STATE OF COLORADO COURT OF APPEALS Case No. 92 CA 2030 THOMAS C. MILLER, ET AL., Plaintiffs- Appellants, v. APPELLANTS' OPENING BRIEF JAMES R. COLLIER, ET AL., Defendants- Appellees. TRIAL COURT: District Court, City and County of Denver, Colorado TRIAL COURT CASE NUMBER: 92 CV 5546 NATURE OF PROCEEDING: Direct appeal pursuant to C.A.R. 4 THEODORE A. BORRILLO, #2010 DORIS A. WATERS #18088 Attorneys for Plaintiffs-Appellants 5353 W. Dartmouth Ave., #510 Denver, CO 80227 985-8888 [new page] TABLE OF CONTENTS Page TABLE OF AUTHORITIES .................................... ii INTRODUCTORY STATEMENT .................................. 1 STATEMENT OF THE ISSUE ................................... 1 STATEMENT OF THE CASE .................................... 1 STATEMENT OF THE FACTS .................................... 3 SUMMARY OF THE ARGUMENT .................................... 9 ARGUMENT ................................................... 9 The District Court Erred In Dismissing Plaintiffs' Complaint For Failure To Establish Jurisdiction And Failure To State A Cause Of Action ........................................... 9 A. The Essence Of The Issues On Appeal ............ 9 B. Allegations Of The Complaint Must Be Accepted As True ........................................... 11 C. The Plaintiffs' Complaint Established Jurisdiction To Maintain An Action For Mandamus C.R.C.P. Rule 106(a)(4) ................................ 11 D. The Remedy of Certiorari Under C.R.C.P. 106(a)(4) ..................................... 21 E. Plaintiffs' Complaint Adequately States A Cause Of Action For Damages Under 42 U.S.C. 1983 ......................................... 22 CONCLUSION .................................................... 25 [new page] TABLE OF AUTHORITIES CASES PAGE Bengson v. City of Kewanee, 380 Ill. 244, 43 N.E.2d 951 (1942) . 11 Big Top, Inc. v. Schooley, 149, Colo. 116, 368 P.2d 201 (1962) . 15 Blumenfeld v. Codd, 393 N.Y.S.2d 145, 89 N.Y.Misc.2d 837 (1977) . ............................................................... 13 Brevard County v. Bagwell, 388 So.2d 645 (Fla. App. 1980) .. 18, 22 Carpenter v. Civil Service Com'n., 813 P.2d 773 (Colo. App. 1991) ................................................................ 21 City Council v. United Negroes Protective Ass'n, 76 Colo. 86, 230 P. 598 (1924) .................................................. 12 Cook v. City and County of Denver, 128 Colo. 578, 265 P.2d 700 (1954) ......................................................... 11 Douglas v. Kelton, 199 Colo. 446, 610 P.2d 1067 (1980) ......... 18 Goldstein v. Brown, 592 N.Y.S.2d 343 (A.D. I Dept. 1993) ........ 18 Guillory v. County of Orange, 731 F.2d 1379 (9th Cir. 1984) .... 23 Kellogg v. City of Gary, 562 N.E.2d 685 (Ind. 1990) .... 16, 23, 24 Matthews v. State, 237 Ind. 677, 148 N.E.2d 334 (1958) ......... 19 People's Natural Gas, Etc. v. Public Utilities, 626 P.2d 159 (Colo. 1981) .......................................................... 13 Salute v. Pitchess, 61 Cal. App.3d 557, 132 Cal. Rptr. 345 (1976) ........................................................... 13 - 15 Schubert v. DeBard, 398 N.E.2d 1339 (Ind. App. 1980) ........... 17 Schwanda v. Bonney, 418 A.2d 163, (Me. 1980) ................... 19 Sherman v. Colorado Springs Plan. Com'n., 763 P.2d 292 (Colo. 1988) ............................................................ 21, 22 Tassian v. People, 731 P.2d 672 (Colo. 1987) .................. 18 ii [new page] STATUTES 42 U.S.C.  1983 ................................. 2, 3, 9, 20, 23 C.R.S.  18-12-105.1 ............................ 7, 10, 15, 22, 24 C.R.S.  31-4-112.1 ............................. 7, 10, 15, 22, 24 RULES C.A.R. Rule 4(a) ............................................... 1 C.R.C.P. Rule 12 (b) ........................................ 7, 11 C.R.C.P. 106(a)(2) and 106(a)(4) .............. 2, 8, 9, 11, 21, 22 OTHER U.S. Const. art. XIV,  1 .................................... 23 Denver Municipal Code (1988)  38-116.5 ................ 7, 10, 22 iii [new page] INTRODUCTORY STATEMENT The record on appeal consists of one volume. Since the District Court entered its order based upon the pleadings without a hearing, there is no transcript of testimony. Accordingly, references to the record on appeal will be to the appropriate pages, as for example, (P. 2) or (Pp. 2-4). STATEMENT OF THE ISSUE Did the District Court err in dismissing Plaintiffs' Complaint based upon the District Court's determination that the Complaint failed to establish the Court's jurisdiction and to state a cause of action? STATEMENT OF THE CASE The matter before this Honorable Court is a direct appeal pursuant to C.A.R. Rule 4(a) of a decision of the District Court. The Plaintiffs-Appellants are Thomas C. Miller and R.W. Peterson, hereinafter referred to as "Miller," Peterson" or alternatively as "Plaintiffs." The Defendants-Appellees are James R. Collier (Denver Chief of Police), Detective William Phillips, and the City and County of Denver, hereinafter referred to as "Chief Collier," Detective Phillips," "The City," or alternatively as "Defendants. The Defendants denied Plaintiffs' applications for concealed weapons permits, and thereafter refused to provide Miller with an application to reapply or to submit a new application for a weapons permit. In refusing to provide Miller with an application form, the Defendants determined in advance that only select public officials can show good cause 1 to be given a concealed weapons permit and that private citizens should be denied such a permit, regardless of the circumstances and the existence of a "compelling need." The Plaintiffs filed a Complaint against the Defendants seeking relief in the nature of mandamus and judicial review, relying for relief upon C.R.C.P. 106(a)(2) or (a)(4). The Plaintiffs also alleged that the behavior of the Defendants gives rise to a civil rights