December 11, 2017

Archives for March 20, 2017

Bills Correcting Statutory References, Changing Child Welfare Allocations, Implementing State Engineer’s Functions, and More Signed

On Friday, March 17, 2017, the governor signed 21 bills into law. To date, he has signed 63 bills this 2017 legislative session. The bills signed Friday include a bill to update statutory references to people with disabilities, a bill outlining the procedure to correct statutory references in administrative procedural rules, a bill redetermining the child welfare allocation formula, and a bill exempting steroids injected into nonhumans from controlled substances statutes. The bills signed Friday are summarized here.

  • HB 17-1006“Concerning the Authorization of a Process to Correct Statutory Citations Contained in Executive Branch Agency Rules Published in the Code of Colorado Regulations without the Requirement to Follow Rule-Making Procedures,” by Rep. Mike Foote and Sen. Daniel Kagan. The bill allows agencies to correct statutory citations in the code of Colorado regulations without notice, comment, or a hearing by submitting to the secretary of state a specific, written determination by the attorney general.
  • HB 17-1011“Concerning a Limitation on When Certain Disciplinary Actions may be Commenced Against a Mental Health Professional, and, in Connection Therewith, Requiring that a Mental Health Professional Provide Notice to Former Clients Regarding Record Retention and that All Complaints be Resolved by the Agency within Two Years after the Date the Complaint was Filed,” by Rep. Jovan Melton and Sen. Jack Tate. The bill requires that any complaint filed with the division of professions and occupations in the department of regulatory agencies against a mental health professional alleging a maintenance-of-records violation must be commenced within 7 years after the alleged act or failure to act giving rise to the complaint.
  • HB 17-1014“Concerning the Elimination of the Criminal Penalty Imposed Upon an Elector for Disclosing the Contents of the Elector’s Voted Ballot,” by Reps. Paul Rosenthal & Dave Williams and Sens. Kerry Donovan & Owen Hill. The bill deletes the ballot selfie prohibition in the Uniform Election Code provided certain conditions are met.
  • HB 17-1032“Concerning the Evidentiary Privilege for Communications Made During the Provision of Certain Peer Support Services,” by Rep. Jeni Arndt and Sen. John Cooke. The bill clarifies that privileged peer support communications need not be made during individual meetings in order to be confidential.
  • HB 17-1034“Concerning Licensing Changes to the Medical Marijuana Code to Conform with the Retail Marijuana Code,” by Rep. Dan Pabon and Sen. Randy Baumgardner. The bill creates a requirement for a medical marijuana business operator to be licensed, and allows a medical marijuana licensee to move his or her business anywhere in Colorado upon approval of the state and local jurisdiction. The bill also allows a medical marijuana licensee to remediate its product if it contains a foreign substance.
  • HB 17-1046“Concerning Updating Statutory References to Certain Limited Outdated Terms Relating to People with Disabilities,” by Rep. Steve Lebsock and Sen. Kerry Donovan. The bill updates certain limited terms in statute that refer to persons with intellectual and developmental disabilities or physical disabilities using insensitive or outdated terminology.
  • HB 17-1050“Concerning the Annual In-Service Training Required for a County Sheriff,” by Rep. Hugh McKean and Sen. Daniel Kagan. The bill specifies that each sheriff undergo at least the number of hours required for all certified peace officers by the peace officers standards and training board (POST board), but in no case less than 20 hours.
  • HB 17-1052“Concerning Factors to Take Into Consideration in Determining the Child Welfare Allocation Formula in a Given Fiscal Year,” by Rep. Susan Beckman and Sen. Jim Smallwood. The bill removes certain data-gathering factors currently required to be taken into consideration in determining a fiscal year’s child welfare allocation formula for counties and replaces those with a broader scope of factors that directly affect the population of children in need of child welfare services.
  • HB 17-1054“Concerning Partnerships Between Local Governments and Military Installations, and, in Connection Therewith, Identifying Shared-Service Opportunities to Reduce Costs and Increase Efficiencies,” by Reps. Terri Carver & Dan Nordberg and Sen. Nancy Todd. The bill directs the department of local affairs to support cooperative intergovernmental agreements between military installations and local governments to the extent possible.
  • HB 17-1055“Concerning a Voluntary Contribution Designation Benefiting the Urban Peak Housing and Support Services for Youth Experiencing Homelessness Fund that Appears on the State Individual Tax Return Forms,” by Rep. Leslie Herod and Sen. Bob Gardner. The bill creates the Urban Peak Housing and Support Services for Youth Experiencing Homelessness fund in the state treasury and adds a check-off to state tax returns for five years.
  • HB 17-1094“Concerning Modifications to the Requirements for Health Benefit Plans to Cover Health Care Services Delivered via Telehealth,” by Reps. Perry Buck & Donald Valdez and Sens. Kerry Donovan & Larry Crowder. The bill makes several changes to broaden the application of telehealth services.
  • HB 17-1105“Concerning Narrowing the Circumstances in Which Physical Inspection of a Vehicle is Required before Issuing Legal Documentation Identifying the Vehicle,” by Rep. Jon Becker and Sen. Randy Baumgardner. The bill specifies that the department of revenue may not require physical inspection of a vehicle, including a VIN inspection, to verify information about the vehicle before registering or titling the vehicle if certain requirements are met.
  • HB 17-1137“Concerning the Scheduled Repeal of Reports by the Department of Revenue to the General Assembly,” by Reps. Dan Thurlow & Edie Hooton and Sens. Dominick Moreno & Jack Tate. The bill amends reporting requirements of the Department of Revenue.
  • HB 17-1140“Concerning Permitted Uses of Fee-for-Service Contract Money by the Colorado School of Mines,” by Rep. Jessie Danielson and Sen. Tim Neville. In addition to tuition supports, the bill allows Colorado School of Mines to use state fee-for-service contract money to fund  other services and programs, including counseling, academic support, student recruiting, and precollegiate programs.
  • SB 17-026“Concerning Requirements Governing Implementation of the State Engineer’s Functions, and, in Connection Therewith, Restructuring the Fee that the State Engineer may Charge for Rating Certain Types of Water Infrastructure, Repealing Certain Requirements, and Updating Language in the Statutes Regarding the Division of Water Resources,” by Sen. Jerry Sonnenberg and Rep. Jeni Arndt. The bill makes several changes to the state engineer’s functions and fee requirements.
  • SB 17-030“Concerning the Exemption from the Schedules of Controlled Substances any Anabolic Steroid that is Administered through Injection into Nonhuman Species,” by Sen. Randy Baumgardner and Rep. Daneya Esgar. The bill exempts from the definition of ‘anabolic steroid’ human chorionic gonadotropin licensed for animal use only if it is expressly intended for administration through implants or injection into cattle or other nonhuman species.
  • SB 17-034“Concerning Extension of the Period Following the Declaration by the Governor of a Disaster Emergency in a County Within Which the Board of County Commissioners of the County may Transfer County General Fund Money to the County Road and Bridge Fund for the Purposes of Disaster Response and Recovery,” by Sens. Kevin Lundberg & Matt Jones and Reps. Hugh McKean & Mike Foote. The bill extends from 4 years to 8 years the period within which the board of county commissioners of the county may transfer general fund money to the road and bridge fund for disaster response and recovery.
  • SB 17-050“Concerning the Consolidation of Grant Programs Relating to Forest Management,” by Sen. John Cooke and Reps. Jeni Arndt & KC Becker. The bill transfers a forest management grant program from the Department of Natural Resources to the Forest Service, and realigns the funding for the new grant program and the healthy forest and vibrant communities fund.
  • SB 17-056“Concerning the Scheduled Repeal of Reports by the Department of Public Health and Environment to the General Assembly,” by Sen. Andy Kerr and Rep. Jeni Arndt. The bill addresses reporting requirements of the department of public health and environment.
  • SB 17-090“Concerning How to Measure the Level of Delta-9 Tetrahydrocannabinol in Industrial Hemp,” by Sen. Randy Baumgardner and Rep. Diane Mitsch Bush. The bill requires the commissioner of agriculture to determine the level of delta-9 tetrahydrocannabinol in industrial hemp by measuring the combined concentration of delta-9 tetrahydrocannabinol and its precursor, tetrahydrocannabinolic acid.
  • SB 17-127“Concerning an Expansion of the Exemption from the Requirements that Apply to a Mortgage Loan Originator to Include Up to Three Loans Per Year Without Compensation Between Family Members,” by Sen. Jack Tate and Rep. Dan Pabon. The bill expands the mortgage loan originator exemption to include up to 3 loans per year without compensation, other than interest, between family members, and directs the board of mortgage loan originators to define ‘family member’ by rule.

