February 22, 2012

You are here: Home / Archives for constitutional law

Colorado Court of Appeals: Psychosexual Evaluation of Boy Did Not Violate Rights; Due Process Not Violated as Boy Incompetent to Stand Trial

February 21, 2012 By Leave a Comment

The Colorado Court of Appeals issued its opinion in Crowell v. Industrial Claim Appeals Office on February 16, 2012.

Juvenile Sex-Related Acts—Competency—Pyschosexual Management Plan—Self Incrimination—Due Process.

This case involves C.Y., a boy charged with having committed sex-related delinquent acts. After finding the boy incompetent to stand trial, the magistrate created a management plan requiring the boy to undergo a psychosexual evaluation. On review, the district court held that the boy should not be required to undergo the psychosexual evaluation. The judgment was reversed and the case was remanded with directions.

The boy was 11 years old when his 9-year-old sister reported to the police that he had grabbed her “butt” and “privates” many times over a four-month period. The boy suffers from significant mental and developmental disorders, including a serious brain injury, due in part to complications at birth. He lives with his mother and sister and receives extensive therapy and special education.

The boy was charged with having committed three delinquent acts that would constitute the adult offenses of aggravated incest, unlawful sexual contact, and assault in the third degree. He was released on bond to live with his mother. His sister initially was removed from the home, but after a safety plan was worked out, she returned.

The magistrate granted the request of the boy’s lawyer to have him evaluated to determine whether he was competent to stand trial. The magistrate found he was “incompetent to proceed to adjudication in this matter and cannot be restored to competency.” Following a hearing, a management plan was agreed on, except for a portion of the plan requiring the boy to undergo a psychosexual evaluation.

Several therapists and teachers who worked with the boy testified as to their concerns that he would not understand the evaluation or not be able to respond appropriately. The magistrate decided the boy should have the evaluation. The boy sought review of this decision and the district court agreed that the inclusion of the psychosexual evaluation in the treatment plan was legal error. The People appealed.

The Court of Appeals held that the magistrate’s order for a psychosexual evaluation did not violate the boy’s rights and that the district court erred when it set aside that part of the order. The Court looked to the legislative purposes of the Children’s Code. It also noted that CRS §19-2-1305(3) makes inadmissible evidence that is obtained during an evaluation or treatment related to the juvenile’s competency or incompetency. The privileges against compelled self-incrimination are not violated if, as here, juveniles are given immunity that is coextensive with the protections afforded by the Fifth Amendment.

The boy argued that the court undermined his due process right to be presumed innocent by requiring the psychosexual evaluation. The Court held that because the magistrate found that the boy is incompetent to stand trial and cannot be restored to competency, he will never stand trial. Therefore, the presumption of innocence was not implicated in requiring the evaluation.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on February 16, 2012, can be found here.

Filed Under: Case Law Tagged With: , , , , , ,

Colorado Supreme Court: Facts and Circumstances Officer Knew at Time of Intrusion Did Not Amount of Reasonable Suspicion Sufficient for Investigatory Stop; Marijuana Evidence Properly Suppressed

February 14, 2012 By Leave a Comment

The Colorado Supreme Court issued its opinion in People v. Revoal on February 13, 2012.

U.S. Constitution—Fourth Amendment—Suppression of Evidence—Reasonable Suspicion—Investigatory Stop.

The prosecution charged Anthony Michael Revoal with one count of possession with intent to manufacture or distribute marijuana in an amount less than five pounds after an investigatory stop and subsequent frisk revealed marijuana and a scale containing marijuana residue. At the time of the stop, the police were aware of the following facts and circumstances: (1) it was 11:30 p.m.; (2) robberies had recently occurred in the area; (3) Revoal was standing on the side of a closed Subway restaurant, looking left to right; (4) Revoal walked to the side of an open liquor store, continued looking left to right, and then walked toward the back of the liquor store, where it was dark; and (5) Revoal turned and walked away from the investigating officer when he observed the patrol vehicle. The trial court suppressed the marijuana evidence on the basis that these facts did not give the investigating officer reasonable suspicion to conduct the stop.

The Supreme Court affirmed the trial court’s judgment. The Court held that the facts and circumstances the officer knew at the time of the intrusion, viewed either individually or collectively, did not amount under the totality of the circumstances to reasonable suspicion sufficient to justify the officer’s investigatory stop.

Summary and full case available here.

