The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY May 1, 2025
2025COA44
No. 24CA0357, Marquez v. Schaefer— Firearms — Unlawful Acts — Misdemeanor Crime of Domestic Violence — Conviction for Violating a Municipal Ordinance
As a matter a first impression, a division of the court of
appeals concludes that 18 U.S.C. § 921(a)(33)(A)(i)’s definition of a
“misdemeanor crime of domestic violence” includes a conviction for
domestic violence assault under a municipal ordinance that
authorizes a potential sentence of up to one year in jail, even
though the municipal code does not expressly classify the offense as
a misdemeanor. Accordingly, the division concludes that the
Colorado Bureau of Investigation did not err by denying the
plaintiff’s application to purchase a firearm based on their
municipal domestic violence assault conviction. COLORADO COURT OF APPEALS 2025COA44
Court of Appeals No. 24CA0357 City and County of Denver District Court No. 23CV32928 Honorable Andrew P. McCallin, Judge
Andrew Marquez,
Plaintiff-Appellant,
v.
Chris Schaefer, in his official capacity as Director and Colorado Bureau of Investigation,
Defendants-Appellees.
ORDER AFFIRMED
Division VI Opinion by JUDGE SCHUTZ Welling and Kuhn, JJ., concur
Announced May 1, 2025
Allen Vellone Wolf Helfrich & Factor PC, Jackson K. Gardner, Jason R. Wareham, Denver, Colorado, for Plaintiff-Appellant
Philip J. Weiser, Attorney General, Christopher Diedrich, Senior Assistant Attorney General, Denver, Colorado, for Defendants-Appellees ¶1 Plaintiff, Andrew Marquez, appeals the district court’s order
dismissing the complaint that he brought pursuant to C.R.C.P.
106(a)(4) against defendant, the Colorado Bureau of Investigation
(CBI),1 after it denied his application to purchase a firearm because
of his criminal conviction under a municipal ordinance. Marquez
contends that his domestic violence assault conviction under a
Denver municipal ordinance should not have precluded him from
purchasing a firearm. The resolution of this question requires us to
determine, for the first time in a published Colorado opinion,
whether an act of domestic violence that results in a conviction for
violating a municipal ordinance may constitute a “misdemeanor
under . . . local law” as used in 18 U.S.C. § 921(a)(33)(A)(i), thereby
precluding the convicted person from buying a firearm. The district
court answered this question affirmatively. We do too and therefore
affirm.
I. Statutes at Issue
¶2 At the outset, we address a discrepancy in the description of
the statutes at issue in this litigation. The CBI’s letter denying
1 Marquez sued the CBI and its director, Chris Schaefer, in his
official capacity; we collectively refer to the defendants as the CBI.
1 Marquez’s administrative appeal stated the CBI denied his firearm
application based on 18 U.S.C. § 922(g)(9) (prohibiting individuals
convicted of a misdemeanor crime of domestic violence from
receiving “any firearm or ammunition which has been shipped or
transported in interstate or foreign commerce”). Throughout the
district court litigation, however, the CBI relied on and argued that
its denial was authorized by § 922(d)(9) (prohibiting the sale of “any
firearm or ammunition” to any person who “has been convicted in
any court of a misdemeanor crime of domestic violence”). The
district court also referred to § 922(d)(9) in its order dismissing the
complaint.
¶3 In Marquez’s opening brief on appeal in this court, his counsel
refers primarily to § 922(g)(9). In its answer brief, the CBI relies on
§ 922(d)(9). In his reply, however, Marquez changes course and
refers exclusively to § 922(d)(9).
¶4 Ultimately, whether § 922(d)(9) or § 922(g)(9) barred Marquez’s
effort to purchase a firearm depends on whether his municipal
ordinance conviction constitutes a misdemeanor under local law, as
set forth in § 921(a)(33)(A)(i). Neither party argues that our
interpretation of that section should be different under § 922(d)(9)
2 as compared to § 922(g)(9). Therefore, for clarity we use “§ 922” to
encompass both § 922(d)(9) and § 922(g)(9).
II. Background and Procedural History
A. Incident and Conviction
¶5 In 1997, Marquez and his wife got into an argument during
which Marquez repeatedly struck her forehead and also
inadvertently injured their minor child when he slammed a door
during the outburst.
