May 5, 2016

Tenth Circuit: Jurisdiction Lacking Where Denial of Summary Judgment Based on Genuine Issues of Material Facts

The Tenth Circuit Court of Appeals issued its opinion in Henderson v. Glanz on Monday, December 28, 2015.

Aleshia Henderson was an inmate at the David L. Moss Criminal Justice Center in Tulsa, Oklahoma. She was in a holding cell of the medical unit in handcuffs and leg restraints awaiting medical treatment when Detention Officer (DO) Johnson unlocked the door in view of Inmate Jessie Earl Johnson, a violent offender who was considered extremely high risk for escape and required “extreme caution.” DO Thomas, unaware that the holding cell door was unlocked, left the medical unit to respond to a medical emergency. When a nurse returned with another emergency patient, DO Johnson left the medical unit to assist the nurses.

During this time, Inmate Johnson reported to Inmate Williams that he was going to make sexual contact with Henderson. He left his unlocked holding cell and entered Inmate Henderson’s unlocked holding cell, exiting about 10 minutes later. Both DO Johnson and DO Thomas observed Inmate Johnson leaving Henderson’s cell. DO Johnson immediately confronted Inmate Johnson, who denied being in Henderson’s cell. DO Johnson then interviewed Inmate Henderson, who would not speak but nodded when asked if Inmate Johnson had sexually assaulted her. She was taken to a hospital, where an examination showed bruising, swelling, and a midline vaginal tear consistent with forcible sexual conduct. Inmate Johnson was subsequently charged with rape, though the charge was dismissed when Henderson briefly recanted out of fear for her mother’s safety.

DO Johnson and Thomas told their immediate supervisor, Sergeant Pirtle, about the incident, and the Tulsa County Sheriff’s Office (TCSO) conducted an investigation. TCSO determined that department policy was violated when the DOs left their posts, failing to maintain the required two officers in the medical unit, and when they failed to maintain the log book. When asked later how she could have been unaware of the risk to Henderson, DO Johnson stated, “I don’t know how to answer that.”

Henderson brought suit under 42 U.S.C. § 1983 against DO Johnson, DO Thomas, and Tulsa County Sheriff Glanz, asserting violations of her Eighth Amendment rights. Defendants moved for summary judgment based on qualified immunity because Henderson could not show a constitutional violation. The district court denied summary judgment as to DO Johnson and DO Thomas, concluding there were genuine issues of material fact regarding whether DO Johnson and DO Thomas were aware of the risk of assault. The district court denied summary judgment to Sheriff Glanz because there were genuine issues of material fact regarding whether he was aware of the risk of assault to Henderson. Defendants appealed.

On appeal, the Tenth Circuit first determined it lacked jurisdiction to consider DO Johnson’s and Sheriff Glanz’s appeals. The Tenth Circuit noted that the district court’s denial of summary judgment was not ripe for interlocutory appeal because it was not a final order and did not fall into any of the exceptions allowing interlocutory appeal. The Tenth Circuit also noted that the district court found facts sufficient to support its denial of summary judgment, concluding that by viewing the facts in the light most favorable to Henderson, a reasonable jury could find a constitutional violation.

As to DO Thomas, the Tenth Circuit found it had jurisdiction to assess the district court’s denial of summary judgment. Because DO Thomas did not know DO Johnson had unlocked Henderson’s cell door and was not there when DO Johnson left the unit, he was not subjectively aware of a substantial risk of bodily harm to Henderson. The Tenth Circuit reversed the district court’s denial of qualified immunity to DO Thomas.

The Tenth Circuit dismissed the appeals of DO Johnson and Sheriff Glanz for lack of jurisdiction, and reversed the district court’s denial of summary judgment to DO Thomas.

Colorado Court of Appeals: Prosecutorial Misconduct Not Intended to Provoke Mistrial

The Colorado Court of Appeals issued its opinion in People v. August on Thursday, April 21, 2016.

Double Jeopardy—Prosecution Intentionally Seeking a Mistrial.