claim under 42 U.S.C.  1983. The Plaintiffs in essence allege that in denying their applications for concealed weapons permits, and in thereafter refusing to provide Miller with a new a application for a permit, the Defendants abused and abandoned their discretion and exceeded their jurisdiction. Further, Defendants failed to perform statutory and other mandated requirements of law, such as making an application available and failing to promulgate rules and regulations governing their discretion. The Defendants filed a 12 (b) Motion To Dismiss, and claimed the District Court lacked jurisdiction, and alleged the actions of the Defendants are discretionary and not subject to judicial review. Without a hearing, the District Court granted Defendants' Motion To Dismiss The Complaint, and did so with prejudice. By Order And Judgment dated November 5, 1992, the District Court ruled that Plaintiffs (a) failed to establish the District Court's jurisdiction to award them mandamus under Rule 106(a)(2) since the Chief of Police is not required to issue a concealed weapons permit; and (b) that judicial review under Rule 106(a)(4) is not available since the actions of the Defendants are executive in nature and not judicial or quasi- 2 judicial; and (c) that the Complaint fails to state a claim for relief or damages under 42 U.S.C.  1983. STATEMENT OF THE FACTS Miller and Peterson are both private investigators. Miller is employed by, and serves as President of Investigative Reporting Services, Inc. Peterson is self employed by the R.W. Peterson Investigative Agency. (P. 1) As private investigators, there are compelling reasons why it is necessary for Miller and Peterson to each carry a concealed weapon. On occasions Miller and Peterson transfer or transport large suns of money. Both Miller and Peterson have been threatened while performing their duties as private investigators, and have been placed in danger of physical injury and loss of property to their clients. Additionally, Miller and Peterson have both provided, and continue to provide, services as body-guards. Their need to carry a concealed weapon is very real. (P. 2) Individuals, such as Miller and Peterson, who wish to carry a concealed weapon, must first obtain a permit. The issuance of such permits is controlled by state and a Denver municipal ordinance. In this regard, the law authorizes the Chief of Police to issue concealed weapons permits and mandates that certain steps shall be taken in processing applications for permits. In July, 1991, Miller applied for a concealed weapons permit, and submitted his application to Chief Collier. A period of approximately eleven months passed during which time Miller received no response to his application. Peterson (the holder of a concealed weapons permit for approximately eighteen years) applied for a renewal of his permit in 3 March, 1992. In June, 1992, Chief Collier denied Miller's application, indicating there was no "compelling need." Peterson's application was also summarily denied without comment. (P. 2). Miller made numerous inquiries and requests of the Defendants, as well as of the Manager of Safety for The City, for a definition of what constitutes a "true and compelling need?" Miller never received any response. (Pp. 1-2). Miller was subsequently informed by both Chief Collier and Detective Phillips that he should reapply or submit a new application for a concealed weapons permit based upon new information, if any. Accordingly, in July, 1992, Miller requested an application for a concealed weapons permit from the Denver Police Department. Acting on behalf of Chief Collier, Detective Phillips informed Miller of Denver Police Department policy of no longer providing applications for concealed weapons permits. In fact, Miller learned that the Denver Police Department had announced and implemented a policy of issuing concealed weapons permits only to law enforcement officers, former law enforcement officers, or governmental employees on a select basis, and a policy of not issuing any concealed weapons permit to private citizens, such as Peterson and himself. (P. 2). Miller and Peterson complied with the Denver Police Department's requirements for obtaining a concealed weapons permit. Both Miller and Peterson demonstrated a "true and compelling need" for the permits. Consequently, in August, 1992, Miller and Peterson timely filed a Complaint in the Denver District Court, wherein Chief Collier, Detective Phillips, 4 and The City were named as Defendants. In support of their Complaint, Miller and Peterson alleged, among other allegations, the following: 18) That the Defendants are in violation of the state statute by imposing different requirements than set forth in the statute for obtaining a concealed weapons permit, in particularly in requiring that a 'compelling need' be demonstrated. 19) That even if a 'compelling need' is required the Denver Police Department has failed to set forth what constitutes a 'compelling need.' 20) That the Defendants denial of the concealed weapons permit to the Plaintiffs is arbitrary and capricious. 21) That the Defendants have violated their own procedure regarding the issuing of concealed weapons permits by not conducting a proper determination of the issuance of the concealed weapons permits and have determined in advance as a uniform rule that only select public officials can show good cause to be given a concealed weapons permit and that all private citizens should be denied such a permit. 22) That by arbitrarily denying the Plaintiffs and other private citizens the right to a concealed weapons permit the Police Department, in effect, is attempting to protect the outside employment of current law enforcement officers and retired law enforcement officers to conduct private business at the expense of the Plaintiffs. 