PUBLISH 

UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

COLORADO OUTFITTERS 

ASSOCIATION; COLORADO FARM 

BUREAU; NATIONAL SHOOTING 

SPORTS FOUNDATION; MAGPUL 

INDUSTRIES; COLORADO YOUTH 

OUTDOORS; USA LIBERTY ARMS; 

OUTDOOR BUDDIES, INC.; WOMEN 

FOR CONCEALED CARRY; 

COLORADO STATE SHOOTING 

ASSOCIATION; HAMILTON FAMILY 

ENTERPRISES, INC., d/b/a Family 

Shooting Center at Cherry Creek State 

Park; DAVID BAYNE; DYLAN 

HARRELL; ROCKY MOUNTAIN 

SHOOTERS SUPPLY; 2ND 

AMENDMENT GUNSMITH & 

SHOOTER SUPPLY, LLC; BURRUD 

ARMS INC., d/b/a Jensen Arms; GREEN 

MOUNTAIN GUNS; JERRY’S 

OUTDOOR SPORTS; SPECIALTY 

SPORTS & SUPPLY; GOODS FOR THE 

WOODS, 

 Plaintiffs - Appellants, 

v. 

JOHN W. HICKENLOOPER, Governor of 

the State of Colorado, 

 Defendant - Appellee. 

–––––––––––––––––––––––––––––––––––

JIM BEICKER, Sheriff of Fremont 

County; RICK BESECKER, Sheriff of 

Gunnison County; RONALD BRUCE, 

No. 14-1290 

FILED 

United States Court of Appeals 

Tenth Circuit 

March 22, 2016

Elisabeth A. Shumaker 

Clerk of Court

Appellate Case: 14-1292 Document: 01019590609 Date Filed: 03/22/2016 Page: 1 
 

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Sheriff of Hinsdale County; DAVID D. 

CAMPBELL, Sheriff of Baca County; 

JAMES (JIM) CASIAS, Sheriff of Las 

Animas County; MILES CLARK; JOHN 

B. COOKE; JAMES CRONE, Sheriff of 

Morgan County; DOUGLAS N. DARR; 

CHAD DAY, Sheriff of Yuma County; 

RICK DUNLAP, Sheriff of Montrose 

County; DAVID ENCINIAS, Sheriff of 

Bent County; MIKE ENSMINGER, Sheriff 

of Teller County; JAMES FAULL; ROD 

FENSKE, Sheriff of Lake County; SCOTT 

FISCHER, Sheriff of Jackson County; 

FORREST FRAZEE; PETER 

GONZALEZ; BRUCE W. HARTMAN, 

Sheriff of Gilpin County; SHAYNE 

HEAP, Sheriff of Elbert County; FRED 

HOSSELKUS, Sheriff of Mineral County; 

TIM JANTZ; FRED JOBE; CHRIS S. 

JOHNSON; RODNEY JOHNSON; 

DONALD KRUEGER; LARRY KUNTZ; 

SUE KURTZ; TERRY MAKETA; JERRY 

MARTIN, Sheriff of Dolores County; 

DOMINIC MATTIVI, JR., Sheriff of 

Ouray County; FRED D. MCKEE, Sheriff 

of Delta County; AMOS MEDINA, Sheriff 

of Costilla County; TED B. MINK; JOHN 

MINOR, Sheriff of Summit County; TOM 

NESTOR, Sheriff of Lincoln County; 

BRUCE NEWMAN, Sheriff of Huerfano 

County; MIKE NORRIS; BRIAN E. 

NORTON, Sheriff of Rio Grande County; 

RANDY PECK; BRETT L. POWELL, 

Sheriff of Logan County; KEN PUTNAM; 

TOM RIDNOUR, Sheriff of Kit Carson 

County; GRAYSON ROBINSON; DUKE 

SCHIRARD; JUSTIN SMITH, Sheriff of 

Larimer County; DENNIS SPRUELL; 

DAVE STONG; CHARLES "ROB" 

URBACH, Sheriff of Phillips County; 

LOU VALLARIO, Sheriff of Garfield 

County; DAVID A. WEAVER; FRED 

WEGENER, Sheriff of Park County; 

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GARRETT WIGGINS, Sheriff of Routt 

County; SI WOODRUFF; DAVID 

STRUMILLO; JOHN “SMOKEY” 

KURTZ, Sheriff of Crowley County; 

STEVE REAMS, Sheriff of Weld County; 

MICHAEL T. MCINTOSH, Sheriff of 

Adams County; SAM ZORDEL, Sheriff of 

Prowers County; CASEY SHERIDAN, 

Sheriff of Kiowa County; RICHARD 

VALDEZ, Sheriff of Archuleta County; 

K. C. HUME, Sheriff of Moffat County; 

SHANNON KEITH BYERLY, Sheriff of 

Custer County; SHAWN MOBLEY, 

Sheriff of Otero County; BRETT 

SCHROETLIN, Sheriff of Grand County; 

RICHARD A. ALBERS, Sheriff of Clear 

Creek County; JON STIVERS, Sheriff of 

Washington County; BRUCE CONRAD, 

Sheriff of San Juan County; BILL ELDER, 

Sheriff of El Paso County; JEFF 

SHRADER, Sheriff of Jefferson County; 

DAN WARWICK, Sheriff of Saguache 

County; THOMAS JAMES HANNA, 

Sheriff of Sedgwick County; GABRIEL 

DAVID JOINER, Sheriff of Cheyenne 

County; DAVID C. WALCHER, Sheriff of 

Arapahoe County; SEAN MICHAEL 

SMITH, Sheriff of La Plata County; 

STEVE NOWLIN, Sheriff of Montezuma 

County; ROBERT JACKSON, Sheriff of 

Alamosa County; TONY SPURLOCK, 

Sheriff of Douglas County; ANTHONY 

MAZZOLA, Sheriff of Rio Blanco County, 

 

 Plaintiffs - Appellants, 

v. 

JOHN W. HICKENLOOPER, Governor of 

the State of Colorado, 

 Defendant - Appellee. 

No. 14-1292 

 

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__________________________________ 

Appeal from the United States District Court 

for the District of Colorado 

(D.C. No. 1:13-CV-01300-MSK-MJW)

_________________________________ 

Richard A. Westfall, Hale Westfall, LLP, Denver, Colorado (Peter J. Krumholz, Hale 

Westfall, LLP, Denver, Colorado, Marc F. Colin, Bruno Colin & Lowe PC, Denver, 

Colorado, Anthony J. Fabian, Law Offices of Anthony J. Fabian PC, Castle Rock, 

Colorado, and Douglas Abbott, Holland & Hart LLP, Denver, Colorado, with him on the 

briefs), for Plaintiffs-Appellants Nonprofit Organizations, Disabled Firearms Owners, 

Firearms Manufacturers and Dealers, David Bayne, Colorado Farm Bureau, Colorado 

Outfitters Association, Outdoor Buddies, Inc., Women for Concealed Carry, and Dylan 

Harrell. 

David B. Kopel, Independence Institute, Denver, Colorado, for Plaintiffs-Appellants 

Sheriffs and David Strumillo. 

Matthew D. Grove, Assistant Solicitor General (Cynthia H. Coffman, Attorney General, 

Kathleen L. Spalding and Stephanie L. Scoville, Senior Assistant Attorneys General, and 

LeeAnn Morrill, First Assistant Attorney General), Colorado Department of Law, 

Denver, Colorado, for Defendant-Appellee John W. Hickenlooper.1

_________________________________ 

Before HOLMES, McHUGH, and MORITZ, Circuit Judges. 

_________________________________ 

MORITZ, Circuit Judge. 

