Vance v. G.I.G.: ERPO Non-Enforcement Policies Do Not Satisfy State-Created-Danger “Affirmative Conduct”; Colorado CPLA Exclusivity Bars Negligence and Treats Mass Shooter as Predominant Cause at the Pleading Stage

I. Introduction

Case: Vance v. G.I.G., Inc., Court of Appeals for the Tenth Circuit (Sept. 9, 2026).
Parties: Survivors of the Club Q shooting and estates of decedents (Plaintiffs) sued (1) El Paso County’s Board of County Commissioners and the Sheriff (the “County Defendants”) and (2) the nightclub’s owners/operators/landlords (the “Club Q Defendants”).
Core issues:

  • Whether county policies refusing to seek Extreme Risk Protection Orders (ERPOs) can satisfy the “affirmative conduct” precondition for a federal state-created-danger substantive due process claim under 42 U.S.C. § 1983.
  • Whether the federal court had supplemental jurisdiction over state-law premises and negligence claims against different defendants.
  • How Colorado’s 2022 amendment to the Colorado Premises Liability Act (CPLA) affects causation in mass-shooting premises cases—specifically the role of the shooter as the “predominant cause.”
  • Whether the CPLA is the exclusive remedy, preempting negligence and wrongful-death claims against landowners for injuries arising from on-premises conditions/circumstances (including security practices).

II. Summary of the Opinion

  • § 1983 (County Defendants): Affirmed dismissal. Even treating the ERPO non-enforcement policies as more than mere inaction, they did not impose an immediate threat of harm and were not directed at a discrete, identifiable plaintiff; thus the state-created-danger “affirmative conduct” precondition was not met.
  • Supplemental jurisdiction (Club Q Defendants): Held the district court had subject-matter jurisdiction under 28 U.S.C. § 1367(a) because the federal and state claims shared a common nucleus of operative fact (the Club Q shooting and related events). The district court erred by bypassing § 1367(a) before invoking § 1367(c), but jurisdiction existed.
  • CPLA (Club Q Defendants): Affirmed dismissal of CPLA claims for failure to plausibly allege causation. Under the 2022 amendment reacting to Rocky Mountain Planned Parenthood, Inc. v. Wagner, courts must consider whether a third-party criminal act was the “predominant cause,” and the complaint’s own allegations established the shooter’s actions predominated.
  • Negligence & wrongful death (Club Q Defendants): Reversed denial of dismissal. The CPLA provides the exclusive remedy for the alleged on-premises injuries (including those tied to security policies, staffing, training, egress), so common-law negligence and related wrongful-death theories are preempted.

III. Analysis

A. Precedents Cited

1. State-created danger and the “affirmative conduct” precondition

The panel anchored its § 1983 analysis in the Supreme Court’s baseline non-liability rule for private violence in DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., then applied Tenth Circuit doctrine requiring plaintiffs to plead both (i) private violence and (ii) state “affirmative conduct,” plus the multi-factor test summarized in Matthews v. Bergdorf and Est. of B.I.C. v. Gillen.

  • DeShaney v. Winnebago Cnty. Dep't of Soc. Servs.: Sets the general rule that failure to protect against private violence does not violate due process. This is the “starting presumption” the plaintiffs had to overcome.
  • Matthews v. Bergdorf and Est. of B.I.C. v. Gillen: Supply the Tenth Circuit’s state-created-danger framework and the requirement that “affirmative” conduct must surpass “mere negligence or inaction.” The panel treated this as a gating requirement: no affirmative conduct, no claim.
  • Gray v. Univ. of Colo. Hosp. Auth.: The decisive analogue. Gray held that “generally-applicable policies and customs” do not “foist upon anyone an immediate threat of harm having a limited range and duration,” and that policy-level conduct not directed at a discrete plaintiff is too remote. The panel used Gray to reject the theory that countywide ERPO non-enforcement policies created an “immediate threat” or targeted plaintiffs as opposed to the public at large.
  • Ruiz v. McDonnell and Robbins v. Oklahoma: Reinforced that state actions like licensing (or policy choices) tend to create risks of “indefinite range and duration,” not the immediate, limited threat required. The panel treated these as supporting the same “remoteness” logic applied to the ERPO policies.
  • Graham v. Indep. Sch. Dist. No. I-89: Emphasized that knowledge of danger plus failure to act remains inaction, not affirmative conduct—used to classify much of plaintiffs’ pleading as non-actionable omission.
  • Armijo ex rel. Chavez v. Wagon Mound Public Schools: Plaintiffs invoked Armijo to argue immediacy does not require instantaneous harm. The panel distinguished it because the officials’ conduct there placed a specific student in a short, direct path to self-harm (immediate, individualized risk).
  • Uhlrig v. Harder: Plaintiffs relied on it for timing; the panel read Uhlrig as not relaxing the “immediate” requirement so much as turning on whether risk was “substantial.”
  • Currier v. Doran: The plaintiffs’ best “safety valve removed” authority. The panel accepted the general proposition that the state can be liable when it affirmatively cuts off sources of aid, but confined Currier to conduct that (i) was directed at identifiable victims (the children) and (ii) immediately escalated danger. ERPO policies, by contrast, were countywide and temporally diffuse.