Filed Under: Case Law Tagged With: , , ,

Tenth Circuit: Insufficient Non-Conclusory Facts to Support Allegation of Employment Discrimination and Retaliation

February 7, 2012 By Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in Khalik v. United Air Lines on Monday, February 6, 2012.

The Tenth Circuit affirmed the district court’s decision. Petitioner is an Arab-American, born in Kuwait, who practices Islam. Respondent hired her in 1995, and she rose to the position of Business Services Representative before being terminated in 2009. Petitioner alleges claims under Title VII of the Civil Rights Act of 1964 for retaliation and discrimination because of race, religion, national origin, and ethnic heritage. Petitioner’s complaint also brings a retaliation claim under the Family and Medical Leave Act (FMLA).

“While the 12(b)(6) standard does not require that [Petitioner] establish a prima facie case in her complaint, the elements of each alleged cause of action help to determine whether [Petitioner] has set forth a plausible claim. . . . To set forth a prima facie case of discrimination, a plaintiff must establish that (1) she is a member of a protected class, (2) she suffered an adverse employment action, (3) she qualified for the position at issue, and (4) she was treated less favorably than others not in the protected class. The burden then shifts to the defendant to produce a legitimate, non-discriminatory reason for the adverse employment action. If the defendant does so, the burden then shifts back to the plaintiff to show that the plaintiff’s protected status was a determinative factor in the employment decision or that the employer’s explanation is pretext. Title VII also makes it unlawful for an employer to retaliate against an employee.”

The Court agreed with the district court that Petitioner’s allegations are the type of insufficient conclusory and formulaic statements disregarded by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1955 (2009). “[Petitioner]’s general assertions of discrimination and retaliation, without any details whatsover of events leading up to her termination, are insufficient to survive a motion to dismiss.” The Court noted that while specific facts are not necessary, some facts are. The non-conclusory facts presented do not sufficiently allege discrimination or retaliation. “There is no context for when [Petitioner] complained, or to whom. There are no allegations of similarly situated employees who were treated differently. There are no facts relating to the alleged discrimination. There is no nexus between the person(s) to whom she complained and the person who fired her. Indeed, there is nothing other than sheer speculation to link the . . . termination to a discriminatory or retaliatory motive. And finally, [Petitioner] alleges nothing that would link her request for FMLA leave, which she provides no details about, to her termination.” Without more, her claims are not plausible under the Twombly/Iqbal standard, and the dismissal was affirmed.

Filed Under: Case Law Tagged With: , , ,

Colorado Court of Appeals: Use of Medical Marijuana Violates Terms of Probation; No Constitutional Harm

February 7, 2012 By Leave a Comment

The Colorado Court of Appeals issued its opinion in People v. Watkins on February 2, 2012.

Probation—Medical Marijuana—Federal Law—Offense.

The People appealed the trial court’s order denying a motion for reconsideration of a previous order approving the use of marijuana for medical purposes by defendant, who is a probationer. The order was vacated and the case was remanded with directions.

The written conditions of defendant’s probation, to which he expressly agreed, include provisions that (1) he will not violate any laws; (2) he will not use or possess any narcotic, dangerous, or abusable substances without a prescription; (3) drug and alcohol evaluation and treatment would be left to the discretion of the probation department; and (4) he will not purchase, possess, or use any mind-altering or consciousness-altering substances without a written lawful prescription. The prosecution argued that the trial court erred in allowing defendant to use marijuana for medical purposes because it is prohibited by federal criminal statutes.

An “offense” under CRS § 18-1.3-204(1) includes any violation of a statute or ordinance for which confinement is authorized as a penalty. Federal law makes it unlawful for any person to knowingly or intentionally possess marijuana. Any person who violates prohibition may be sentenced to prison for not more than one year. Therefore, defendant’s federally prohibited use of medical marijuana would constitute an “offense” within the meaning of CRS § 18-1.3-104(1) and violate the terms of his probation. Furthermore, Colorado’s Medical Use of Marijuana Amendment only allows a physician to provide “written documentation” stating that the patient has a debilitating medical condition and might benefit from the medical use of marijuana. Therefore, defendant’s physician’s certification does not constitute a “written lawful prescription” as required by the terms of his probation.

Therefore, defendant’s alleged constitutional right to use medical marijuana may be curtailed during the term of his probationary sentence. The trial court’s order approving defendant’s use of marijuana for medical purposes while on probation was vacated and the case was remanded for further proceedings consistent with this opinion.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on February 2, 2012, can be found here.

