May 24, 2015

Bills Regarding Community Association Manager Licensure, Peace Officer Transparency, and More Signed

On Wednesday, May 20, 2015, Governor Hickenlooper signed 14 bills into law. To date, he has signed 241 bills into law this legislative session. The bills signed Wednesday are summarized here.

  • HB 15-1323 – Concerning Assessments in Public Schools, and, in Connection Therewith, Codifying the Consensus Recommendations of the Standards and Assessments Task Force Created in House Bill 14-1202, and Reducing an Appropriation, by Reps. John Buckner & Jim Wilson and Sens. Chris Holbert & Andy Kerr. The bill modifies the system of statewide assessments in English language arts.
  • SB 15-056 – Concerning Reducing the Frequency of Administering the Statewide Assessment in Social Studies and, in Connection Therewith, Making an Appropriation, by Sen. Andy Kerr and Rep. Tracy Kraft-Tharp. The bill eliminates the requirement that each public school administer an assessment in social studies and instead allows school districts to administer the test in a representative sampling of schools.
  • HB 15-1317 – Concerning Pay for Success Contracts, by Reps. Alec Garnett & Bob Rankin and Sens. Michael Johnston & Beth Martinez Humenik. The bill creates “pay for success” contracts, into which the Office of State Planning and Budgeting can enter to increase economic opportunity and improve living conditions.
  • HB 15-1129 – Concerning Disaster Prediction and Decision Support Systems by the Department of Public Safety, and, in Connection Therewith, Making an Appropriation, by Rep. Tracy Kraft-Tharp and Sen. Ellen Roberts. The bill requires the Division of Fire Prevention and Control to develop systems to predict disasters, specifically wildfires.
  • HB 15-1344 – Concerning the Financing of State Capital Construction Projects that are Included in the National Western Center or Capitol Complex Master Plans, and, in Connection Therewith, Authorizing the State to Enter Into Lease-Purchase Agreements to Finance Facilities for Colorado State University that are Included in the National Western Master Plan, Creating the National Western Center Trust Fund, and Creating a Capitol Complex Master Plan Implementation Fund as a Funding Source for Projects that are Included in the Capitol Complex Master Plan, by Reps. Crisanta Duran & Jon Becker and Sens. Jerry Sonnenberg & Pat Steadman. The bill authorizes the state treasurer to enter into lease-purchase agreements with CSU to construct facilities at the National Western Complex and CSU’s main campus.
  • HB 15-1285 – Concerning Use of Body-Worn Cameras by Law Enforcement Officers and, in Connection Therewith, Establishing a Grant Program and a Study Group to Recommend Policies on the Use of Body-Worn Cameras and Making an Appropriation, by Reps. Daniel Kagan & Angela Williams and Sens. John Cooke & Jessie Ulibarri. The bill creates the body-worn camera fund to purchase body-worn cameras and train officers in their use, as well as study best practices.
  • HB 15-1287 – Concerning Measures to Improve Peace Officer Training, by Rep. Angela Williams and Sen. John Cooke. The bill expands the scope of the Peace Officers Standards and Training Board in the Department of Law.
  • HB 15-1290 – Concerning Prohibiting a Peace Officer from Interfering with a Person Lawfully Recording a Peace Officer-Involved Incident, by Reps. Joseph Salazar & Daneya Esgar and Sens. Lucia Guzman & David Balmer. The bill specifies that people have the lawful right to record officer-involved incidents.
  • HB 15-1303 – Concerning Eliminating the Application of Certain Sentencing Provisions to Certain Persons who are Convicted of Assault in the Second Degree, by Rep. Jovan Melton and Sen. Kevin Lundberg. The bill removes mandatory crime of violence sentencing for assault against first responders.
  • SB 15-217 – Concerning Data Collection Related to Peace Officer-Involved Shootings of a Person, and, in Connection Therewith, Making an Appropriation, by Sens. Ellen Roberts & John Cooke and Rep. Angela Williams. The bill creates a process for public reporting of specified data concerning officer-involved shootings.
  • SB 15-218 – Concerning Requiring a Law Enforcement Agency to Disclose Whether a Peace Officer has Made a Knowing Misrepresentation in Certain Settings, by Sens. Ellen Roberts & John Cooke and Rep. Angela Williams. The bill requires a law enforcement agency to report any knowing instance of misrepresentation by a peace officer to the district attorney.
  • SB 15-219 – Concerning Measures to Provide Additional Transparency to Peace Officer-Involved Shootings, by Sens. John Cooke & Ellen Roberts and Rep. Joseph Salazar. The bill requires local law enforcement agencies to make public its protocols regarding contacting other agencies following officer-involved shootings.
  • HB 15-1262 – Concerning Separate Legal Entities Established by a Contract Between Two or More Political Subdivisions of the State, and, in Connection Therewith, Clarifying the Legal Status and Scope of Powers of Such an Entity, by Rep. Paul Rosenthal and Sen. David Balmer. The bill specifies the legal status and powers of an entity formed by two or more governments to provide public improvements.
  • HB 15-1343 – Concerning a Streamlined Process to Simplify the Licensure of Persons who Manage the Affairs of Common Interest Communities Under the “Colorado Common Interest Ownership Act”, and, in Connection Therewith, Making an Appropriation, by Reps. Angela Williams & Dan Thurlow and Sens. Nancy Todd & David Balmer. The bill makes several changes to the community association manager licensure program.

For a complete list of Governor Hickenlooper’s 2015 legislative decisions, click here.

