Club incorporated in the State of Colorado in 1961 but was
organized in 1923 as the successor to the Boulder Gun Club, which was in existence prior to 1889.
16. The Club is dedicated to education regarding, and in promotion of, the shooting
17. The Club promotes marksmanship, safe handling, and proper care of firearms. The
Club also promotes tolerance, inclusion, fellowship, self-discipline, team play, and self-reliance.
18. The Club, by its bylaws, is required to actively support the constitutional right of
19. The Club regularly provides, through its classes, information about Colorado state
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20. In this suit, the Club represents both itself, as an organization, and the interests of
its members.
21. Specifically, the Club has expended, and will continue to expend, resources by
researching, evaluating, and preparing for the effects of Ordinance 8245. Additionally, the Club
has expended, and will continue to expend, resources in communicating with Club members and
other members of the community about their rights under, and the effects of, Ordinance 8245. But
for Boulder City Council’s passage of Ordinance 8245, the Club could have dedicated these
22. The Club also represents its hundreds of members, who reside in Colorado,
including within Boulder city limits, and who are too numerous to conveniently bring this action
individually. The Club represents the interests of those members who are affected by Ordinance
8245. Those members intend to continue possessing their lawfully owned property, to acquire
additional property banned by Ordinance 8245, and to devise and/or transfer their lawfully owned
property to their children or other parties. But for Boulder’s restrictions on certain types of
firearms and magazines, those members would continue possessing their lawfully owned property,
acquiring property that is banned by Ordinance 8245, and devising or otherwise transferring it to
23. Plaintiff General Commerce, LLC, d/b/a Bison Tactical, is a Wyoming limited
liability company registered to do business in the State of Colorado, with its principal place of
24. Bison Tactical purchases, owns, sells, and transfers firearms and magazines that are
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25. Bison Tactical intends to continue possessing its lawfully owned property,
acquiring additional property banned by Ordinance 8245, and selling and/or transferring its
lawfully acquired property to its customers. But for Boulder’s restrictions on the ownership,
purchase, sale, and transfer of certain types of firearms and magazines, Bison Tactical would
continue possessing its lawfully owned property, acquiring property banned by Ordinance 8245,
26. Plaintiff Tyler Faye is a resident of the City of Boulder, Colorado, is a law-abiding
27. Faye currently owns one or more firearms, in compliance with state and federal
28. Faye currently owns one or more firearms, in compliance with state and federal
law, that are not banned under Ordinance 8245, but that Faye is barred from possessing due to his
age, one or more of which he has lawfully owned for an extended period of time and which he
29. Faye currently owns one or more magazines that are capable of accepting more than
10 rounds, in compliance with federal and state law, that are banned under Ordinance 8245, one
31. Faye intends to continue possessing his lawfully owned property, to acquire
additional property banned by Ordinance 8245, and to devise or transfer his lawfully owned
property to his relatives or other interested parties. But for Boulder’s restrictions on certain types
of firearms and magazines, Faye would continue possessing his lawfully owned property,
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acquiring property banned by Ordinance 8245, and devising or otherwise transferring that property
32. Faye intends to continue possessing his lawfully owned property, that is not banned
under Ordinance 8245, but that Faye is barred from possessing due to his age, to acquire additional
such property, and to devise or transfer his lawfully owned property to his relatives or other
interested parties. But for Boulder’s restrictions on all firearms and magazines based on age, Faye
would continue possessing his lawfully owned property, acquiring property banned by Ordinance
8245, and devising or otherwise transferring that property to his relatives or other interested
parties.
II. Defendants
33. Defendant City of Boulder is a home rule municipality located in the State of
Colorado.
34. Boulder has a city code, the Boulder Revised Code, which contains all of its
municipal ordinances.
35. The Boulder Revised Code provides a penalty for each individual violation of the
code, including violations of the provisions of Ordinance 8245, consisting of fines of up to $1,000,
36. The Boulder Revised Code, as amended by the passage of Ordinance 8245, contains
provisions that violate the U.S. Constitution, the Constitution of the State of Colorado, and
37. Defendant Jane S. Brautigam is the City Manager of the City of Boulder. The City
Manager is the chief executive and administrative officer of the City of Boulder. Brautigam’s
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duties include overseeing the enforcement of all city ordinances. Brautigam is being sued in her
official capacity.
38. Defendant Gregory Testa is the Chief of Police for the City of Boulder. Testa is
the chief law enforcement officer of the City of Boulder. Testa has direct supervision over all law
enforcement officers in the City of Boulder in all matters pertaining to their official duties. Testa
39. Defendant Suzanne Jones is the Mayor of the City of Boulder and sits on the
40. Jones, under color of state and municipal law, voted in favor of passing Ordinance
42. Defendant Aaron Brockett is the Mayor Pro Tem of the City of Boulder and sits on
43. Brockett, under color of state and municipal law, voted in favor of passing
Ordinance 8245, thereby violating the constitutionally protected rights of the Plaintiffs.
45. Defendant Cynthia A. Carlisle is a member of the Boulder City Council and sits
46. Carlisle, under color of state and municipal law, voted in favor of passing
Ordinance 8245, thereby violating the constitutionally protected rights of the Plaintiffs.
48. Defendant Lisa Morzel is a member of the Boulder City Council and sits thereon
as a voting member.
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49. Morzel, under color of state and municipal law, voted in favor of passing Ordinance
51. Defendant Mirabai Kuk Nagle is a member of the Boulder City Council and sits
52. Nagle, under color of state and municipal law, voted in favor of passing Ordinance
54. Defendant Samuel P. Weaver is a member of the Boulder City Council and sits
55. Weaver, under color of state and municipal law, voted in favor of passing
Ordinance 8245, thereby violating the constitutionally protected rights of the Plaintiffs.
57. Defendant Robert Yates is a member of the Boulder City Council and sits thereon
as a voting member.
58. Yates, under color of state and municipal law, voted in favor of passing Ordinance
60. Defendant Mary D. Young is a member of the Boulder City Council and sits thereon
as a voting member.
61. Young, under color of state and municipal law, voted in favor of passing Ordinance
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63. Defendant Jill Adler Grano is a member of the Boulder City Council and sits
64. Grano, under color of state and municipal law, voted in favor of passing ordinance
66. The true names and capacities, whether individual, corporate, associate, or
otherwise, of the Defendants named herein as J. Does 1–10 are presently unknown to Plaintiffs
and are therefore sued under these fictitious names. Plaintiffs will seek leave from the Court to
amend this Complaint at the appropriate time to show the true names and capacities of these
68. Defendants are currently and/or are presently able to enforce Boulder’s restrictions
on firearms under color of state law within the meaning of 42 U.S.C. § 1983.
70. Defendants are currently and/or are presently able to enforce Boulder’s restrictions
on magazines under color of state law within the meaning of 42 U.S.C. § 1983.
enforcing Boulder’s restrictions on firearm possession and ownership based on age, which are at
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72. Defendants are currently and/or are presently able to enforce Boulder’s restrictions
on firearm possession and ownership based on age under color of state law within the meaning of
42 U.S.C. § 1983.
74. The Second Amendment to the United States Constitution memorializes the right
of self-defense.
necessary to the security of a free State, the right to keep and bear arms shall not be infringed.”