For a list of the governor’s legislative actions, please visit here.

Tenth Circuit: Officers Reasonably Believed Use of Deadly Force was Necessary

The Tenth Circuit Court of Appeals issued its opinion in Carabajal v. City of Cheyenne, Wyoming on February 6, 2017.

This case arose out of an instance involving the Plaintiffs, Mathew Carabajal and his son, V.M.C., being pulled over by several officers, including Officer Thornton and Officer Sutton. On September 19, 2011, Mr. Carabajal was driving a vehicle containing his infant son, V.M.C., and two others. A police vehicle with its lights and sirens activated followed him, but he continued to drive for approximately six blocks, obeying the speed limit. After Mr. Carabajal pulled over, Officer Thornton, one of two officers who later arrived at the scene, stood in front of the vehicle, while a police vehicle was positioned behind Mr. Carabajal’s vehicle and two other vehicles were parked in front of Mr. Carabajal’s. Officer Thornton shouted at Mr. Carabajal, “Don’t start the car or I’ll shoot.” Mr. Carabajal’s vehicle began to move forward and, after three seconds, Officer Thornton fired two rounds from his shotgun at Mr. Carabajal, injuring him. The car then stopped and Officers Thornton and Sutton removed Mr. Carabajal from the vehicle. Mr. Carabajal fell to the ground and Officers Sutton and Thornton slowly dragged Mr. Carabajal out of the vehicle.

