Drexler v. Weiser

Opinion

Appellate Case: 25-1173 Document: 62-1 Date Filed: 07/24/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT July 24, 2026 _________________________________ Christopher M. Wolpert Clerk of Court REGINA T. DREXLER,

Plaintiff - Appellant,

v. No. 25-1173 (D.C. No. 1:21-CV-00805-DDD-KAS) PHILIP WEISER, in his official capacity (D. Colo.) as the Attorney General of Colorado; JOHN WALSH, in his official capacity as elected District Attorney for the Second Judicial District; PRESIDING JUDGE IN DENVER DISTRICT COURT DIVISION 414, in his/her official capacity; STATE COURT ADMINISTRATOR, in his/her official capacity; CHIEF JUDGE OF THE DENVER DISTRICT COURT, in his/her official capacity; PRESIDING JUDGE OF THE DENVER COUNTY COURT, in his/her official capacity; PRESIDING JUDGE IN DENVER COUNTY COURT COURTROOM 159; CHIEF JUDGE AND PRESIDING JUDICIAL OFFICIALS IN THE COLORADO COURT OF APPEALS, in their official capacities; CHIEF JUSTICE OF THE COLORADO SUPREME COURT, in his/her official capacity; JOHN DOE,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT * _________________________________

This order and judgment is not binding precedent, except under the doctrines *

of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A). Appellate Case: 25-1173 Document: 62-1 Date Filed: 07/24/2026 Page: 2

Before BACHARACH and MORITZ, Circuit Judges, and SHELBY, District Judge **. _________________________________

Regina Drexler sued several Colorado state officials, alleging that multiple

Colorado statutes and one Colorado court rule violated her First and Fourteenth

Amendment rights. The district court dismissed her complaint for lack of jurisdiction

based on Eleventh Amendment immunity and lack of standing. Drexler disagrees

with that ruling, but we affirm. The Attorney General, the State Court Administrator,

and the judicial defendants are immune from suit, and the exception in Ex parte

Young, 209 U.S. 123 (1908), for suits seeking prospective injunctive relief from

government officials does not apply because none of these defendants enforce the

challenged statutes. And although the District Attorney does enforce the challenged

criminal statutes, Drexler cannot show a credible threat that the District Attorney will

do so in a manner that infringes on her First Amendment rights, so those claims fail

for lack of standing. Last, Drexler’s cursory procedural arguments lack merit.

Background

The claims in this litigation originated from the breakup of Drexler’s

friendship and brief romantic entanglement with another woman. In the early 2010s,

during the fallout of that relationship, Drexler wrote, published, and performed

literary essays about her experience. But according to the other woman, Drexler was

stalking her. She argued that the essays (among other things) constituted harassment,

** The Honorable Robert J. Shelby, U.S. District Judge, District of Utah, sitting by designation. 2 Appellate Case: 25-1173 Document: 62-1 Date Filed: 07/24/2026 Page: 3

and in 2015, she obtained a protection order in Colorado state court restricting

Drexler’s proximity to her and her children. Drexler’s state-court attempts to appeal

and dismiss the protection order were unsuccessful, and the state court ultimately

ordered Drexler to pay nearly $200,000 in attorney fees.

In March 2021, Drexler filed this federal action, purporting to seek habeas

relief from the protection order and asserting claims under 42 U.S.C. § 1983

challenging both the protection order and the underlying Colorado statutes governing

the protection order. The district court dismissed Drexler’s complaint in September

2021, and Drexler appealed.

We first denied a certificate of appealability on Drexler’s habeas claim, ruling

that she was not even debatably in custody for habeas purposes. Drexler v. Spahn,

No. 21-1368, 2022 WL 17333076, at *1 (10th Cir. Nov. 30, 2022) (unpublished). In

so doing, we rejected Drexler’s interpretation of the protection order as infringing on

her First Amendment rights, explaining that the order “didn’t say anything that would

restrict . . . Drexler’s right to speech.” Id. at *2. Second, we agreed with the district

court that the Rooker-Feldman doctrine 1 barred Drexler’s challenge to the protection

order. Id. at *4. But we concluded that Rooker-Feldman did not bar Drexler’s

constitutional challenge to Colorado’s protection-order statutes, so we remanded in

limited part. Id.

1 Generally speaking, this doctrine provides that federal courts lack jurisdiction to consider a challenge to a state-court ruling. See D.C. Ct. App. v. Feldman, 460 U.S. 462, 486 (1983); Rooker v. Fid. Tr. Co., 263 U.S. 413, 415–16 (1923). 3 Appellate Case: 25-1173 Document: 62-1 Date Filed: 07/24/2026 Page: 4

Back at the district court, Drexler twice amended her complaint to add claims

and defendants. In early 2024, the district court consolidated this action with another

case filed by Drexler and ordered her to file an amended consolidated complaint. The

amended consolidated complaint—the fourth in this action and the operative one on

appeal—ignores our prior ruling that the protection order doesn’t restrict Drexler’s

First Amendment speech rights and continues to allege that Drexler “has foregone

literary and other protected speech since the initial protection order was imposed in

2015.” App. vol. 7, 1860. It also alleges that she “has . . . refrained from exercising

her right to petition the courts.” Id.

Drexler’s amended consolidated complaint seeks prospective declaratory and

injunctive relief based on challenges to (1) Colorado’s protection-order statutes, both

civil and criminal (against the District Attorney, the Attorney General, the State

Court Administrator, and the county judicial defendants 2); (2) Colorado’s criminal

stalking statute (against the District Attorney and the Attorney General);

(3) Colorado’s attorney-fee statute (against the Attorney General, the State Court

Administrator, the county judicial defendants, and some state judicial defendants 3);

(4) Colorado’s appeal statutes (against the Attorney General and some state judicial

2 There are two county judicial defendants: the Presiding Judge of the Denver County Court and the county judge assigned to courtroom 159. 3 There are four state judicial defendants: the Chief Judge of the Denver District Court, the judge assigned to Division 414, the Chief Judge and Presiding Judicial Officials of the Colorado Court of Appeals, and the Chief Justice of the Colorado Supreme Court. Drexler’s complaint seeks relief on her attorney-fee-statute claim against only the Chief Judge of the Denver District Court and the Division 414 judge. 4 Appellate Case: 25-1173 Document: 62-1 Date Filed: 07/24/2026 Page: 5

defendants 4); and (5) Colorado’s rules on reply briefs (against the Attorney General

and some state judicial defendants 5).