23) That the Defendants do not require the select group they have determined should receive concealed weapons permits to meet the same criteria as they have set forth for the Plaintiffs. 24) That R.W. Peterson has previously been granted a concealed weapons permit demonstrating the same 'compelling need' that he has at the present time. 25) That the Police Department has issued concealed weapons permits to the select group where no 'compelling need' is shown or where the 'compelling need' is less than that of the Plaintiffs. 5 26) That by denying concealed weapons permits to private citizens and, in particular to the Plaintiffs, the Defendants are violating the Plaintiffs' civil rights under 42 USC 1983. 27) That by arbitrarily denying the Plaintiffs concealed weapons permits, the Defendants are depriving the Plaintiffs concealed weapons permits, the Defendants are depriving the Plaintiffs of their constitutional rights of liberty and protection of property interest without due process of law. 28) That by arbitrarily denying the Plaintiffs a concealed weapons permit, the Defendants are violating both the United States and the Colorado State Constitutions. 29) That the Defendants are contravening the existence of a state statute concerning the right to carry a concealed weapon by their conduct. 30) That the Defendants, instead of administering their responsibilities in the issuance of concealed weapons permits as set forth in the statute, are attempting to create their own legislation above and beyond the authority granted to them. 31) That the Defendants have demonstrated their abuse of discretion by the fact that no concealed weapons permits have been issued to private citizens since May of 1992 nor are they allowing citizens to apply for concealed weapons permits or to renew their previously issued permits. 32) As a direct and proximate result of the Defendants conduct the Plaintiffs have suffered damages and continue to suffer damages in an amount to be determined at trial, by preventing Plaintiffs from pursuit of their lawful employment. (Pp. 3-4). By way of their Complaint, Miller and Peterson requested certain relief, in the nature of mandamus and certiorari, and requested an Order of the District Court 1) Directing the Chief of Police to allow private citizens to apply for concealed weapons permits. 2) To require the Chief of Police to follow the same criteria for issuing concealed weapons permits to all individuals. 6 3) To require the Chief of Police to follow the Colorado Statute in the issuing of concealed weapons permit. 4) That if the Court does determine that a 'compelling need' is necessary, to require the Chief of Police to define what a 'compelling need' is. 5) To award appropriate damages to the Plaintiffs for the arbitrary actions of the Defendants. (P. 4). Without filing an Answer to the Complaint, Defendants, relying upon C.R.C.P. Rule 12 (b), filed a Motion To Dismiss, wherein Defendants acknowledged "Plaintiffs have made numerous factual allegations regarding the issuance of concealed weapons permits and have requested relief from this Court." (P. 8.) Defendants maintained, however, "[t]hat nowhere in the pleadings do the Plaintiffs allege or establish the authority for [the District Court] to grant the relief they have requested." (P. 8). Specifically, Defendants contended that C.R.S.  18-12-105.1 and C.R.S.  31-4-112.1, "give the Chief of Police the authority to issue concealed weapons permits. They do not establish criteria which if met require the issuance of concealed weapons permits. The law gives the Chief of Police the authority to issue concealed weapons permits, it does not require him to issue permits under any circumstances." (P. 8). In Reply To Motion To Dismiss, Plaintiffs noted that pursuant to Section 38-116.5 of the Denver Municipal Code (1988) The Chief of Police is authorized to issue permits to persons to carry concealed weapons. Such permits are conditioned upon reasonable terms for the protection of life and property. 7 The Chief of Police shall promulgate rules and regulations to implement the issuance of concealed weapons permits.... (P. 13). (emphasis added) Furthermore, Plaintiffs by way of Reply To Motion To Dismiss, clearly advised the District Court that the jurisdiction of the Court to grant the relief sought by Plaintiffs is founded in C.R.C.P. Rule 106 (a)(2) or (a)(4), when as in this case, the allegations set forth in the Complaint establish that an individual has abused his discretion or exceeded his jurisdiction or failed to act in an appropriate manner. Plaintiffs maintained that under such circumstances the District Court has the authority and the power to review such actions. (Pp. 12-13). Additionally, in support of their Reply To Motion To Dismiss, Plaintiffs informed the District Court that the "Defendants are favoring a specific small group of citizens at the expense of the general public, and in effect, are denying Plaintiffs their employment right. This conduct is in violation of the U.S. Constitution because it is depriving the Plaintiffs of equal protection of the laws and due process." (P. 13), Without a hearing, the District Court granted the Defendants' Motion To Dismiss, and dismissed Plaintiffs' Complaint with prejudice. By written Order And Judgment, dated November 5, 1992, the District Court held that Plaintiffs' failed to establish the District Court's jurisdiction to award them relief in the nature of mandamus and certiorari, and further ruled that Plaintiffs' Complaint failed to state a claim upon which relief can be granted. (Pp. 15-21). With respect to mandamus, the District Court held, "Plaintiffs can 8 neither show a clear right to [mandamus], nor that defendant has a clear duty to perform the act requested." (P. 18). Plaintiffs, Miller and Peterson filed and processed this appeal, seeking review of the District Court's Order And Judgment, dated November 5, 1992. SUMMARY OF THE ARGUMENT