Defendant was tried twice on charges of kidnapping and sexual assault of his former wife. The first trial was declared a mistrial and the charges were dismissed on federal double jeopardy grounds based on a finding that the prosecution had willfully violated a court order. On appeal, a division of the court of appeals concluded that the reprosecution would only be barred if the prosecutor had acted with the intent to provoke a mistrial, and the case was remanded with directions to make findings on this issue. On remand, the trial court found that the prosecutor had not intended to provoke defendant into moving for a mistrial, denied defendant’s motion to dismiss the charges, and held a second trial.

At the second trial the defense objected to the prosecution’s closing statement referencing a prior assault and remark that “history repeats itself” as an impermissible reference to propensity. The court agreed with the defense, declared a mistrial, and heard argument as to whether the charges should be dismissed under the double jeopardy provisions of the U.S. and Colorado constitutions. The trial court dismissed the charges on double jeopardy grounds, finding that the prosecutor had willfully goaded the defense into asking for a mistrial in order to try the case a third time and benefit from the experience of the second trial’s weaknesses.

On appeal, the People argued that the trial court erred. The court agreed, finding that the state and federal standard on this issue is the same: a retrial is barred only if prosecutorial misconduct giving rise to the mistrial was intended to provoke the defense into moving for a mistrial. Double jeopardy bars retrial in the mistrial context only where the prosecutor’s intent is to avoid a jury verdict. In evaluating the prosecutor’s conduct, the trial court used an improper legal standard and may not have considered the totality of the circumstances surrounding the prosecutor’s conduct.

The order of dismissal was vacated and the case was remanded to the trial court for reconsideration of its ruling and further findings of fact consistent with the court’s opinion.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Legislature Lacks Authority to Regulate IEC Dismissals Based on Frivolity

The Colorado Supreme Court issued its opinion in Colorado Ethics Watch v. Independent Ethics Commission on Monday, April 25, 2016.

Constitutional Interpretation—Amendment 41—CRS § 24-18.5-101(9)—Judicial Review.

In this original proceeding, the Supreme Court considered whether the Independent Ethics Commission’s (IEC) decision to dismiss a complaint against a public officer as frivolous is subject to judicial review. Plaintiff contended that the General Assembly authorized such review when it enacted CRS § 24-18.5-101(9), which provides that “[a]ny final action of the commission concerning a 18 complaint shall be subject to judicial review.” The Supreme Court concluded that, while the General Assembly may authorize judicial review of IEC’s enforcement decisions, it may not encroach on the IEC’s decisions not to enforce. Therefore, the Court held that the General Assembly’s “judicial review” provision does not apply to frivolity dismissals. Accordingly, the Court made its rule to show cause absolute and remanded the case to the trial court with instructions to dismiss plaintiff’s complaint.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Criminal Defendants Have No Constitutional Right to Conduct Discovery

The Colorado Supreme Court issued its opinion in People in Interest of E.G. on Monday, April 18, 2016.

Criminal Procedure—Criminal Discovery—Constitutional Law.

The Supreme Court considered whether a trial court may order a third party to allow a criminal defendant discovery access to the third party’s home. The Court first discussed the historical underpinnings of criminal discovery, noting that there is no common law right to discovery in a criminal case. The Court then analyzed the possible sources of authority by which a trial court could grant a defendant’s discovery request for access to a private home. Finding no constitutional provision mandating such discovery, and failing to locate any authority to grant such a discovery request in Crim.P. 16 or 17, the Court concluded that the trial court lacked the authority to order the third party to allow access to her private home.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Criminal Defendant Has No Constitutional Right to Examine Victim’s Home

The Colorado Supreme Court issued its opinion in In re People v. Chavez on Monday, April 18, 2016.

Criminal Procedure—Criminal Discovery—Constitutional Law.

In this original proceeding, the Supreme Court considered whether a trial court may order a third party to allow a criminal defendant discovery access to the third party’s home. Relying on People in the Interest of E.G., 2016 CO 19, __ P.3d __, the Court concluded that the trial court had no authority to order the alleged victim to allow defendant or his representatives into her home to investigate the scene of the alleged crime.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Constitutional Claim Requires Inquiry into Reasonableness of Statutory Ammunition Limits

The Colorado Court of Appeals issued its opinion in Rocky Mountain Gun Owners v. Hickenlooper on Thursday, March 24, 2016.

