ERPO Non-Enforcement Policies Are Not “Affirmative Acts” for State-Created Danger; Colorado CPLA Predominant-Cause Causation and Exclusivity Bar Mass-Shooting Negligence Theories

1. Introduction

This published Tenth Circuit decision arises from the November 19, 2022 mass shooting at Club Q in Colorado Springs, where Anderson Aldrich killed five people and injured twenty-five. Survivors and estates sued (i) county entities and officials (the El Paso County Board of County Commissioners and Sheriff Bill Elder, among others) and (ii) entities and individuals affiliated with Club Q.

Two clusters of issues dominated:

• Federal constitutional liability: Whether county officials can be held liable under 42 U.S.C. § 1983 for substantive due process violations under a state-created-danger theory based on alleged county policies discouraging or prohibiting use of Colorado’s Extreme Risk Protection Order (“ERPO”/“Red Flag”) process.
• Colorado premises liability and tort remedies: Whether Club Q landowners/operators can be liable under the Colorado Premises Liability Act (“CPLA”) for injuries from a mass shooting given Colorado’s 2022 statutory amendment addressing Rocky Mountain Planned Parenthood, Inc. v. Wagner, and whether plaintiffs may alternatively plead common-law negligence and wrongful-death theories.

The panel’s opinion is significant for two “gatekeeping” moves: (1) it narrows what counts as “affirmative conduct” for state-created danger when plaintiffs challenge general governmental policies about enforcement discretion; and (2) it reads Colorado’s amended CPLA as making mass-shooter intent the predominant cause of injuries for pleading-stage causation, while also enforcing CPLA exclusivity to preempt parallel negligence and wrongful-death claims.

2. Summary of the Opinion

3. Analysis

3.1 Precedents Cited

A. The “no duty to protect from private violence” baseline and its exceptions

• DeShaney v. Winnebago Cnty. Dep't of Soc. Servs. (489 U.S. 189 (1989)): The foundational rule that government failure to protect against private violence generally does not violate due process. The panel used DeShaney to frame state-created danger as a narrow exception, not a general negligence-to-constitutional-tort converter.
• Matthews v. Bergdorf (889 F.3d 1136 (10th Cir. 2018)): Supplies the Tenth Circuit’s modern articulation of the state-created-danger elements (two preconditions plus six factors). The panel treated Matthews as the primary checklist and returned repeatedly to its “affirmative conduct” precondition.
• Est. of B.I.C. v. Gillen (761 F.3d 1099 (10th Cir. 2014)) and Est. of B.I.C. v. Gillen (710 F.3d 1168 (10th Cir. 2013)): These decisions anchor the idea that affirmative conduct must exceed “mere negligence or inaction.” The panel used them to reject plaintiffs’ attempts to characterize non-enforcement and failure-to-intervene as affirmative acts.

B. What counts as “affirmative conduct”: immediacy and targeting

• Gray v. Univ. of Colo. Hosp. Auth. (672 F.3d 909 (10th Cir. 2012)): The controlling limitation in this opinion. Gray held generally applicable policies do not “foist” an immediate threat with limited range/duration and are typically too remote to be “directed” at a discrete plaintiff. The panel treated Gray as foreclosing ERPO-policy-as-affirmative-act theories because the alleged policies created, at most, an indefinite, population-wide risk.
• Ruiz v. McDonnell (299 F.3d 1173 (10th Cir. 2002)) and Robbins v. Oklahoma (519 F.3d 1242 (10th Cir. 2008)): Both support the “indefinite range and duration” concept: licensing/regulatory choices may be causal background but are not immediate danger-creating acts toward a particular person.
• Graham v. Indep. Sch. Dist. No. I-89 (22 F.3d 991 (10th Cir. 1994)): Reinforces that knowing about threats and failing to act remains non-affirmative inaction.
• Hernandez v. Ridley (734 F.3d 1254 (10th Cir. 2013)): Used to underscore the “identifiable victim” requirement—policy adoption before plaintiffs are identifiable cuts against “directed at a discrete plaintiff.”