In granting the Defendants' Motion To Dismiss, the District Court erroneously determined that the Plaintiffs' Complaint failed to establish jurisdiction for mandamus or certiorari under C.R.C.P. Rule 106(a)(2) or (a)(4), and failed to state a cause of action under 42 U.S.C.  1983. The allegations of the Complaint (which must be accepted as true) establish that the Defendants abandoned their statutorily imposed duties and exercised their discretion in an abusive and capricious manner. Further, Defendants applied and implemented state and local laws in a manner that denied Plaintiffs their constitutionally guaranteed right of equal protection under the law. ARGUMENT THE DISTRICT COURT ERRED TN DISMISSING PLAINTIFFS' COMPLAINT FOR FAILURE TO ESTABLISH JURISDICTION AND FOR FAILURE TO STATE A CAUSE OF ACTION. A. The Essence Of The Issues On Appeal. The essence of the issues raised on appeal is whether a District Court in Colorado has jurisdiction to review discretionary acts of government officers when the exercise of 9 discretion has been abused and abandoned and the decision making process is arbitrary and capricious. Under Colorado law, a permit to carry a concealed weapon is authorized in accordance with the procedures set forth in C.R.S.  18-12-105.1, which sets forth the following: (1) Pursuant to the grant of authority in section 30-10-523 and 3 14-1 12. 1 . C.R.S., the chief of police of a city or of a 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 himself or others if granted a permit. The sheriff or chief of police will not be liable for any damages which may result from granting a permit, if the sheriff or chief of police, prior to granting a permit, requested a criminal history check of the applicant from the Colorado bureau of investigation. The cost of such check shall be borne by the applicant. C.R.S.  31-4-112.1 reads as follows: The chief of police of a city or a city and county may issue permits to carry concealed weapons. Any such permit shall be issued in accordance with section 18-12-105.1, C.R.S. The Denver Municipal Code (1988) at  38-116.5 further provides as follows: (a) The Chief of Police is authorized to issue permits to persons to carry concealed weapons. Such permits are 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 permits * * * 10 The clear tone of the statutes and the Denver Municipal Ordinance mandates that a policy of reasonable and appropriate discretion to issue a concealed weapons permit be established and practiced. B. Allegations Of The Complaint Must Be Accepted As True. The case was decided on the pleadings, without a hearing, when the District Court granted Defendants' Motion To Dismiss pursuant to C.R.C.P. Rule 12(b). The Order and Judgment dated November 5, 1992, dismissing Plaintiffs' Complaint with prejudice was premised upon a determination that the Plaintiffs "failed to establish the court's jurisdiction to award them mandamus and certiorari remedies requested," and failed to state a cause of action under 42 USC  1983. (P. 21). When a judgment is entered by the trial court's granting of a motion to dismiss the complaint, as in the instant case, the allegations of the Complaint are conclusively presumed to be true. In other words, the District Court must construe the Complaint in favor of the Plaintiffs, accepting as true all material allegations, and construing every fact against the Defendants. See, e.g., Cook v. City and County of Denver, 128 Colo. 578, 265 P.2d 700, 701 (1954); Bengson v. City of Kewanee, 380 Ill. 244, 43 N.E.2d 951 (1942). The allegations of the Complaint, when compared to case law, clearly demonstrate that the issues raised by the Plaintiffs are valid and justiciable. C. The Plaintiffs' Complaint Established Jurisdiction To Maintain An Action For Mandamus C.R.C.P. Rule 106(a)(2). The District Court correctly identified the three-part test which must be satisfied "before mandamus will be issued by the court [namely]: (1) the plaintiff must have a clear 11 right to the relief sought; (2) the defendant must have a clear duty to perform the act requested; and (3) there must be no other available remedy." (Pp. 17-18). However, without any apparent consideration of the factual allegations contained in the Complaint, and in a monumental leap, the District Court concluded Plaintiffs failed to satisfy the three-part test, stating that "[t]he police chief is not under a legal duty to issue concealed weapon permits to anyone." (P. 17). In other words, without regard to the allegations of the Complaint, the District Court concluded that if the Chief of Police has discretion to issue a permit, that discretion is absolute and free from the compulsion of mandamus, notwithstanding that the discretion has been grossly abused and the Chief of Police acted arbitrarily in denying the permits, and notwithstanding that the Chief refused to provide a new application to Miller. (P. 17). Obviously in view of the policy of the Defendants, a request by Peterson for a new application would have been a futile act. The judgment of the District Court considered only the question of whether Plaintiffs were ultimately entitled to be issued a permit, entirely ignoring the manner by which that decision is processed. The judgment of the District Court reflects a narrow view of the error sought to be corrected by the mandamus complaint, and does not encompass the abuse of discretion basis for mandamus that has been sensibly embraced by the law. In City Council v. United Negroes Protective Ass'n, 76 Colo. 86, 230 P. 598 (1924), an application for mandamus relief was upheld where the refusal to grant a building permit was an abuse of discretion. In so ruling the Court stated as follows: The labored and vigorous argument by the city attorney that mandamus lies only to compel action, not to control discretion, 12 and is restricted to enforce performance of purely