                                                                                FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                           UNITED STATES COURT OF APPEALS                   May 19, 2016

                                      TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                           Clerk of Court


 STEPHEN BRETT RYALS,

           Plaintiff - Appellee,
 v.                                                           No. 13-1369
 CITY OF ENGLEWOOD,                                 (D.C. No. 1:12-CV-02178-RBJ)
                                                              (D. Colo.)
           Defendant - Appellant.

 ------------------

 COLORADO MUNICIPAL LEAGUE;
 ASSOCIATION FOR THE
 TREATMENT OF SEXUAL ABUSERS;
 COLORADO COALITION AGAINST
 SEXUAL ASSAULT,

           Amici Curiae.



                                   ORDER AND JUDGMENT*


Before BRISCOE, HOLMES and MATHESON, Circuit Judges.



       After examining the briefs and appellate record, this panel has determined



       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
unanimously that oral argument would not materially assist in the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is, therefore,

submitted without oral argument.

      Stephen Brett Ryals is a convicted sex offender who, prior to July 6, 2015, was

required to register his residency under the Colorado Sex Offender Registration Act.

C.R.S. §§ 16-22-101 to -115. During that time, he purchased a home in Englewood,

Colorado. When he registered his new residence, he was cited for violating City of

Englewood Ordinance 34, which makes it unlawful for

      i. Any person who has been found to be a sexually violent predator pursuant
      to 18-3-414.5 C.R.S.; or

      ii. Any person required to register under the Colorado Sex Offender
      Registration Act, C.R.S. Section 16-22-101, et. seq. who has been:

             a. Convicted of a felony for an offense requiring registration; or

             b. Has multiple convictions for offenses requiring registration; or

             c. Whose offense(s) requiring registration involved multiple victims

      to establish a permanent residence or temporary residence within two
      thousand feet (2,000’) of any school, park, or playground or within one
      thousand feet (1,000’) of any licensed day care center, recreation center or
      swimming pool (other than pools located at private, single-family
      residences), or any property located adjacent to any designated public or
      private school bus stop, walk-to-school route, or recreational trail.

Englewood, Colo., Code of Ordinances § 7-3-3(A).

      Ryals initiated this 42 U.S.C. § 1983 action challenging Ordinance 34, arguing in




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part that it was preempted by Colorado law.1 The district court agreed with Ryals and

granted summary judgment in his favor, declining to address Ryals’s remaining

challenges (whether the ordinance violates the due process and ex post facto provisions of

the United States and/or Colorado constitutions). The City appealed and we certified the

question of preemption to the Colorado Supreme Court. While the certified question was

pending, Ryals became eligible to petition to discontinue registration. He did so, and his

request was granted on April 6, 2015. On January 25, 2016, the Colorado Supreme Court

answered our certified question, concluding that “although sex offender residency is a

matter of mixed state and local concern, there is no conflict between state law and

Englewood's Ordinance 34.” Ryals v. Englewood, 364 P.3d 900, 909 (Colo. 2016).

Shortly thereafter, the City informed Ryals that it would not seek to prosecute Ryals for

past violations of Ordinance 34.

       The parties agree that the case is now moot, but disagree on how we should

dispose of it. The City asks us to reverse the district court’s grant of summary judgment;

Ryals asks us to vacate it. In support of their respective arguments, the parties dispute

whether Ryals’s successful petition to discontinue his required registration was itself

sufficient to moot this case or whether it became moot only after the City agreed not to

prosecute Ryals for past violations of Ordinance 34. We are inclined to believe that

Ryals’s petition was sufficient because the complaint in this civil action seeks prospective


       1
         The criminal prosecution of Ryals’s violation was initially stayed pending
resolution of this case, but has since been dismissed without prejudice.

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relief only and therefore does not encompass criminal prosecution for past violations. See

Compl. at 2, 12 (describing the criminal charge, but seeking only relief from further

enforcement of the residency requirement). We need not decide that issue, however,

because Ryals’s petitioning to discontinue registration—even if sufficient to moot this

case—is not the type of action that raises concerns over who caused the case to become

moot. Cf. U.S. Bancorp Mort. Co. v. Bonner Mall P’ship, 513 U.S. 18, 25 (1994)

(expressing concern over party’s action that not only caused mootness, but also forfeited

that party’s rights to appeal); McClendon v. City of Albuquerque, 100 F.3d 863, 868

(10th Cir. 1996) (expressing concern over party actions that cause mootness and

“manipulate[] the judicial process by deliberately aborting appellate review to avoid a

decision on the issues”).

       In choosing how to dispose of moot cases, we must strive to select “the manner

‘most consonant to justice’ . . . in view of the nature and character of the conditions which

have caused the case to become moot.” Bancorp, 513 U.S. at 24 (alteration in original)

(quoting United States v. Hamburg–Amerikanische Packetfahrt–Actien Gesellschaft, 239

U.S. 466, 478 (1916)). Based on the facts of this case, we conclude that the resolution

“most consonant to justice” is for us to DISMISS the appeal on mootness grounds, and to

REMAND the case to the district court with instructions to vacate.

                                                  Entered for the Court


                                                  Mary Beck Briscoe
                                                  Circuit Judge

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