Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
Brian Tony was convicted of two counts of witness tampering and one count of voluntary manslaughter. Despite the presentence report’s recommendation that all three counts be grouped, the district court declined to do so.
Tony appealed, claiming the guidelines required all three convictions to be grouped.
The 10th Circuit Court of Appeals concluded that the relevant guidelines are grievously ambiguous and therefore construed them in Tony’s favor under the rule of lenity.
The 10th Circuit vacated Tony’s sentence and remanded for resentencing.
This case stemmed from Transportation Security Officers subjecting Rhonda Mengert to an inspection in a private room at Tulsa International Airport.
After Mengert’s initial security screening and subsequent pat-downs left TSOs unsure as to the nature of an object in her groin area—which turned out to be an ordinary feminine hygiene product—TSOs led her to a private screening room for further examination.
Mengert alleged that the incident has caused her to experience symptoms of a panic attack and that her symptoms have recurred on a regular basis when she travels by plane. She brought claims against the U.S. under the Federal Tort Claims Act, alleging intentional infliction of emotional distress and false imprisonment.
The district court denied the government’s motion to dismiss the complaint for lack of jurisdiction based on sovereign immunity, granted the government’s motion to dismiss the IIED claim, denied Mengert’s untimely motion for leave to amend her complaint and granted the government’s motion for summary judgment on Mengert’s false imprisonment claim.
Mengert appealed all four decisions.
The 10th Circuit Court of Appeals concluded the district court properly found that it had jurisdiction over Mengert’s claims. That decision turned on whether TSOs are “investigative or law enforcement officer[s]” employed by the U.S. It concluded that TSOs fall under this definition.
The 10th Circuit also concluded that Mengert failed to allege sufficiently severe emotional distress in her complaint and that the false imprisonment claim failed because Menger doesn’t challenge the lawfulness of her detention itself, but instead challenges the lawfulness of the TSOs’ conduct during the detention.
It also found that the district court didn’t abuse its discretion in denying Mengert’s belated motion for leave to amend the complaint because she failed to show “good cause” for her delay in filing that motion.
The 10th Circuit affirmed.
Judge Timothy Tymkovich dissented in part.
Tymkovich wrote that seizing evidence and making arrests are traditional police powers. But he wrote that TSA screeners are not authorized to make arrests or seize evidence and that TSA screeners are not engaged in a traditional law enforcement function.
He concluded that the meaning of “execute searches” in the law enforcement proviso is limited to investigatory searches for a similar purpose and doesn’t include the administrative searches conducted by TSA screeners.
Tymkovich would reverse the district court’s conclusion that Congress waived sovereign immunity for intentional torts committed by TSA screeners. He otherwise agreed with the majority’s analysis of the other issues raised on appeal.
Rocky Mountain Gun Owners, et. al v. Polis
On April 28, 2023, Colorado Gov. Jared Polis signed a law enacted by the Colorado General Assembly that established 21 as the minimum age for the sale and purchase of guns in Colorado. The law was to take effect on Aug. 7, 2023.
Two Coloradans, Tate Mosgrove and Adrian Pienda, and Rocky Mountain Gun Owners filed suit in federal court and moved for a preliminary injunction.
Without a hearing, on the same day the law was to take effect, the district court granted the motion and enjoined the enforcement of the law. Polis timely appealed.
Mosgrove turned 21 during the pendency of this appeal, rendering his challenge moot. The 10th Circuit Court of Appeals dismissed Mosgrove from the appeal and focused its analysis solely on Pineda’s eligibility to challenge the statute.
The 10th Circuit held that laws imposing conditions and qualifications on the sale and purchase of arms doesn’t implicate the plain text of the Second Amendment.
It concluded that the district court abused its discretion when it determined that commercial regulations described in District of Columbia v. Heller only pertained to “those who regularly sell firearms.”
The 10th Circuit found that the best reading is that Colorado Senate Bill 23-169 is presumptively lawful because the age-based condition or qualification on the conduct it proscribes falls outside the scope of the plain text of the Second Amendment.
It held that SB 23-169 also didn’t employ “abusive ends” that would disqualify it from the presumption of lawfulness.
The 10th Circuit rejected the notion that the minimum age for purchasing a firearm should automatically mirror the minimum voting age. It found that the plain text of the Constitution doesn’t establish a one-age-fits-all standard for all rights.
It also held that the district court erred by concluding Pineda had established an irreparable injury and that it erred by concluding that the preliminary injunction factors regarding the harm it causes against Polis, Colorado and the public interest weighed in favor of Pineda.
The 10th Circuit reversed the district court’s order enjoining enforcement of SB 23-169 and remanded with instructions to dissolve the injunction and for further proceedings.
Judge Carolyn McHugh concurred.
McHugh wrote that she agreed with the majority that Pineda failed to carry his burden on all four preliminary injunction factors. She wrote separately because she wasn’t persuaded that presumptively lawful regulatory measures apply at step one of Bruen analysis. She would instead consider presumptively lawful regulatory measures at Bruen step two, after there has been a determination that the Second Amendment’s plain text covers the proposed conduct.