HB 12-1224—HB 13-1229—Firearms—Colorado Constitution—Right to Bear Arms—Police Power—Legislative Powers—Executive Powers—Due Process Clause.

In 2013, the Colorado General Assembly passed House Bills 13-1224 and 13-1229, which banned the sale, possession, and transfer of “large capacity ammunition magazines,” and expanded mandatory background checks to recipients of firearms in some private transfers. Plaintiffs Rocky Mountain Gun Owners, National Association for Gun Rights, Inc., John A. Sternberg, and DV-S, LLC (collectively, plaintiffs) filed a complaint challenging the constitutionality of both bills. The district court analyzed the bills under a “reasonable exercise of police powers” test rather than an intermediate or strict scrutiny test and dismissed the complaint for failure to state a claim under CRCP 12(b)(5).

On appeal, plaintiffs contended that the district court erred in dismissing their claim that HB 13-1224 violated the Colorado Constitution’s right to bear arms clause. Because this case presented a challenge based on the Colorado Constitution, the district court did not err in using the “reasonable exercise of police power” test to assess the validity of HB 13-1224. However, the district court erred in its application of that test to this case. At a minimum, the claim asserts that the magazine limits violate the constitutional right to bear arms, which requires a factual inquiry into the reasonableness of the limits. When viewed in the light most favorable to plaintiffs, the allegations state a claim for relief, and plaintiffs are entitled to present evidence of the basis for their claim.

Plaintiffs contended that HB 13-1229 is unconstitutional because it (1) infringes on individuals’ rights to keep and bear arms; (2) delegates legislative and executive licensure powers to nongovernmental agents; and (3) violates the Due Process Clause, because licensed gun dealers will refuse to facilitate background checks, and they have discretion to impose criminal liability and punishments.

As to the first argument, HB 13-1229 imposes the same mandatory background check requirements on some firearm transfers between private parties as those required for retail sales and sales at gun shows. Thus it does not prevent the sale of firearms but merely creates an additional step for those sales not taking place through a licensed gun dealer. Furthermore, HB 13-1229 does not implicate a fundamental right and does not infringe on individuals’ rights to keep and bear arms for a lawful purpose; both Colorado and federal law bar certain individuals from possessing firearms.

Second, HB 13-1229 does not unconstitutionally delegate legislative or executive powers. Licensed gun dealers do not have the power to make rules regarding mandatory background checks; they are required to follow the same procedures in place for retail firearm transactions. The fact that they are not legally obligated to facilitate sales between private parties is not a delegation of legislative authority. Similarly, HB 13-1229 does not unconstitutionally delegate executive powers. Again, the process for these transfers is no different than that for retail firearm transactions and gun show sales. Licensed gun dealers are not agents of state law enforcement charged with keeping firearms away from criminals; they are only required to initiate a background check.

Third, plaintiffs presented no facts that licensed firearm dealers will refuse to facilitate background checks, thus depriving parties of a right to firearms sales. Additionally, licensed firearms dealers merely collect information; they do not have the discretion to impose criminal liability and punishments. Thus HB 13-1229 does not violate the Due Process Clause.

Therefore, the district court correctly concluded that plaintiffs failed to state a claim for relief on HB 13-1229.

As to HB 13-1224, the case was reversed and remanded. Other aspects of the court’s decision were affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Qualified Immunity Appropriate Where Officers Arrested Entire Group Based on Conduct of Unidentifiable Members

The Tenth Circuit Court of Appeals issued its opinion in Callahan v. Unified Government of Wyandotte County/Kansas City, Kansas on Monday, November 16, 2015.

In 2010, the Kansas City Police Department (KCKPD) received three allegations of theft when its specialized SCORE unit was involved in executing search warrants. As a result, the KCKPD and the FBI set up a sting operation, “Operation Sticky Fingers,” to determine the integrity of the SCORE unit. Operation Sticky Fingers involved the execution of a fictitious search warrant at a residence monitored via live video and audio. Bait items had been placed in a bedroom and the basement. During the execution of the search warrant, KCKPD Detective Jon Kelley observed several instances of actual theft but could not tell which officer was involved because of the protective gear worn by SCORE officers. Detective Kelley relayed his observations of the theft to Captain Lawson at another location, who then contacted Captain Nicholson at the residence. Because of the delay in relaying the information from Detective Kelley to Captain Nicholson, it was possible for the officers to have moved around the house before being identified.

