CU Board of Regents
Colorado State University follows University of Colorado lead in implementing “mini-Gun-Ban” via “waiver” of legal rights
Following the March 2012 Colorado Supreme Court ruling which rejected the University of Colorado’s ban of licensed concealed-carry of firearms on campus (the “CU Gun Ban”), the University of Colorado (after face-saving public meetings to solicit community input – the recommendations of which were ignored) implemented policies designed to end-run the court’s ruling and maintain as much of a “gun ban” in place as possible, under the guise of “contractual stipulations” in student housing and campus event ticketing policies.
Despite citizen input and legal advice advising the university against imposing a limited gun ban, the CU administration – supported by a majority of Regents on the governing oversight Board – proceeded with implementing policies in violation of the court’s ruling and state statute on the universal application of concealed-carry permits:
The court upheld the Colorado Court of Appeals April 2010 ruling that the CU gun ban policy violates “the clear letter and intent of the statute authorizing statewide standards and universal application for concealed-carry permits:”
18-12-214. Authority granted by permit – carrying restrictions.
(1) (a) A permit to carry a concealed handgun authorizes the permittee to carry a concealed handgun in all areas of the state, except as specifically limited in this section.
As Clear The Bench Colorado warned last summer, allowing CU’s “mini-Gun-Ban” policies to stand – getting people to sign away legal rights as a condition of receiving a good or service – sets a dangerous precedent likely to be copied by other institutions (and applied to other areas of activity).
Recent news of similar policies now being implemented at Colorado State University confirm the validity of that warning.
The CSU Health Network (providing healthcare services for CSU students, staff, and faculty) recently promulgated a set of policies seeking to impose a waiver of legal rights as a condition of receiving medical treatment:
All rights under any state or federal law or constitutional related to the use or possession of firearms (i.e. U.S. Constitution, Second Amendment) are voluntarily and expressly waived in exchange for treatment at the Health Network. Failure to comply with this prohibition may result in further action under applicable law or University disciplinary procedures.
The CSU policies follow the same model first promulgated by the University of Colorado – seeking to impose a waiver of legal rights under terms of a “service contract”, as “a condition of receiving services”:
All persons accessing services through the CSU Health Network engage in a treatment agreement with health care providers.
The CSU policies specifically target the legal rights of concealed-carry weapons permit holders:
This prohibition includes all weapons possessed by persons with a lawful permit to carry a concealed firearm pursuant to C.R.S. 18-12-201 et. seq.
Our state’s leading institutions of higher education – beneficiaries of both direct (via higher education general fund expenditures) and indirect (via student loan, grant, and College Opportunity Fund tuition subsidies) taxpayer spending – are violating state law and the legal rights of Colorado citizens.
Campus Gun Ban policies needlessly endanger the safety of students, staff, faculty, and visitors by putting them at greater risk of violence, as ”gun free zone” = “target-rich environment” for criminals.
Allowing responsible adults to exercise a fundamental constitutional right – affirming the right of licensed adult concealed-carry permit holders to responsibly exercise their inherent right of armed self-defense – is not only good law, it is good policy.
Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.
However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.
Ultimately, though – it’s worth the effort.
Friday Funnies: …and a Leftist Judiciary! (reprise, again)
Welcome to the 2012 Christmas edition of the Clear The Bench Colorado Friday Funnies!
Another tumultuous year has come and gone for the Colorado judiciary – and once again, Colorado Citizens and taxpayers have been hammered by the gavels of Colorado judges pounding their personal preferences over the will of the people – and the rule of law.
Last year closed with Colorado courts deciding the boundaries for Congressional districts (after the state senate reprised the 2000 playbook of abdicating responsibility to send it to the courts) and state legislative districts (following the Colorado Reapportionment Commission’s public hearings on re-setting the boundaries of our state legislative districts over the summer), both of which played a prominent role in determining Colorado’s electoral destiny in 2012.
Colorado courts were also a central battlefield for Education policy, as one Denver District judge threw out Douglas County’s attempts to enable greater school choice, and another Denver District judge declared the state system of funding schools “unconscionable” while advancing the power of the courts to determine “proper” levels of school funding (despite the Constitution’s delegation of that power to the legislative branch) – although that decision is likely to be overturned after an expensive – and long - appeal to the Colorado Supreme Court.
The first stages of the court appeal seeking to preserve school choice concluded last month (Nov 2012) with oral arguments before the Colorado Court of Appeals (a ruling by the 3-judge panel isn’t expected until early next year, most likely late January or February).
Meanwhile, the ‘Lobato’ school funding lawsuit – called the “Super Bowl of school funding litigation” – continues to slog its way through the courts as well.
Earlier in the year, after two years of legislative inaction failed to repeal or roll back the unconstitutional and unpopular tax increase, the ‘FASTER’ Colorado Car Tax was challenged in court as a violation of the Colorado state Constitution (specifically, Article X, Section 20 – Taxpayer’s Bill of Rights, TABOR).