Colorado Court of Appeals: Error for Trial Court to Deny Defendant’s Request to Represent Himself

The Colorado Court of Appeals issued its opinion in People v. Johnson on Thursday, May 11, 2015.

Murder—Trespass—Criminal Mischief—Right to Counsel—Sixth Amendment—Waiver—Circumstantial Evidence.

A jury found defendant guilty of first-degree murder, trespass, and criminal mischief; the district court sentenced him to life in prison. A division of the Court of Appeals reversed the judgment due to instructional error and remanded the case for a new trial. The court thereafter denied defendant’s request to represent himself at the second trial, finding that although the request was made voluntarily, it was not made knowingly and intelligently. Defendant was represented by alternative defense counsel (ADC) throughout the second trial, and the jury returned guilty verdicts on all three charges.

On appeal, defendant argued that the district court violated his right to represent himself. The right to self-representation is guaranteed by the Sixth Amendment to the U.S. Constitution. However, a defendant must show that he or she “knowingly and intelligently” relinquishes the benefits of representation by counsel. The court must honor a defendant’s request to self-represent if it is satisfied that defendant knows what he or she is doing and understands the consequences. Here, the record shows that the district court conducted a thorough and comprehensive inquiry of defendant; defendant’s requests to proceed pro se were unequivocal and not made for the purpose of delay or tactical advantage; and defendant demonstrated through his responses that he was knowingly and intelligently waiving his right to counsel. Under these circumstances, the court erred in denying defendant the right to represent himself. The conviction was therefore reversed and the case was remanded for a new trial.

Defendant also argued that the evidence was not sufficient to support his convictions for trespass and criminal mischief. Although no direct evidence established that defendant committed trespass and criminal mischief, the circumstantial evidence that he (1) sexually assaulted his girlfriend two nights before the vandalism; (2) knew where the victim (his girlfriend’s best friend) lived in Steamboat Springs; and (3) rented a car and drove approximately 400 miles the night of the vandalism (enough for a round trip to Steamboat Springs) was sufficient to prove beyond a reasonable doubt that he committed these crimes. Thus, he may be retried on these charges.

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

Tenth Circuit: Qualified Immunity Improperly Denied to Officers Whose Conduct Not Clearly Prohibited by Established Law

The Tenth Circuit Court of Appeals issued its opinion in Quinn v. Young on Friday, March 13, 2015.

Plaintiffs John Quinn and Lavern Gonzalez were arrested after a sting operation. The Albuquerque Police Department (APD) had organized a sting (called the “Tact Plan”) in which they left a backpack containing alcohol, cigarettes, and a laptop next to an ATM and waited to see who would take it. Quinn, Gonzalez, and their child approached the backpack and conversed. The child took the backpack and the three went to a local diner. The police followed. At the diner, Gonzalez opened the backpack and examined its contents. When she opened the laptop, the APD logo appeared and officers arrested Quinn and Gonzalez. They were detained for approximately two days.

Plaintiffs filed a complaint in New Mexico’s federal district court against the officers, Sergeant Armijo, the APD chief, the APD, four APD supervisors, and the City of Albuquerque (collectively, defendants). Plaintiffs alleged that Defendants’ conduct, as well as the Tact Plan, violated their Fourth Amendment right to be free from unlawful seizure under § 1983. Plaintiffs also alleged entrapment and violation of their substantive due process rights by causing them embarrassment and humiliation. Defendants responded with a summary judgment motion, arguing the officers were entitled to qualified immunity, Plaintiffs had stated no constitutional violation by a municipal employee, and Plaintiffs had stated no actionable claim against the police chief or APD.

The district court granted Defendants’ motion in part and denied it in part, finding Plaintiffs had established a genuine issue of material fact as to whether there was probable cause for their arrest. The district court ruled that the officers should have been on notice that they could not arrest for larceny without probable cause and denied qualified immunity on Plaintiffs’ Fourth Amendment claim. Without making requisite findings, the district court denied qualified immunity on all Plaintiffs’ claims, and it did not articulate a basis for ruling on the entrapment claim. The officers timely appealed.

The Tenth Circuit first addressed the Fourth Amendment claim, evaluating whether the officers had probable cause to arrest Plaintiffs for larceny following the sting operation and whether clearly established law at the time of the offense would have placed a reasonable, similarly situated police officer on notice that no probable cause existed. Addressing the second question first, the Tenth Circuit found that any constitutional violation would not have been apparent based on the clearly established law existing at the time of the arrest, and the officers should have been granted qualified immunity. Finding the lack of on-point caselaw significant, the Tenth Circuit evaluated jurisprudence on non-sting larceny cases and found the officers would not have had fair warning that their arrests lacked probable cause. Additionally, two cases decided in 2013—three years after the arrests in issue here—also determined there was a lack of caselaw regarding the constitutionality of sting operations, supporting the Tenth Circuit’s position that the officers would not have had fair warning about the constitutionality of their arrests.

The Tenth Circuit next evaluated the officers’ challenge to the district court’s denial of qualified immunity on the entrapment, malicious prosecution, and due process claims. Recognizing that the district court “painted with broad strokes,” the Tenth Circuit addressed these points. The Tenth Circuit concluded that the entrapment claim was not properly before it on appeal, since Plaintiffs only named the government and not the officers in their entrapment claim, and dismissed it for lack of jurisdiction. The Tenth Circuit likewise exercised its discretion and declined to address the malicious prosecution and due process claims, opting instead for a limited remand with instructions for the district court to explicitly address whether the officers are entitled to qualified immunity on the malicious prosecution and due process claims and then rule on the claims based on the findings.