77. The Second Amendment applies to the states via the Supremacy Clause. U.S.
This Constitution, and the Laws of the United States which shall be made in
Pursuance thereof; and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the Constitution or Laws
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79. Current U.S. law defines the militia as able-bodied men older than 17 years of age,
80. The militia, as defined in 10 U.S.C. § 246(a), is the same militia referenced in the
Second Amendment.
81. The “Arms” referenced in and protected by the Second Amendment are those
“typically possessed by law-abiding citizens for lawful purposes.” District of Columbia v. Heller,
544 U.S. 570, 624–25 (2008); McDonald v. City of Chicago, 561 U.S. 742, 767 (2010).
82. The Second Amendment “extends, prima facie, to all instruments that constitute
bearable arms, even those that were not in existence at the time of founding.” Heller, 544 U.S. at
582.
83. Self-defense is “the central component” of the Second Amendment. Heller, 544
American society for [the] lawful purpose” of self-defense is unconstitutional, especially when
that prohibition extends “to the home, where the need for defense of self, family, and property is
85. The Second Amendment applies “with full force to both the Federal Government
and the States,” through incorporation under the Due Process Clause of the Fourteenth
86. The right to keep and bear arms, protected by the Second Amendment, also applies
to the states via the Privileges or Immunities Clause of the Fourteenth Amendment. McDonald,
561 U.S. at 806 (Thomas, C. concurring). “[T]he right to keep and bear arms is a privilege of
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American citizenship that applies to the States thought the Fourteenth Amendment’s Privileges or
87. The Second Amendment protects firearms in “common use,” which “could
contribute to the common defense.” United States v. Miller, 307 U.S. 174, 178–179 (1939).
88. Detachable magazines are an integral part of “Arms,” and thus, are protected by the
Second Amendment.
89. Detachable magazines are typically possessed by law-abiding citizens for lawful
90. Detachable magazines are in common use and contribute to the common defense.
91. The Due Process Clause of the Fifth Amendment provides as follows: “No person
shall . . . be deprived of life, liberty, or property, without due process of law.” U.S. CONST. Amend.
V.
92. The Due Process Clause of the Fourteenth Amendment provides as follows: “[N]or
shall any State deprive any person of life, liberty, or property without due process of law.” U.S.
93. “The touchstone of due process is protection of the individual against arbitrary
94. An action by the government that deprives an individual of their property rights
95. Regulations that retroactively make lawful actions or conduct unlawful after the
fact are especially likely to violate the Due Process Clause. E. Enterprs. v. Apfel, 524 U.S. 498,
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548–49 (Kennedy, J., concurring in part and dissenting in part). “If retroactive laws change the
legal consequences of transactions long closed, the change can destroy the reasonable certainty
and security which are the very objects of property ownership. As a consequence, due process
protection for property must be understood to incorporate our settled tradition against retroactive
96. The Takings Clause of the Fifth Amendment provides as follows: “. . . nor shall
private property be take for public use, without just compensation.” U.S. CONST. Amend. V.
98. “When the government physically takes possession of an interest in property for
some public purpose, it has a categorical duty to compensate the former owner.” Tahoe-Sierra
Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 322 (2002). This applies to
both real and personal property. See Horne v. Dept. of Agriculture, 135 S. Ct. 2419, 2427 (2015).
100. When a government regulation “interferes with legitimate property interests,” there
is a high likelihood the regulation constitutes a taking, for which the governmental entity must
provide compensation. Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 540 (2005) (citing Penn Cent.
101. The complete elimination of private property’s total value constitutes a taking.
Lucas v. South Carolina Costal Council, 505 U.S. 1003, 1017 (1992) (“[T]otal deprivation of
beneficial use is, from the landowner’s point of view, the equivalent of a physical appropriation.”).
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102. The right to devise property is a valuable stick in the bundle that is property rights
and has been since feudal times. Hodel v. Irving, 481 U.S. 704, 718 (1987). “[C]omplete abolition
of both the descent and devise of a particular class of property may be a taking.” Id., 481 U.S.
103. The Equal Protection Clause of the Fourteenth Amendment provides as follows:
“No State shall . . . deny any person within its jurisdiction the equal protection of the laws.” U.S.
104. Treating one class of persons differently than another similar class constitutes a
105. Interfering with the exercise of fundamental rights and liberties protected by the
San Antonio Independent School Dist. v. Rodriquez, 411 U.S. 1, 37–38 (1973).
106. At eighteen years of age, a United States citizen can: vote in a federal election, join
the U.S. military without guardian permission, and die in combat for his or her country.
107. At eighteen years of age, a United States citizen can purchase a firearm.
108. At eighteen years of age, a Colorado resident can, among other things, vote in a
state election, enter into a legally binding contract, manage an estate, and purchase tobacco and
tobacco products.
110. The minimum age to vote in a Boulder municipal election is eighteen years old.
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112. The First Amendment provides as follows: “Congress shall make no law . . .
113. The First Amendment applies to the various States through incorporation under the
114. The First Amendment prohibits the government from infringing upon the freedom
of speech of persons within the jurisdiction of the United States, including U.S. citizens.
116. Requiring a person to provide the government with sensitive personal information
speech.
follows: “No State shall make or enforce any law which shall abridge the privileges or immunities
118. In addition to be an unalienable, natural, and fundamental right, the right to keep
119. A deprivation of the privilege of the right to keep and bear arms violates the
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120. “The right of no person to keep and bear arms in defense of his home, person and
property, or in aid of the civil power when thereto legally summoned, shall be called in question .
121. The right to keep and bear arms memorialized in the Colorado Constitution is clear
and unambiguous.
122. The Colorado Constitution was adopted pursuant to the Enabling Act of 1875,
which required the state constitution to “not be repugnant to the constitution [sic] of the United
States and the principles of the declaration of independence [sic].” Enabling Act of 1875, 18 Stat.
474 (1875).
123. The right to keep and bear arms protected by the Colorado Constitution is the same
unalienable, natural, and fundamental right protected by the Second Amendment of the U.S.
124. The right to keep and bear arms protected by the Colorado Constitution applies to
arms that are typically possessed by lawful citizens for lawful purposes, one of which is self-
defense.
125. The right to keep and bear arms protected by the Colorado Constitution applies to
arms in “common use,” and that can contribute to the “common defense.”
b. “Inalienable” Rights
126. “All persons have certain natural, essential and inalienable rights, among which
may be reckoned the right of enjoying and defending their lives and liberties; of acquiring,
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possessing and protecting property; and of seeking and obtaining their safety and happiness.”
128. The Colorado Constitution was adopted pursuant to the Enabling Act of 1875,
which required the state constitution to “not be repugnant to the constitution [sic] of the United
States and the principles of the declaration of independence [sic] Enabling Act of 1875, 18 Stat.
474 (1875).
129. Two of the “inalienable rights” protected by the Colorado Constitution are the right
130. Both the right of self-defense and the right to defend one’s property, in addition to
being protected by the Colorado Constitution, are also protected by the Second Amendment.
131. The right of self-defense and the right to defend one’s property protect the right of
Colorado residents to use the common tools of the time to effectuate that defense.
“A local government, including a law enforcement agency, shall not maintain a list or other
form of record or database of:
(a) Persons who purchase or exchange firearms or who leave firearms for repair
or sale on consignment;
(b) Persons who transfer firearms, unless the persons are federally licensed
firearms dealers;
(c) The descriptions, including serial numbers, of firearms purchased,
transferred, exchanged, or left for repair or sale on consignment.”
