Tenth Circuit: Generally Applicable Non-Enforcement Policies Do Not Create “Immediate” State-Created Danger; Colorado CPLA Predominant-Cause & Exclusivity Bar Mass-Shooting Premises Claims

I. Introduction

Vance v. Aldrich (10th Cir. Sept. 9, 2026) arises from the November 2022 mass shooting at Club Q, an LGBTQIA+ nightclub in Colorado Springs. Survivors and estates of victims sued (i) county actors—the El Paso County Board of County Commissioners and Sheriff Bill Elder (the “County Defendants”)—and (ii) entities and individuals associated with the nightclub (the “Club Q Defendants”).

The case presented four recurring issues in modern mass-violence litigation:

  • whether a county’s alleged policy of not seeking Extreme Risk Protection Orders (ERPOs) can satisfy the Tenth Circuit’s “affirmative conduct” requirement for a state-created-danger substantive due process claim under 42 U.S.C. § 1983;
  • whether federal courts have supplemental jurisdiction over state-law premises/security claims against private defendants when the federal constitutional claims run only against government defendants;
  • how the 2022 amendment to the Colorado Premises Liability Act (CPLA), Colo. Rev. Stat. § 13-21-115(2)(e), reshapes causation in third-party mass-shooting cases; and
  • whether the CPLA’s exclusive-remedy provision preempts parallel negligence and wrongful-death theories based on alleged security and safety failures.

II. Summary of the Opinion

  • § 1983 (state-created danger): Affirmed dismissal. The County Defendants’ ERPO “policies” were not pleaded as conduct that put these plaintiffs, specifically, at an immediate risk of harm; the alleged risk was generalized and temporally indefinite.
  • Supplemental jurisdiction: Held the district court should not have skipped the threshold inquiry under 28 U.S.C. § 1367(a), but the court ultimately did have supplemental jurisdiction because the federal and state claims shared a “common nucleus of operative fact”—the Club Q shooting and the events preceding it.
  • CPLA claims: Affirmed dismissal for lack of plausible causation. In light of the 2022 CPLA amendment repudiating key aspects of Rocky Mountain Planned Parenthood, Inc. v. Wagner, the panel held Aldrich’s actions were the predominant cause as a matter of law on the pleaded facts.
  • Negligence & wrongful death against landowners: Reversed the district court’s refusal to dismiss. The CPLA is the exclusive remedy for injuries occurring on the property “by reason of” property conditions/activities/circumstances; the pleaded security and egress failures fit within the CPLA’s scope.

III. Analysis

A. Precedents Cited (and How They Drive the Holdings)

1. State-created danger: the Tenth Circuit’s “affirmative act,” “immediacy,” and “discrete plaintiff” constraints

  • DeShaney v. Winnebago Cnty. Dep't of Soc. Servs.: Supplies the baseline rule that the State’s failure to protect against private violence ordinarily does not violate due process. The panel treats DeShaney as the starting point and frames state-created danger as an exception requiring strict prerequisites.
  • Matthews v. Bergdorf and Est. of B.I.C. v. Gillen: Provide the Tenth Circuit’s elements, including the two “preconditions” (affirmative conduct + private violence) and the multi-factor test (limited group, immediate/proximate harm, obvious risk, reckless disregard, conscience shocking). The court uses these cases to justify resolving the appeal solely on the “affirmative conduct” precondition.
  • Gray v. Univ. of Colo. Hosp. Auth. and Ruiz v. McDonnell: These are the workhorses for rejecting liability based on generally applicable policy choices. Gray supplies two decisive limitations: (i) affirmative conduct “typically involve[s]” an “immediate threat of harm” with “limited range and duration,” and (ii) the conduct must be “directed at a discrete plaintiff rather than at the public at large.” Ruiz reinforces that regulatory/government approvals (like licensing) that create “a threat of an indefinite range and duration” fail the immediacy requirement. The panel treats the county’s ERPO stance as analogous to generally applicable policies in Gray and indefinite-risk licensing in Ruiz.
  • Robbins v. Oklahoma and Graham v. Indep. Sch. Dist. No. I-89: Bolster the proposition that knowing of danger and failing to act—even in the face of threats—is non-actionable “inaction,” absent an affirmative, danger-creating intervention.
  • Armijo ex rel. Chavez v. Wagon Mound Public Schools: Plaintiffs used Armijo to argue the risk need not “materialize instantaneously.” The panel distinguishes it: Armijo featured state actors who took the student home and left him alone with firearm access—conduct that created a near-immediate, individualized peril.
  • Uhlrig v. Harder: The panel reads Uhlrig as not supporting plaintiffs on “immediacy”; instead it turned on failure to show a substantial risk, not on relaxing immediacy.
  • Currier v. Doran: Plaintiffs relied heavily on Currier’s “safety valves” language (state liability when it removes what would otherwise be safety valves or cuts off sources of aid). The panel distinguishes Currier because the social workers’ conduct (custody placement/recommendations and instruction not to report abuse) was directed at identifiable children and immediately increased their risk—unlike a countywide ERPO approach.
  • Out-of-circuit cases cited by plaintiffs—Dwares v. City of New York, Pena v. Deprisco, Kallstrom v. City of Columbus, Freeman v. Ferguson, Okin v. Vill. of Cornwall-on-Hudson Police Dep't, Pauluk v. Savage—are treated as factually distinguishable because (as the panel characterizes them) they involved state action aimed at specific persons or implicit sanctioning of a specific private actor’s violence, not a generally applicable policy affecting the public.

