February 12, 2016

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.

Tenth Circuit: DEA Agent’s Removal of Luggage from Common Storage Area Constituted Illegal Seizure

The Tenth Circuit Court of Appeals issued its opinion in United States v. Hill on Monday, November 9, 2015.

Kelvin Hill boarded an eastbound Amtrak train in Los Angeles. When it made a regularly scheduled stop in Albuquerque, DEA Agent Kevin Small boarded the train and entered the common luggage area. He found a small black and white “Coogi” brand bag with no tag. He took the suitcase into the passenger area and asked each passenger whose bag it was. No one responded, including Hill, so Agent Small deemed the bag abandoned. He searched the suitcase, finding a large quantity of cocaine as well as clothing linking the bag to Hill.

A grand jury indicted Hill of possession with intent to distribute 500 grams or more of cocaine. He moved to suppress the cocaine, asserting Small’s actions in taking the bag from the common luggage area and moving it about the coach amounted to an illegal seizure, rendering Hill’s abandonment of the bag invalid. The district court denied Hill’s motion, instead concluding Small did not seize the bag at any time before Hill abandoned it. Hill entered a conditional guilty plea, reserving the right to appeal the district court’s denial of his suppression motion.

On appeal, the Tenth Circuit analyzed the following question: “Did Small’s actions in removing Hill’s bag from the train’s common luggage area and carrying it through the coach as he questioned passengers constitute a seizure of the bag?” The Tenth Circuit concluded that it did. The Tenth Circuit found that Small’s actions interfered with Hill’s possessory interest in the bag, because by taking the bag for his own purposes, Small interfered with Hill’s right to access the bag for his own purposes, on his own time, and at the place where unchecked baggage is properly stowed. The Tenth Circuit noted that the more difficult question was whether Small’s interference was meaningful for Fourth Amendment purposes.

The Tenth Circuit could not find any case law dealing with a fact scenario similar to the one at hand. Instead, most cases dealing with luggage presented two situations: when luggage is seized directly from a person, or when it is seized while checked at an airport. The Tenth Circuit found that the owner’s possessory interest was greatest when the bag was in his or her direct control and least when the bag was checked. Because the scenario at hand was somewhere in-between those two points, the Tenth Circuit analyzed the facts independently, finding that Hill would have reasonably expected other passengers to perhaps shift his bag’s position but would not have expected anyone to carry the bag through the coach. The Tenth Circuit therefore concluded that Agent Smart’s actions constituted a seizure.

The Tenth Circuit reversed the district court’s decision and remanded for further proceedings.

Tenth Circuit: Officer Lacked Reasonable Basis to Effect Felony Stop Based on Mistaken Information

The Tenth Circuit Court of Appeals issued its opinion in Maresca v. Bernalillo County on Thursday, October 22, 2015.

Stephen Maresca, a former police officer, and his family were returning from a family hike when they were pulled over by Bernalillo County Sheriff’s Deputies J. Fuentes, G. Grundhoffer, and four other officers. Officer Fuentes, who had completed her training as a new officer approximately two months earlier, initiated the stop. Mr. Maresca waved to Officers Fuentes and Grundhoffer as he drove by, and Officer Fuentes randomly decided to follow the Marescas’ truck—a red 2004 Ford F-150 pickup. She attempted to type their license plate number into her onboard computer, but got a digit wrong and received a message that the vehicle, a maroon 2009 Chevrolet four-door sedan, had been stolen.

Without double-checking the license plate number or verifying that the information on her screen matched the Marescas’ vehicle, she initiated a “felony stop.” She called the Marescas actual license plate number into dispatch, stating that the vehicle was stolen, but did not wait for dispatch to verify the information before initiating the felony stop. As a result of this call, other officers were dispatched to assist. For the felony stop, she and Officer Grundhoffer, who was following her in a different vehicle, stood behind the open doors of their vehicles with weapons drawn and shouted orders at the Marescas. She ordered Mr. Maresca to turn off the truck, throw his keys out of the window, exit the truck with his hands in the air, lift his shirt above his waistband so she could check for weapons, and lay on the highway on his stomach. She repeated this procedure with Mrs. Maresca. The Marescas complied fully with Officer Fuentes’ commands. While they were laying on the ground, Mrs. Maresca informed the officers that there were children and a dog in the truck. Mr. Maresca also told them that there had to be a mistake and to check everything again. The officers ignored the Marescas.