C. Plaintiffs’ attempted analogies and the court’s distinctions

• Armijo ex rel. Chavez v. Wagon Mound Public Schools (159 F.3d 1253 (10th Cir. 1998)): Plaintiffs invoked Armijo to argue harm need not be instantaneous; the panel distinguished it because the state action there (sending a distraught student home alone with gun access) created a near-immediate risk to that specific student.
• Uhlrig v. Harder (64 F.3d 567 (10th Cir. 1995)): Plaintiffs cited it for timing; the panel noted Uhlrig did not actually relax the immediacy requirement and resolved the case on “substantial risk” grounds.
• Currier v. Doran (242 F.3d 905 (10th Cir. 2001)): The strongest plaintiff-side precedent because it recognizes affirmative conduct when the state “removes safety valves” or “cuts off potential sources of aid.” The panel distinguished Currier because the social workers’ actions were directed at particular children and immediately increased their vulnerability; ERPO non-enforcement policies were countywide and temporally diffuse.

D. Out-of-circuit “policy/directive can be affirmative” cases

• Dwares v. City of New York (985 F.2d 94 (2d Cir. 1993)) and Pena v. Deprisco (432 F.3d 98 (2d Cir. 2005)): The panel distinguished these as involving implicit/explicit condoning of a specific wrongdoer’s conduct rather than adoption of generally applicable policies.
• Kallstrom v. City of Columbus (136 F.3d 1055 (6th Cir. 1998)), Freeman v. Ferguson (911 F.2d 52 (8th Cir. 1990)), Okin v. Vill. of Cornwall-on-Hudson Police Dep't (577 F.3d 415 (2d Cir. 2009)), Pauluk v. Savage (836 F.3d 1117 (9th Cir. 2016)): Cited and rejected as materially different because each involved state action that increased risk to identifiable individuals (releasing officers’ data, prohibiting help to a specific victim, signaling impunity to a known abuser of a known victim, transferring an employee into hazard conditions).

E. Supplemental jurisdiction: jurisdiction first, discretion second

• Carlsbad Tech., Inc. v. HIF Bio, Inc. (556 U.S. 635 (2009)) and Koch v. City of Del City (660 F.3d 1228 (10th Cir. 2011)): Clarify the difference between having supplemental jurisdiction (a jurisdictional question) and declining to exercise it (a discretionary question).
• Royal Canin U.S.A., Inc. v. Wullschleger (604 U.S. 22 (2025)) and City of Albuquerque v. Soto Enters., Inc. (864 F.3d 1089 (10th Cir. 2017)): Deployed to correct the district court’s sequencing: a court cannot “decline” supplemental jurisdiction under § 1367(c) unless it first has it under § 1367(a).
• United Mine Workers v. Gibbs (383 U.S. 715 (1966)), City of Chicago v. Int'l Coll. of Surgeons (522 U.S. 156 (1997)), Pettigrew v. Okla. ex rel. Okla. Dep't of Pub. Safety (722 F.3d 1209 (10th Cir. 2013)): Provide the “common nucleus of operative fact” test. The panel applied these to hold that claims all stemming from the Club Q shooting meet § 1367(a).
• Estate of Harshman v. Jackson Hole Mountain Resort Corp. (379 F.3d 1161 (10th Cir. 2004)): Used as a close analogy: different defendants and different duties can still share a common nucleus when the injury-producing event is singular (there, a ski accident; here, a mass shooting).
• Nanavati v. Burdette Tomlin Memorial Hospital (857 F.2d 96 (3d Cir. 1998)) and Joyner v. Morrison & Foerster LLP (140 F.4th 523 (D.C. Cir. 2025)): Cited to address (and reject) defendants’ “mere tangential overlap” argument; the panel found overlap here went beyond a minimal relationship.

F. Colorado premises liability and the 2022 amendment responding to Wagner

• Jordan v. Panorama Orthopedics & Spine Ctr., PC (346 P.3d 1035 (Colo. 2015)): Supplies the limiting principle that CPLA applies only to conditions/activities/circumstances for which the defendant is liable “in its legal capacity as a landowner,” and provides the framework for preemption/exclusivity analysis.
• Rocky Mountain Planned Parenthood, Inc. v. Wagner (467 P.3d 287 (Colo. 2020)): The key reference point for mass-shooting CPLA causation and foreseeability; the panel treated the 2022 amendment as adopting the Wagner dissent’s “predominant cause” logic for third-party criminal acts.
• City of Aurora v. Loveless (639 P.2d 1061 (Colo. 1981)): Cited for the proposition that causation is typically for the jury, but the panel used pleading standards and the statutory amendment to justify dismissal as a matter of law when plausibility fails.
• Taco Bell, Inc. v. Lannon (744 P.2d 43 (Colo. 1987)) and Garcia v. Colorado Cab Co. (538 P.3d 328 (Colo. 2023)): Plaintiffs’ cited causation cases; the panel distinguished them because Taco Bell pre-dated the CPLA and Garcia did not involve CPLA premises liability.
• Castaldo v. Stone (192 F. Supp. 2d 1124 (D. Colo. 2001)), Ireland v. Jefferson Cnty. Sheriff's Dep't (193 F. Supp. 2d 1201 (D. Colo. 2002)), Phillips v. Lucky Gunner, LLC (84 F. Supp. 3d 1216 (D. Colo. 2015)), Nowlan v. Cinemark Holdings, Inc. (2016 WL 4092468 (D. Colo. June 24, 2016)): Referenced as background federal district cases tending to treat mass shooters as predominant causes; the panel acknowledged distinctions but found the 2022 amendment independently dispositive.

