DISTRICT COURT, CITY AND COUNTY OF DENVER, STATE OF COLORADO Civil Action No. 92CV5546 Courtroom 18 ------------------------------------------------------------- ORDER AND JUDGMENT ------------------------------------------------------------- THOMAS C. MILLER and R.W. PETERSON, Plaintiff(s), VS. JAMES R. COLLIER, Denver Chief of Police, DETECTIVE WILLIAM PHILLIPS, and THE CITY AND COUNTY OF DENVER, Defendant(s). ------------------------------------------------------------- Plaintiffs are private investigators who sought to obtain concealed weapons permits from defendants. Defendants denied each of the plaintiffs a permit. Plaintiffs seek action from the court regarding the permits, as well as unspecified damages. Defendants have moved to dismiss plaintiffs' claim pursuant to C.R.C.P. 12(b) for failure to allege or establish jurisdiction and for failure to state a claim upon which relief can be granted. I. Plaintiffs allege that the defendants have failed to act by failing or refusing to allow the plaintiffs to apply for or renew concealed weapon permits. Plaintiffs contend that defendants have abused their discretion and exceeded their jurisdiction in determining who will be granted a concealed weapon permit. Plaintiffs argue that their allegations fall within C.R.C.P. 106 and that jurisdiction can be grounded in either section (a)(2) or (a)(4). [new page] A. C.R.C.P. 106(a)(2) provides that relief may be obtained in the district court: where the relief sought is to compel a lower judicial body, governmental body, corporation, board, officer or person to perform an act which the law specially enjoins as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such lower judicial body, governmental body, corporation, board, officer, or person. The judgment shall include any damages sustained; The relief afforded by (a)(2) is in the nature of mandamus. An action compelling an officer to act will lie only when that officer fails to perform an official duty, Where there is no duty to act, an action in the nature of mandamus cannot be sustained. People v. ex rel. Garrison v. Lamm, 622 P.2d 87 (Colo. App. 1980); Vigil v. Industrial Comm'n, 413 P.2d 904 (Colo. 1966)(Section (a)(2) permits the granting of relief to compel an "inferior tribunal, corporation, board, officer or person" to perform some required duty or act); Potter v. Anderson, 392 P.2d 650 (1964)(mandamus may be used to compel the performance by a public officer of a plain legal duty devolving upon him by virtue of his office). In the present case, section 31-4-112.1, 12B C.R.S. (1980 Repl. Vol.), states: "The chief of police of a city or city and county may issue written permits to carry concealed weapons. Any such permit shall be issued in accordance with section 18-12-105.1, C.R.S." Section 18-12-105.1, C.R.S., provides in relevant part: (1) Pursuant to the grant of authority in sections 30-10-523 and 31-4-112.1, C.R.S. the chief of police of a city or of a - 2 - city and county or the sheriff of a county may issue written permits to carry concealed weapons... (2) A sheriff or chief of police shall make an inquiry into the background of an applicant for a permit to carry a concealed weapon to determine if the applicant would present a danger to others or to himself if he is granted a permit. These sections do not, under any circumstances, require the chief of police to issue written permits to carry concealed weapons. Nor do the statutes establish criteria which, if met, require the issuance of concealed weapon permits. Rather, the statutes grant the police chief authority to issue such permits. The police chief is not under a legal duty to issue concealed weapon permits to anyone. [footnote 1] There is a three-part test which must be satisfied by a plaintiff before mandamus will be issued by the court: (1) the plaintiff must have a clear right to the relief sought; (2) the defendant must have a clear duty to perform the act requested, and ---------------- 1. The plaintiffs also cite section 38-116.5 of the Denver Municipal Code (1983) in support of their argument that plaintiffs have a statutory right to carry a concealed weapon. This section provides in pertinent part: (a) The chief of police is authorized to issue permits to persons for the carrying of concealed weapons, such permits conditioned upon reasonable terms for the protection of life and property. (b) The chief of police shall promulgate rules and regulations to implement the issuance of concealed weapons permit, providing for, among other things, a background check of each applicant, a determination of the need of each applicant to be issued a concealed weapons permit, and a determination of the proficiency of each applicant in the care and use of any weapon