Assault Weapons Ban Attracts Lawsuit to Colorado City Within Hours

by | May 18, 2018

By Shay Castle

Cody Wisniewski made good on his threat Tuesday night to sue Boulder and its council, mounting a legal challenge to the city's  ban on assault weapons fewer than 24 hours after it was voted into law.

The staff attorney for Denver-based Mountain States Legal Foundation  filed suit Wednesday in U.S. District Court in Denver on behalf of Boulder resident and media personality Jon Caldara, the Boulder Rifle Club and the Bison Tactical gun shop.

The federal lawsuit claims the ordinance -- which bans the sale and possession of assault weapons, bump stocks and high-capacity magazines -- violates the plaintiffs' Constitutional rights.

Twenty-year-old Tyler Faye, of Boulder, also is named as a plaintiff in the lawsuit because the city's new ordinance raises the age for legal firearm ownership from 18 to 21.

Neither Wisniewski nor Caldara, a radio and television host who also is the president of the Independence Institute, responded to requests for comment Thursday. Representatives from Boulder Rifle Club and Bison Tactical, a gun shop at 2041 Broadway,  also could not be reached.

The lawsuit says Caldara, the rifle club and Bison Tactical would continue possessing and selling assault weapons if not for the Boulder City Council's unanimous decision Tuesday night to ban the weapons within city limits.

"The right of self defense is an unalienable, natural and fundamental right," the lawsuit reads. "The Second Amendment of the U.S. Constitution memorializes the right of self defense.

"Upon passage, Ordinance 8245 immediately became law in the City of Boulder, thereby infringing upon the rights of all of Boulder's 108,707 residents," the lawsuit reads.

The plaintiffs are seeking a declaratory judgment finding the Boulder assault weapon ordinance unconstitutional and a permanent injunction enjoining the city from enforcing provisions of "Ordinance 8245."

The plaintiffs also are seeking compensatory damages, reimbursement for attorneys' fees and other costs in bringing the lawsuit.

The lawsuit names City Manager Jane Brautigam, police Chief Greg Testa, Mayor Suzanne Jones, Mayor Pro Tem Aaron Brockett and the other seven council members as defendants.

'Many hateful messages'

Boulder's elected leaders also have been faced with a flood of criticism from gun owners since Councilwoman Jill Adler Grano first proposed the ban in February. Grano said the scope and intensity of the feedback has increased noticeably since Tuesday night's vote.

"Many of the emails have been respectful, too -- I don't want to characterize them all as vulgar," she said Thursday. "But there's been a lot. Many, many hateful messages, lots of profanity."

Brockett said his council Facebook page was targeted by a national effort led by pro-assault weapons groups. Dozens of users from around the country are commenting on a  post Brockett had made in early May regarding the ban with a copy-and-paste form message.

Others were more original in their thoughts, sharing insults and memes.

"It's not fun to get nasty messages,"  Brockett said. "But I feel strongly about what we're doing to protect our community. It makes it tolerable."

Councilwoman Mirabai Nagle -- who Tuesday night voiced a teary opposition to the ban before voting in support of it -- on Thursday reaffirmed her position and said she has received support from gun-rights supporters. She is named in the suit nonetheless.

 

In violation of new law

Among the plaintiffs, Faye owns one or more firearms in compliance with state and federal law that are now banned by the Boulder ordinance because he is not yet 21 years old, the lawsuit says. He also has magazines that accept more than 10 rounds, which don't violate state or federal law but do violate Boulder's new ordinance.

"At 18 years of age, a U.S. citizen can: vote in a federal election, join the U.S. military without guardian permission, and die in combat for his or her country," the lawsuit reads. U.S. citizens can also buy a firearm, it says.

The lawsuit says Caldara owns one or more gun magazines capable of accepting more than 10 rounds, which is legal under state and federal law but not under the new ordinance. Caldera owns one or more firearms that are banned by the ordinance  and "plans to continue possessing lawfully owned property to acquire additional property implicated by Ordinance 8245."

The bylaws of Boulder Rifle Club, which has existed since 1889, requires it to support the constitutional right of all its members to keep and bear arms, the lawsuit says. By bringing this lawsuit, the club is representing the interests of its hundreds of members, the lawsuit says.

A violation of the new ordinance could result in sentences of up to 90 days in jail and fines of up to $1,000 -- though Boulder officials have acknowledged that it  will be difficult to enforce. It bans 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.

 

Free legal assistance

City Attorney Tom Carr said Boulder has received offers of gratis help from "outside law firms" that will reduce the impact of both cost and time to city staff.

Council members Grano and Brockett said they are confident the law will stand up to a legal challenge. Similar bans in several other states and cities across the U.S. -- including Denver and Vail -- have been upheld by courts; Massachusetts' was affirmed by a federal judge in early April.

"Every other amendment in the Bill of Rights we temper in some way for the safety of our society," said Grano. "The Second Amendment is the one that has been let go to such far extremes."

The Denver Post contributed to this report.

(c)2018 the Daily Camera (Boulder, Colo.)