G. CPLA exclusivity (preemption of negligence/wrongful death)

• Macomber v. Nations Roof, LLC (574 P.3d 757 (Colo. App. 2025)) and Vigil v. Franklin (103 P.3d 322 (Colo. 2004)): CPLA is the “sole and exclusive remedy” when it applies.
• Larrieu v. Best Buy Stores, L.P. (303 P.3d 558 (Colo. 2013)): Confirms that whether CPLA applies is not categorically for a jury; normal dispositive-motion standards can resolve it, undermining the district court’s “too fact intensive at pleading” rationale.
• Tancrede v. Freund (401 P.3d 132 (Colo. App. 2017)): Emphasizes CPLA’s broad reach to activities on property.
• Tolle v. Steeland, LLC (541 P.3d 24 (Colo. App. 2023)) and Grizzell v. Hartman Enters. (68 P.3d 551 (Colo. App. 2003)): Support that inadequate safety/security measures can be “conditions” or “circumstances” on the property, bringing security failures within CPLA.
• Stone v. Life Time Fitness, Inc. (411 P.3d 225 (Colo. App. 2016)) and Sweeney v. United Artists Theater Cir., Inc. (119 P.3d 538 (Colo. App. 2005)): Reinforce that CPLA abrogates common-law negligence claims against landowners.

3.2 Legal Reasoning

A. State-created danger: ERPO non-enforcement as “policy” is not enough

The court accepted that the county’s ERPO-related resolutions/statements were arguably more than passive omission. But it held the state-created-danger doctrine (as implemented in this Circuit) imposes two structural limits on “affirmative conduct”:

• Immediacy: The act must “impose an immediate threat of harm” with a “limited range and duration,” not an “indefinite risk.” Under Gray and Ruiz v. McDonnell, generally applicable governmental policies (or regulatory choices like licensing) typically produce diffuse risks over time rather than immediate threats.
• Discreteness (targeting): The conduct must be “directed at a discrete plaintiff rather than at the public at large.” Countywide ERPO policies affected all persons potentially vulnerable to gun violence, not Club Q invitees (who were not identifiable at policy adoption) as a limited, definable group targeted by the County.

This two-part framing is the doctrinal “workhorse” of the opinion: it transforms what might look morally blameworthy (refusing to use a statutory tool) into a legally non-cognizable due process claim absent immediacy and plaintiff-specific targeting. Notably, the district court had suggested the alleged refusal could be “conscience shocking,” but the panel made clear that conscience-shocking allegations do not matter if the affirmative-conduct precondition fails.

B. Supplemental jurisdiction: one “constitutional case” despite different defendants and duties

The panel corrected the district court’s sequencing: it must decide whether § 1367(a) jurisdiction exists before exercising discretion under § 1367(c), relying on Royal Canin U.S.A., Inc. v. Wullschleger and City of Albuquerque v. Soto Enters., Inc.. On the merits, it held the federal and state claims derived from a “common nucleus of operative fact” under United Mine Workers v. Gibbs: the same mass-shooting event, the same injuries, and overlapping factual background about Aldrich’s pre-shooting conduct and the circumstances of the attack.

C. CPLA causation after the 2022 amendment: pleading-stage predominant cause for mass shootings

The opinion’s most policy-significant state-law holding is its reading of Colorado’s 2022 amendment, Colo. Rev. Stat. § 13-21-115(2)(e). The panel treated the amendment as a legislative repudiation of the Wagner majority’s willingness to let a jury find landowner security failures a “substantial factor” in mass-shooting injuries without concluding whether the shooter’s conduct was the predominant cause.