ministerial duties, is wholly inapplicable to the fats of this case and contrary to previous decisions of this court. * * * * Municipal authorities or bodies invested with power of this character, even though in its exercise they have discretion, are not beyond the control of the courts, when, as here, by the finding of the trial court, they have grossly abused that discretion or acted arbitrarily. Id. at 600 (emphasis added). To the same effect, People's Natural Gas, Etc. v. Public Utilities, 626 P.2d 159 (Colo. 1981) ("mandamus will lie when action has been taken arbitrarily or if it reflects a gross abuse of discretion"); Blumenfeld v. Codd, 393 N.Y.S.2d 145, 89 N.Y.Misc.2d 837 (1977) (where petitioner demonstrated sufficient need for the issuance of a license to carry a concealed handgun, police commissioner's denial to issue license was arbitrary and capricious and an abuse of discretion). In the case of Salute v. Pitchess, 61 Cal. App.3d 557, 132 Cal. Rptr. 345 (1976), the California Appellate Court recognized that a writ of mandamus was appropriate where the sheriff rejected the application of the petitioners for a weapon permit. There, private investigators made application to carry concealed weapons under the statute which stated that the sheriff or chief or other head of a municipal police department "may issue" a concealed weapon for any period of time not to exceed one year "upon proof that the person applying is of good moral character, that good cause exists for the issuance, and that the person applying is a resident of the county." Id. at 347. The petitioners alleged, and the sheriff 13 admitted, "that the sheriff has a fixed policy of not granting applications under [the statute] except in a limited number of cases. The policy was stated by the sheriff as follows: The Sheriffs policy is not to issue any concealed weapons permit to any person, except for judges who express concern for their personal safety. In special circumstances, the request of a public office holder who expresses concern for his personal safety would be considered...[and]...the outstanding permits issued by the Sheriff are only 24 in number. Id. at 347. The trial court order of dismissal in Salute was reversed and the case remanded for further proceedings consistent with the opinion of the appellate court, which stated as follows: While a court cannot compel a public officer to exercise his discretion in any particular manner, it may direct him to exercise that discretion. We regard the case at bench as involving a refusal of the sheriff to exercise the discretion given him by the statute. * * * To determine, in advance, as a uniform rule, that only selected public officials can show good cause is to refuse to consider the existence of good cause on the part of citizens generally and is an abuse of, and not an exercise of discretion. * * * * * It is admitted that no inquiry into the existence of good cause has ever been made in connection with the application of these petitioners, or of any other application of any other application of these petitioners, or of any other applicant outside the limited group of public officials. It is the duty of the sheriff to make such an investigation and determination, on an individual basis, on every application under [the statute]. Id. at 347. (emphasis added) 14 A review of the Complaint in the instant case sets forth allegations of facts (which are to be taken as true) that bring the behavior of the Defendants into the center of the Salute case's prohibited attitude and behavior, as for example, the allegation by the Plaintiffs that the Defendants have not conducted a proper determination of the issuance of concealed weapon permits "and have determined in advance as a uniform rule that only select public officials can show good cause to be given a concealed weapons permit and that all private citizens should be denied such a permit. " (Pp. 1-4). (emphasis added) As in the Salute case, the attitude and behavior of the Defendants is properly addressed by mandamus. In Big Top, Inc. v. Schooley, 149 Colo. 116, 368 P.2d 201 (1962), the Colorado Supreme Court affirmed the principle that the power of an officer, board or city to administer a state statute is not the power to make law, and such officer, board or city cannot modify or contravene policy established by the delegator. The behavior of the sheriff in the Salute case, and the Defendants in the instant case, in effect, abused their discretion by ignoring it, thereby contravening the express provisions of the state statute. The clarity of Defendants' abuse is further underscored by the fact of Chief Collier's subsequent refusal to even provide Miller with an application upon request, and the policy pronounced by the Defendants that such applications would no longer be available to the public. Neither C.R.S.  18-12-105.1, nor C.R.S.  31-4-112.1, confer any degree of discretion upon the Chief of Police to determine who the privileged few are who will be allowed to apply. There is no doubt that the statute entitles the Plaintiffs to apply for a concealed weapons permit. C.R.S.  18-12-105.1 and C.R.S.  31-4-112.1, implicitly 15 impose upon the Chief of Police the duty to provide (or otherwise make available) applications for concealed weapons permits upon request. Kellogg v. City of Gary, 562 N.E.2d 685 (Ind. 1990). Chief Collier's refusal to provide such application is nothing less than a total abandonment of a non-discretionary ministerial duty of his office. The District Court failed to recognize this fact and other mandated requirements that were ignored by the Defendants, such as the Denver Municipal Code provision which provides that "[t]he Chief of Police shall promulgate rules and regulations to implement the issuance of concealed weapons permits. * * * ." (emphasis added) The allegations of the Complaint, when compared to case law, raise