Petition for Writ of Certiorari — Jon C. Caldara, et al., Petitioners v. City of Boulder, Colorado, et al.

Supreme Court briefSep 24, 2020

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No. __________

In the

Supreme Court of the United States

♦

JON C. CALDARA; BOULDER RIFLE CLUB, INC.;

GENERAL COMMERCE, LLC; TYLER FAYE; and

MARK RINGER,

Petitioners,

CITY OF BOULDER; JANE S. BRAUTIGAM, City

Manager of the City of Boulder, in her official

capacity; MARIS HEROLD, Chief of Police of the

City of Boulder, in her official capacity,

Respondents.

♦

On Petition For Writ Of Certiorari To The

United States Court Of Appeals

For The Tenth Circuit

♦

PETITION FOR WRIT OF CERTIORARI

♦

Cristen A. Wohlgemuth*

*Counsel of Record

Cody J. Wisniewski

MOUNTAIN STATES

LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

cristen@mslegal.org

cody@mslegal.org

September 24, 2020

Counsel for Petitioners

QUESTIONS PRESENTED

Contrary to this Court’s precedent, the courts

below exercised Pullman abstention, delaying

adjudication of constitutional questions despite the

challenged laws’ chilling effect on the exercise of a

natural, fundamental right. In so doing, both courts

relegated consideration of abstention’s effect on

Petitioners’ Second Amendment protected rights to a

discretionary afterthought, rather than the threshold

inquiry as conducted by this Court. Further, neither

court considered the effect of Petitioners’ damages

claims on the Pullman inquiry; namely, that

regardless of the resolution of the state law questions,

a federal court must evaluate the federal

constitutional issues in order to evaluate Petitioners’

damages claims properly sought against a

municipality under 42 U.S.C. § 1983. Finally, the

lower courts did not employ a surgical, issue-by-issue

Pullman abstention analysis as mandated by this

Court, instead opting for an all or nothing approach.

As such, the questions presented to this Court are:

Is Pullman abstention appropriate where

abstaining has a chilling effect on the

exercise of a natural, fundamental,

constitutionally protected right?

Is Pullman abstention appropriate in a case

involving damages when there is no

possibility of limiting the constitutional

questions put before a federal district court?

Did the lower courts err in failing to

appropriately and adequately analyze

Pullman abstention on an issue-by-issue

basis, as mandated by this Court?

PARTIES TO THE PROCEEDINGS

Petitioners are Jon C. Caldara; Boulder Rifle

Club, Inc., a nonprofit corporation; General

Commerce, LLC, d/b/a Bison Tactical, a Wyoming

limited liability company; Tyler Faye; and Mark

Ringer. All Petitioners were plaintiffs in the United

States District Court for the District of Colorado and

appellants in the United States Court of Appeals for

the Tenth Circuit.

Respondents are the City of Boulder, a Colorado

home rule municipality; Jane S. Brautigam, City

Manager of the City of Boulder, in her official

capacity; and Maris Herold, Chief of Police of the City

of Boulder, in her official capacity. The City of

Boulder and Jane S. Brautigam were both defendants

in the United States District Court for the District of

Colorado and appellees in the United States Court of

Appeals for the Tenth Circuit.

Maris Herold’s

predecessor, Gregory Testa, was as well, and the Chief

of Police of the City of Boulder was and is sued in his

or her official capacity. Maris Herold was appointed

to the position in April 2020.

iii

CORPORATE DISCLOSURE STATEMENT

Pursuant to Supreme

Petitioners state as follows:

Court

Rule

29.6,

Petitioner Boulder Rifle Club, Inc. has no parent

corporation and no publicly held company owns 10

percent of more or its stock.

Petitioner General Commerce, LLC, d/b/a Bison

Tactical, has no parent corporation and no publicly

held company owns 10 percent or more of its stock.

The remaining Petitioners are individuals.

RELATED CASES

•

Caldara v. City of Boulder, No. 18-cv-01211, U.S.

District Court for the District of Colorado.

Abstention order entered September 17, 2018.

•

Caldara v. City of Boulder, No. 18-1421, U.S.

Court of Appeals for the Tenth Circuit. Judgment

entered April 10, 2020.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ............................

PARTIES TO THE PROCEEDINGS ..............

CORPORATE DISCLOSURE

STATEMENT ...................................................

iii

RELATED CASES ...........................................

iii

TABLE OF AUTHORITIES ............................

vii

PETITION FOR WRIT OF CERTIORARI .....

OPINIONS BELOW.........................................

JURISDICTION ...............................................

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ..............................

STATEMENT OF THE CASE .........................

Factual Background .........................

Procedural History ...........................

REASONS FOR GRANTING THE

PETITION ........................................................

The Tenth Circuit Failed To Treat The

Chilling Of A Natural, Fundamental

Right As A Primary Consideration For

Pullman Abstention .................................

II.

The Tenth Circuit Did Not Conduct Its

Pullman Analysis In The Manner

Prescribed By This Court ........................

The Constitutional Questions

Cannot be Avoided ...........................

The Tenth Circuit Failed to

Conduct its Pullman Analysis on

an Issue-by-Issue Basis, Instead

Remaining at an Abstract Level......

III. This Case Presents An Ideal Vehicle

For This Court To Reinforce Its Modern

Pullman

Jurisprudence

While

Maintaining A Statutory Status Quo ......

CONCLUSION .................................................

TABLE OF APPENDICES

Appendix A

Opinion of the United States Court of

Appeals for the Tenth Circuit, Caldara v.

City of Boulder, No. 18-1421 (April 10,

2020) ............................................................ App-1

Appendix B

Order of the United States Court of

Appeals for the Tenth Circuit Denying

Petition for Rehearing En Banc, Caldara

v. City of Boulder, No. 18-1421 (June 11,

2020) ............................................................ App-18

Appendix C

Opinion and Order of the United States

District Court for the District of

Colorado, Caldara v. City of Boulder, No.