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agency from maintaining any list or form of record that could be used to identify firearms in the
particular firearm by a Colorado resident would constitute a violation of the Colorado Registration
Prohibition.
136. A receipt that indicates a payment, the payee, and the form of payment constitutes
local government may not enact an ordinance, regulation, or other law that prohibits the sale,
purchase, or possession of a firearm that a person may lawfully sell, purchase, or possess under
enacting any ordinance that prohibits the sale, purchase, or possession of a lawfully sold,
141. The Colorado Preemption Statute, by its clear an unambiguous language, does not
require the subject matter of the ordinance to be occupied by state or federal law.
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142. If a firearm can be legally sold, purchased, or possessed under federal law, a
municipality cannot enact an ordinance prohibiting the sale, purchase, or possession of that
firearm.
143. If a magazine can be legally sold, purchased, or possessed under federal law, a
municipality cannot enact an ordinance prohibiting the sale, purchase, or possession of that
firearm.
144. If a firearm can be legally sold, purchased, or possessed under Colorado State law,
a municipality cannot enact an ordinance prohibiting the sale, purchase, or possession of that
firearm.
145. If a magazine can be legally sold, purchased, or possessed under Colorado State
law, a municipality cannot enact an ordinance prohibiting the sale, purchase, or possession of that
firearm.
146. On May 15, 2018, the Boulder City Council members, under color of law, voted by
a 9–0 margin in favor of adopting Ordinance 8245 imposing additional firearm restrictions in the
149. Ordinance 8245 redefines the nebulous term “assault weapon” under B.R.C. 1981
§ 5-8-2 as follows:
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(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; or
(3) Any protruding grip or other device to allow the weapon to be
stabilized with the non-trigger hand.
(b) All semi-automatic center-fire pistols that have any of the following
characteristics:
(1) Have the capacity to accept a magazine other than in the pistol grip;
or
(2) Have a secondary protruding grip or other device to allow the
weapon to be stabilized with the non-trigger hand.
(c) All semi-automatic shotguns that have any of the following characteristics:
(1) A pistol grip or thumbhole stock;
(2) Any feature capable of functioning as a protruding grip that can be
held by the non-trigger hand;
(3) A folding or telescoping stock;
(4) A fixed magazine capacity in excess of 5 rounds; or
(5) 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.”
150. On May 1, 2018, Defendant Weaver indicated, at a public council meeting, that the
definition contained in B.R.C. 1981 § 5-8-2(c) was provided to the Boulder City Council by the
151. Ordinance 8245 redefines the nebulous term “illegal weapon” in B.R.C. 1981 § 5-
8-2 as follows: “an assault weapon, large-capacity magazine, multi-burst trigger activator,
152. Ordinance 8245 adds a definition to B.R.C. 1981 § 5-8-2 for the nebulous term
“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:
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(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; or
(d) A pistol magazine designed to fit into a pistol grip that has a capacity to
hold no more than 15 rounds.”
153. Ordinance 8245 redefines a “minor,” under Chapter 8 of the code, as “a person
154. Ordinance 8245 adds a definition for the nebulous term “pistol grip,” to B.R.C.
1981 § 5-8-2 that reads as follows: “a grip that protrudes 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.”
155. Ordinance 8245 adds a definition for the often-misunderstood term “semi-
automatic,” to B.R.C. 1981 § 5-8-2 that reads as follows: “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.”
156. Ordinance 8245 amends B.R.C. 1981 § 5-8-10, "Possession and Sale of Illegal
“(a) No person shall knowingly possess or sell or otherwise transfer an illegal weapon.
...
(c) 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 weapon for which the United States Government has
issued a stamp or permit pursuant to the National Firearms Act;
(3) From possessing a handgun magazine so long as the possession of the
handgun and magazine are in compliance with state law; or
(4) Selling an illegal weapon to a person identified in Section 5-8-25,
“Exemptions from this Chapter,” B.R.C. 1981.
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(d) 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.
. . . .”
157. Ordinance 8245 amends B.R.C. 1981 § 5-8-25, “Exemptions from Chapter,” to read
as follows:
“The following individuals are exempt from the provisions of this Chapter:
(a) Any officer of the United States, including but not limited to federal agents and
United States Marshals, any sheriffs, constables and their deputies; any regular or
ex-officio police officer; any other peace officers; or members of the United States
Armed Forces, Colorado National Guard or Reserve Officer Training Corps form
having in their possession, displaying, concealing or discharging such weapons as
are necessary in the authorized and proper performance of their official duties; or
(b) Any person authorized to carry a concealed weapon under the Federal Law
Enforcement Officers Safety Act.”
158. Ordinance 8245 adds a new section, § 5-8-28, “Assault Weapons,” to read as
follows:
(a) Any person who, prior to June 15, 2018, was legally in possession of an
assault weapon [sic] large capacity magazine shall have until December 31,
2018 to do any of the following without being subject to prosecution:
(1) Remove the assault weapon or large capacity magazine from the
City of Boulder;
(2) Render the assault weapon permanently inoperable;
(3) Surrender the assault weapon or large capacity magazine to the
Boulder Police Department for destruction; or
(4) If eligible, obtain a certificate for the assault weapon as provided in
subsection (c).
...
(c) Any person seeking to certify an assault weapon that he or she legally
possessed prior to June 15, 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 to
possess a firearm pursuant to 18 U.S.C. § 922 or C.R.S § 18-12-108;
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159. Defendant Yates, in public council session on May 15, 2018, referred to the
160. Defendant Young, in public council session on May 15, 2018, referred to the
161. Defendant Weaver, in public council session on May 15, 2018, referred to the
162. Defendant Grano, in public council session on May 15, 2018, repeatedly and
163. Ordinance 8245, by amending the definition of a minor to anyone under twenty-
one years of age, affects a number of existing provisions of the Boulder Revised Code.
164. Ordinance 8245 makes it illegal for any person to provide any firearm to any person
165. Ordinance 8245 makes it illegal for any person under twenty-one years of age to
167. Plaintiffs contend that Ordinance 8245 and the actions of Defendants: (1) infringe
on Plaintiffs’ right to keep and bear arms protected by the Second Amendment, as applicable to
the States under the Supremacy Clause of the Constitution, the Due Process Clause of the
Fourteenth Amendment, and/or the Privileges or Immunities Clause of the Fourteenth amendment;
(2) violate Plaintiffs’ due process rights, as protected by the Due Process Clauses of the Fifth and
Fourteenth Amendments; (3) constitute a taking, for which no compensation has been or is to be
paid, in violation of the Takings Clause of the Fifth Amendment; (4) violate the Equal Protection
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Clause of the Fourteenth Amendment; (5) violate the First Amendment; (6) infringe on Plaintiffs’
right to keep and bear arms, as protected by the Colorado Constitution; (7) infringe on Plaintiffs’
inalienable rights, as protected by the Colorado Constitution; (8) violate the Colorado Registration
Prohibition statute; (9) are preempted by federal law, pursuant to the Colorado Preemption Statute;
and (10) are preempted by state law, pursuant to the Colorado Preemption Statute.