serious questions regarding existing government abuse. Clearly, the import of the District Court's decision, if upheld by this Court, allows a Chief of Police untrammeled discretion not only to deny weapons permits but to select those to whom a Chief determines should have the permits, without any interference by the judiciary. In other words, if a Chief of Police exercises his discretion to issue permits to terrorist groups, the restricted rationale of the District Court judgment would be equally applicable and the doctrine of judicial abstention would prevail, to the detriment of the citizens of Colorado. The Complaint of the Plaintiffs alleges that a "compelling need" exists for a permit since, among other reasons, "[p]laintiffs have been threatened while on their job and have been placed in danger of physical injury and loss of property of their clients." (P.2). Moreover, notwithstanding numerous requests made to the Defendants and the Manager of 16 Safety of the City and County of Denver requesting a definition of what they deem to be a "true and compelling need," no response was ever received. The case of Schubert v. DeBard, 398 N.E.2d 1339 (Ind. App. 1980), recognizes self-defense as a compelling need for issuance of a concealed weapons permit. There, the statute under which the plaintiff-private investigator applied for a permit to carry a concealed weapon, required the issuance of a permit if "the applicant has a proper reason for carrying a handgun and is of good character and reputation and a proper person to be so licensed." Id. at 1340. The plaintiff urged that when self-defense is the reason for desiring a firearms license, and the applicant is otherwise qualified, the license cannot be withheld upon an administrative official's subjective determination of whether the applicant needs defending. The license was denied. The decision of the official to deny the license was reversed, the Indiana Appellate Court stating as follows: In Schubert's case it is clear from the record that the superintendent decided the application on the basis that the statutory reference to 'a proper reason' vested in him the power and duty to subjectively evaluate an assignment of 'self-defense' as a reason for desiring a license and the ability to grant or deny the license upon the basis of whether the applicant 'needs' to defend himself. Such an approach ... would supplant a right with a mere administrative privilege which might be withheld simply on the basis that such matters as the use of firearms are better left to the organized military and police forces even where defense of the individual citizen is involved. 17 We therefore hold that Schubert's assigned reason which stood unrefuted was constitutionally a 'proper reason' within the meaning of the [statute]. Id. at 1341. In Brevard County v. Bagwell, 388 So.2d 645, 647 (Fla. App. 1980), the Court held a county ordinance regarding gun licensing facially unconstitutional "because it allows the county commissioners to consider any criteria they desire and does not require the commissioners to consider the same criteria for each applicant. Such unbridled discretion allows for capricious and arbitrary discrimination in violation of the due process clauses." There, the ordinance allowed the County Commissioners to consider any factors, in addition to those enumerated in the law, which the Board, in its sole discretion, deemed appropriate. See also, Goldstein v. Brown, 592 N.Y.S.2d 343 (A.D. I Dept. 1993), where denial of application for a permit to carry a handgun was reversed because "respondent [police commissioner] failed to provide any explanation regarding why [he] had distinguished the petitioner from other applicants to whom carry permits were granted upon less specific proof of threats." Tassian v. People, 731 P.2d 672, 674 (Colo. 1987), recognizes that "equal protection of the laws requires that the government treat similarly situated persons in a similar manner." In the instant case, the Plaintiffs are likewise faced with undefined and undisclosed criteria and factors. While the legislature may delegate to chief law enforcement officers the discretion to issue permits for carrying concealed weapons, See Douglas v. Kelton, 199 Colo. 446, 610 P.2d 1067 (1980), reasonable standards must be imposed whenever the legislature delegates 18 discretionary powers. In Matthews v. State, 237 Ind. 677, 148 N.E.2d 334, 337, (1958), the Indiana Firearms Act (requiring procurement of a license to carry certain types of weapons), was upheld, the court stating that: [T]he Act fixes the general standard of fitness, character, and reputation necessary to require the issuance of a license and provides a review by the Circuit Court to protect the applicant against any arbitrary, capricious or fraudulent action by the licensing officers. Id. at 337. (emphasis added) Clearly, legislatures have expressed concern for this sensitive area of law dealing with permits by assuring that individuals in the community are dealt with fairly, either by definition of criteria, review of decisions, and other means to protect against arbitrary and capricious determinations by the licensing official. The decision of the District Court in this case ignores this necessity of fairness and review, and its opinion is burdened by foreseeable risks to the public. Of such importance is the need for a system of licensing that does not allow for arbitrary and capricious decisions, some courts have interpreted legislation referring to "may be granted" to mean "shall be granted." In this manner, Courts have rejected the argument of administrators that "the statute says 'may,' so we have complete discretion to treat like cases disparately, to act or not to act, or to act in any way we want." For example, in Schwanda v. Bonney, 418 A.2d 163, 167 (Me. 1980), in interpreting a statute dealing with the issuance