_________________________________ 

 The underlying issues in these appeals are significant and concern the extent to 

which the Second Amendment limits Colorado’s power to regulate firearms and largecapacity magazines. But preliminarily, we first grapple with a more fundamental 

question: the extent to which Article III of the United States Constitution limits our 

 1

 The names of all amici curiae and the attorneys representing them are contained 

in Appendix A to this Opinion. 

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power—and the district court’s power—to hear the plaintiffs’2

 claims at all. Because we 

 2

 In this decision, we refer to all plaintiffs as “the plaintiffs.” However, the case 

involves two groups of plaintiffs, and we occasionally refer to the first group as the 

“Plaintiff-Nonprofits” and the second group as “the Plaintiff-Sheriffs.” The first group 

includes Colorado Outfitters Association; Colorado Farm Bureau; National Shooting 

Sports Foundation; Magpul Industries; Colorado Youth Outdoors; USA Liberty Arms; 

Outdoor Buddies, Inc.; Women for Concealed Carry; Colorado State Shooting 

Association; Hamilton Family Enterprises, Inc., d/b/a Family Shooting Center at Cherry 

Creek State Park; David Bayne, Dylan Harrell; Rocky Mountain Shooters Supply; 2nd 

Amendment Gunsmith & Shooter Supply, LLC; Burrud Arms Inc., d/b/a Jensen Arms; 

Green Mountain Guns; Jerry’s Outdoor Sports; Specialty Sports & Supply; and Goods for 

the Woods. The second group of plaintiffs includes Jim Beicker, Sheriff of Fremont 

County; Rick Besecker, Sheriff of Gunnison County; Ronald Bruce, Sheriff of Hinsdale 

County; David D. Campbell, Sheriff of Baca County; James (Jim) Casias, Sheriff of Las 

Animas County; Miles Clark; John B. Cooke; James Crone, Sheriff of Morgan County; 

Douglas N. Darr; Chad Day, Sheriff of Yuma County; Rick Dunlap, Sheriff of Montrose 

County; David Encinias, Sheriff of Bent County; Mike Ensminger, Sheriff of Teller 

County; James Faull; Rod Fenske, Sheriff of Lake County; Scott Fischer, Sheriff of 

Jackson County; Forrest Frazzee; Peter Gonzalez; Bruce W. Hartman, Sheriff of Gilpin 

County; Shayne Heap, Sheriff of Elbert County; Fred Hosselkus, Sheriff of Mineral 

County; Tim Jantz; Fred Jobe; Chris S. Johnson; Rodney Johnson; Donald Krueger; 

Larry Kuntz; Sue Kurtz; Terry Maketa; Jerry Martin, Sheriff of Dolores County; Dominic 

Mattivi, Jr., Sheriff of Ouray County; Fred D. McKee, Sheriff of Delta County; Amos 

Medina, Sheriff of Costilla County; Ted B. Mink; John Minor, Sheriff of Summit 

County; Tom Nestor, Sheriff of Lincoln County; Bruce Newman, Sheriff of Huerfano 

County; Mike Norris; Brian E. Norton, Sheriff of Rio Grande County; Randy Peck; Brett 

L. Powell, Sheriff of Logan County; Ken Putnam; Tom Ridnour, Sheriff of Kit Carson 

County; Grayson Robinson; Duke Schirard; Justin Smith, Sheriff of Larimer County; 

Dennis Spruell; Dave Stong; Charles “Rob” Urbach, Sheriff of Phillips County; Lou 

Vallario, Sheriff of Garfield County; David A. Weaver; Fred Wegener, Sheriff of Park 

County; Garrett Wiggins, Sheriff of Routt County; Si Woodruff; David Strumillo; John 

“Smoky” Kurtz, Sheriff of Crowley County; Steve Reams, Sheriff of Weld County; 

Michael T. McIntosh, Sheriff of Adams County; Sam Zordel, Sheriff of Prowers County; 

Casey Sheridan, Sheriff of Kiowa County; Richard Valdez, Sheriff of Archuleta County; 

K.C. Hume, Sheriff of Moffat County; Shannon Keith Byerly, Sheriff of Custer County; 

Shawn Mobley, Sheriff of Otero County; Brett Schroetlin, Sheriff of Grand County; 

Richard A. Albers, Sheriff of Clear Creek County; Jon Stivers, Sheriff of Washington 

County; Bruce Conrad, Sheriff of San Juan County; Bill Elder, Sheriff of El Paso County; 

Jeff Shrader, Sheriff of Jefferson County; DanWarwick, Sheriff of Saguache County; 

Thomas James Hanna, Sheriff of Sedgwick County; Gabriel David Joiner, Sheriff of 

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conclude the plaintiffs failed to establish Article III standing to bring any of their claims, 

we vacate the district court’s order granting judgment for the defendant3

 and remand with 

directions to dismiss the action for lack of jurisdiction. 

BACKGROUND

 Colo. Rev. Stat. § 18-12-112 and Colo. Rev. Stat. § 18-12-302 became effective 

on July 1, 2013. With some exceptions, § 18-12-112 requires background checks for 

private firearm transfers that exceed 72 hours, while § 18-12-302 generally prohibits the 

possession, sale, and transfer of large-capacity magazines (LCMs),4

 again with some 

exceptions. In particular, § 18-12-302(3)(b)(II) exempts from the LCM ban those state 

and federal employees who carry firearms in the course of their official duties, while 

§ 18-12-302(2)(a)’s grandfather clause allows individuals to possess LCMs they owned 

as of July 1, 2013, as long as they maintain continuous possession of the LCMs 

thereafter. 

 Several organizations, individuals, and businesses brought suit against Colorado’s 

governor, John Hickenlooper, arguing the statutes violate the Second Amendment, the 

 

Cheyenne County; David C. Walcher, Sheriff of Arapahoe County; Sean Michael Smith, 

Sheriff of La Plata County; Steve Nowlin, Sheriff of Montezuma County; Robert 

Jackson, Sheriff of Alamosa County; Tony Spurlock, Sheriff of Douglas County; and 

Anthony Mazzola, Sheriff of Rio Blanco County. 

3

 The single defendant in this case is John Hickenlooper, Colorado’s governor. 

4

 Colo. Rev. Stat. § 18-12-301(2)(a)(I) generally defines large capacity magazines 

as those “capable of accepting, or . . . designed to be readily converted to accept, more 

than fifteen rounds of ammunition.” 

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Fourteenth Amendment, and the Americans with Disabilities Act (ADA). But it was clear 

from this litigation’s inception that the plaintiffs’ standing to assert these claims was less 

than assured; the parties litigated the issue at every turn. As the result of one of these 

bouts of jurisdictional wrangling, the district court concluded several Colorado sheriffs 

lacked standing to bring their claims and dismissed them from the case. 

 After a nine-day bench trial, the district court expressed skepticism that any of the 

remaining plaintiffs had established standing to challenge § 18-12-112 and § 18-12-302. 

Nevertheless, “with the benefit of some generous assumptions,” it found that at least one 

plaintiff had standing to challenge each statute. App. at 1762. After winning the 

jurisdictional battle, however, the plaintiffs ultimately lost the war; the district court 

entered judgment in favor of the defendant on all claims. 

 The plaintiffs appeal, arguing the district court made both procedural and 

substantive errors in rejecting their claims. They insist the district court erred in, among 

other things, applying the incorrect level of scrutiny to the plaintiffs’ Second Amendment 

claims; concluding the statutes survive intermediate scrutiny; ruling that § 18-12-302 

isn’t unconstitutionally vague; dismissing the plaintiffs’ ADA claims; considering 

information that isn’t part of the legislative record; and failing to provide any analysis to 

support certain evidentiary rulings. The defendant disagrees, maintaining we should 

affirm the district court’s judgment in all respects. 