Another, wider-ranging challenge to TABOR is still being fought out in Federal court: the notorious “Fenster’s Folly” frivolous anti-TABOR lawsuit (which not only challenges TABOR in particular, but more generally citizens’ right to petition under a flawed reading of the “republican form of government” language in the Constitution’s “Guarantee Clause” (United States Constitution, Article IV, Section 4 – “The United States shall guarantee to every State in this Union a Republican Form of Government“) which multiple U.S. Supreme Court cases have ruled non-justiciable (meaning, not subject to determination by the courts).
One major ruling by the Colorado Supreme Court DID uphold the law – and the rights of Colorado citizens – when striking down the University of Colorado’s illegal gun ban (March 2012). Unfortunately, the CU administration (backed by the CU Board of Regents) moved almost immediately to circumvent the court’s ruling and continue to violate state law by promulgating policies banning guns in certain areas (not authorized by statute) and additional gun ban legislation (unfortunately backed by many on the CU Board of Regents) to further restrict and roll back hard-fought self-defense rights is coming.
Finally, to close out the year, the Colorado Supreme Court and Court of Appeals moved into the palatial new ‘Colorado Judicial Center’ (at significant taxpayer expense and incurring massive new “non-debt” debt, without required voter approval) just one week before closing for the holidays.
All of these issues were comprehensively documented by Clear The Bench Colorado over the last year – while the “mass media” and the majority of the state’s “news” organizations gave them short shrift.
Clear The Bench Colorado also continued the public service of providing comprehensive, well-referenced evaluations of judicial performance in 2012 – again, in contrast to the “official” taxpayer-funded “Blue Book” rubberstamp “reviews” disseminated at great expense (and, when put out at polling locations, in violation of state law) by the Colorado Office of Judicial Performance Evaluation.
Although remaining mindful that what’s at stake – holding our judiciary accountable for serial violations of our constitutional rights (to vote on taxes, even when taxes are called “fees”; defend our property against unjust seizure; bear arms in self-defense; and too many others to list) is serious business, all work and no play makes Matty a dull boy.
Although still awaiting payment over two year later after “Colorado Ethics Watch” (CEW, pronounced “sue” – it’s what they do) was once again ordered to pay Clear The Bench Colorado thousands of $ in legal fees (owed since the judge’s original ruling in July 2010 found CEW’s complaint to be “frivolous, groundless, & vexatious”) brings a rueful chuckle, the following video (even if focused on the national level) elicited a hearty laugh:
…and a Leftist Judiciary!
While still afflicted with the (black-robed) ghosts of Christmas past in our Christmas present, we can still act to save our Christmas future. Continue to support Clear The Bench Colorado with comments (Sound Off!) and contributions. Freedom isn’t free – nor is it always easy to be a Citizen, not a subject.
Ultimately, though – it’s worth the effort.
CU Board of Regents statewide candidates both support new legislation to allow the university to again ban guns on campus
Despite a long, hard-fought court battle to secure the same rights for Colorado citizens at the University of Colorado applying elsewhere in the state (under state law and the Colorado Constitution) to lawfully carry concealed weapons for personal protection, the University of Colorado administration and the CU Board of Regents have sought to end-run and undermine the recent Colorado Supreme Court ruling striking down CU’s comprehensive campus gun ban. Recently, the University of Colorado revised its formerly comprehensive gun ban policies to more restricted in scope, but still legally suspect, policies imposing a gun ban in student housing and at ticketed campus events (policies that are likely to draw an additional, and costly, legal challenge – and, as noted in a previous guest commentary on this site (CU Regents Unwise to Consider Residence Hall Gun Ban,
The courts do tend to take a dim view of those who try to squash fundamental rights.
For that reason, this year’s elections to the CU Board of Regents hold more than casual interest to those concerned about constitutional and statutory rights to “keep and bear arms.” Unfortunately, on the gun rights issue, both candidates for the single statewide (“at-large”) CU Regent seat appear to share similar anti- gun rights views. Appearing together on the 9News “Your Show” television program Sunday morning (23 Sept 2012), both candidates were asked about their views on the recent Colorado Supreme Court ruling striking down the CU Gun Ban, and more generally about the issue of concealed carry on campus.
“Should the CU Board of Regents accept the ruling and allow for those over 21 with a license to carry or should they continue trying to work around it?” (question submitted by Kris West) “What is your position on concealed carry on campus? Do you agree with proposed legislative attempts to outlaw the right in the face of the Colorado Supreme Court decision that the university has no power to do so?” (question submitted by Joe Mierzwa)
Democrat CU Board of Regents candidate Steve Ludwig reiterated his position in opposition to allowing licensed concealed-carry permit-holders to exercise their rights on university-administered property, although he did concede that “CU lost a lawsuit, so we have to allow concealed carry on campus.”
