Vance v. Aldrich

majority opinion

Appellate Case: 25-1326 Document: 56-1 Date Filed: 09/09/2026 Page: 1

FILED

United States Court of Appeals

PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS September 9, 2026

Christopher M. Wolpert

FOR THE TENTH CIRCUIT Clerk of Court

ADRIANA VANCE, for deceased on

behalf of Raymond Green; TANYA

BEAL, for deceased on behalf of

Kelly Loving; JULIA RUMP, for

deceased on behalf of Derrick Rump;

JOHN ARCEDIANO; JANCARLOS

DEL VALLE; ASHTIN GAMBLIN;

JERECHO LOVEALL; ANTHONY

MALBURG; CHARLENE SLAUGH;

JAMES SLAUGH; BRIANNA

WINNINGHAM,

Plaintiffs - Appellants/CrossAppellees,

v. No. 25-1326

ANDERSON LEE ALDRICH,

Consolidated Defendant -Appellee,

and

EL PASO COUNTY BOARD OF

COMMISSIONERS; KENNETH

ROMINES; NICHOLAS GRZECKA,

Defendants - Appellees,

and

G.I.G, INC., d/b/a Club Q; CLUB Q,

LLC, d/b/a Club Q; 3430 N.

ACADEMY, LLC; ACADEMY3430,

LLC; MATTHEW HAYNES,

Appellate Case: 25-1326 Document: 56-1 Date Filed: 09/09/2026 Page: 2

Defendants - Appellees/CrossAppellants.

BARRETT HUDSON,

Consolidated Plaintiff -Appellant/Cross-Appellee,

ADRIANA VANCE, for deceased on

behalf of Raymond Green; TANYA

BEAL, for deceased on behalf of

Kelly Loving; JULIA RUMP, for

deceased on behalf of Derrick Rump;

JOHN ARCEDIANO; JANCARLOS

DEL VALLE; ASHTIN GAMBLIN;

JERECHO LOVEALL; ANTHONY

MALBURG; CHARLENE SLAUGH;

JAMES SLAUGH; BRIANNA

WINNINGHAM,

Plaintiffs,

v. No. 25-1328

EL PASO COUNTY BOARD OF

COMMISSIONERS; BILL ELDER,

Sheriff of El Paso County Sheriff's

Office, in his official and individual

capacities; G.I.G, INC., d/b/a Club Q;

CLUB Q, LLC, d/b/a Club Q; 3430 N.

ACADEMY, LLC; ACADEMY3430,

LLC; MATTHEW HAYNES;

KENNETH ROMINES; NICHOLAS

GRZECKA,

Defendants - Appellees,

ANDERSON LEE ALDRICH,

Consolidated Defendant -2

Appellate Case: 25-1326 Document: 56-1 Date Filed: 09/09/2026 Page: 3

Appellee.

ADRIANA VANCE, for deceased on

behalf of Raymond Green; TANYA

BEAL, for deceased on behalf of

Kelly Loving; JULIA RUMP, for

deceased on behalf of Derrick Rump;

JOHN ARCEDIANO; JANCARLOS

DEL VALLE; ASHTIN GAMBLIN;

JERECHO LOVEALL; ANTHONY

MALBURG; CHARLENE SLAUGH;

JAMES SLAUGH; BRIANNA

WINNINGHAM,

Plaintiffs - Appellees,

and

BARRETT HUDSON,

Consolidated Plaintiff -Appellee,

v. No. 25-1329

G.I.G, INC., d/b/a Club Q; CLUB Q,

LLC, d/b/a Club Q; 3430 N.

ACADEMY, LLC; ACADEMY3430,

LLC; MATTHEW HAYNES,

Defendants - Appellants,

and

ANDERSON LEE ALDRICH,

Consolidated Defendant,

and

EL PASO COUNTY BOARD OF

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COMMISSIONERS; BILL ELDER,

Sheriff of El Paso County Sheriff’s

Office, in his official and individual

capacities; KENNETH ROMINES;

NICHOLAS GRZECKA,

Defendants.

Appeal from the United States District Court

for the District of Colorado

(D.C. Nos. 1:24-CV-03190-WJM-MDB & 1:24-CV-3193-WJM-MDB)

Patrick A. Huber of Romanucci & Blandin, LLC, Chicago, Illinois (Sarah M. Raisch of Romanucci & Blandin, LLC, Chicago, Illinois; and Bradley T. Bufkin and Matthew L. Schneider of Bufkin & Schneider Law, LLC, Colorado Springs, Colorado, with him on the briefs), for Plaintiffs-Appellants/Cross-Appellees and Consolidated Plaintiff/Cross-Appellee.

Nathan J. Whitney, First Assistant County Attorney (Bryan E. Schmid, Senior County Attorney, with him on the brief), Colorado Springs, Colorado, for Defendants-Appellees El Paso County Board of County Commissioners and Sheriff Bill Elder.

Michael D. Kuhn of KLCS PC, Colorado Springs, Colorado (Paul D. Godec and Jonathan M. Abramson of SGR, LLC, Denver, Colorado, with him on the briefs), for Defendants-Appellees/Cross-Appellants.

Before PHILLIPS, McHUGH, and EID, Circuit Judges.

PHILLIPS, Circuit Judge.

In November 2022, Anderson Aldrich carried an AR-15-style rifle and a

handgun into Club Q, an LGBTQIA+ nightclub in Colorado Springs. Aldrich

then opened fire, murdering five people and injuring twenty-five others.

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Plaintiffs are survivors of the shooting and the families of three people

Aldrich murdered. They sued the El Paso County Board of County

Commissioners, the El Paso County Sheriff, and individuals and entities

associated with Club Q.

Against the County Defendants, Plaintiffs brought substantive due

process claims through 42 U.S.C. § 1983 under a state-created-danger theory of

liability, as well as related wrongful-death claims. Plaintiffs alleged that the

County Defendants’ policies prohibited law enforcement from seeking

emergency protection orders, which would have kept dangerous individuals like

Aldrich from accessing firearms. In other words, they asserted that these

defendants denied them a state-granted protection, which increased their

vulnerability to private violence.

Against the Club Q Defendants, Plaintiffs brought state-law claims under

the Colorado Premises Liability Act, as well as related negligence and

wrongful-death claims. Plaintiffs alleged that the Club Q Defendants

contributed to their injuries by not taking adequate security and safety

measures to protect patrons.

The County Defendants and the Club Q Defendants separately moved to

dismiss under Federal Rule of Civil Procedure 12(b)(6). The district court

granted the County Defendants’ motion in full and the Club Q Defendants’ in

part. The court dismissed the § 1983 and related wrongful-death claims because

Plaintiffs didn’t plausibly allege that the County Defendants engaged in

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affirmative danger-creating conduct, as required by the state-created-danger

theory. The court also dismissed the CPLA claims because Plaintiffs didn’t

plausibly allege causation. But the court declined to dismiss the negligence and

wrongful-death claims against the Club Q Defendants. Those defendants had

argued that the CPLA provided the exclusive remedy for Plaintiffs’ claims

against them. But the court ruled that deciding this issue involved a “factintensive inquiry” inappropriate at the pleading stage.

After these rulings, no federal claims remained. So on the parties’

motions, the district court declined to exercise supplemental jurisdiction over

the remaining state-law claims. The court then entered judgment.

Plaintiffs and the Club Q Defendants both appealed. 1 Plaintiffs argue that

they sufficiently pleaded their § 1983 and CPLA claims. The Club Q

Defendants argue that the district court lacked subject-matter jurisdiction over

the state-law claims against them and, in the alternative, erred in denying their

motion to dismiss Plaintiffs’ negligence and wrongful-death claims.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in part and

reverse in part. For the § 1983 claims, Plaintiffs didn’t allege that the County

Defendants’ conduct put Plaintiffs, specifically, at immediate risk of harm. So

Plaintiffs’ allegations didn’t satisfy the state-created-danger theory’s

The Clerk’s Office consolidated three appeals from the district court’s

judgment (two from different plaintiffs, one from a subset of the Club Q Defendants). This opinion addresses all three.

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affirmative-conduct precondition, and the district court correctly dismissed the

claims.

For the claims against the Club Q Defendants, the district court had

subject-matter jurisdiction under 28 U.S.C. § 1367(a). And because Plaintiffs’

allegations establish that Aldrich’s actions were the predominant cause of

Plaintiffs’ injuries, the court correctly dismissed the CPLA claims. But the

court erred by denying the Club Q Defendants’ motion to dismiss the

negligence and wrongful-death claims. The CPLA provides the exclusive legal

remedy for Plaintiffs’ injuries, which arose from Club Q’s conditions. Because

the CPLA precludes Plaintiffs’ negligence and wrongful-death claims, the

district court should have dismissed those claims, too.

BACKGROUND

I. Factual Background

This appeal arises from consolidated lawsuits. 2 Two groups of plaintiffs

brought the first: (1) shooting survivors; and (2) the estates of Raymond Green,

Kelly Loving, and Derrick Rump, three people killed in the shooting. Another

shooting survivor, Barrett Hudson, brought the second. 3

Those cases are Vance v. El Paso County Board of County

Commissioners, 24-cv-03190 (D. Colo. 2024), and Hudson v. Board of County Commissioners of El Paso County, 24-cv-3193 (D. Colo. 2024).