DISCUSSION

 Under Article III of the United States Constitution, federal courts only have 

jurisdiction to hear certain “‘Cases’ and ‘Controversies.’” Susan B. Anthony List v. 

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Driehaus, 134 S. Ct. 2334, 2341 (2014) (quoting U.S. Const. art. III, § 2). To satisfy 

Article III’s case-or-controversy requirement, a plaintiff must demonstrate standing to 

sue by establishing “(1) an ‘injury in fact,’ (2) a sufficient ‘causal connection between the 

injury and the conduct complained of,’ and (3) a ‘likel[ihood]’ that the injury ‘will be 

redressed by a favorable decision.’” Id. at 2341 (quoting Lujan v. Defenders of Wildlife, 

504 U.S. 555, 560-61 (1992)). 

 Here, the district court expressed “profound reservations as to whether” any of the 

plaintiffs established standing to challenge § 18-12-112. App. at 1768. Nevertheless, “in 

the interests of providing a complete ruling,” the district court “assume[d]” that three 

plaintiffs had done so. Id. Likewise, “in an attempt to find standing” and “with the benefit 

of some generous assumptions,” the district court concluded that one plaintiff had 

standing to challenge § 18-12-302. Id. at 1761-62 and 1762 n.11. 

But a federal court can’t “assume” a plaintiff has demonstrated Article III standing 

in order to proceed to the merits of the underlying claim, regardless of the claim’s 

significance. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) 

(explaining that “such an approach . . . carries the courts beyond the bounds of authorized 

judicial action and thus offends fundamental principles of separation of powers”).5

 Thus, 

 5

 While we appreciate the district court’s effort to provide us with a “complete 

ruling,” App. at 1768, a ruling that assumes the plaintiffs’ standing—and by extension 

assumes the district court’s jurisdiction—is necessarily incomplete. In fact, if the district 

court’s assumptions were wrong, that “complete” ruling is no ruling at all. See 

Cunningham v. BHP Petrol. Gr. Brit. PLC, 427 F.3d 1238, 1245 (10th Cir. 2005) 

(explaining that a judgment entered without jurisdiction is void). 

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our first task is to determine whether the district court’s assumptions about standing were 

correct.6

 If not, we may go no further. See id. at 110 (vacating judgment and remanding 

to district court with directions to dismiss complaint because respondent lacked standing 

to maintain suit). 

Before we begin this task, we note certain procedural ground rules. First, we have 

jurisdiction to determine the district court’s jurisdiction. See id. at 95 (explaining that 

when a lower federal court lacks jurisdiction, a reviewing court nevertheless has 

jurisdiction to “correct[] the error of the lower court in entertaining the suit” in the first 

instance (quoting United States v. Corrick, 298 U.S. 435, 440 (1936))). Second, the 

plaintiffs bear the burden of establishing standing. Raines v. Byrd, 521 U.S. 811, 818 

(1997). Third, we review questions of standing de novo. Wyoming ex rel. Crank v. United 

 6 Despite the threshold nature of the standing inquiry, the plaintiffs don’t address it 

until late in their briefs—a puzzling strategy given the district court’s express skepticism 

and the extent to which the parties litigated the standing issue below. Plaintiff-Sheriffs 

don’t address standing until page 55 of their 73-page opening brief. Even then, they 

address only whether the political subdivision doctrine barred their claims, not whether 

the district court correctly concluded that all but 11 of the sheriffs failed to establish the 

requisite injury for purposes of standing. Likewise, Plaintiff-Nonprofits address standing 

on pages 45-48 and 51-53 of their 63-page brief. Even then, they never explicitly 

challenge the standing test the district court adopted and applied, nor explain how any of 

the plaintiffs satisfied that test. The defendant at least briefly disputes the plaintiffs’ 

standing to challenge § 18-12-112 before proceeding to address the merits of that 

challenge. Yet he mostly insists we don’t need to address the standing issue at all because 

the district court found that at least one plaintiff had standing to challenge each statute. 

Nevertheless, the parties’ failure to adequately address the standing question doesn’t 

absolve us of our duty to do so. See Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 

1126 (10th Cir. 2013) (“[W]henever standing is unclear, we must consider it sua sponte

to ensure there is an Article III case or controversy before us.”), aff’d sub nom. Burwell v. 

Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014). 

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States, 539 F.3d 1236, 1241 (10th Cir. 2008). Fourth, the elements of standing “are not 

mere pleading requirements but rather an indispensable part of the plaintiff’s case.” 

Lujan, 504 U.S. at 561. Thus, “each element must be supported in the same way as any 

other matter on which the plaintiff bears the burden of proof, i.e., with the manner and 

degree of evidence required at the successive stages of the litigation.” Id. Because this 

case proceeded to trial, we therefore look to the evidence presented there to determine 

whether the plaintiffs carried their burden of proving standing. See Glover River Org. v. 

U.S. Dep’t of Interior, 675 F.2d 251, 254 n.3 (10th Cir. 1982) (explaining that when a 

case proceeds to trial, “standing is evaluated not on the pleadings alone but on the basis 

of all the evidence in the record”). 

Finally, while it’s hornbook law that the “lack of federal jurisdiction cannot be 

waived or be overcome by an agreement of the parties,” Wellness Int’l Network, Ltd. v. 

Sharif, 135 S. Ct. 1932, 1956 (2015) (quoting Mitchell v. Maurer, 293 U.S. 237, 244 

(1934)), “[o]ur duty to consider unargued obstacles to subject matter jurisdiction does not 

affect our discretion to decline to consider waived arguments that might have supported

such jurisdiction,” United States. ex rel. Ramseyer v. Century Healthcare Corp., 90 F.3d 

1514, 1518 n.2 (10th Cir. 1996). Thus, we consider only those arguments in favor of 

standing that the plaintiffs have adequately briefed. See Raley v. Hyundai Motor Co., 642 

F.3d 1271, 1275 (10th Cir. 2011) (“It is the appellant’s burden, not ours, to conjure up 

possible theories to invoke our legal authority to hear her appeal.”); Adler v. Wal-Mart 

Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998) (explaining inadequately briefed 

arguments are waived). 

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I. The plaintiffs have waived any argument that the district court erred in 

adopting the credible-threat-of-prosecution test. 

 As discussed above, standing generally has three requirements: (1) an injury in 

fact; (2) causation; and (3) redressability. Lujan, 504 U.S. at 560-61. To satisfy the first 

of these three elements, a plaintiff must offer something more than the hypothetical 

possibility of injury. The alleged injury must be concrete, particularized, and actual or 

imminent. Id. at 560. And while “‘imminence’ is concededly a somewhat elastic concept, 

it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not 

too speculative for Article III purposes—that the injury is ‘certainly impending.’” Id. at 

564 n.2 (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)). 

 To establish such an injury in the context of a pre-enforcement challenge to a 

criminal statute,7

 a plaintiff must typically demonstrate (1) “an intention to engage in a 

course of conduct arguably affected with a constitutional interest, but proscribed by [the 

challenged] statute,” and (2) that “there exists a credible threat of prosecution 

thereunder.” Susan B. Anthony List, 134 S. Ct. at 2342 (quoting Babbitt v. United Farm 

Workers Nat’l Union, 442 U.S. 289, 298 (1979)). The district court repeatedly explained 

it would adopt and apply this two-part test for purposes of the plaintiffs’ claims. 

 The plaintiffs do not directly challenge this ruling on appeal. True, they assert in 

 7

 At oral argument, the plaintiffs pointed out that § 18-12-112 imposes civil 

liability as well as criminal penalties. But the district court explicitly characterized both 

statutes as criminal in its opinion, and the plaintiffs don’t challenge that characterization 

in their opening brief. Thus, we won’t address whether § 18-12-112 is a purely criminal 

statute or, if not, whether its quasi-civil character might impact the appropriate test for the 

plaintiffs’ standing. See United States v. Burns, 775 F.3d 1221, 1223 n.2 (10th Cir. 2014) 

(explaining arguments made for first time at oral argument are waived). 