The Tenth Circuit reversed the summary judgment on the officers’ qualified immunity claim and directed the district court to enter judgment in favor of the officers, dismissed the appeal related to the entrapment claim for lack of jurisdiction, and remanded the malicious prosecution and due process claims with instructions.

Tenth Circuit: No Sixth Amendment Violation for Long Delay but Defendant’s Speedy Trial Act Rights were Violated

The Tenth Circuit Court of Appeals issued its opinion in United States v. Hicks on Friday, March 6, 2015.

Brian Hicks was arrested following a shooting in 2005, and at the time of arrest he was wearing a bulletproof vest and carrying a loaded .40 caliber Glock magazine. Because of his previous felony convictions, he was not allowed to possess these items, and was charged with one count each of possession of firearms and body armor by a convicted felon. More than a year later, Denver’s Metro Gang Task Force intercepted a call suggesting that Hicks was going to meet a drug dealer to purchase cocaine. After the meeting, police attempted a traffic stop, which turned into a chase. During the chase, Hicks threw a black bag from his car. Police later apprehended Hicks and recovered the bag, which contained several kilograms of cocaine. Hicks was indicted on multiple charges related to conspiracy to distribute cocaine in 2007. The government and Hicks engaged in a years-long period of motions and continuances, and finally on August 1, 2012, the district court ruled that all remaining issues had been resolved and the matter could be set for trial. On August 2, 2012, the government moved for the court to set a trial date. The district court ruled on this motion on September 27, 2012, when it scheduled a status conference and hearing on all pending motions for November 28, 2012. However, on November 15, Hicks filed two motions to dismiss on speedy trial grounds, one based on violation of his Sixth Amendment right to a speedy trial and one based on violations of the Speedy Trial Act. The district court denied both motions. Hicks eventually pleaded guilty in February 2014, reserving the right to appeal the denial of his speedy trial motions.

The Tenth Circuit first reviewed the denial of Hicks’ Sixth Amendment violation claims. The Tenth Circuit found the length of the delay, five and a half years, was presumptively prejudicial, and turned to the reason for the delay. Most of the delay was attributable to Hicks—he filed over forty unique motions, including several requesting deadline extensions or continuances; he changed counsel several times during the proceedings; and he requested that his federal prosecution be delayed until the conclusion of his state court proceedings. Although some of the delay was attributable to the prosecution, the majority of it was because of Hicks, and this factor weighed against him. Next, the Tenth Circuit evaluated whether Hicks asserted his right to a speedy trial, and found that although he first asserted his right in January 2008, he did not renew his assertion until August 2011. This weighed against Hicks also. Finally, the Tenth Circuit evaluated whether the delay prejudiced Hicks. Because he was already serving a life sentence on different charges, the delay did not cause pre-trial confinement concerns. Hicks also failed to make a particularized showing of increased anxiety from the delay, leaving Hicks to show that the delay “fundamentally hampered his ability to assist in his defense.” Hicks did not make this showing; although he was housed in the administrative segregation unit of the prison, he was generally able to meet with his legal counsel at any time during business hours, and he made numerous motions for continuances and extensions of time. The Tenth Circuit found no Sixth Amendment violation and affirmed the district court’s denial of Hicks’ motion.

Turning next to the Speedy Trial Act claims, the Tenth Circuit evaluated whether the delay in setting Hicks’ hearing exceeded the Speedy Trial Act’s 70-day limit, and found that it did. The district court issued its order resolving all remaining issues on August 1, 2012, and the Speedy Trial clock started ticking then. It was tolled for thirty days by the prosecution’s motion to set the trial, but the 70 days expired on November 10, 2012, and Hicks’ Speedy Trial Act rights were therefore violated. The Tenth Circuit reversed the district court’s denial of Hicks’ Speedy Trial motion and remanded with orders to vacate his convictions and determine if they should be vacated with or without prejudice.

Colorado Court of Appeals: Admission of Voice Exemplar Did Not Violate Right Against Self-Incrimination

The Colorado Court of Appeals issued its opinion in People v. Ortega on Thursday, April 9, 2015.

Voice Identification—Self-Incrimination—Physical Evidence—Due Process—CRE 403—Prosecutorial Misconduct.

While at a public park, an undercover police officer who was wearing a wire bought marijuana from a man who was later identified as Ortega. At trial, the prosecutor moved to have Ortega read a statement to allow the jury the opportunity to match his voice with the person speaking on the recording of the drug deal.

On appeal, Ortega argued that the voice identification procedure violated his right against self-incrimination, the right to due process, and CRE 403. The voice exemplar provided by defendant was physical evidence and not testimonial. Therefore, the procedure did not violate Ortega’s right against self-incrimination. Additionally, although the jurors had not seen or heard Ortega before trial, they listened to the officer’s and detective’s testimony describing their out-of-court identifications of Ortega. This testimony gave them “an independent basis” for identifying Ortega as the seller. Therefore, the totality of the circumstances indicates that the identification procedure did not violate Ortega’s right to due process. Finally, the trial court’s determination that the voice exemplar posed a minimal risk of unfair prejudice was not “manifestly arbitrary, unreasonable, or unfair.”