The defendants all moved to dismiss for lack of jurisdiction. The district court

granted defendants’ motions. It concluded that Drexler could not sue the Attorney

General, the State Court Administrator, or any judicial defendants under the Ex parte

Young exception to Eleventh Amendment immunity because none of those

defendants enforced the challenged statutes. 6 It also ruled that Drexler lacked an

injury sufficient for Article III standing on her challenges to the criminal protection-

order and stalking statutes—which could proceed against the District Attorney under

Ex parte Young—because she had not demonstrated a credible threat of enforcement.

The district court explained that not only did the protection order not restrict

Drexler’s First Amendment rights, but the District Attorney had filed a declaration

promising not to prosecute Drexler for protected First Amendment conduct. Last, the

district court dismissed the John Doe defendant, reasoning that Drexler had ample

time and opportunity to identify the proper defendants and amend her complaint but

failed to do so. Thus, the district court dismissed all Drexler’s claims without

prejudice for lack of jurisdiction.

4 Specifically, the Chief Judge and Presiding Judicial Officials of the Colorado Court of Appeals and the Chief Justice of the Colorado Supreme Court. 5 Specifically, the Chief Justice of the Colorado Supreme Court and the Chief Judge of the Denver District Court. 6 Given the “common thread between Article III standing analysis and Ex parte Young analysis,” the district court alternatively ruled that Drexler lacked standing to sue these defendants. Cressman v. Thompson, 719 F.3d 1139, 1146 n.8 (10th Cir. 2013). 5 Appellate Case: 25-1173 Document: 62-1 Date Filed: 07/24/2026 Page: 6

Drexler appeals.

Analysis

Drexler challenges the district court’s rulings on the Ex parte Young exception

to the Eleventh Amendment and standing. We review both de novo. Free Speech

Coal., Inc. v. Anderson, 119 F.4th 732, 735 (10th Cir. 2024) (Eleventh Amendment);

Peck v. McCann, 43 F.4th 1116, 1124 (10th Cir. 2022) (standing).

I. Ex parte Young Exception to Eleventh Amendment Immunity

“The Eleventh Amendment constitutionalizes the doctrine of state sovereign

immunity” and bars citizens from suing both states and state officials in their official

capacity. Free Speech Coal., 119 F.4th at 735–36 (quoting Hendrickson v. AFSCME

Council 18, 992 F.3d 950, 965 (10th Cir. 2021)). “But Ex parte Young created an

exception under which individuals can sue state officers in their official capacities if

the lawsuit seeks prospective relief for an ongoing violation of federal law.” Id. at

736. Ex parte Young applies only if the state official “ha[s] some connection with the

enforcement of the challenged statute.” Id. (cleaned up) (quoting Hendrickson, 992

F.3d at 965). This connection need not be particularly special, but Ex parte Young

“requires something ‘more than a mere general duty to enforce the law.’” Id. at 739

(quoting Hendrickson, 992 F.3d at 965). Rather, the official “must ‘have a particular

duty to enforce the statute in question and a demonstrated willingness to exercise that

duty.’” Id. at 736 (emphasis added) (cleaned up) (quoting Prairie Band Potawatomi

Nation v. Wagnon, 476 F.3d 818, 828 (10th Cir. 2007)); see also Prairie Band, 476

F.3d at 828 (describing enforcement as “assist[ing] in giving effect to the law”

6 Appellate Case: 25-1173 Document: 62-1 Date Filed: 07/24/2026 Page: 7

(cleaned up)).

Drexler indeed seeks prospective relief from state officers in their official

capacities for alleged ongoing violations of federal law. The issue is whether the

defendants she sued have any enforcement connection to the challenged statutes. We

will consider each defendant or group of defendants in turn.

A. District Attorney

We begin with the easiest call. As the district court concluded, the District

Attorney has the required enforcement connection with the challenged criminal

protection-order and stalking statutes because Colo. Rev. Stat. § 20-1-102(1) directs

district attorneys to prosecute actions on behalf of the state. See People ex rel. Tooley

v. Dist. Ct., 549 P.2d 774, 777 (Colo. 1976) (explaining that state constitution and

statutes “grant the bulk of prosecutorial powers and duties to the district attorneys”).

The District Attorney accepted as much below and takes the same position on appeal.

Thus, the Ex parte Young exception to Eleventh Amendment immunity permits

Drexler’s challenge to the criminal protection-order and stalking statutes to proceed

against the District Attorney. 7

B. Attorney General

Drexler offers a variety of theories for why the Attorney General has the

requisite enforcement connection to all the challenged statutes. Beginning with the

The district court didn’t find that the District Attorney had enforcement 7

connections to any of the other challenged laws, and Drexler doesn’t dispute as much on appeal. 7 Appellate Case: 25-1173 Document: 62-1 Date Filed: 07/24/2026 Page: 8

protection-order and stalking statutes, Drexler suggests that the Attorney General has

the duty and willingness to enforce them because he is a “peace officer” authorized to

enforce all state laws, including those she challenges. See Colo. Rev. Stat. § 13-14-

107(2) (noting “duties of peace officers enforcing a civil protection order”); id. § 16-

2.5-128 (designating attorney general as “peace officer[] whose authority shall

include the enforcement of all laws of the state of Colorado”); id. § 16-3-110(2)

(giving peace officers “authority to act in any situation in which a felony or

misdemeanor has been or is being committed in such officer’s presence”); id. § 18-6-

803.5(3)(a), (b) (criminal protection-order statute stating that “peace officer shall use

every reasonable means to enforce a protection order,” including arrests and seeking

warrants); id. § 18-3-602(7) (stalking statute providing that “[a] peace officer shall

have a duty to respond as soon as reasonably possible to a report of stalking”).