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their opening brief that the district court erred in concluding that licensed firearms dealers 

Burrud Arms Inc. and Rocky Mountain Shooters Supply lacked standing to challenge the 

statutes because both businesses (1) suffered economic injuries based on the LCM ban; 

and (2) sought to challenge the statutes on behalf of third parties seeking their services. 

But the plaintiffs don’t even acknowledge that the district court adopted the crediblethreat-of-prosecution test, let alone address the obvious tension between that decision and 

the non-binding authority they cite, without elaboration, to support their suggestion that 

economic injuries might instead suffice. 

 The only binding authority the plaintiffs cite in support of their economic-injury 

argument is Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976). 

According to the plaintiffs, Danforth stands for the proposition that businesses providing 

“constitutionally related services have standing in their own right to challenge [criminal] 

statutes that injure them,” even if their injuries are solely economic. Nonprft. Br. at 48 & 

n.29. But Danforth lends no support to the plaintiffs’ broad assertion of standing here. 

There, the Court concluded the physician-appellants had standing because they faced 

criminal prosecution if they performed abortions in violation of the challenged statute, 

see Danforth, 428 U.S. at 59, 62, not because the challenged statute had an adverse 

economic impact on their businesses, as the plaintiffs suggest. 

 In addition to Danforth, the plaintiffs also cite Ezell v. City of Chicago, 651 F.3d 

684, 696 (7th Cir. 2011) (concluding “supplier of firing-range facilities” had standing to 

challenge firing-range ban because (1) supplier was harmed by ban; and (2) supplier was 

permitted to advocate for rights of those seeking its services) and National Rifle Ass’n of 

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America v. Magaw, 132 F.3d 272, 290 (6th Cir. 1997) (“When a statute creates 

substantial economic burdens and compliance is coerced by the threat of enforcement, it 

is not necessary to determine whether a plaintiff subject to the regulation has sufficiently 

alleged an intention to refuse to comply.”). While compelling arguments may exist as to 

why we should adopt a similar approach here, the plaintiffs fail to make those arguments 

in their opening brief, and we decline to make them on their behalf. United States v. 

Apperson, 441 F.3d 1162, 1195 (10th Cir. 2006) (refusing to consider argument because 

appellant “fail[ed] to offer any detailed explanation of how the district court erred”). 

Accordingly, we leave for another day the question of whether an economic injury, 

standing alone, can constitute an injury-in-fact for purposes of a pre-enforcement 

challenge to a criminal statute. See Raley, 642 F.3d at 1275 (declining to answer complex 

standing question without adequate briefing). 

 Thus, in analyzing the plaintiffs’ standing to challenge § 18-12-302 and § 18-12-

112 under the Second and Fourteenth Amendments, we ask only whether the plaintiffs 

satisfied the test the district court adopted—i.e., whether they proved they intended to 

engage in conduct that violated the statutes and faced a credible threat of prosecution as a 

result. 

II. The plaintiffs failed to establish standing to challenge § 18-12-112 under the 

Second and Fourteenth Amendments. 

The plaintiffs first raised a Second Amendment challenge to § 18-12-112, which 

with some exceptions requires background checks for private firearm transfers exceeding 

72 hours. According to the final pretrial order, 20 plaintiffs asserted a SecondAppellate Case: 14-1292 Document: 01019590609 Date Filed: 03/22/2016 Page: 13 
 

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Amendment challenge to § 18-12-112: Colorado Outfitters Association; Colorado Farm 

Bureau; National Shooting Sports Foundation; Magpul Industries; Colorado Youth 

Outdoors; USA Liberty Arms; Outdoor Buddies, Inc.; Women for Concealed Carry; 

Colorado State Shooting Association; Hamilton Family Enterprises, Inc.; David 

Strumillo; David Bayne; Dylan Harrell; Rocky Mountain Shooters Supply; 2nd 

Amendment Gunsmith & Shooter Supply, LLC; Burrud Arms Inc.; Green Mountain 

Guns; Jerry’s Outdoor Sports; Specialty Sports & Supply; and Goods for the Woods. 

 The district court found the plaintiffs presented no evidence at trial regarding the 

standing of National Shooting Sports Foundation, USA Liberty Arms, 2nd Amendment 

Gunsmith & Shooter Supply, Green Mountain Guns, Jerry’s Outdoor Sports, Specialty 

Sports & Supply, Goods for the Woods, or David Strumillo. The plaintiffs do not 

challenge this finding on appeal. Nor do they challenge the district court’s ruling that 

Bayne, Harrell, Hamilton Family Enterprises, and Magpul Industries lacked standing to 

challenge § 18-12-112; or its ruling that Outdoor Buddies, Colorado Farm Bureau, 

Colorado Outfitters Association, Women for Concealed Carry, Colorado Youth 

Outdoors, and Colorado State Shooting Association lacked associational standing to 

challenge § 18-12-112 on behalf of their members;8

 or its finding that Outdoor Buddies 

 8

 In the “Statement of the Case” section of their opening brief, the plaintiffs assert 

the district court erred in finding that Colorado Farm Bureau, Women for Concealed 

Carry, and Colorado Youth Outdoors failed to present evidence regarding “firearm 

acquisition by [their] members.” Nonprft. Br. at 13 n.9. But the plaintiffs don’t renew that 

assertion in the “Argument” section of their brief. Nor do they explicitly challenge the 

district court’s finding that the three organizations lacked associational standing to 

challenge § 18-12-112. A mere suggestion that the district court erred—made solely in 

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15 

didn’t demonstrate that either it or its members faced prosecution under § 18-12-112. 

Thus, the plaintiffs have waived any challenge to those rulings for purposes of appeal. 

Likewise, by arguing in their opening brief that Burrud Arms Inc. and Rocky Mountain 

Shooters Supply have standing only by virtue of their economic injuries, the plaintiffs 

have waived any argument that either business intended to violate § 18-12-112 and faced 

a credible threat of prosecution as a result. 

That leaves us to determine whether five plaintiffs—Colorado Farm Bureau, 

Colorado Outfitters Association, Women for Concealed Carry, Colorado Youth 

Outdoors, and Colorado State Shooting Association—had standing in their own right to 

challenge § 18-12-112. But the district court didn’t address Colorado Farm Bureau’s or 

Colorado Outfitters Association’s standing to challenge § 18-12-112 in their own right 

(perhaps because it believed the organizations were only challenging the statute on behalf 

of their members), and the plaintiffs neither argue this was error nor cite any evidence 

suggesting the organizations intended to violate § 18-12-112. Thus, we will only consider 

the evidence as it relates to Women for Concealed Carry, Colorado Youth Outdoors, and 

Colorado State Shooting Association and their standing to challenge § 18-12-112 in their 

 

the “Statement of the Case” section of an appellant’s brief and not subsequently 

developed in the “Argument” section—is insufficient to adequately brief an issue for 

consideration on appeal. See Fed. R. App. P. 28(a) (explaining appellant’s brief must 

contain both a statement of the case and appellant’s argument—“under appropriate 

headings”—and that argument must include “appellant’s contentions and the reasons for 

them”); Wilburn v. Mid-S. Health Dev., Inc., 343 F.3d 1274, 1281 (10th Cir. 2003) 

(explaining we won’t “consider issues that are raised on appeal but not adequately 

addressed”). 