The panel also addressed plaintiffs’ out-of-circuit authorities—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, and Pauluk v. Savage—largely to explain why they were not persuasive under Tenth Circuit constraints: those cases involved state action aimed at specific victims or explicit/implicit sanctioning of specific private violence, unlike a broadly applicable non-enforcement policy.

2. Supplemental jurisdiction: “common nucleus of operative fact”

  • Carlsbad Tech., Inc. v. HIF Bio, Inc.: Distinguished jurisdiction (power) from discretion (choice) under § 1367(c). The panel used it to frame why § 1367(a) must be answered first.
  • Royal Canin U.S.A., Inc. v. Wullschleger and City of Albuquerque v. Soto Enters., Inc.: Supplied the rule that a court cannot “decline” supplemental jurisdiction it never had; § 1367(c) discretion presupposes § 1367(a) jurisdiction.
  • 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: Provided the constitutional and statutory “common nucleus of operative fact” standard. The panel applied that standard in a practical way: all claims arose from the same shooting event and injuries.
  • Estate of Harshman v. Jackson Hole Mountain Resort Corp.: The panel relied heavily on this analogy—claims against different actors (resort vs. federal overseer) still shared a common nucleus because they arose from the same accident. The Club Q shooting played the same unifying role here.
  • King Fisher Marine Serv., Inc. v. 21st Phx. Corp., Sinclair v. Soniform, Inc., Feigler v. Tidex, Inc.: Reinforced that different defendants and different evidence do not defeat supplemental jurisdiction where claims are tied to one event or project.
  • Nanavati v. Burdette Tomlin Memorial Hospital and Joyner v. Morrison & Foerster LLP: Used to reject the Club Q Defendants’ “mere tangential overlap” argument; the panel distinguished Joyner as involving only an employment relationship overlap, unlike shared injury-causing events here.

3. Colorado premises liability, the 2022 amendment, and exclusivity

  • Jordan v. Panorama Orthopedics & Spine Ctr., PC: Provided the core boundary principle: the CPLA applies to injuries by reason of conditions, activities, or circumstances on the property tied to the defendant’s capacity as landowner.
  • Rocky Mountain Planned Parenthood, Inc. v. Wagner: Served as the interpretive pivot for the 2022 amendment. The panel treated the amendment as embracing the dissent’s “predominant cause” emphasis in mass-shooting contexts.
  • City of Aurora v. Loveless: Recognized that causation is often a jury question, but the panel used pleading standards and the post-amendment framework to conclude plausibility can fail as a matter of law.
  • Taco Bell, Inc. v. Lannon and Garcia v. Colorado Cab Co.: Plaintiffs cited these for jury-causation principles in violent-crime cases; the panel distinguished them because Taco Bell predates the CPLA and Garcia was not a CPLA case.
  • Castaldo v. Stone, Ireland v. Jefferson Cnty. Sheriff's Dep't, Phillips v. Lucky Gunner, LLC, Nowlan v. Cinemark Holdings, Inc.: The district court cited these for the intuition that mass shooters are predominant causes; the panel acknowledged distinctions (timing, posture, claim types), but held the 2022 amendment and the complaint’s allegations independently supported dismissal.
  • Macomber v. Nations Roof, LLC, Larrieu v. Best Buy Stores, L.P., Vigil v. Franklin: Established CPLA exclusivity when applicable and that the applicability question can be decided by a court (not inherently reserved for a jury), supporting dismissal of duplicative negligence/wrongful-death theories at the pleading stage when the complaint itself locates the duty “while on the premises.”
  • Tancrede v. Freund, Tolle v. Steeland, LLC, Grizzell v. Hartman Enters., Stone v. Life Time Fitness, Inc., Sweeney v. United Artists Theater Cir., Inc.: Supported the breadth of “conditions/circumstances” (including inadequate safety/security measures) and the well-established rule that the CPLA abrogates common-law negligence claims against landowners.

B. Legal Reasoning

1. Why the ERPO policies did not create a constitutionally actionable danger

The panel’s approach is notably strict and two-step:

  1. Separate omissions from policy-level conduct: Most allegations (failure to seek ERPOs, failure to prevent firearm access, ignoring warning signs) were characterized as inaction barred by DeShaney. The panel acknowledged that adopting ERPO non-enforcement policies is “more than” inaction, but that concession did not carry plaintiffs across the affirmative-conduct threshold.
  2. Demand immediacy and individualized direction: Following Gray v. Univ. of Colo. Hosp. Auth., the panel required the policy to impose an “immediate threat of harm” with limited range/duration and to be directed at a discrete plaintiff, not the public. Countywide “non-enforcement” of a red-flag mechanism was treated as creating, at most, a generalized, temporally diffuse “indefinite risk.”

The practical doctrinal point is that even a deliberate, announced governmental resistance policy will not satisfy “affirmative conduct” unless it (as pleaded) tightly connects to an immediate, individualized escalation of danger.