But as the Attorney General points out in response—and as the district court

concluded—status as a peace officer is too generic to constitute a particular

enforcement connection. Colorado’s definition of “peace officer” is wide-ranging,

including not only police officers and sheriffs, but also reserve deputy town marshals,

certain employees in the department of revenue, wildlife officers, public-transit

officers, and Colorado rangers. See id. § 16-2.5-102. If these individuals’ general

duty to enforce the law based on their status as peace officers were sufficient to avoid

immunity, then any citizen could name any of them in an action challenging nearly

any Colorado statute. Simply put, the Ex parte Young exception would swallow the

rule of sovereign immunity.

8 Appellate Case: 25-1173 Document: 62-1 Date Filed: 07/24/2026 Page: 9

That’s expressly what the Supreme Court cautioned against in Ex parte Young,

explaining that if status as a “law officer[] of the state” were sufficient, “then the

constitutionality of every act passed by the legislature could be tested by a suit

against . . . the attorney general.” 209 U.S. at 157. To be sure, the Court in Ex parte

Young ultimately permitted the suit to proceed against the attorney general, but that

holding wasn’t based on general enforcement authority—it was based on the attorney

general’s actual conduct in commencing proceedings to enforce the challenged

statutes. Id. at 160–61. The same was true in Kitchen v. Herbert, where the attorney

general “demonstrated a ‘willingness to exercise’ [the] duty to ensure clerks”

enforced the challenged state marriage laws. 755 F.3d 1193, 1203 (10th Cir. 2014)

(quoting Chamber of Com. of U.S. v. Edmondson, 594 F.3d 742, 760 (10th Cir.

2010)). But here, Drexler points to no similar willingness on the part of the Attorney

General to enforce the protection-order or stalking statutes.

Thus, this case is the same as Free Speech Coalition, where we held that the

attorney general was not subject to suit under Ex parte Young because he had only

“general responsibility for enforcing . . . state laws,” which did not constitute

enforcement authority “in connection with the [challenged law].” Free Speech Coal.,

119 F.4th at 740. This was not an unusual result: Free Speech Coalition relied in part

on Hendrickson, where we likewise held that an attorney general was not a proper

defendant by way of his general enforcement power. Free Speech Coal., 119 F.4th at

739; see also Hendrickson, 992 F.3d at 967. Drexler seeks to distinguish Hendrickson

on the basis that the challenged law there, unlike the laws here, expressly placed

9 Appellate Case: 25-1173 Document: 62-1 Date Filed: 07/24/2026 Page: 10

enforcement authority in an independent board. But the definitive question under Ex

parte Young is whether the attorney general enforces or gives effect to the law, not

whether enforcement has been expressly placed elsewhere. 8 See Free Speech Coal.,

119 F.4th at 740 (“[T]he enforcement inquiry under Ex parte Young does not ask

whether enforcement has been expressly prohibited; it asks whether a defendant

enforces or gives effect to the law.”). We therefore reject Drexler’s peace-officer

argument. 9

For similar reasons, we also reject her invocation of the Attorney General’s

authority as the state’s chief legal representative. On this point, Drexler highlights

that the Attorney General defended the constitutionality of the stalking statute in

8 Drexler’s discussion of Peterson v. Martinez, 707 F.3d 1197 (10th Cir. 2013), is similarly unpersuasive. The statute there placed exclusive enforcement authority in sheriffs, thus preventing a lawsuit against the director of the department of public safety. Id. at 1202, 1206–07. To be sure, there’s no exclusivity provision at issue here, but that doesn’t answer the question of whether the Attorney General has the requisite enforcement connection to the challenged statutes. 9 Drexler relatedly emphasizes that the Attorney General can act as a prosecutor when so designated by the governor and that he has acted as such at least twice while this litigation has been pending—making him an enforcer of the criminal protection-order and stalking statutes. See Tooley, 549 P.2d at 776 (noting that attorney general can act as prosecutor under Colo. Rev. Stat. § 24-31-101, but only with “a command from the governor or the general assembly”). The Attorney General acknowledges that the governor appointed him to limited-term prosecutorial positions in two judicial districts for a total of five months in 2022 and 2023. But the Attorney General then correctly points out that such “historic appointments of limited duration do not suggest [he] has roving, state-wide prosecutorial authority.” State Aplee. Br. 23–24. Indeed, the Attorney General’s limited appointments bear little similarity to Ex parte Young or Kitchen, for the reasons already discussed. They likewise bear limited similarity to the District Attorney’s specific prosecutorial authority that subjects him to Drexler’s challenges to the criminal protection-order and stalking statutes. 10 Appellate Case: 25-1173 Document: 62-1 Date Filed: 07/24/2026 Page: 11

Counterman v. Colorado, 600 U.S. 66 (2023). But the Attorney General’s authority

“to be heard” in a criminal proceeding that includes “a claim alleging a state statute

or municipal ordinance is unconstitutional” does not constitute enforcement

authority. 10 Colo. Rev. Stat. § 16-9-501; see also Free State Coal., 119 F.4th at 740–

41 (rejecting similar argument under Utah law).

Next, in a single sentence quoting a newspaper article, Drexler insists that the

Attorney General has the required enforcement connection to the criminal protection-

order and stalking statutes because he purportedly assists with prosecutions

statewide. And Drexler’s complaint cites the Attorney General’s website, which

similarly notes that the office sometimes assists district attorneys. This does not

establish that the Attorney General “ha[s] assisted or currently assist[s] in giving

effect to the [challenged] law[s].” Prairie Band, 476 F.3d at 828 (cleaned up). As the

Attorney General points out in response, although district attorneys are authorized to

appoint special deputy district attorneys and attorneys general are eligible for such

appointments, the special deputy district attorneys join the district attorney’s office.