The officers ordered the boys out of the car the same way as Mr. and Mrs. Maresca, and ordered 9-year-old M.M. to exit the vehicle and lift her shirt. The evidence is disputed whether they forced her to lay on her stomach or sternly told her to stay at the side. After all the Marescas were out of the truck, the dog became upset and jumped out of the vehicle, running into the highway. Mr. Maresca called the dog and the officers allowed him to hold onto her. Two more deputies arrived and one began directing traffic around the “felony stop.” Two additional deputies arrived next, and the Marescas presented disputed evidence that one of them pointed his gun directly at 14-year-old C.M.’s head, leading C.M. to freak out and start crying to his mom that they were going to kill him. There was also disputed evidence that an officer stood over Mrs. Maresca with his gun cocked in a sideways gangster-style hold. Mrs. Maresca began to panic, and the children and Mrs. Maresca were all crying.

Finally, between seven and fifteen minutes after initiating the stop, Officer Fuentes returned to her vehicle and re-ran the Marescas’ plate, at which point she discovered her error. Fuentes asked one of the other deputies whether she was going to get into trouble. The deputy told her to uncuff the Marescas, let them return to their vehicle, and call a sergeant. Sergeant Bartholf explained to the Marescas that Fuentes was a new officer. The parties dispute whether he ever apologized. Mrs. Maresca asked Officer Quintana why he thought it necessary to point his gun at her when she was already laying on the ground, at which point Quintana smiled and walked away.

The Marescas filed suit in New Mexico state court, alleging the officers violated their 42 U.S.C. § 1983 rights to be free from unlawful arrest and excessive force. The Marescas also asserted state law claims against the officers for assault, false imprisonment, battery, and negligence, and asserted claims against Bernalillo County for negligent training. Defendants removed the case to the U.S. District Court for the District of New Mexico. The Marescas filed a motion for summary judgment on their federal claims, and the defendants moved for summary judgment on all claims. The district court denied the Marescas’ motion, granted defendants’ motion, and dismissed the Marescas’ state law claims without prejudice. The Marescas appealed.

The Tenth Circuit analyzed qualified immunity and found it inapplicable to Officer Fuentes. The Marescas argued Officer Fuentes violated their Fourth Amendment rights by arresting them without probable cause and by using excessive force. The officers argued that they did not arrest the Marescas, but the Tenth Circuit disagreed, finding the duration of the stop, the use of firearms, and rough treatment to which they subjected the Marescas indicated that the stop was an arrest. The Tenth Circuit further concluded the arrest was not supported by probable cause because the officers lacked an objectively reasonable basis to believe the truck was stolen. The Tenth Circuit noted that the sole basis for the arrest was Officer Fuentes’ “mistaken and unreasonable belief” that the truck was stolen. The Tenth Circuit clarified that it was not holding that a mere typing error deprives officers of a reasonable basis to effect an arrest, but rather based the holding in this case on all the facts taken together. However, in this case, the undisputed facts established that Fuentes violated the Marescas’ Fourth Amendment rights. The Tenth Circuit held that Officer Fuentes was not entitled to qualified immunity, and in fact that the Marescas were entitled to summary judgment against Officer Fuentes.

Turning to Officer Grundhoffer’s role, the Tenth Circuit concluded it was reasonable for him to rely on the information he was given by Officer Fuentes in assisting with the felony stop. The Tenth Circuit found no evidence that Officer Grundhoffer’s conduct was in bad faith or unreasonable under the circumstances. It therefore upheld qualified immunity as to Officer Grundhoffer.

Turning to the excessive force claim, the Tenth Circuit concluded that the Marescas were entitled to have their claims evaluated by a jury. The Tenth Circuit reiterated that although it granted summary judgment to the Marescas on their Fourth Amendment claims against Officer Fuentes, there were still questions of fact regarding whether the officers used force that was unreasonable under the circumstances. The Tenth Circuit reminded the officers that the use of force must be justified under the circumstances, especially when directed at children as it was here. The Tenth Circuit also found that the Marescas presented evidence of more than de minimus injury.

The Tenth Circuit reversed the district court’s grant of summary judgment to Officer Fuentes based on qualified immunity, and also reversed the court’s denial of summary judgment to the Marescas as related to Officer Fuentes. It remanded for further proceedings consistent with its opinion. The Tenth Circuit affirmed the grant of summary judgment as to Officer Grundhoffer’s qualified immunity. On the excessive force claims, the Tenth Circuit affirmed the denial of summary judgment to the Marescas and remanded for further proceedings.

