A judge blocked Boulder from enforcing its 2-year-old ban on assault weapons and large-capacity magazines in the city, setting up the chance for the state Supreme Court to review whether Colorado cities can create their own restrictions on gun ownership.
Boulder County District Court Judge Andrew Hartman ruled Friday that the city can’t enforce its ordinance banning the possession, transfer or sale of assault weapons and large-capacity magazines because state law says local governments can’t prohibit the possession or sale of firearms.
“These provisions are invalid, and enforcement of them is enjoined,” Hartman wrote in his ruling. “The Court has determined that only Colorado state (or federal) law can prohibit the possession, sale and transfer of assault weapons and large-capacity magazines.”
Boulder city attorneys will meet with outside counsel this week to decide how to move forward and whether they will appeal Hartman’s decision, city spokeswoman Shannon Aulabaugh said. The Boulder Police Department will not enforce the ordinance unless there is a later court ruling undoing Hartman’s decision, she said.
If the case reaches the Colorado Supreme Court, justices there could for the first time issue a statewide ruling on whether local governments can pass more restrictive gun laws than those in state statute.
But lawyers look at more than just the facts of a case before deciding whether to take it to the highest court — they also look at the timing and the political climate, said Robert Wareham, a Highlands Ranch attorney who works in gun law.
“There are many of us looking for the ideal case to bring again,” Wareham said.
The Boulder City Council in 2018 passed two ordinances banning the possession of assault weapons and large-capacity magazines in the wake of the mass shooting at Marjory Stoneman Douglas High School in Parkland, Flordia, that left 17 people dead.
The city defined large-capacity magazines as “any ammunition-feeding device with the capacity to accept more than 10 rounds.” The assault weapon ban includes certain pistols and semi-automatic rifles with pistol grips, a folding or telescoping stock, or any protruding grip that allows a weapon to be stabilized with the non-trigger hand.
The council created a permit system for people who owned such a gun prior to the ordinance, allowing them to legally keep the weapons. People breaking the ordinance could face fines of up to $1,000 and up to 90 days in jail.
The decision spurred swift litigation at both the local and federal levels.
Two Boulder residents, the Colorado State Shooting Association and Boulder-based Gunsport of Colorado sued the city in the county’s district court, alleging the new ordinances violated Colorado law that says gun regulation is a matter of state and federal, not local, concern.
The state law, passed in 2003, states “a 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 state or federal law.”
“Inconsistency among local governments of laws regulating the possession and ownership of firearms results in persons being treated differently under the law solely on the basis of where they reside, and a person’s residence in a particular county or city or city and county is not a rational classification when it is the basis for denial of equal treatment under the law,” the law states.
Attorneys for the city argued that Boulder had the right to pass the ordinance because it is a home-rule municipality and that the ordinance was necessary because of a lack of rules on assault weapons and large-capacity magazines at the state level. The judge disagreed, pointing to the list of weapons that are deemed illegal or dangerous by the state. The state did not include assault weapons and defined large-capacity magazines as having more than 15 rounds.
“The city of Boulder’s assault weapons and (large-capacity magazine) ban could create a ripple effect across the state by encouraging other municipalities to enact their own bans, ultimately leading to a statewide de facto ban or to a patchwork of municipal laws regulating assault weapons and LCMs,” Hartman wrote in his order.
An attorney for the plaintiffs did not respond Wednesday to an email requesting an interview.
Hartman’s ruling caused supporters of gun regulation to call on the state legislature to repeal the 2003 law. Eileen McCarron of Colorado Ceasefire said the group was disappointed by the judge’s ruling.
“Cities and counties know best whether certain weapons are inappropriate in their neighborhoods,” she said.
McCarron pointed to a previous ruling in Denver District Court that allowed Denver’s assault weapons ban to stand.
The city government of Denver sued the state in 2003, arguing that the newly-passed legislation banning local governments from regulating firearm possession and sales was unconstitutional because it violated the rights of home-rule cities to pass ordinances. But the district court found that Denver had unique circumstances, like increased use of assault weapons and a rising homicide rate, that meant it should be able to decide whether to ban assault weapons. The judge also noted Denver’s ban had been in place since 1989.
On appeal, the Colorado Supreme Court let the Denver court’s ruling stand — but on a technicality. One of the seven justices abstained from ruling and the remaining six were evenly divided on whether Denver’s ban was legal. The 3-3 split meant that the lower court’s ruling automatically stands, though it does not set precedent as a decision by the state’s top court on whether the 2003 law pre-empts local gun ordinances.
But there are also key differences between the Denver and the Boulder bans, including when they were enacted and the types of communities they cover, Wareham said. It’s unclear how the court’s view of the Boulder ordinance would vary from their thoughts on Denver’s.
Meanwhile, another lawsuit about the Boulder ordinance is on pause as a federal judge waits for the state courts to rule on the issue. A coalition of businesses and individuals sued the city in federal court the day after it passed the ban, but the case is stalled until there’s a decision in the state court, said Cody Wisniewski, director of Mountain State Legal Foundation’s Center to Keep and Bear Arms and lead attorney for the plaintiffs.
“We’ll be keeping a close eye on how the case proceeds,” he said.
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