Top cop: Sheriffs can’t sue over guns

Colorado Attorney General John Suthers is defending the TABOR Amendment



John Suthers
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Colorado Attorney General John Suthers is defending the TABOR Amendment

The 55 Colorado sheriffs who filed a lawsuit against the state over two new gun-control laws don’t have standing to sue, Colorado Attorney General John Suthers said.

Suthers, whose office is defending the state against the suit, said he’s filed a motion in federal court saying sheriffs have never sued to defend other citizens rights, so they cannot now claim standing on this issue.

“I know the sheriffs are asserting that they have the ability to assert the citizens’ Second Amendment rights, but they haven’t historically asserted other constitutional rights,” Suthers told The Daily Sentinel. “The sheriffs don’t file suits to protect your Fourth Amendment rights, your Fifth, Sixth and Eighth Amendment rights.”

Still, removing the sheriffs won’t stop the suit from going forward, Suthers said.

“There’s plenty of other (plaintiffs), such as the gun shops, that clearly have standing,” he said.

The sheriffs, along with a slew of gun shops, firearms manufacturers and private citizens, filed the suit in U.S. District Court in May, claiming that the two new laws approved by the Colorado Legislature earlier this year — a 15-round cap on gun magazines and background checks for private gun sales — violates citizens’ Second Amendment right to bear arms.

Mesa County Sheriff Stan Hilkey, who along with fellow sheriffs Fred McKee of Delta County, Lou Vallario of Garfield County and Rick Dunlap of Montrose County, are among the 55 sheriffs in the suit, declined to comment, instead referring questions to their attorney, Dave Kopel.

Kopel, research director for the free-market think tank, the Independence Institute, could not be reached for comment.

McKee, however, paraphrased Kopel’s recent response on the motion to the sheriffs, saying they filed the suit in their official capacities as representatives of their respective counties because their constituents “were looking for leadership on the issue.”

McKee said the sheriffs received numerous complaints from the people who elected them about the new laws, and they have an obligation to respond.

“Not only are we citizens, we’re elected officials representing constituents that come to us in significant numbers,” McKee said. “As elected officials in law enforcement that have an interest and knowledge on firearms, that made us the right people to do it. We are citizens of the state of Colorado, so that certainly gives us standing in that position.”

But in Suthers’ motion to dismiss the sheriffs as plaintiffs, he says they have no standing on several grounds, not the least of which is long-standing legal precedent that bars political subdivisions of a state, such as counties, to sue that same state.

“As this (10th Circuit Court) recently explained, there is not ‘a single case in which the Supreme Court or a court of appeals has allowed a political subdivision to sue its parent state under a substantive provision of the Constitution,’” the motion says. “Instead, courts have allowed such suits only when Congress has enacted statutory law specifically providing rights to political subdivisions.”

That has not happened here.

Suthers said sheriffs clearly are county officers, and their powers stem from the Colorado Constitution and the Colorado Legislature, which passed the new gun laws.

Suthers’ motion also said the sheriffs lack standing because they cannot show how they will be injured by the new laws.

“Plaintiffs rest their claim for standing on the contention that they face a ‘credible threat’ of prosecution,” the motion says. “They fail to state a claim because no such threat exists.”

It is unknown when Chief U.S. District Court Judge Marcia Krieger, who is hearing the case, will rule on the motion, which was filed Aug. 1.



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