¶6 Marquez was arrested and charged in the Denver County
Court2 with assault, disturbing the peace, and wrongs to minors.
He eventually pleaded guilty to disturbing the peace and assault,
admitting that the assault charge was predicated on an act of
domestic violence.3 In 1997, the assault conviction carried a
potential sentence of up to one year in jail and fines of up to $999,
but the offense was otherwise unclassified. See Denver Rev. Mun.
Code § 1-13(a) (1997).
2 The Denver County Court is both a municipal and state court.
The parties occasionally refer to it as either the “municipal court” or the “county court.” We refer to it as the county court. 3 The City Attorney’s Office dismissed the wrongs to minors charge.
3 ¶7 The court sentenced Marquez to probation, anger management
and substance abuse classes, drug and alcohol testing, and useful
public service. Marquez successfully completed probation without
issue.
B. County Court Hearing and CBI Appeal
¶8 In 2021, Marquez filed a Crim. P. 35(c) petition in the Denver
District Court based on newly discovered evidence and alleging an
unconstitutional plea. At a hearing on his petition, Marquez
conceded that the underlying conviction was based on a municipal
ordinance violation rather than a violation of a state statute. Based
on this concession, Marquez converted his Crim. P. 35(c) petition
into a motion to withdraw his plea under C.M.C.R. 235, and the
district court transferred the matter to the county court, where it
was set for a hearing on August 1, 2023.
¶9 A month before the hearing, Marquez applied to purchase a
firearm. The CBI Firearms InstaCheck Unit, which conducts
background checks for firearm purchases in Colorado, denied his
application due to his 1997 municipal domestic violence assault
conviction. On July 11, Marquez timely filed an administrative
appeal to the CBI using its online portal. That same day, a CBI
4 representative messaged Marquez’s counsel through the portal and
asked him to review statutory changes made to the federal Violence
Against Women Act. Responding through the portal, counsel
supplemented the appeal to include the argument that a conviction
under a municipal ordinance does not disqualify Marquez from
purchasing a firearm and that § 921’s amended language should
not be applied retroactively to his conviction. The CBI
representative did not respond.
¶ 10 On August 1, after the hearing, the county court denied
Marquez’s motion to withdraw his plea. The court concluded that
his request to withdraw his guilty plea was time barred. The court
also rejected Marquez’s argument that he had not been adequately
advised about the collateral consequences of his guilty plea,
including its impact on his ability to purchase a firearm. The court
then engaged in the following exchange with Marquez’s counsel:
[Court]: But let’s say that it’s not time[ ] barred. . . . So the [c]ourts wouldn’t be obligated to advise Mr. Marquez about the collateral consequences, because that law didn’t exist at the time.
And second, I don’t believe, by definition, that this qualifies as a misdemeanor. It’s an unclassified Municipal Ordinance violation.
5 ....
[Counsel]: Okay. And to clarify the portion in the [r]uling you already made, Your Honor, so you would not consider this a misdemeanor conviction within your court? . . .
[Court]: I would not, based on the Federal definition of misdemeanor that I read.
[Counsel]: Okay. Thank you, Your Honor. . . .
[Court]: . . . [A]s a Public Defender, doing criminal defense in Denver[,] I don’t recall anyone referring to Municipal Ordinance violations as misdemeanors.
¶ 11 Shortly after the hearing, Marquez’s counsel used the online
messaging portal to advise the CBI of the county court’s statements
and later provided the CBI with a transcript of the hearing.
¶ 12 On September 6, the CBI denied Marquez’s appeal, citing
§ 921(a)(33)(A)(i)’s definition of a “misdemeanor crime of domestic
violence.” The CBI reasoned that Marquez’s municipal domestic
violence assault conviction constituted a misdemeanor under local
law, and therefore his purchase of a firearm was precluded by
§ 922.
C. District Court Review
¶ 13 Marquez timely filed a C.R.C.P. 106 complaint in the district
court, requesting that it review and overturn the CBI’s denial of his
6 firearm application. As relevant here, Marquez asserted that the
CBI acted contrary to the Colorado Administrative Procedure Act by
violating his constitutional right to bear arms and otherwise acting
contrary to law.4 See § 24-4-106(7)(b)(III), (IX), C.R.S. 2024
(requiring reversal of an agency action that is contrary to a
constitutional right or otherwise contrary to law).
