Attorney General Phil Weiser filed a motion on Thursday in Denver District Court to dismiss the lawsuit brought by Rocky Mountain Gun Owners and a handful of Republican lawmakers who sought to overturn the state's "red flag" gun law.
RMGO, along with House Minority Leader Patrick Neville, R-Castle Rock; Rep. Dave Williams, R-Colorado Springs; and Rep. Lori Saine, R-Firestone, filed the lawsuit against the state and Gov. Jared Polis on May 2, the day before the end of the 2019 session.
The law, signed by Gov. Jared Polis on April 12, allows family members or law enforcement officers to seek a court order that would allow police to remove firearms from someone deemed a substantial risk to themselves or to others.
The RMGO lawsuit goes after the process of how the law was passed, not the merits of the law itself.
It's similar to the tactic used by Senate Republicans in early March, when they filed a lawsuit over the way a bill was read by Senate nonpartisan staff.
It claimed House Democrats refused to read at length House Bill 1177, known as the Deputy Zackari Parrish III Violence Prevention Act, named for the Douglas County deputy ambushed by an allegedly mentally ill man on Dec. 31, 2017.
During a House second reading debate on March 1, three Republican lawmakers asked that House Bill 1177 be read at length. Second reading is when lawmakers usually debate a bill and offer amendments; the bill went on to a recorded vote the following Monday, March 4.
The first request, made by Williams, was ruled improper. The second, by Rep. Steven Humphrey, R-Ault, was in order, according to that day's committee of the whole chair, Democratic Rep. Jovan Melton of Aurora.
The reading clerk began reading the bill, and soon was joined by several other members of the House's nonpartisan staff, all of whom took portions of the bill and began reading. Humphrey then withdrew the reading motion.
But moments later, Saine suggested the bill should be read at length. That motion, according to Melton, was also ruled out of order because it was a suggestion and not a proper motion; this was similar to the reason he gave for denying Williams' request.
In his motion to dismiss, Weiser pointed out that House Republicans never raised any objections to their motions being dismissed at the time.
Instead, "they kept quiet until the session ended, not allowing the legislature an opportunity to cure the alleged defect, and now ask this court to intervene in a hotly contested political issue," Weiser wrote in the motion.
The plaintiffs don't demonstrate that there was any injury for the lack of reading of the bill at length, the motion states. Secondly, the plaintiffs are asking the court to get into the middle of a political dispute, which should not be allowed under the "political question doctrine."
Under that provision the U.S. Supreme Court, in rulings dating back to 1918 and as recently as 2004, decided that some political questions should not be litigated in the courts, as those questions are "textually committed to another branch of government."
Finally, the lawsuit should be dismissed, the motion states, because the plaintiffs filed the lawsuit on May 2, giving the General Assembly no time to cure the deficiency, a provision in law known as the "doctrine of lache," or, "you're out of time."
"Experience from similar challenges shows that plaintiffs could have sought court intervention in as little as one day, when time remained in the legislative session to fix the alleged procedural error. Equity forbids a plaintiff from lying in wait to intentionally prevent a solution to the claimed problem," Weiser's motion states.
At the time the lawsuit was filed, RMGO President Dudley Brown said the plaintiffs hoped to overturn the law. But they have other avenues to pursue if that isn't successful, he told reporters.
Saine told Colorado Politics she was flabbergasted by Weiser's use of doctrine of lache, since she said the Attorney General waited until the last day to file the motion to dismiss. She noted that the House Democrats had plenty of time to rectify the situation, given that the lawsuit was filed the day before the session ended. They could have read the bill at length even up to the last day, she said.