March 2, 2015

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.

Tenth Circuit: District Court Must Find Compelling Reason for Restricting Fundamental Liberty Interest

The Tenth Circuit Court of Appeals issued its opinion in United States v. Burns on Tuesday, December 30, 2014.

James Burns was convicted of possession and attempted possession of child pornography, and was sentenced to 63 months in prison followed by 5 years of supervised release. As a condition of his release, the probation department was required to approve of any contact Burns had with minors, including his youngest daughter, S.B. Burns appealed. He did not object to the imposition of the restrictions at trial, so the Tenth Circuit reviewed for plain error.

The Tenth Circuit found that the district court restricted Mr. Burns’ contact with a family member without making constitutionally required findings. When a court imposes a restriction that invades a fundamental right or liberty interest, it must find compelling circumstances to do so. The district court made no findings of compelling circumstances for restricting Mr. Burns’ fundamental interest in parenting his child. The Tenth Circuit found a reasonable probability that the court would not have restricted Mr. Burns’ contact with S.B., since there was no evidence that Mr. Burns abused or sexually molested children and he had a good relationship with his other four children. The error seriously affected the fairness of the proceedings because there was a substantial likelihood the district court would have softened the restrictions.

The Tenth Circuit reversed and remanded for reconsideration of the supervised release condition.

Tenth Circuit: Insurance Requirement for Parade Not Narrowly Tailored to Serve Government Interest

The Tenth Circuit Court of Appeals issued its opinion in iMatter Utah v. Njord on Monday, December 22, 2014.

iMatter Utah is a voluntary association concerned with climate change that sought to have a parade on State Street in Salt Lake City. The city granted iMatter a permit for the event, conditioned on the group’s ability to obtain an additional permit from the Utah Department of Transportation. Before granting a permit for a parade on a state highway (State Street is considered a state highway for this purpose), the Utah DOT requires applicants to obtain liability insurance coverage with minimums of $1,000,000 per occurrence and $2,000,000 aggregate, and also to sign a waiver of indemnity. iMatter claimed it could not afford the insurance and sought a waiver of the requirement, which the Utah DOT denied. iMatter then sought a temporary restraining order in the U.S. District Court for the District of Utah, which was denied. iMatter held its parade anyway, but because it failed to obtain the permit, it could only march on the sidewalks. iMatter held a second parade later that year, again refusing to comply with the insurance and indemnity requirements and again marching on the sidewalks. Another environmental group also held a parade on the sidewalks because it could not afford the cost of insurance. Both groups sued Utah in the U.S. District Court for the District of Utah, naming several individual defendants and alleging constitutional violations. All parties moved for summary judgment, and the district court granted plaintiffs’ motion. Utah appealed on a single question: whether its insurance and indemnification requirements violate the First Amendment.

The Tenth Circuit discussed the First Amendment’s mandate of free speech and the balance allowed for protecting government interests. The parties agreed that State Street is a traditional public forum, and in order for the government to impose restrictions on free speech in a traditional public forum, those restrictions must (1) be justified without reference to the content of the speech, (2) be narrowly tailored to serve a significant government interest, (3) leave open ample alternative channels for the communication, and (4) not delegate overly broad licensing discretion to a government official. iMatter brought facial and as-applied challenges to Utah’s insurance and indemnity requirements. The Tenth Circuit addressed the as-applied challenge first.

iMatter argued Utah’s requirements were unconstitutional as applied to its permit application because indigent applicants were not exempt from the requirements. The Tenth Circuit noted a circuit split regarding whether the government must exempt indigent applicants from otherwise constitutional permit requirements, and agreed with the First and Sixth Circuits that the constitution does not require indigency exemptions as long as there are suitable alternative forums for the speech. In the instant case, there was a suitable alternative that iMatter utilized—the sidewalk. Therefore, the as-applied challenge failed.