¶ 14 The CBI moved to dismiss Marquez’s claims under C.R.C.P.
12(b)(5), arguing that the plain language of § 921(a)(33)(A)(i) and
§ 922 includes a conviction for violating a municipal ordinance if
the crime is predicated on an act of domestic violence.
¶ 15 In response, Marquez argued that Denver, as a home rule city,
has the authority to classify its municipal ordinance violations, and
because the municipal code does not expressly classify domestic
violence assault as a misdemeanor, the CBI erred by concluding
that the conviction prohibited him from purchasing a firearm. After
the CBI filed its reply, Marquez filed a motion requesting that the
district court certify the administrative record.
4 We do not address Marquez’s remaining claims because they are
not before us.
7 ¶ 16 On January 12, 2024, without addressing the motion to certify
the record, the district court granted the CBI’s motion to dismiss.
The district court concluded that Marquez’s claims presented a
question of law that could be resolved by looking to the plain
language of § 921(a)(33)(A)(i) and § 922. Reasoning that the
statutes encompassed criminal convictions for violations of
municipal ordinances, the district court dismissed Marquez’s
¶ 17 Marquez timely appealed the district court’s order. He argues
that the district court reversibly erred by (1) summarily dismissing
his complaint without certifying the administrative record; (2)
concluding that his municipal ordinance conviction constituted a
misdemeanor under local law; and (3) summarily dismissing his
complaint without addressing his constitutional arguments. We
address these contentions in turn.
III. Dismissal in the Absence of the Administrative Record
¶ 18 Marquez first argues that the district court erred by
summarily dismissing his complaint without first certifying the
administrative record because the record contained information
that materially affected the outcome of his appeal. We disagree.
8 A. Standard of Review
¶ 19 We review a district court’s application of the Colorado Rules
of Civil Procedure de novo. Defend Colo. v. Polis, 2021 COA 8, ¶ 47.
Similarly, “[w]e review de novo the district court’s interpretations of
statutes and municipal ordinances.” Asphalt Specialties, Co. v. City
of Commerce City, 218 P.3d 741, 745 (Colo. App. 2009).
B. Application
¶ 20 Marquez’s motion to certify the record designated, among
other documents, the CBI’s policies and internal communications
concerning applications to purchase a firearm, generally, and
Marquez’s application, specifically. Postulating that such
documents must exist, he asserts that they would be relevant to the
issues raised in his complaint. Thus, he argues, the district court
erred by ruling on the motion to dismiss without first certifying the
record.
¶ 21 The CBI argues that Marquez invited any error because he did
not file a motion to certify with his complaint but waited until after
9 the motion to dismiss was fully briefed.5 See C.R.C.P. 106(a)(4)(III)
(“If the complaint is accompanied by a motion and proposed order
requiring certification of a record, the court shall order the
defendant . . . to file with the clerk on a specified date, the
record . . . with a certificate of authenticity.”). Alternatively, the CBI
argues that the district court properly decided the motion to
dismiss without certifying the record because the complaint only
presented questions of law that could be resolved without reference
to the record.
¶ 22 We agree that the district court properly addressed the CBI’s
motion to dismiss without first certifying the administrative record
because the interpretation of the relevant municipal ordinances and
statutes presented issues of law that could be resolved without
reference to the record of the administrative proceedings.
¶ 23 The purpose of C.R.C.P. 12(b)(5) is to permit the summary
dismissal of claims that lack legal merit. Dorman v. Petrol Aspen,
Inc., 914 P.2d 909, 911 (Colo. 1996). In the context of C.R.C.P.
5 Although Marquez did not file a separate motion to certify the
record with his complaint, we note that the complaint itself includes a lengthy paragraph entitled “Designation of Record.”
10 106(a)(4), the district court may dismiss a claim without
consideration of the record if the issue presented is one of law,
rather than one of fact. Defend Colo., ¶¶ 56-57. All of Marquez’s
claims depended on the interpretation and application of federal
statutes and Denver municipal ordinances. Thus, the issues
presented were ones of law, not fact.