168. Plaintiffs request a judicial declaration that Boulder City Ordinance 8245 violates
Plaintiffs’ constitutionally protected rights under the U.S. Constitution and the Colorado
169. Without such a declaration, Plaintiffs will be forced to choose between not
170. Plaintiffs are currently and will continually be injured by Defendants’ enforcement
of Boulder City Ordinance 8245 because of the harms stated in paragraph 167.
171. Plaintiffs are unable to legally purchase, possess, sell, or otherwise transfer the
firearms and magazines banned by Ordinance 8245, which are commonly owned by law-abiding
citizens for lawful purposes, such as self-defense, and which contribute to the common defense.
172. Plaintiff Faye is unable to legally purchase, posses, sell, or otherwise transfer any
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175. Damages would not fully redress the harms suffered by Plaintiffs at the hands of
Defendants.
COUNT I
Violation of the Second Amendment – Plaintiff Caldara
176. Plaintiff Caldara hereby restates and realleges each and every one of the foregoing
177. Caldara has a natural right to self-defense and a fundamental right to keep and bear
arms.
Amendment.
179. Caldara’s Second Amendment protected rights apply to the State of Colorado under
180. Caldara’s Second Amendment protected rights apply to the State of Colorado under
181. Caldara’s Second Amendment protected rights apply to the State of Colorado via
183. Ordinance 8245 and the actions of the Defendants infringe upon Caldara’s right to
self-defense and to keep and bear arms as protected by the clear and unambiguous meaning of the
184. Caldara has one or more firearms and magazines that are banned by Ordinance
8245.
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185. These firearms and magazines are some of the most widely used self-defense tools
by U.S. citizens for the lawful purpose of self-defense, in addition to the defense of his family,
186. Ordinance 8245 and the actions of the Defendants infringe upon Caldara’s
constitutionally protected right to keep and bear arms according to the Supreme Court’s
187. These firearms and magazines are the most widely used self-defense tools by U.S.
188. Ordinance 8245 and the actions of the Defendants infringe upon Caldara’s
constitutionally protected right to keep and bear arms according to the Supreme Court’s
COUNT II
Violation of the Due Process Clause – Plaintiff Caldara
189. Plaintiff Caldara hereby restates and realleges each and every one of the foregoing
190. Caldara has owned, and continues to own, firearms and magazines that are now
banned under Ordinance 8245 and has for an extended period of time.
191. Ordinance 8245 and the actions of the Defendants deprive Caldara of the lawful
possession, use, sale, transfer, or devise of those lawfully acquired and possessed firearms and
192. Even if there were a legitimate government objective, that objective cannot
outweigh the deprivation of the fundamental right to keep and bear arms and/or the natural right
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193. Ordinance 8245 and the actions of the Defendants retroactively ban property that
was lawfully acquired and possessed under federal and state law, which deprives Caldara of his
194. Ordinance 8245 and the actions of Defendants prohibit Caldara from acquiring
additional property banned by its terms, which can be lawfully acquired, possessed, used, sold,
and transferred under state and federal law, without due process of law.
COUNT III
Violation of the Takings Clause – Plaintiff Caldara
195. Plaintiff Caldara hereby restates and realleges each and every one of the foregoing
196. Caldara has owned, and continues to own, firearms and magazines that are now
banned under Ordinance 8245 and has for an extended period of time.
197. Ordinance 8245 and the actions of Defendants now make it a crime for Caldara to
possess, use, sell, transfer, or devise that property, which was lawfully acquired and is lawfully
possessed.
198. Ordinance 8245 and the actions of Defendants force Caldara to surrender his
lawfully acquired and lawfully owned property, which he would otherwise keep and possess,
199. Ordinance 8245 and the actions of Defendants deprive Caldara of the essential
property rights he has in connection with his lawfully acquired and lawfully possessed firearms
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200. Ordinance 8245 and the actions of Defendants, by depriving Caldara of the right to
possess, use, sell, and transfer his lawful property, without any government compensation,
201. Ordinance 8245 and the actions of Defendants deprive Caldara of the right to pass
202. Ordinance 8245 and the actions of Defendants, by depriving Caldara of the right to
devise his lawful property, without any government compensation, constitute a regulatory taking.
COUNT IV
Violation of the First Amendment – Plaintiff Caldara
203. Plaintiff Caldara hereby restates and realleges each and every one of the foregoing
204. Ordinance 8245 requires Caldara, should he wish to retain his lawfully acquired
and lawfully possessed firearms, subject to the ban, to register each such firearm with the City of
205. Caldara would be required to provide the Boulder Police Department with his
206. Ordinance 8245 and the actions of Defendants compel Caldara to speak to the
Boulder Police Department and provide information about a banned, but currently exempted,
firearms.
207. Ordinance 8245 and the actions of Defendants violate the First Amendment, by
Department.
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COUNT V
Violation of the Privileges or Immunities Clause – Plaintiff Caldara
208. Plaintiff Caldara hereby restates and realleges each and every one of the foregoing
209. Caldara has the privilege, by virtue of being a U.S. citizen, of the right to keep and
bear arms, as memorialized in and protected by the Second Amendment, and inherent in U.S.
citizenship.
210. As fully demonstrated above in Count I, supra, Ordinance 8245 and the actions of
Defendants deprive Caldara of his right to keep and bear arms, as protected by the Second
Amendment, and as interpreted by the Supreme Court in Heller, McDonald, and Miller.
211. Ordinance 8245 and actions of Defendants deprive Caldara of a privilege of U.S.
COUNT VI
Violation of Article 2, § 13 of the Colorado Constitution – Plaintiff Caldara
212. Plaintiff Caldara hereby restates and realleges each and every one of the foregoing
213. Caldara has a natural right to self-defense and a fundamental right to keep and bear
arms.
Constitution.
215. Ordinance 8245 and the actions of Defendants infringe upon Caldara’s right to self-
defense and right to keep and bear arms as protected by the Colorado Constitution, and thus are
unconstitutional.
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216. Given that the Colorado Constitution was adopted pursuant to the Enabling Act and
in compliance with the U.S. Constitution and Bill of Rights, the right to keep and bear arms
protected in the Colorado Constitution is the same as that protected by the U.S. Constitution.
217. The Supreme Court’s interpretation of the right, as articulated in Heller and
218. As explained in Count I, supra, Ordinance 8245 and the actions of Defendants,
which ban the purchase, possession, sale, and transfer of some of the most popular firearms and
magazines used in America by lawful citizens for the lawful purpose of self-defense, violate
Caldara’s right to keep and bear arms, as protected by the Colorado Constitution.
219. The Supreme Court’s interpretation of the right to keep and bear arms, as set forth
220. As explained in Count I, supra, Ordinance 8245 and the actions of Defendants,
which ban the purchase, possession, sale, and transfer of some of the most popular firearms and
magazines used in America by lawful citizens for the lawful purpose of contributing to the
common defense, violate Caldara’s right to keep and bear arms, as protected by the Colorado
Constitution.
COUNT VII
Violation of Article 2, § 3 of the Colorado Constitution – Plaintiff Caldara
221. Plaintiff Caldara hereby restates and realleges each and every one of the foregoing
222. Caldara has a natural right to self-defense, which includes the defense of one’s
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224. The right of self-defense and the right to defend one’s property protect Colorado
residents’ right to use the common tools of the time to effectuate the defense.