Turning to the facial challenge, the Tenth Circuit examined Utah’s insurance and indemnification requirements under the four criteria for restrictions on free speech in a traditional public forum. The parties agreed that the restrictions are content-neutral, satisfying the first prong. However, the Tenth Circuit found that Utah could not explain how the requirements were narrowly tailored to serve a significant government interest. Utah asserted that its insurance and indemnity requirements were necessary to maintain public order and safety, but the Tenth Circuit found no connection between the insurance and maintaining order and safety. As for Utah’s interest in protecting itself from liability, the Tenth Circuit found very little possibility that Utah would be liable for any activity connected with a parade, given the broad scope of Utah’s Governmental Immunity Act. Utah’s insurance requirement is not narrowly tailored to any objective characteristic of a parade, and as such is unconstitutional. The Tenth Circuit next examined Utah’s indemnity requirement and likewise found that it was not narrowly tailored to protect the state from financial liability.

The district court’s grant of summary judgment was affirmed.

Tenth Circuit: Allowing Recovery for Lost Horses Would Effectively Nullify State Forfeiture Proceeding

The Tenth Circuit Court of Appeals issued its opinion in Campbell v. City of Spencer on Tuesday, December 16, 2014.

The City of Spencer, Oklahoma, along with the Town of Forest Park and Blaze Equine Rescue seized 44 emaciated and malnourished horses from Ann Campbell’s three properties pursuant to a search warrant issued for one of the properties. The City and Town filed a joint petition in Oklahoma County District Court for forfeiture of the horses as a remedy for animal abuse. During the forfeiture proceeding, Campbell did not raise any argument regarding the scope of the search warrant. The court granted the forfeiture petition, the Oklahoma Court of Civil Appeals affirmed, and the Oklahoma Supreme Court denied certiorari.

Campbell subsequently filed a § 1983 action in the U.S. District Court for the Western District of Oklahoma, claiming that the municipalities and Blaze had violated the Fourth Amendment in two ways: (1) by withholding from the search warrant information about Campbell’s plan to reduce the number of horses, and (2) by searching the two locations not listed on the warrant. The municipalities filed motions to dismiss on preclusion grounds, since Campbell did not raise her arguments in the state forfeiture proceeding. Blaze filed a motion for summary judgment on preclusion grounds. The district court granted the motions. Campbell appealed.

The Tenth Circuit affirmed the district court, finding the exclusionary rule applied in Oklahoma state forfeiture proceedings and Campbell could have raised her claims in that proceeding. Campbell asserted that the state court judge refused to consider the legality of the evidence, but the Tenth Circuit reviewed the record and  found no evidence of such refusal. Campbell also suggested that suppression issues could not be raised in state court proceedings, which was an incorrect understanding of the law. Because of its conclusion that Campbell could have raised her claims in state court, the Tenth Circuit next considered whether allowing her to pursue the claims in federal court would nullify the original proceeding. The Tenth Circuit could not state with certainty whether barring the suppression would nullify the forfeiture proceeding, but found that allowing Campbell to pursue her claims would impermissibly impair the municipalities’ rights as established in the state court. The Tenth Circuit noted that allowing Campbell to recover the value of the lost horses would suggest the invalidity of the state court’s forfeiture order, and declined to allow recovery.

The Tenth Circuit affirmed the district court’s dismissal as to the municipalities and grant of summary judgment as to Blaze.

Tenth Circuit: § 1983 Challenges Unlikely to Succeed on Merits; Stay of Execution Denied

The Tenth Circuit Court of Appeals issued its opinion in Warner v. Gross on Monday, January 12, 2015.

In early 2014, Oklahoma changed its execution procedure for lethal injections due to the state’s inability to obtain two of the drugs previously used. In April 2014, Clayton Lockett was the first Oklahoma state prisoner to be executed using the new procedures, and his execution did not go smoothly. The IV used to deliver the lethal drug cocktail infiltrated, or leaked into his tissue instead of delivering the drugs to his veins. He experienced unusual effects from the lethal injection but eventually died anyway. After Lockett’s execution, the state developed new protocols for lethal injections, including establishing two viable IV sites and using various combinations of drugs, including midazolam, a sedative.

