Home Rule

Local jurisdictions in Colorado derive their authority to regulate from Article XX, section 6 of the Colorado Constitution, which provides, in relevant part, that:

The people of each city or town of this state, having a population of two thousand inhabitants as determined by the last preceding census taken under the authority of the United States, the state of Colorado or said city or town, are hereby vested with, and they shall always have, power to make, amend, add to or replace the charter of said city or town, which shall be its organic law and extend to all its local and municipal matters.

Such charter and the ordinances made pursuant thereto in such matters shall supersede within the territorial limits and other jurisdiction of said city or town any law of the state in conflict therewith.

Article XX, section 6 is designed to “grant and confirm to the people of all municipalities coming within its provisions the full right of self-government in both local and municipal matters.”

In determining the respective authority of the state legislature and home rule municipalities, the Supreme Court of Colorado has recognized three broad categories of regulatory matters: local concern, state concern, or mixed local and state concern.1 In matters of local concern, both home rule cities and the state may legislate, but when a home rule ordinance or charter provision and a state statute conflict, the home rule provision supersedes the conflicting state provision.2 In matters of statewide concern, the General Assembly may adopt legislation and preempt the power of home rule municipalities to enact conflicting legislation. Finally, in matters of mixed local and state concern, a home rule municipality’s charter or ordinance provision may coexist with a state statute as long as there is no conflict. In the event of a conflict, the state statute supersedes the charter or ordinance.3

Although the three categories are not “mutually exclusive or factually perfect, several general factors are useful under a totality of circumstances test to determine whether an issue is one of state, local, or mixed local and state concern, including the need for statewide uniformity of regulation, extraterritorial impact, other state interests, and local interests.”4

Preemption Statutes

The Colorado General Assembly has specifically found that the regulation of firearms is a matter of “statewide concern” and that there is a need for statewide uniformity of firearm regulation to avoid the “extraterritorial impact” of inconsistent firearms regulation among local jurisdictions.5

Colorado Revised Statutes section 29-11.7-103 provides:

A local government may not enact an ordinance, regulation, or other law that prohibits the sale, purchase, or possession of a firearm that a person may lawfully sell, purchase, or possess under state or federal law. Any such ordinance, regulation, or other law enacted by a local government prior to March 18, 2003, is void and unenforceable.

Colorado state law also preempts local laws that would restrict a person’s ability to travel with a firearm in a private vehicle. Specifically, section 18-12-105.6(2)(b) provides:

No municipality, county, or city and county shall have the authority to enact or enforce any ordinance or resolution that would restrict a person’s ability to travel with a weapon in a private automobile…while traveling into, through, or within, a municipal, county, or city and county jurisdiction….6

Moreover, the state concealed weapons act provides in its legislative findings that “[i]t is necessary that the state occupy the field of regulation of the bearing of concealed handguns.7

Exceptions

Local governments may still enact regulations prohibiting the open carrying of firearms in a building or specific area within the local government’s jurisdiction, as long as the local government posts signs to that effect.8

Interpretation

Subsequent to the enactment of these preemption statutes, the City and County of Denver (“City”) sued the state, seeking declaratory and injunctive relief regarding Denver ordinances that, among other provisions:

  • Regulated the open carrying of firearms
  • Banned assault weapons and Saturday night specials
  • Restricted the open carrying of firearms in city parks9

On November 5, 2004, a Denver District Court granted declaratory and injunctive relief to the City with regard to several ordinances and portions of ordinances. The court also found, however, that state law renders some of Denver’s ordinances and portions of ordinances invalid.

In making its ruling, the court determined whether each ordinance at issue addressed a matter of local concern, statewide concern, or mixed local and statewide concern.

