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Peterson v. LaCabe (Denver, CO) MSJ Filed

rushcreek2

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This would seem to be where Denver steps over the line.

Denver takes the position...that the Colorado CHP ONLY regulates concealed carry of a handgun. That is simply not true.

The Colorado CHP - in reality operates as a handgun permit....except for the fact that Colorado law - unlike Texas law for example - does not generally prohibit handgun carry.....and nowhere within the provisions of Colorado CHP law is concealment required.

Denver must recognize the CHP authority due to the State preemption authority over the CHP . Denver may not then proceed to enhance the State preempted CHP authority by requiring concealment.
 
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SteveInCO

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This would seem to be where Denver steps over the line.

Denver takes the position...that the Colorado CHP ONLY regulates concealed carry of a handgun. That is simply not true.

The Colorado CHP - in reality operates as a handgun permit....except for the fact that Colorado law - unlike Texas law for example - does not generally prohibit handgun carry.....and nowhere within the provisions of Colorado CHP law is concealment required.

Denver must recognize the CHP authority due to the State preemption authority over the CHP . Denver may not then proceed to enhance the State preempted CHP authority by requiring concealment.

Can you cite anything in support of this? It's totally backwards from my understanding and that of most people I've spoken to; and I've not seen anything in the law to contradict my understanding.

The more usual understanding of the laws here is that OC is perfectly legal (because not banned) except in a few places where it is explicitly banned. The state has banned CC but made holding a permit either an exception or an affirmative defense (I think the former, but don't hold me to that). The rules for when a permit holder may concealed carry are pretty broad and they explicitly state in the laws that local governments may not further restrict it. Nowhere in all that statutory language have I *ever* seen a statement to the effect that having a CHP will over-ride a local government's prohibition against open carry.
 

rushcreek2

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I do not offer my opinion as a recitation of any case law..or dictum.

I am correct in assessing the Colorado CHP law as encompassing, thereby REGULATING HANDGUN CARRY in the specific case of a CHP holder. This therefore constitutes preemption by the State of handgun carry in the case of the CHP holder.

Therefore Denver may not override the CHP by imposing its own manner of carry restriction.

A Colorado resident must undergo a criminal background investigation to determine whether or not they are a previous offender.....and MAY possibly be "ineligible" to carry any firearm - and consequently also ineligible for issuance of a CHP .

NON-issuance of a CHP based upon previous offender status occurs frequently - and therefore serves to regulate handgun CARRY - not simply concealed handgun carry.

Hence the CHP authority serves as regulation of OC as well as CC...concerning the CHP holder....thereby preempting even Denver's home rule municipal authority to further regulate, amend, enhance ,or restrict the State issued CHP authority which does not require concealment.

Embedded in almost any law lies the framework for unintended, and therefore unexplored considerations.

I guess you could say that I take exception to the general view that the State of Colorado is not regulating open carry through issuance - or NON-issuance of the CHP.
 
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SteveInCO

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I do not offer my opinion as a recitation of any case law..or dictum.

I am correct in assessing the Colorado CHP law as encompassing, thereby REGULATING HANDGUN CARRY in the specific case of a CHP holder. This therefore constitutes preemption by the State of handgun carry in the case of the CHP holder.

Therefore Denver may not override the CHP by imposing its own manner of carry restriction.

A Colorado resident must undergo a criminal background investigation to determine whether or not they are a previous offender.....and MAY possibly be "ineligible" to carry any firearm - and consequently also ineligible for issuance of a CHP .

NON-issuance of a CHP based upon previous offender status occurs frequently - and therefore serves to regulate handgun CARRY - not simply concealed handgun carry.

Hence the CHP authority serves as regulation of OC as well as CC...concerning the CHP holder....thereby preempting even Denver's home rule municipal authority to further regulate, amend, enhance ,or restrict the State issued CHP authority which does not require concealment.

Embedded in almost any law lies the framework for unintended, and therefore unexplored considerations.

I guess you could say that I take exception to the general view that the State of Colorado is not regulating open carry through issuance - or NON-issuance of the CHP.

Yes, but you continue to NOT actually point to anything in the text of the law to support this view.

I therefore will dismiss your opinion as being without basis.
 

rushcreek2

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STEVE- My comments were intended to provide some "out of the box" perspective for M Taliesin. I'm sorry if my simple-minded opinion failed to fill your brass cup to the brim. Such is life.
 
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Jared

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Michigan, USA
This would seem to be where Denver steps over the line.

Denver takes the position...that the Colorado CHP ONLY regulates concealed carry of a handgun. That is simply not true.

The Colorado CHP - in reality operates as a handgun permit....except for the fact that Colorado law - unlike Texas law for example - does not generally prohibit handgun carry.....and nowhere within the provisions of Colorado CHP law is concealment required.

Denver must recognize the CHP authority due to the State preemption authority over the CHP . Denver may not then proceed to enhance the State preempted CHP authority by requiring concealment.

18-12-214 says the permit covers concealed carry. It doesn't preempt Denver's local OC ban that they were able to win in court.

Even with a carry permit, OC is still illegal in Denver unless you are in a car or on a motorcycle since that falls under vehicle carry provisions, which Denver conceded in court.
 

since9

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18-12-214 says the permit covers concealed carry. It doesn't preempt Denver's local OC ban that they were able to win in court.

They didn't win in court. It was a stalemate, meaning Denver's legal position wasn't overturned.