Ludwig, at least, was consistent.
Republican CU Board of Regents candidate Brian Davidson, however, seems to have flip-flopped on the position he took during the primary campaign (during which he claimed to “support the 2nd Amendment” and licensed concealed carry) and joined Ludwig in supporting legislation (such as a bill proposed by Boulder Democrat Claire Levy) allowing the university to again ban guns (and violate the rights of all Coloradoans) on campus:
Chris Vanderveen (9News YourShow Host): “Do you want the legislature to get involved, Brian?” (video at 5:24)
Brian Davidson, Republican candidate for CU Regent At-Large: “I do, and I’d actually take a little bit different stance – that is, having this issue on each board table across the state of Colorado, I think is simply going to be a fight, it’s going to have, uh… induce chaos, um, and take away from the issues at hand, of affordable education, quality education, uh, et cetera. I’d actually like the legislature to decide whether or not higher education institutions should or should not be exempt from that, uh, from that bill, and take the debate away from the board table.”
Of course, the Colorado legislature already DID “decide whether or not higher education institutions should or should not be exempt from that, uh, from that bill” when passing the Colorado Concealed Carry Statute (C.R.S. 18-12-214) in 2003 with a definitive “NOT exempt” – as confirmed by both the March 2012 Colorado Supreme Court ruling, and the more sweeping Colorado Court of Appeals April 2010 ruling:
Institutions of higher education not exempt from the express authorization of permittees to carry concealed handguns “in all areas of the state”. The concealed carry act, § § 18-12-201 to 18-12-216, satisfies the “unless otherwise provided by law” provision of article VIII, section 5(2), of the state constitution by manifesting a clear and unmistakable intent to subject the entire state to a single statutory scheme regulating concealed handgun carry, subject to specified exceptions. Students for Concealed Carry on Campus, LLC v. Regents of Univ. of Colo., — P.3d — (Colo. App. 2010).
CU’s Gun Ban policies needlessly endanger the safety of students, staff, faculty, and visitors by putting them at greater risk of criminal predation, as ”gun free zone” = “target-rich environment” for criminals.
The continued support of the CU Board of Regents – both the current majority and candidates for election this year – for policies and legislation violating the rights of a segment of Colorado citizens (CU students, staff, faculty, and campus visitors) is deeply disturbing.
Allowing responsible adults to exercise a fundamental constitutional right – affirming the right of licensed adult concealed-carry permit holders to responsibly exercise their inherent right of armed self-defense – is not only good law, it is good policy.
Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance. However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions.
Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.
Ultimately, though – it’s worth the effort.
Colorado Supreme Court rejects Ward Churchill appeal – University of Colorado not forced to re-instate to faculty
The Colorado Supreme Court, in a 55-page ruling issued Monday morning, rejected fired University of Colorado professor Ward Churchill’s appeal and request to be re-instated to the CU faculty.
As reported by Clear The Bench Colorado at the end of May, Churchill’s attempts to portray the case as an issue of “academic freedom and tenure at universities” were undermined by the backing of many academic groups (including the American Council on Education, National Association of Independent Colleges and Universities, the American Association of State Colleges and Universities, and the Association of American Universities) for the CU Board of Regents’ decision (and right) to fire Churchill.
In the academic groups’ amicus brief filed with the Colorado Supreme Court supporting the University of Colorado’s position, the groups state that
the principles of academic freedom should result in support for the university’s position. “Because universities are the entities best suited to make decisions about their faculties, they are entitled to autonomy in adjudicating claims regarding academic integrity.”
The Colorado Supreme Court apparently found this argument persuasive:
As the Supreme Court recognized in Regents of the University of California v. Bakke, 438 U.S. 265 (1978), one of the “essential freedoms” of an institution of higher learning is “to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.” Id. at 312 (quoting Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (Frankfurter, J., concurring)). This reasoning strongly suggests that the Regents must be granted a certain degree of autonomy in their employment decisions to ensure that they are not forced through litigation to retain a professor who has engaged in repeated instances of academic dishonesty. To hold otherwise could compromise the University’s institutional mission and integrity.
The court rejected Churchill’s claim that his firing constituted a violation of his 1st Amendment (free-speech) rights (he had argued that the investigation into his academic fraud was based on “bad faith” retaliation for his controversial – but protected – political speech) on grounds of the CU Board of Regents’ immunity from such claims:
we hold that Churchill’s bad faith investigation claim is barred by qualified immunity because the Regents’ investigation into Churchill’s academic record does not implicate a clearly established statutory or constitutional right or law.
In fact, the entire ruling hinged on “quasi-judicial immunity” exercised by the CU Board of Regents:
We ultimately conclude that the Regents are entitled to absolute immunity because their role as quasi-judicial public officials was functionally comparable to the role of a judge.