18-cv-01211 (Sept. 17, 2018) ...................... App-20

Courtroom Minutes regarding Pullman

briefing of the United States District

Court for the District of Colorado,

Caldara v. City of Boulder, No. 18-cv01211 (Aug. 15, 2018) ................................. App-36

Appendix D

Constitutional and Statutory Provisions Involved

U.S. CONST. Amend. II ............................... App-39

U.S. CONST. Amend. V ............................... App-39

U.S. CONST. Amend. XIV ........................... App-39

C.R.S. § 18-12-301....................................... App-40

C.R.S. § 29-11.7-101.................................... App-41

C.R.S. § 29-11.7-102.................................... App-42

C.R.S. § 29-11.7-103.................................... App-43

Appendix E

Ordinance 8245 - City Council of the

City of Boulder ............................................ App-47

Ordinance 8259 - City Council of the

City of Boulder ............................................ App-67

vii

TABLE OF AUTHORITIES

Page(s)

CASES

Allegheny Cty. v. Frank Mashuda Co.,

360 U.S. 185 (1959)..................................... 10, 26

Babbitt v. United Farm Workers

Natl. Union,

442 U.S. 289 (1979).....................................

Cedar Shake & Shingle Bureau v.

City of Los Angeles,

997 F.2d 620 (9th Cir. 1993) ......................

Chambers v. City of Boulder,

No. 2018-CV-30581 (Colo. D. Ct.,

Boulder Cty., June 14, 2018) ......................

City of Houston v. Hill,

482 U.S. 451 (1987).................................. 15, 16, 25

Colorado River Water Conservation

Dist. v. United States,

424 U.S. 800 (1976).....................................

District of Columbia v. Heller,

554 U.S. 570 (2008).....................................

Dombrowski v. Pfister,

380 U.S. 479 (1965)............................. 13, 15, 16, 25

England v. Louisiana Bd. of

Medical Examiners,

375 U.S. 411 (1964).....................................

Expressions Hair Design v. Schniderman,

137 S. Ct. 1144 (2017).................................

viii

Harman v. Forssenius,

380 U.S. 528 (1965)..................................... passim

Harrison v. NAACP,

360 U.S. 167 (1959).....................................

Hirabayashi v. United States,

320 U.S. 81 (1943).........................................

Korematsu v. United States,

323 U.S. 214 (1944) ......................................

Lake Carriers’ Ass’n v. MacMullan,

406 U.S. 498 (1972).....................................

Lehman v. City of Louisville,

967 F.2d 1474 (10th Cir. 1992)...................

4, 19

McDonald v. City of Chicago,

561 U.S. 742 (2010).................................. 1, 24, 25

Monell v. Dept. of Soc. Servs. of

City of New York,

436 U.S. 658 (1978).....................................

New York State Rifle & Pistol Ass’n, Inc. v.

City of New York, New York,

140 S. Ct. 1525 (2020).................................

Osterweil v. Bartlett,

706 F.3d 139 (2d Cir. 2013) ........................

Quackenbush v. Allstate Ins. Co.,

517 U.S. 706 (1996).....................................

R.R. Comm’n of Tex. v. Pullman Co.,

312 U.S. 496 (1941)...............................

Reetz v. Bozanich,

397 U.S. 82 (1970)....................................

passim

Robb v. Connolly,

111 U.S. 624 (1884).....................................

Trump v. Hawaii,

138 S. Ct. 2392 (2018)...................................

United States v. Bureau of Revenue

of State of N.M.,

291 F.2d 677 (10th Cir. 1961) ....................

Vinyard v. King,

655 F.2d 1016 (10th Cir. 1981)...................

Wilcox v. Consolidated Gas Co. of N.Y.,

212 U.S. 19 (1909).......................................

Wisconsin v. Constantineau,

400 U.S. 433 (1971)..................................... 14, 25

Zwickler v. Koota,

389 U.S. 241 (1967)........................... 10, 13, 15, 25

CONSTITUTIONAL PROVISIONS

U.S. CONST. Art. I .............................................

U.S. CONST. Amend. I .................................. 15, 25, 26

U.S. CONST. Amend. II ..................................... passim

U.S. CONST. Amend. V .................................. 6, 25, 26

U.S. CONST. Amend. XIV ................................. passim

U.S. CONST. Amend. XVII ............................. 2, 14, 25

U.S. CONST. Amend. XXIV ............................ 2, 14, 25

STATUTES

Civil Rights Act of 1964, 78 Stat. 241, 42

U.S.C. § 2000d et seq. (1964)............................ passim

28 U.S.C. § 1254(1)...........................................

28 U.S.C. § 1331 ...............................................

28 U.S.C. § 1334(a)(3) ......................................

28 U.S.C. § 2201 ...............................................

28 U.S.C. § 2202 ...............................................

42 U.S.C. § 1983 ............................................... passim

C.R.S. § 18-12-301(2) .......................................

C.R.S. § 29-11.7-103 ......................................... 18, 23

RULES

Sup. Ct. R. 29.6 ................................................

iii

PETITION FOR WRIT OF CERTIORARI

The Second Amendment has been a heavily

litigated issue in federal courts since this Court’s

opinions in 2008 and 2010. District of Columbia v.

Heller, 554 U.S. 570 (2008); McDonald v. City of

Chicago, 561 U.S. 742 (2010). Such litigation is

necessary to allow parties and courts to elucidate the

precise contours of the protections afforded by the

Second Amendment—protections sparsely, and only

relatively recently, addressed by this Court.

Petitioners, however, were not afforded the

opportunity to test the City of Boulder’s laws against

the United States Constitution. Petitioners ask this

Court to grant their Petition for Writ of Certiorari to

simply allow them to litigate their federal

constitutional claims, rather than sanction the

continued chilling effect on the exercise of Petitioners’,

and all Boulder residents’, natural and fundamental

rights for the foreseeable future.

The lower courts’ invocation of the Pullman

abstention doctrine, as first set forth in Railroad

Commission of Texas v. Pullman Company, 312 U.S.

496 (1941), is contrary to this Court’s aversion to

employing the doctrine in cases where there is, or even

may be, a chilling effect on the exercise of a natural,

fundamental right.