Ortega also argued that the prosecutor’s comments during closing argument appealed to the jurors’ fears and concerns for public safety, thus denying him a fair trial. The prosecutor’s comments were an improper attempt to persuade the jurors to convict defendant “in order to combat evil for the community.” However, because the comment was an isolated incident in an otherwise proper closing argument, the error was harmless.

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

Tenth Circuit: Use of Force Against Physically and Mentally Unstable Person Excessive so No Qualified Immunity

The Tenth Circuit Court of Appeals issued its opinion in Aldaba v. Pickens on Wednesday, February 4, 2015.

Johnny Leija went to a hospital in Oklahoma and was diagnosed with dehydration and severe pneumonia in both lungs, causing hypoxia (low oxygen levels, known to cause altered mental status). He was pleasant when he was admitted at 11 a.m., but by 6 p.m. his behavior had changed—he was complaining of extreme thirst and a nurse discovered he had disconnected his oxygen and cut his IV, and he was bleeding from the arms. The nurse reconnected the IV and the oxygen, but Leija seemed confused and anxious. Leija became increasingly aggressive and disoriented, the doctor was increasingly concerned for his health due to the behavioral and mental status changes, and eventually law enforcement was called “for help with a disturbed patient.”

Leija, who had willingly come to the hospital, exited his hospital room and was walking toward the exit when law enforcement arrived. The doctor expressed concern that Leija could die if he left the hospital, given the severity of his symptoms. The officers tried to persuade Leija to return to his room, but he was agitated and insisted the nurses were trying to kill him. The officers repeatedly tried to get Leija to his knees and warned him they would use a taser. Leija removed his IVs and shook his arms, stating “this is my blood.” A deputy fired the taser, striking Leija in the torso, but it appeared ineffectual and a struggle ensued. The officers shoved Leija face-first against the wall and tased him again, this time making direct contact with Leija’s skin, but again the taser appeared ineffectual. A deputy shoved his leg into the back of Leija’s knee, bringing all three officers and Leija down. The officers handcuffed Leija while the doctor administered calming medications, but at that point Leija became limp and the doctors began CPR. Leija died that evening. The medical examiner testified that the cause of death was pneumonia, but the taser shots “certainly could have increased Leija’s need for oxygen,” and the treating physician testified that the position Leija was forced into by the officers made it difficult for him to breathe.

Erma Aldaba, Leija’s mother and next of kin, brought a 42 U.S.C. § 1983 action against the officers. The district court granted summary judgment to the officers, deciding that Leija was lawfully seized, since probable cause existed for taking him into protective custody due to his altered mental status. However, the district court denied qualified immunity on the excessive force claim, holding that several material disputes existed about the reasonableness of the force used against Mr. Leija. The officers filed an interlocutory appeal.

The Tenth Circuit first analyzed the constitutional violation regarding the officers’ use of excessive force against Leija. The Tenth Circuit first enumerated the Graham factors for determining whether force was excessive, then added factors relating to the reasonableness of using force against a person who is to be taken into protective custody for mental health reasons. The Tenth Circuit found that where, as here, the person has committed no crime and poses a threat only to himself, it is especially egregious to use force to take the person into protective custody. The Tenth Circuit also admonished against the use of force or positional restraints when a person has special characteristics making him especially susceptible to harm, such as known medical conditions. Weighing the factors, the Tenth Circuit found the first factor weighed for the use of some force in restraining Mr. Leija, since he was clearly mentally disturbed and could die if he left the hospital. However, the rest of the factors weighed against the use of force, and particularly against the use of a taser.

Mr. Leija’s altered mental status and compromised physical condition weigh against the use of any force in restraint. Perhaps more importantly, weighing against the use of force was the fact that Mr. Leija committed no crime and voluntarily arrived at the hospital for medical treatment. Finally, the Tenth Circuit found disputed material facts regarding the last Graham factor—whether the defendant resisted seizure. Here, testimony varied on whether Mr. Leija complied with the officers’ orders to get down on his knees. Surveillance video showed no struggle from Leija, who simply continued walking when the officers commanded him to kneel. The deputy made the initial showing of force by tasing Mr. Leija. The officers were not justified in using the level of force shown on the surveillance video. The Tenth Circuit found the officers were not entitled to summary judgment on the excessive force claim, and that the law was clearly established at the time of the violation.

The Tenth Circuit affirmed the district court’s denial of summary judgment to the officers.

Colorado Court of Appeals: Statute with “Other Apparatus” Category Not Unconstitutionally Vague As Applied to Gym Lockers

The Colorado Court of Appeals issued its opinion in People v. Nerud on Thursday, March 12, 2015.

Third-Degree Burglary Statute—Vagueness Challenge—Sufficiency of the Evidence—Jury Instructions—Closing Argument.

Nerud stole money and a backpack from three lockers at a 24 Hour Fitness Center on three occasions. He was apprehended on the third theft and eventually admitted to all three thefts, but denied breaking any locks to enter the lockers. He claimed he rummaged through belongings in unlocked lockers until he found money to take. Nerud was charged with two counts of third-degree burglary related to the first two incidents and three counts of theft. The jury found him guilty on all counts.

On appeal, Nerud argued that the third-degree burglary statute, CRS § 18-4-204(1), is unconstitutionally vague on its face and as applied to him because it prohibits entering or breaking into “other apparatus or equipment.” The Court of Appeals reviewed the case law interpreting the phrase and held the statute is not vague on its face because “other apparatus and equipment” is limited to containers with the same characteristics as the other items listed in the statute (specifically, containers designed and used for the safekeeping of money or valuables). The Court found the lockers were clearly “other apparatus and equipment” because they were used to safeguard personal valuable items while members worked out in the gym and a person of ordinary intelligence would not have to guess at this meaning. Thus, the statute was not unconstitutionally vague as applied.