Although we applaud the court’s ruling in rejecting Churchill’s claim and attempt to use the courts to force the University of Colorado to re-instate him on the faculty, some aspects of the ruling are troubling – in particular, the court’s embrace of a principle that the actions of public officials may be above the law and beyond accountability:
If a public official’s action falls under the auspices of absolute immunity, then the doctrine provides that public official with complete and total immunity from suit, irrespective of how egregious or unlawful the action may have been.
Ultimately, the court’s ruling in No. 11SC25, Churchill v. University of Colorado at Boulder affirmed and strengthened the power of the CU Board of Regents to “to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.”
On the whole, this should be viewed as a victory for the ability of a university’s governing board (here, the CU Board of Regents) to determine, decide upon, and implement program and personnel actions in pursuit of its “institutional mission” – with the precautionary note that affirming a shield of “quasi-judicial immunity” for the Board’s decisions raises the spectre of potential violations of fundamental rights of faculty, students, or shareholders (taxpayers) behind such shield in the future.
Our View:
Free speech and academic freedom are important rights worthy of being defended, but Ward Churchill’s transparent attempt to extend his played-out “fifteen minutes of fame” and violate the rights of others (including forcing the University of Colorado – and by extension, Colorado taxpayers – to provide him a sheltered, comfortable livelihood) is, contrariwise, contemptible.
Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.
However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.
Ultimately, though – it’s worth the effort.
Colorado Supreme Court to issue ruling (Monday) on forcing the University of Colorado to re-hire Ward Churchill
The Colorado Supreme Court is scheduled to announce a ruling in the case filed by fired University of Colorado professor Ward Churchill, who sought a court order forcing CU to re-instate him as a tenured professor at the university, this Monday (according to a report filed by Law Week Colorado).
A ruling Monday will represent an extraordinarily rapid resolution of the case (oral arguments before the court were held as recently as June 7th of this year), which probably does not bode well for Churchill. Churchill sought to present the case as a 1st Amendment issue; the CU Board of Regents argued that it has “quasi-judicial immunity” in hiring (and firing) decisions. As reported in the Denver Post late May, the court’s ruling will likely address both arguments:
The Colorado Supreme Court announced in 2011 that it would hear Churchill’s appeal, including a key argument about the quasi-judicial immunity doctrine that Churchill and his attorneys have challenged, arguing it threatens academic freedom and tenure at universities.
In addition to reviewing whether granting CU’s Board of Regents quasi-judicial immunity comports with federal law, the Supreme Court will consider whether CU violated Churchill’s First Amendment rights and whether Churchill can be given back his job as an ethnic studies professor — which attorney David Lane said Churchill still wants.
As reported by Clear The Bench Colorado at the end of May, Churchill’s attempts to portray the case as an issue of “academic freedom and tenure at universities” were undermined by the backing of many academic groups (including the American Council on Education, National Association of Independent Colleges and Universities, the American Association of State Colleges and Universities, and the Association of American Universities) for the University of Colorado Board of Regents’ decision (and right) to fire Ward Churchill.
In the academic groups’ amicus brief filed with the Colorado Supreme Court supporting the University of Colorado’s position, the groups state that
the principles of academic freedom should result in support for the university’s position. “Because universities are the entities best suited to make decisions about their faculties, they are entitled to autonomy in adjudicating claims regarding academic integrity.”
The academic associations further argue that overturning the appeals court decision
would not only infringe on the institutional autonomy that is the cornerstone of academic freedom, but would chill universities’ incentive to provide robust internal processes for faculty misconduct proceedings.
Our View:
Free speech and academic freedom are important rights worthy of being defended, but Ward Churchill’s transparent attempt to extend his played-out “fifteen minutes of fame” and violate the rights of others (including forcing the University of Colorado – and by extension, Colorado taxpayers – to provide him a sheltered, comfortable livelihood) is, contrariwise, contemptible. The Colorado Supreme Court should not play the bully by forcing CU to re-hire this confirmed fraud and cheat.
Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.
However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.
Ultimately, though – it’s worth the effort.
New University of Colorado policies banning guns in residences flouts Colorado Supreme Court ruling, state law
The University of Colorado is once again violating the constitutional and statutory rights of students (and violating state law) with recently-announced policies imposing a ban on permitted concealed-carry of guns at some CU facilities:
In what it calls a contractual matter between landlord and tenant, the University of Colorado-Colorado Springs is putting freshman housing off-limits to concealed carry permits and also will ban permitted guns from large campus events.
The University of Colorado at Boulder announced virtually identical (and identically illegal) policies:
University of Colorado’s Boulder campus announced Thursday that it will bar guns from undergraduate residence halls and provide designated off-campus housing for those hoping to bring their weapons to the university.
The University of Colorado administration’s attempt to re-label the renewed CU Gun Ban as a mere “contractual matter” is a transparent attempt to end-run a recent Colorado Supreme Court ruling affirming the universal applicability of a state-issued concealed-carry permit – striking down CU’s earlier campus-wide comprehensive gun ban.