Tenth Circuit: Agency Decision Presumed to Apply Prospectively Only

The Tenth Circuit Court of Appeals issued its opinion in De Niz Robles v. Lynch on Tuesday, October 20, 2015.

Alfonzo De Niz Robles filed a petition for adjustment of status in 2007, relying on the Tenth Circuit’s opinion in Padilla-Caldera v. Gonzales (Padilla Caldera I), 426 F.3d 1294, 1300-01 (10th Cir. 2005), amended and superseded on reh’g, 453 F.3d 1237, 1244 (10th Cir. 2006), which held that 8 U.S.C. §§ 1255(i)(2)(A) allowed the Attorney General discretion in affording relief from removability under § 1182(a)(9)(C)(i)(I). After De Niz Robles filed his petition, the BIA issued In re Briones, 24 I. & N. Dec. 355 (BIA 2007), which overturned the Tenth Circuit’s decision in Padilla Caldera I. In 2013, the BIA ruled that De Niz Robles was categorically ineligible for relief due to its Briones decision, which it applied retroactively. De Niz Robles appealed to the Tenth Circuit.

Applying the Chevron test and guided by the Supreme Court’s ruling in National Cable & Telecommunications Ass’n v. Brand X Internet Services (Brand X), 545 U.S. 967 (2005), the Tenth Circuit determined it was required to decide whether Briones could reasonably apply retroactively, thereby overruling Tenth Circuit precedent. The Tenth Circuit analyzed the separation of powers doctrine, noting that judicial decisions are presumed to apply retroactively due to the impartial nature of the judiciary, whereas Congressional rule-making is presumably prospective only unless otherwise specifically stated. Because administrative rulemaking is a delegation of Congressional power, the Tenth Circuit found that administrative rules are presumptively prospective in application. However, when confronted with a situation where an administrative agency acts in a quasi-judicial capacity, such as the BIA did in Briones, the Tenth Circuit examined whether the administrative action is more akin to judicial function or legislative function.

The Tenth Circuit determined that, in applying its rules pursuant to a Congressional delegation of power, the BIA was acting in a quasi-legislative capacity. Examining due process and equal protection concerns, the Tenth Circuit determined it would contravene Supreme Court precedent and constitutional safeguards to allow the BIA’s decision to be applied retroactively. The Tenth Circuit therefore overturned the BIA’s refusal to consider De Niz Robles’ petition. The Tenth Circuit noted that at the time De Niz Robles filed his petition, Padilla Caldera I was the existing circuit precedent, and he was justified in his reliance on that precedent. The BIA argued that De Niz Robles should have understood that there was a conflict between § 1255 and § 1182, and that there was a chance the conflict would be resolved against De Niz Robles’ position. The Tenth Circuit found that approach illogical, noting that a litigant is justified in relying on the law at the time a petition is filed.

The Tenth Circuit remanded to the BIA for further proceedings consistent with its opinion.

Qusair Mohamedbhai Recognized with 2015 Davis Award

Qusair Mohamedbhia Bio PicOn January 21, 2016, Davis Graham & Stubbs held its annual Richard Marden Davis Award Dinner. The guest of honor and recipient of the 2015 Davis Award was Qusair Mohamedbhai, founder of Rathod Mohamedbhai LLC, a civil rights and plaintiff’s employment firm in Denver. Mohamedbhai is a member of the Board of Directors for CLE in Colorado, is a frequent speaker at our programs, and writes for The Practitioner’s Guide to Colorado Employment Law. In his practice, he advocates for the rights of employees in the workplace and for the civil rights of all people against governmental and institutional abuses of power. In addition to his law practice, Mohamedbhai is an adjunct professor at the University of Denver Sturm College of Law, where he teaches constitutional litigation.

Mohamedbhai has received many other prestigious awards in his career. In addition to the 2015 Davis Award, Mohamedbhai received the 2015 Leonard Wein­glass in Defense of Civil Lib­er­ties Award from the American Association of Justice; received the 2013 and 2014 Case of the Year awards from the Colorado Trial Lawyers Association; and is a Legal Advisor to the Government of Mexico. He also received 5280 Magazine‘s “Top Lawyer” award for 2016 in the area of civil rights, Law Week Colorado‘s “Barrister’s Best” award in 2015 for Best Plaintiff’s Employment Lawyer, a “Super Lawyer” designation for 2014 and 2015 in the area of plaintiff’s employment law, and was named in Best Lawyers in the 2016 edition for employment law.