2. Supplemental jurisdiction: one violent event can unify distinct theories and defendants

The panel treated the “common nucleus” inquiry as event-centered and injury-centered: despite different defendants, duties, and proof, the claims were expected to be tried together because they arose from the same shooting, the same victims, and overlapping background facts (the perpetrator’s pre-shooting conduct and the shooting itself).

Importantly, the panel also clarified a sequencing rule: a court should not skip § 1367(a) and jump to § 1367(c), because discretionary declination presupposes the existence of supplemental jurisdiction. Even though the district court’s sequencing was wrong, it was harmless because § 1367(a) was satisfied.

3. CPLA causation after the 2022 amendment: “predominant cause” as a pleading-stage barrier in mass shootings

The opinion’s most consequential state-law analysis is its reading of Colo. Rev. Stat. § 13-21-115(2)(e) as effectively steering courts toward the Wagner dissent’s “predominant cause” framing. On that reading, the shooter’s “premeditated and intentional actions” will ordinarily dwarf negligent-security allegations, making landowner negligence “insignificant” as a substantial factor.

The court did not declare an absolute categorical rule that mass-shooter causation always defeats CPLA claims. But it applied the amendment in a way that makes dismissal likely where the complaint itself depicts the shooter’s conduct as the overwhelming cause and offers security-lapse allegations similar in kind to those debated in Rocky Mountain Planned Parenthood, Inc. v. Wagner.

4. CPLA exclusivity: security staffing/training decisions remain “conditions or circumstances” on the property

Having affirmed dismissal of the CPLA claim, the panel nonetheless held the CPLA still preempts parallel negligence and wrongful-death claims—because exclusivity turns on the nature of the injury and duty (injury while on the property by reason of its conditions/circumstances), not on whether the plaintiff successfully pleaded CPLA causation.

The panel also rejected the idea that “corporate decisions, training, and staffing deficiencies” necessarily escape the CPLA: when those decisions describe on-premises security conditions for invitees, they are still within the CPLA’s scope, so common-law theories are displaced.

C. Impact

  • Federal constitutional tort limits in gun-violence policy cases: The decision signals that broad “non-enforcement” policies (even if politically defiant and arguably reckless) are unlikely to satisfy state-created-danger pleading requirements in the Tenth Circuit unless tied to a discrete victim and immediate danger.
  • Event-based supplemental jurisdiction in mass casualty litigation: Plaintiffs can generally keep multi-defendant, mixed federal/state cases in one federal forum at least through the § 1367(a) stage when claims stem from one mass-violence incident, even if the defendants’ alleged contributions are temporally and doctrinally distinct.
  • Colorado premises liability after the 2022 amendment: The opinion operationalizes the amendment as a strong causation screen in mass shooting cases, making “predominant cause” a potent basis for dismissal under Rule 12(b)(6), not merely for summary judgment.
  • Exclusive-remedy enforcement even when CPLA claims fail: Plaintiffs may face a “double bind”: CPLA is exclusive (so negligence claims are barred), while the CPLA claim may fail on predominant-cause pleading under the amendment. That combination can substantially narrow civil recovery routes against landowners in mass-shooting scenarios.

IV. Complex Concepts Simplified

  • State-created danger: A narrow exception letting plaintiffs sue the government for harm by a private actor if the government’s affirmative conduct created or increased the danger. In the Tenth Circuit, this usually requires conduct that puts a specific person at an immediate, serious risk—not just a generalized policy affecting everyone.
  • “Affirmative conduct” vs. inaction: Failing to act (even badly) is generally not enough. The plaintiffs argued the ERPO policy was an “act,” but the court held it still failed because it created no immediate, individualized danger.
  • Supplemental jurisdiction (“common nucleus of operative fact”): Federal courts can hear state claims if they are part of the same overall “case”—typically meaning they arise from the same event(s) and injuries such that you’d expect one combined trial.
  • CPLA “predominant cause” vs. “substantial factor”: Even if a landowner’s negligence contributed, a third-party’s intentional crime can be so dominant that the landowner’s role is legally treated as not substantial. After the 2022 amendment, courts must explicitly consider whether the criminal act predominated.
  • CPLA exclusivity: If the injury occurred on the landowner’s property because of conditions/circumstances/activities there, the CPLA is the only path—plaintiffs cannot repackage the same theory as ordinary negligence or wrongful death.

V. Conclusion

Vance v. G.I.G. sharpens two limiting doctrines. First, it tightens the Tenth Circuit’s state-created-danger “affirmative conduct” gate by holding that broadly applicable governmental non-enforcement policies (here, ERPO non-petition policies) do not create the immediate, plaintiff-directed risk required for § 1983 liability, even when the alleged stakes are grave. Second, it gives strong effect to Colorado’s post-Wagner CPLA amendment: in mass-shooting premises cases, the shooter’s intentional acts will ordinarily be treated as the predominant cause at the pleading stage, while the CPLA simultaneously remains the exclusive remedy—preempting negligence and wrongful-death claims grounded in on-premises security conditions.