Filed Under: Case Law Tagged With: , , , , ,

Tenth Circuit: Stolen Valor Act Is Constitutional; Restricts Only Knowingly False Statements of Fact and Does Not Overreach to Chill Protected Speech

January 30, 2012 By Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in United States v. Strandlof on Friday, January 27, 2012.

The Tenth Circuit reversed the district court’s decision. Respondent, despite never having served in the armed forces, founded the Colorado Veterans Alliance and frequently told veterans that he graduated from the United States Naval Academy, was a former U.S. Marine Corps Captain, and had been wounded in combat in Iraq. He also bragged of receiving a Purple Heart, which is given to soldiers wounded or killed in action, and he boasted that he had been awarded the Silver Star for gallantry in battle. After discovering the ruse, the government charged Respondent with making false claims about receipt of military decorations or medals in violation of the Stolen Valor Act. Reasoning that false statements are generally protected by the First Amendment, the district court declared the Stolen Valor Act unconstitutional and dismissed the charges against Respondent.

The Court disagreed with the district court’s analysis. “The sole question presented is whether the Stolen Valor Act, a content-based restriction on speech, is facially constitutional.” The Court found that it is and reversed the district court’s decision. “As the Supreme Court has repeatedly asserted, the Constitution does not foreclose laws criminalizing knowing falsehoods, so long as the laws allow ‘breathing space’ for core protected speech—as the Supreme Court calls it, ‘speech that matters.’ . . . [U]nder this legal framework, the Stolen Valor Act survives scrutiny because (1) it restricts only knowingly false statements of fact, and (2) specific characteristics of the statute, including its mens rea requirement, ensure it does not overreach so as to chill protected speech.”

Filed Under: Case Law Tagged With: , , ,

Tenth Circuit: Extortion Did Not Violate Equal Protection; No Evidence Demand Was Enforced with Purpose of Discriminating Against Those Who Failed to Meet It

January 24, 2012 By Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in SECSYS, LLC v. Vigil on Monday, January 23, 2012.

The Tenth Circuit affirmed the district court’s decision. Respondent served as New Mexico’s state treasurer and wanted to make sure a political rival didn’t challenge him in the next election. He ultimately planned to find work for the rival’s wife “as a sort of payoff.” When bids were solicited for a state contract he insisted that any interested contractor hire his rival’s wife on any terms she wished. Petitioner agreed to the plan in principle but ultimately found it could not close the deal with the wife. When negotiations broke down, Respondent “allegedly went with another contractor who agreed to pay [the wife] what she wanted. For his role in this scheme, Respondent eventually found himself indicted, then convicted, and then serving prison time.”

Petitioner’s theory of recovery is novel: it seeks damages from Respondent “not for violating state contracting law, not for violating state common law, not for violating any federal statute.” Instead, Petitioner says Respondent must pay because he violated the company’s Fourteenth Amendment right to equal protection of the laws. According to Petitioner, Respondent unlawfully discriminated against the company when they refused to give the state contract to bidders who refused to pay the wife’s full demand. However, the Court found that “there’s no evidence [Respondent] enforced this extortionate demand with the purpose of discriminating against those who failed to meet it, because of an adverse impact on this class of persons. . . . [And], [a]nalyzing the case through equal protection’s so-called ‘class of one’ doctrinal prism changes nothing.” Therefore, the district court’s grant of summary judgment to Respondent was affirmed.t

Filed Under: Case Law Tagged With: , ,

Tenth Circuit: City Failed to Justify Ban on Sex Offenders in Libraries; Appellate Court Bound by District Court Record

January 23, 2012 By Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in Doe v. City of Albuquerque on Friday, January 20, 2012.

The Tenth Circuit affirmed the district court’s decision. Respondent, “a registered sex offender, brought a facial challenge under the First and Fourteenth Amendments to a ban enacted by the City of Albuquerque that prohibited registered sex offenders from entering the City’s public libraries. The district court denied a motion to dismiss brought by the City and ultimately granted summary judgment in favor of [Respondent]. The court concluded that the ban burdened [Respondent]’s fundamental right to receive information under the First Amendment and that the City failed sufficiently to controvert [Respondent]’s contention on summary judgment that the ban did not satisfy the time, place, or manner test applicable to restrictions in a designated public forum. The City appeals both the denial of its motion to dismiss and the grant of [Respondent]’s summary judgment motion.