The lawsuits’ complaints are substantially similar, except for Hudson’s

bringing assault and battery claims against Aldrich. Because Aldrich never answered Hudson’s complaint, the district-court clerk entered default judgment

(footnote continued)

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Plaintiffs sued the El Paso County Board of County Commissioners and

Sheriff Bill Elder. The Board was the main policymaking body for El Paso

County, and Sheriff Elder headed the El Paso County Sheriff’s Office.

Plaintiffs also sued several parties affiliated with Club Q: G.I.G., Inc.; Club Q,

LLC; 3430 N. Academy LLC; Academy3430, LLC; Matthew Haynes; Kenneth

Romines; and Nicholas Grzecka. 4 G.I.G., Inc. and Club Q, LLC operated Club

Q. Matthew Haynes, Kenneth Romines, and Nicholas Grzecka were Club Q’s

co-owners. And Academy, LLC, and Academy3430 owned Club Q’s building.

Plaintiffs allege that Aldrich, the County Defendants, and the Club Q

Defendants all contributed to their injuries from the shooting. 5

A. Aldrich’s Conduct

Around midnight on November 19, 2022, 22-year-old Anderson Aldrich

walked into Club Q, an LGBTQIA+ nightclub in Colorado Springs, Colorado.

Aldrich carried an AR-15-style rifle, wore a tactical vest and ballistic plates,

against Aldrich. That default judgment isn’t at issue on appeal. So we don’t focus on the claims against Aldrich.

It’s unclear whether Plaintiffs ever successfully served Romines. And because Grzecka filed for bankruptcy, the case against him was automatically stayed. Neither was active in the lawsuits or appeals.

Because both the district court and the parties rely on the complaint from the Vance lawsuit, we also rely on that complaint for the factual allegations.

Appellate Case: 25-1326 Document: 56-1 Date Filed: 09/09/2026 Page: 9

and had a handgun strapped to the vest. 6 After entering the nightclub “without

restriction,” Aldrich started shooting, murdering five people and injuring

twenty-five others. App. vol. I at 37. A few Club Q patrons heroically subdued

Aldrich, and first responders arrived soon after.

Both the state and federal government prosecuted Aldrich. In state court,

Aldrich pleaded guilty to five counts of first-degree murder and forty-six

counts of attempted murder, while also pleading no contest to two hate crimes.

In federal court, Aldrich pleaded guilty to seventy-four federal hate crimes and

gun offenses. Aldrich received multiple life sentences.

B. The County Defendants’ Conduct

In 2019, Colorado adopted the Colorado Violence Prevention Act. That

Act is Colorado’s version of a “Red Flag Law.” Red Flag Laws “provide[] a

legal mechanism to restrict firearm access for individuals displaying a pattern

of statements and behaviors indicating an intent to inflict violence.” Id. at 44.

The Act allows various people and institutions—including law

enforcement—to request Extreme Risk Protection Orders (ERPOs). Colo. Rev.

Stat. §§ 13-14.5-103, -104. An ERPO temporarily prevents a person who poses

a significant risk of harm to self or others from possessing or buying firearms.

Id. §§ 13-14.5-103(3), -105(2). The Act “does not require” law-enforcement

Aldrich identifies as non-binary and uses “they/them” pronouns. To avoid confusion with antecedents and enhance readability, we use Aldrich’s surname throughout this opinion.

Appellate Case: 25-1326 Document: 56-1 Date Filed: 09/09/2026 Page: 10

officers to request ERPOs. Id. § 13-14.5-113(4); see also id. § 13-14.5-103(1)(a). Instead, whether to request an ERPO is discretionary. See id.

But the County Defendants never gave county law enforcement a chance

to exercise that discretion. Before the governor even signed the bill that became

the Act, the El Paso County Board of County Commissioners unanimously

passed a resolution committing to “actively resist the bill in its current and

subsequent forms.” App. vol. I at 115. The Board also pledged not to fund or

support the bill. Following suit, the El Paso County Sheriff’s Office issued a

formal statement saying that, absent exigent circumstances and probable cause

of a crime, it wouldn’t seek ERPOs. 7

By the 2022 Club Q shooting, the Sheriff’s Office hadn’t petitioned for a

single ERPO. Yet according to Plaintiffs, Aldrich had given county law

enforcement good reason to seek one. In June 2021, Aldrich held Aldrich’s

grandparents at gunpoint, threatened to kill them, and showed them a

homemade bomb. The grandparents escaped and called 911. Aldrich’s

grandmother told officers that, in addition to “making a bomb,” Aldrich had

collected weapons and aspired to be “the next mass killer.” Id. at 51 (citation

The Red Flag Law doesn’t require ERPO petitioners to show probable cause. Instead, a petitioner must “[a]llege that the respondent poses a significant risk of causing personal injury to self or others by having in the respondent’s custody or control a firearm or by purchasing, possessing, or receiving a firearm.” Colo. Rev. Stat. § 13-14.5-104(3)(a). The petitioner must also provide an affidavit identifying “specific statements, actions, or facts that give rise to a reasonable fear of future dangerous acts by the respondent.” Id.

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omitted). While searching the grandparents’ house, where Aldrich also stayed,

the Sheriff’s Office found bomb-making materials. Aldrich was charged with

several felonies, including first-degree kidnapping.

But Aldrich soon posted bond. And just a few months later, some of

Aldrich’s family members told the state court that Aldrich was 3-D printing gun

parts. Those family members also worried that Aldrich would “hurt or murder”

the grandparents. Id. at 54. Then during a hearing, the state court expressed

concern that Aldrich was also “planning for something” unrelated to the

grandparents, emphasizing that Aldrich was “saving all th[o]se firearms and

trying to make this bomb.” Id. (citation omitted).

Despite these concerns, the charges were dismissed, 8 and the state court

sealed the case records. Soon after, Aldrich tried to retrieve “seized firearms”

from the Sheriff’s Office but was unsuccessful. Id. at 55. Still, because law

enforcement never sought an ERPO, Aldrich could buy and possess firearms

without restriction. And over the next few months, Aldrich did just that,

gathering guns and ammunition to prepare for the Club Q shooting.

C. The Club Q Defendants’ Conduct

According to Plaintiffs, the Club Q Defendants failed to provide adequate

security for the nightclub. At one point, Club Q had over four security

Aldrich’s grandparents had moved to Florida, and the district attorney had trouble serving them. Eventually, the state court refused to grant another continuance and dismissed the charges for failure to prosecute.

Appellate Case: 25-1326 Document: 56-1 Date Filed: 09/09/2026 Page: 12

employees, including an armed guard. But during the Covid-19 pandemic, the

club reduced security to only two staff members and dismissed the armed

guard. At the time of the shooting, the club’s head of security was unlicensed,

overworked, and lacked formal active-shooter training. What’s more, the

nightclub had no screening process, such as pat downs or metal detectors. Nor

was anyone stationed outside the entrance to monitor those entering the club.

On top of these security issues, the nightclub had only one exit: the front

door. The back door was blocked and the patio was fenced in. As a result,

Club Q patrons had no way to evacuate in an emergency, effectively creating “a

death trap.” Id. at 59.

According to Plaintiffs, the Club Q Defendants intentionally prioritized

profit over safety and security. And they did so despite knowing that, as an

LGBTQIA+ space, Club Q faced “heightened risks” of violence. See id. at 63,

84. Plus, there had been a recent attempted stabbing at Club Q and a nearby

shooting. Club Q had also received repeated threatening phone calls in the

weeks before the shooting.

In fact, Aldrich visited Club Q at least seven times between August 2021

and October 2022. During those visits, Aldrich asked about evacuation

procedures and security. Despite this suspicious questioning, Club Q took no

precautions. And the night of the shooting, Aldrich entered Club Q’s front door

“without restriction.” Id. at 37.

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II. Procedural History

A. The Complaints

Plaintiffs sued the County Defendants for substantive due process

violations under 42 U.S.C. § 1983 and alleged liability under the state-createddanger theory. They alleged that the County Defendants refused to enforce the

Red Flag Law, failed to prevent Aldrich from accessing firearms, and ignored

warning signs about Aldrich’s violent conduct. They also claimed that through

the Board’s resolution and the Sheriff’s Office’s statement, the County

Defendants maintained policies that prevented law enforcement from seeking

ERPOs. In Plaintiffs’ view, these actions increased their risk of experiencing

private violence. The Green, Loving, and Rump estates also raised related

wrongful-death claims under § 1983.

Against the Club Q Defendants, Plaintiffs brought premises-liability and

negligence claims. Plaintiffs alleged that the Club Q Defendants’ inadequate

security and safety measures contributed to their injuries. The Green, Loving,

and Rump estates also brought related wrongful-death claims under state law.

B. Motions to Dismiss

The County Defendants and the Club Q Defendants separately moved

under Rule 12(b)(6) to dismiss the claims against them. 9 Relevant here, the

During summary-judgment briefing, the district court consolidated the

Vance and Hudson lawsuits. But before the court did so, the County and Club Q Defendants had filed separate motions to dismiss in both cases.

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County Defendants argued that Plaintiffs didn’t allege facts supporting their

state-created-danger theory. The Club Q Defendants argued that a recent

amendment to the Colorado Premises Liability Act precluded Plaintiffs’

premises-liability claims. They also argued that the CPLA provided the

exclusive remedy for Plaintiffs’ injuries, warranting dismissal of the negligence

and wrongful-death claims.