225. Ordinance 8245 and the actions of Defendants ban some of the most common
226. Caldara owns one or more banned firearm, which is or are lawfully owned by
227. Caldara owns one or more banned magazines, which is or are lawfully owned by
228. Ordinance 8245 and the actions of Defendants infringe upon Caldara’s inalienable
right to self-defense as protected by the Colorado Constitution, and thus violate Article 2, section
229. Ordinance 8245 and the actions of Defendants infringe upon Caldara’s inalienable
right to the defense of his property as protected by the Colorado Constitution, and thus violate
COUNT VIII
Violation of the Second Amendment – Plaintiff Boulder Rifle Club
230. Plaintiff Boulder Rifle Club hereby restates and realleges each and every one of the
231. The Club asserts a violation of the Second Amendment on behalf of itself and its
hundreds of members who reside in Colorado, including within the Boulder city limits, and who
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232. The Club’s members have natural right to self-defense and a fundamental right to
233. The Club’s members’ right to self-defense is memorialized in and protected by the
Second Amendment.
234. The Club’s members’ Second Amendment protected rights apply to the State of
Colorado under the Supremacy Clause of Article VI, Clause 2, of the U.S. Constitution.
235. The Club’s members’ Second Amendment protected rights apply to the State of
Colorado under the Due Process Clause of the Fifth and Fourteenth Amendments.
236. The Club’s members’ Second Amendment protected rights apply to the State of
238. Ordinance 8245 and the actions of Defendants infringe upon the Club’s members’
right to self-defense and right to keep and bear arms as protected by the clear and unambiguous
239. The Club’s members have one or more firearms and magazines that are banned by
Ordinance 8245.
240. These firearms and magazines are some of the most widely used self-defense tools
by U.S. citizens for the lawful purpose of self-defense, in addition to the defense of their families,
241. Ordinance 8245 and the actions of Defendants infringe upon the Club’s members’
constitutionally protected right to keep and bear arms as articulated by the Supreme Court in Heller
and McDonald.
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242. These firearms and magazines are some of the most widely used self-defense tools
by U.S. citizens for the lawful purpose of contributing to the common defense.
243. Ordinance 8245 and the actions of Defendants infringe upon the Club’s members’
constitutionally protected right to keep and bear arms as articulated by the Supreme Court in
Miller.
244. The Club has been forced to expend resources that would have been dedicated to
other Club business in order to address Defendants’ violation of the Club’s members’ rights
COUNT IX
Violation of the Due Process Clause – Plaintiff Boulder Rifle Club
245. Plaintiff Boulder Rifle Club hereby restates and realleges each and every one of the
246. The Club asserts a violation of the Due Process Clause on behalf of itself and its
hundreds of members who reside in Colorado, including within the Boulder city limits, and who
247. The Club’s members have owned, and continue to own, firearms and magazines
248. Ordinance 8245 and the actions of Defendants deprive the Club’s members of the
lawful possession, use, sale, transfer, or devise of those lawfully acquired and possessed firearms
249. Even if there were a legitimate government objective, that objective cannot
outweigh the deprivation of the fundamental right to keep and bear arms and/or the natural right
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250. Ordinance 8245 and the actions of Defendants retroactively ban property that was
lawfully acquired and possessed under federal and state law, which deprives the Club’s members
of their vested property interests in that property without due process of law.
251. Ordinance 8245 and the actions of Defendant prohibit the Club’s members from
acquiring additional property banned by its terms, that can be lawfully acquired, possessed, used,
sold, and transferred under state and federal law, without due process of law.
252. The Club has been forced to expend resources that would have been dedicated to
other Club business in order to address Defendants’ violation of the Club’s members’ rights as
COUNT X
Violation of the Takings Clause – Plaintiff Boulder Rifle Club
253. Plaintiff Boulder Rifle Club hereby restates and realleges each and every one of the
254. The Club asserts a violation of the Takings Clause on behalf of itself and its
hundreds of members who reside in Colorado, including within the Boulder city limits, and who
255. The Club’s members have owned, and continue to own, firearms and magazines
256. Ordinance 8245 and the actions of Defendants now make it a crime for the Club’s
members to possess, use, sell, transfer, or devise that property, which was lawfully acquired and
is lawfully possessed.
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257. Ordinance 8245 and the actions of Defendants force the Club’s members to
surrender their lawfully acquired and lawfully owned property, which they would otherwise keep
and possess, without any government compensation, which constitute a per se taking.
258. Ordinance 8245 and the actions of Defendants deprive the Club’s members of the
essential property rights they have in connection with their lawfully acquired and lawfully
possessed firearms and magazine that are now banned by the ordinance.
259. Ordinance 8245 and the actions of Defendants, by depriving the Club’s members
of the right to possess, use, sell, and transfer their lawful property, without any government
260. Ordinance 8245 and the actions of Defendants deprive the Club’s members of the
right to pass their lawfully acquired and lawfully possessed property to their family.
261. Ordinance 8245 and the actions of Defendants, by depriving the Club’s members
of their right to devise their lawful property, without any government compensation, constitute a
regulatory taking.
262. The Club has been forced to expend resources that would have been dedicated to
other Club business in order to address Boulder’s violation of the Club’s members’ rights as
COUNT XI
Violation of the First Amendment – Plaintiff Boulder Rifle Club
263. Plaintiff Boulder Rifle Club hereby restates and realleges each and every one of the
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264. Ordinance 8245 requires the Club’s members, should they wish to retain their
lawfully acquired and lawfully possessed firearms, subject to the ban, to register each such firearm
265. The Club’s members would be required to provide the Boulder Police Department
with their personal information, as well as information identifying their lawfully owned,
266. Ordinance 8245 and the actions of Defendants compel the Club’s members to speak
to the Boulder Police Department and provide information about banned, but currently exempted,
firearms.
267. Ordinance 8245 and the actions of Defendants violate the First Amendment, by
268. The Club has been forced to expend resources that would have been dedicated to
other Club business in order to address Boulder’s violation of the Club’s members’ rights as
COUNT XII
Violation of the Privileges or Immunities Clause – Plaintiff Boulder Rifle Club
269. Plaintiff Boulder Rifle Club hereby restates and realleges each and every one of the
270. The Club asserts a violation of the Privileges or Immunities Clause on behalf of
itself and its hundreds of members who reside in Colorado, including in Boulder city limits, and
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271. The Club’s members, by virtue of being U.S. citizens, have the privilege of the right
to keep and bear arms, as protected by the Second Amendment, and inherent in U.S. citizenship.
272. As explained in Count VIII, supra, Ordinance 8245 and the actions of Defendants
deprive the Club’s members of their right to keep and bear arms, as protected by the Second
Amendment, and interpreted by the Supreme Court in Heller, McDonald, and Miller.
273. Ordinance 8245 and the actions of Defendants deprive the Club’s members of a
privilege of U.S. Citizenship, in violation of the Privileges or Immunities Clause of the Fourteenth
Amendment.
274. The Club has been forced to expend resources that would have been dedicated to
other Club business in order to address Boulder’s violation of the Club’s members’ rights as
COUNT XIII
Violation of Article 2, § 13 of the Colorado Constitution – Plaintiff Boulder Rifle Club
275. Plaintiff Boulder Rifle Club hereby restates and realleges each and every one of the
276. The Club asserts a violation of Article 2, section 13 of the Colorado Constitution
on behalf of itself and its hundreds of members who reside in Colorado, including in Boulder city
limits, and who are too numerous to conveniently bring this action individually.