See Colo. Rev. Stat. § 20-1-201(1)(c). In other words, should the Attorney General be

appointed in this way, his function would be as a district attorney, not an attorney

general.

Last, Drexler contends that the Attorney General has the required enforcement

10 Nor is this case like Eaves v. Polis, where we held that the governor was a proper defendant in a suit challenging regulations and policies of the Colorado Department of Corrections because the department was “explicitly under the [g]overnor’s control.” 167 F.4th 1304, 1314 (10th Cir. 2026). 11 Appellate Case: 25-1173 Document: 62-1 Date Filed: 07/24/2026 Page: 12

connection to the appeal statutes 11 because he is charged with ensuring access to the

courts. This makes little sense. To the extent Drexler is suggesting that the Attorney

General can be sued here for failing to comply with his duty to ensure her access to

state court, that position fails for the reason offered by the district court: “the Ex

parte Young exception does not apply to asserted violations of state, rather than

federal, law.” App. vol. 12, 3193 (citing Pennhurst State Sch. & Hosp. v. Halderman,

465 U.S. 89, 102 (1984)). And to the extent she suggests that the Attorney General

has a duty to ensure that the statutes governing appeals are constitutional, that’s a

general responsibility, not “a particular duty to ‘enforce’ the statute in question.”

Free Speech Coal., 119 F.4th at 736 (quoting Prairie Band, 476 F.3d at 828). Thus,

we affirm the district court’s conclusion that the Attorney General is immune from

suit; he lacks the required enforcement connection to the challenged statutes to fall

within the Ex parte Young exception to the Eleventh Amendment.

C. State Court Administrator

Next, Drexler argues that the State Court Administrator enforces the civil

protection-order statutes and the attorney-fee statute. 12 The State Court Administrator

11 Although Drexler’s complaint alleged separate claims challenging (1) statutes governing appeals and (2) a statute and a rule governing reply briefs, her appellate brief groups these together under the category of “appeal statutes.” Aplt. Br. 13 (cleaned up). We follow her lead and adopt her shorthand. 12 By failing to provide adequate appellate argument, Drexler has waived on appeal any contention that the State Court Administrator enforces the appeal statutes or the criminal protection-order and stalking statutes: she provides three sentences on the former and none on the latter. See San Juan Citizens All. v. Stiles, 654 F.3d 1038, 1056 (10th Cir. 2011) (holding waived and declining to consider issue raised insufficiently in opening brief). 12 Appellate Case: 25-1173 Document: 62-1 Date Filed: 07/24/2026 Page: 13

is appointed by the Colorado Supreme Court; duties of the position include

“ensur[ing] proficiency in court reporting,” handling complaints about family-law

investigators, providing data to the legislature, and presenting statistics to the judicial

department about extreme-risk protection orders. Colo. Rev. Stat. § 13-3-101. As

particularly relevant here, the State Court Administrator “shall design and make

available to the courts copies of a standardized set of forms that shall be used in the

issuance and verification of service of civil protection orders.” Id. § 13-1-136(2). The

statute further explains that the State Court Administrator “shall design the

standardized set of forms in such a manner as to make the forms easy to understand

and use and in such a manner as will facilitate and improve the procedure for

requesting, issuing, and enforcing civil protection orders.” Id.

The district court ruled that the State Court Administrator did not enforce the

challenged statutes because they are an administrator who works to resolve disputes

between litigants. Cf. Whole Woman’s Health v. Jackson, 595 U.S. 30, 39 (2021)

(explaining that court clerks don’t usually “enforce state laws as executive officials

might; instead, they work to resolve disputes between parties”). The district court

also explained that “publish[ing] the form used to issue protection orders” is “an

administrative duty [that] does not imbue the State Court Administrator with

authority to issue a protection order, decide the grounds upon which one may issue,

or otherwise assist in giving effect to the civil protection-order statutes.” App. vol.

12, 3192 n.12.

On appeal, Drexler faults the district court for focusing on “publication” of the

13 Appellate Case: 25-1173 Document: 62-1 Date Filed: 07/24/2026 Page: 14

forms, emphasizing that designing and distributing the forms is aimed at allowing

enforcement and thus “giv[es] effect to the law[s],” specifically the civil protection-

order and the attorney-fee statutes. Prairie Band, 476 F.3d at 828 (cleaned up). But

the district court did not misunderstand. It correctly determined that merely creating

forms that individuals can use to obtain civil protection orders—forms that include a

check box for the award of attorney fees—is not sufficiently close to enforcement for

purposes of Ex parte Young. Compare, again, Free Speech Coalition, in which we

rejected the argument that a public-safety commissioner had an enforcement

connection to an age-verification statute simply because he oversaw a state program

that could theoretically provide a means of complying with the statute. 119 F.4th at

737–38. We distinguished this attenuated connection from Prairie Band, where the

defendants enforced vehicle-registration laws by managing registrations and issuing

tickets. See Free Speech Coal., 119 F.4th at 737 (discussing Prairie Band, 476 F.3d

at 820–21, 828). Any connection established by the State Court Administrator’s

creation of forms used for obtaining civil protection orders—or by working with law

enforcement to create such forms, Colo. Rev. Stat. § 13-1-136(3); or by providing

grants for funding legal representation to domestic-violence victims, id. § 13-3-

101(6)—is even more attenuated than in Free Speech Coalition.