of weapon permits, the court stated that: [W]hen the word 'may' is used in imposing a public duty upon public officials in the doing of something for the public good, 19 and the public or third persons have an interest in the exercise of the power, then the word 'may' will be read 'shall'.... Id. at 167. Clearly, the District Court erred in equating the "clear legal duty" of the Chief of Police with the applicant's right to a concealed weapons permit, as opposed to the duty to exercise discretion in a meaningful and just manner, and not in a manner that is arbitrary and abusive. The Complaint states, among other things, that the Defendants determination in advance, "as a uniform rule, that only selected public officials can show good cause is to refuse to consider the existence of good cause on the part of citizens generally and is an abuse of, and not an exercise of, discretion." The District Court also notes in its decision, without discussion, that the "plaintiffs have an alternative remedy in the form of damages." (P. 18). The nature and extent of the remedy and its adequacy is not discussed by the District Court. The Plaintiffs set forth in their applications their genuine concerns for their personal safety because of prior threats. To what extent would a wrongful death action by the widows of the Plaintiffs, or an action by the Plaintiffs for a serious and disabling injury, or damages under 42 USC  1983, be an "adequate" remedy? The "adequacy" of any damages is illusory. Moreover, the District Court further ruled that the Plaintiffs have no basis for damages for their alleged violation of constitutional rights. 20 D. The Remedy Of Certiorari Under C.R.C.P. 106(a)(4). The District Court found that the Plaintiffs are not entitled to certiorari because, "the actions alleged here are executive in nature, rather than judicial or quasi judicial, Plaintiffs cannot ground jurisdiction in [C.R.C.P. 106] (a)(4)." (P. 18). The criteria in determining whether governmental action is quasi-judicial or ministerial is not always easy to discern. In Carpenter v. Civil Service Com'n., 813 P.2d 773 (Colo. App. 1991), the Court stated that the decision depends on the nature of the governmental decision and the process by which it is reached. When a governmental decision is likely to affect the rights and duties of specific individuals, and the decision is reached through the application of preexisting legal standards or policy considerations to present or past facts developed at a hearing, the governmental body is generally acting in a quasi-judicial capacity. * * * * Quasi-judicial functions ordinarily require the exercise of discretion. Id. at 776. (emphasis added) If the Court concludes that the Chief of Police is a quasi-judicial officer, clearly there was an abuse of discretion that warrants reversal of the District Court. The Colorado Supreme Court has held that "[w]here an ordinance vests unreviewable discretion...the ordinance is void for vagueness," and subject to review under C.R.C.P., Rule 106 (a)(4). Sherman v. Colorado Springs Plan. Com'n., 763 P.2d 292, 296 (Colo. 1988). 21 The Sherman Court further stated that "if certiorari review under C.R.C.P. 106(a)(4) is available, a mandamus action would not be appropriate." Id. at 295. The decision suggests that mandamus and certiorari are alternate remedies. In this case, the District Court's ruling that certiorari is not available is further support that mandamus is an appropriate remedy. If mandamus is not deemed to be an appropriate remedy, the Plaintiffs suggest that the District Court erred in not permitting judicial review of the circumstances attending the Defendants' abuse of discretion and arbitrary conduct. Moreover, the Colorado legislature and the City and County of Denver conferred upon Chief Collier the authority to issue concealed weapons permits. However, no criteria or standard for review of the exercise of that authority is provided. Nor were rules and regulations promulgated by Chief Collier establishing the guidelines by which his discretion would be exercised. C.R.S.  18-12-105.1; C.R.S.  31-4-112.1, and the Denver Municipal Code (1988),  38-116.5. Accordingly, the laws and circumstances within which the Defendants functioned and which permitted the discretion to be excessive and abusive and vaguely defined, may be examined under C.R.C.P. 106(a)(4). See discussion of Brevard County v. Bagwell, at page 18 (ordinance declared unconstitutional as violative of due process). E. Plaintiffs' Complaint Adequately States A Cause of Action For Damages Under 42 U.S.C.  1983 42 U.S.C.  1983 confers authority upon the Courts to redress violations and deprivations of certain rights and privileges guaranteed by the United States Constitution, that occur under color of state law. The Equal Protection Clause of the Fourteenth Amendment 22 provides, "No State shall...deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. art. XIV,  1. Logically, it follows that a deprivation of equal protection under the color of state law will sustain a cause of action under 42 U.S.C.  1983. In the instant case, Plaintiffs asserted a  1983 claim and alleged, in part, that Defendants were applying state and local laws in such a manner as to violate Plaintiffs constitutionally guaranteed right of equal protection. Specifically, Plaintiffs alleged, that Defendants favored a small select group of citizens at the expense of the general public, effectively denying Plaintiffs of their right to equal protection and due process. (Pp. 1-4 and 12-13). Plaintiffs allegations (accepted as true) establish a claim under 42 U.S.C.  1983 founded upon a denial of equal protection. "A law that is administered so as to unjustly discriminate between persons similarly situated may deny equal protection." Guillory v. County of Orange, 731 F.2d 1379, 1383 (9th Cir. 1984) (citing, Yick Wo v. Hopkins, 