Plaintiffs opposed both motions. They argued that they pleaded sufficient

facts supporting their state-created-danger theory, including that the County

Defendants’ ERPO policies 10 “affirmatively emboldened a known, imminent

threat, ensuring that neither law enforcement nor concerned citizens could stop

[Aldrich] before he struck.” App. vol. II at 160. As for the Club Q Defendants’

motion, Plaintiffs argued that they plausibly alleged their CPLA claims and that

the motion inappropriately asked the district court to find facts at the pleading

stage. Plaintiffs also argued that the CPLA didn’t preempt their negligence and

wrongful-death claims.

C. Orders on Motions to Dismiss

1. County Defendants’ Motion

The district court granted the County Defendants’ motion. Vance v. El

Paso Cnty. of Comm’rs, 794 F. Supp. 3d 915, 917 (D. Colo. 2025). It held that

Plaintiffs didn’t allege affirmative conduct under the state-created-danger

We use “ERPO policies” as shorthand for the Board’s resolution and the Sheriff’s Office’s formal statement.

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theory. Id. at 919–20. It reasoned that the County Defendants’ ERPO policies

“were commitments to do nothing” and “were not affirmative acts that created

or enhanced a risk of private harm.” Id. at 921. Put differently, by not enforcing

the Red Flag Law, the County Defendants “simply maintained the status quo.”

Id. The court also ruled that the policies didn’t create an immediate threat of

harm or target Plaintiffs. Id. at 922–23. It then held that, for similar reasons,

none of the County Defendants’ other alleged actions counted as affirmative

conduct, either. Id. at 924–25.

All that said, the court suggested that Plaintiffs had pleaded at least one

of the state-created-danger theory’s requirements: conscience-shocking

conduct. The court explained that, despite knowing that Aldrich had stockpiled

weapons and “planned to be the next mass killer,” the County Defendants

“defiantly did nothing . . . and refused to avail themselves of the critical tool

the legislature had just equipped them with . . . to take Aldrich’s firearms.” Id.

at 925–26. In the court’s view, “these allegations amount to much more than

mere negligence—they represent a conscious and intentional disregard of a

known and unjustifiable risk.” Id. at 926.

Even so, the court ruled that Plaintiffs’ allegations—“premised only on

inaction”—weren’t enough to state a substantive due process claim. Id. So it

dismissed all claims against the County Defendants. Id.

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2. Club Q Defendants’ Motion

In a second order, the district court granted in part and denied in part the

Club Q Defendants’ motion. Vance v. El Paso Cnty. of Comm’rs, 789 F. Supp.

3d 1051, 1053 (D. Colo. 2025). It dismissed the CPLA claims under “pertinent

caselaw and legislative authority” supporting the Club Q Defendants’ view that

“as a matter of law, the mass shooting committed by Aldrich was the

‘predominant cause’ of Plaintiffs’ injuries.” Id. at 1054. As for Plaintiffs’

negligence and wrongful-death claims, the district court ruled that whether the

CPLA preempted Plaintiffs’ claims was a “fact-intensive inquiry” inappropriate

at the motion-to-dismiss stage. See id. at 1061. The court highlighted that

Plaintiffs’ allegations weren’t limited to the premises layout, but included

“targeted corporate decisions, training, and staffing deficiencies.” Id. (citation

modified). So it denied the motion to dismiss these claims. Id. at 1062.

D. Order on Supplemental Jurisdiction

Once the district court dismissed the § 1983 claims, no federal claims

remained. So Plaintiffs moved under 28 U.S.C. § 1367(c) to dismiss the

remaining state-law claims against the Club Q Defendants. That subsection

allows district courts to “decline to exercise supplemental jurisdiction over a

claim” if the court “dismissed all claims over which it ha[d] original

jurisdiction.” Id. § 1367(c)(3).

That same day, the Club Q Defendants separately moved to dismiss under

Rule 12(b)(1). They argued that the court lacked subject-matter jurisdiction

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under § 1367(a), which gives federal courts supplemental jurisdiction over

state-law claims forming “part of the same case or controversy” as a federal

claim. According to the Club Q Defendants, the federal claims against the

County Defendants and the state-law claims against the Club Q Defendants

didn’t arise from a common nucleus of operative fact.

The Club Q Defendants also moved in the alternative to dismiss under

§ 1367(c). That said, in response to Plaintiffs’ motion, the Club Q Defendants

argued that the court couldn’t decline jurisdiction under § 1367(c) if it never

had jurisdiction under § 1367(a) to begin with. In other words, they argued that

the court had to dismiss under Rule 12(b)(1) instead of § 1367(c).

The district court granted Plaintiffs’ motion in full and the Club Q

Defendants’ motion in part. Vance v. El Paso Cnty. of Comm’rs, No. 24-cv3190, 2025 WL 2171839, at *1–2 (D. Colo. July 31, 2025). Despite

acknowledging that the Club Q Defendants’ position about § 1367(a) “may

have merit,” the court dismissed under § 1367(c) because “[t]he parties agree

that, even assuming that supplemental jurisdiction exists, the Court should

nonetheless decline to exercise it given its dismissal of the federal claims.” Id.

at *1. So the court assumed it had jurisdiction, declined to exercise it,

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dismissed the state-law claims without prejudice, and entered final judgment. 11

Id. at *1–2.

E. Appeals

Plaintiffs 12 and the Club Q Defendants both appealed. We organize the

issues into four challenges:

(1) Did the district court err by concluding that Plaintiffs didn’t

plausibly allege a due process claim against the County Defendants

under a state-created-danger theory?

(2) Did the district court err by declining to dismiss the state-law

claims against the Club Q Defendants for lack of subject-matter

jurisdiction?

(3) Did the district court err by concluding that Plaintiffs didn’t

plausibly allege a CPLA claim against the Club Q Defendants?

(4) Did the district court err by denying the Club Q Defendants’

motion to dismiss Plaintiffs’ negligence and wrongful-death claims?

STANDARD OF REVIEW

We review de novo a district court’s decision on a motion to dismiss.

Johnson v. Smith, 104 F.4th 153, 167 (10th Cir. 2024). We accept “all well11

Plaintiffs then filed their remaining claims in state court. Vance v. GIG, Inc. d/b/a Club Q, Civ. No. 2025CV31959 (Colo. Dist. Ct. 2025). That case is stayed pending this appeal.

The plaintiffs in the Vance and Hudson lawsuits separately appealed but filed consolidated briefing.

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pleaded allegations [in] the complaint as true and consider[] them in the light

most favorable to the nonmoving party.” Id. (citation omitted).

Typically, “[w]e review a denial of supplemental jurisdiction for abuse of

discretion.” Koch v. City of Del City, 660 F.3d 1228, 1248 (10th Cir. 2011)

(citation omitted). That’s because declining to exercise supplemental

jurisdiction under § 1367(c) isn’t “a jurisdictional matter”; it’s a “discretionary

choice not to hear the claims despite [the court’s] subject-matter jurisdiction

over them.” Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 640 (2009)

(citation omitted). But the Club Q Defendants argue that the district court never

had supplemental jurisdiction in the first place. And that’s a threshold question

that we review de novo. 13 See United States v. Hopson, 150 F.4th 1290, 1297

(10th Cir. 2025).

DISCUSSION

We start with the federal claims before turning to the state-law claims

and the district court’s jurisdiction over them.

I. Section 1983 Claims

Section 1983 allows plaintiffs to sue state- and local-government

officials for violating their federal constitutional or statutory rights. See

Hernandez v. Mesa, 589 U.S. 93, 109 (2020). Generally, a state actor’s “failure

The Club Q Defendants didn’t challenge jurisdiction until after the

court had decided their original Rule 12(b) motion. But that doesn’t matter. “Objections to subject-matter jurisdiction . . . may be raised at any time.” Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011).

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to protect an individual against private violence” doesn’t violate the Fourteenth

Amendment’s Due Process Clause. DeShaney v. Winnebago Cnty. Dep’t of Soc.

Servs., 489 U.S. 189, 197 (1989). So plaintiffs usually can’t use § 1983 to hold

state actors liable “for harm a private individual intentionally or recklessly

inflicts upon a victim.” Matthews v. Bergdorf, 889 F.3d 1136, 1143 (10th Cir.

2018). But we recognize two exceptions to this rule:

Where a private party inflicts harm upon a victim, a state actor incurs

an antecedent constitutional duty to protect the victim if the

complainant demonstrates either (1) the existence of a special

custodial relationship between the State and victim, or (2) the state

actor intentionally or recklessly created the danger that precipitated

the deprivation.

Id.

Plaintiffs’ due process claims against the County Defendants turn on the

second exception: state-created danger. To state a claim under a state-createddanger theory, a plaintiff must plead two preconditions: (1) affirmative conduct

by a state official and (2) private violence. Est. of B.I.C. v. Gillen, 761 F.3d

1099, 1105 (10th Cir. 2014). On top of that, the plaintiff must also allege that

(1) the state actor created the danger or increased the plaintiff’s

vulnerability to the danger in some way, (2) plaintiff was a member

of a limited and specifically definable group, (3) the state actor’s

conduct put plaintiff at substantial risk of serious, immediate, and

proximate harm, (4) the risk was obvious or known, (5) the state

actor acted recklessly in conscious disregard of the risk, and (6) such

conduct, when viewed in total, was conscience shocking.