¶ 24 We are not persuaded by Marquez’s conclusory allegations
that there must be policies, training materials, guidelines, or legal
memoranda discussing the interpretation and application of the
controlling federal statutes. In the first instance, Marquez points to
no specific documents that fit these broad descriptions, much less
documents that were provided to the CBI for its consideration in
resolving this appeal. The purpose of certifying an administrative
record is to allow the reviewing court to examine the specific
evidence that was provided to the agency for the court’s
consideration in its resolution of the appeal, not to potentially
discover documents that the movant speculates may exist. See
C.R.C.P. 106(a)(4)(IV) (the purpose of designating the record is to
obtain the necessary documents essential to a complete
understanding of the controversy).
11 ¶ 25 Moreover, even if such documents existed, they would be
irrelevant to the interpretation of the subject ordinances or statutes.
The district court’s interpretation of the plain language of a statute
or ordinance, like ours, is controlled by language used in the
statute, not by an agency’s internal memoranda or legal opinions
interpreting the law. Int’l Truck & Engine Corp. v. Colo. Dep’t of
Revenue, 155 P.3d 640, 642 (Colo. App. 2007) (“We need not defer
to the agency’s interpretation unless a statutory term is reasonably
susceptible of more than one interpretation, and the agency has
employed its expertise to select a particular interpretation.”); see
also Loper Bright Enters. v. Raimondo, 603 U.S. 369, 412 (2024)
(Federal courts “must exercise their independent judgment in
deciding whether an agency has acted within its statutory
authority.”). Thus, the district court did not err by deciding these
issues without first certifying the administrative record.
¶ 26 Having concluded that the district court did not err by
deciding the motion to dismiss without certifying the record, we do
not address the CBI’s invited error argument.
12 IV. Statutory Interpretation
¶ 27 Marquez next contends that the district court reversibly erred
by concluding that his domestic violence assault conviction was a
misdemeanor under § 921(a)(33)(A)(i) and § 922. The CBI argues
that the statutes clearly encompass a violation of local law,
including a conviction for violating a municipal ordinance, if the
factual basis of the crime includes an act of domestic violence. We
conclude that the district court correctly determined that Marquez’s
domestic violence assault conviction was within the ambit of
§ 921(a)(33)(A)(i) and § 922.
A. Standard of Review and Applicable Law
¶ 28 The meaning of a statutory term presents a question of law
that we review de novo. People v. Martinez, 70 P.3d 474, 477 (Colo.
2003). When construing a statute, we seek to effectuate the
enacting body’s intent. Galvan v. Spanish Peaks Reg’l Health Ctr.,
98 P.3d 949, 950 (Colo. App. 2004). “To determine legislative
intent, we must look primarily to the language of the statute itself
and then give effect to the statutory terms in accordance with their
commonly accepted meaning.” Id. We read the statute as a whole
13 and give harmonious and sensible effect to all its parts, when
possible. Martin v. People, 27 P.3d 846, 851 (Colo. 2001).
¶ 29 When a legislative body amends a statute, we presume it
intended the amendment to effectuate a change. Corsentino v.
Cordova, 4 P.3d 1082, 1091 (Colo. 2000). “This presumption can
be rebutted by showing that the legislature only intended to clarify
an ambiguity with the amendment.” Id.
B. Preservation
¶ 30 To properly preserve an argument for appeal, a party must
present “the sum and substance of the argument” to the district
court. Gebert v. Sears, Roebuck & Co., 2023 COA 107, ¶ 25
(citation omitted). The CBI contends that Marquez failed to
preserve his argument that his firearm purchase was not barred by
the current version of § 921(a)(33)(A)(i) as applied to § 922. We
disagree.
¶ 31 In the messaging portal, Marquez requested relief based on the
Tenth Circuit Court of Appeals’ decision in United States v. Pauler,
857 F.3d 1073, 1078 (10th Cir. 2017), arguing that § 922’s bar does
not apply to convictions under a municipal ordinance. In Pauler,
the court interpreted the pre-2022 version of § 921(a)(33)(A)(i)
14 (2018) (version effective until Oct. 1, 2022), which defined a
misdemeanor conviction for domestic violence as misdemeanors
“under Federal, State, or Tribal law.” Pauler, 857 F.3d at 1074.