In November 2014, four inmates with scheduled execution dates as soon as January 15, 2015, among a group of twenty-one Oklahoma death row inmates, filed a § 1983 lawsuit challenging the constitutionality of Oklahoma’s new lethal injection procedure. Their complaint alleged eight counts, two of which are relevant to their appeal. Count 2 challenges the use of midazolam as violative of the Eighth Amendment’s prohibition against cruel and unusual punishment. Count 7 also raises an Eighth Amendment claim, asserting that the state is effectively experimenting on unwilling human subjects by using the untested procedure. After a three-day evidentiary hearing, the district court denied plaintiffs’ motion for preliminary injunction, concluding the inmates failed to show a likelihood of success on the merits. The plaintiffs appealed as to Count 2 and Count 7, and filed an emergency motion for stay of execution.

The Tenth Circuit conducted an abuse of discretion review and found none. The Tenth Circuit examined the long history of challenges to capital punishment, noting (1) the Supreme Court has never held that capital punishment violates the Eighth Amendment prohibition on cruel and unusual punishment, (2) the Supreme Court has never invalidated a state’s chosen procedure for carrying out the sentence, (3) there must be some means of carrying out the death sentence, and the Constitution does not demand avoidance of all pain, and (4) a stay of execution may not be granted unless the prisoner demonstrates a substantial risk of severe pain from the state’s chosen lethal injection procedure.

The plaintiffs contested the district court’s finding that the testimony of the defendants’ expert witness, Dr. Roswell Lee Evans, the Dean of the School of Pharmacy at Auburn University, was persuasive. The Tenth Circuit examined Dr. Evans’s credentials and found him to be well-qualified to render an expert opinion on the effects of midazolam. The plaintiffs also argued that the district court misapplied Supreme Court precedent in Baze v. Rees, 533 U.S. 35 (2008). The Tenth Circuit disagreed, instead concluding that the plaintiffs failed to show that midazolam created a risk of extreme pain.

The Tenth Circuit affirmed the district court’s denial of the motion for preliminary injunction. In a footnote, the Tenth Circuit added that, in “an abundance of caution,” the opinion was circulated to all the judges prior to publication, and no judge requested en banc review.

Tenth Circuit: Constitutional Claims Impermissible in Sentence Reduction Hearing

The Tenth Circuit Court of Appeals issued its opinion in United States v. Gay on Wednesday, November 12, 2014.

In 1998, Alondo Gay was indicted on eight counts, including having distributed 245.3 grams of cocaine base. He pled guilty to that charge in exchange for dismissal of the remaining charges. The probation office prepared a presentence report using the 1998 sentencing guidelines, which held Mr. Gay accountable for 9,636.88 grams of cocaine base. He qualified for a base offense level of 38. The final PSR added four additional levels for a total offense level of 42. Initially, Mr. Gay objected to several factual findings in the PSR, but withdrew his factual objections at the sentencing hearing for a 3-level reduction. His guidelines sentencing range was 262 to 327 months’ imprisonment, and he was sentenced to 262 months.

In 2007, the Sentencing Commission adopted Amendment 706, which reduced the sentencing disparity between cocaine base and cocaine powder from a 100:1 ratio to a 33:1 ratio. In 2008, Amendment 706 was made retroactively applicable. Then, in August 2010, Congress enacted the Fair Sentencing Act, which further reduced the sentencing disparity ratio to 18:1. The Sentencing Commission adopted another retroactive amendment in response to the Fair Sentencing Act, which reduced the offense levels for offenses involving between 2.8 and 8.4 kg of cocaine base from 38 to 36.