Matthews, 889 F.3d at 1150.

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Conduct is “affirmative” under the first precondition only if it surpasses

“mere negligence or inaction.” Est. of B.I.C. v. Gillen, 710 F.3d 1168, 1173

(10th Cir. 2013). Affirmative conduct “typically involve[s] conduct that

imposes an immediate threat of harm, which by its nature has a limited range

and duration.” Gray v. Univ. of Colo. Hosp. Auth., 672 F.3d 909, 920 (10th Cir.

2012) (citation omitted). The conduct also must be “directed at a discrete

plaintiff rather than at the public at large.” Id. (citation omitted).

According to the district court, Plaintiffs premised their allegations “only

on inaction.” Vance, 794 F. Supp. 3d at 926. Plaintiffs disagree. They say that

by adopting and enforcing policies that prevented law enforcement from

seeking ERPOs, the County Defendants interfered with protections otherwise

available to Plaintiffs, which, in turn, increased their risk of experiencing

private violence.

Plaintiffs’ allegations fall short. To start, most of their allegations

concerned the County Defendants’ inaction. They alleged that the County

Defendants refused to take advantage of the Red Flag Law, failed to prevent

Aldrich from accessing firearms, and ignored warning signs about Aldrich. This

conduct isn’t actionable because it’s not “affirmative.” Instead, it’s nothing

more than “mere negligence or inaction.” Est. of B.I.C., 710 F.3d at 1173. And

that’s not enough to meet the affirmative-conduct requirement. See id.; Robbins

v. Oklahoma, 519 F.3d 1242, 1251 (10th Cir. 2008) (holding that school’s

failure to ensure student “was placed in a safe environment” was “insufficient

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as a matter of law to result in liability” (citation omitted)); Graham v. Indep.

Sch. Dist. No. I-89, 22 F.3d 991, 993, 995 (10th Cir. 1994) (holding that

plaintiff didn’t allege affirmative conduct where officials knew of threats to

student but “failed to take action to secure his safety”).

That said, Plaintiffs insist that they did more than “allege that the County

simply failed to act.” Br. 1 at 35. Namely, they assert that through the ERPO

policies, the County Defendants actively “used [their] authority to prohibit”

officers from seeking ERPOS, which stripped Plaintiffs of a state-granted

protection. Id.

We agree that the County Defendants’ adopting and maintaining the

ERPO policies was more than “mere negligence or inaction.” Est. of B.I.C., 710

F.3d at 1173; see Robbins, 519 F.3d at 1251 (suggesting that decision to license

facility surpassed inaction). Still, to satisfy the affirmative-conduct

precondition, the state actor’s conduct must “impose an immediate threat of

harm.” Gray, 672 F.3d at 921 (citation omitted). Not only that, the threat must

be “directed at a discrete plaintiff.” Id. at 920 (citation omitted).

Plaintiffs’ allegations about the ERPO policies don’t meet these

requirements. For starters, the County Defendants’ policies didn’t create an

immediate threat of harm. This requirement demands a “causal link” between

the injury and the “danger created by” the defendant’s actions. Id. at 917

(emphasis omitted). An immediate threat of harm should also have “a limited

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range and duration,” rather than creating an “indefinite risk.” Id. (citation

omitted).

Under our precedent, generally applicable policies don’t meet the

immediate-risk-of-harm requirement. For instance, in Gray, the plaintiffs sued

a hospital under the state-created-danger theory after their family member died

while in the hospital’s care. Id. at 911–12. The plaintiffs alleged that hospital

policy allowed staff to leave patients unattended, and that this policy increased

their family member’s risk of harm. See id. at 913–14. We held that “a State’s

adoption of generally-applicable policies and customs does not foist upon

anyone an immediate threat of harm having a limited range and duration.” Id. at

926 (citation modified).

Gray forecloses Plaintiffs’ ERPO-based theories. The County

Defendants’ generally applicable ERPO policies didn’t create an immediate

threat of harm; instead, they created an “indefinite risk” of increased gun

violence within El Paso County. Indeed, the Club Q shooting didn’t happen

until years after the County Defendants adopted their policies.

Consider, too, our opinion in Ruiz v. McDonnell, 299 F.3d 1173 (10th

Cir. 2002). There, the plaintiff’s son died at a private daycare. Id. at 1178. The

plaintiff alleged that the state improperly licensed the daycare facility, thus

increasing the child’s risk of harm. Id. We held that “improper licensure did not

impose an immediate threat of harm,” but instead presented “a threat of an

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indefinite range and duration.” Id. at 1183; see also Robbins, 519 F.3d at 1251.

We can say the same about the policies here.

Plaintiffs cite Armijo ex rel. Chavez v. Wagon Mound Public Schools,

159 F.3d 1253 (10th Cir. 1998), and Uhlrig v. Harder, 64 F.3d 567 (10th Cir.

1995), to show that the risk of harm “need not materialize instantaneously” to

meet the affirmative-conduct requirement. Br. 1 at 43.

But Armijo and Uhlrig don’t sway us. In Armijo, the harm—a student’s

death by suicide—occurred shortly after the state officials’ challenged conduct:

“suspending [the student] from school, which caused him to become distraught

and to threaten violence, and then taking him to his home and leaving him

alone with access to firearms.” 159 F.3d at 1257, 1264. So there was no

question that the state actors’ conduct put the student at “immediate” risk of

harm.

As for Uhlrig, the plaintiff brought state-created-danger claims against

mental-health administrators at a state hospital after a patient killed the

plaintiff’s wife, one of the hospital’s therapists. 64 F.3d at 569, 571. The

plaintiff alleged that the state increased the therapist’s risk of harm by

eliminating a special unit at the hospital for “the criminally insane.” Id. at 569.

Though Uhlrig considered the risk of harm posed by closing the unit, which

occurred months before the therapist’s death, it didn’t discuss the immediacy of

that risk. Id. at 570–71, 575. Instead, it concluded that the therapist hadn’t

faced “a substantial risk of serious harm.” Id. at 575. So neither Armijo nor

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Uhlrig convince us that the ERPO policies created an immediate risk of harm

here.

Plaintiffs next emphasize that “the shooting occurred only four months

after Aldrich’s release from custody.” Br. 1 at 42. But that argument misses the

mark. The question is whether the County Defendants’ policies—not their

refusal to seek ERPOs—created an immediate risk of harm. 14 And for those

policies to meet the affirmative-conduct requirement, they had to immediately

increase Plaintiffs’ risk of experiencing private violence. Plaintiffs alleged no

such thing.

Plaintiffs’ claims also don’t satisfy the affirmative-conduct precondition

for a second reason: the County Defendants’ policies impacted the public, not

Plaintiffs specifically. “Because many state activities have the potential to

increase an individual’s risk of harm, we require plaintiffs alleging” a statecreated-danger theory to show that “the state’s actions place[d] [them]

specifically at risk, as distinguished from a risk that affects the public at large.”

See Gray, 672 F.3d at 926 (citation modified).

Plaintiffs’ allegations don’t meet this requirement. Returning to Ruiz,

there we held that “the mere licensure of [the daycare] was not an act directed

at [the child] which, in and of itself, placed [the child] in danger.” 229 F.3d at

1183. And in Gray, we held that “[t]he act of establishing . . . policies and

Again, the County Defendants’ refusal to seek ERPOs was nothing

more than inaction.

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customs itself does not put any particular individual at substantial risk of

serious, immediate, and proximate harm.” 672 F.3d at 926 (citation modified).

Instead, it “affects a broader populace” and is “too remote to establish the

necessary causal link between the danger to the victim and the resulting harm.”

Id. Similarly, in Hernandez v. Ridley, we held that the plaintiffs didn’t allege

affirmative conduct because they “were not identifiable victims” when the

defendant adopted the at-issue policies. 734 F.3d 1254, 1260 (10th Cir. 2013)

(citation modified).

As in Ruiz, Gray, and Hernandez, the County Defendants’ adopting and

enforcing the ERPO policies wasn’t directed at Plaintiffs. Nor did Plaintiffs

allege that the policies put them, specifically, at risk. Instead, the policies

“affect[ed] a broader populace,” i.e., everyone vulnerable to gun violence in El

Paso County. See Gray, 672 F.3d at 926. So for this reason, too, Plaintiffs don’t

meet the affirmative-conduct precondition.

Plaintiffs resist by pointing to our opinion in Currier v. Doran, 242 F.3d

905 (10th Cir. 2001). There, social workers removed two children from their

mother’s custody and asked the court to give physical custody to the father. Id.

at 909. Soon after, one social worker noticed bruises on the children. Id. at 919.

The social worker also heard that the father and his fiancée were abusing them.

Id. Yet the social worker advised the state court to give the father legal

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custody. 15 Id. Another social worker also instructed the children’s mother not to

report the father’s abuse. Id. at 921.

Ultimately, the father killed one of the children and injured the other. Id.

at 910. The children’s mother and estate sued the social workers under a statecreated-danger theory, arguing that the social workers “affirmatively removed

[the children] from the custody of their mother and then placed them in the

custody of their abusive father.” Id. at 917.