2. Supplemental jurisdiction: the “common nucleus” and the obligation to confirm § 1367(a) first

  • Carlsbad Tech., Inc. v. HIF Bio, Inc. and Koch v. City of Del City: Provide the framework that declining supplemental jurisdiction under § 1367(c) is discretionary (abuse-of-discretion review), but the antecedent existence of supplemental jurisdiction is a de novo, threshold question.
  • Royal Canin U.S.A., Inc. v. Wullschleger and City of Albuquerque v. Soto Enters., Inc.: These cases drive the panel’s procedural correction: a court may decline under § 1367(c) only if it actually has jurisdiction under § 1367(a). The district court’s “assumption” of § 1367(a) jurisdiction was error—though harmless because jurisdiction existed.
  • United Mine Workers v. Gibbs, City of Chicago v. Int'l Coll. of Surgeons, and Pettigrew v. Okla. ex rel. Okla. Dep't of Pub. Safety: Supply the “common nucleus of operative fact” test. The panel holds the federal and state claims shared such a nucleus because both sets of claims arose from the same mass shooting and its antecedent facts.
  • Estate of Harshman v. Jackson Hole Mountain Resort Corp.: Used as an analogy: even where different defendants have different roles, claims deriving from one injury-producing event can share a common nucleus and be best adjudicated together.
  • The opinion also uses King Fisher Marine Serv., Inc. v. 21st Phx. Corp., Sinclair v. Soniform, Inc., and Feigler v. Tidex, Inc. to confirm that “one event/one injury” cases often satisfy § 1367(a) even with distinct duties and defendants, and addresses Nanavati v. Burdette Tomlin Memorial Hospital and Joyner v. Morrison & Foerster LLP to reject an overly narrow overlap requirement.

3. Colorado premises liability after the 2022 amendment: predominant cause and exclusivity

  • Rocky Mountain Planned Parenthood, Inc. v. Wagner (and the referenced Wagner v. Planned Parenthood Federation of America, Inc.): The panel treats Wagner as the backdrop that prompted the Colorado legislature’s corrective amendment. It emphasizes the dissent’s view in Wagner (quoted at length) that in mass-shooting cases the shooter’s conduct is typically the predominant cause and that security-measures litigation risks unbounded “reasonableness” inquiries.
  • Statutory pivot: Colo. Rev. Stat. § 13-21-115(2)(e): The court reads subsection (2)(e)(I)(B) as requiring courts to consider whether third-party criminal conduct is the “predominant cause,” and it interprets the legislative repudiation of Wagner to align with the dissent’s predominant-cause approach.
  • City of Aurora v. Loveless: Invoked for the general principle that causation is typically for the jury, but the panel says pleading standards still apply and the 2022 amendment supports resolving predominant-cause as a matter of law.
  • Taco Bell, Inc. v. Lannon and Garcia v. Colorado Cab Co.: Plaintiffs used these to argue violent criminality does not necessarily sever causation and that juries usually decide. The panel distinguishes them: Taco Bell predates the CPLA and its 2022 amendment, and Garcia is not a CPLA/premises case.
  • The district court’s reliance on federal district cases (Castaldo v. Stone, Ireland v. Jefferson Cnty. Sheriff's Dep't, Phillips v. Lucky Gunner, LLC, Nowlan v. Cinemark Holdings, Inc.) is treated as non-essential; the panel affirms primarily on the statute/Wagner alignment.
  • Exclusivity line: The panel uses Jordan v. Panorama Orthopedics & Spine Ctr., PC (scope test), Larrieu v. Best Buy Stores, L.P. (court can decide applicability; not automatically for jury), and appellate cases including Macomber v. Nations Roof, LLC, Tancrede v. Freund, Tolle v. Steeland, LLC, and Grizzell v. Hartman Enters. to hold that alleged security failures and blocked egress are “conditions” or “circumstances” on the property. It then applies Vigil v. Franklin, Stone v. Life Time Fitness, Inc., and Sweeney v. United Artists Theater Cir., Inc. to reaffirm that the CPLA abrogates common-law negligence claims against landowners for on-property injuries within its scope.

B. Legal Reasoning

1. Why the County Defendants escaped § 1983 liability (even with alleged “conscience-shocking” indifference)

The panel’s reasoning is structurally important: it accepts that the allegations could be morally and politically grave—indeed the district court suggested the conduct plausibly approached “conscience-shocking”—but holds that without an affirmative, individualized, immediate danger-creating act, substantive due process does not constitutionalize failures to protect against private violence.