277. The Club’s members have a natural right to self-defense and a fundamental right to
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279. Ordinance 8245 and the actions of Defendants infringe upon the Club’s members’
right to self-defense and right to keep and bear arms as protected by the Colorado Constitution,
280. Given that the Colorado Constitution was adopted pursuant to the Enabling Act and
in compliance with the U.S. Constitution and Bill of Rights, the right to keep and bear arms
protected in the Colorado Constitution is the same as that protected by the U.S. Constitution.
281. The Supreme Court’s articulation of the right in Heller and McDonald applies to
282. As explained in Count VIII, supra, Ordinance 8245 and the actions of Defendants,
which ban the purchase, possession, sale, and transfer of some of the most popular firearms and
magazines used in America by lawful citizens for the lawful purpose of self-defense, violate the
Club’s members’ right to keep and bear arms protected by the Colorado Constitution.
283. The Supreme Court’s articulation of the right in Miller applies to the Colorado
Constitution.
284. As explained in Count VIII, supra, Ordinance 8245 and the actions of Defendants,
which ban the purchase, possession, sale, and transfer of some of the most popular firearms and
magazines used in America by lawful citizens for the lawful purpose of contributing to the
common defense, violate the Club’s members’ right to keep and bear arms protected by the
Colorado Constitution.
285. The Club has been forced to expend resources that would have been dedicated to
other Club business in order to address Boulder’s violation of the Club’s members’ rights as
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COUNT XIV
Violation of Article 2, § 3 of the Colorado Constitution – Plaintiff Boulder Rifle Club
286. Plaintiff Boulder Rifle Club hereby restates and realleges each and every one of the
287. The Club asserts a violation of Article 2, section 13 of the Colorado Constitution
on behalf of itself and its hundreds of members who reside in Colorado, including within the
Boulder city limits, and who are too numerous to conveniently bring this action individually.
288. The Club’s members have an unalienable, natural, and fundamental right to self-
289. The Club’s members’ right to self-defense and the defense of property is identified
290. The right of self-defense and the right to defend one’s property protect Colorado
residents’ right to use the common tools of the time to effectuate the defense.
291. Ordinance 8245 and the actions of Defendants ban some of the most common
292. The Club’s members’ own one or more banned firearms which are lawfully owned
by the members for the lawful purposes of self-defense and defense of property.
293. The Club’s members own one or more banned magazines, which are lawfully
owned by the members for the lawful purposes of self-defense and defense of property.
294. Ordinance 8245 and the actions of Defendants infringe upon the Club’s members’
“inalienable right” to self-defense as protected by the Colorado Constitution, and thus violate
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295. Ordinance 8245 and the actions of Defendants infringe upon the Club’s members’
“inalienable right” to the defense of their property as protected by the Colorado Constitution, and
296. The Club has been forced to expend resources that would have been dedicated to
other Club business in order to address Boulder’s violation of the Club’s members’ rights as
COUNT XV
Violation of the Second Amendment – Plaintiff Bison Tactical
297. Plaintiff General Commerce, LLC, d/b/a Bison Tactical, hereby restates and
realleges each and every one of the foregoing paragraphs, as if fully set forth herein.
298. Bison Tactical has the constitutionally protected right to keep and bear arms.
299. Bison Tactical’s right to keep and bear arms is memorialized in and protected by
300. Inherent in that right, is not only the right to possess arms, but also the right to sell
301. Bison Tactical’s Second Amendment protected rights apply to the State of Colorado
under the Supremacy Clause of Article VI, Clause 2, of the U.S. Constitution.
302. Bison Tactical’s Second Amendment protected rights apply to the State of Colorado
under the Due Process Clause of the Fifth and Fourteenth Amendments.
304. Ordinance 8245 and the actions of Defendants infringe upon Bison Tactical’s right
to keep and bear arms protected by the clear and unambiguous meaning of the Second Amendment
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305. Ordinance 8245 and the actions of Defendants infringe upon Bison Tactical’s right
to sell arms as protected by the clear and unambiguous meaning of the Second Amendment and
306. Bison Tactical owns one or more firearms and magazines that are banned by
307. These firearms are some of the most widely used self-defense tools by U.S. citizens
for the lawful purpose of self-defense, as well as defense of family, home, and property.
308. Ordinance 8245 and the actions of Defendants infringe upon Bison Tactical’s
constitutionally protected right to keep arms for the purpose of resale as articulated by the Supreme
309. The banned firearms are some of the most widely used self-defense tools by U.S.
310. Ordinance 8245 and the actions of Defendants infringe upon Bison Tactical’s
constitutionally protected right to keep arms for the purpose of resale as articulated by the Supreme
Court’s in Miller.
COUNT XVI
Violation of the Due Process Clause – Plaintiff Bison Tactical
311. Plaintiff Bison Tactical hereby restates and realleges each and every one of the
312. Bison Tactical has owned, and continues to own, firearms and magazines that are
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313. Ordinance 8245 and the actions of Defendants deprive Bison Tactical of its ability
to conduct the lawful sale or transfer of those lawfully acquired and possessed firearms and
314. Even if there were a legitimate government objective, that objective cannot
outweigh the deprivation of the fundamental right to keep and bear arms and the natural right to
315. Ordinance 8245 and the actions of Defendants retroactively ban property that was
lawfully acquired and possessed under both federal and state law and deprive Bison Tactical of its
316. Since this property has been banned, Bison Tactical cannot sell property that was
lawfully acquired for the purpose of resale to customers, and thus has and continues to suffer an
317. Ordinance 8245 and the actions of Defendants prohibit Bison Tactical from
acquiring additional property banned by its terms, that can be lawfully acquired, possessed, used,
sold, and transferred under state and federal law, without due process of law.
318. Since this property is banned, Bison Tactical cannot acquire additional property to
then resell to its customers, and thus has and continues to suffer an economic loss to its business.
COUNT XVII
Violation of the Takings Clause – Plaintiff Bison Tactical
319. Plaintiff Bison Tactical hereby restates and realleges each and every one of the
320. Bison Tactical has owned, and continues to own, one or more firearms and
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321. Ordinance 8245 and the actions of Defendants now make it a crime for Bison
Tactical to sell or transfer that property, which was lawfully acquired and is otherwise lawfully
possessed.
322. Ordinance 8245 and the actions of Defendants force Bison Tactical to surrender,
without any government compensation, its lawfully acquired and lawfully owned property, which
323. Ordinance 8245 and the actions of Defendants deprive Bison Tactical of the
essential property rights it has in connection with its lawfully acquired and lawfully possessed
324. Ordinance 8245 and the actions of Defendants, by depriving Bison Tactical of the
right to sell or transfer its lawful property, without any government compensation, constitute a
regulatory taking.
COUNT XVIII
Violation of Article 2, § 13 of the Colorado Constitution – Plaintiff Bison Tactical
325. Plaintiff Bison Tactical hereby restates and realleges each and every one of the
326. A necessary extension of the right to keep and bear arms protected by the Colorado
Constitution is the right of Colorado residents to purchase arms and the right of Colorado
327. Bison Tactical has the right to sell arms as protected by Article 2, section 13 of the
Colorado Constitution
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328. Ordinance 8245 and the actions of Defendants infringe upon Bison Tactical’s right
to keep and bear arms and right to sell arms as protected by the Colorado Constitution, and are
thus unconstitutional.