The Pullman doctrine,

established in 1941, remained in its original form for

a number of years, highlighting the importance of

comity between the federal and state courts. The

underlying principles of the doctrine are noble—to

ensure state courts have the first opportunity to

adjudicate important questions of state law, conserve

the resources of federal courts by narrowing or

eliminating the federal questions before them, and to

reinforce the principles of federalism. But our Nation

had an inappropriately limited view of individual,

civil rights in the 1940s and 1950s.

In 1964, Congress passed a new iteration of the

Civil Rights Act, recognizing that expanded federal

jurisdiction was necessary to ensure all Americans

could fairly vindicate their civil rights in a federal

forum. Civil Rights Act of 1964, 78 Stat. 241, 42

U.S.C. § 2000d et seq. (1964). Congress provided an

enhanced enforcement mechanism under 42 U.S.C. §

1983, ensuring that any citizen of the United States

could bring federal suit against their state or

municipal government for violations of a citizen’s

rights under color of law. This Court’s treatment of

those rights necessarily took a similar and

concomitant shift.

This Court recognized a related refinement of its

Pullman jurisprudence as early as 1965. When

individuals from the State of Virginia brought a

federal court action alleging violations of the TwentyFourth and Seventeenth Amendments, this Court had

the opportunity to evaluate the interplay of Pullman

abstention and fundamental rights. Harman v.

Forssenius, 380 U.S. 528, 537 (1965) (“In appraising

the motion to stay proceedings, the District Court was

thus faced with a claimed impairment of the

fundamental civil rights of a broad class of citizens.”).

The nature of the right under attack and the harm

from the inhibited exercise of the right were given new

prominence: “In addition to the clarity of the Virginia

statutes, support for the District Court's refusal to

stay the proceedings is found in the nature of the

constitutional deprivation alleged and the probable

consequences of abstaining.” Id. (citations omitted).

Pullman abstention has, however, remained

appropriate in cases involving minor federal or

statutorily created rights, such as disputes over

standards for water quality, the scope of a fishing

license, or proper roofing materials.

See Lake

Carriers’ Ass’n v. MacMullan, 406 U.S. 498 (1972)

(addressing regulation of the discharge of treated

sewage); Reetz v. Bozanich, 397 U.S. 82 (1970)

(reviewing regulation of salmon net gear licenses for

commercial fishing); Cedar Shake & Shingle Bureau

v. City of Los Angeles, 997 F.2d 620, 621 (9th Cir.

1993) (examining ban on wooden roofing shingles).

The nature of the right at issue is central to this

Court’s inquiry.

The elevated consideration of the type of right

impacted, however, has not been uniformly recognized

by the lower courts when conducting Pullman

analyses. Here, the City of Boulder enacted multiple

ordinances that not only prohibit the possession of

constitutionally protected property but also impose a

chilling effect on the exercise of Petitioners’, and all

Boulder residents’, natural, fundamental rights.

Even so, this Court need not rule on the merits of

Petitioners’ Second Amendment, or other federal

constitutional, claims. Instead, this Court should

grant certiorari to affirmatively clarify for the lower

courts the developments in Pullman jurisprudence

and to ensure Petitioners and future litigants are not

forced to suffer a prolonged, unconstitutional chilling

on the exercise of their most basic rights.

In addition to the lower courts’ failure to

recognize the evolution of the Pullman doctrine, the

courts failed to recognize that the basic Pullman

factors are not satisfied here. The lower courts’

divergence from this Court’s established precedent is

significant enough to warrant this Court’s review on

the merits.

The Pullman Court established three factors

that must be met before a federal court may abstain.

If even a single factor is not met, then abstention is

inappropriate—there is no discretion. In the Tenth

Circuit, those factors are articulated as:

(1) an uncertain issue of state law underlies

the federal constitutional claim; (2) the state

issues are amenable to interpretation and

such an interpretation obviates the need for

or substantially narrows the scope of the

constitutional claim; and (3) an incorrect

decision of state law . . . would hinder

important state law policies.

Lehman v. City of Louisville, 967 F.2d 1474, 1478

(10th Cir. 1992) (citations omitted).

Here, the lower courts erred by failing to

recognize that Petitioners’ damages claim prevents

the second factor of Pullman from being met—no

decision of state law will obviate the need for a federal

court to evaluate whether Petitioners suffered

constitutional violations that entitle them to damages

under federal law. Petitioners properly pled damages

claims in their Complaint, and if Petitioners are

successful on the merits, the City of Boulder is liable

for damages under 42 U.S.C. § 1983. Even if a state

court decides the entirety of Boulder’s ordinances are

preempted under state law, a federal court must still

determine if those same ordinances are federally

unconstitutional. There is no state provision that

would provide Petitioners with any alternative form

of monetary relief.

The lower courts also erred in failing to engage

in a thorough analysis of the individual issues at play,

as is the practice of this Court. If the lower courts had

analyzed the three Pullman factors on a surgical,

issue-by-issue basis, they would have determined that

not all of the challenged provisions of Boulder’s

ordinances meet the stringent requirements for

abstention. In those instances, Pullman abstention is

not appropriate, and this Court should grant

certiorari to allow Petitioners to proceed with their

claims in a federal forum.

Petitioners do not ask this Court to create a new

rule of law utterly prohibiting abstention in all cases

brought pursuant to 42 U.S.C. § 1983. Instead,

Petitioners ask this Court to grant their Petition for

Writ of Certiorari to review and firmly establish this

Court’s unwillingness to allow for abstention in cases

where there is a chilling effect on the exercise of a

fundamental right and to ensure the Pullman factor

analysis is adhered to by the lower courts. Federal

court jurisdiction, and the right of individuals to seek

vindication of their rights, is simply too important to

allow the lower courts’ precedent to stand.

♦

OPINIONS BELOW

The Tenth Circuit’s opinion is reported at 955

F.3d 1175 and reproduced at App.1–17. The order

denying rehearing en banc is reprinted at App.18–19.

The district court’s opinion is reported at 341 F. Supp.

3d 1241 and reproduced at App.20–35.

♦

JURISDICTION

The Tenth Circuit issued its opinion on April 10,

2020. Petitioners timely filed a petition for rehearing

en banc, which the court denied on June 11, 2020.

This Petition is timely filed on September 24, 2020.

