Citation(s) from the literature library

Giffords Law Center to Prevent Gun Violence. 2023 ‘Preemption of Local Laws in Colorado.’ Other Laws & Policies. San Francisco, CA: Giffords Law Center to Prevent Gun Violence. 1 February

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[Editor's note: The Giffords Law Center to Prevent Gun Violence regularly updates its webpages with new data as US gun regulation evolves state by state. For the most up-to-date information on US gun laws, please refer to the Giffords URL below]

Local Authority to Regulate Firearms in Colorado

Article XX, § 6 of the Colorado Constitution, entitled "[h]ome rule for cities and towns" provides, in part, that:

The people of each city or town of this state, having a population of two thousand inhabitants as determined by the last preceding census taken under the authority of the United States, the state of Colorado or said city or town, are hereby vested with, and they shall always have, power to make, amend, add to or replace the charter of said city or town, which shall be its organic law and extend to all its local and municipal matters.

Such charter and the ordinances made pursuant thereto in such matters shall supersede within the territorial limits and other jurisdiction of said city or town any law of the state in conflict therewith.

Article XX, § 6 is designed to "grant and confirm to the people of all municipalities coming within its provisions the full right of self-government in both local and municipal matters."

In determining the respective authority of the state legislature and home rule municipalities, the Supreme Court of Colorado has recognized three broad categories of regulatory matters: local concern, state concern, or mixed local and state concern. In matters of local concern, both home rule cities and the state may legislate, but when a home rule ordinance or charter provision and a state statute conflict, the home rule provision supersedes the conflicting state provision. In matters of statewide concern, the General Assembly may adopt legislation and preempt the power of home rule municipalities to enact conflicting legislation. Finally, in matters of mixed local and state concern, a home rule municipality's charter or ordinance provision may coexist with a state statute so long as there is no conflict. In the event of a conflict, the state statute supersedes the charter or ordinance.

Although the three categories are not "mutually exclusive or factually perfect, several general factors are useful under a totality of circumstances test to determine whether an issue is one of state, local, or mixed local and state concern, including the need for statewide uniformity of regulation, extraterritorial impact, other state interests, and local interests."

Colorado has also adopted several preemption statutes related to firearms. Colorado Revised Statutes § 29-11.7-103 provides:

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. Any such ordinance, regulation, or other law enacted by a local government prior to March 18, 2003, is void and unenforceable.

Colorado Revised Statutes § 29-11.7-101(2) refers to the regulation of firearms as a matter of "statewide concern" and declares a need for statewide uniformity of regulation in the area of firearms. That statute also declares that inconsistency among local jurisdictions has an extraterritorial impact on state citizens and the general public.

Moreover, section 18-12-105.6(2) provides that:

[n]o municipality, county, or city and county shall have the authority to enact or enforce any ordinance or resolution that would restrict a person's ability to travel with a weapon in a private automobile…while traveling into, through, or within, a municipal, county, or city and county jurisdiction….

The state concealed weapons act provides in its legislative findings that "[i]t is necessary that the state occupy the field of regulation of the bearing of concealed handguns." Local governments may still enact regulations prohibiting the open carrying of firearms in a building or specific area within the local government's jurisdiction, as long as the local government posts signs to that effect.

Subsequent to these enactments, the City and County of Denver ("City") sued the state seeking declaratory and injunctive relief regarding Denver ordinances that, among other provisions:

1) regulated the open carrying of firearms;
2) banned assault weapons and Saturday night specials; and
3) restricted the open carrying of firearms in city parks.

On November 5, 2004, Denver District Court Judge Joseph Meyer granted declaratory and injunctive relief to the City with regard to several ordinances and portions of ordinances. The court also found that state law renders some of Denver's ordinances and portions of ordinances invalid, however.

In making its ruling, the court determined on a case-by-case basis whether each ordinance at issue addressed a matter of local concern, statewide concern, or mixed local and statewide concern. The court determined that Denver's ordinances regulating the open carrying of firearms, assault weapons and Saturday night specials, and the open carrying of firearms in city parks involve matters of local concern and enjoined the state from enforcing its preemption laws against the City in these areas.

The court held that ordinances and portions of ordinances addressing juvenile possession of firearms, carrying concealed firearms with a permit in a public park, and concealed weapon permitting, involved matters of mixed local and state concern (the City conceded the point as to concealed weapon permitting) and were invalid where they conflicted with state law.

In determining that the ordinances addressing the open carrying of firearms, assault weapons, Saturday night specials, and the open carrying of firearm in city parks were matters of local concern, the court noted the unique characteristics that differentiate Denver from other parts of the state, such as high population density and a high crime rate, stating that these characteristics outweigh the need for statewide uniformity in these areas. The court quoted a statement made by the Assistant City Attorney at oral argument, "Simply put, a bullet fired in Denver - whether maliciously by a criminal or negligently by a law-abiding citizen - is more likely to hit something or somebody than a bullet fired in rural Colorado."

An analogous lawsuit was filed against Denver by the Aurora Gun Club seeking to invalidate the same Denver ordinances, with a similar outcome.

The Supreme Court of Colorado considered the appeal of these two cases in early 2006. On June 5, 2006, in an unusual 3-3 court deadlock, the aforementioned lower-court decisions were allowed to stand. Thus, Denver may now enforce its ordinances regulating the open carrying of firearms generally and in city parks, and banning assault weapons and Saturday night specials. The split provided no clear ruling on the preemption issues involved with these firearm ordinances.

Colorado provides that 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.

Finally, state law prohibits local governments from enacting noise regulations concerning shooting ranges. Counties may regulate the discharge of firearms in areas with an average population of at least 100 persons per square mile…

ID: Q7701

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