The Richard Marden Davis Award is given annually to a lawyer under 40 years old who combines excellence as a lawyer with civic, cultural, educational, and charitable leadership. The award was created in honor of Richard Marden Davis, a founding partner of Davis Graham & Stubbs, who was a skilled attorney who also made time for community service. The Davis family, Davis Graham & Stubbs, and the Denver Bar Foundation established the award in memory of Richard Marden Davis in 1993 to honor his belief that great lawyers should also be professional and community leaders. Past recipients of the Davis Award include Justice Monica Marquez of the Colorado Supreme Court, Justice Richard Gabriel of the Colorado Supreme Court, Judge Gilbert Roman of the Colorado Court of Appeals, and former governor Bill Ritter.

For more information about the award, click here. Congratulations, Qusair!

Colorado Court of Appeals: State Payments Were Not Made for Purpose of Funding or Reimbursing Abortion Services

The Colorado Court of Appeals issued its opinion in Norton v. Rocky Mountain Planned Parenthood, Inc. on Thursday, January 14, 2016.

Jane Norton, in her capacity as former executive director of the Colorado Department of Public Health & Environment, instigated an audit to determine whether Rocky Mountain Planned Parenthood, Inc. (Planned Parenthood) was separately incorporated, maintained separate facilities, and maintained financial independence from Planned Parenthood of the Rocky Mountains Services Corporation (Services). Because the audit showed Planned Parenthood was charging below-market rent to Services, Norton concluded Planned Parenthood was subsidizing Services and therefore, because Services performed abortions, the state had been indirectly subsidizing abortions in violation of Colorado Constitution article V, section 50. After Norton’s audit and at her instigation, the state terminated its contractual relationship with Planned Parenthood and ceased all taxpayer funding of the organization.

Norton sued Planned Parenthood, the governor, and the directors of the Department of Health Care Policy & Financing and Department of Public Health & Environment on her own behalf as a taxpayer. In her complaint, Norton alleged that the state resumed making payments to Planned Parenthood in 2009 in violation of section 50. She asserted claims for declaratory and injunctive relief against the government defendants, unjust enrichment against Planned Parenthood for allegedly receiving unlawful payments of public funds, and the imposition of a constructive trust against Planned Parenthood.

The Colorado Court of Appeals held that, even read broadly, Norton’s complaint failed to allege that defendants made payments for the purpose of paying for any induced abortion. The court emphasized that the focus of section 50 is on the purpose of the payment as asserted by the payor, not the ultimate distribution of funds by the payee. The court noted that under Norton’s broad reading of section 50, if a state issued a paycheck to an employee and that employee then donated funds to Services, it would violate section 50, finding this an illogical and unsupportable construction of the section. The court rejected Norton’s interpretation as exceeding the plain language of section 50, noting the section cannot rationally be read to prohibit the state from paying money that may eventually end up in the hands of someone who performs abortions.

The court affirmed the district court’s order dismissing Norton’s complaint for failure to state a viable claim of violation of section 50.

Tenth Circuit: Denial of Qualified Immunity Appropriate Where Victim Not Threatening Officers

The Tenth Circuit Court of Appeals issued its opinion in Tenorio v. Pitzer on Tuesday, October 6, 2015.

Hilda Valdez called 911 to report that her sister-in-law’s husband, Russell Tenorio, had a knife to his throat and was intoxicated. Officers Moore, Hernandez, and Liccione of the Albuquerque Police Department were dispatched to the call, and Officer Pitzer also responded. The 911 operator relayed to the officers that Tenorio had a knife to his own throat but no one was injured, he had broken some windows, he had been violent in the past (this was incorrect but was relayed to the officers), was waving the knife around, takes medication for seizures, and several other people were around. When the officers arrived, they met Ms. Valdez on the front lawn. Ms. Valdez was panicked and frightened. The officers entered the house without announcing themselves. Officer Pitzer was in front with his handgun drawn, and announced that he was “going lethal.” Officer Moore was behind Pitzer with his Taser, Officer Liccione was third and also had his gun drawn, and Officer Hernandez had a shotgun with bean bags but stayed behind to talk to Ms. Valdez.