118 U.S. 356 (1886); Kuzinick v. County of Santa Clara, 684 F.2d 1345 (9th Cir. 1983)). Of critical importance to Plaintiffs'  1983 claim is the refusal of the Defendants to provide applications for permits, along with Defendants' stated policy and uniform rule of determining in advance that concealed weapons permits will only issue to law enforcement officers, former law enforcement officers, or government employees. Similar circumstances were found by the Indiana Supreme Court in Kellogg v. City of Gary, 562 N.E.2d 685 (Ind. 1990), to be a denial of equal protection. In Kellogg, a group of citizens commenced a  1983 claim against the City of Gary and certain named officials, including the police chief based, in part, upon a deprivation of equal protection of the law. There, the Indiana 23 legislature prohibited the carrying of weapons without a permit. Such permits were only issued upon submission of a completed application and approval of the same by the Chief of Police. The Gary Chief of Police refused to provide applications for weapons permits, and issued permits to a predetermined select group in accordance with an established policy. The Kellogg Court determined, "[a]s a class the citizens were denied access to the state procedure for obtaining handgun licenses. To that extent, we agree they were denied the protection of a state procedural law available to other Indiana citizens." Id. at 691. (The Indiana Supreme Court refused to award any damages on the equal protection claim on appeal because no equal protection claim had been presented to the jury at the time of trial). In the instant case, the Defendants selectively enforced and implemented the provisions of C.R.S.  18-12-105.1, C.R.S.  31-4-112.1, and Section 38-116.5 of the Denver Municipal Code, in such an arbitrary and discriminatory fashion as to deprive Plaintiffs of equal protection of the laws, thereby entitling Plaintiffs to damages under 42 U.S.C.  1983. However, even a award of damages under a successful  1983 claim will not provide Plaintiffs with an "adequate remedy," thereby precluding mandamus. Plaintiffs' compelling need to carry a concealed weapon addresses a need to protect life and property their own as well as their clients'. At a minimum, the only remedy that will adequately redress the injuries to, and the plight of the Plaintiffs is the issuance of concealed weapons permits. 24 CONCLUSION The Complaint of the Plaintiffs alleges behavior by the Defendants that is flagrant in controlling the issuance of weapons permits. A statutory scheme exists for the issuance of such permits that call upon the exercise of discretion by Chiefs of Police that should be compatible with the legislative mandate. To abandon that discretion intended, to refuse to promulgate identifiable criteria for the issuance of such permits, to refuse to make applications for the permits available, and to determine in advance that only selected public officials will be considered for concealed weapons permits, unlawfully and wrongfully contravenes the intention of the statute. The District Court decision condones the behavior of the Defendants and allows the Defendant to function outside the boundaries of Court intervention, thereby permitting the Defendants to deny weapons to those who have a compelling need for the issuance of a weapons permit, and the granting of a weapons permit to those individuals who may utilize weapons for purposes that may not promote the health and safety of the general public. The safety of the community would rest within the absolute discretion of any Chief of Police, whose judgments would elude any objective review or control. The affirmation of the District Court decision would establish a precedent that would place responsible citizens at risk. Such affirmation will conceivably foster a situation where the legislative attempt to regulate concealed weapons will be applied in a manner that will create chaos, confusion and concern. A very real scenario can be envisioned where Chiefs of Police of some communities will issue permits with regularity, resulting in armed 25 communities, while citizens of contiguous or other communities will be routinely denied permits and be placed in danger of losing life and property. The Complaint of the Plaintiffs alleges serious misconduct and abuse by government officials. The Complaint is presumed to be true under the status of this case, since the decision of the District Court upon a motion to dismiss assumes the truth of the allegations. To affirm that no right of review exists to review this discretion is not in keeping with cases that have authorized review. The Plaintiffs desire to have the opportunity for a hearing on the practices and procedures of the Defendants that cause responsible decisions to be made with regard to the issuance of concealed weapons permits, in accordance with criteria that enhances responsible citizenship. For the foregoing reasons and pursuant to the authority cited herein, the Plaintiffs respectfully request that the decision of the District Court be reversed and the matter be permitted to proceed to trial. Respectfully submitted, Theodore A. Borrillo, #2010 Doris A. Waters #18088 Attorneys for Plaintiffs-Appellants Thomas C. Miller and R.W. Peterson 5353 W. Dartmouth Ave., #510 Denver, CO 80227 985-8888 26 CERTIFICATE OF MAILING I certify that a true and correct copy of the foregoing APPELLANTS' OPENING BRIEF was placed in the United States Mail, postage prepaid this 20th day of May, 1993, addressed to: Daniel E. Muse, Esq. Attorney for the City and County of Denver 1437 Bannock Street Room 9 A Denver, Colorado 80202 James C. Thomas, Esq. Assistant City Attorney for the City and County of Denver 1437 Bannock Street Room 9 A Denver, Colorado 80202 Clerk of the District Court District Court of the City and County of Denver 1437 Bannock Street Denver, Colorado 80202