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own right under the credible-threat-of-prosecution test.9

 

At oral argument, we pressed the plaintiffs’ counsel to identify the single plaintiff 

who had the strongest standing to challenge § 18-12-112 under the credible-threat-ofprosecution test. In response, counsel identified Robert Hewson. Of course, Hewson isn’t 

a plaintiff in this action. But he did testify on behalf of Colorado Youth Outdoors. And 

because the plaintiffs identify his as the testimony most likely to establish standing, we 

begin our sua sponte review of the record there. 

Hewson, who is Colorado Youth Outdoors’ executive director, testified at trial to 

the burden that complying with § 18-12-112 has imposed on his organization. For 

instance, Hewson explained that before § 18-12-112 became effective, Colorado Youth 

Outdoors could borrow firearms for use in its annual fundraiser. Since § 18-12-112’s 

effective date, however, those loans have ceased. 

Perhaps this testimony would weigh in the plaintiffs’ favor if we were resolving 

the merits of their claim. See, e.g., United States v. Reese, 627 F.3d 792, 800 (10th Cir. 

 9

 The plaintiffs don’t argue in their opening brief that the evidence they presented 

below was sufficient to show these three organizations satisfied the credible-threat-ofprosecution test. Nevertheless, we decline to treat this particular argument as waived 

because the district court ruled in the plaintiffs’ favor on this point: it “assume[d]” that at 

least one of these three organizations had standing to challenge § 18-12-112 under the 

credible-threat-of-prosecution test. App. at 1768. Although we question whether the 

plaintiffs are entitled to rely on the district court’s jurisdictional assumptions given Steel 

Co.’s clear mandate against exercising hypothetical jurisdiction, see 523 U.S. at 94, we 

also recognize that we don’t routinely require appellants to shore up on appeal any 

victories they managed to obtain below. Accordingly, we think it appropriate to sua 

sponte review the record for evidence that might allow us to affirm the district court’s 

ruling that at least one of these organizations had standing to challenge § 18-12-112 

under the credible-threat-of-prosecution test. 

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2010) (adopting “two-pronged approach to Second Amendment challenges” that asks, in 

part, “whether the challenged law imposes a burden on conduct falling within the scope 

of the Second Amendment’s guarantee” (quoting United States v. Marzzarella, 614 F.3d 

85, 89 (3d Cir. 2010))). But when it comes to standing, such testimony hurts, rather than 

helps, the plaintiffs’ case: if § 18-12-112’s background-check requirement has burdened 

or will burden Colorado Youth Outdoors, that burden is the result of the organization’s 

compliance with § 18-12-112. And the plaintiffs can’t satisfy the credible-threat-ofprosecution test by relying on evidence of their compliance with the challenged statute. 

See Susan B. Anthony List, 134 S. Ct. at 2342. 

In addition to testifying about the burdens of compliance, however, Hewson also 

testified that Colorado Youth Outdoors engaged in conduct on two previous occasions 

that may have violated § 18-12-112. Yet Hewson indicated the district attorney was 

aware of—and had explicitly declined to prosecute—one of those potential violations. 

And such an “affirmative assurance[] of non-prosecution from a governmental actor 

responsible for enforcing the challenged statute prevents a ‘threat’ of prosecution from 

maturing into a ‘credible’ one.” Bronson v. Swensen, 500 F.3d 1099, 1108 (10th Cir. 

2007). 

As for the other potential violation, the plaintiffs offered no evidence suggesting 

Colorado Youth Outdoors had “ever been threatened with prosecution, that a prosecution 

[was] likely, or even that a prosecution [was] remotely possible” based on that previous 

conduct. Babbitt, 442 U.S. at 298-99 (quoting Younger v. Harris, 401 U.S. 37, 42 

(1971)). Thus, this incident can’t form the basis of “a dispute susceptible to resolution by 

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a federal court.” Id. at 299. See also Winsness v. Yocom, 433 F.3d 727, 732 (10th Cir. 

2006) (“The mere presence on the statute books of an unconstitutional statute, in the 

absence of enforcement or credible threat of enforcement, does not entitle anyone to 

sue . . . .”). 

Finally, as the plaintiffs pointed out at oral argument, the district court advised 

Hewson during cross-examination that some of the questions posed to him might elicit 

incriminating responses about Colorado Youth Outdoors’ firearm transfers. But Hewson 

subsequently invoked his Fifth Amendment right and refused to answer questions about 

those transfers. And we know of no authority suggesting an individual can prove standing 

by refusing to testify about the very events that might confer it. Thus, we conclude the 

plaintiffs failed to prove Colorado Youth Outdoors had standing to challenge § 18-12-

112. 

Arguably, we could stop there. The plaintiffs suggested at oral argument that if 

anyone had standing to challenge § 18-12-112, it was Hewson (and by extension 

Colorado Youth Outdoors). And because we conclude the plaintiffs failed to establish 

Colorado Youth Outdoors had standing, the plaintiffs’ statement at oral argument 

amounts to an implicit concession that neither Women for Concealed Carry nor Colorado 

State Shooting Association had standing either. 

Nevertheless, in an abundance of caution, we have reviewed the parties’ 

stipulations and the testimony of the witnesses who appeared on behalf of these two 

organizations as well, and we see no evidence indicating they had even a general intent to 

engage in conduct that might violate § 18-12-112, let alone any specific plans to do so. 

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On the contrary, these witnesses—like Hewson—testified to the inconveniences their 

organizations have encountered or might encounter in complying with § 18-12-112. For 

instance, Colorado State Shooting Association’s vice president stated that concerns about 

§ 18-12-112 led the organization to suspend its rifle-loan program. And a member of 

Women for Concealed Carry testified regarding the organization’s concern that § 18-12-

112 would make it more difficult to loan firearms to women seeking to protect 

themselves from domestic abusers. 

Absent any testimony indicating that Colorado Youth Outdoors, Women for 

Concealed Carry, or Colorado State Shooting Association intended to engage in conduct 

that might violate § 18-12-112, we conclude the plaintiffs failed to establish any of these 

organizations had standing to challenge § 18-12-112 in their own right. Compare Susan 

B. Anthony List, 134 S. Ct. at 2338, 2343 (holding plaintiffs had standing to challenge 

statute that prohibited making certain statements during course of political campaign 

because plaintiffs “pleaded specific statements they intend to make in future election 

cycles”), with Dias v. City & Cty. of Denver, 567 F.3d 1169, 1176-77 (10th Cir. 2009) 

(finding plaintiffs lacked standing to seek prospective relief from Denver’s pit bull 

ordinance because they no longer lived in Denver and expressed no intent to return there 

with their dogs). Accordingly, we vacate the district court’s order entering judgment on 

the plaintiffs’ claim challenging the constitutionality of § 18-12-112 under the Second 

and Fourteenth Amendments, and remand with directions to dismiss that claim for lack of 

jurisdiction. See Wyodak Res. Dev. Corp. v. United States, 637 F.3d 1127, 1136 (10th 

Cir. 2011). 

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III. The plaintiffs failed to establish standing to challenge § 18-12-302 under the 

Second and Fourteenth Amendments. 

 The plaintiffs asserted two separate constitutional challenges to § 18-12-302. As 

relevant here, § 18-12-302 generally prohibits the possession of LCMs, but doesn’t apply 

to (1) state or federal employees who carry firearms in the course of their official duties, 

or (2) individuals who possess LCMs they owned as of July 1, 2013, as long as they 

maintain continuous possession of the LCMs thereafter. First, the plaintiffs contended 

§ 18-12-302 violates the Second Amendment. Second, they argued § 18-12-302’s 

grandfather clause is unconstitutionally vague under the Fourteenth Amendment. 