329. Given that the Colorado Constitution was adopted pursuant to the Enabling Act and
in compliance with the U.S. Constitution and Bill of Rights, the right to keep and bear arms
protected in the Colorado Constitution is the same as that protected by the U.S. Constitution.
330. The Supreme Court’s articulation of the right in Heller and McDonald applies to
331. As explained in Count XV, supra, Ordinance 8245 and the actions of Defendants,
which ban the sale and transfer of some of the most popular firearms and magazines used in
America by lawful citizens for the lawful purpose of self-defense, violate Bison Tactical’s right to
keep and bear arms and right to sell arms protected by the Colorado Constitution.
332. The Supreme Court’s articulation of the right in Miller applies to the Colorado
Constitution.
333. As explained in Count XV, supra, Ordinance 8245 and the actions of Defendants,
which ban the sale and transfer of some of the most popular firearms and magazines used in
America by lawful citizens for the lawful purpose of contributing to the common defense, violate
Bison Tactical’s right to keep and bear arms and right to sell arms, as protected by the Colorado
Constitution.
COUNT XIX
Violation of Article 2, § 3 of the Colorado Constitution – Plaintiff Bison Tactical
334. Plaintiff Bison Tactical hereby restates and realleges each and every one of the
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335. A necessary extension of the inalienable right to self-defense and right to defense
of property protected by the Colorado Constitution, is the right of Colorado residents to purchase
arms and the right of Colorado businesses to sell arms to effectuate that defense.
336. Bison Tactical’s right to sell arms is protected by Article 2, section 3 of the
Colorado Constitution.
337. The right of self-defense and the right to defend one’s property protect Colorado
residents’ right to use the common tools of the time to effectuate the defense.
338. Ordinance 8245 and the actions of Defendants ban the sale of some of the most
339. Bison Tactical owns one or more banned firearms, which is or are lawfully owned
340. The ability of one citizen to sell arms is an integral and inextricable part of another
341. The ability of Bison Tactical to sell arms to Colorado residents is an integral and
inextricable part of Colorado citizens ability to exercise their inalienable right to self-defense and
defense of property.
342. Bison Tactical owns one or more banned magazines, which is or are lawfully owned
by Bison Tactical for the lawful purpose of resale, so that a Colorado Resident may exercise their
343. Ordinance 8245 and the actions of Defendants infringe upon Bison Tactical’s right
to sell firearms, inherent in the inalienable right to self-defense as protected by the Colorado
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344. Ordinance 8245 and the actions of Defendants infringe upon Bison Tactical’s right
to sell firearms, inherent in the inalienable right to the defense of property as protected by the
Colorado Constitution, and thus violate Article 2, section 3 of the Colorado Constitution.
COUNT XX
Violation of the Second Amendment – Plaintiff Faye
345. Plaintiff Faye hereby restates and realleges each and every one of the foregoing
346. Faye has a natural right to self-defense and a fundamental right to keep and bear
arms.
Amendment.
348. Faye’s Second Amendment protected rights apply to the State of Colorado under
349. Faye’s Second Amendment protected rights apply to the State of Colorado under
350. Faye’s Second Amendment protected rights apply to the State of Colorado via the
352. Faye, by virtue of being twenty (20) years old, is prohibited from possessing any
firearm within the City of Boulder due to Ordinance 8245 and the actions of Defendants.
353. Ordinance 8245 and the actions of Defendants infringe upon Faye’s right to self-
defense and to keep and bear arms as protected by the clear and unambiguous meaning of the
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354. In addition, Faye has one or more firearms and magazines that is or are banned by
Ordinance 8245.
355. The banned firearms and magazines are some of the most widely used self-defense
tools by U.S. citizens for the lawful purpose of self-defense, in addition to the defense of his family,
356. Ordinance 8245 and the actions of Defendants infringe upon Faye’s constitutionally
protected right to keep and bear arms as articulated by the Supreme Court in Heller and McDonald.
357. The banned firearms and magazines are some of the most widely used self-defense
tools by U.S. citizens for the lawful purpose of contributing to the common defense.
358. Ordinance 8245 and the actions of Defendants infringe upon Faye’s constitutionally
protected right to keep and bear arms as articulated by the Supreme Court in Miller.
COUNT XXI
Violation of the Due Process Clause – Plaintiff Faye
359. Plaintiff Faye hereby restates and realleges each and every one of the foregoing
360. Faye has owned, and continues to own, one or more firearms and magazines that
361. Ordinance 8245 and the actions of Defendants deprive Faye of the lawful
possession, use, sale, transfer, or devise of those lawfully acquired and possessed firearms and
362. Even if there were a legitimate government objective, that objective cannot
outweigh the deprivation of the fundamental right to keep and bear arms and/or the natural right
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363. Ordinance 8245 and the actions of Defendants retroactively ban property that was
lawfully acquired and possessed under federal and state law, which deprives Faye of his vested
364. Ordinance 8245 and the actions of Defendants prohibit Faye from acquiring
additional property banned by its terms, that can be lawfully acquired, possessed, used, sold, and
transferred under state and federal law, without due process of law.
365. Ordinance 8245 and the actions of Defendants deprives Faye of the lawful
possession of all firearms, due to his age, without any legitimate government objective.
366. Even if there were a legitimate government objective, that objective cannot
outweigh the deprivation of Faye’s fundamental right to keep and bear arms and natural right to
367. Ordinance 8245 and the actions of Defendants retroactively ban property that was
lawfully acquired and possessed under both federal and state law, which deprives Faye of his
368. Ordinance 8245 and the actions of Defendants prohibit Faye from acquiring
additional firearms, due to his age, that can be lawfully acquired, possessed, used, sold, and
transferred by him under state and federal law, without due process of law.
COUNT XXII
Violation of the Takings Clause – Plaintiff Faye
369. Plaintiff Faye hereby restates and realleges each and every one of the foregoing
370. Faye has owned, and continues to own, one or more firearms and magazines that
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371. Faye has owned, and continues to own, one or more firearms that he is now
372. Ordinance 8245 and the actions of Defendants now make it a crime for Faye to
possess, use, sell, transfer, or devise that property, which was lawfully acquired and is lawfully
possessed.
373. Ordinance 8245 and the actions of Defendants force Faye to surrender his lawfully
acquired and lawfully owned property, which he would otherwise keep and possess, without any
374. Ordinance 8245 and the actions deprive Faye of the essential property rights he has
in connection with his lawfully acquired and lawfully possessed firearms and magazines that are
375. Ordinance 8245 and the actions of Defendants, by depriving Faye of the right to
possess, use, sell, and transfer his lawful property, without any government compensation,
COUNT XXIII
Violation of the Privileges or Immunities Clause – Plaintiff Faye
376. Plaintiff Faye hereby restates and realleges each and every one of the foregoing
377. Faye has the privilege, by virtue of being a U.S. citizen, of the right to keep and
bear arms protected by the Second Amendment, and inherent in U.S. citizenship.
378. As explained in Count XX, supra, Ordinance 8245 and the actions of Defendants
deprive Faye of his right to keep and bear arms, as protected by the Second Amendment, and
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379. Ordinance 8245 and the actions of Defendants deprive Faye of a privilege of U.S.