Drexler also takes issue with the district court’s reliance on Whole Woman’s

Health, arguing that court clerks like the State Court Administrator can be proper

defendants when the claims concern administrative duties. In support, she cites

Courthouse News Service v. Gilmer, 48 F.4th 908 (8th Cir. 2022). There, when the

14 Appellate Case: 25-1173 Document: 62-1 Date Filed: 07/24/2026 Page: 15

state switched to an e-filing system, reporters could no longer access court filings on

the day they were filed. Id. at 910. The reporters asked a clerk and the state courts

administrator for same-day access but were rebuffed. Id. When they sued these court

clerks, the Eighth Circuit held that sovereign immunity did not bar the action,

explaining that unlike in Whole Woman’s Health, the injunction sought would not

restrain the state courts from acting but would instead direct the court clerks to carry

out their duties differently. Courthouse News Serv., 48 F.4th at 912. As this summary

should make obvious, the enforcement connection in Courthouse News Service was

direct: the clerks controlled access to filings, and the reporters wanted access. Id. at

912–13. Here, by contrast, Drexler seems to want the civil protection-order and

attorney-fee statutes declared unconstitutional, and the State Court Administrator has

nothing to do with enforcing those statutes. They merely create and provide forms

that permit private parties to obtain civil protection orders and attorney fees, which is

the “[u]sual[]” case of a court clerk “work[ing] to resolve disputes between parties.”

Whole Woman’s Health, 595 U.S. at 39. Thus, we affirm the district court’s ruling

that the State Court Administrator is entitled to Eleventh Amendment immunity.

D. Judicial Defendants

Finally, Drexler contends that defendant judicial officers have the required

enforcement connections to all challenged statutes. 13 The district court rejected this

13 Although it’s not entirely clear, we will assume for purposes of this discussion that Drexler named at least one judicial defendant in connection with each of the challenged statutes. We will further assume that declaratory relief against judges is available. 15 Appellate Case: 25-1173 Document: 62-1 Date Filed: 07/24/2026 Page: 16

position, explaining that “[t]he Ex parte Young exception generally does not apply to

state-court judges . . . because ‘those individuals do not enforce state laws as

executive officials might; instead, they work to resolve disputes between the

parties.’” App. vol. 12, 3185–86 (quoting Whole Woman’s Health, 595 U.S. at 39).

The district court further noted that per Ex parte Young, “an injunction against a state

court or its machinery would be a violation of the whole scheme of our

[g]overnment.” Id. at 3186 (cleaned up) (quoting Whole Woman’s Health, 595 U.S. at

39); see also Ex parte Young, 209 U.S. at 163 (“It is proper to add that the right to

enjoin an individual, even though a state official, from commencing suits under

circumstances already stated, does not include the power to restrain a court from

acting in any case brought before it, either of a civil or criminal nature . . . .”).

On appeal, Drexler accepts that merely adjudicating disputes between private

litigants doesn’t constitute “enforcement” under Ex parte Young. See Whole Woman’s

Health, 595 U.S. at 39. Instead, she argues that the judicial defendants enforce the

protection-order statutes because, in connection with adjudicating disputes between

private litigants, judges can initiate contempt proceedings. This is a nonsequitur. A

court’s power to hold in contempt anyone who fails to comply with its orders is not a

means of enforcing the challenged statutes; such power merely follows from the

issuance of the protection order, which is an adjudication, not enforcement. Further,

the judges’ “application of the [contempt] statute[, Colo. Rev. Stat. § 13-14-107,] is

part of their role as adjudicators, which does not render them ‘contestants in the

parties’ litigation.’” Cnty. Aplee. Br. 8 (quoting Whole Woman’s Health, 595 U.S. at

16 Appellate Case: 25-1173 Document: 62-1 Date Filed: 07/24/2026 Page: 17

40). 14 The same is true of the attorney-fee statute. And the appeal statutes likewise

are not enforced by judicial officers; these are procedural “rules for the orderly

administration of cases and appeals” that simply assist judges in neutrally

adjudicating disputes between parties. State Aplee. Br. 42.

As the county judges point out, this case is nothing like Supreme Court of

Virginia v. Consumers Union of United States, Inc., 446 U.S. 719 (1980), or

Georgevich v. Strauss, 772 F.2d 1078 (3d Cir. 1985), both of which Drexler cites.

The defendant court in the former case could be sued because the action challenged

professional-responsibility rules that the court could enforce against attorneys. See

Sup. Ct. of Va., 446 U.S. at 723–24. And in the latter, the defendant judges enforced

the challenged parole statutes because they had some authority over parole decisions.

See Georgevich, 772 F.2d at 1087–88. These examples serve only to highlight that

the judicial defendants here do nothing to enforce the challenged statutes. Indeed, an

order enjoining the judicial defendants from enforcing these statutes would constitute

nothing more than “restrain[ing] a court from acting,” which Ex parte Young does not

permit. 209 U.S. at 163. We therefore affirm the district court’s conclusion that the

14 Drexler’s attempt to distinguish Whole Woman’s Health fails. She insists that the defendant judge there lacked an enforcement connection because the statute exclusively limited enforcement to private parties, and that was why the judge couldn’t initiate prosecution or civil-enforcement actions and did not enforce. See Whole Woman’s Health, 595 U.S. at 35–36 (explaining that “the law generally does not allow state officials to bring criminal prosecutions or civil enforcement actions” and instead provides for enforcement by private civil action). But the exclusivity of the remedy in the statute was not the basis for the holding in that case—the critical point was that the judge did not share any enforcement authority. See id. at 39. 17 Appellate Case: 25-1173 Document: 62-1 Date Filed: 07/24/2026 Page: 18

judicial defendants are entitled to Eleventh Amendment immunity because they don’t

enforce any of the challenged statutes.

In sum, the Attorney General, the State Court Administrator, and the judicial

defendants are immune from suit, so the district court correctly dismissed the claims

against them for lack of jurisdiction. Only Drexler’s challenges to the criminal

protection-order and stalking statutes, asserted against the District Attorney, survive

the Eleventh Amendment inquiry.