This Court has jurisdiction under 28 U.S.C. § 1254(1).

The district court had jurisdiction in this matter

pursuant to 28 U.S.C. §§ 1331, 1334(a)(3), 2201, 2202,

and 42 U.S.C. § 1983.

♦

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Second, Fifth, and Fourteenth Amendments

to the United States Constitution, as well as the

relevant portions of Colorado state law and the City of

Boulder’s Ordinances are reproduced at App.39–71.

♦

STATEMENT OF THE CASE

Factual Background

In May 2018, the Boulder City Council approved

Ordinance 8245 banning the sale, possession, and

transfer of certain firearms and magazines commonly

owned by law-abiding citizens for self-defense and

other lawful purposes. App.47–66. The ordinance

also raised the age for legal firearm purchase and

possession from eighteen to twenty-one years of age.

App.53. The ordinance immediately became law in

the City of Boulder, infringing upon the natural,

fundamental, constitutionally protected rights of

Boulder residents. App.63. The Boulder City Council

soon thereafter approved Ordinance 8259, making

certain amendments to provisions that were

established by Ordinance 8245 (collectively,

“Ordinances”). App.64–71. Ordinance 8259, inter

alia, removed a previously enacted exemption for

handgun magazines possessed in compliance with

state law and removed the exemption for persons

authorized to carry a concealed weapon under the Law

Enforcement Officers Safety Act. App.65–66.

Procedural History

Petitioners filed their original complaint in the

United States District Court for the District of

Colorado one day after the Boulder City Council

approved Ordinance 8245.

Petitioners allege

Boulder’s Ordinances and Defendants’ actions violate

multiple provisions of the U.S. Constitution—

including the Second Amendment—as well as other

federal and state laws. Petitioners seek declaratory

and injunctive relief, as well as damages under 42

U.S.C. § 1983.

At a status hearing, the district court ordered the

parties brief whether Pullman abstention applied in

this matter. App.36–38. On September 17, 2018, the

district court entered an Opinion and Order of

Abstention Pursuant to Pullman. App.20–35. The

district court found the necessary Pullman abstention

factors present and that no factors sufficiently

weighed against abstention. App.23–34. The district

court’s analysis of the nature of the rights at issue

occurred after its Pullman factor analysis, and was

framed as a discretionary consideration. App.30–32.

The court abstained from adjudicating Petitioners’

federal and constitutional claims until a “state court

can conclusively resolve the question of whether the

Ordinances are preempted” by Colorado state law and

administratively closed the case. App.34.1

Petitioners appealed and the parties presented

oral argument on September 24, 2019. On April 10,

2020, the Tenth Circuit Panel affirmed the district

court’s order invoking Pullman to abstain from

adjudicating Petitioners’ federal and constitutional

After Petitioners filed their case in the federal district court,

a separate group of plaintiffs, unaffiliated with Petitioners, filed

a lawsuit challenging some state law aspects of the Ordinances in

state court. Chambers v. City of Boulder, No. 2018-CV-30581

(Colo. D. Ct., Boulder Cty. filed June 14, 2018). The state case is

still pending but does not cover all of the same claims as

Petitioners’ Complaint. The previously set trial date of April 2021

has been vacated as plaintiffs are only proceeding on two, state

law claims—registration and magazine limits. All other claims

have been dismissed by the court or by the plaintiffs.

claims. App.1–17. The panel found each Pullman

factor present and that no factors sufficiently weighed

against abstention. App.6–17. The Tenth Circuit

Panel, like the district court, relegated analysis of the

rights at issue to a question of discretion, only briefly

examining the chilling effect on Petitioners’ natural,

fundamental rights after the Panel’s Pullman

analysis. App.14–17.

As demonstrated below, the Panel Opinion

affirming Pullman abstention is inconsistent with

this Court’s precedent establishing the weight federal

courts accord the chilling effect of natural,

fundamental rights when weighing whether a federal

court should stay its hand and defer ruling. The Panel

Opinion

also

gave

improperly

constrained

consideration to the unavoidability of the

constitutional questions at issue.

♦

REASONS FOR GRANTING THE PETITION

“[F]ederal courts have a strict duty to exercise

the jurisdiction that is conferred upon them by

Congress.” Quackenbush v. Allstate Ins. Co., 517 U.S.

706, 716 (1996) (citations omitted); see Colorado River

Water Conservation Dist. v. United States, 424 U.S.

800, 821 (1976) (Stewart, J., dissenting) (“[F]ederal

courts have a virtually unflagging obligation . . . to

exercise the jurisdiction given them.”) (internal

quotations omitted); England v. Louisiana Bd. of

Medical Examiners, 375 U.S. 411, 415 (1964) (“When

a Federal Court is properly appealed to in a case over

which it has by law jurisdiction, it is its duty to take

such jurisdiction.”) (quoting Wilcox v. Consolidated

Gas Co. of N.Y., 212 U.S. 19, 40 (1909)).

Congress imposed the duty upon all levels of

the federal judiciary to give due respect to a

suitor's choice of a federal forum for the

hearing and decision of his federal

constitutional claims. Plainly, escape from

that duty is not permissible merely because

state courts also have the solemn

responsibility, equally with federal courts,

“. . . to guard, enforce, and protect every

right granted or secured by the

[C]onstitution of the United States . . . .”

Zwickler v. Koota, 389 U.S. 241, 248 (1967) (quoting

Robb v. Connolly, 111 U.S. 624, 637 (1884)).

This Court established Pullman abstention to

provide some level of deference to state courts

regarding important, unanswered questions of state

law when such questions are enmeshed with a federal

or constitutional claim. R.R. Comm’n of Tex. v.

Pullman Co., 312 U.S. 496, 498–502 (1941). This

Court, however, also emphasizes that federal courts

abstaining under Pullman should do so rarely, and

only in the most exceptional of circumstances. See,

e.g., Allegheny Cty. v. Frank Mashuda Co., 360 U.S.

185, 188 (1959) (“The doctrine of abstention . . . is an

extraordinary and narrow exception . . . .”).