 In addressing the plaintiffs’ standing to assert these claims, the district court again 

applied the credible-threat-of-prosecution test. More specifically, it asked whether any of 

the plaintiffs (1) possessed an LCM acquired after July 1, 2013; intended to acquire an 

LCM after July 1, 2013; or intended to transfer or sell an LCM after July 1, 2013; and (2) 

faced a credible threat of prosecution for such conduct. “[W]ith the benefit of some 

generous assumptions,” the district court concluded Women for Concealed Carry had 

associational standing to challenge § 18-12-302 under the Second Amendment. App. at 

1762. And “for purposes of completeness of the [c]ourt’s decision,” the district court 

assumed Women for Concealed Carry had associational standing to pursue the vagueness 

challenge as well. Id. at n.11. 

 For the reasons discussed above, the district court erred in making assumptions 

about Women for Concealed Carry’s standing in order to reach the merits of the 

plaintiffs’ claims. See Steel Co., 523 U.S. at 94. Thus, we turn once more to the 

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21 

preliminary task of determining whether the district court had jurisdiction to consider 

those claims in the first place. In doing so, however, we ask only whether the plaintiffs 

established their standing under the test the district court articulated and applied below—

i.e., whether any plaintiffs (1) possessed an LCM acquired after July 1, 2013; intended to 

acquire an LCM after July 1, 2013; or intended to transfer or sell an LCM after July 1, 

2013; and (2) faced a credible threat of prosecution for such conduct. As discussed above, 

the plaintiffs have waived any argument that the district court should have applied a 

different test by failing to adequately brief that argument on appeal. See Adler, 144 F.3d 

at 679. 

 All of the plaintiffs challenged § 18-12-302 under the Second Amendment, and 21 

of them asserted the statute was unconstitutionally vague under the Fourteenth 

Amendment. But we need not consider whether National Shooting Sports Foundation; 

USA Liberty Arms; 2nd Amendment Gunsmith & Shooter Supply, LLC; Green 

Mountain Guns; Jerry’s Outdoor Sports; Specialty Sports and Supply; Goods for the 

Woods; David Strumillo; Ken Putnam; James Faull; Larry Kuntz; Fred Jobe; Donald 

Krueger; Dave Stong; Peter Gonzalez; Sue Kurtz; or Douglas Darr had standing to bring 

these claims because the district court determined that the plaintiffs presented no 

evidence at trial regarding their standing, and the plaintiffs do not challenge that finding 

on appeal. Nor do the plaintiffs challenge the district court’s ruling that Bayne, Harrell, 

and Cooke lacked standing to challenge § 18-12-302. That leaves Colorado Outfitters 

Association, Colorado Farm Bureau, Magpul Industries, Colorado Youth Outdoors, 

Outdoor Buddies, Women for Concealed Carry, Colorado State Shooting Association, 

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22 

Hamilton Family Enterprises, Rocky Mountain Shooters Supply, and Burrud Arms Inc. 

as plaintiffs that might provide standing to challenge § 18-12-302. 

 But of these plaintiffs, the district court addressed only Women for Concealed 

Carry’s associational standing to challenge § 18-12-302 on behalf of Elisa Dahlberg. And 

the plaintiffs do not challenge on appeal the district court’s failure to address the 

remaining plaintiffs’ standing below.10 Thus, we ask only whether the plaintiffs presented 

sufficient evidence to prove Women for Concealed Carry had associational standing to 

challenge § 18-12-302 on Dahlberg’s behalf.11 See Adler, 144 F.3d at 679 (“Arguments 

inadequately briefed in the opening brief are waived.”). 

 To establish that Women for Concealed Carry had associational standing, the 

plaintiffs had to prove, inter alia, that its members “would otherwise have standing to sue 

in their own right.” S. Utah Wilderness All. v. Office of Surface Mining Reclamation & 

Enf’t, 620 F.3d 1227, 1246-47 (10th Cir. 2010) (Ebel, J., dissenting) (quoting Colo. 

Taxpayers Union, Inc. v. Romer, 963 F.2d 1394, 1397-98 (10th Cir. 1992)). And in order 

to make that showing, the plaintiffs had to prove those members satisfied “the injury, 

causation, and redressability requirements derived from Article III.” Id. at 1247. Under 

the test the district court articulated below, that means the plaintiffs had to prove, in part, 

 10 The plaintiffs do assert the district court erred in failing to find that Burrud 

Arms Inc. and Rocky Mountain Shooter’s Supply had standing based on their economic 

injuries. For the reasons discussed above, we decline to address that argument. 

 

11 The plaintiffs don’t suggest Women for Concealed Carry had associational 

standing to challenge § 18-12-302 on behalf of any of the other three members of the 

organization. Thus, we decline to consider that possibility. See Raley, 642 F.3d at 1275. 

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23 

that at least one member of Women for Concealed Carry (1) possessed an LCM acquired 

after July 1, 2013; intended to acquire an LCM after July 1, 2013; or intended to transfer 

or sell an LCM after July 1, 2013; and (2) faced a credible threat of prosecution as a 

result. 

 We have reviewed Dahlberg’s testimony, and see no evidence that would support 

such a finding. Dahlberg testified she owns two 30-round magazines and three 17-round 

magazines. Because Dahlberg purchased the magazines before July 1, 2013, however, 

she acknowledged § 18-12-302 doesn’t bar her from possessing them as long as they 

remain in her “continuous possession.” See § 18-12-302(2)(a). Nevertheless, Dahlberg 

insisted § 18-12-302 impacts her because “[e]ventually,” her LCMs will wear out and 

because it would be “possible” to lose her LCMs (or lose continuous possession of them) 

in the meantime. App. at 2218 (emphasis added). 

 Such “some day” speculations are insufficient to establish an injury-in-fact for 

purposes of Article III standing. Lujan, 504 U.S. at 564. Because Dahlberg expressed no 

concrete plans to engage in conduct that had any potential to violate § 18-12-302, she 

failed to demonstrate an imminent injury for purposes of mounting a pre-enforcement 

challenge to that statute. See Dias, 567 F.3d at 1176-77. Thus, the plaintiffs failed to 

prove Dahlberg had standing to challenge § 18-12-302 in her own right, and consequently 

failed to prove Women for Concealed Carry had standing to challenge § 18-12-302 on 

her behalf. See S. Utah Wilderness All., 620 F.3d at 1246-47. Accordingly, we have no 

choice to but to vacate the district court’s order entering judgment on the plaintiffs’ 

claims challenging the constitutionality of § 18-12-302, and remand to the district court 

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with directions to dismiss those claims for lack of jurisdiction. 

IV. The plaintiffs failed to establish standing to challenge § 18-12-302 and § 18-

12-112 under the ADA.

 In addition to asserting constitutional challenges to § 18-12-302 and § 18-12-112, 

four plaintiffs also claimed both statutes violate the ADA’s prohibition against 

discriminating on the basis of disability, see 42 U.S.C. § 12132: David Bayne; Dylan 

Harrell; Outdoor Buddies; and Colorado State Shooting Association, on behalf of its 

disabled members. 

 It appears the district court failed to separately analyze the plaintiffs’ standing to 

challenge the statutes under the ADA, relying instead on its finding that at least one 

plaintiff had standing to assert each constitutional claim. “But standing is not dispensed 

in gross.” Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996). “Rather, ‘a plaintiff must 

demonstrate standing for each claim he [or she] seeks to press . . . .” Davis v. Fed. 

Election Comm’n, 554 U.S. 724, 734 (2008) (quoting DaimlerChrysler Corp. v. Cuno, 

547 U.S. 332, 352 (2006)). Thus, we must determine whether the plaintiffs independently 

established their standing to challenge § 18-12-302 and § 18-12-112 under the ADA. 

