Vance v. Aldrich

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/Cross- Appellees, 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/Cross- Appellants. ––––––––––––––––––––––––––––––––––– 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 3  Appellate Case: 25-1326 Document: 56-1 Date Filed: 09/09/2026 Page: 4 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. 4  Appellate Case: 25-1326 Document: 56-1 Date Filed: 09/09/2026 Page: 5 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 5  Appellate Case: 25-1326 Document: 56-1 Date Filed: 09/09/2026 Page: 6 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 “fact- intensive 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 1 judgment (two from different plaintiffs, one from a subset of the Club Q Defendants). This opinion addresses all three. 6  Appellate Case: 25-1326 Document: 56-1 Date Filed: 09/09/2026 Page: 7 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 2 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 3 bringing assault and battery claims against Aldrich. Because Aldrich never answered Hudson’s complaint, the district-court clerk entered default judgment (footnote continued) 7  Appellate Case: 25-1326 Document: 56-1 Date Filed: 09/09/2026 Page: 8 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. 4 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. 5 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. 8  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 6 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. 9  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 7 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. 10  Appellate Case: 25-1326 Document: 56-1 Date Filed: 09/09/2026 Page: 11 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 8 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. 11  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. 12  Appellate Case: 25-1326 Document: 56-1 Date Filed: 09/09/2026 Page: 13 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-created- danger 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 9 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. 13  Appellate Case: 25-1326 Document: 56-1 Date Filed: 09/09/2026 Page: 14 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 10 We use “ERPO policies” as shorthand for the Board’s resolution and the Sheriff’s Office’s formal statement. 14  Appellate Case: 25-1326 Document: 56-1 Date Filed: 09/09/2026 Page: 15 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. 15  Appellate Case: 25-1326 Document: 56-1 Date Filed: 09/09/2026 Page: 16 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 16  Appellate Case: 25-1326 Document: 56-1 Date Filed: 09/09/2026 Page: 17 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-cv- 3190, 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, 17  Appellate Case: 25-1326 Document: 56-1 Date Filed: 09/09/2026 Page: 18 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 well- 11 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. 12 The plaintiffs in the Vance and Hudson lawsuits separately appealed but filed consolidated briefing. 18  Appellate Case: 25-1326 Document: 56-1 Date Filed: 09/09/2026 Page: 19 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 13 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). 19  Appellate Case: 25-1326 Document: 56-1 Date Filed: 09/09/2026 Page: 20 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-created- danger 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. 20  Appellate Case: 25-1326 Document: 56-1 Date Filed: 09/09/2026 Page: 21 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 21  Appellate Case: 25-1326 Document: 56-1 Date Filed: 09/09/2026 Page: 22 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 22  Appellate Case: 25-1326 Document: 56-1 Date Filed: 09/09/2026 Page: 23 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 23  Appellate Case: 25-1326 Document: 56-1 Date Filed: 09/09/2026 Page: 24 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 24  Appellate Case: 25-1326 Document: 56-1 Date Filed: 09/09/2026 Page: 25 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.