In Pullman, decided during the Jim Crow Era,

the Pullman Company filed suit against the Railroad

Commission of Texas for promulgating a regulation

that prevented black Pullman porters from working in

sleeping cars on railways in Texas—effectively

banning black Pullman porters from working in Texas

altogether. Pullman, 312 U.S. at 497–98.2 Instead of

evaluating the Texas regulation against the United

States Constitution, the Pullman Court deferred

consideration of the case to allow Texas state courts to

determine whether the Railroad Commission had the

authority to promulgate the regulation in the first

place—something the Court deemed to be an as yet

unresolved question of state law. Id. at 501–02.

When deciding to abstain, the Pullman Court

made a threshold finding that the case “touches a

sensitive area of social policy upon which the federal

courts ought not enter unless no alternative to its

adjudication is open.” Id. at 498 (emphasis added).

The areas of social policy federal courts “ought not

enter,” however, were fundamentally altered in 1964

by the enactment of the new iteration of the Civil

Rights Act. An evolution thoroughly recognized by

this Court. The Tenth Circuit Panel Opinion, and the

district court, erred when they failed to recognize, as

this Court has, that federal courts’ expanded role in

civil rights concomitantly narrowed Pullman

abstention.

Notably, the Pullman Company brought claims alleging

violations of the Equal Protection Clause and the Due Process

Clause of the Fourteenth Amendment, as well as the Commerce

Clause of Article I of the United States Constitution. Pullman,

312 U.S. at 498. In addition, “[t]he intervening porters adopted

these objections but mainly objected to the order as a

discrimination against Negroes in violation of the Fourteenth

Amendment.” Id.

The Tenth Circuit Failed To Treat The

Chilling Of A Natural, Fundamental Right

As A Primary Consideration For Pullman

Abstention

For the last several decades, this Court has

treated evaluation of abstention’s effect on natural,

fundamental rights as paramount to the Pullman

factors. The lower courts, however, erroneously

relegated consideration of the chilling effect on

Petitioners’ natural, fundamental right to keep and

bear arms to a discretionary afterthought.

In contrast to this Court’s disfavor of abstention

in cases where there is a chilling effect on the exercise

of a natural, fundamental right, the Tenth Circuit

stated, “consideration of the nature of the right and

the chilling effect of abstention is a secondary

assessment to determining whether the Pullman

requirements are met.” App.15 (citing Harman, 380

U.S. at 535–37). The Tenth Circuit reached this

conclusion, in part, by observing, “in each Supreme

Court case cited by [Petitioners] to support their

chilling argument, the Court determined that at least

one of the Pullman factors was not satisfied.” App.15

n.7 (citation omitted). As a result, the Tenth Circuit

treated the nature of the rights at issue as a minor,

discretionary consideration.

Our nation has not always demonstrated the

appropriate reverence for all Americans’ natural,

fundamental rights. But, as a growing Republic, our

collective treatment of the importance of individual

rights, in all individuals, has greatly progressed—as

has our national jurisprudence. Compare Korematsu

v. United States, 323 U.S. 214, 218 (1944) (“[W]e

cannot reject as unfounded the judgment of the

military authorities and of Congress that there were

disloyal members of [the Japanese-American]

population, whose number and strength could not be

precisely and quickly ascertained.”) (quoting

Hirabayashi v. United States, 320 U.S. 81, 99 (1943))

with Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018)

(“The forcible relocation of U.S. citizens to

concentration camps, solely and explicitly on the basis

of race, is objectively unlawful and outside the scope

of Presidential authority.”). While there have been

many milestones along the way, Congress’s passage of

the Civil Rights Act of 1964 tangibly demonstrated the

importance the federal government now places on the

protection of all Americans’ individual and civil rights.

Since the passage of that Act, this Court’s abstention

jurisprudence has evolved to ensure that state and

municipal

infringements

individuals’

constitutionally protected rights can be properly,

efficiently, and expediently adjudicated in a federal

forum.

One such evolution is this Court’s increased

militance against allowing Pullman abstention when

there is an impermissible chilling effect on the

exercise of a fundamental right, such as free

expression, voting, or due process.

See, e.g.,

Dombrowski v. Pfister, 380 U.S. 479, 489–90 (1965)

(“We hold the abstention doctrine is inappropriate for

cases such as the present one where . . . statutes are

justifiably attacked on their face as abridging free

expression.”); Zwickler, 389 U.S. at 252 (refusing to

abstain due to the possibility of an impermissible

chilling on the exercise of fundamental rights);

Harman v. Forssenius, 380 U.S. 528, 537 (1965)

(“[S]upport for the District Court’s refusal to stay the

proceedings is found in the nature of the

constitutional deprivation [of the fundamental right

to vote] alleged and the probable consequences of

abstaining.”) (citations omitted); Wisconsin v.

Constantineau, 400 U.S. 433, 439 (1971) (refusing to

abstain in a due process case because of no possibility

of state due process protections for plaintiff’s public

reputation). The evaluation of the fundamental rights

at issue is not discretionary, but rather sits at the

forefront of this Court’s analysis to determine whether

Pullman abstention is appropriate. Both the Tenth

Circuit and the district court failed to recognize the

evolution of this Court’s precedent when they noted

the nature of the rights at issue, and any potential

chilling effect on the exercise of those rights, only after

conducting the Pullman factor analysis and assuming

Pullman abstention was appropriate.

In Harman, while this Court stated there was no

ambiguity in the Virginia statutes at issue, the 7-2

majority opinion went much further after noting that

the first Pullman factor was not satisfied. Harman,

380 U.S. at 537. Chief Justice Warren, writing for the

Court, expressly—but according to the lower courts’

reasoning here, needlessly—reiterated that the

alleged impairment of plaintiff’s right to vote,

including alleged Fourteenth, Seventeenth, and

Twenty-Fourth Amendment violations, implicated a

right so important to our Republic that Pullman

abstention was not appropriate. Id. If this Court,

sitting in 1965, considered the fundamental rights

analysis secondary, it would have avoided

unnecessary constitutional pronouncements and

ended its inquiry when it determined the Pullman

factors unmet. If even a single Pullman factor was

unsatisfied, there would be no discretion to abstain.