Unfortunately for CU’s attempt to circumvent state law via the too-clever-by-far mechanism of declaring the gun ban a “contractual matter between landlord and tenant,” as a state-supported institution governed by an elected Board of Regents, the University is not just a private “landlord” but is a quasi-public accommodation, subject to state law. Additionally, as noted in a previous guest commentary on this site (CU Regents Unwise to Consider Residence Hall Gun Ban),
The courts do tend to take a dim view of those who try to squash fundamental rights.
The line of argument pursued by the CU administration with the new policies of implementing a gun ban via “contractual” forfeiture of a fundamental legal right is deeply troubling, and would set a disturbing precedent if upheld in the inevitable legal challenge(s) to the CU Gun Ban policies. If a government agency or institution can obligate citizens to contractually “sign away” their rights otherwise obtaining under state law and/or the constitution, do those rights actually exist in any meaningful sense?
The casual disregard for this fundamental principle breezily displayed by CU’s chief legal counsel is also disturbing:
“Ultimately, I’m not going to say that the issue won’t have to be resolved by the courts.”
So yes, the CU administration is basically daring students to sue for their constitutional and statutory rights; let’s hope that someone takes them up on that challenge. It will be a costly proposition for the University (which the cash-strapped CU system can ill afford), but since the current CU Board of Regents refused to exercise their oversight authority to prevent it (“punting” to chancellors rather than providing guidance or policy direction at the April board meeting)
The authority to implement residence hall gun policies, the university stated in the release, was delegated to the chancellors at CU-Boulder by the Colorado Board of Regents last spring.
the University of Colorado will once again be wasting tuition and taxpayer dollars in court.
As noted by attorney Jim Manley of Mountain States Legal Foundation, who won the Supreme Court challenge to campus gun bans in Colorado,
the Colorado Supreme Court was very clear in its ruling that you cannot regulate concealed carry in any way that conflicts with state law.
CU’s Gun Ban policies needlessly endanger the safety of students, staff, faculty, and visitors by putting them at greater risk of criminal predation, as ”gun free zone” = “target-rich environment” for criminals.
Allowing responsible adults to exercise a fundamental constitutional right – affirming the right of licensed adult concealed-carry permit holders to responsibly exercise their inherent right of armed self-defense – is not only good law, it is good policy.
Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.
However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.
Ultimately, though – it’s worth the effort.
CU Regents Unwise to Consider Residence Hall Gun Ban
The Colorado Supreme Court recently overturned the gun ban at state universities for concealed carry permit holders. In response, University of Colorado administrators, led by Chancelor Phil DiStefano, now wants the CU Regents to circumvent the Court by implementing a contractual clause in housing contracts which would forbid guns within any of the campus residence halls.
Normally, such a contractual waiver of rights might be acceptable to the courts – if it was truly voluntary. In this case, however, it is difficult to see how such a clause could be voluntary when CU requires its freshmen to live on campus for a year. Thus, for first-year students, the supposed contractual waiver effectively becomes an imposed regulation.
This would be an extraordinarily foolish policy to attempt. Forcing students to waive their Second Amendment rights in order to comply with campus housing requirements would effectively escalate CU’s dispute with the Colorado constitution into a full blown conflict with the Constitution of the United States and earn the ire of the U.S. Supreme Court.
In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court of the United States declared that the Second Amendment of the U.S. Constitution protects an individual’s fundamental right to own and keep a firearm -specifically within his home. Further, any law or regulation requiring guns to be stored at home in a locked container, trigger locked, or disassembled will violate Second Amendment rights. Because CU requires its freshmen to live in the campus residence halls for a year, these halls effectively become the students’ homes and CU must respect the rights articulated in the Heller case. CU cannot force students to waive fundamental rights. Any attempt to do so will only result in massively expensive and ultimately doomed litigation which the cash strapped universities can ill afford.
If CU truly wanted to ban guns in campus residence halls, it has only two options. First, it could abolish its residence hall requirement for freshmen, thus giving students a true choice as to where to live and whether to waive their Second Amendment rights. Otherwise, it could choose to provide armed guards and security checkpoints at the entrances to each residence hall to provide the protection that would otherwise come from being armed. Though both of these options would at least give the university a plausible justification for a policy banning guns in residence halls, they are by no means certain to withstand scrutiny under the Heller rule. The courts do tend to take a dim view of those who try to squash fundamental rights. It also seems especially inappropriate when coming from universities – the very institutions that best articulated and steadfastly championed human rights since the Enlightenment.
CU and other universities would be wise to embrace that lauded tradition and cease their opposition to the basic rights of our citizenry. Thus, instead of attempting to thwart the Second Amendment, universities might even profit by requiring firearms training and safety classes for campus residents to promote both safety and good citizenship. That would not only respect the rights of their students, it would teach them how to responsibly exercise those rights. After all, is that not one of the primary purposes of a Classical Liberal education?