The court held that ordinances and portions of ordinances addressing juvenile possession of firearms, carrying concealed firearms with a permit in a public park, and concealed weapon permitting, involved matters of mixed local and state concern and were invalid where they conflicted with state law.10

However, the court also determined that Denver’s ordinances regulating the open carrying of firearms, assault weapons, and Saturday night specials, and the open carrying of firearms in city parks involve matters of local concern and enjoined the state from enforcing its preemption laws against the City in these areas.11 In so holding, the court noted the unique characteristics that differentiate Denver from other parts of the state, such as high population density and a high crime rate, finding that these characteristics outweigh the need for statewide uniformity in these areas. The court quoted a statement made by the assistant city attorney at oral argument: “Simply put, a bullet fired in Denver – whether maliciously by a criminal or negligently by a law-abiding citizen – is more likely to hit something or somebody than a bullet fired in rural Colorado.”12

A similar lawsuit was filed against Denver by the Aurora Gun Club, seeking to invalidate the same Denver ordinances, with a similar outcome.13

In 2006 the Supreme Court of Colorado considered the appeal of these two cases. The Court came down with an unusual 3-3 deadlock, which procedurally affirmed the lower court decisions but provided no clear ruling on the substance of the preemption issues involved.14 Thus, Denver may now enforce its ordinances regulating the open carrying of firearms generally and in city parks, and banning assault weapons and Saturday night specials.

Other Statutory Provisions

Colorado Revised Statutes Section 29-11.7-102(1) provides that a local government, including a law enforcement agency, shall not maintain a list or other form of record or database of:

  • Persons who purchase or exchange firearms or who leave firearms for repair or sale on consignment
  • Persons who transfer firearms, unless the persons are federally licensed firearms dealers
  • The descriptions, including serial numbers, of firearms purchased, transferred, exchanged, or left for repair or sale on consignment

Section 25-12-109(1) prohibits local governments from enacting noise regulations concerning shooting ranges.

Section 30-15-302 permits counties to regulate the discharge of firearms in areas with an average population of at least 100 persons per square mile.

Immunity

For state laws prohibiting local units of government (i.e., cities and counties) from filing certain types of lawsuits against the gun industry, see our page on Immunity Statutes in Colorado.

Notes
  1. U.S. West Communications, Inc. v. City of Longmont, 948 P.2d 509, 515 (Colo. 1997), citing City and County of Denver v. State, 788 P.2d 764 (Colo. 1990). ⤴︎
  2. Id. ⤴︎
  3. Id. ⤴︎
  4. Id. ⤴︎
  5. Colo. Rev. Stat. § 29-11.7-101. ⤴︎
  6. In Trinen v. City & County of Denver, 53 P.3d 754, 758-60 (Colo. Ct. App. 2002), the Colorado Court of Appeals held that the Colorado General Assembly’s intent in enacting section 18-12-105.6(2)(b) was to limit, not eliminate, local ordinances regulating the carrying of weapons in private vehicles, and to allow local weapons ordinances that apply to travel wholly within local jurisdictions. See also United States v. Smith, 55 Fed. Appx. 489, fn.1, 2003 U.S. App. LEXIS 1832. ⤴︎
  7. Colo. Rev. Stat. § 18-12-201(1)(e). The Colorado Supreme Court has interpreted Colorado’s concealed weapons act as divesting the Regents of the University of Colorado from any authority regulating the carrying of concealed weapons on University of Colorado campuses. Regents of the Univ. of Colo. v. Students for Concealed Carry on Campus, 271 P.3d 496, 500-501 (2012). ⤴︎
  8. Colo. Rev. Stat. § 29-11.7-104. ⤴︎
  9. City and County of Denver v. State, No. 03-CV-3809, 2004 WL 5212983 (Colo. Dist. Ct. Nov. 5, 2004). ⤴︎
  10. Id. The City conceded the point as to concealed weapon permitting. ⤴︎
  11. Id. ⤴︎
  12. Id. ⤴︎
  13. Sternberg v. City and County of Denver, No. 03-CV-8609 (Colo. Dist. Ct. 2004). ⤴︎
  14. State v. City & County of Denver, 139 P.3d 635 (Colo. 2006). ⤴︎