Instead, this Court specifically analyzed the nature of

the constitutionally protected rights at issue and

refused to abstain due to the chilling effect on the

exercise of the fundamental rights involved. Id.

In City of Houston v. Hill, a facial challenge

under the First Amendment was enough for an 8-1

majority of this Court to determine Pullman

abstention was inappropriate. 482 U.S. 451, 468

(1987) (“Even if this case did not involve a facial

challenge under the First Amendment, we would find

abstention inappropriate.”) (emphasis added). The

Pullman factor analysis detailed by Justice Brennan

in Hill was subsequent and secondary to the

determination that there was an impermissible

chilling effect on plaintiff’s exercise of First

Amendment protected rights. Id.

Given the lack of discretion to abstain when even

a single Pullman factor is not satisfied, then the

nature of the right, and chilling effect on the exercise

of that right, could and should have been ignored by

the Harman and Hill Courts as irrelevant. But that

is not the case. This Court has gone to great lengths,

with significant majorities, to analyze the nature of

the rights involved and to consider the chilling effect

on the exercise of those rights as part of its abstention

analysis. When this Court determines there is a

chilling effect, or even the possibility of a chilling

effect, on the exercise of a natural, fundamental right,

it has been unwilling to allow for Pullman abstention.

See Harman, 380 U.S. at 537; Hill, 482 U.S. at 468;

Dombrowski, 380 U.S. at 492; Zwickler, 389 U.S. at

252.

Initially, the district court in this matter

correctly articulated the standard for abstention in

free expression cases by quoting Hill: “The Supreme

Court has stated that ‘abstention is inappropriate for

cases where statutes are justifiably attacked on their

face as abridging free expression.’” App.30 (quoting

Hill, 482 U.S. at 467 and Dombrowski, 380 U.S. at 489

(1965)).

This standard illuminates this Court’s

treatment of the fundamental rights analysis as

primary and preeminent. The district court, however,

then watered-down consideration of fundamental

rights by adopting the analysis of a footnote in Justice

Powell’s dissenting opinion. App.31 (“[T]he reasons

why free expression cases are particularly ill-suited

for abstention has less to do with their categorical

label and more to do with the interplay of federal and

state law interest in such cases.”) (citing Hill, 482 U.S.

at 476 n.4 (Powell, J., in part concurring in judgment

and dissenting in part)). Notably, Justice Powell

specifically acknowledged how he differed from the

majority opinion on this matter:

The Court concludes that Pullman

abstention is inappropriate for two reasons.

First, it suggests that this Court should be

‘particularly reluctant to abstain in cases

involving facial challenges based on the

First Amendment’ . . . . The Court supports

this conclusion with a citation to

Dombrowski v. Pfister, 380 U.S. 479, 85 S.

Ct. 1116, 14 L.Ed.2d 22 (1965). I see nothing

in that case that supports such a broad

principle.

Hill, 482 U.S. at 476 n.4 (Powell, J., in part concurring

in judgment and dissenting in part) (citation omitted).

The district court attempted to justify its reasoning

when it stated: “In none of these cases did the

Supreme Court simply declare that ‘because free

expression rights are implicated, abstention is

inappropriate.’” App.31 (no citation in original). The

district court’s application of dissenting dicta in place

of this Court’s binding precedent demonstrates the

error of the district court’s truncated Pullman

analysis, which the Tenth Circuit upheld.

The chilling effect of Boulder’s Ordinances is

patent. Since Boulder’s Ordinances prohibit the sale,

possession, and transfer of constitutionally protected

property, the Ordinances prevent Boulder residents

from engaging in constitutionally protected conduct

and increase the likelihood residents will avoid

conduct they reasonably believe will subject them to

both fines and/or incarceration—up to a $1,000 fine

and up to 90 days in jail per violation. J.A. at A025.3

As Boulder likely intended, the prohibition of

constitutionally protected property, and the threat of

punishment, will cause Boulder residents to not

exercise their constitutionally protected rights.

Further, and more insidiously, a probable result

of the Ordinances is that Boulder and other Colorado

residents will fear to exercise their Second

Amendment protected rights more generally.

Residents will be deterred from purchasing and

possessing firearms that are not banned, because they

cannot understand the full extent or limits of the

Ordinances; because of the concern that the ban will

be expanded geographically, or to other Arms; and

“J.A.” refers to the joint appendix Petitioners filed with

the Tenth Circuit.

because they are concerned about owning or having to

assault weapons.”4

This Court should grant the Petition for Writ of

Certiorari to correct the Tenth Circuit’s error and to

formally articulate this Court’s long-standing, wellestablished precedent to analyze Pullman abstention

by considering the chilling effect on Petitioners’

exercise of their natural, fundamental rights. Such

analysis will reveal that Pullman abstention is

inappropriate in this matter.

II.

The Tenth Circuit Did Not Conduct Its

Pullman

Analysis

The

Manner

Prescribed By This Court

While this Court does not often grant certiorari

to address a circuit’s misapplication of this Court’s

precedent, the Tenth Circuit’s deviation in this

matter, and the ramifications of that error, call for an

exercise of this Court’s supervisory power. Not only

do the lower court opinions endorse an impermissible

The lower courts both assumed that the delay inherent in

abstention could have been mitigated by Petitioners certifying

the unanswered state law questions to the Colorado Supreme

Court. App.15–17; App.33–34. This Court has looked favorably

upon certification of state law questions to state courts when that

is a viable option and abstention would otherwise be appropriate.

See Expressions Hair Design v. Schniderman, 137 S. Ct. 1144,

1156 (2017) (noting that certification, where available, is a “more

precise tool” than the “blunt instrument” of abstention). Here,

however, Petitioners could not unilaterally seek certification and

the parties could not reach agreement as to the specific language

of the questions to certify, along with the undisputed facts

necessary to answer those questions. Petitioners’ inability to opt

for certification to resolve any state law question(s) does not

justify saddling them with the burden of delay.

chilling effect, those decisions ignore the interplay of

Petitioners’ damages claims with the established

Pullman factors. The lower courts’ misapplication

does not end there. The lower courts’ failure to

analyze the requisite Pullman factors on a surgical,

issue-by-issue basis, resulted in both courts failing to

note that the Pullman factors are not met for each and

every of Petitioners’ claims, thereby making

abstention non-discretionary and inappropriate for

those claims.