Through procedural error on the part of the City, the Court was forced to affirm the decision. The City, “relying on a mistaken interpretation of case law regarding facial challenges, erroneously contended that it had no burden to do anything in response to [Respondent]’s summary judgment motion. Consequently, the City failed to present any evidence as to the reasons or justification for its ban, whether the ban was narrowly tailored to address the interest sought to be served, or whether the ban left open alternative channels for receiving information.” Had the City done so, the Court stated that it would not be “difficult to imagine that the ban might have survived [Respondent]’s challenge,” because the Court recognizes the City’s significant interest in providing a safe environment for its library patrons, especially children. As an appellate court, however, it was bound by the record and the law, and affirmed.

Filed Under: Case Law Tagged With: , , , , ,

Aaron Solomon: First Amendment Retaliation in the Context of an Employment Dispute

January 20, 2012 By Leave a Comment

Editor’s Note: The Tenth Circuit issued its opinion in Morris v. City of Colorado Springs on January 18, 2012.

In Morris v. City of Colorado Springs (No. 10-1572), the Tenth Circuit, among other things, affirmed the dismissal of the plaintiff’s First Amendment retaliation claim on the pleadings. The plaintiff was a nurse who worked for Colorado Spring’s Memorial Health System, which is run by the city. The plaintiff submitted a “Notice of Claim” to Memorial, alleging that she has been subject to various torts while a member of the heart surgery team. Shortly thereafter, she was reassigned away from the heart team. The plaintiff alleged that this reassignment constituted improper retaliation, and she also brought Title VII claims based on the underlying conduct.

The Tenth Circuit thoroughly reviewed the test for a First Amendment retaliation claim and concluded, like the district court, that the plaintiff “could not show that her notice contained speech on a matter of public concern.” In so doing, it appeared to hold that a communication “framed as lodging a complaint regarding an employment dispute and seeking damages for it” could never rise to the level of a matter of public concern, unless the subject matter fell within a “narrow range”, such as allegations of corruption by city officials, that was “so imbued with the public interest that speech regarding g it will almost always be a matter of public concern.”

Aaron Solomon is an associate at Hale Westfall and focuses his practice on both commercial litigation and public policy/appellate law. He contributes to the firm’s Rocky Mountain Appellate Blog, where this post originally appeared on January 19, 2012.
Filed Under: Case Law Tagged With: , , ,

Tenth Circuit: Determination that Mental Retardation Is Not a Fluid Concept is Consistent with Atkins

January 20, 2012 By Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in Ochoa v. Workman on Wednesday, January 18, 2012.

The Tenth Circuit affirmed the district court’s decision. An Oklahoma state jury found Petitioner guilty of two counts of first degree murder and sentenced him to death. In Atkins v. Virginia, 536 U.S. 304, 321 (2002), the Supreme Court held that the Eighth Amendment precludes the execution of mentally retarded criminals. Relying on Atkins v. Virginia, 536 U.S. 304, 321 (2002), in which the Supreme Court held that the Eighth Amendment precludes the execution of mentally retarded criminals, the Oklahoma Court of Criminal Appeals granted Petitioner a post-conviction jury trial to determine whether he was mentally retarded. The jury found Petitioner failed to meet his burden of proving, by a preponderance of the evidence, he was mentally retarded, and the appeals court affirmed. The Tenth Circuit granted Petitioner permission to file a second habeas petition raising his Atkins claims in federal district court. The district court denied the petition on the merits.

Petitioner contends that “Oklahoma law, which focuses on whether a defendant is mentally retarded at the time of trial, instead of whether he was mentally retarded at the time of the commission of the crime, is ‘contrary to, or . . . an unreasonable application of’ Atkins.” The Court rejected this contention. “Oklahoma’s determination that mental retardation is not a fluid concept is entirely consistent with Atkins.” Ochoa further asserts his trial was fundamentally unfair because “(1) the jury was informed he had been convicted of a crime, (2) he was forced to attend trial in an orange prison jumpsuit, and (3) he was forced to wear a shock sleeve during trial.” However, the Court held that the district court correctly concluded none of the alleged errors identified by Petitioner entitle him to habeas relief.

Filed Under: Case Law Tagged With: , , , , , , ,

Colorado Supreme Court: Reasonable Person in Defendant’s Position Would Not Have Felt Deprived of Freedom of Action to Degree Associated with Formal Arrest; Miranda Not Implicated

January 17, 2012 By Leave a Comment

The Colorado Supreme Court issued its opinion in Mumford v. People on January 17, 2012.