_______________
Julian Dunraven is a corporate transactional lawyer and adjunct professor of Law and Criminal Justice at Everest College.
Colorado Supreme Court upholds Colorado Court of Appeals rejection of CU Gun Ban
The Colorado Supreme Court rightly rejected the specious argument advanced by the attorney for the CU Board of Regents (which voted 5-4 to appeal the Colorado Court of Appeals rejection of CU Gun Ban), who argued that the CU Board has “constitutional authority” to “enact legislation governing the campus” – essentially, putting the CU Board of Regents “above the law” of the state of Colorado.
The supreme court holds that the Concealed Carry Act’s comprehensive statewide purpose, broad language, and narrow exclusions show that the General Assembly intended to divest the Board of Regents of its authority to regulate concealed handgun possession on campus. Accordingly, the supreme court agrees with the court of appeals that, by alleging the Policy violates the CCA, the Students for Concealed Carry on Campus have stated a claim for relief. Because the supreme court affirms on statutory grounds, it does not consider the Students’ constitutional claim.
The court upheld the Colorado Court of Appeals April 2010 ruling that the CU gun ban policy violates “the clear letter and intent of the statute authorizing statewide standards and universal application for concealed-carry permits:”
18-12-214. Authority granted by permit – carrying restrictions.
(1) (a) A permit to carry a concealed handgun authorizes the permittee to carry a concealed handgun in all areas of the state, except as specifically limited in this section.
The Colorado Court of Appeals could not have been more clear in upholding that view, and went further in upholding the constitutional right of Colorado citizens to bear arms in self-defense:
Because the statute expressly applies to “all areas of the state,” we conclude that plaintiffs have stated a claim for relief under the CCA. We further conclude that plaintiffs have stated a claim for relief under Colorado Constitution article II, section 13, which affords individuals the right to bear arms in self-defense.
Interestingly, the Colorado Supreme Court chose not to address the claims for relief under Colorado Constitution article II, section 13, (which affirms an individual right to bear arms in self-defense) – leaving the Court of Appeals ruling on the constitutional right intact while avoiding giving that language the imprimatur of a Colorado Supreme Court ruling.
The courts – both the Colorado Supreme Court in Monday’s ruling, and the Colorado Court of Appeals in its more sweeping April 2010 ruling were right on the law, and reinforced the right policy, too.
There is NO compelling state interest to bar responsible adults (Colorado CCW permits can only be obtained by people 21 years or older, with a clean criminal and mental health background check passed, who obtain training in both physical and legal aspects of using firearms) the exercise of a fundamental right.
From a “safety” standpoint, barring guns from college campuses places students, staff, faculty, and visitors at greater risk of criminal predation, as ”gun free zone” equals “target-rich environment” for criminals.
Further, there has been NO documented instance of a concealed-carry permit holder misusing firearms on any Colorado college campus, as noted in the amicus brief filed by the Colorado sheriffs opposing the CU Gun Ban.
Allowing responsible adults to exercise a fundamental constitutional right – affirming the right of licensed concealed-carry permit holders to responsibly exercise their inherent right of self-defense – is not only good law, it is good policy.
Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.
However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.
Ultimately, though – it’s worth the effort.
Colorado Supreme Court hears arguments in CU Gun Ban case; are Coloradans’ gun rights in the crosshairs?
“No man’s life, liberty, property, or constitutional rights are safe while the Colorado Supreme Court is in session.” (again, with apologies to Mark Twain)
Clear The Bench Colorado has publicized the threat posed by the Colorado Supreme Court to our constitutional right to keep and bear arms in Colorado for some time (including an attempted exploitation of a court ruling to impose what amounts to an unconstitutional poll tax on gun sales and permits, the ban on responsible and licensed concealed-carry by the CU Board of Regents and an abortive CSU campus ban on concealed carry, along with debates and developments in both cases). After the CU Board of Regents voted to appeal the Colorado Court of Appeals ruling which in April struck down the CU ban on licensed permit-holders carrying firearms on campus (Court tosses CU gun ban), we warned Coloradans that another attack on our constitutional and statutory rights was coming.
The threat materialized in October 2010 when the Colorado Supreme Court granted certiorari (agreed to hear) the CU Board of Regents appeal of last April’s Colorado Court of Appeals ruling (which upheld state law and the rights of Colorado citizens against CU’s assertion of a right to ban licensed concealed carry in any area “governed” by the Board, including areas open to the public).
On Wednesday (8 June 2011), the Colorado Supreme Court heard oral arguments from attorneys representing CU (on one side) and various individual citizens and other interested parties on the other. The arguments lasted for one hour, and can be heard in their entirety via this link (audio recording, Regents v. Concealed Carry 10SC344).
The attorney for the CU Board of Regents argued that the CU Board has “constitutional authority” to “enact legislation governing the campus” – essentially, putting the CU Board of Regents “above the law” of the state of Colorado. The attorney cited some past rulings by the Colorado Supreme Court which had established some legal precedent for this view.