The Constitutional Questions Cannot

be Avoided

The Tenth Circuit, after engaging in only the

most perfunctory of analyses, incorrectly determined

that abstention would allow the federal courts to avoid

the question of whether a local law violates the federal

Constitution, therefore finding this Pullman factor

satisfied. Fuller consideration demonstrates that no

state law interpretation could narrow the scope of the

federal constitutional claims, which must be

adjudicated by a federal court.

The second Pullman factor is whether “the state

issues are amenable to interpretation and such

interpretation obviates the need for or substantially

narrows the scope of the constitutional claim.”

Lehman, 967 F.2d at 1478 (emphasis added) (citing

Vinyard v. King, 655 F.2d 1016, 1018 (10th Cir.

1981)). Such avoidance or narrowing of constitutional

issues is most likely where a plaintiff seeks injunctive

or declaratory relief that becomes unnecessary

because the question is moot if the challenged state or

local action is deemed invalid pursuant to the state’s

own law. In cases brought against municipalities or

municipal agents pursuant to 42 U.S.C. § 1983,

however, a plaintiff may seek and receive damages for

a violation of plaintiff’s civil rights under color of law.

Monell v. Dept. of Soc. Servs. of City of New York, 436

U.S. 658 (1978); New York State Rifle & Pistol Ass’n,

Inc. v. City of New York, New York, 140 S. Ct. 1525,

1535 (2020) (Alito, J., dissenting). Petitioners have no

such remedy available under Colorado state law.

The Tenth Circuit’s and district court’s analyses

neglect Petitioners’ damages demand when holding

that a Colorado state court decision may remove the

federal constitutional issues from this case. The

Tenth Circuit reasoned, “if the state court were to

conclude that the Colorado statutes preempt the

Boulder [Ordinances], there would be no need for us to

resolve the federal constitutional questions.” App.11

(emphasis added).

The district court similarly

reasoned, “if the state courts were to conclude that the

Ordinances are preempted by C.R.S. § 29-11.7-103,

such determination would nullify the Ordinances and

eliminate entirely the need for a determination of

whether the Ordinances offend the U.S. Constitution.”

App.28 (emphasis added). This follows Boulder’s

assertion:

“Indeed,

[Petitioners]

have

acknowledged, if the state court . . . finds that the

Ordinance was not a valid exercise of the City of

Boulder’s municipal powers, then [Petitioners] will

have nothing left to challenge.” J.A. at A112.

In arguing against abstention, however,

Petitioners noted, “[e]ven though a court could

potentially invalidate the Ordinances based solely on

state-law grounds, [Petitioners] have still suffered

violations of their constitutionally protected rights,

rights which would remain unvindicated, and they

would still be entitled to recover damages for those

violations.” J.A. at A167 n.2. Petitioners properly

pleaded their damages claim at the district court and

no state court action can deprive Petitioners of their

damages remedy.

Moreover, to address Petitioners’ damages claim,

the federal district court need not make any decision

of state law. If Boulder’s Ordinances are valid under

Colorado law, they may still violate the federal

Constitution. More importantly, even if the Boulder

Ordinances contravene Colorado state law, a federal

court must still apply federal law to determine

whether Defendants violated the United States

Constitution such that Petitioners are entitled to

damages. No state law decision could obviate the need

for—or even alter—a federal court’s inquiry in this

matter and there is no need for the federal court to

evaluate the state law issues.

No matter what occurs in a state proceeding, a

federal court will be required to adjudicate

Petitioners’ pure, federal constitutional claims. As

such, the second Pullman factor is not met, and

discretionary abstention was, and remains, wholly

inappropriate.

The Tenth Circuit Failed to Conduct its

Pullman Analysis on an Issue-by-Issue

Basis, Instead Remaining at an

Abstract Level

The Tenth Circuit erred because it failed to

address Pullman abstention on the surgical, issue-byissue basis employed by this Court.

To balance individuals’ claims to timely justice

against the policy of deferring state law questions to

state courts, this Court engages in a thorough analysis

of a case and record to frame which issues, if any,

require abstention. Pullman, 312 U.S. at 499 (finding

abstention was appropriate only after analyzing the

final judgment of the district court); accord Babbitt v.

United Farm Workers Natl. Union, 442 U.S. 289, 292

(1979) (same); Harrison v. NAACP, 360 U.S. 167

(1959) (determining abstention was appropriate on all

provisions only after analyzing each one individually).

In Babbitt, this Court analyzed five challenged

provisions of Arizona’s farm labor statute. 442 U.S. at

292. Justice White, writing for a 7-2 majority in 1979,

analyzed each provision of the statute individually

under the Pullman factors, finding abstention to be

appropriate for some and not others. Id. at 305–12.

Importantly, this Court allowed the claims not subject

to Pullman abstention to proceed on the merits—

exercising abstention for those issues where the

Pullman factors were satisfied. Id.

Both the Tenth Circuit and the district court

incorrectly analyzed the challenges against Boulder’s

Ordinances as a single issue under Pullman

abstention. App.6–14; App.23–29. The analysis,

however, should have turned on the more discrete

questions of whether the individual provisions of

Boulder’s Ordinances are subject to Pullman

abstention, not “whether Boulder’s regulation of

firearms” is subject to Pullman abstention. See

App.26. Without engaging in detailed analysis,

neither the Tenth Circuit nor the district court can say

the Pullman prerequisites were met for each

individually challenged provision of the Boulder

Ordinances.