We held that both social workers engaged in affirmative conduct. For the

first social worker, we concluded that causing the children’s removal from their

mother’s custody and placing them with their father satisfied the affirmativeconduct requirement. Id. at 919, 920 n.7. We explained that “[b]y failing to

investigate the allegations of child abuse and by recommending that [the father]

assume legal custody,” the social worker put the children at an “obvious risk of

serious, immediate, and proximate harm.” 16 Id. at 920.

As for the second social worker, we concluded that instructing the mother

not to report abuse was also affirmative conduct. Id. at 921. We explained that

The plaintiffs alleged that “either through [the social worker’s] failure to investigate and report to the [court] or his affirmative recommendation to the [court],” the social worker was responsible for the court’s granting legal custody to the father. Currier, 242 F.3d at 909.

We noted that the social worker’s “failure to investigate allegations of abuse should be viewed” not as standalone conduct, but “in the general context of the state’s affirmative conduct in removing the children from their mother and placing the children with their father.” Currier, 242 F.3d at 920 n.7.

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“the state can be liable when it affirmatively places private citizens in harm’s

way by removing what would otherwise be safety valves” or “when it cuts off

potential sources of private [or state] aid.” Id. at 922. And when the social

worker told the mother to stop reporting, the social worker “increased the

children’s vulnerability to [the father’s] abuse” by “foreclos[ing]” “potential

aid.” Id.

Plaintiffs argue that, like in Currier, the County Defendants removed “a

safety valve[]”: law enforcement’s ability to seek ERPOs. See id. But that’s

where the similarities between Currier and Plaintiffs’ allegations end. The

social workers’ actions in Currier (1) specifically affected the two children and

(2) immediately increased the risk that their abusive father would harm them.

See id. at 919–22. But here, removing the “safety valve[]” that the Red Flag

Law provided didn’t create an immediate risk of harm to Plaintiffs. Instead, any

increased risk was an “indefinite,” not “immediate,” one. See Gray, 672 F.3d at

927 (citation omitted). Nor was that risk particular to Plaintiffs.

Plaintiffs also rely on a slew of out-of-circuit cases to support their

argument. But none of them changes our minds. First, Plaintiffs point to

Dwares v. City of New York, 985 F.2d 94 (2d Cir. 1993), overruled on other

grounds by Leatherman v. Tarrant Cnty. Narcotics Intel. & Coordination Unit,

507 U.S. 163 (1993). There, the plaintiff alleged that state actors “conspired

with” a violent group to let the group attack demonstrators, “assur[ing]” the

group that officers wouldn’t stop or arrest them. Id. at 99. That group then

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attacked the plaintiff during a demonstration. Id. at 96. The Second Circuit held

that these allegations of “a prearranged official sanction of privately inflicted

injury” stated a viable due process claim under a state-created-danger theory.

See id. at 99.

Plaintiffs argue that the County Defendants and the Dwares officials

“sent the same message”: officers wouldn’t use the Red Flag Law “to disarm

dangerous individuals, no matter how grave the threat.” Br. 1 at 38. But unlike

the Dwares officials, who permitted the specific private actors’ conduct, the

County Defendants adopted generally applicable policies. The County

Defendants didn’t condone or allow Aldrich’s specific actions. 17

Next, Plaintiffs contend that other circuits have “long recognized that a

government policy or directive can satisfy the affirmative-act requirement.” Id.

But again, where generally applicable policies are concerned, our precedent

holds the opposite. See Gray, 672 F.3d at 926 (“[A] State’s adoption of

generally-applicable policies and customs does not foist upon anyone an

immediate threat of harm having a limited range and duration.” (citation

Plaintiffs rely on a similar Second Circuit case, Pena v. Deprisco, 432 F.3d 98 (2d Cir. 2005). It’s distinguishable for the same reason: state actors “implicitly but affirmatively condoned” a specific private actor’s dangerous conduct. Id. at 111.

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modified)). Besides, these out-of-circuit cases all share a key fact missing from

Plaintiffs’ allegations: state action directed at a discrete plaintiff. 18

In Kallstrom v. City of Columbus, the city had a policy of “freely

releasing” undercover officers’ personal information. 136 F.3d 1055, 1067 (6th

Cir. 1998). The Sixth Circuit found that the city increased three officers’

vulnerability to private harm by releasing their information to defense counsel

in a criminal case. Id. at 1059, 1067. But unlike the facts here, Kallstrom

involved state action—releasing information to defense counsel—that increased

specific plaintiffs’—the officers and their families—vulnerability to harm. See

id.

Likewise, in Freeman v. Ferguson, 911 F.2d 52 (8th Cir. 1990), the

Eighth Circuit concluded that a plaintiff could potentially allege affirmative

conduct where the police chief had prohibited officers from responding to the

plaintiff’s requests for help. See id. at 54–55. But there, too, the state action

targeted a specific plaintiff. We can say the same about the other cases

Plaintiffs cite. See Okin v. Vill. of Cornwall-on-Hudson Police Dep’t, 577 F.3d

415, 430–31 (2d Cir. 2009) (finding a factual dispute about whether police

officers acted affirmatively by implicitly “convey[ing]” to private actor “that

he could continue to engage in domestic violence” against the plaintiff “with

Plus, there’s no universal test for the state-created-danger theory. See

Murguia v. Langdon, 73 F.4th 1103, 1112–13 (9th Cir. 2023) (Bumatay, J., dissenting). So out-of-circuit caselaw is less persuasive here.

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impunity”); Pauluk v. Savage, 836 F.3d 1117, 1125 (9th Cir. 2016) (concluding

that transferring employee to a mold-infested workspace was affirmative

conduct).

And so, because Plaintiffs’ allegations didn’t satisfy the affirmativeconduct precondition, 19 we affirm the district court’s dismissal of Plaintiffs’

§ 1983 claims. 20

II. Subject-Matter Jurisdiction

The Club Q Defendants argue that the district court lacked subject-matter

jurisdiction over the state-law claims against them. 21 Section 1367(a) gives

Though the parties contest the state-created-danger theory’s other

elements, because Plaintiffs didn’t plausibly allege the affirmative-conduct precondition, we need not address the theory’s other requirements. What’s more, Defendants argue that the state-created-danger theory isn’t rooted in history and tradition, so after Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022), we should abandon it. But because they raise this argument for the first time on appeal, they waived it. See Xlear, Inc. v. Focus Nutrition, LLC, 893 F.3d 1227, 1234 (10th Cir. 2018) (“Generally, an issue is waived if it was not raised below in the district court.” (citation modified)).

Because Plaintiffs’ wrongful-death claims against the County

Defendants also rely on the state-created-danger theory, we need not consider them separately.

Plaintiffs argue that the Club Q Defendants lack standing for this

challenge. They emphasize that the district court dismissed the state-law claims under 28 U.S.C. § 1367(c). See Vance, 2025 WL 2171839, at *1. And these defendants had sought, in the alternative, dismissal under that subsection. So Plaintiffs argue that because the Club Q Defendants “obtained the relief they sought,” they can’t appeal the court’s jurisdiction decision. Br. 3 at 1. We disagree. Parties can never forfeit or waive subject-matter jurisdiction. Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). Plus, we “have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party.” Id.

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federal courts “subject-matter jurisdiction over specified state-law claims.”

Carlsbad Tech., 556 U.S. at 639. Under that subsection, courts “shall have

supplemental jurisdiction over all other claims that are so related to claims in

the action within such original jurisdiction that they form part of the same case

or controversy under Article III.” 28 U.S.C. § 1367(a). And under § 1367(c)(3),

a court can decline supplemental jurisdiction “over a claim under [§ 1367(a)]

if” it “has dismissed all claims over which it has original jurisdiction.”

The Club Q Defendants moved under Rule 12(b)(1) for the district court

to dismiss the state-law claims for lack of subject-matter jurisdiction under

§ 1367(a). They also moved in the alternative for the court to decline

supplemental jurisdiction under § 1367(c). At the same time, Plaintiffs, too,

asked the court to decline supplemental jurisdiction under § 1367(c).

The court took Plaintiffs’ preferred, and the Club Q Defendants’

alternative, route. Rather than deciding whether it had jurisdiction under

§ 1367(a), the court assumed that supplemental jurisdiction existed and

dismissed under § 1367(c). Vance, 2025 WL 2171839, at *1.

The court erred by dismissing under § 1367(c) without first addressing its

jurisdiction under § 1367(a). Courts may decline supplemental jurisdiction

under § 1367(c) only if they have subject-matter jurisdiction under § 1367(a) to

begin with. See Royal Canin U.S.A., Inc. v. Wullschleger, 604 U.S. 22, 33–34

(2025) (“[T]here is no discretion to decline supplemental jurisdiction” where

“there is no supplemental jurisdiction at all.”); City of Albuquerque v. Soto

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Enters., Inc., 864 F.3d 1089, 1094 n.4 (10th Cir. 2017) (“To exercise

supplemental jurisdiction, a district court must have subject-matter jurisdiction

over the claims, and then choose to exercise that jurisdiction.”).

Even so, the court’s skipping over § 1367(a) makes no difference here.

That’s because the district court had subject-matter jurisdiction under that

subsection.

“A claim is part of the same case or controversy if it derives from a

common nucleus of operative fact.” Pettigrew v. Okla. ex rel. Okla. Dep’t of

Pub. Safety, 722 F.3d 1209, 1213 (10th Cir. 2013) (citation omitted). The

relationship between the federal and state claims should “permit[] the

conclusion that the entire action before the court comprises but one

constitutional case.” City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156,

165 (1997) (citation modified). Or put differently, claims meet the commonnucleus requirement if, setting aside the claims’ “federal or state character,”

one “would ordinarily be expected to try them all in one judicial proceeding.”