However, as the Colorado Court of Appeals had previously noted in its April 2010 ruling, the CU gun ban policy violates “the clear letter and intent of the statute authorizing statewide standards and universal application for concealed-carry permits:”
18-12-214. Authority granted by permit – carrying restrictions.
(1) (a) A permit to carry a concealed handgun authorizes the permittee to carry a concealed handgun in all areas of the state, except as specifically limited in this section.
The Colorado Court of Appeals could not have been more clear in upholding that view, and went further in upholding the constitutional right of Colorado citizens to bear arms in self-defense:
Because the statute expressly applies to “all areas of the state,” we conclude that plaintiffs have stated a claim for relief under the CCA. We further conclude that plaintiffs have stated a claim for relief under Colorado Constitution article II, section 13, which affords individuals the right to bear arms in self-defense.
The law – both constitutional and statutory – is clearly on the side of the plaintiffs, wishing to exercise their legal right to responsibly carry concealed weapons after undergoing an extensive background check, practical and legal training, and acquiring a permit for that purpose. The Concealed Carry Act applies to “all areas of the state,” except as specifically limited by the Act. The Regents lobbied to be included in the list of exceptions, but the legislature refused. The CU Board is now asking the Colorado Supreme Court to re-write the law to include the exception the Regents sought, but didn’t receive, when the legislation was passed.
Of course, it wouldn’t be the first time that the Colorado Supreme Court has legislated from the bench. The fact that the Colorado Supreme Court even agreed to hear the CU Regents appeal of a very clear and well-grounded ruling by the Colorado Court of Appeals does not bode well for the preservation of another set of Coloradans’ constitutional rights.
There is a great deal more at stake than the relatively narrow issue of whether responsible adults can be denied the exercise of their rights (licensed concealed-carry pursuant to state law) – as if that wasn’t important enough. In hearing the case, the Colorado Supreme Court will also rule on whether state law, as a matter of principle and precedent, can be ignored by certain quasi-governmental entities (such as the CU Board of Regents). Most importantly, the Colorado Supreme Court will rule on the standard of review for laws regulating the right to bear arms (or any constitutional rights) in Colorado.
The Colorado Court of Appeals held (correctly, in my view and the view of most legal scholars) that the standard of review for assessing the law, and CU’s attempt to ignore state law via an illegal gun ban (and for reviewing any law regulating any constitutional right) is the ”reasonable exercise” standard (in other words, is the law a “reasonable exercise” of the government’s authority to restrict a constitutional right). The CU Regents argue (and the Colorado Supreme Court’s Mullarkey Majority has in the past agreed, on other issues) that the standard for legal review should be the ”rational basis” standard of review (which gives virtually unlimited deference, and leeway, to the ability of government to pass laws restricting the individual exercise of fundamental constitutional rights). Adoption of that standard in this case would set a very dangerous precedent, and would effectively nullify the Colorado Constitution’s recognition of an individual’s right to keep and bear arms.
This case – and so many others of this nature – isn’t about guns; it’s about freedoms. Allowing the government to pass laws further restricting our rights (or allowing courts to unilaterally impose new laws or restrictions by re-writing or interpreting our rights out of existence) runs counter to the very foundations and ideals of this country.
Our Constitution is the Citizens’ rulebook for government – restricting the powers and authority of government to rule our lives. It is what distinguishes us as Americans from the historical example of every other nation on earth: we are Citizens, not subjects.
Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts. We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.
However, we can’t do it alone – we need your continued support; via your comments (Sound Off!) and, yes, your contributions. Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.
Ultimately, though – it’s worth the effort.
Colorado Supreme Court takes aim at gun rights, agrees to take CU Gun Ban case
“No man’s life, liberty, property, or constitutional rights are safe while the Colorado Supreme Court is in session.” (With apologies to Mark Twain)
Clear The Bench Colorado has tracked the threat posed by the Colorado Supreme Court to our constitutional right to keep and bear arms in Colorado for some time (including attempts to levy what amounts to an unconstitutional poll tax on firearms sales and permits, the CU Regents ban on responsible and licensed concealed-carry and the more recent attempted CSU campus ban on concealed carry, along with debates and recent developments in both cases). After the CU Board of Regents voted to appeal the ruling by the Colorado Court of Appeals which in April struck down the University of Colorado ban on licensed permit-holders carrying firearms on campus (Court tosses CU gun ban), we warned Coloradans that another attack on our constitutional and statutory rights was coming.
On Monday, the opening salvo of that attack arrived, as the Colorado Supreme Court agreed to consider the CU Regents appeal of last April’s ruling by the Colorado Court of Appeals (which upheld state law and the rights of Colorado citizens against CU’s illegal concealed carry ban covering all campus areas).