When the officers entered the house, they asked Mrs. Tenorio to step out of the way and hustled her outside. On her way out, she said, “Russell, put that down.” She was followed by Tenorio, who had a blank stare and was holding a kitchen knife loosely by his side. Officer Pitzer shouted at Tenorio to drop the weapon, and two or three seconds later Pitzer shot Tenorio, Moore tased him, and he fell to the ground. Tenorio was hospitalized for months for the life-threatening injuries he suffered that night, and later brought 42 U.S.C. § 1983 excessive force claims against Pitzer, other officers, and the City of Albuquerque. Pitzer moved for summary judgment based on qualified immunity, but the district court denied his motion, concluding the evidence could show Pitzer violated clearly established law under two theories: (1) Pitzer lacked probable cause to believe that Tenorio presented a serious risk of harm to himself or others when he shot Tenorio, and (2) Pitzer and his fellow officers recklessly created the situation that resulted in use of deadly force. Pitzer appealed the denial of his summary judgment motion.

The Tenth Circuit found interlocutory jurisdiction by accepting the facts as agreed to by the parties and using the court’s construction of the evidence in the light most favorable to Tenorio. The Tenth Circuit evaluated Pitzer’s claim for qualified immunity based on a standard of objective reasonableness as judged from the perspective of a reasonable officer on the scene. The district court weighed four factors in denying Pitzer’s motion, including (1) whether the officers ordered the victim to drop his weapon, (2) whether the victim made hostile motions with the weapon toward the officers, (3) the distance between the officers and the victim, and (4) the manifest intentions of the victim. The court concluded the first factor was neutral because although the officers ordered Tenorio to drop his knife, they did not give him sufficient time to comply, the second factor weighed against probable cause because Tenorio was holding a small knife loosely by his thigh, the third factor weighed against probable cause because Tenorio was not within striking distance when he was shot, and the fourth factor weighed against probable cause because the only person Tenorio was said to have threatened was himself. The Tenth Circuit accepted the district court’s findings concerning the evidence and agreed that it sufficed to bar summary judgment against Tenorio’s claims.

The Tenth Circuit evaluated circuit precedent and determined that its prior holdings on probable cause supported the district court’s denial. Because Tenorio was not charging the officers, was not holding the weapon in a threatening gesture, was not speaking or moving aggressively, and was not within striking distance of the officers, it was unreasonable under circuit precedent for Officer Pitzer to use lethal force.

The Tenth Circuit affirmed the district court’s denial of qualified immunity, noting that a contrary judgment may be permissible after a jury trial. Judge Phillips wrote a scathing dissent. He would have granted qualified immunity based on the fact that Tenorio had a weapon and was in the same small room as the officers.

Tenth Circuit: Juror Questionnaire, Taken in Isolation, Not Enough to Show Impermissible Bias

The Tenth Circuit Court of Appeals issued its opinion in Eizember v. Trammell on Tuesday, September 10, 2015.

When he was released from the Tulsa jail, Scott Eizember went to his ex-girlfriend’s house to exact revenge since she had alerted authorities about his violation of a protective order. He broke into a house across the street and found a shotgun. When the Cantrells, an elderly couple who lived in the house, returned home, Eizember engaged in an altercation with Mr. Cantrell where he tried to wrestle the gun from Eizember. A shot was fired during the altercation that killed Mrs. Cantrell. Eizember wrestled the gun away from Mr. Cantrell and beat him with the gun until he lost consciousness, and eventually died. Next, he headed across the street and shot Tyler Montgomery, his ex-girlfriend’s son, and beat Mr. Montgomery’s grandmother. Mr. Montgomery ran to his pickup truck to drive away but Eizember jumped into the bed of the truck. Mr. Montgomery eventually crashed the truck and ran away for help. Eizember ran the other direction and hitched a ride, but eventually shot at the other driver too.

For the next 11 days, he hid in the woods, emerging only to steal clothes and a pistol from a nearby house. He soon stole a car from outside a church and made his way out of town. When the car ran out of gas, he continued hitchhiking, and was offered a ride by Dr. Sam Peebles and his wife, whom he ordered at gunpoint to drive him to Texas. After hours in the car, Dr. Peebles was able to shoot Eizember with his own gun. Eizember wrestled the revolver away from Dr. Peebles and bludgeoned him with it, also hitting Mrs. Peebles in the head when the revolver wouldn’t fire at her. At a nearby convenience store, a clerk saw Eizember was shot and called the police. Eizember was arrested and taken to the hospital, then jail.