Two doctrinal “gates” do the decisive work:

  • Immediacy: The alleged ERPO non-enforcement posture created, at most, an “indefinite risk” over years; it did not “impose an immediate threat of harm” with limited range/duration.
  • Discreteness/targeting: The policies were generally applicable and therefore not “directed at a discrete plaintiff,” but rather affected the public at large (everyone potentially vulnerable to gun violence in the county).

Notably, the panel also clarifies what does not satisfy “affirmative conduct” in the Tenth Circuit: even a formal governmental “policy” can fail if it is (as pleaded) broadly applicable and temporally diffuse.

2. Why the district court had supplemental jurisdiction over the Club Q Defendants

The panel treats supplemental jurisdiction as an Article III “case or controversy” inquiry anchored in Gibbs. Despite different defendants and legal duties, the court finds the shared nucleus in: (i) Aldrich’s pre-shooting conduct and warning signs, (ii) the shooting itself, and (iii) the same set of injuries.

The opinion also adds a procedural point: a district court should not “assume” § 1367(a) and jump directly to § 1367(c). Under Royal Canin U.S.A., Inc. v. Wullschleger, a court may only decline what it actually has.

3. Why the CPLA causation allegations failed post-amendment

The panel reads Colo. Rev. Stat. § 13-21-115(2)(e) as a legislative instruction to correct Wagner’s approach to predominant cause in third-party criminal cases. Applying that instruction, the court holds that, on the pleaded facts, Aldrich’s “premeditated and intentional actions” were the predominant cause of plaintiffs’ injuries, rendering the landowners’ alleged security failures legally insufficient to plead substantial-factor causation.

Practically, the decision signals that, after the 2022 amendment, CPLA plaintiffs face a steep plausibility burden when the immediate mechanism of injury is a mass shooter’s deliberate violence.

4. Why negligence and wrongful-death theories were preempted—despite dismissal of the CPLA claim

The most consequential state-law holding is remedial: once injuries are characterized as occurring on the property “by reason of” conditions/activities/circumstances (including security and egress conditions), the CPLA is “the sole and exclusive remedy.” The panel rejects the district court’s view that “corporate decisions, training, and staffing deficiencies” necessarily move the case outside the CPLA; because those allegations still describe how the landowners provided (or failed to provide) security on the premises, they remain within the statute’s exclusivity.

C. Impact

  • State-created danger in the Tenth Circuit remains narrow. Policies of broad non-enforcement—even if alleged to increase overall community risk—are unlikely to qualify as affirmative, immediate, plaintiff-directed danger creation. Plaintiffs will need facts showing (a) a state actor’s concrete intervention and (b) a temporally tight, individualized risk.
  • Supplemental jurisdiction is easier to satisfy in “single-event, single-injury” mass-harm cases. Plaintiffs can expect federal courts to find § 1367(a) when federal and state claims share a catastrophic incident and the same injuries, even with different defendants and evidence.
  • Colorado premises liability for mass shootings is sharply constrained. By treating the shooter’s conduct as predominant cause on these pleadings, the opinion suggests many CPLA claims arising from mass shootings may be dismissed early, particularly where allegations resemble those in Wagner.
  • CPLA exclusivity can eliminate alternative tort pathways. Even if a plaintiff cannot plead CPLA causation post-amendment, Vance indicates they may still be barred from pursuing parallel negligence/wrongful-death theories against landowners when the injury theory is rooted in on-premises security/condition allegations.

IV. Complex Concepts Simplified

  • State-created danger (substantive due process): A narrow exception allowing § 1983 liability for private violence only when the State affirmatively creates or intensifies a danger to a person, in a way that is immediate and specifically targets (or specifically endangers) that person.
  • “Affirmative conduct” vs. inaction: Not doing something (even something morally expected) is typically “inaction.” “Affirmative conduct” is the State doing something that creates a new danger or makes an existing danger worse in a direct and immediate way.
  • “Immediate threat” and “discrete plaintiff”: The danger must arise quickly from the challenged act and must be directed at identifiable persons, not the public generally.
  • Supplemental jurisdiction (28 U.S.C. § 1367): Federal courts can hear state claims tied to federal claims if they are part of the same Article III “case”—i.e., they share a “common nucleus of operative fact.”
  • Predominant cause / substantial factor (CPLA causation): Even if a landowner was negligent, a different cause (like a mass shooter’s intentional violence) can be so dominant that the landowner’s negligence is deemed not a “substantial factor” in causing the injuries.
  • CPLA exclusivity: If the CPLA applies, it displaces other tort theories (negligence, many wrongful-death theories) against landowners for on-property injuries arising from property conditions/activities/circumstances.

V. Conclusion

Vance v. Aldrich reinforces two restrictive liability regimes. On the constitutional side, it tightens the practical reach of state-created danger by reaffirming that broadly applicable governmental policies that create only generalized, temporally diffuse risks do not satisfy the Tenth Circuit’s “affirmative conduct” requirement. On the Colorado tort side, it reads the CPLA’s 2022 amendment as re-centering causation on the mass shooter as the predominant cause and simultaneously enforces the CPLA’s exclusivity to preempt parallel negligence and wrongful-death claims grounded in on-premises security and safety conditions.