Criminal Law—Criminal Procedure—U.S. Constitution—Fifth Amendment—Miranda Warnings—Custody.

Andrew Mumford challenged his conviction for possession of one gram or less of cocaine, arguing, among other things, that an incriminating statement he made to a law enforcement officer should have been suppressed because it was obtained without proper warnings under Miranda v. Arizona, 384 U.S. 436 (1966). The court of appeals affirmed Mumford’s judgment of conviction, holding that Mumford was not in custody for purposes of Miranda at the time he made the statements.

The Supreme Court affirmed. The Court concluded that under the totality of the circumstances, at the time he made the incriminating statement, a reasonable person in Mumford’s position would not have felt deprived of his or her freedom of action to a degree associated with a formal arrest.

Summary and full case available here.

Filed Under: Case Law Tagged With: , , ,

Colorado Supreme Court: Police Did Not Remove Defendant to Avoid His Objection to Searching Home; Common Law Wife Gave Valid Consent to Second Warrantless Search

January 17, 2012 By Leave a Comment

The Colorado Supreme Court issued its opinion in People v. Strimple on January 17, 2012.

U.S. Constitution—Fourth Amendment—Suppression of Evidence—Co-Tenant’s Consent to Police Search of Shared Premises in Absence of Physical Presence of Other Co-Tenant.

The prosecution charged defendant Christopher Strimple with possession of an explosive or incendiary device and other crimes after a police search of the home he shared with Gabriele Thompson, his common law wife. Police responded to the home when Thompson complained of domestic abuse. When police arrived, Strimple refused to let them in, threatened to kill officers if they entered, and engaged officers in a tense stand-off for nearly forty-five minutes. He eventually surrendered peacefully, and police took him into custody.

The police conducted an initial warrantless search of the home to locate and ensure the safety of children in the home and locate a handgun Strimple said was inside the home. Thompson consented to an additional search, during which the police discovered knives, a pipe bomb, and drug paraphernalia. The trial court suppressed this evidence on the basis that, during the stand-off, Strimple had refused consent for entry into the home.

The Supreme Court held that Thompson validly gave her consent to the second warrantless search. Strimple was not physically present at the time, and the police did not remove him from the scene to avoid his objection to the search. The order was reversed.

Summary and full case available here.

Filed Under: Case Law Tagged With: , , , ,

Tenth Circuit: Eleventh Amendment Protects State from Suit for Money Damages under ADA when State Revoked Medical License for Public Safety

January 12, 2012 By Leave a Comment

The Tenth Circuit Court of Appeals published its opinion in Guttman v. Khalsa on Wednesday, January 11, 2012.

The Tenth Circuit affirmed in part and reversed in part the district court’s decision. Petitioner is a physician with a history of depression and posttraumatic stress disorder. At the time he brought this case, he was practicing medicine in New Mexico. The Board of Medical Examiners summarily suspended Petitioner’s license after finding clear and convincing evidence that “[Petitioner]’s continuation in practice would constitute an imminent danger to public safety.” Later, “after recognizing an extensive pattern of disruptive and abusive behavior by [Petitioner] in dealing with patients and healthcare professionals, the Board revoked his license. The Board also found that further treatment of his mental health problems was unlikely to succeed, and that [Petitioner]’s inability to interact professionally with others posed a danger to his patients.”

Petitioner challenged the Board’s findings in state court, asserting for the first time that the Board’s actions violated Title II of the ADA. Because Petitioner had not raised an ADA claim before the Board, the state court refused to consider it and affirmed the revocation of his license. Petitioner also filed a pro se complaint in federal district court against New Mexico and two individuals: the Board’s administrative prosecutor and the Board’s hearing officer. The district court granted the Respondents’ motion for summary judgment after finding that the individual defendants were entitled to absolute immunity.

“The question presented in this appeal is whether the Eleventh Amendment protects New Mexico from a suit for money damages under Title II of the Americans With Disabilities Act (ADA).” The Court concluded that it does. “New Mexico has state sovereign immunity from a claim that it violated the ADA when it revoked the medical license of a physician whose practice the state claimed constituted an imminent danger to the public. As a result, [the Court] found the district court did not err by dismissing the ADA claim of [Petitioner] against the State of New Mexico for revoking his medical license. [The Court also concluded that] the state’s actions did not violate the United States Constitution.” However, Petitioner may still have extant claims for prospective injunctive relief.

Filed Under: Case Law Tagged With: , , , , , ,
« Older Posts