Eizember was eventually convicted of first-degree murder for Mr. Cantrell’s death, second-degree felony murder for Mrs. Cantrell’s death, assault and battery with a dangerous weapon for beating Montgomery’s grandmother, shooting with intent to kill for Mr. Montgomery, and first-degree burglary for breaking into the Cantrells’ home. He unsuccessfully appealed to the Oklahoma Court of Criminal Appeals (OCCA) and the U.S. Supreme Court denied certiorari. The OCCA also denied his petition for post-conviction relief, as did a federal district court, but the district court granted Eizember a Certificate of Appealability on several issues.

On appeal, Eizember argued that two jurors, D.B. and J.S., should have been excluded because they were impermissibly biased in favor of the death penalty. The Tenth Circuit, noting that both the OCCA and the federal district court rejected this claim, disagreed with Eizember. The Tenth Circuit applied a Witt standard and agreed with the OCCA that, when considered in context, D.B.’s answers did not show impermissible bias. Although the questionnaire answers pointed out by Eizember tended to show bias toward the death penalty, D.B.’s answers during voir dire showed that she could fairly consider all sentencing options. The Tenth Circuit held that the trial court did not clearly err by retaining D.B. as a juror. As for J.S., his answers tended to show less bias than D.B.’s answers, so the Tenth Circuit found no error in the trial court’s refusal to dismiss him. The dissent suggested that the OCCA did not apply the Witt standard at all in rejecting Eizember’s arguments against retaining D.B. and J.S. on the jury, therefore relying on an incorrect legal standard and necessarily mandating reversal, but the majority did not agree.

Eizember next argued that the jury was confused about the meaning of life with the possibility of parole as a sentencing option due to a prospective juror’s erroneous comment during voir dire. The Tenth Circuit disagreed, finding that the parties agreed the jurors were properly instructed on the meaning of life with the possibility of parole as a sentencing option. Eizember argued that his sentences should be vacated due to the jury’s confusion, but the Tenth Circuit again disagreed, finding that even if there had been error vacating the sentences was not the proper remedy.

Next, Eizember argued that the jury was improperly instructed on the elements of second-degree “depraved mind” murder, and the prosecution agreed. Eizember contended that because of the improper instruction, he was deprived of his federal due process rights to have the jury instructed on a non-capital alternative offense. The Tenth Circuit again disagreed, finding that although the instruction incorrectly advised the jury of the non-capital offense of “depraved mind” murder, the jury was properly instructed on felony murder, which is a non-capital offense. Eizember argued that the jury would not have been able to convict him of felony murder, but the Tenth Circuit rejected this argument as well, noting that Eizember requested the felony murder instruction. Eizember next argued that his attorney’s failure to object to the incorrect “depraved mind” instruction constituted ineffective assistance of counsel. The OCCA found that the incorrect instruction had no impact on Eizember’s rights, because it is unavailable under state law when a jury finds a killing intentional beyond a reasonable doubt, as it did in Eizember’s case.

The judgment of the district court was affirmed. Chief Judge Briscoe wrote a detailed dissent regarding D.B.’s bias in favor of the death penalty.

Colorado Supreme Court: Defendant’s Request for Lawyer was Ambiguous so Statements Admissible

The Colorado Supreme Court issued its opinion in People v. Kutlak on Monday, January 11, 2016.

Criminal Law—Fifth Amendment Right to Counsel—Invoking the Right to Counsel—Suppression of Statements.

The Supreme Court clarified that in determining whether a suspect in custody has made an unambiguous request for counsel, the proper standard under Davis v. United States, 512 U.S. 452, 459 (1994), is whether “a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” Applying this standard, the Court held that, under the totality of the circumstances, defendant did not unambiguously and unequivocally invoke his right to counsel. Because defendant did not invoke his right to counsel, and because he otherwise validly waived his Miranda rights before making incriminating statements, his statements should not have been suppressed.

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

Tenth Circuit: Plaintiff Bears Burden to Prove Constitutional Violation of Clearly Extant Law in Qualified Immunity Case

The Tenth Circuit Court of Appeals issued its opinion in Cox v. Glanz on Tuesday, September 8, 2015.