II. Standing

To successfully assert such challenges, Drexler must establish that she has

standing to do so. The standing requirement comes from Article III of the

Constitution. Peck, 43 F.4th at 1129. The plaintiff bears the burden of establishing

the three elements required for Article III standing: “(1) an ‘injury in fact’ that is

‘concrete and particularized’ and ‘actual or imminent,’ (2) that . . . is ‘fairly traceable

to the challenged action of the defendant,’ and (3) that . . . is likely to be ‘redressed

by a favorable decision’ of the court.” Id. (cleaned up) (quoting Lujan v. Defs. of

Wildlife, 504 U.S. 555, 560–61 (1992)). In the context of Drexler’s First Amendment

challenge to these statutes, the parties agree that showing injury requires “alleging ‘a

credible threat of future prosecution’ plus an ‘ongoing injury resulting from the

statute’s chilling effect on [the plaintiff’s] desire to exercise [their] First Amendment

rights.’” Id. (quoting Ward v. Utah, 321 F.3d 1263, 1267 (10th Cir. 2003)). Stated

slightly differently, when a plaintiff claims a chilling effect, they must present:

(1) evidence that in the past they have engaged in the type of speech

18 Appellate Case: 25-1173 Document: 62-1 Date Filed: 07/24/2026 Page: 19

affected by the challenged government action; (2) affidavits or testimony stating a present desire, though no specific plans, to engage in such speech; and (3) a plausible claim that they presently have no intention to do so because of a credible threat that the statute will be enforced.

Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1089 (10th Cir. 2006) (en

banc). To show a credible threat, a plaintiff needs to show “an objectively justified

fear of real consequences.” Peck, 43 F.4th at 1132 (quoting Winsness v. Yocom, 433

F.3d 727, 732 (10th Cir. 2006)). At least three factors guide this analysis: past

enforcement against the same conduct; whether there is broad authority to initiate

charges; and state disavowal of “future enforcement.” Id. (quoting 303 Creative LLC

v. Elenis, 6 F.4th 1160, 1174 (10th Cir. 2021)).

Applying these principles here, the district court concluded that Drexler could

not show a credible threat of prosecution. Overarchingly, it reasoned that she

couldn’t establish a credible threat that the criminal protection-order statute would be

enforced against her because, as we noted in her prior appeal, the protection order by

its own terms does not restrict her First Amendment rights. See Drexler, 2022 WL

17333076, at *2. Moreover, the district court explained, the stalking statute can be

enforced only by the District Attorney, who has declared that he would not prosecute

Drexler for First Amendment activities. Drexler challenges both conclusions on

appeal.

Drexler’s first argument is limited to the protection-order statute. She contends

that the district court erred in relying on our ruling in her prior appeal to find no

credible threat of prosecution. According to Drexler, that prior ruling “is irrelevant to

19 Appellate Case: 25-1173 Document: 62-1 Date Filed: 07/24/2026 Page: 20

credible fear” because standing is assessed at the time a claim is asserted, and she

asserted this claim before our prior ruling. Aplt. Br. 42. To be sure, we do typically

determine standing “at the time the action is brought, and we generally look to when

the complaint was first filed, not to subsequent events.” Mink v. Suthers, 482 F.3d

1244, 1253–54 (10th Cir. 2007) (cleaned up). But even so, we also consider “the

amended complaint in assessing a plaintiff’s claims, including the allegations in

support of standing.” Id. at 1254. Thus, in Mink, we concluded that the plaintiff

lacked standing where he showed a credible threat at the time he first filed his

complaint but no longer could at the time of his amended complaint, due to an

intervening prosecutorial disavowal. Id. at 1254–55. So there’s no issue with

considering whether a credible threat existed at the time of Drexler’s amended

complaint, which she filed in April 2024, well after this court’s November 2022

ruling that the protection order didn’t restrict her First Amendment rights.

Drexler next faults how we characterized the protection order in our prior

decision. As an initial matter, it’s not clear whether we are free to interpret the

protection order differently than we did before; according to the District Attorney,

our prior characterization is the law of the case. But we need not determine whether

we’re bound by the prior decision because that decision is simply correct. See

Drexler, 2022 WL 17333076, at *2 (“The protection order itself didn’t say anything

that would restrict . . . Drexler’s right to speech.”). The protection order states that

Drexler “shall not contact, harass, stalk, injure, intimidate, threaten, touch, sexually

ass[a]ult, abuse, or molest” the protected individuals. App. vol. 7, 1964. According to

20 Appellate Case: 25-1173 Document: 62-1 Date Filed: 07/24/2026 Page: 21

Drexler, this list of verbs means that the protection order does more than “merely

forbid[] [her] from contact,” which is what we concluded in the prior appeal (relying

on a Colorado state court’s view). Drexler, 2022 WL 17333076, at *2 (quoting

Drexler v. Spahn, No. 2020CV30610, slip op. at 3 (Denver Dist. Ct. Aug. 16, 2020)

(available at App. vol. 2, 415)). But we did not say only that the protection order

merely forbids contact—we quoted the prior state-court decision that “‘nothing in the

protection order prohibits . . . Drexler from publishing written materials’ or

‘otherwise intrudes on her protected First Amendment activities.’” Id. (cleaned up)

(quoting Drexler, No. 2020CV30610, slip op. at 3 (available at App. vol. 2, 415)).

And that’s plainly accurate, looking at the text of the protection order itself.

So, returning to the overall idea of “credible threat,” the key question is

whether Drexler’s fear of being criminally prosecuted for violating the protection

order by exercising her First Amendment rights is “an objectively justified fear of

real consequences.” Peck, 43 F.4th at 1132 (quoting Winsness, 433 F.3d at 732).

Given that the protection order by its own terms doesn’t restrict Drexler’s First

Amendment rights—and that two courts have expressly said as much—her fear of

being criminally prosecuted for violating the protection order in a way that chills her

First Amendment rights is not objectively reasonable.

Peck’s credible-threat factors support this common-sense conclusion—and

here, we expand our discussion to consider both the protection-order statute and the

stalking statute. First, there is no “past enforcement against the same conduct.” Id.

(quoting 303 Creative, 6 F.4th at 1174). At best, Drexler seems to suggest that the

21 Appellate Case: 25-1173 Document: 62-1 Date Filed: 07/24/2026 Page: 22

protection order itself was imposed in retaliation for her protected First Amendment

speech and petitioning activities. But even if we were to accept that as true, it was the

result of a private individual seeking a protection order against Drexler, not the result

of an action taken by the District Attorney, who is the only defendant on this claim.