Significant difference, primarily that Denver's prohibition remains in violation of the State Constitution of Colorado. When we get fewer law-breaking liberals and more law-following conservatives on the court, they won't stalemate in their decision.
 
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Jared

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They didn't win in court. It was a stalemate, meaning Denver's legal position wasn't overturned.

Significant difference, primarily that Denver's prohibition remains in violation of the State Constitution of Colorado. When we get fewer law-breaking liberals and more law-following conservatives on the court, they won't stalemate in their decision.

Not at all. The stalemate in the Supreme Court left the appellate decision as binding. It was a bad ruling but that is what Denver and the state are going to go by.

A concealed handgun license does not grant anyone the ability to open carry where prohibited by law. Currently however you slice it is prohibited by law to openly carry in Denver. It does not matter if you are license to carry or not.

Good luck getting the situation rectified. While you guys are at it, try to repeal the magazine limit, try to allow for nonresident licensing, try for knife preemption, try for switchblade been repealed, and repeal the private sale ban.


Bottom line, you are at risk for being arrested if you carry openly in Denver, even if you have a concealed carry permit.
 
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Gray Peterson

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This would seem to be where Denver steps over the line.

Denver takes the position...that the Colorado CHP ONLY regulates concealed carry of a handgun. That is simply not true.

The Colorado CHP - in reality operates as a handgun permit....except for the fact that Colorado law - unlike Texas law for example - does not generally prohibit handgun carry.....and nowhere within the provisions of Colorado CHP law is concealment required.

Denver must recognize the CHP authority due to the State preemption authority over the CHP . Denver may not then proceed to enhance the State preempted CHP authority by requiring concealment.

City of Denver v. State of Colorado

The Supreme Court of Colorado, on direct appeal from this decision, split 3-3, meaning the lower court decision stands within it's district, which is Denver.

Your advice will get people put in jail in Denver for a year. The best way to deal with this is after Bonidy is completed at the 10th Circuit, find out of state plaintiffs from west coast states who visit Denver, and have them sue in federal court with a preliminary injunction. If you attempt to use Colorado plaintiffs, the courts will rule that acquiring a CHP would fix their carry problem.
 

SteveInCO

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He's presented no cite whatsoever (that a CHP, under state law, allows you to ignore OC bans) and refused to do so when challenged.

It's not that Denver is ignoring that law. It's that there is no such law. Leastwise not until someone produces a cite.

Now Denver is wrong to do what it is doing, but that's because they are violating the state constitution, not because of this non-existent law. The supremes allowed to stand a ruling that Denver wasn't violating the constitution, but that's a different question than whether a local OC ban is overriden by a CHP. I've still seen no evidence (other than someone's unsubstantiated opinion) that that is the case.
 

Jared

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He's presented no cite whatsoever (that a CHP, under state law, allows you to ignore OC bans) and refused to do so when challenged.

It's not that Denver is ignoring that law. It's that there is no such law. Leastwise not until someone produces a cite.

Now Denver is wrong to do what it is doing, but that's because they are violating the state constitution, not because of this non-existent law. The supremes allowed to stand a ruling that Denver wasn't violating the constitution, but that's a different question than whether a local OC ban is overriden by a CHP. I've still seen no evidence (other than someone's unsubstantiated opinion) that that is the case.

It didn't help either when The NRA butted into his case on appeal. Contrary to the research Gray, his attorney, myself, and Alan Gura did on this issue, the NRA still insisted that you could openly carry in Denver with a CHL, and this confused the judges on the appellate level and they didn't understand that OC is flat out illegal in Denver. Now this nonsense continues to get repeated as gospel.
 

SteveInCO

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It didn't help either when The NRA butted into his case on appeal. Contrary to the research Gray, his attorney, myself, and Alan Gura did on this issue, the NRA still insisted that you could openly carry in Denver with a CHL, and this confused the judges on the appellate level and they didn't understand that OC is flat out illegal in Denver. Now this nonsense continues to get repeated as gospel.

Ah. Well, at least now I know where it came from.
 

Saxxon

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Aug 3, 2012
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Location
Northglenn, Colorado
Hello Folks!
I was recently, for the first time ever, rousted by a sergeant in Denver for OC'ing while on the job. He made a bunch of claims, but essentially, stood on the notion that OC is illegal in Denver. I have a CCW permit, and produced it, but that didn't prevent him from demanding that I conceal my sidearm.

Point being, I surely would like a citation to the specific 10th Circuit claim that OC is legal with a permit in Denver. I'd also like to have a solid argument to challenge the notion that somebody who does not have a permit is totally without his rights to bear arms in any fashion whatsoever.

My partner does not have a permit. He was OC'ing. He was told he could not carry his sidearm at all in Denver.
He was compelled to remove it and stow it away. I believe that's wrong.

Anyhow, I surely would like some fresh ammo to use against those that would deprive us of a God-given right.

Blessings,
M-Taliesin

If you look in the Denver statutes the way it is worded implies that open carry is prohibited unless under certain conditions, one of those conditions lists having a valid state CCW permit. My attorney and I looked at this back at the start of the Thornton issue. Our speculation was that if you had one then you could open carry, or at least legally rebut a charge for illegal open carry there. On the way out the door, you would have to go tot he Denver statutes to find that section.
 

Grapeshot

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May 21, 2006
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Valhalla
Off Topic

The entire direction this thread has taken re OC in Denver is off topic . The OP subject is '"Peterson v. LaCabe"

Will create a new thead out of the off topic posts after moving them and link it here with an edit.
 
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