Nerud argued that the evidence presented was insufficient to prove the lockers were “other apparatus or equipment” that were locked. The Court found copious evidence in the record to support the findings of the jury; the testimony of the victims alone was sufficient.

Nerud argued that the jury instruction on “other apparatus or equipment” was improper. The Court disagreed, finding that the jury instruction correctly defined the phrase.

Nerud argued that the jury instruction on the inference that may be drawn from a defendant’s unexplained, exclusive possession of stolen property was error. The Court found any error harmless; Nerud conceded the theft but only contested whether the lockers he had stolen from were locked.

Nerud further argued that the prosecutor in his closing argument improperly offered personal opinions about witness credibility and drug paraphernalia found in Nerud’s backpack. The Court found no reversible error. It first noted no contemporaneous objection and therefore a plain error standard of review applied, and then reviewed the objected to statements and found no plain error. The judgment was affirmed.

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

Tenth Circuit: Fourth Amendment Does Not Require Judge’s Signature on Search Warrant

The Tenth Circuit Court of Appeals issued its opinion in United States v. Cruz on Monday, December 22, 2014.

Raul Cruz was convicted by a jury of knowingly and intentionally possessing methamphetamine with intent to distribute and sentenced to 63 months’ imprisonment. His conviction and sentence were affirmed on direct appeal. Cruz subsequently filed a motion to vacate, set aside, or correct his sentence, alleging his trial counsel was ineffective for failing to move to suppress evidence uncovered during the search of his residence pursuant to an unsigned search warrant. The district court denied relief on this assertion, and Cruz appealed.

The Tenth Circuit found, upon examination of the record, that the affidavit and warrant had been presented to a New Mexico district judge on March 26th, 2010. The judge signed the signature lines on the affidavit but neglected to sign the warrant at that time. Officers executed the warrant on March 29, 2010, and found methamphetamine, horse steroids, cash, and false identification. Officers found no evidence of drug use in the home or by Cruz. Cruz admitted to possession of the drugs but not intent to distribute. Approximately a month later, the judge signed the warrant, dated it March 26, 2010, and wrote “Nunc Pro Tunc on this April 23, 2010″ below the date line.

Cruz asserted that his counsel should have moved to suppress the evidence seized during the search of his residence, as well as his subsequent statements to police about the fruits of the search, because the unsigned warrant was not “issued” by a judge. Cruz claims that such motion would have been meritorious and would ultimately have led either to dismissal of the charges against him or his acquittal at trial. The Tenth Circuit disagreed, finding instead that nothing in the text of the Fourth Amendment conditions the validity of a warrant on its being signed. The First Circuit recently dealt with surprisingly similar facts and rejected the defendant’s argument, concluding that nothing in the Fourth Amendment required the judge who made the probable cause determination to also sign the warrant. The Tenth Circuit exhaustingly examined the meaning of the term “issue” under the Fourth Amendment, and found no reason to impose conditions on a validity of a warrant that were not set forth by the Fourth Amendment itself. The Tenth Circuit therefore concluded that there was no support for an inference that Cruz’s counsel’s motion to suppress would have been meritorious, and found no deficient performance of his counsel.

The district court’s judgment was affirmed.

e-Legislative Report: February 10, 2015

legislationCBA Legislative Policy Committee

For followers who are new to CBA legislative activity, the Legislative Policy Committee (“LPC”) is the CBA’s legislative policy making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions from requests from the various sections and committees of the Bar Association.

Meeting held Friday, February 6
The following bills were discussed for action during last Friday’s LPC meeting.  Other bills of interest from that agenda are tracked and updated below.

SB 15-042 – Mandatory Reports Of Animal Abuse
(Senator Sonnenberg & Representative J. Becker)
The intent of the sponsors was to criminalize the recording of undercover videos showing animal cruelty in farming practices.  The Bar sections could not support the bill, or a subsequent “strike below”* amendment, because the language was overly broad, potentially unconstitutional and would lead to unintended consequences.  The LPC voted to oppose this bill at the recommendation of the Animal Law and Agricultural Law Sections.

HB 15-1101 – Public Defender ADC Records Open Records
(Representatives Field and Lawrence)
The LPC voted to oppose this bill as well.  The committee was concerned about the impact of Rule 1.6 and the financial impact of the bill to the State.  There was also concern that this bill would open the door for CORA requests of the Judicial Branch – and the potential impact that would have.  The LPC voted unanimously to oppose this bill.

HB 15-1037 – Freedom of Conscience Higher Ed
(Representative Priola & Senator Neville)
This bill was considered at the request of the Civil Rights Committee who presented that the bill was intended to “protect religious freedom and the right of association.”  After some discussion, the LPC voted to take no position on this bill.

At the Capitol: Week of February 2

HB 15-1135 – Terminally Ill Individuals End-of-life Decisions
(Representatives Court and Ginal & Senator Guzman)
HB 1135 was the big bill last week at the capitol.  Testimony began a little after 9:30am and concluded shortly before 10pm!  The emotional level of testimony was compelling.  There were approximately 120 people that signed up to testify for the bill ranging from all types of organizations and all walks of life. Many made passionate testimony on both sides of the bill which was a true indicator that our group made the correct policy decision to fix the issues and then maintain our neutrality. It is an issue that people either feel at a core level to support or they don’t.  The Committee voted to send the bill to the next committee Appropriations.  That motion failed 8-5.  There was a motion to Postpone the bill indefinitely, (passing 9-4) killing the bill for the remainder of the session.