Applying the plain language of this definition, the court concluded
that the pre-2022 version of the statute did not include violations of
local law, and therefore § 922’s bar did not apply to convictions for
violations of municipal ordinances. But in 2022, Congress
amended § 921(a)(33)(A)(i) to expand the definition of the term
“misdemeanor crime of domestic violence” to include misdemeanor
convictions “under Federal, State, Tribal, or local law.”
Consolidated Appropriations Act of 2022, Pub. L. No. 117-103, sec.
1104, § 921(a)(33)(A)(i), 136 Stat. 921-22 (codified as amended at 18
U.S.C. § 921(a)(33)(A)(i)) (emphasis added).
¶ 32 A CBI representative responded to Marquez’s appeal by
contacting his counsel through the portal to advise him of the 2022
amendment. Marquez’s counsel provided the following written
response:
[W]e would submit additional argument that the amendment still says “misdemeanor” and does not expressly include or define “municipal ordinance” and therefore a municipal offense should still not be disqualifying. Please
15 supplement our appeal basis with this argument and please let me know if you require an additional submission to preserve this argument in the appeal.
¶ 33 This response presented the sum and substance of Marquez’s
contention in the administrative appeal. Accordingly, we conclude
the response was adequate to preserve his argument that
§ 921(a)(33)(A)(i) does not apply to violations of municipal
ordinances that are not expressly labeled as misdemeanors by the
enacting jurisdiction. See Gebert, ¶ 25.
C. Application
¶ 34 Under § 922(d)(9), it is unlawful to sell a firearm to a person
who has been convicted in any court of a misdemeanor crime of
domestic violence, and under § 922(g)(9), it is also unlawful for a
person convicted of such an offense to receive any firearm that has
been shipped or transported in interstate or foreign commerce. As
previously noted, the 2022 amendment extended the definition of a
“misdemeanor crime of domestic violence” to include crimes of
domestic violence that are “a misdemeanor under . . . local law.”
§ 921(a)(33)(A)(i). Thus, to comply with § 922, the CBI must deny
16 an application to purchase a firearm if the applicant has been
convicted of a domestic violence misdemeanor under local law.
¶ 35 Marquez does not dispute that his conviction for assault arose
out of an act of domestic violence. Thus, the controlling question is
whether this offense was a “misdemeanor” within the meaning of
§ 921(a)(33)(A)(i).
¶ 36 Marquez argues that local jurisdictions are free to define
offenses as they deem appropriate, and, therefore, Denver — as a
home rule city — is authorized to classify its offenses, and such
classification controls the scope of how the federal law is applied.
He also notes that the Denver District Attorney’s Office website
distinguishes municipal ordinance violations from misdemeanor
crimes. See Denver Dist. Attorney’s Off., Types of Crimes,
https://perma.cc/2GYU-YSQV. In amplification of this argument,
Marquez points to the county court judge’s statement that she did
not believe that the violation of a municipal ordinance amounted to
a misdemeanor as that term is used in § 921(a)(33)(A)(i) and § 922.
¶ 37 In contrast, the CBI argues the commonly understood scope of
the term misdemeanor includes all criminal offenses other than
felonies. Thus, the CBI argues, a criminal conviction for violating a
17 municipal ordinance falls within the commonly understood
meaning of the term misdemeanor. In addition, the CBI argues this
interpretation is consistent with Congress’s intent to extend the
firearm purchase ban to individuals who commit acts of domestic
violence that are criminalized under local law. Finally, the CBI
argues that Congress’s objective to protect victims of domestic
violence would be frustrated by permitting local jurisdictions to
effectively avoid the reach of § 922 by not classifying municipal
ordinance violations as misdemeanors.
¶ 38 Neither § 921 nor § 922 defines the term “misdemeanor.”
When a statute does not define a particular term, we apply the
statute’s words consistent with “their plain and ordinary meanings.”
People v. Neustel, 2023 COA 56, ¶ 6 (quoting McCoy v. People, 2019
CO 44, ¶ 37).
¶ 39 Misdemeanors are “crimes that are less serious than a felony
and punishable by fine, penalty, forfeiture, or confinement, usually
for a period of a year or less.” Black’s Law Dictionary 1193 (12th
ed. 2024); see also Merriam-Webster Dictionary,
https://perma.cc/ZV3A-MHMQ (defining a misdemeanor as “a
crime less serious than a felony”); see also 18 U.S.C. § 3559(a)(6)-(8)
18 (dividing misdemeanors into three classes depending on whether a
term of incarceration is authorized between five days and a year).