After the sting, the SCORE officers returned to the parking garage at KCKPD headquarters and KCKPD commanders arrested all of the SCORE officers as they exited the van. It was later discovered that only Officers Forrest, Bell, and Sillings were involved in the theft. The other three officers, Officers Callahan, Pitman, and Hammons, brought claims under 42 U.S.C. § 1983 against the Unified Government of Wyandotte County/Kansas City and various individual defendants, asserting violations of their Fourth Amendment rights for arrests without probable cause. The plaintiffs also moved for partial summary judgment on the issue. The district court denied summary judgment, finding that the record supported a finding that probable cause existed to arrest the entire SCORE unit. The individual defendants then moved for summary judgment based on qualified immunity, which the district court denied without making specific findings on the issue. Defendants moved for reconsideration in one of the cases, requesting a more thorough explanation of the disputed material facts on which the district court relied, and simultaneously filed a notice of appeal. The district court denied the motion for reconsideration and later denied summary judgment in the other two cases. The Tenth Circuit consolidated the three plaintiff officers’ motions for purposes of appeal.

The Tenth Circuit evaluated whether qualified immunity was appropriate based on a clearly established right. The Tenth Circuit first questioned whether the law was clearly established such that defendants would know their actions were illegal, and determined that it was not. The Tenth Circuit noted that plaintiffs and the district court broadly asserted that making an arrest without probable cause was illegal without pointing to the specific inquiry of whether the law was clearly established that an officer cannot arrest an entire group when he knows that some unidentifiable members have committed a crime. The Tenth Circuit determined that Maryland v. Pringle, 540 U.S. 366 (2003), provided the appropriate precedent under which to evaluate the officers’ actions in the instant case. The Tenth Circuit found that Pringle‘s application to this case was debatable, and concluded that qualified immunity applied. The Tenth Circuit remarked that qualified immunity exists to prevent officers from being held liable for making an incorrect legal determination on the spot without guidance from the courts.

The Tenth Circuit declined to exercise pendant jurisdiction to address the Unified Government’s appeal, because it was not entitled to qualified immunity and the denial of summary judgment to the government was not immediately appealable.

The Tenth Circuit reversed the district court’s denial of qualified immunity to the individual defendants and dismissed the Unified Government’s appeal.

Colorado Court of Appeals: District Court Not Statutorily Required to Grant De Novo Review of Arbitrator’s Decision

The Colorado Court of Appeals issued its opinion in In re Marriage of Vanderborgh on Thursday, March 25, 2016.

Parenting Time Dispute—Arbitration Agreement—De Novo Hearing—Constitutional Rights.

The parties submitted their post-dissolution parenting time disputes to an arbitrator pursuant to their agreement in their Parenting Plan. After the third decision by an arbitrator, father moved for a de novo hearing, under CRS § 14-10-128.5(2), on his motion to modify the parenting time schedule. The court denied father’s request for a de novo hearing and confirmed the arbitrator’s decision.

On appeal, father first contended that the district court erred by denying him a de novo hearing on his request for equal parenting time during the school year because CRS § 14-10-128.5(2) mandates such a hearing whenever a party requests one. The plain language of this statute, however, gives the court discretion to grant or deny a party’s motion for a de novo hearing, and the Court of Appeals concluded that the court did not abuse that discretion.

Father next argued that CRS § 14-10-128.5(2) is unconstitutional as the district court applied it because it “allows an arbitration decision on parenting time, a constitutionally protected interest, without procedural safeguards and only discretionary review.” Father agreed to arbitrate the issue of parenting time, and his right to challenge the arbitration award under the Colorado Uniform Arbitration Act and to request (but not necessarily receive) a de novo hearing under CRS § 14-10-128.5 sufficiently protect his rights to procedural due process.