Many Bar sections weighed in on the bill, its technical merits, and the drafting problems of the bill.  While individual sections had vigorous debates on the policy of “death with dignity” or physician assisted suicide, the LPC took no position on the bill itself.

SB 15-077 – Parents’ Bill of Rights
(Senator Neville & Representative Neville)
This Senate Bill sponsored by the father-son legislative team from Jefferson County was heard and passed out of the Senate committee last week.  The bill is set for its key second reading on Wednesday. Senate Bill 77, the so-called “Parents’ Bill of Rights” sponsored by Sen. Tim Neville and Rep. Patrick Neville, would give parents certain rights over the health care, education and mental health care of minor children.  The Bar Association voted to oppose this legislation at its LPC meeting on January 30.

SB 15-049 – Real Estate Title Vests In Entity Once Formed
(Senator Martinez Humenik & Representative Keyser)
This bill – supported by the bar – continues through the legislature on a straightforward course. It has now passed the Senate and will be heard in the Hose Business Affairs and Labor Committee, where Rep. Keyser will be the key sponsor.

HB 15-1121 – Wind Energy Generation
(Representative J. Becker & Senator Sonnenberg)
This Bar supported bill is also progressing through the legislative process.  Representative Becker has successfully completed the House process, and the bill passes to Senator Sonnenberg for the final leg of its legislative journey.

New Bills of Interest

Senate

SB 15-129 – Preserving Parent-child Relationships
(Senator Lundberg)
The bill amends provisions relating to best interests of a child in domestic relations actions and certain other actions in the juvenile code. With respect to such actions, the bill:

Amends the legislative declaration to emphasize the fundamental liberty interest of both parents and children in maintaining the parent-child relationship;

With respect to temporary orders hearings, if there has been a temporary or permanent protection order entered against one or both parties either prior to or in conjunction with the domestic relations action, requires the court to grant an expedited hearing at the request of either party for purposes of modifying provisions in the protection order relating to parenting time, communication, and access to a child. The court shall order substantially equal parenting time and access to the child unless it finds that such orders are clearly not in the child’s best interest. The court shall also enter any orders necessary for the safety of the protected party relating to the restrained party’s parenting time with the child.

Changes the nature of an investigation by a court-appointed child and family investigator (CFI) from evaluation and recommendations to investigation and fact-finding. CFIs will conduct an objective investigation of issues as specifically directed by the court and will provide written factual findings to the court that are supported by credible evidence. A CFI’s report will not make recommendations regarding the allocation of parental responsibilities but will provide the court with the factual findings the court deems necessary to make such determinations.

Amends language in the legislative declaration regarding the allocation of parental rights and responsibilities relating to the best interests of the child. Also, the bill requires the court to allocate substantially equal parenting time unless the court finds that doing so would endanger a child’s physical health or significantly impair the child’s emotional development. In addition, the court shall award mutual decision-making responsibilities with respect to the child unless the court finds that such an order is clearly not in the child’s best interest.

For purposes of temporary orders in a domestic relations action, requires the court to award substantially equal parenting time to the parties unless the court finds that doing so would endanger a child’s physical health or significantly impair the child’s emotional development. In addition, the court shall order mutual decision-making responsibilities unless mutual decision-making is clearly not in the child’s best interest.

Changes the nature of an evaluation by a court-appointed parental responsibilities evaluator to an investigation by a mental health professional. The mental health investigation is limited to mental health diagnoses, assessments of relevant addictions, or other mental health-related issues that are relevant to the court’s allocation of parental responsibilities for the child. The investigator’s report shall contain findings of fact but shall not contain conclusions or recommendations relating to the allocation of parental rights and responsibilities.

Clarifies that the 2-year restriction on filing motions that request a substantial change in parenting time and that also change the party with whom the child resides the majority of the time do not apply to moderate changes to parenting time when the existing parenting time order awarded substantially equal parenting time to the parties; and

Amends the provisions relating to modification of decision-making responsibility for a child from requiring the court to retain the prior decision-maker unless certain criteria are met to permitting the court to change the decision-maker after considering certain criteria, including whether an award of mutual decision-making responsibilities is now in the child’s best interest.

SB 15-174 – Uniform Substitute Decision Making Documents Act
(Senator Steadman)
Colorado Commission on Uniform State Laws. The bill adopts, with amendments, the “Uniform Substitute Decision-making Documents Act” as Colorado law. The bill establishes the circumstances under which a substitute decision-making document (document) executed outside this state is valid in this state. A person may assume in good faith that a document is genuine, valid, and still in effect and that the decision-maker’s authority is genuine, valid, and still in effect. A person who is asked to accept a document shall do so within a reasonable amount of time. The person may not require an additional or different form of document for authority granted in the document presented. A person who refuses to accept a substitute document is subject to:  A court order mandating acceptance of the document; and Liability for reasonable attorney’s fees and costs incurred in an action or proceeding that mandates acceptance of the document. A person is not required to accept a substitute document under certain described conditions.