Charles Jernegan surrendered at the David L. Moss Criminal Justice Center in Tulsa, Oklahoma in July 2009, and was asked several questions related to his physical and mental health as part of the intake process by the booking officer and nurse Faye Taylor. He reported that he was taking medication for paranoid schizophrenia but did not express any suicidal ideation. The next day, he filed a medical request through the jail’s kiosk system, reporting he needed to “speak to someone about problems.” Two days later, healthcare employee Sara Sampson attempted to check on him but because he had been moved to a different cell block she never contacted him. That same morning, Jernegan hanged himself and was found dead in his cell.

His mother, Carolyn Cox, brought a 42 U.S.C. § 1983 action against the Tulsa County Sheriff, Stanley Glanz, in his individual and official capacities, and also against the company that provided healthcare services to the jail and several of the jail’s healthcare employees, including Sampson and Taylor. As relevant to Sheriff Glanz, Ms. Cox alleged that his failure to provide adequate and timely mental health screening and care constituted deliberate indifference to Jernegan’s serious medical needs in violation of the Eighth Amendment. For the individual capacity claim, Ms. Cox relied on a supervisory-liability theory, alleging Glanz failed to properly train and supervise jail employees, including Sampson and Taylor. For the official capacity claim, Ms. Cox averred that Glanz had promulgated and administered an unconstitutional policy of providing insufficient mental health evaluation and treatment.

The sheriff moved for summary judgment, contending he was entitled to qualified immunity on the individual capacity claim because Ms. Cox had not established that any jail employee acted with deliberate indifference to Jernegan’s medical needs, he had not acted with the requisite state of mind to support a deliberate indifference claim, and he had not created any policy that produced constitutional harm. The district court denied Glanz’s motion, ruling that genuine issues of material fact precluded summary judgment. The district court did not explicitly focus on the framework of qualified immunity in its ruling. Glanz filed an interlocutory appeal.

The Tenth Circuit first addressed whether it had jurisdiction to entertain the sheriff’s interlocutory appeal, acknowledging that Ms. Cox’s jurisdictional arguments had merit because the district court did not follow the settled mode of decision-making regarding qualified immunity. Because the sheriff accepted Ms. Cox’s version of the facts as true, the Circuit had jurisdiction to evaluate the legal issues presented by the agreed-upon facts. The Tenth Circuit noted that the appropriate two-fold test for qualified immunity was whether there was a constitutional violation and whether that constitutional violation was grounded in clearly established law. The Tenth Circuit commented that neither party adequately briefed the question of whether the law was clearly established at the time of Jernegan’s suicide.

Turning to the merits of the appeal, the sheriff argued the district court committed reversible error when it denied him qualified immunity on his individual capacity claim and when it denied him summary judgment on his official capacity claim. The Tenth Circuit declined to reach the second argument, noting it lacked jurisdiction and declined to exercise pendent appellate jurisdiction. The Tenth Circuit dismissed the sheriff’s appeal on the official capacity claim.

As to the individual capacity claim, the Tenth Circuit elected to review whether clearly established law prohibited the constitutional violation suffered by Jernegan, i.e., whether an inmate’s right to proper suicide screening was clearly established in 2009. The Tenth Circuit noted that Ms. Cox failed to produce any case law support for her proposition, but conducted an independent review. The Tenth Circuit noted that its standard for the requisite state of mind for deliberate indifference was established in the mid-1990s and had not changed by 2009. The trend in the circuit was to require inmate-specific knowledge of suicide risk, and the circuit declined to hold jail officials responsible when the inmate did not demonstrate a particularized risk of suicide. Because Jernegan did not present a specific risk of suicide, no jail employee could have been found to have acted with deliberate indifference, so the sheriff could not be found to have acted with deliberate indifference under a supervisor liability theory. The Tenth Circuit held that Ms. Cox failed to satisfy the clearly-extant law prong of the qualified immunity analysis, and therefore the sheriff was entitled to qualified immunity on the individual capacity claim.

The Tenth Circuit reversed the district court’s denial of qualified immunity on the individual capacity claim against the sheriff and remanded with instructions to enter judgment in favor of the sheriff, and dismissed the part of the appeal related to the official capacity claim.

Colorado Court of Appeals: Arrest in California Not Enough to Show Defendant Procured Prosecution There

The Colorado Court of Appeals issued its opinion in People v. Giem on Thursday, December 19, 2015.

Double Jeopardy Clause—Out-of-State prosecution—Aggravated Motor Vehicle Theft.

