DENVER — A federal judge has granted a temporary restraining order against some of the new gun ordinances passed by the town of Superior last month.
U.S. District Court Judge Raymond Moore ruled on Friday to grant portion of the restraining order after Rocky Mountain Gun Owners filed a lawsuit to block the ordinances.
“We knew that these ordinances that they passed was (sic) unconstitutional,” said Taylor Rhodes, the executive director of Rocky Mountain Gun Owners.
Those ordinances came in the wake of a law passed by state legislators last year to allow local governments to have local control over gun regulations.
SB21-256 allowed local governments to pass gun measures that are more restrictive than the state’s but not less restrictive.
In the wake of the King Soopers mass shooting in Boulder, Superior and three other cities recently passed their own ordinances.
Among Superior’s new ordinances:
- A ban on assault weapons, large-capacity magazines and rapid-fire trigger activators; as well as raising the age to purchase firearms
- Prohibiting open carry of firearms in public places
- Prohibiting the sale or possession of illegal weapons
Then, in July, the gun rights group Rocky Mountain Gun Owners filed a lawsuit against the Town of Superior and the Boulder County Sheriff saying the ordinance violates Superior residents and RMGO members’ Second and Fourteenth Amendment rights.
In his decision, Judge Moore granted part of the temporary restraining order, denied part of it and deferred part of it.
He granted a temporary block of Superior’s ordinance to prohibit the possession or sale of an illegal weapon, which is defined as an assault weapon, large-capacity magazine, rapid- fire trigger activator, blackjack, gas gun, metallic knuckles, gravity knife or switchblade knife.
“The Court is sympathetic to the Town’s stated reasoning. However, the Court is unaware of historical precedent that would permit a governmental entity to entirely ban a type of weapon that is commonly used by law-abiding citizens for lawful purposes, whether in an individual’s home or in public,” the decision read.
Moore also temporarily blocked the ordinance that required residents who owned an assault weapon before July 1, 2022 to obtain a certificate for it in order to continue to legally possess it. Even after obtaining a certificate, the ordinance stipulates that the gun is only legal in the person’s property or at a gun shop or shooting range.
It also prohibits the sale, purchase or transfer of these weapons.
“The temporary restraining order that they issued is actually a really good sign of what's to come,” Rhodes said.
A third portion of the lawsuit that took aim at an ordinance banning open carry in public places was not granted a temporary restraining order.
“Look, the judge that we drew is an Obama appointee and he even agrees with us on this. He agrees that this is unconstitutional, what they've done,” said Rhodes. “If he agrees with us, I don't know how they're going to get away with any of the stuff that they passed over the last ten years.”
Rhodes says RMGO decided to go after Superior first because they believe the town is spearheading the gun reform efforts for localities and pushing other local governments to do the same.
Now, RMGO is planning on seeking temporary restraining orders for other cities and counties that have passed similar legislation until a final decision is reached on the lawsuit.
The decision to temporarily block Superior’s laws comes on the heels of another major court ruling: The U.S. Supreme Court’s decision to strike down a New York gun law that required people to demonstrate a clear need before they could obtain a concealed carry license. The court held that this was a violation of Second Amendment rights.
“The Supreme Court ruling said that states that don't have gun licensing laws for concealed carry, like Colorado does, have to join the national norm and make it possible for law abiding adults to get a permit,” said David Kopel, an adjunct professor of constitutional law at the University of Denver.
That portion of the decision does not affect Colorado because the state has a gun permitting process. The part of the Supreme Court decision that could affect the state, however, said that lower court judges shouldn’t be making their own policy decisions about whether a particular gun control is a good idea or not. Instead, the ruling says decisions about gun laws should be based on history and tradition.
“This was a 6-3 Supreme Court decision. So, it's not the kind of thing that, you know, could change just because one justice retires,” Kopel said.
Kopel says while there is historical precedent for prohibiting dangerous people from obtaining firearms, there is not precedent for banning certain magazine capacity sizes.
He believes the RMGO lawsuit has a good chance of getting through based on this Supreme Court decision. It won’t block SB21-256 in its entirety, though, because municipalities could still pass other gun laws, so long as they comply with the Second Amendment.
“The bottom line is the state and local laws, to the extent that they are regulatory, about how you exercise the right, those have the better chance of being upheld, compared to the laws that are prohibitory,” Kopel said.
Rhodes believes the SCOTUS decision in New York State Rifle & Pistol Association v. Bruen could impact RMGO’s case in Colorado.
“The Bruen decision gave us a four-ton wrecking ball to dismantle any and all unconstitutional gun laws here in the state of Colorado,” he said. “This could actually lift the statewide magazine ban that was instituted in 2013. But not only that, it could block any type of assault weapons ban or classification ban meaning accessories.”
Senate President Steve Fenberg, D-Boulder, was one of the prime sponsors of SB21-256 that gave localities a right to come up with stricter gun laws. He supports Superior’s efforts to try to restrict gun access within its boundaries.
“This is a community trying to take matters into their own hands and do what they can to keep their citizens safe,” Fenberg said.
He is disappointed with both the Supreme Court’s decision and the temporary restraining order to block Superior’s laws but says he’s not going to stop trying to pursue gun legislation.
“Whatever is going to take, my party — and as long as I'm in the legislature — we are going to continue to investigate and explore ways to keep people safe,” Fenberg said.
He is working with stakeholders to come up with other state legislation around guns but says he’s not quite sure what form the bills will take just yet.
The bottom line, though, is he wants to pass policies he believes will save lives regardless of court decisions.
“I think there are a lot of questions all over this country on gun policies and what is going to pass moving forward. The reality cannot be that we just simply say, 'Well, the Supreme Court ruled and it was interpreted this way and that way and therefore we're not going to pursue more action,'” Fenberg said.
The restraining order lasts for two weeks. A hearing is set for Aug. 4 on the case at which point Moore could decide to extend the restraining order for another two weeks or even grant a preliminary injunction against Superior’s laws. That would put them on hold indefinitely until the lawsuit could play out in court.