House

HB 15-1043 – Felony Offense For Repeat DUI Offenders
(Senators Cooke and Johnson & Representatives McCann and Saine)
Under current law, a DUI, DUI per se, or DWAI is a misdemeanor offense. The bill makes such an offense a class 4 felony if the violation occurred: (1) After 3 or more prior convictions for DUI, DUI per se, or DWAI; vehicular homicide; vehicular assault; or any combination thereof; or (2) not more than 7 years after the first of 2 prior convictions for DUI, DUI per se, or DWAI; vehicular homicide; vehicular assault; or any combination thereof, if the violation included at least one of the following circumstances: One or more persons less than 18 years of age were present in the person’s vehicle at the time of the violation;  In committing the violation, the person caused damage or injury to any property or persons;  After committing the violation, the person fled the scene; or At the time of the violation, or within 2 hours after the violation, the person’s BAC was 0.15 or higher. Under current law, aggravated driving with a revoked license is a class 6 felony. The bill changes the penalty to a class 1 misdemeanor but requires a sentencing court to ensure that an offender spends a minimum of 60 days in the custody of a county jail. Under current law, a person whose privilege to drive was revoked for multiple convictions for any combination of a DUI, DUI per se, or DWAI must hold an interlock-restricted license for at least one year following reinstatement prior to being eligible to obtain any other driver’s license. The bill expands this period to a minimum of 2 years and a maximum of 5 years. The bill repeals provisions relating to the crime of aggravated driving with a revoked license when the offender also commits DUI, DUI per se, or DWAI as part of the same criminal episode. The bill makes conforming amendments.

HB 15-1161 – Public Accommodation First Amendment Rights
(Representative Klingenschmitt)
The bill specifies that neither the civil rights division, the civil rights commission, nor a court with jurisdiction to hear civil actions brought under the public accommodations laws may compel involuntary speech or acts of involuntary artistic expression or involuntary religious expression by a person when such speech or acts of artistic or religious expression would lead to that person directly or indirectly participating in, directly or indirectly supporting, or endorsing or impliedly endorsing an ideology, ceremony, creed, behavior, or practice with which the person does not agree.

HB 15-1189 – Uniform Fiduciary Access to Digital Assets Act
(Representative Keyser & Senator Steadman)
Colorado Commission on Uniform State Laws. The bill enacts the “Uniform Fiduciary Access to Digital Assets Act”, as amended, as Colorado law. The bill sets forth the conditions under which certain fiduciaries may access: The content of an electronic communication of a principal or decedent; A catalog of electronic communications sent or received by a decedent or principal; and  Any other digital asset in which a principal has a right or interest or in which a decedent had a right or interest at death. As to tangible personal property capable of receiving, storing, processing, or sending a digital asset, a fiduciary with authority over the property of a decedent, protected person, principal, or settlor may access the property and any digital asset stored in it and is an authorized user for purposes of computer fraud and unauthorized computer access laws.

“Fiduciary” means a personal representative, a conservator, an agent, or a trustee. A custodian and its officers, employees, and agents are immune from liability for an act or omission done in good-faith compliance with the provisions of the bill.

HB 15-1203 – Concerning earned time for certain offenders serving life sentences as habitual offenders
(Representative Rosenthal & Senator Steadman)
Under current law, an offender who was sentenced to a habitual offender 40-calendar-year life sentence before July 1, 1993, is not accruing earned time. The bill permits those sentenced under those circumstances to accrue earned time.

HB 15-1212 – Authority To Sell State Trust Lands To Local Gov
(Representative KC Becker & Senator Kerr)
In 2010, a law was enacted that allowed the state board of land commissioners (board) to convey land to units of local government if the conveyance would add value to adjoining or nearby state trust property, benefit board operations, or comply with local land use regulations. When enacted, the authority was set to repeal on July 1, 2015. The bill repeals that automatic repeal and makes the board’s authority permanent.

 

*a “Strike Below” amendment essentially replaces the entire bill below the title with an entirely different bill.  In practice this changes almost everything about the bill – but addresses the same topic, allowing for the sponsor to retain his/her bill and to continue working on the topic.  It is generally used when interested parties and stakeholders need a complete rewrite of the bill as originally introduced in ordrr to try and reach consensus.

 

Tenth Circuit: Under Particular Circumstances, Officers Justified in Taking Protective Custody of Seemingly Intoxicated Individual

The Tenth Circuit Court of Appeals issued its opinion in United States v. Gilmore on Friday, January 16, 2015.

In January 2013, National Western Stock Show workers alerted police to the presence of a disoriented and seemingly intoxicated man, Andre Gilmore, wandering near cattle tie-ins in an exhibitor parking lot at the Stock Show. The responding officers parked near Mr. Gilmore, exited their vehicle, and began walking toward him. Mr. Gilmore did not appear to notice the police officers until they spoke to him. When the officers asked if he was alright and what he was doing in the area, Mr. Gilmore did not respond. One of the uniformed officers identified himself a police officer and asked again, and Mr. Gilmore mumbled an incoherent answer. The officers determined that Mr. Gilmore was highly intoxicated and was a candidate for protective custody. They conducted a pat-down search of Mr. Gilmore and found a handgun tucked into his waistband. The officers arrested him for possessing a firearm while intoxicated in violation of C.R.S. 18-12-106(d) and drove him to the Stock Show security office. Mr. Gilmore was in and out of consciousness during this time, but he managed to provide his name and birthdate to one of the officers, who used the information to access his criminal history. They discovered he had a prior felony conviction that prohibited him from possessing a firearm, and a federal grand jury eventually charged Mr. Gilmore with one count of being a felon in possession.