Giem approaching the victim in a parking lot in Jefferson County, pointed a gun at him, demanded his car keys, and took his car. The car was equipped with an antitheft transmitter. The next day, law enforcement officials in California found Giem driving the victim’s car. In February 2012, Giem pleaded guilty to unlawful driving or taking of a vehicle and DUI in California. He was later prosecuted in Colorado for this same incident, and his motion to dismiss the charges based on the Double Jeopardy Clause and CRS § 18-1-303 were denied.

On appeal, Giem challenged only the court’s ruling on his motion to dismiss, arguing that the Double Jeopardy Clause and CRS § 18-1-303 barred his prosecution in Colorado. CRS § 18-1-304(1)(b), however, creates an exception that allows a prosecution to proceed even if § 18-1-303 would otherwise bar it if the former prosecution “[w]as procured by the defendant without the knowledge of the appropriate prosecuting official and with the intent to avoid the sentence that otherwise might be imposed.” Here, the court’s factual findings do not support its legal conclusion that Giem procured his California prosecution. Merely being present in California with a stolen car stops short of procuring a prosecution there. Therefore, the trial court incorrectly determined that CRS § 18-1-304(1)(b) prevented Giem from taking advantage of § 18-1-303. Giem’s Colorado prosecutions for menacing, theft, and aggravated robbery, however, were not based on the same conduct that resulted in his conviction in California for unlawful driving or taking of a vehicle. Therefore, Giem’s prosecutions in Colorado for these crimes were not barred by his prior conviction in California for unlawful driving or taking of a vehicle. Conversely, Giem’s prosecution in Colorado for aggravated motor vehicle theft was based on the same conduct as the California conviction for unlawful taking of a vehicle, as both offenses were based on the taking and retention by Giem of the victim’s vehicle. Therefore, the People in Colorado were barred from prosecuting Giem for aggravated motor vehicle theft because it is not clear that the law of California and the law of Colorado for this crime were intended to prevent a substantially different harm or evil. The judgment was affirmed as to all counts except the count of aggravated motor vehicle theft, which was reversed.

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

Colorado Court of Appeals: “Sufficient Consequence” Language in Sexual Assault Statute Not Unconstitutionally Vague

The Colorado Court of Appeals issued its opinion in People v. Komar on Thursday, December 3, 2015.

Sexual Assault—Unconstitutionally Vague—Jury Instructions—Mens Rea—Prior Inconsistent Statements.

M.A., the victim, celebrated her 21st birthday with several others and later went to bed in a severely intoxicated state. M.A. testified that she awoke to find defendant engaging in sexual intercourse with her. She told him to stop, screamed for help, and defendant continued the assault until M.A.’s friends pulled defendant off of her. The jury found defendant guilty of sexual assault by causing the victim’s submission through means of sufficient consequence to overcome her will, a class 4 felony.

On appeal, defendant argued that the “sufficient consequence” language of the sexual assault statute, CRS § 18-3-402(1)(a), is unconstitutionally vague, both on its face and as applied to him. When the statute is read as a whole, a reasonable person is put on notice that a class 4 sexual assault is committed when causing submission by “means of sufficient consequence.” Further, the evidence supporting defendant’s conviction showed, at a minimum, that defendant continued to sexually penetrate M.A. after she explicitly and forcefully instructed him to stop. Imposing sexual penetration despite clear and affirmative non-consent paradigmatically constitutes sexual penetration “by means of sufficient consequence reasonably calculated to cause submission.” Accordingly, this statute is not unconstitutionally vague on its face or as applied to defendant.

Defendant also argued that the district court erred by failing to instruct the jury that the mens rea element of “knowingly” applies to the fourth element of sexual assault. Although the instruction did not specifically tie “knowingly” to the last element of the offense, it did inform the jury that to convict it must find the sexual penetration had been achieved by means “reasonably calculated to cause submission against the victim’s will.” Hence, the district court adequately instructed the jury.

Defendant next argued that the district court reversibly erred by sustaining the prosecutor’s objection to testimony concerning M.A.’s prior inconsistent statements and by limiting defense counsel’s questions concerning those statements. On direct examination by defense counsel, M.A. testified that she had never accused anyone other than defendant of sexual assault and no other individual had sexually assaulted her. Defense counsel called Stone as a witness to impeach M.A.’s in-court testimony and to show that M.A. had previously made false accusations of sexual assault. The trial court abused its discretion when it excluded Stone’s testimony concerning M.A.’s prior statements; however, any error was harmless.

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