And the standing inquiry, including this credible-threat aspect, is defendant-specific.

Cf. Santa Fe All. for Pub. Health & Safety v. City of Santa Fe, 993 F.3d 802, 813

(10th Cir. 2021) (noting that we address standing “claim-by-claim” and that injury

must be “fairly traceable to the challenged conduct of the defendant”).

As to the “authority to initiate charges” for a criminal violation of a protection

order or for stalking, Peck, 43 F.4th at 1132 (quoting 303 Creative, 6 F.4th at 1174),

Drexler asserts that the district court wrongly concluded that these statutes can be

enforced by only the District Attorney. In support, she points to the authority of

peace officers—a broad category, as already discussed—to arrest individuals on

suspicion of violating a protection order or of stalking and cites Winsness for the

proposition that “credible fear is not limited to fear of prosecution.” Aplt. Br. 44.

This twists the legal standard, which requires showing “a ‘credible threat of

prosecution,’” Winsness, 433 F.3d at 732 (emphasis added) (quoting Ward, 321 F.3d

at 1267), not just “credible fear,” Aplt. Br. 44. The phrasing is important; the

credible-threat requirement exists because “[t]he mere presence . . . of an

unconstitutional statute, in the absence of enforcement or credible threat of

enforcement, does not entitle anyone to sue.” Winsness, 433 F.3d at 732. Thus, the

mere fact that a peace officer could arrest Drexler on suspicion of violating the

22 Appellate Case: 25-1173 Document: 62-1 Date Filed: 07/24/2026 Page: 23

protection order or the stalking statute—or literally any other criminal statute, for

that matter—is not sufficient to establish that anyone other than the District Attorney

can prosecute her for violating those statutes. See Peck, 43 F.4th at 1132 (weighing

this factor against plaintiff where only prosecutors could bring charges). Indeed, that

only the District Attorney enforces the criminal statutes is the very reason the District

Attorney is the only remaining defendant after the Eleventh Amendment analysis.

The final factor is “whether the state disavowed future enforcement.” Id.

(quoting 303 Creative, 6 F.4th at 1174). The District Attorney did so here, and

Drexler’s attempts to find fault with that disavowal are unpersuasive. She first insists

that the District Attorney’s declaration was filed too late to be relevant to standing,

which is assessed as of the date the complaint was filed. But as already noted, courts

can also look to amended complaints when assessing standing. See Mink, 482 F.3d at

1254. And Drexler’s fourth amended consolidated complaint postdated the District

Attorney’s declaration. To be sure, the prosecutorial disavowal in Mink took place

“immediately after the lawsuit was filed” and “well before” defendants moved to

dismiss. Id. at 1254–55. Drexler says neither circumstance existed here and suggests

that the disavowal is unpersuasive because it’s a product of litigation. But Drexler

did not name the District Attorney as a defendant until her third amended complaint,

filed in August 2023. The District Attorney then filed the declaration about three

months later, attached to a motion to dismiss. There’s nothing dilatory or suspect

23 Appellate Case: 25-1173 Document: 62-1 Date Filed: 07/24/2026 Page: 24

about this sequence of events. 15

Drexler next suggests that the declaration did not offer a complete disavowal.

She facetiously states that the declaration didn’t disavow prosecution under the

stalking statute, even though it plainly encompasses both the criminal protection-

order and stalking statutes. The declaration states that the District Attorney would not

prosecute Drexler under the statutes solely for “publish[ing] a written work or

read[ing] from a written work at a location where . . . the . . . protected parties were

not present.” App. vol. 6, 1692. To be sure, this disavowal is somewhat more limited

than those in Winsness and D.L.S., which involved flag-desecration and sodomy

statutes that were very likely facially unconstitutional under intervening binding case

law. See Winsness, 433 F.3d at 733, 736; D.L.S., 374 F.3d at 974–75. So the

disavowals there were complete in that the statutes simply would not be enforced at

all. But that doesn’t mean the disavowal here is ineffective. To the contrary, it

indicates that the District Attorney “ha[s] no intent to prosecute . . . Drexler for any

activity she engages in that is protected by the First Amendment.” App. vol. 6, 1692.

15 Drexler relies on In re Atlas Van Lines, Inc., 209 F.3d 1064 (8th Cir. 2000), for the argument that we should not reference documents filed after her third amended complaint to assess standing. But the argument fails. Atlas Van Lines was about involuntary amendments and removal, not standing. Id. at 1067 (“[W]hen a district court orders a party to amend its complaint or when the decision to amend is otherwise involuntary, the question of proper removal must be answered by examining the original rather than the amended complaint.”). Moreover, Drexler added the District Attorney in her third amended complaint, which she filed voluntarily, not in her fourth amended consolidated complaint, which she filed at the court’s order. 24 Appellate Case: 25-1173 Document: 62-1 Date Filed: 07/24/2026 Page: 25

That’s sufficient in these circumstances. 16

Finally, Drexler faults the newly elected District Attorney for (1) not affirming

the declaration in the district court upon his substitution on February 25, 2025, about

a month before the district court’s March 31, 2025 ruling and (2) submitting a new

declaration on appeal, attached to his response brief. Neither point is meaningful or

determinative. As we noted in Mink, even though a disavowal “conceivably might not

bind other district attorneys, . . . the ‘possibility’ of future enforcement need not be

‘reduced to zero’ to defeat standing.” 482 F.3d at 1255 (quoting Winsness, 433 F.3d

at 733). So the newly elected District Attorney’s failure to immediately affirm the

declaration is irrelevant. And we would reach the same conclusion even in the

absence of his newly filed additional declaration. 17 The existing declaration is

sufficient to establish that “the state disavowed future enforcement.” Peck, 43 F.4th

at 1132 (quoting 303 Creative, 6 F.4th at 1174).