In light of the sentencing changes, Mr. Gay filed a motion under § 3582(c)(2) to reduce his sentence. The district court denied his motion, finding him ineligible for relief because his sentence was based on a greater quantity of cocaine base than was affected by the amendments. Mr. Gay appealed, contending the application of his sentence under the 100:1 ratio violated his Fifth Amendment Due Process rights, and that the length of his sentence violated the Eighth Amendment’s prohibition against cruel and unusual punishment.

The Tenth Circuit characterized his appeal as an impermissible attempt to collaterally attack his sentence. The only relief allowed in a § 3582(c)(2) proceeding is sentence modification, not argument of constitutional claims. Mr. Gay should have raised his constitutional arguments in direct appeal. The Tenth Circuit conducted a plain error review and found none. Mr. Gay’s sentence was affirmed.

Colorado Court of Appeals: SOLSA Encompasses Single Subject of Sex Offender Supervision and is Constitutional

The Colorado Court of Appeals issued its opinion in People v. Montgomery on Thursday, December 4, 2014.

Colorado Sex Offender Lifetime Supervision Act of 1998—Colorado Constitution—Subject Matter—Clear Express Requirement.

Montgomery pleaded guilty in three related criminal cases involving the sexual assault of three children. He was convicted of one count of sexual assault on a child and two counts of sexual assault on a child in a position of trust–pattern of abuse. The trial court sentenced Montgomery under the Colorado Sex Offender Lifetime Supervision Act of 1998 (SOLSA) to two consecutive sixteen-years-to-life terms and one consecutive six-years-to-life term, denying Montgomery’s motion for post-conviction relief filed under Crim.P. 35(a).

On appeal, Montgomery argued that his sentence was illegal because SOLSA violates Article V, § 21 of the Colorado Constitution. SOLSA’s single-subject matter is the lifetime treatment and supervision of persons who commit sex offenses. Its goal is to rehabilitate sex offenders while mitigating the dangers they pose to the public when released from incarceration. The matters of sentencing, parole, and probation are properly connected because they are all means of accomplishing SOLSA’s single objective of lifetime supervision of convicted sex offenders. Therefore, SOLSA contains only one subject and, for that reason, does not violate the single-subject requirement. SOLSA is not unconstitutional merely because the terms “sentencing,” “parole,” and “probation” are not mentioned in its title. Accordingly, SOLSA does not violate the clear expression requirement of the Colorado Constitution, and the judgment was affirmed.

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

Tenth Circuit: Election Assistance Commission Not Required to Approve State Requests to Amend Voter Registration Form

The Tenth Circuit Court of Appeals issued its opinion in Kobach v. United States Election Assistance Commission on Friday, November 7, 2014.

The secretaries of state from Arizona and Kansas, Ken Bennett and Kris Kobach, respectively, sought to have the Election Assistance Commission (EAC) add language requiring documentary proof of citizenship to each state’s instructions on the federal voter registration form. The EAC concluded the additional language was unnecessary and denied their requests. Kobach and Bennett filed suit in federal district court challenging the denial, and the district court held the EAC had a nondiscretionary duty to grant their requests.

The Tenth Circuit disagreed with the district court’s reasoning, holding that the district court’s decision is in direct conflict with the Supreme Court’s recent decision in Arizona v. Inter Tribal Council of Arizona, Inc., 133 S. Ct. 2247 (2013) (ITCA). Justice Thomas’ dissent in ITCA endorsed the theory brought to the Tenth Circuit by Arizona and Kansas in this appeal, thus clearly explaining what the law does not provide. The EAC had valid authority to subdelegate decision-making authority to its Executive Director relating to the contents of the federal form. Under the unique circumstances of this case, an appeal from the Executive Director’s decision denying the requests to modify the federal form was impracticable, and consequently the decision qualifies as a final agency action, which was procedurally valid. The National Voter Registration Act’s requirements do not impose a ministerial duty on the EAC to approve state requests to change the form.

The Tenth Circuit reversed the district court’s ruling and remanded with instructions for the district court to vacate its order mandating EAC modifications to the federal form.