The CU Board of Regents legal brief to the Colorado Supreme Court is due in approximately 40 days; the brief of the respondents (SCCC, represented by the Mountain States Legal Foundation) along with any amicus curiae (“friend of court”) briefs are due 30 days after that.
The composition of the court (and thus, the likelihood of the law being followed in ruling on this case) may experience a change as a result of the intervening elections…
As Clear The Bench Colorado noted at the time, the Court of Appeals ruling was both legally sound and clear in its rejection of the CU Board’s assertion of extra-constitutional authority:
The Colorado Court of Appeals ruled Thursday that the University of Colorado has no authority to bar students or visitors from lawfully carrying guns on campus. [Ed. emphasis added]
Note that the CU Board of Regents is asserting its authority to ban licensed concealed carry not just by students, but by ANY responsible adult who has undergone the background checks and training (and mounds of paperwork) to apply for and receive a license to carry concealed – on ANY CU property.
The Colorado Court of Appeals ruling in the case highlights the critical importance of judges who rule in accordance with the law (especially the Constitution, which exists to protect the rights of individuals and limit the power of government) and underlines the fact that Colorado does have many such judges at various levels (including Judge Christine Habas, who ruled – correctly – that the Mill Levy Tax Freeze” was unconstitutional before being overturned by the Mullarkey Majority). Unfortunately, we just don’t have enough of them (good judges, that is) on the Colorado Supreme Court.
The Colorado Court of Appeals ruling in the case also substantiated our assertion that the CU and CSU bans violate “the clear letter and intent of the statute authorizing statewide standards and universal application for concealed-carry permits”
18-12-214. Authority granted by permit – carrying restrictions.
(1) (a) A permit to carry a concealed handgun authorizes the permittee to carry a concealed handgun in all areas of the state, except as specifically limited in this section.
The Colorado Court of Appeals could not have been more clear in upholding that view, and went further in upholding the constitutional right of Colorado citizens to bear arms in self-defense:
Because the statute expressly applies to “all areas of the state,” we conclude that plaintiffs have stated a claim for relief under the CCA. We further conclude that plaintiffs have stated a claim for relief under Colorado Constitution article II, section 13, which affords individuals the right to bear arms in self-defense.
The Colorado Supreme Court decision to hear the CU Regents appeal of this ruling puts another set of Coloradans’ constitutional rights at risk.
There is a great deal more at stake than the relatively narrow issue of whether responsible adults can be denied the exercise of their rights (licensed concealed-carry pursuant to state law) – as if that wasn’t important enough. In hearing the case, the Colorado Supreme Court will also rule on whether state law, as a matter of principle and precedent, can be ignored by certain quasi-governmental entities (such as the CU Board of Regents). Most importantly, the Colorado Supreme Court will rule on the standard of review for laws regulating the right to bear arms (or any constitutional rights) in Colorado.
The Colorado Court of Appeals held (correctly, in my view and the view of most legal scholars) that the standard of review for assessing the law, and CU’s attempt to ignore state law via an illegal gun ban (and for reviewing any law regulating any constitutional right) is the ”reasonable exercise” standard (in other words, is the law a “reasonable exercise” of the government’s authority to restrict a constitutional right). The CU Regents argue (and the Colorado Supreme Court’s Mullarkey Majority has in the past agreed) that the standard for legal review should be the ”rational basis” standard of review (which gives virtually unlimited deference, and leeway, to the ability of government to pass laws restricting the ability of individuals to exercise their constitutional rights). Adoption of that standard in this case would set a very dangerous precedent, and would effectively nullify the Colorado Constitution’s recognition of an individual’s right to keep and bear arms.
This case – and so many others of this nature – isn’t about guns; it’s about freedoms. Allowing the government to pass laws further restricting our rights (or allowing courts to unilaterally impose new laws or restrictions by re-writing or interpreting our rights out of existence) runs counter to the very foundations and ideals of this country.
Our Constitution is the Citizens’ rulebook for government – restricting the powers and authority of government to rule our lives. It is what distinguishes us as Americans from the historical example of every other nation on earth: we are Citizens, not subjects.
Our courts – sworn to uphold our Constitution and act as protectors of our constitutional rights – must occasionally be reminded of that fact.
Stick to your guns – Defend YOUR constitutional and statutory rights, and exercise YOUR right to vote “NO” on retaining the 4 (er, 3 remaining) ‘unjust justices’ of the Mullarkey Majority (Michael Bender, Alex Martinez, Nancy Rice, and Chief Justice Mary Mullarkey) who need YOUR approval to continue taking away your constitutional rights: your right of self-defense, your right to vote on tax increases, your right to defend your home or business from government abuse of eminent domain powers, and your right to enjoy the benefits of the rule of law, not rule by activist, agenda-driven “justices.”
Support Clear The Bench Colorado with your comments (Sound Off!), your contributions, and your “NO” vote in November 2010 to keep these unjust justices from returning for another 10-year term!