Boulder’s

Ordinances

contain

multiple

provisions, and Petitioners present issues brought by

multiple parties. If Boulder had merely prohibited

nineteen, twenty, and twenty-one-year-olds from

buying or possessing rifles, the court’s Pullman

analysis would appropriately address that single

specific issue. But Boulder’s Ordinances individually

define prohibited pistols, shotguns, rifles, and

magazines. App.50–53. The Ordinances then require

the removal, destruction, and/or registration of those

Arms; prohibit the purchase and transfer of those

Arms; regulate the transportation of Arms within the

city; and completely prohibit their possession by

nineteen, twenty, and twenty-one-year-olds. App.53–

62. The Tenth Circuit’s and district court’s inquiries

should have determined if each of these issues met the

stringent requirements of Pullman abstention, not

whether the questioned legality of the Ordinances en

toto may have.5

While this approach requires additional effort,

that is not a basis for expanding Pullman abstention

under this Court’s jurisprudence, particularly where

the right at issue is one so important “that the

Framers and ratifiers of the Fourteenth Amendment

As an example of a question where Pullman abstention is

inappropriate, the State of Colorado has already authoritatively

defined “large-capacity magazines.” App.40, C.R.S. § 18-12301(2). Boulder’s attempted redefinition of “large-capacity

magazines” and prohibition on magazines that a “person may

lawfully sell, purchase, or possess under state or federal law,” is

preempted by Colorado state law and thus does not constitute an

uncertain question of state law. App.43, C.R.S. § 29-11.7-103.

counted . . . [it to be] necessary to our system of

ordered liberty.” McDonald, 561 U.S. at 778.

An issue-by-issue Pullman analysis would have

demonstrated that Pullman abstention, at minimum,

should not have been applied to the entire case and

Petitioners should have been allowed to proceed with

at least some of their federal constitutional claims.

This Court should grant certiorari to ensure that the

Tenth Circuit’s cursory Pullman analysis does not

stand as a precedential dilution of this Court’s

rigorous and thorough Pullman jurisprudence.

III. This Case Presents An Ideal Vehicle For

This Court To Reinforce Its Modern

Pullman Jurisprudence While Maintaining

A Statutory Status Quo

This case presents this Court with the ideal

opportunity to clarify and reinforce its existing

Pullman doctrine jurisprudence while not disrupting

the currently existing regulatory regime in Colorado

or the City of Boulder. This case does not require the

Court evaluate the constitutionality of Boulder’s

ordinance at this stage, nor does this case require the

Court to adjudicate the interplay between state and

municipal law. Should this Court grant this Petition

for Writ of Certiorari, review would be limited to the

question of whether Petitioners should be allowed

their timely day in a federal district court to argue for

their constitutionally protected rights and damages.

As demonstrated above, this Court’s Pullman

jurisprudence, when confronted with fundamental

rights, is well established. Starting with Harman in

1965, moving through Hill in 1987, and arriving at

today, this Court has shown a consistent trend over 50

years in both refusing to allow for abstention when

there is a chilling effect on the exercise of a

fundamental right, and of periodically reminding the

lower courts of that trend. Moreover, this Court’s

decisions in these matters have not been close.

Dombrowski was decided by a 5-2 majority, Zwickler

was unanimous, Harman was decided by a 7-2

majority, Constantineau by a 6-3 majority, and Hill by

an 8-1 majority. Dombrowski, 380 U.S. at 489–90

(free expression); Zwickler, 389 U.S. at 252 (free

expression); Harman, 380 U.S. at 537 (right to vote);

Constantineau, 400 U.S. at 439 (due process); Hill,

482 U.S. at 468 (overbreadth). This Court’s continued,

overwhelming support of individuals’ rights in the

face of abstention is clear.

What makes this case notable, however, is that

Petitioners seek to litigate a right that was only

formally declared fundamental by this Court in 2010.

See McDonald, 561 U.S. at 778 (“[I]t is clear that the

Framers and ratifiers of the Fourteenth Amendment

counted the right to keep and bear arms among those

fundamental rights necessary to our system of ordered

liberty.”).

While this Court has expressed its

unwillingness to exercise Pullman abstention

generally in fundamental rights cases, it has only

explicitly done so in First, Fifth, Fourteenth,

Seventeenth, and Twenty-Fourth Amendment cases.

This case presents this Court the opportunity to

clarify and reinforce its jurisprudence in a case

predominantly addressing Second Amendment

questions.6

Petitioners have also advanced claims pursuant to the

First, Fifth, and Fourteenth Amendments. App.21–22.

The only other circuit thus far presented with the

interplay of this Court’s modern Pullman abstention

doctrine and the Second Amendment is the Second

Circuit. Osterweil v. Bartlett, 706 F.3d 139 (2d Cir.

2013). There, the Second Circuit simply certified the

underlying state law question to the New York Court

of Appeals. Id. at 140, 145. Even in Osterweil, while

the court acknowledges Pullman abstention may be

appropriate, it notes that there would be a significant

concern for delay without certification. Id. at 145.

The ultimate decision in this case, on the merits,

will not unduly disrupt any existing statutory

structure, but will merely clarify a procedural point

set forth by this Court in 1941 and altered by this

Court since 1965. Should this Court grant certiorari,

it need not rule on the constitutionality of Boulder’s

Ordinances, or any question of the interplay between

Colorado state law and municipal law. This Court,

however, will have the important opportunity to

clarify an extraordinarily narrow exception to this

Court’s broad jurisdictional rule. United States v.

Bureau of Revenue of State of N.M., 291 F.2d 677, 679

(10th Cir. 1961) (“The doctrine of abstention, under

which a District Court may decline to exercise or

postpone the exercise of its jurisdiction is an

extraordinary and narrow exception to the duty of a

District Court to adjudicate a controversy properly

before it.”) (quoting Allegheny, 360 U.S. at 188).

***

This Court is not often presented with such a

clean vehicle for reinforcing and clarifying its

precedents for the lower courts. Much has changed

since Pullman was decided in 1941. This Court’s

jurisprudence has expanded to recognize the

importance of federal court adjudication of all

individuals’ constitutionally protected rights—

especially when those rights are violated by a state or

municipal government. Petitioners do not ask this

Court to fundamentally alter its precedent, but rather

ask this Court require lower courts to act upon the

changes that occurred with the Civil Rights Act of

1964 and the declaration of a fundamental right in

McDonald in 2010, to allow Petitioners their day in

their chosen federal forum.

♦

CONCLUSION

For the foregoing reasons, this Court should grant

the Petition for Writ of Certiorari.

Respectfully submitted,