Post-Bruen Order Grants Temporary Restraining Order (TRO) in Colorado District Court

In one of the first post-Bruen court opinions, a federal district court in Colorado granted a temporary restraining order against the Town of Superior prohibiting the enforcement of a town ordinance that would have restricted gun ownership and gun rights within the town limits. 

What were the Court’s holding and reasoning for granting the restraining order, and what types of post-Bruen litigation should we expect in the months to come? 

Post-Bruen Litigation 

NYSRPA v. Bruen, decided last month by the US Supreme Court, will have ripple effects for months and years to come, and the case will likely have unanticipated consequences that we cannot yet predict. 

One potential effect that is of particular interest to me is the possible opportunities for federal criminal defendants who have been convicted of firearm offenses or who have had their sentences enhanced based on firearm possession. 

We are currently working on motions to dismiss firearms offenses for current clients based on NYSRPA v. Bruen, and we intend to file §2255 motions for clients who may be entitled to have their convictions vacated or their sentences reduced based on the change in the law. 

Another potential effect of Bruen will be challenges to restrictive gun laws across the country like the one that was filed in the Colorado District Court. 

What is the Level of Scrutiny for Post-Bruen Challenges? 

The US Supreme Court has adopted three levels of scrutiny that are applied in constitutional challenges to legislative action:

• Rational basis – the least restrictive analysis where the government need only provide a reason for the law, 
• Intermediate scrutiny – the law must be substantially related to achieving an important government objective, and
• Strict scrutiny – the law must be narrowly tailored to achieve a compelling state interest. 

Which applies to challenges to restrictive gun laws? 

None of the above… 

In Bruen, the Supreme Court crafted a new standard that applies to Second Amendment challenges:

We reiterate that the standard for applying the Second Amendment is as follows: When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”

1. There is a presumption that the prohibited conduct is protected by the Second Amendment when the language of the Second Amendment covers that conduct, and
2. The government must justify the law by proving that it “is consistent with the Nation’s historical tradition of firearm regulation.” 

Rocky Mountain Gun Owners et al v. Town of Superior

In Rocky Mountain, the plaintiffs asked the court to grant a temporary restraining order (TRO) prohibiting the Town of Superior from enforcing a gun law that would significantly restrict the right to own, sell, and carry firearms in the town. 

The grant of a TRO doesn’t mean that the plaintiff has won the case, although it is usually a good indication of what the outcome will be. 

Courts will immediately grant a TRO when:

1. There is a substantial likelihood that the plaintiffs will prevail on the merits, 
2. There will be irreparable harm unless the TRO is granted, and
3. The threatened injury outweighs the harm that the TRO would cause to the Defendant. 

In Rocky Mountain, the federal district court granted a temporary restraining order as to two elements of the plaintiff’s request but denied the third. Because the TRO was granted without input from the defendants, the Court then scheduled a full hearing on the matter where the parties will argue whether a preliminary injunction should be granted. 

10-9-40: Possession and Sale of Illegal Weapons

The Court’s order restrains the town from enforcing §10-9-40, “Possession and Sale of Illegal Weapons,” which would have prohibited any person from possessing, selling, or transferring an “illegal weapon,” defined as “an assault weapon, large-capacity magazine, rapid-fire trigger activator, blackjack, gas gun, metallic knuckles, gravity knife or switchblade knife.”

Among other reasons, the Court found that the weapons prohibited by 10-9-40, including semi-automatic weapons and magazines that hold more than ten rounds, “are commonly used by law-abiding citizens for lawful purposes,” and therefore likely to be unconstitutional because, under the Bruen standard, the law is not “consistent with the Nation’s historical tradition of firearm regulation.” 

10-9-240: Assault Weapons

The second section of the law at issue, 10-9-240, would have imposed severe restrictions on the possession, sale, or transfer of assault weapons. 

Although there is an exception for current residents who own assault weapons (they must apply for a certificate to continue possessing their weapons), the law effectively bans assault weapons by prohibiting any new purchases or possession of an assault weapon by any person who was not “grandfathered in,” even preventing the inheritance of an assault weapon (any assault weapon inherited must be transferred to a firearms dealer, rendered inoperable, removed from the town, or destroyed). 

As with the prohibitions in 10-9-40, the Court notes that the town’s ban on assault weapons is likely to be found unconstitutional because it is not “consistent with the Nation’s historical tradition of firearm regulation.”

10-9-260: Open Carry of Firearms

The Court declined to issue a TRO for the final provisions that were challenged in §10-9-260, which prohibits open carry of a firearm unless the owner has a valid carry permit. 

Like many other jurisdictions, the open carry provisions allow individuals “to openly carry firearms on their own property, business or dwelling or on the property of another with permission of the property owner, and to carry firearms in motor vehicles or other private means of transit.”

The plaintiffs might ultimately prevail on this issue, but, at this stage of the case, they did not provide the Court with any details about the permitting requirement that would show the law is unreasonable or fails to protect citizens’ right to carry weapons. 

The Supreme Court in Bruen did not hold that all licensing requirements are unconstitutional – only that one specific requirement imposed under New York’s law – that citizens must demonstrate some special need to the government before carrying a weapon – was unconstitutional. 

Questions About Federal §2255 Motions Based on Bruen? 

Federal criminal defense and federal §2255 habeas corpus lawyer Elizabeth Franklin-Best is available to help you prepare for potential challenges to your conviction or sentence based on the Supreme Court’s decision in NYSRPA v. Bruen. 

If you need help with a 2255 motion in federal court, or if you believe you might have grounds for challenging your state-court conviction in a federal habeas corpus action, we want to help.

For more information, call us at (803) 445-1333 or send us an email to set up a consultation about your case.