Applying the amendment, the panel held the complaint’s allegations—reduced security staffing, lack of screening, blocked egress, and known threats—still could not plausibly satisfy substantial-factor causation because Aldrich’s premeditated mass shooting was the predominant cause “as a matter of law.” In effect, the court read the amendment as pushing many mass-shooting premises claims past a plausibility “cliff” on causation.

D. CPLA exclusivity: security “corporate decisions” remain premises “conditions/activities/circumstances”

After affirming dismissal of the CPLA claims, the panel nonetheless enforced CPLA exclusivity to dismiss the remaining negligence and wrongful-death theories. This is doctrinally important: a plaintiff cannot escape CPLA’s causation constraints by relabeling the claim as negligent training, staffing, or corporate decision-making if those allegations still describe failures to provide adequate safety/security on the property. Relying on Larrieu v. Best Buy Stores, L.P., the panel rejected the district court’s suggestion that exclusivity is too “fact intensive” for the pleading stage where the complaint itself grounds the duty as “ensure their safety and well-being while on the premises.”

3.3 Impact

A. Constitutional tort exposure for “non-enforcement policy” decisions

The decision strengthens a protective barrier for municipalities and sheriffs facing § 1983 claims premised on broad enforcement philosophies (here, resistance to ERPO petitions). In the Tenth Circuit, plaintiffs challenging non-enforcement policies will face two steep hurdles:

• Temporal/diffuse risk is not “immediate”: Policies that change the enforcement “baseline” for an entire county are likely to be characterized as creating an indefinite risk.
• Public-at-large effects are not enough: Absent a discrete, identifiable plaintiff or narrowly definable group directly targeted, courts will treat the risk as generalized.

Practically, this channels ERPO-related accountability away from constitutional litigation and toward political, administrative, or state-law mechanisms (if any), rather than due process damages suits.

B. Colorado mass-shooting premises liability: causation contraction

On the state-law side, the opinion signals that post-2022 CPLA claims seeking to hold landowners liable for mass-shooting injuries will often fail on causation at the pleading stage, at least where the shooter’s intentional violence is the direct injury mechanism. Even detailed allegations about known threats and inadequate security may be insufficient, given the legislature’s instruction to consider whether the shooter was the “predominant cause” and the panel’s reading of Wagner’s dissent.

C. Exclusivity as a second line of defense

Even where plaintiffs attempt to plead around the CPLA via negligence, negligent training, or wrongful death, this opinion reaffirms that CPLA exclusivity can defeat those theories early if the injury arose “while on” the property and “by reason of” security/safety conditions, circumstances, or activities there. Thus, defendants may win twice: first on CPLA causation, and second on CPLA exclusivity.

4. Complex Concepts Simplified

• State-created danger: A narrow exception allowing due process claims when the government affirmatively creates or increases a person’s vulnerability to private violence. It is not triggered by mere failure to act.
• Affirmative conduct (Tenth Circuit): More than omission; it must also impose an immediate, limited-duration threat and be directed toward a discrete plaintiff (not the public generally).
• ERPO (“Red Flag” order): A civil court order that temporarily restricts a person who poses a significant risk from possessing or purchasing firearms. Colorado law makes law enforcement’s decision to petition discretionary, not mandatory.
• Supplemental jurisdiction (§ 1367): Federal courts may hear state-law claims tied closely enough to federal claims (same “case or controversy”). But they must first have that jurisdiction under § 1367(a) before choosing to decline it under § 1367(c).
• CPLA and “predominant cause”: For Colorado premises claims, causation requires the landowner’s conduct to be a “substantial factor.” After the 2022 amendment addressing Wagner, courts must consider whether a third-party criminal act was the predominant cause—often breaking substantial-factor causation for mass shootings.
• CPLA exclusivity: If the CPLA applies, it is the only remedy against a landowner for injuries occurring on the property due to property conditions/activities/circumstances. Common-law negligence and wrongful-death theories are preempted.

5. Conclusion

The Tenth Circuit’s published opinion crystallizes two powerful limits on civil liability arising from mass-violence events. First, it constrains § 1983 state-created-danger suits challenging generalized law-enforcement policies by insisting on immediacy and plaintiff-specific targeting for “affirmative conduct.” Second, it reads Colorado’s post-Wagner CPLA amendment as making a mass shooter’s intentional act the predominant cause for pleading-stage causation, while simultaneously enforcing CPLA exclusivity to bar end-runs through negligence and wrongful-death claims.