Father also argued that the parties’ child was denied equal protection because he does not have the same rights as children whose parents do not choose arbitration for parenting time disputes. The Court determined that the child’s rights were adequately protected under the dissolution statutes.

The order was affirmed and the case was remanded to determine mother’s request for appellate attorney fees.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: As Applied Challenge to Public Indecency Statute Fails

The Colorado Supreme Court issued its opinion in People v. Graves on Monday, February 29, 2016.

Public Indecency Statute—Vagueness—Overbreadth.

The Supreme Court construed the “lewd fondling or caress” provision of Colorado’s public indecency statute, CRS § 18-7-301(1)(d), and held that, because the provision does not burden a substantial amount of constitutionally protected speech or expressive conduct, the provision is not unconstitutionally overbroad. Moreover, because defendant’s conduct in this case meets any reasonable definition of “lewd fondling or caress,” the statute is not vague as applied to his actions, and he cannot complain of the alleged vagueness of the law as applied to the hypothetical conduct of others. The Court therefore reversed the district court’s holding that CRS § 18-7-301(1)(d) is unconstitutionally overbroad and vague.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Short Shotguns Not Protected by Constitutional Right to Bear Arms

The Colorado Court of Appeals issued its opinion in People v. Sandoval on Thursday, February 11, 2016.

Police executing a search warrant on Miguel Sandoval’s property after a shooting found a short shotgun in the shed in his backyard. Sandoval was convicted after a bench trial of possessing a dangerous weapon and appealed, arguing the district court erred in denying his motion to suppress evidence of the gun in the trial court, contending the shed was outside the scope of the warrant, and in precluding him from asserting the affirmative defenses of the right to bear arms and self-defense. He also argued the evidence was insufficient to support his conviction.

The court of appeals first evaluated the scope of the search warrant at issue. The warrant authorized the police to enter and search “the person, premises, location and any appurtenances thereto” of Sandoval’s residence. Because the shed in question was in Sandoval’s backyard and very close to the residence, the court found that search of the shed was within the scope of the warrant. The court of appeals affirmed the district court’s denial of Sandoval’s suppression motion based on the search of the shed.

Next, the court evaluated the right to bear arms as enunciated in the Second Amendment of the United States Constitution and Article II, section 13 of the Colorado Constitution. The court noted that the Supreme Court declined to hold that the Second Amendment provided a constitutional right to possess dangerous weapons, and short shotguns were typically used solely by criminals. The court found that there was no constitutional right for Sandoval to possess the short shotgun and therefore it was not available as an affirmative defense.

Finally, the court evaluated Sandoval’s sufficiency claim and found the evidence was sufficient to support his conviction. Although Sandoval never identified the particular short shotgun at issue as his, he admitted there was a short shotgun at his residence, the short shotgun at issue was found at Sandoval’s residence in the shed in the backyard, a key to the shed was found at Sandoval’s residence, and a spent shotgun round that had been fired from the short shotgun at issue was found in Sandoval’s bedroom. The court concluded that the evidence was sufficient to support Sandoval’s conviction.

The court of appeals affirmed the district court.

Colorado Court of Appeals: Underrepresentation of Asian Americans in Jury Pool Not Constitutionally Significant

The Colorado Court of Appeals issued its opinion in People v. Luong on Thursday, February 11, 2016.

Man Hao Luong was convicted of several crimes based on acts occurring in 2005 and was sentenced to 96 years imprisonment. On direct appeal, the court of appeals affirmed in part, reversed in part, and remanded, and on remand his sentence was reduced to 64 years. Luong then filed a Crim. P. 35(c) motion for postconviction relief, arguing his counsel was ineffective because he had not investigated the underrepresentation of Asian Americans in the jury pool at Luong’s trial. The postconviction court denied his motion and Luong appealed.