United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966). 22

According to the Club Q Defendants, Plaintiffs’ claims fall short of this

standard. They emphasize that the federal and state-law claims “involve

different defendants, different legal duties, different timeframes, different

Though Congress enacted § 1367 after Gibbs, the Supreme Court held that § 1367 “codified” Gibbs’s common-nucleus principle. Int’l Coll. of Surgeons, 522 U.S. at 165.

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witnesses, and different evidence.” Br. 2 at 41. So they argue that the claims

didn’t arise from the same factual nucleus.

True enough, the state-law claims involve different defendants, duties,

and evidence than the § 1983 claims. But the federal and state claims both arise

from the Club Q shooting and the events preceding it. That’s enough to satisfy

§ 1367(a).

Consider our opinion in Estate of Harshman v. Jackson Hole Mountain

Resort Corp., 379 F.3d 1161 (10th Cir. 2004). A man died in a skiing accident,

and his family sued both the ski resort and the U.S. Forest Service. Id. at 1162–

63. While the resort oversaw “daily safety decisions and management” for the

ski area, the Forest Service “provided broad oversight” by administering a

special-use permit for the resort. Id. at 1163. So the plaintiffs brought state-law

claims against the ski resort and an FTCA claim against the Forest Service. Id.

The district court dismissed the federal claims but retained supplemental

jurisdiction over the state-law claims. Id.

We ultimately held that because the court lacked original jurisdiction

over the FTCA claim, it lacked supplemental jurisdiction over the state-law

claims. Id. at 1167–68. But in dicta, we concluded that the plaintiffs met the

common-nucleus requirement for supplemental jurisdiction over the state-law

claims. See id. at 1165. We said that “the relation between [the plaintiffs’]

negligence and wrongful death claims against the United States and against [the

ski resort] would clearly derive from a ‘common nucleus of operative fact’ such

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that claims against both parties are part of the same case or controversy and

thus would be best adjudicated together.” Id.

Here, too, Plaintiffs’ claims all arise from the same event: the Club Q

shooting. In Estate of Harshman, facts surrounding the ski resort’s negligent

actions and the Forest Service’s negligent actions weren’t identical. See id. at

1163. Yet we still thought that claims arising from the ski accident were part of

the same case or controversy. As in Harshman, though the County Defendants

and Club Q Defendants took different actions that allegedly contributed to

Plaintiffs’ injuries, the claims against them still share a common nucleus of

operative fact—the shooting itself.

The Club Q Defendants suggest that this result is possible only under a

“loosely connected” common-nucleus test adopted by the Seventh Circuit. See

Br. 2 at 39–40; Baer v. First Options of Chi., Inc., 72 F.3d 1294, 1299 (7th Cir.

1995) (holding that claims need have only a loose factual connection to meet the

common-nucleus requirement). They argue that this test “cannot be squared with

Gibbs’s constitutional test and has been repeatedly rejected by courts.” Br. 2 at

39.

But we need not decide today whether to adopt a “loosely connected”

test. That’s because Plaintiffs’ allegations satisfy Gibbs’s common-nucleus

standard; Plaintiffs’ federal and state claims, which arose from a common event

and injuries, are part of the same case or controversy. See King Fisher Marine

Serv., Inc. v. 21st Phx. Corp., 893 F.2d 1155, 1160 (10th Cir. 1990)

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(concluding that different claims against different parties that all related to one

construction project satisfied the common-nucleus requirement); Sinclair v.

Soniform, Inc., 935 F.2d 599, 603 (3d Cir. 1991) (holding that claims arising

from same maritime accident and injuries shared a common nucleus of

operative fact); Feigler v. Tidex, Inc., 826 F.2d 1435, 1439 (5th Cir. 1987)

(similar). Indeed, “to vindicate values of economy, convenience, fairness, and

comity,” Est. of Harshman, 379 F.3d at 1164, one would reasonably expect

Plaintiffs “to try [the federal and state claims] all in one judicial proceeding,”

Gibbs, 383 U.S. at 725.

The Club Q Defendants cite 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), to argue that “‘mere tangential overlap of facts

is insufficient’” to meet the common-nucleus requirement. Br. 2 at 38 (quoting

Nanavati, 857 F.2d at 105).

But Nanavati cuts against their argument. In that case, the Third Circuit

also said that “total congruity between the operative facts of the two cases is

unnecessary.” 857 F.2d at 105. In fact, the court held that the state-law

(slander) and federal (antitrust) claims satisfied the common-nucleus

requirement where they shared “a critical background fact”—“the enmity”

between two of the parties—and where evidence on one claim “could [be]

use[d]” as evidence or a defense for the other claim. Id. at 105–06. As in

Nanavati, Plaintiffs’ claims share critical background facts: Aldrich’s pre36

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shooting actions and the shooting itself. Plus, evidence on the federal claims

might impact causation on the state-law claims, and vice versa.

As for Joyner, there the only factual overlap between the federal and

state claims was the plaintiff’s employment relationship with the defendants.

140 F.4th at 536–37. And again, Plaintiffs’ claims here have more in common

than that—their claims share common background facts and common injuries.

Thus, under 28 U.S.C. § 1367(a), the district court properly exercised

supplemental jurisdiction over the state-law claims against the Club Q

Defendants. 23

III. State-Law Claims

Plaintiffs challenge the district court’s ruling on their CPLA claims,

while the Club Q Defendants challenge its ruling on Plaintiffs’ negligence and

wrongful-death claims. On the CPLA claims, Plaintiffs argue that they

plausibly alleged that the Club Q Defendants substantially contributed to their

injuries by not providing adequate security or safe property conditions. And on

the negligence and wrongful-death claims, the Club Q Defendants argue that

because the CPLA provides the exclusive remedy for Plaintiffs’ injuries, the

court should have dismissed those claims, too.

We address each challenge in turn.

Because no one argues that the district court abused its discretion by

dismissing the remaining state-law claims under 28 U.S.C. § 1367(c), we do not address that ruling.

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A. CPLA Claims

The CPLA, Colo. Rev. Stat. § 13-21-115, “limits a landowner’s potential

liability for an injury occurring on [the landowner’s] real property . . . by

reason of the condition of such property, [or] activities conducted or

circumstances existing on such property.” Jordan v. Panorama Orthopedics &

Spine Ctr., PC, 346 P.3d 1035, 1040 (Colo. 2015) (citation modified). But the

CPLA doesn’t govern every tort occurring on someone else’s property; it

applies only to injuries resulting from “conditions, activities, and

circumstances on the property that the landowner is liable for in its legal

capacity as a landowner.” Id. at 1041 (citation omitted).

A person’s ability to recover under the CPLA depends on his or her status

as a trespasser, licensee, or invitee. See Colo. Rev. Stat. § 13-21-115(4).

Invitees like Plaintiffs can “recover for damages caused by the landowner’s

unreasonable failure to exercise reasonable care to protect against dangers the

landowner actually knew about or should have known.” 24 Id. § 13-21-115(4)(c)(I).

The district court concluded that “Defendants concede[d] at this stage in the litigation that they are landowners and that Plaintiffs are invitees under the CPLA.” Vance, 789 F. Supp. 3d at 1054. An “invitee” is “a person who enters or remains on the land of another to transact business in which the parties are mutually interested or who enters or remains on such land in response to the landowner’s express or implied representation that the public is requested, expected, or intended to enter or remain.” Colo. Rev. Stat. § 13-21-115(7)(a).

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In 2022, the Colorado legislature amended the CPLA. See Colo. Rev.

Stat. § 13-21-115(2)(e). That amendment addresses a Colorado Supreme Court

opinion, Rocky Mountain Planned Parenthood, Inc. v. Wagner, 467 P.3d 287

(Colo. 2020). Because our analysis depends on Wagner and the 2022

amendment, we describe both in detail.

Wagner arose from a 2015 mass shooting at a Planned Parenthood facility

in Colorado Springs. Id. at 288. The plaintiffs—people injured in the

shooting—sued under the CPLA, alleging that Planned Parenthood breached its

duty to provide a safe and secure environment for invitees. Id. at 289. The trial

court granted summary judgment to Planned Parenthood, concluding that the

shooter’s actions were the predominant cause of the plaintiffs’ injuries, and that

the injuries weren’t foreseeable. Id. at 290. The Colorado Court of Appeals

reversed, and the Colorado Supreme Court affirmed the Court of Appeals. Id. at

289–91.

On causation, the Colorado Supreme Court explained that plaintiffs must

show that the defendant’s conduct was “a substantial factor in producing the

harm.” Id. at 292 (citation modified). But “[s]ome other event which is a

contributing factor in producing the harm may have such a predominant effect

in bringing it about as to make the effect of the actor’s negligence insignificant

and, therefore, to prevent it from being a substantial factor.” Id. (citation

omitted). The Court held that Planned Parenthood hadn’t established that the

shooter’s conduct was the predominant cause of the plaintiffs’ injuries. Id. at

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293. It emphasized the plaintiffs’ evidence that Planned Parenthood knew “that

there was a risk of violence against its facilities,” but neglected to take

adequate safety precautions, such as having a full-time armed guard or a

perimeter fence. Id.