Plaintiffs sued the City of Cheyenne, Wyoming, its police department, and four officers, including Officers Thornton and Sutton, in their individual capacities. The district court dismissed V.M.C.’s claim that he was unlawfully seized when Officer Thornton shot into the vehicle he was an occupant in. The district court granted summary judgment on Mr. Carabajal’s excessive force claims, finding that the officers were entitled to qualified immunity. The district court also held that the complaint did not plead a negligence claim against the City based on the alleged hiring of Officer Thornton, due to a lack of evidentiary support.

The Tenth Circuit first addressed Mr. Carabajal’s challenge of the district court’s grant of qualified immunity on his excessive force claims. In this case, the events were captured on video, and the Tenth Circuit states that it relied on that evidence. The Tenth Circuit articulated the two-part analysis required when a defendant asserts qualified immunity. First, the plaintiff must allege facts to demonstrate that a violation of a constitutional right occurred. Second, if that demonstration is made, the court must determine whether the right at issue was “clearly established” at the time of the incident. The plaintiff must show both of these factors.

Mr. Carabajal alleged that Officers Thornton and Sutton violated his Fourth Amendment rights through the use of excessive force.  The Fourth Amendment protects individuals against “unreasonable searches and seizures.” A “seizure” must have occurred and the plaintiff must prove that is was “unreasonable.” Mr. Carabajal made two claims of excessive force.

Mr. Carabajal’s first excessive force claim regarded Officer Thornton’s shooting of Mr. Carabajal. The district court held that the use of force in this case was reasonable. The Tenth Circuit agreed. The Tenth Circuit cited the facts that Mr. Carabajal had eluded police for several blocks, was ordered not to start the vehicle, and that Mr. Carabajal appeared to deliberately drive his vehicle in Officer Thornton’s direction. Additionally, because of the positions of the three police vehicles, in those close quarters, the Tenth Circuit held that a reasonable officer could conclude that his life was in danger and employ deadly force to stop the vehicle. It was reasonable for Officer Thornton to have perceived that Mr. Carabajal’s driving was deliberate. Therefore, Officer Thornton’s conduct was reasonable.

Next, the Tenth Circuit held that, even if Officer Thornton’s conduct was excessive under the Forth Amendment, it was not clearly established that his conduct was unlawful at the time of the shooting. The Tenth Circuit addresses a circuit split regarding the issue and a lack of Supreme Court precedent to hold that the unlawfulness of Officer Thornton’s conduct was not clearly established.

Therefore, the Tenth Circuit held that qualified immunity was warranted regarding Mr. Carabajal’s first excessive force claim.

Mr. Carabajal’s second excessive force claim regarded Officers Thornton and Sutton’s removal of Mr. Carabajal from the vehicle after he was shot. The Tenth Circuit held that the video evidence revealed that the officers did not use an unreasonable amount of force, nor was it unreasonable to remove Mr. Carabajal from the vehicle under those circumstances. When Mr. Carabajal was removed, the officers were aware that he had been non-compliant with police instructions at least twice. Accordingly, the Tenth Circuit held that Mr. Carabajal did not demonstrate a violation of a constitutional right and that Officers Thornton and Sutton were entitled to qualified immunity regarding Mr. Carabajal’s second excessive force claim.

The Tenth Circuit next addressed V.M.C.’s claim that he was unlawfully seized by Officer Thornton when he shot into the vehicle that V.M.C. occupied. The Tenth Circuit held that even if V.M.C. did plead a plausible unreasonable seizure claim, Officer Thornton would have been entitled to qualified immunity because the law does not clearly establish whether firing a weapon into a car constitutes a Fourth Amendment seizure.

Finally, the Tenth Circuit addressed the district court’s dismissal of the Plaintiffs’ negligent hiring claim against the City. A plaintiff must show that the City was reckless or negligent in its employment of improper persons in work that posed a risk of harm to others, for the City to be liable. Here, the City engaged in an extensive investigation into Officer Thornton that demonstrated he qualified under Wyoming standards for employment as a police officer. The Plaintiffs presented no evidence that the City was on notice that Officer Thornton was likely to use unnecessary or excessive force against a member of the public. Thus, the Tenth Circuit held that the City owed no legal duty to protect Plaintiffs as they alleged.

Tenth Circuit: Unpublished Opinions, 3/17/2017

On Friday, March 17, 2017, the Tenth Circuit Court of Appeals issued two published opinions and four unpublished opinions.

Williams v. Berryhill

Mooneyham v. BRSI, LLC

United States v. Wilfong

United States v. Melot

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.