 The plaintiffs purport to address this issue in their opening brief, first by asserting 

that Outdoor Buddies proved it had associational standing to challenge the statutes on 

behalf of its members. But according to the final pretrial order, Outdoor Buddies didn’t 

bring the ADA claim on behalf of its members. Thus, we need not consider whether it 

had standing to do so. 

 Next, the plaintiffs argue that Bayne and Harrell had standing to challenge the 

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statutes because they are qualified individuals with disabilities under 42 U.S.C. 

§ 12131(2). While this assertion—assuming it’s true—might provide Bayne and Harrell 

with statutory standing to bring an ADA claim, it doesn’t automatically give them 

constitutional standing to do so. See Carolina Cas. Ins. Co. v. Pinnacol Assurance, 425 

F.3d 921, 926 (10th Cir. 2005) (distinguishing between statutory and constitutional 

standing). Instead, “a disabled individual claiming discrimination” under the ADA must 

still “satisfy the case or controversy requirement of Article III” to invoke federal 

jurisdiction. Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 946 (9th Cir. 2011). 

See also Tandy v. City of Wichita, 380 F.3d 1277, 1288 (10th Cir. 2004) (concluding 

disabled plaintiff failed to establish Article III standing to seek prospective relief under 

ADA because, unlike other plaintiffs, he “submitted no affidavit stating an intent to 

utilize” challenged bus system). 

 In asserting Harrell and Bayne had standing to challenge § 18-12-302 and § 18-12-

112 under the ADA, the plaintiffs don’t argue they satisfied the elements of constitutional 

standing. And we decline to make that argument for them. See Raley, 642 F.3d at 1275. 

Similarly, the plaintiffs don’t argue on appeal that Colorado State Shooting Association 

had standing—constitutional or otherwise—to challenge the statutes under the ADA. 

Thus, the plaintiffs have waived that argument as well. See id.

 Finally, the plaintiffs assert Outdoor Buddies had constitutional standing in its 

own right to challenge the statutes under the ADA. In support, they argue they proved 

that § 18-12-112 “has needlessly harmed Outdoor Buddies’ program of loaning 

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26 

specialized firearms to persons with disabilities for use in guided hunting trips.”12

Nonprft. Br. at 52. 

 First, to the extent the plaintiffs fail to assert Outdoor Buddies suffered any injury 

under § 18-12-302—rather than § 18-12-112—they’ve waived that argument. See Raley, 

642 F.3d at 1275. Second, in evaluating Outdoor Buddies’ standing to challenge § 18-12-

112 under the Second Amendment, the district court found its temporary transfers were 

largely exempt under § 18-12-112(6)(e)(III), which allows transfers that occur “[w]hile 

hunting, fishing, target shooting, or trapping.” The plaintiffs do not challenge that 

finding on appeal. Nor do they assert the district court erred in finding that (1) while it 

might be convenient for disabled hunters to keep the modified firearms for more than 72 

hours before or after a guided hunting trip, it’s not necessary for them to do so; and (2) 

the plaintiffs presented no evidence suggesting disabled hunters would decline to 

participate in Outdoor Buddies’ guided hunting trips if they couldn’t retain the firearms 

for more than 72 hours before or after a hunt. These unchallenged findings severely 

undermine the plaintiffs’ assertion that § 18-12-112 harms Outdoor Buddies’ loan 

program. 

 In any event, the plaintiffs cite only one record page (page 2240 of the Appendix) 

 12 We assume for the sake of argument that Outdoor Buddies may assert a preenforcement challenge to a criminal statute under the ADA; and that interfering with 

Outdoor Buddies’ loan program, standing alone, would satisfy Article III’s injury 

requirement for purposes of that ADA claim. Because the plaintiffs don’t establish 

standing even with the benefit of those assumptions, we need not resolve whether a 

disabled plaintiff can assert a pre-enforcement challenge to a criminal statute under the 

ADA, or whether one who does so must establish standing under the credible-threat-ofprosecution test.

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to support their assertion of harm. There, Harrell—Outdoor Buddies’ secretary—testified 

in hypothetical terms about the possibility that a person “could potentially” need to 

borrow a firearm the day before a hunt or keep it until the day after, and noted that 

obtaining a background check under those circumstances “could” be difficult. App. at 

2240-41. 

 The mere possibility that “‘some day’” a member of Outdoor Buddies might wish 

to obtain or retain a firearm before or after a hunt and that he or she might then 

experience difficulties obtaining the requisite background check is insufficient to 

establish an imminent injury for purposes of Article III standing. Lujan, 504 U.S. at 564 

(concluding individuals’ “‘some day’ intentions” to travel to foreign lands where they 

would suffer injury was insufficient to establish an imminent injury for purposes of 

Article III standing). Thus, we vacate the district court’s order entering judgment for the 

defendant on the plaintiffs’ ADA claim and remand to the district court with directions to 

dismiss that claim for lack of jurisdiction. 

V. The dismissed sheriffs failed to establish standing to challenge either statute. 

 Based on the foregoing analysis, we conclude the evidence at trial was insufficient 

to prove any of the plaintiffs who proceeded to trial had standing to challenge § 18-12-

302 or § 18-12-112. But that doesn’t end our inquiry. 

 Before trial, the defendant moved to dismiss the official capacity claims of 55 

Colorado sheriffs under the political subdivision doctrine. The district court agreed the 

political subdivision doctrine barred the sheriffs’ official capacity claim, concluded the 

sheriffs were asserting only official capacity claims, and entered an order dismissing all 

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the sheriffs’ claims. It then denied the sheriffs’ motion to alter or amend that order. Later, 

the district court allowed 11 sheriffs with definite retirement dates to reenter the case to 

challenge § 18-12-302 in their individual capacities because, upon their retirement, § 18-

12-302’s law-enforcement exception would no longer apply to them. 

 On appeal, the plaintiffs argue the district court erred in dismissing the sheriffs’ 

official capacity claims under the political subdivision doctrine. In addition, they argue 

the district court erred in failing to recognize the sheriffs asserted individual claims all 

along. Thus, the plaintiffs insist, the district court erred in refusing to alter or amend the 

order dismissing all of the sheriffs’ claims. 

 We need not examine the merits of these arguments because we conclude the 

dismissed sheriffs failed to establish they had constitutional standing in any capacity to 

challenge § 18-12-302 or § 18-12-112. Thus, even assuming the district court erred in 

applying the political subdivision doctrine to the sheriffs’ claims or in failing to recognize 

they were asserting individual claims as well as official-capacity claims, those errors 

were harmless.13 

 As previously discussed, the district court ruled that to establish standing to 

challenge § 18-12-302 and § 18-12-112, the plaintiffs had to satisfy the credible-threatof-prosecution test. And, as previously discussed, the plaintiffs do not directly challenge 

 13 Citing United States v. Olano, 507 U.S. 725 (1993), the plaintiffs insist the 

defendant bears the burden of proving any errors in the district court’s standing analysis 

were harmless. But Olano is a criminal case. In civil cases such as this one, the party 

asserting an error generally bears the burden of demonstrating it requires reversal. See 

Shinseki v. Sanders, 556 U.S. 396, 409-11 (2009) (citing Olano and distinguishing 

between civil and criminal cases for purposes of harmless-error inquiry). 

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that decision on appeal. Thus, to establish the sheriffs whose claims the district court 

dismissed had standing to challenge § 18-12-302 and § 18-12-112, the plaintiffs must 

demonstrate they alleged those sheriffs (1) had “an intention to engage in a course of 

conduct arguably affected with a constitutional interest, but proscribed by [the 

challenged] statute,” and (2) that “there exist[ed] a credible threat of prosecution 

thereunder.” Susan B. Anthony List, 134 S. Ct. at 2342 (quoting Babbitt, 442 U.S. at 298). 