COUNT XXIV
380. Plaintiff Faye hereby restates and realleges each and every one of the foregoing
381. Ordinance 8245 redefines the meaning of a minor, with respect to “Chapter 8 –
Weapons,” of the Boulder Revised Code to include adults aged eighteen (18) to twenty (20).
382. Ordinance 8245 treats one group of adults differently than another.
384. Faye can legally purchase and possess a firearm under federal law.
385. Faye can legally purchase and possess a firearm under Colorado state law.
386. Faye can no longer legally purchase or possess a firearm in the City of Boulder.
387. Ordinance 8245 and the actions of Defendants explicitly discriminate based upon a
Faye’s age.
388. Ordinance 8245 and the actions of Defendants violate the Equal Protection Clause
of the Fourteenth Amendment because the classification interferes with a fundamental right.
389. Ordinance 8245 and the actions of Defendants violate the Equal Protection Clause
of the Fourteenth Amendment because the classification arbitrarily discriminates based on age.
390. The minimum age to vote in a Boulder municipal election is eighteen (18) years
old.
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391. Ordinance 8245 and the actions of Defendants discriminate not only based upon
age, but also upon which fundamental right an adult chooses to exercise.
392. Faye, by exercising his constitutional right to keep and bear arms, is treated
differently under the law than another person who chooses to exercise their fundamental right to
vote.
393. Ordinance 8245 and the actions of Defendants violate the Equal Protection Clause
COUNT XXV
Violation of Article 2, § 13 of the Colorado Constitution – Plaintiff Faye
394. Plaintiff Faye hereby restates and realleges each and every one of the foregoing
395. Faye has a natural right to self-defense and a fundamental right to keep and bear
arms.
Constitution.
397. Ordinance 8245 and the actions of Defendants infringe upon Faye’s right to self-
defense and to keep and bear arms protected by the Colorado Constitution, and are thus
unconstitutional.
398. Given that the Colorado Constitution was adopted pursuant to the Enabling Act and
in compliance with the U.S. Constitution and Bill of Rights, the right to keep and bear arms
protected in the Colorado Constitution is the same as that protected by the U.S. Constitution.
399. The Supreme Court’s articulation of the right, as contained in Heller and
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400. As explained in Count XX, supra, Ordinance 8245 and the actions of Defendants,
which ban the purchase, possession, sale, and transfer of some of the most popular firearms and
magazines used in America by lawful citizens for the lawful purpose of self-defense, violate Faye’s
401. The Supreme Court’s articulation of the right in Miller applies to the Colorado
Constitution.
402. As explained in Count XX, supra, Ordinance 8245 and the actions of Defendants,
which ban the purchase, possession, sale, and transfer of some of the most popular firearms and
magazines used in America by lawful citizens for the lawful purpose of contributing to the
common defense, violate Faye’s right to keep and bear arms, as protected by the Colorado
Constitution.
COUNT XXVI
Violation of Article 2, § 3 of the Colorado Constitution – Plaintiff Faye
403. Plaintiff Faye hereby restates and realleges each and every one of the foregoing
404. Faye has an unalienable, natural, and fundamental right to self-defense, which
406. The right of self-defense and the right to defend one’s property protects Colorado
residents’ right to use the common tools of the time to effectuate the defense.
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407. Ordinance 8245 and the actions of Defendants prohibit Faye from possessing any
firearm, because he is twenty (20) years old, in violation of Article 2, section 3 of the Colorado
Constitution
408. Ordinance 8245 and the actions of Defendants ban the most common firearms and
magazines in America.
409. Faye owns one or more banned firearms, which is or are lawfully owned by Faye
410. Faye owns one or more banned magazine, which is or are lawfully owned by Faye
411. Ordinance 8245 and the actions of Defendants infringe upon Faye’s “inalienable
right” to self-defense as protected by the Colorado Constitution, and thus violate Article 2, section
412. Ordinance 8245 and the actions of Defendants infringe upon Faye’s “inalienable
right” to the defense of his property as protected by the Colorado Constitution, and thus violate
COUNT XXVII
Violation of C.R.S. § 29-11.7-102 – Declaratory Judgment
413. Plaintiffs hereby restate and reallege each and every one of the foregoing
agency from maintaining any list or form of record that could be used to identify firearms in the
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416. Ordinance 8245 and the actions of Defendants set forth a system of registration that
will, based on information and belief. require the Boulder City Police to retain some record of the
417. The Boulder City Police will be required to issue and keep a receipt of the fee
419. The Boulder City Police will be required to keep personal information in
conjunction with the background check run on individuals registering firearms, which constitutes
a record.
421. Given the structure of the registration provision set forth in Ordinance 8245, the
Ordinance and the actions of the Defendants, as a matter of law, violate C.R.S. § 29-11.7-102.
COUNT XXVIII
Violation of C.R.S. § 29-11.7-103 – Declaratory Judgment
422. Plaintiffs hereby restate and reallege each and every one of the foregoing
424. The Colorado Preemption Statute prohibits a municipality from enacting any
ordinance that prohibits the sale, purchase, or possession of a lawfully sold, purchased, or
425. The semi-automatic, centerfire rifles with the features identified in Ordinance 8245
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426. The semi-automatic, centerfire pistols with the features identified in Ordinance
8245 can be lawfully sold, purchased, and/or possessed under federal law.
427. The semi-automatic shotguns with the features identified in Ordinance 8245 can be
428. The magazines prohibited by Ordinance 8245 in the City of Boulder can be lawfully
429. As a matter of law, Ordinance 8245 and the actions of Defendants violate C.R.S.
§ 29-11.7-103 given that the Ordinance bans the sale, purchase, and/or possession of firearms and
430. The semi-automatic, centerfire rifles with the features identified in Ordinance 8245
431. The semi-automatic, centerfire pistols with the features identified in Ordinance
8245 can be lawfully sold, purchased, and/or possessed under Colorado state law.
432. The semi-automatic shotguns with the features identified in Ordinance 8245 can be
433. The magazines prohibited by Ordinance 8245 in the City of Boulder can be lawfully
434. As a matter of law, Ordinance 8245 and the actions of Defendants violate C.R.S.
§ 29-11.7-103, given that the Ordinance bans the sale, purchase, and/or possession of firearms and
JURY DEMAND
Plaintiffs hereby demand a trial by jury in this action as ensured by the Seventh
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amendments to the Boulder Revised Code contained in Boulder City Ordinance 8245 are
unconstitutional under both the U.S. Constitution and the Colorado Constitution;
amendments to the Boulder Revised Code contained in Boulder City Ordinance 8245 violate
employees from enforcing any provisions of Ordinance 8245 as to the purchase, possession, sale,
employees from enforcing any provision of Ordinance 8245 as to the registration and/or
employees from enforcing any provision of Ordinance 8245 prohibiting the purchase, possession,
sale, and/or transfer of any firearm by any individual between eighteen and twenty years old;
6. Award Plaintiffs any and all compensatory damages to which they are entitled;
7. Award Plaintiffs any and all remedies available to them pursuant to 42 U.S.C.
§ 1983, and all of their reasonable costs, expenses, and attorneys’ fees pursuant to 42 U.S.C.
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Respectfully Submitted,
Sean P. Smith
MOUNTAIN STATES LEGAL FOUNDATION
2596 S. Lewis Way
Lakewood, Colorado 80227
Phone: (303) 292-2021
Facsimile: (303) 292-1980
[email protected]
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