Luong’s original trial took place in Jefferson County, where Asian Americans comprise 2.63% of the population. Of the 100 member jury pool at Luong’s trial, none were Asian American. Luong argued his counsel should have investigated whether jurors of Asian descent were systematically or intentionally underrepresented in his jury as well as other juries in the county. Luong also asserted that the state’s destruction of the master jury list (jury wheel) and jury panel violated his constitutional rights because the destruction prevented him from proving his counsel’s performance prejudiced him. After he filed his appeal but before the court of appeals issued its opinion, the state court administrator informed Luong that the records of the jury wheel and jury panel had been found, and provided a list of the 324 people who reported for jury service on the date of Luong’s trial. Luong moved to remand for reconsideration of that information, but the court of appeals denied his motion.

On appeal, the court of appeals first noted that to establish that the composition of a jury pool is a prima facie violation of the Sixth Amendment, the defendant must prove (1) the excluded group is distinctive, (2) the representation of the group is not fair and reasonable in relation to the number of such persons in the community, and (3) the underrepresentation is due to systematic exclusion of the group in the jury selection process. The court of appeals, acknowledging that Asian Americans are a distinctive group, evaluated whether the representation of Asian Americans in the jury pool was fair and reasonable in relation to the population within the community. The court noted that implicit in Luong’s argument was a presumption that his counsel should have known the percentage of Asians in Jefferson County and been surprised that there were not at least two people of Asian descent in the 100-person jury pool. The court initially noted that counsel’s performance was not grossly incompetent and a hearing on the Crim. P. 35 motion was unnecessary. Next, using statistical analyses, the court found no constitutional violation from having a 100-person jury pool with no Asian Americans. Because the population of Asians in Jefferson County was small, the absolute impact of the absence of Asians on the jury pool was insignificant.

The court of appeals affirmed the denial of Luong’s Crim. P. 35 motion for postconviction relief.

 

Tenth Circuit: Statutory Rape Not Per Se Crime of Violence for Sentence Enhancement Purposes

The Tenth Circuit Court of Appeals issued its opinion in United States v. Madrid on Monday, November 2, 2015.

Jonathan Madrid pleaded guilty to possession of methamphetamine with intent to distribute in 2014. The presentence investigation report (PSR) classified him as a “career offender” subject to sentence enhancement due to his two prior convictions, one of which was a New Mexico conviction for cocaine trafficking and the other of which was a Texas conviction for statutory rape. The career offender enhancement changed his Guidelines sentencing range from 92-115 months to 188-235 months. He was sentenced to 188 months. He appealed his sentence, arguing the Texas conviction does not qualify as a “crime of violence” under U.S.S.G. § 4B1.1.

The Tenth Circuit noted that a conviction counts as a crime of violence when it (1) has as an element the use, attempted use, or threatened use of physical force; (2) is specifically enumerated in the Guidelines as a crime of violence; or (3) otherwise involves conduct that presents a risk of serious injury. Using the modified categorical approach, the Tenth Circuit analyzed the Texas statute under which Madrid was convicted to see if it fits the definition of crime of violence. The parties agreed that force was not an element of Madrid’s crime of conviction. The Tenth Circuit noted that the Guidelines specifically listed “forcible sex offenses” as crimes of violence, but held that statutory rape is not per se a forcible sex offense. The Tenth Circuit looked only to the elements of the charged offense, not the defendant’s actual conduct, to determine whether the offense was forcible. Because the Texas statute under which Madrid was convicted did not contain an element of force, the Tenth Circuit declined to look at Madrid’s actual conduct and found that his offense did not qualify as a forcible sex offense for Guidelines purposes.

Finally, the Tenth Circuit examined the residual clause of the Guidelines. Following the U.S. Supreme Court’s invalidation of the residual clause of the Armed Career Criminal Act in Johnson v. United States, 135 S. Ct. 2551 (2015), the Tenth Circuit found that the substantially similar Guidelines clause was invalid as unconstitutionally vague. The Tenth Circuit relied on Johnson‘s holding in stating “[t]he vagueness doctrine exists not only to provide notice to individuals, but also to prevent judges from imposing arbitrary or systematically inconsistent sentences.” Because the Guidelines’ residual clause was substantially similar to that of the ACCA, the Tenth Circuit found it did not provide adequate notice to defendants and allowed potential abuse by the judiciary.

The Tenth Circuit remanded with instructions for the district court to vacate Madrid’s sentence and resentence him consistent with its opinion.