In sum, none of the Peck factors support Drexler, and she can’t establish a

credible threat that the criminal protection-order and stalking statutes will be

16 In a letter of supplemental authority, Drexler invokes Khalil v. Trustees of Columbia University, No. 25-cv-2079, 2026 WL 775813 (S.D.N.Y. Mar. 19, 2026). There, the Southern District of New York ruled that plaintiff students had standing to assert a pre-enforcement challenge to the university’s revised antidiscrimination policy, noting that the policy’s express carve-out for free speech did not negate a credible fear of enforcement. Id. at *6. This makes sense, since a contrary result would allow a legislature to insulate laws from pre-enforcement challenges by including similar boilerplate. Drexler’s case is different: it doesn’t involve a carve- out written into the law itself, but instead a specific declaration from the District Attorney stating that he won’t prosecute Drexler for writing or performing her work. 17 For this reason, we reject Drexler’s reply-brief request to strike the new declaration. 25 Appellate Case: 25-1173 Document: 62-1 Date Filed: 07/24/2026 Page: 26

enforced against her in a manner that chills her First Amendment rights. We affirm

the district court’s ruling that Drexler lacks standing to assert her challenges to the

criminal protection-order and stalking statutes.

III. Procedural Challenges

As a final matter, we briefly address two procedural points regarding Drexler’s

inability to file a preliminary-injunction motion and seek discovery into her John Doe

defendant. The first ruling implicates mootness, which is an issue we review de novo.

See Robert v. Austin, 72 F.4th 1160, 1163 (10th Cir. 2023). The second is a more

traditional discovery ruling, which we review for abuse of discretion. See Sizova v.

Nat’l Inst. of Standards & Tech., 282 F.3d 1320, 1326 (10th Cir. 2002).

By way of background, Drexler filed two motions below regarding preliminary

injunctive relief; both sought to exceed the word limitation for a preliminary-

injunction motion and were filed after the magistrate judge stayed merits briefing.

The first motion was captioned “Motion for Leave to Exceed Word Limitation in

Motion for Preliminary Injunction (in the Alternative to Merits Briefing)” and sought

“leave to exceed the word limitation . . . for a motion for preliminary injunction, to

be filed in the alternative to the previously[ ]ordered merits briefing.” App. vol. 10,

2760, 2765. She then filed a second such motion, explaining that she planned to seek

a preliminary injunction because the magistrate judge had stayed merits briefing

pending rulings on defendants’ motions to stay and dismiss:

Given the new delay in merits briefing and the consequent delay in the adjudication of the constitutional merits of the statutes, and to remedy the impermissibl[e] First Amendment chilling caused thereby to herself

26 Appellate Case: 25-1173 Document: 62-1 Date Filed: 07/24/2026 Page: 27

and others, [Drexler] intends to request relief by motion for preliminary injunction against the non[]judicial defendants, in the alternative to the previously[ ]ordered merits briefing.

Id. at 2778. So, when the district court overruled the magistrate judge’s briefing stay

and ordered merits briefing from the nonjudicial defendants, it denied as moot

Drexler’s requests to file a preliminary-injunction motion.

Drexler thereafter moved to obtain merits briefing from the State Court

Administrator, as well. In so doing, she acknowledged that her first motion regarding

a preliminary-injunction motion was phrased in the alternative but disputed that her

second motion continued that trend. In any event, she “agree[d] that merits briefing

provides an adequate alternative basis for [the district court] to rule on the

constitutional merits of the statutes.” App. vol. 11, 2851 n.2. And she requested, “[i]n

the alternative to merits briefing” from the State Court Administrator, “that she be

permitted limited discovery to determine the identity of any ‘John Doe’ state official

who may be properly named to defend the challenged statutes.” Id. at 2855. The

district court denied the motion for merits briefing from the State Court

Administrator as moot after it dismissed the claims against that defendant. And it

implicitly denied the request for John Doe discovery in the same order, when it

dismissed Drexler’s claims against John Doe because she’d had plenty of time to

seek out the proper defendants.

Drexler doesn’t offer much argument for why the district court erred in any of

these rulings. She suggests that she would have been entitled to an evidentiary

hearing on a preliminary-injunction motion, but such hearings aren’t guaranteed. See

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Jackson v. Fair, 846 F.2d 811, 819 (1st Cir. 1988) (noting that Federal Rule of Civil

Procedure 65, which governs preliminary injunctions, “does not give a plaintiff an

unqualified right to an evidentiary hearing”). Nor does she advance any argument for

why her request to file a preliminary-injunction motion, phrased in the alternative,

wasn’t mooted by the district court ordering her requested merits brief.

She likewise fails to grapple with the district court’s ruling implicitly denying

John Doe discovery. Drexler does not explain why the district court’s rationale—that

she’d had ample time and opportunity to identify the proper defendants and amend

her complaint—was an abuse of discretion. And we don’t see how it could be, given

that the district court offered this explanation four years into this litigation and on

Drexler’s fourth amended complaint. 18 We therefore see no reversible procedural

errors on this record.

Conclusion

Most of Drexler’s claims are barred by Eleventh Amendment immunity that

cannot be evaded by recourse to Ex parte Young because most of the named

defendants don’t enforce most of the challenged statutes. Drexler’s remaining claims

fail for lack of standing because she can’t show a credible threat of enforcement. So

18 Drexler incorrectly asserts that the district court stayed discovery but permitted the Attorney General and District Attorney to request it. What the district court said, in an order directing those two defendants to file merits briefs, was that if they “believe[d] some sort of discovery is necessary to resolve the claims against them, they may raise that issue in their response briefs.” App. vol. 10, 2825 n.4. We see nothing improper in that comment. 28 Appellate Case: 25-1173 Document: 62-1 Date Filed: 07/24/2026 Page: 29

we affirm the district court’s order dismissing Drexler’s complaint for lack of

jurisdiction. And we reject her meritless procedural challenges.

Entered for the Court

Nancy L. Moritz Circuit Judge