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  • STATE OF COLORADO COURT OF APPEALS

    Case No. 92 CA 2030

    THOMAS C. MILLER, ET AL., Plaintiffs-Appellants,

    v. APPELLANTS' REPLY BRIEF

    JAMES R. COLLIER, ET AL, Defendants-Appellees.

    TRIAL COURT: District Court, City and county of Denver, Colorado

    TRAIL COURT CASE NUMBER: 92 CV 5546

    NATURE OF PROCEEDINGS: 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 (303) 985-8888

    TABLE OF CONTENTS

    Page

    TABLE OF AUTHORITIES .................................. ii

    ARGUMENT ............................................... 1

    CONCLUSION ............................................... 6

    TABLE OF AUTHORITIES Page CASES

    Cherry Hills Resort v. Cherry Hills Village, 757 P.2d 622, 627 (Colo. 1988). .................................................. 3

    City Council v. United Negroes Protective Ass'n, 76 Colo. 86, 230 P. 598 (1924). ................................................ 1

    Kellogg v. City of Gary, 562 N.E.2d 685 (Ind. 1990). .......... 5

    STATUTES

    C.R.S. 18-12-105.1 ............................................. 4

    C.R.S. 31-4-112.1 .............................................. 4

    MUNICIPAL CODE

    Denver Municipal Code 38-116.5 ................................. 4

    RULES

    106 C.R.C.P. (a)(2) ........................................... 1

    106 C.R.C.P. (a)(4) ........................................ 2,3,4

    ARGUMENT

    A. THE PLAINTIFFS' COMPLAINT ESTABLISHED JURISDICTION TO MAINTAIN AN ACTION FOR MANDAMUS UNDER C.R.C.P. 106

    Defendants' lack of understanding of the remedy of mandamus is apparent. Defendants maintain "the only thing to be considered in determining if mandamus is the appropriate remedy, is whether there is a clear legal right to the relief requested by plaintiffs, a clear legal duty on the part of the Defendants to perform that function, and no other adequate form of relief." (See, Response Brief, p.8). That statement highlights Defendants' failure to comprehend that mandamus may properly issue when, as in the instant case, the Chief of Police grossly abuses or acts arbitrarily in exercising the discretion conferred upon him by statute. City Council v. United Negroes Protective Ass'n, 76 Colo. 86, 230 P. 598 (1924).

    In a rambling fashion Defendants solely focus on the question of whether Plaintiffs ultimately were entitled to be issued concealed weapons permits. That narrow view shared by the Defendants and the District Court completely ignores the critical issue, that issue being the manner by which the Chief of Police's decision was processed.

    The record in the instant case establishes that the actions of the Chief of Police were arbitrary and a gross abuse of discretion. Under such circumstances mandamus may properly issue.

    Additionally, Defendants assert that Plaintiffs interjected and raised new factual allegations and new claims of misconduct by way of Plaintiffs' Opening Brief. That simply is not true. Although Defendants make such a serious accusation, they do not identify even one such "new allegation" or "new claim of misconduct." That is because no such "new allegations" or "new claims of misconduct" are contained in the Plaintiffs' Opening Brief. The factual allegations and claims of misconduct recited in Plaintiffs' Opening Brief are clearly and consistently referenced to the record as it appeared before the District Court and as it now appears before this Court.

    The allegations set forth by Plaintiffs in the Complaint (and as cited in Plaintiffs' Opening Brief), when compared to the case law, clearly demonstrate that the issues raised by Plaintiffs in the District Court are valid and justiciable, and should not have been dismissed by the District Court.

    B. PLAINTIFFS' ESTABLISHED THEIR ENTITLEMENT TO THE REMEDY OF CERTIORARI UNDER C.R.C.P. 106 (a)(4).

    Defendants state in a conclusory fashion that Plaintiffs are not entitled to certiorari under C.R.C.P. 106(a)(4), because the Chief of Police was acting in an executive capacity and therefore his denial of the concealed weapons permits, and his refusal to provide a new application for concealed weapons permit, are not subject to judicial review.

    The capacity in which the Chief of Police was functioning is one of the basic issues to be decided by this court. That determination is not easily or readily discerned. There is no "litmus-like test" for determining if the Chief of Police was acting in an executive capacity or in a quasi-judicial manner, subject to judicial review pursuant to C.R.C.P. 106 (a)(4). In resolving this issue, the focus "should be on the nature of the governmental decision and the process by which that decision is reached." Cherry Hills Resort v. Cherry Hills Village, 757 P.2d 622, 627 (Colo. 1988).

    The Defendants' belief that Plaintiffs are not entitled to certiorari under C.R.C.P. 106 (a)(4) because the Chief of Police was acting in executive capacity, not only is incorrect but also is a gross oversimplification of the circumstances under which the remedy of certiorari is appropriate. It is illustrative of Defendants failure to understand the true nature of the remedy. Defendants concede the statutes authorizing the Chief of Police to issue concealed weapons permits "do not establish criteria, which if met, require a permit to be issued" and vest the Chief of Police with unfettered discretion (See, Response Brief, pages 6-8). That being the case, certiorari under C.R.C.P. 106 (a)(4) is indeed the appropriate remedy. The Colorado Supreme Court has held "[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).

    Additionally, Defendants attempt to raise a new issue for the first time on appeal. Defendants contend that Plaintiffs are not entitled to certiorari under C.R.C.P. Rule 106 (a)(4) because Plaintiffs' allegedly failed to affirmatively establish that their Complaint was timely filed. That specific issue was never raised by the Defendants in the District Court, nor did the District Court make any specific findings regarding the timeliness of Plaintiffs' request for certiorari, nor does the record on appeal support Defendants' contention. (R. at p. 15-20).

    C. PLAINTIFFS' COMPLAINT STATES A CAUSE OF ACTION UNDER 42 U.S.C. 1983

    Defendants attempt to characterize Plaintiffs' 1983 claim, as a claim premised upon a right to bear arms. Clearly, Plaintiffs' 1983 claim is not founded upon such a right. Rather, Plaintiffs' 1983 claim is based upon the denial and deprivation of equal protection under the color of state law.

    The Colorado legislature determined that under certain circumstances persons may carry concealed weapons. The Colorado legislature and the governing body of the City and County of Denver, enacted laws establishing a procedure whereby persons, such Plaintiffs, may apply for and obtain a permit to carry a concealed weapon. C.R.S. 18-12-105.1, and C.R.S. 31-4-112.1 and the Denver Municipal Code 38-116.5 (1988). That procedure requires the completion and submission of a formal written application for concealed weapons permits.

    It is that process (comprised of state and local laws) which Plaintiffs sought to access. It is that very same process which Defendants perverted, and skewed in such a manner so as to favor a select group of citizens at the expense of the general public, and effectively denying Plaintiffs of their right to equal protection and due process.

    Defendants attempt to convince this Court that Plaintiffs have no constitutionally protected right to carry a concealed weapon. Therefore, Defendants maintain it is irrelevant that Plaintiffs were not permitted the opportunity to obtain an application for a concealed weapons permit, and access the procedure established pursuant to state and local laws. The Defendants' refusal to provide the requested application, 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, constituted a denial of Plaintiffs' constitutionally guaranteed right of equal protection under the color of state law and sustains a cause of action under 42 U.S.C. 1983. Kellogg v. City of Gary, 562 N.E. 2d 685 (Ind. 1990).

    CONCLUSION

    For the reasons set forth in Plaintiffs' Opening Brief and this Reply Brief, Plaintiffs respectfully request 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

     

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