In 1997, the Denver municipal code provided that “whenever any
section of this code . . . requires, prohibits or declares to be
unlawful the doing of an act, any violation of such section is hereby
declared to be a criminal violation.” Denver Rev. Mun. Code § 1-13
(1997). And, as previously noted, the municipal code specified that
a conviction for assault carried with it a potential jail sentence of up
to one year. Id.
¶ 40 Applying the plain language of the municipal code to the
commonly understood meaning of misdemeanor, we agree with the
district court’s conclusion that Marquez’s conviction met the
definition of a “misdemeanor crime of domestic violence” under
¶ 41 The clear purpose of the 2022 amendment was to expand the
scope of offenses covered by § 922. This is consistent with
Congress’s 1996 amendment of § 921 to extend the existing firearm
purchase ban for felony convictions to include misdemeanors. See
Omnibus Consolidated Appropriations Act of 1997, Pub. L. No. 104-
19 208, sec. 658, § 921(a), 110 Stat. 371-72 (codified as amended at
18 U.S.C. § 921(a)(33)(A)(i)-(ii)).
¶ 42 The 2022 amendment was intended to further extend § 922’s
reach to those individuals with domestic violence convictions based
on the violation of a municipal ordinance, not to simply clarify the
statute. It would be incongruous with this intent to interpret §
921(a)(33)(A)(i) in a way that would effectively delegate to every local
jurisdiction the authority to control the scope of § 922’s firearm
purchase ban by not classifying offenses that authorize a possible
jail sentence of up to a year as misdemeanors. Marquez points to
no legislative history or authority to suggest that Congress intended
to delegate this type of control of the scope of the firearm purchase
ban to local jurisdictions.
¶ 43 We also reject Marquez’s reliance on the county court’s dicta
that municipal ordinance violations are not considered
misdemeanors. The only issue before the county court was whether
Marquez established a legal basis to withdraw his guilty plea. The
court rejected that argument on multiple grounds, including that
the request to do so was time barred. The court also noted that the
post-2022 version of § 921(a)(33)(A)(i) did not exist at the time of
20 Marquez’s 1997 conviction, and therefore the court that accepted
Marquez’s guilty plea had no obligation to advise him of any
collateral consequence associated with § 921(a)(33)(A)(i). Either of
these rulings was sufficient to deny Marquez’s motion to set aside
his plea. Thus, there was no reason for the court to provide its
interpretation of the scope of § 921(a)(33)(A)(i). In any event, the
county court’s statement has no precedential value and does not
prevent us from reaching a contrary conclusion. See, e.g., People ex
rel. Gallagher v. Dist. Ct., 666 P.2d 550, 553 (Colo. 1983) (noting
that dictum does not become law of the case and is not binding).
V. Marquez’s Constitutional Arguments
¶ 44 Marquez argues that, even if the district court correctly
construed the meaning of the federal statutes and Denver
municipal ordinances, it nonetheless erred because it failed to
address the substance of his constitutional arguments. The CBI
contends that Marquez’s constitutional claims are unpreserved and
undeveloped. We agree with the CBI.
A. Standard of Review
¶ 45 We review a district court’s order granting a motion to dismiss
de novo. BRW, Inc. v. Dufficy & Sons, Inc., 99 P.3d 66, 71 (Colo.
21 2004 ). In reviewing a motion to dismiss, we accept all matters of
material fact in the complaint as true and view the allegations in
the light most favorable to the plaintiff. Id.
¶ 46 Statutes are presumed to be constitutional. People v. Walker,
75 P.3d 722, 723 (Colo. App. 2002). The party asserting that a
statute is unconstitutional must prove its invalidity beyond a
reasonable doubt. Id.
¶ 47 “In civil cases, arguments never presented to, considered by,
or ruled upon by a district court may not be raised for the first time
on appeal.” Gebert, ¶ 25. As previously noted, to properly preserve
an argument, a party must present the sum and substance of the
argument to the district court. Id.