 The plaintiffs fail to satisfy this test on appeal. While they assert § 18-12-112 

technically “criminalizes” some of the sheriffs’ job duties—such as transferring a firearm 

to a crime lab for investigation—they concede such acts won’t “normally be prosecution 

priorities.” Shrf. Br. at 60-61. Given the plaintiffs’ concession, we find any threat of 

prosecution based on the sheriffs’ performance of their official job duties to be purely 

speculative. See Babbitt, 442 U.S. at 298 (explaining that “persons having no fears of 

state prosecution except those that are imaginary or speculative, are not to be accepted as 

appropriate plaintiffs” (quoting Younger, 401 U.S. at 42)). And while the plaintiffs also 

argue that when a sheriff retires, his or her possession of any LCMs purchased after July 

1, 2013, will be “criminalized” under § 18-12-302, they don’t suggest that (1) any sheriff 

alleged an intent to acquire an LCM after July 1, 2013, let alone an intent to keep that 

LCM upon retirement; or (2) that a particular sheriff faced a credible threat of 

prosecution as a result.14 

 14 The plaintiffs also suggest the sheriffs faced a credible threat of prosecution 

under § 18-12-303(1), which requires that LCMs “manufactured in Colorado on or after 

July 1, 2013,” to “include a permanent stamp or marking indicating that the [LCM] was 

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30 

 Moreover, we have reviewed the Second Amended Complaint and we find no 

allegations there that would satisfy the credible-threat-of-prosecution test. Thus, even 

assuming the district court erred in ruling the political subdivision doctrine barred the 

sheriffs’ official capacity claims or in construing their claims as official rather than 

individual in nature, those errors were harmless; the district court was required to dismiss 

the sheriffs’ claims because the sheriffs failed to establish they had constitutional 

standing to challenge § 18-12-302 and § 18-12-112. We therefore affirm the district 

court’s order dismissing all claims asserted by the sheriffs in the Second Amended 

Complaint and its denial of the plaintiffs’ motion to alter or amend that order. See 

Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130 (10th Cir. 2011) (noting “we may 

affirm on any basis supported by the record, even if it requires ruling on arguments not 

reached by the district court or even presented to us on appeal”). 

CONCLUSION

Because the plaintiffs failed to carry their burden of establishing Article III 

standing, the district court lacked jurisdiction to consider their claims. We therefore 

 

manufactured or assembled after July 1, 2013.” Shrf. Br. at 63-64, 68. According to the 

plaintiffs, some sheriffs violate this provision by “adding a one or two-round extender to 

a 15[-]round magazine, thus ‘manufacturing’ a magazine which [sic] can accept more 

than 15 rounds.” Shrf. Br. at 64. Even assuming using an extender would constitute 

manufacturing for purposes of the statute, the plaintiffs don’t assert they raised this 

argument for standing below, let alone “cite the precise reference in the record where the 

issue was raised and ruled on.” 10th Cir. R. 28.2(C)(2). Thus, we would typically review 

the argument only for plain error. See United States v. Barber, 39 F.3d 285, 287 (10th 

Cir. 1994). But the plaintiffs make no effort to satisfy our plain-error test, which “marks 

the end of the road” for this argument on appeal. Richison v. Ernest Grp., Inc., 634 F.3d 

1123, 1131 (10th Cir. 2011). 

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31 

affirm the district court’s order dismissing the sheriffs’ claims and its denial of the 

subsequent motion to alter or amend that order; vacate the district court’s order granting 

judgment in favor of the defendant; remand with directions to dismiss the action for lack 

of jurisdiction; and dismiss the parties’ pending motions as moot. 

 

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APPENDIX A 

BRADY CENTER TO PREVENT GUN VIOLENCE 

Attorneys on the brief: Edward T. Ramey, Tierney Paul Lawrence LLP, Denver, 

Colorado, Robert P. Haney, Jr., Clea P.M. Liquard, and Alan C. Lau, Covington & 

Burling LLP, New York, New York, and Jonathan E. Lowy, Brady Center to 

Prevent Gun Violence, Legal Action Project, Washington, D.C. 

CONGRESS OF RACIAL EQUALITY, PINK PISTOLS, WOMEN AGAINST GUN 

CONTROL, DISABLED SPORTSMEN OF NORTH AMERICA, AND SECOND 

AMENDMENT SISTERS 

Attorney on the brief: Brian S. Koukoutchos, Mandeville, Louisiana 

EVERYTOWN FOR GUN SAFETY 

Attorneys on the brief: Peter C. Canfield, Jones Day, Atlanta, Georgia, and 

Gregory A. Castanias and Sparkle L. Sooknanan, Jones Day, Washington, D.C. 

LAW CENTER TO PREVENT GUN VIOLENCE 

Attorneys on the brief: Mark T. Ciani, Katten Muchin Roseman LLP, New York, 

New York, and Jonathan K. Baum, Katten Muchin Roseman, LLP, Chicago, 

Illinois. 

NATIONAL RIFLE ASSOCIATION OF AMERICA, INC. 

Attorneys on the brief: Charles J. Cooper, David H. Thompson, Peter A. Patterson, 

Cooper & Kirk, PLLC, Washington, D.C. 

STATE FIREARM RIGHTS ORGANIZATIONS 

Attorneys on the brief: C.D. Michel, Clinton B. Monfort, Anna M. Barvir, Michel 

& Associates, P.C., Long Beach, California. 

STATES OF NEW YORK, CONNECTICUT, HAWAII, ILLINOIS, IOWA, 

MARYLAND, MASSACHUSETTS, OREGON, WASHINGTON AND THE 

DISTRICT OF COLUMBIA 

Attorneys on the brief: Barbara D. Underwood, Solicitor General, Anisha S. 

Dasgupta, Deputy Solicitor General, Claude S. Platton, Assistant Solicitor 

General, Eric T. Schneiderman, Attorney General of the State of New York, New 

York, New York, George Jepsen, Attorney General, Hartford, Connecticut, Lisa 

Madigan, Attorney General, Chicago, Ilinois, Brian E. Frosh, Attorney General, 

Baltimore, Maryland, Ellen F. Rosenblum, Attorney General, Salem, Oregon, Karl 

A. Racine, Attorney General, Washington, D.C., Douglas S. Chin, Attorney 

General, Honolulu, Hawaii, Thomas J. Miller, Attorney General, Des Moines, 

Appellate Case: 14-1292 Document: 01019590609 Date Filed: 03/22/2016 Page: 32 
 

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Iowa, Maura Healy, Attorney General, Boston, Massachusetts, and Bob Ferguson, 

Attorney General, Olympia, Washington. 

STATES OF UTAH, IDAHO, MONTANA, SOUTH CAROLINA, WYOMING 

Attorneys on the brief: Sean D. Reyes, Utah Attorney General, and Parker 

Douglas, Utah Federal Solicitor, Utah Attorney General’s Office, Lawrence G. 

Wasden, Attorney General of Idaho, Tim Fox, Attorney General of Montana, Alan 

Wilson, Attorney General of South Carolina, and Peter K. Michael, Attorney 

General of Wyoming. 

WESTERN STATES SHERIFFS’ ASSOCIATION, COLORADO POLICE 

PROTECTIVE ASSOCIATION, LAW ENFORCEMENT LEGAL DEFENSE FUND, 

LAW ENFORCEMENT ACTION NETWORK, LAW ENFORCEMENT ALLIANCE 

OF AMERICA, INTERNATIONAL LAW ENFORCEMENT EDUCATORS AND 

TRAINERS ASSOCIATION 

Attorney on the brief: Dan M. Peterson, Dan M. Peterson, PLLC, Fairfax, 

Virginia. 

Appellate Case: 14-1292 Document: 01019590609 Date Filed: 03/22/2016 Page: 33