Before trial, Mr. Gilmore filed a motion to suppress the gun seized during the pat-down search, arguing the officers lacked reasonable suspicion to believe he was armed and dangerous. The district court held an evidentiary hearing and determined that although the evidence did not support a reasonable suspicion that Mr. Gilmore was armed and dangerous, the police had probable cause to take Mr. Gilmore into protective custody for detoxification, and as such were justified in conducting a pat-down search before taking him into custody. After the evidentiary hearing, Mr. Gilmore signed a conditional plea agreement, reserving the right to appeal the denial of his motion to suppress. He was sentenced to 28 months in prison and timely appealed.

On appeal, Mr. Gilmore argued the district court erred in concluding the officers had probable cause to believe he was a danger to himself based on (1) his intoxication, (2) the dangerousness of the surrounding area, and (3) the danger posed by the cold weather. He conceded that if the officers had probable cause to believe he was a danger to himself, they were justified in conducting the pat-down search.

Mr. Gilmore contended that there was no evidence of his intoxication other than witness testimony that he appeared intoxicated, since there was no blood or breath analysis for alcohol intoxication. However, examining the totality of the circumstances, the Tenth Circuit found the officers were justified in finding Mr. Gilmore was a threat to himself or others due to his intoxication. His behavior suggested that he was disoriented and under the influence of alcohol or drugs, he did not initially react to the presence of the uniformed officers, and his reaction times were impaired.

Mr. Gilmore next argued that the government offered no evidence that the Stock Show was dangerous. However, officers testified that there was significant gang activity in the surrounding areas, and a disoriented person carrying a briefcase would be at risk for harm. Additionally, there were busy streets nearby, and Mr. Gilmore was at risk for wandering into traffic in his disoriented state.

As to Mr. Gilmore’s claims that he was dressed appropriately for the weather, the Tenth Circuit found evidence to support an inference that he would not have been appropriately dressed if he had passed out and been subjected to the day’s low temperature of -10 degrees Fahrenheit.

The Tenth Circuit affirmed the district court, concluding the officers had reasonable suspicion to believe Mr. Gilmore was a danger to himself because of his apparent intoxication in an environment that posed significant risks. The Tenth Circuit stressed that its finding was fact-specific and narrow, and that officers must have probable cause to take a person into protective custody.

Colorado Supreme Court: Totality of Circumstances Instructive in Determining Voluntariness of Consent to Search

The Colorado Supreme Court issued its opinion in People v. Munoz-Gutierrez on Monday, February 9, 2015.

Suppression of Evidence—Voluntariness and Coercion.

In this interlocutory appeal, the People sought review of the trial court’s order suppressing marijuana that the police discovered in a car registered to and driven by defendant. The trial court found that the People did not establish that defendant voluntarily consented to the search of his car. The Supreme Court determined that the trial court applied the wrong standard and held that defendant voluntarily consented to the search when he gave oral consent. Under the totality of the circumstances, the police’s conduct did not overbear defendant’s exercise of free will. Specifically, it was not sufficiently coercive or deceptive to a person with defendant’s characteristics in his circumstances. Accordingly, the Court reversed the trial court’s suppression order and remanded the matter to the trial court.

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

Tenth Circuit: Threats Phrased as Exhortations Not Entitled to First Amendment Protections

The Tenth Circuit Court of Appeals issued its opinion in United States v. Wheeler on Thursday, January 15, 2015.

Kenneth Royal Wheeler, angry about a recent DUI, posted several Facebook messages urging his “religious followers” to commit serious acts of violence, including killing specific police officers and their families and killing everyone at a local preschool and daycare facility. He was convicted of two counts of transmitting a threat in foreign commerce under 18 U.S.C. § 875(c) and was sentenced to forty months’ imprisonment on each count, to run concurrently, and three years’ supervised release, also concurrent. He appealed on two grounds: (1) the jury was not instructed that it was required to find that Wheeler had a subjective intent to threaten, and (2) the evidence was insufficient to show that Wheeler transmitted a “true threat.”

The Tenth Circuit recently held in United States v. Heineman, 767 F.3d 970 (10th Cir. 2014), that § 875(c) requires proof of a defendant’s subjective intent to threaten in accordance with the First Amendment. The government asserted that Heineman was wrongly decided, but conceded that under current Tenth Circuit precedent the instructions were insufficient. However, the government argued the error was harmless because no rational juror could conclude Wheeler did not intend his remarks to be threatening. The Tenth Circuit disagreed, finding that Wheeler seemed to think he had deleted all his Facebook friends prior to posting and did not believe anyone would see his posts. The Tenth Circuit reversed on the jury instruction issue.

Because the sufficiency of the evidence claim could preclude retrial, the Tenth Circuit addressed Wheeler’s argument that the evidence was insufficient to support his convictions. The Tenth Circuit first determined that Wheeler’s speech constituted a true threat and was thus unprotected by the First Amendment. Wheeler argued his speech was not a true threat because he did not threaten to harm anyone himself. The Tenth Circuit disagreed, finding instead that “[a]llowing defendants to seek refuge in the First Amendment simply by phrasing threats as exhortations would . . . leave the state ‘powerless against the ingenuity of threateners.'” The Tenth Circuit found that a reasonable person would have taken Wheeler’s exhortations as threatening, and indeed several of the intended targets did feel threatened. A rational juror could consider Wheeler’s posts true threats.

The Tenth Circuit reversed and remanded for retrial with proper jury instructions.