The Court then distinguished other mass-shooting cases. Id. at 293–94. It

explained that while those cases “involved random and extreme acts of violence

committed without warning or foreseeable motive,” Planned Parenthood “had

long been the subject of known threats of such violence, making the likelihood

of an event like that which occurred less remote and arguably more

foreseeable.” Id. at 294. So the court held that, “even given the magnitude of

[the shooter’s] premeditated efforts to cause mass casualties without regard for

his own survival or capture,” a reasonable jury could find that Planned

Parenthood’s “insufficient security measures [were] a substantial factor in

causing the plaintiffs’ injuries.” Id.

Three justices joined a partial dissent. First, the dissent faulted the

majority’s causation analysis:

The proximate cause analysis requires a consideration of whether the

actions of [Planned Parenthood], as a landowner, can be said to be a

substantial factor in causing a mass shooting on its property. I would

conclude that they cannot, and that[] . . . the premeditated and

intentional actions of a mass shooter are the predominant cause of

the injuries he inflicts such that any negligence on the part of a

property owner simply is not a substantial factor in causing those

injuries.

I would reach this conclusion because . . . any extra security

measures pale in comparison to the conduct of actors bent on

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inflicting mass casualties who do not employ a rational cost/benefit

calculus. And for this reason, weighing what security measures a

landowner might adopt to protect against mass shooters is not

bounded by reasonableness. This, it seems to me, is precisely the

type of circumstances in which one cause of the plaintiffs’ injuries—

a mass shooter, not concerned about detection or death and intent

upon causing as much damage as possible in the time he has—is the

predominant cause such that any negligence by [Planned

Parenthood] could not be a substantial factor in causing those

injuries.

Id. at 300 (Hart, J., dissenting) (citation modified).

Second, the dissent faulted the majority’s reasoning that—because

Planned Parenthood had received threats before—the mass shooting was

foreseeable. Id. at 301. Under that approach, the dissent warned, “certain

businesses and activities will face entirely different risks of liability than others

will.” Id. And in the dissent’s view, the proximate-cause analysis shouldn’t

“turn on how controversial the goods or services offered by a landowner are.”

Id.

In conclusion, the dissent criticized the majority for “t[ying] the liability

of the landowner to the nature of its business and ignor[ing] the reality that the

overwhelming—the predominant—cause of harm to victims of mass shootings

is the maniacal determination of the shooter himself.” Id.

Two years after Wagner, the Colorado legislature amended the CPLA by

adding subsection (2)(e):

(I) The Rocky Mountain Planned Parenthood, Inc. v. Wagner, 2020

CO 51, 467 P.3d 287, and Wagner v. Planned Parenthood

Federation of America, Inc., 2019 COA 26, 471 P.3d 1089,

decisions do not accurately reflect the intent of the general

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assembly regarding landowner liability and must not be relied

upon in applying this section to the extent that the majority

opinions determined:

(A) The foreseeability of third-party criminal conduct

based upon whether the goods or services offered

by a landowner are controversial; and

(B) That a landowner could be held liable as a

substantial factor in causing harm without

considering whether a third-party criminal act

was the predominant cause of that harm, as noted

by the dissenting justices and judge.

(II) In making this declaration, the general assembly does not intend

to reject or otherwise disturb any judicial decision other than

the Wagner decisions.

Colo. Rev. Stat. § 13-21-115(2)(e).

Here, the district court dismissed Plaintiffs’ CPLA claims after

concluding that Plaintiffs hadn’t plausibly alleged causation. See Vance, 789 F.

Supp. 3d at 1054–55. That’s because “as a matter of law, the mass shooting

committed by Aldrich was the ‘predominant cause’ of Plaintiffs’ injuries.” Id.

at 1054. Plaintiffs say the court was wrong for three reasons: (1) it misread the

2022 amendment to the CPLA, (2) it ignored that causation under the CPLA is

a jury question, and (3) it relied on inapplicable caselaw. None of these

arguments convinces us.

1. Misreading the 2022 Amendment

The district court held that because the 2022 amendment “appears to have

adopted the Wagner dissent’s view on the predominant cause issue,” it was

“constrained to conclude as a matter of law that Aldrich’s conduct was the

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predominant cause of Plaintiffs’ injuries.” Vance, 789 F. Supp. 3d at 1056,

1058. So it dismissed Plaintiffs’ CPLA claims for failing to plausibly allege

causation. See id. at 1061.

Plaintiffs disagree with the court’s reasoning, arguing that the

amendment didn’t adopt the dissent—it merely rejected two parts of the

majority opinion. They say that subsection (2)(e)(I)(B) “signaled agreement

with the policy concern underlying the dissent—that the Wagner majority might

invite expansive interpretations of landowner liability—but it did not adopt the

dissent’s categorical rule that a shooter’s conduct must always be the

predominant cause as a matter of law.” Br. 1 at 54. So in Plaintiffs’ view, the

amendment clarifies only “that courts and factfinders must consider whether a

third-party criminal act was the predominant cause”; it doesn’t “mandate . . .

that it always is.” Id.

We agree with Plaintiffs that the amendment doesn’t “mandate”

dismissing all CPLA claims involving mass shooters. But it does make it

difficult to plausibly allege landowner liability in such situations. And here, the

district court correctly held that under the 2022 amendment, Plaintiffs didn’t

plausibly allege causation.

The amendment says that the Wagner majority “d[id] not accurately

reflect the intent of the general assembly regarding landowner liability.”

Colo. Rev. Stat. § 13-21-115(2)(e)(I). Then it rejects the majority’s decision

not to resolve whether the shooter’s actions predominantly caused the

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plaintiffs’ injuries, “as noted by the dissenting justices.” See id. § 13-21-115(2)(e)(I)(B) (emphasis added). What the dissenting justices “noted” was that

they would conclude, as a matter of law, that the shooter’s “premeditated and

intentional actions” were the predominant cause of the shooting victims’

injuries. Wagner, 467 P.3d at 300 (Hart, J., dissenting). Indeed, under the

dissent’s predominant-cause approach, a shooter will almost always be the

predominant cause of mass-shooting injuries. Thus, the amendment makes it

hard, but perhaps not impossible, to plausibly allege CPLA causation when

injuries arise from a mass shooting.

What dooms the plausibility of Plaintiffs’ claims here are the factual

similarities between Wagner and Plaintiffs’ allegations. In Wagner, the

plaintiffs established that (1) Planned Parenthood “knew for many years that

there was a risk of violence against its facilities”; (2) the risk had increased

before the shooting; (3) Planned Parenthood had only one armed guard, who

was on duty only half the week for about four hours each day; and (4) Planned

Parenthood had no perimeter fence or bullet-resistant doors. Id. at 293. The

plaintiffs also offered expert testimony that Planned Parenthood’s inadequate

security increased their risk of harm, and that more security would have

prevented the shooting. Id.

At the very least, the Wagner dissent and 2022 amendment disapproved

of the Wagner majority’s holding that these actions could be a substantial

factor in causing the plaintiffs’ injuries. Even accepting as true all of Plaintiffs’

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allegations, the Club Q Defendants’ conduct—“dismantl[ing] security

measures, eliminat[ing] weapons screening, allow[ing] only one untrained and

unlicensed ‘head of security,’ fail[ing] to maintain safe egress routes, [and]

ignor[ing] escalating threats” both to LGBTQIA+ venues and specifically to

Club Q, Br. 1 at 57—didn’t play a more substantial role in causing Plaintiffs’

injuries than Planned Parenthood’s did in Wagner. In both cases, the mass

shooter’s actions were undoubtedly the predominant cause of the invitees’

injuries. Thus, considering the 2022 amendment and Wagner’s facts, Plaintiffs

did not plausibly allege causation.

2. Causation as a Jury Question

Plaintiffs argue that causation under the CPLA is a jury question. So they

assert that the district court erred by dismissing their claims before discovery.

Plaintiffs are right that causation is typically a jury question. City of

Aurora v. Loveless, 639 P.2d 1061, 1063 (Colo. 1981). Still, plaintiffs must

allege plausible claims. See Fed. R. Civ. P. 12(b)(6); Ashcroft v. Iqbal, 556

U.S. 662, 679 (2009). And a complaint that fails to do so doesn’t survive a

motion to dismiss. See Iqbal, 556 U.S. at 679.

That’s just as true for CPLA claims. Indeed, the 2022 amendment

endorses resolving CPLA causation as a matter of law in cases involving thirdparty criminal acts. Again, when deciding landowner liability under the CPLA,

the amendment rejects the Wagner majority’s predominant-cause approach.

Colo. Rev. Stat. § 13-21-115(2)(e)(I)(B). The majority had declined to answer

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whether the shooter’s actions were the predominant cause of the plaintiffs’

injuries, finding it inappropriate to resolve as a matter of law at summary

judgment. 467 P.3d at 294.

In response, the dissent emphasized that “[w]hile proximate cause is

typically a question of fact reserved to the jury, the Court may conclude, as a

matter of law, that such a predominant cause exists, and that there can be no

other substantial factors.” Wagner, 467 P.3d at 299 (Hart, J., dissenting)

(citation omitted). In fact, the dissent found it “irrational to ask . . . jurors . . .

to engage in the cost/benefit analysis of determining what sorts of preventative

measures are sufficient to prevent or mitigate the harm caused by a shooter’s

senseless acts of violence.” Id. at 301. By rejecting the majority’s approach “as

noted by the dissenting justices,” the 2022 amendment confirmed that courts

may resolve the predominant-cause question as a matter of law in premisesliability cases involving mass shootings. See Colo. Rev. Stat. § 13-21-115(2)(e)(I)(B).