applicant may carry. Again, the language in the Municipal Code clearly indicates that while the chief of police is authorized to issue concealed weapons permits, he is under no legal obligation to do so. - 3 - (3) there must be no other available remedy. Gramiger v. Crowley, 660 P.2d 1279 (Colo. 1983). Plaintiffs have failed to meet this test and are not entitled to the remedy of mandamus. Plaintiffs can neither show a clear right to this relief, nor that defendant has a clear duty to perform the act requested. Moreover, plaintiffs have an alternative remedy in the form of damages. B. C.R.C.P. 106(a)(4) provides that relief may be obtained in the district court: where any governmental body or officer of any lower judicial body exercising judicial or quasi-judicial functions has exceeded its jurisdiction or abused its discretion, and there is no plain, speedy and adequate remedy otherwise provided by law... Under this section, relief is available only upon exercise of a "judicial or quasi-judicial" function. Hoffman v. City of Fort Collins, 489 P.2d 355 (Colo. 1971). A quasi-judicial action generally involves a determination of rights, duties or obligations of specific individuals by applying legal standards or policy considerations to facts developed at a hearing conducted for the purpose of resolving interests in question. State Farm v. City of Lakewood, 788 P.2d 808 (Colo. 1990). Since the actions alleged here are executive in nature, rather judicial or quasi-judicial, plaintiffs cannot ground than jurisdiction in (a)(4). II. Plaintiffs make no reference to any other statute or court rule establishing the jurisdiction or legal authority of this court - 4 - to grant the relief they have requested. Therefore, all that remains is plaintiffs' request for damages for defendants' alleged violation of both the Colorado Constitution and plaintiffs' civil rights under 42 U.S.C. 1983. [footnote 2] Plaintiffs cite Kellog et. al. v. city of Gary et. al., 562 N. E.2d 685 (Ind. 1990), in support of their position that defendants are violating the plaintiffs civil rights under 1983. However, this case holds that there is no liberty or property interest in bearing handguns which stems from the Second Amendment to the U.S. Constitution. Id. at 694. Likewise, Art. II, section 13 of the Colorado Constitution does not create a liberty or property interest in bearing concealed weapons. That section states: The right of no person to keep and bear arms in defense of his home, person and property or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons. Furthermore, in People v. Garcia, 595 P.2d 228 (Colo. 1979), the court held that the right to bear arms is not absolute, as it can be restricted by the state's valid exercise of its police power. ------------------- 2. 42 U.S.C. 1983 provides in relevant part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory o the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. - 5 - In Kellog, the state of Indiana exercised its police power by promulgating the Indiana Firearms Act which states: " the superintendent of state police shall issue to the applicant a license, if..." Kellog, 567 N.E.2d at 695. (emphasis added) In that case, the defendant refused to distribute blank handgun applications to any of its citizens. The court found that "without access to the application process, the citizens underlying substantive right to carry a handgun with a license (provided that all requirements of the Indiana Firearms Act are met), was cut off..." Id. at 696. In the present case, the state of Colorado exercised its police power by passing a statute which states: "The chief of police...may issue written permits to carry concealed weapons." (emphasis added) The Colorado statute clearly vests the chief of police with discretion in reviewing application forms, whereas the Indiana statute does not. Accordingly, neither the U.S. Constitution, the Colorado Constitution, nor state statutory law grants an individual a liberty or property interest in carrying a concealed weapon. - 6 - III. Defendants motion to dismiss is granted as plaintiffs have failed to establish the court's jurisdiction to award them the mandamus and certiorari remedies requested. As far as plaintiffs' claims for damages resulting from alleged state and federal constitutional violations are concerned, plaintiffs have failed to state a claim upon which relief can be granted. Neither the state constitution, the federal constitution nor the relevant statutes grant plaintiffs a protected right to carry a concealed weapon. This case is dismissed with prejudice. Dated this 5th day of November, 1992. BY THE COURT [signed] Warren O. Martin District Court Judge. xc: Frank X. Dwyer James C. Thomas - 7 -