¶ 48 In his district court complaint, Marquez alleged that applying
§ 921(a)(33)(A)(i) to his conviction violated his right to bear arms
under the Second Amendment to the United States Constitution
and article II, section 13, of the Colorado Constitution. Specifically,
he made the following allegations:
While Colorado and Federal courts have found that the right to bear arms may be reasonably regulated, the [CBI’s] restriction of Mr.
22 Marquez’s firearms rights contrary to law, the evidence, and the County Court[’s purported] ruling, constitutes unreasonable and irrational regulation of that right.
This irrational and unreasonable regulation of Mr. Marquez’s rights to possess a firearm violates [a]rticle II, [s]ection 13 of the Colorado Constitution and the Second Amendment of the U.S. Constitution.
As such, [the CBI]’s determination is therefore invalid.
¶ 49 Marquez’s opposition to the CBI’s motion to dismiss was
predicated — almost exclusively — on his argument that the CBI
had misinterpreted the meaning and breadth of the term
“misdemeanor” under § 921(a)(33)(A)(i) and § 922 and failed to
follow the county court judge’s statement that the federal statutes
did not apply to convictions under this particular Denver municipal
ordinance.
¶ 50 After quoting the county court’s statements, Marquez’s
counsel argued as follows:
The Denver County Court’s ruling, the court with original jurisdiction over Mr. Marquez’s offenses, clearly and unambiguously ruled that Mr. Marquez’s offense did not qualify under federal law as a misdemeanor. This left no ambiguity or interpretation to the agency that would allow it to contradict the Court. Thus,
23 the agency acted arbitrarily and capriciously, abused its discretion, and otherwise contrary to law. Thereby, the agency denied Mr. Marquez an important constitutional right, the purchase and/or possession of firearms.
¶ 51 This argument does not assert that § 921 and § 922 are
unconstitutional in all their potential applications or as applied to
him. And aside from the complaint’s conclusory allegation that the
statute violated his right to bear arms, Marquez’s response did not
develop any argument based on the Second Amendment; article II,
section 13, of the Colorado Constitution; or any other constitutional
provision. Not surprisingly then, the district court did not address
or decide whether Marquez asserted a valid constitutional challenge
to the statutes in his complaint.
¶ 52 Marquez argues for the first time on appeal that the district
court should have denied the motion to dismiss because the CBI
failed to affirmatively establish that the prohibitions in
§ 921(a)(33)((A)(i) and § 922 are “consistent with this Nation’s
historical tradition of firearm regulation.” N.Y. State Rifle & Pistol
Ass’n v. Bruen, 597 U.S. 1, 17 (2022). Marquez failed to articulate
any argument on this issue before the CBI or the district court,
however. And on appeal, he fails to meaningfully develop an
24 argument that the challenged prohibitions fall outside the nation’s
tradition of firearm regulation.
¶ 53 Rather, citing United States v. Bullock, 679 F. Supp. 3d 501,
537 (S.D. Miss. 2023), rev’d, 123 F.4th 183 (5th Cir. 2024), he
attempts to justify the omission by arguing that the CBI had the
burden to present affirmative evidence on this point and that the
district court erred by granting the motion to dismiss in the
absence of such an affirmative showing by the CBI. But Marquez
made no such argument before the CBI or the district court,
whether in his initial complaint or in his response to the CBI’s
motion to dismiss.
¶ 54 Because Marquez did not raise the issue before the CBI or the
district court, and he did not adequately develop it on appeal, we
decline to address it further. See People v. Durapau, 280 P.3d 42,
49 (Colo. App. 2011) (declining to address perfunctory and
conclusory constitutional arguments).
¶ 55 We acknowledge that Marquez argued before the CBI that
§ 921(a)(33)(A)(i) should not be applied retroactively to his 1997
conviction. It is not entirely clear whether Marquez intended this
argument to be grounded on principles of statutory construction or
25 the constitutional prohibitions against ex post facto legislation. See
U.S. Const. art. I, § 10, cl. 1; Colo. Const. art. II, § 11. We note,
however, that neither his complaint nor his response to the motion
to dismiss nor his appellate briefs even cite the ex post facto
clauses, much less develop a cogent argument thereunder. Thus,
we decline to address this issue further, and we offer no opinion
with respect to it.
VI. Disposition
¶ 56 The district court’s order is affirmed.
JUDGE WELLING and JUDGE KUHN concur.