Plaintiffs counter that two Colorado Supreme Court cases support

sending their claims to a jury: Taco Bell, Inc. v. Lannon, 744 P.2d 43 (Colo.

1987), and Garcia v. Colorado Cab Co., 538 P.3d 328 (Colo. 2023). Plaintiffs

say that Taco Bell and Garcia show that causation remains a jury question even

when the case involves violent criminal acts.

But neither case controls here. In Taco Bell, a customer was injured

during a shooting at a Taco Bell restaurant. 744 P.2d at 43–44. The Colorado

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Supreme Court held that whether Taco Bell breached its duty by not providing

armed security was a jury question. Id. at 50. But Taco Bell considered claims

arising before Colorado enacted the CPLA, let alone the 2022 amendment. 25 So

it says nothing about the 2022 amendment’s impact on the predominant-cause

analysis.

As for Garcia, it didn’t consider the CPLA or premises liability at all.

See 538 P.3d 328. Yet Plaintiffs rely on it to argue that “extreme, escalating

criminal conduct does not automatically break the causal chain,” and that

proximate cause is generally a jury question. Br. 1 at 57. Whether or not that’s

true, it doesn’t change the similarities between the facts alleged here and those

in Wagner, nor does it impact the district court’s ability to dismiss implausible

claims.

3. Federal Caselaw

Finally, Plaintiffs fault the district court for concluding that “federal trial

courts in this District have resolved the predominant cause issue as a matter of

law in mass shooting cases for decades.” Vance, 789 F. Supp. 3d at 1059. To

reach that conclusion, the district court relied on 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); and Nowlan v. Cinemark Holdings, Inc., Nos. 12-cv25

The injury in Taco Bell occurred in 1979. 744 P.2d at 43. The CPLA went into effect in 1986. See Colo. Rev. Stat. § 13-21-115 (“Credits” section).

Appellate Case: 25-1326 Document: 56-1 Date Filed: 09/09/2026 Page: 48

02517, 12-cv-02687, 13-cv-00046, 13-cv-01995, 13-cv-02988, 13-cv-03316,

14-cv-01923, 14-cv-01976, 2016 WL 4092468 (D. Colo. June 24, 2016).

According to Plaintiffs, each case is distinguishable.

As the district court concluded, these cases all support the view that mass

shooters predominantly cause their victims’ injuries. Vance, 789 F. Supp. 3d at

1059. That said, Plaintiffs are correct that they’re distinguishable in other

ways. For starters, these cases all predate Wagner and the 2022 amendment to

the CPLA. Plus, neither Castaldo, nor Ireland, nor Phillips considered

premises-liability claims. And though Nowlan did consider CPLA claims, it

decided the predominant-cause question on summary judgment, not on the

pleadings. 2016 WL 4092468, at *3.

Even so, distinguishing these cases doesn’t help Plaintiffs. The 2022

amendment alone supported the district court’s concluding as a matter of law

that Plaintiffs hadn’t sufficiently alleged causation under the CPLA. Again, the

complaint simply doesn’t establish that the Club Q Defendants’ conduct was a

substantial factor in causing Plaintiffs’ injuries. Indeed, as Plaintiffs alleged,

though “enabled” by Defendants’ conduct, “[t]he Club Q shooting was

perpetrated by the violent actions of a single individual.” App. vol. I at 25. So

accepting as true the Club Q Defendants’ security and safety failures and

drawing all reasonable inferences in Plaintiffs’ favor, we conclude that the

complaint still establishes that Aldrich’s “maniacal determination” was the

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“overwhelming” and “predominant” cause of Plaintiffs’ injuries. Wagner, 467

P.3d at 301 (Hart, J., dissenting).

* * *

In sum, the district court got this right. After the 2022 amendment to the

CPLA, courts must consider “whether a third-party criminal act was the

predominant cause of . . . harm, as noted by [Wagner’s] dissenting justices.”

Colo. Rev. Stat. § 13-21-115(2)(e)(I)(B). And by our reading of the dissent, a

mass shooter’s “premeditated and intentional actions” are the predominant

cause of shooting victims’ injuries. Wagner, 467 P.3d at 300 (Hart, J.,

dissenting). So the district court correctly dismissed Plaintiffs’ CPLA claims

for failing to plausibly allege causation.

B. Negligence & Wrongful-Death Claims

The Club Q Defendants argue that the CPLA preempts Plaintiffs’

negligence and wrongful-death claims, so the district court should have

dismissed them. 26

“In any civil action brought against a landowner by a person who alleges

injury occurring while on the real property of another and by reason of the

condition of such property, or activities conducted or circumstances existing on

such property, the landowner is liable only as provided [in the CPLA].”

Colo. Rev. Stat. § 13-21-115(3). This means that “[w]hen it applies,” the CPLA

The parties agree that the negligence and wrongful-death claims rise or fall together.

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is “the sole and exclusive remedy against a landowner for injuries occurring on

their property.” Macomber v. Nations Roof, LLC, 574 P.3d 757, 761 (Colo.

App. 2025).

To decide whether the CPLA controls, we ask whether the plaintiff’s

alleged injury occurred (1) “while on the landowner’s real property” and

(2) “by reason of the property’s condition or as a result of activities conducted

or circumstances existing on the property.” Jordan, 346 P.3d at 1041. This is “a

fact-specific, case-by-case inquiry.” Id. (citation modified). Even so, the

Colorado Supreme Court has held that courts need not reserve this question for

a jury. Larrieu v. Best Buy Stores, L.P., 303 P.3d 558, 560 (Colo. 2013).

Instead, normal summary-judgment standards apply. See id. It follows that

normal motion-to-dismiss standards apply, too.

Plaintiffs alleged that the Club Q Defendants were landowners and that

Plaintiffs were injured at Club Q. So the only question for deciding whether the

CPLA preempts Plaintiffs’ other claims is whether, based on their allegations,

Plaintiffs’ injuries occurred because of the property’s conditions or because of

activities or circumstances that occurred on the property. Jordan, 346 P.3d at

1041.

Plaintiffs’ alleged injuries fall within that broad bucket. See Tancrede v.

Freund, 401 P.3d 132, 134 (Colo. App. 2017) (holding that the CPLA “was

intended to cover a broad range of activities occurring on a landowner’s

property”). As the district court noted, Plaintiffs’ negligence allegations

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weren’t focused on only Club Q’s unsafe layout. Instead, they mainly focused

on its security failures. But the CPLA covers injuries caused by safety and

security conditions. See Tolle v. Steeland, LLC, 541 P.3d 24, 28 (Colo. App.

2023) (holding that lack of safety measures such as fire extinguishers and

smoke detectors were “condition[s] of or circumstances existing on that

property”); Grizzell v. Hartman Enters., 68 P.3d 551, 552, 554 (Colo. App.

2003) (holding that criminal activity resulting from inadequate security was a

“dangerous condition” existing on the property).

The district court indicated that Plaintiffs’ allegations about Club Q’s

“targeted corporate decisions, training, and staffing deficiencies” might escape

the CPLA’s scope. See Vance, 789 F. Supp. 3d at 1061 (citation modified). Yet

these allegations still relate to the Club Q Defendants’ inadequate security and

safety measures. So the CPLA preempts Plaintiffs’ negligence and wrongfuldeath claims.

Besides, the CPLA exclusively applies “to actions against a landowner

for personal injuries occurring on its property when the landowner breaches the

duty of care it owes to a plaintiff.” Larrieu, 303 P.3d at 561. In their complaint,

Plaintiffs identify the duty of care for their negligence claim as “a duty of care

to ensure their safety and well-being while on the premises.” App. vol. I at 84

(emphasis added); see also App. vol. II at 80 (similar). We see no difference

between that duty of care and the Club Q Defendants’ duties as landowners. See

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Colo. Rev. Stat. 13-21-115(3), (4) (identifying duties of care “while on the

[landowner’s] real property”).

At bottom, the CPLA provides “the sole and exclusive remedy against a

landowner for injuries occurring on their property.” Macomber, 574 P.3d at

761; see also Vigil v. Franklin, 103 P.3d 322, 329 (Colo. 2004). And “[i]t is

well established that the [C]PLA abrogates common law negligence claims

against landowners.” Tolle, 541 P.3d at 28 (citation modified); see also Stone v.

Life Time Fitness, Inc., 411 P.3d 225, 228 (Colo. App. 2016); Sweeney v.

United Artists Theater Cir., Inc., 119 P.3d 538, 539–41 (Colo. App. 2005).

Because the CPLA provides the exclusive remedy for Plaintiffs’ alleged

injuries from Club Q’s safety and security conditions, the district court should

have granted the Club Q Defendants’ motion to dismiss the negligence and

wrongful-death claims.

CONCLUSION

For these reasons, we affirm the district court’s dismissal of Plaintiffs’

§ 1983 and CPLA claims. We reverse the court’s denial of the Club Q

Defendants’ motion to dismiss the negligence and wrongful-death claims and

remand for further proceedings consistent with this opinion.

Vance v. Aldrich

Authorities cited

Opinion · public domain