December 6, 2016

Colorado Court of Appeals: Inconsistent Jury Verdicts Necessitate New Trial

The Colorado Court of Appeals issued its opinion in People v. Delgado on Thursday, December 1, 2016.

The victim was drinking at a bar and left, drunk, around closing time. He went back to the bar, but the doors were locked. The victim began pounding on the door and the bar personnel called the police. The victim eventually gave up and started walking away. He saw two men walking toward him and turned around. He was attacked from behind; someone hit and kicked him until he collapsed, unconscious.

An officer responding to the bar’s call saw Delgado bending over the unconscious victim, going through his pockets. The officer shouted at Delgado to stop, but he took off running. Backup officers arrived in time to chase and arrest Delgado.

At trial, the prosecution argued that Delgado could be convicted of both robbery and theft from the person of another. The trial court gave instructions on each, and the jury convicted Delgado of both offenses. The robbery instruction informed that Delgado could be found guilty if he 3. knowingly, 4. took anything of value, 5. from the person or presence of another, 6. by the use of force, threats, or intimidation. The theft from the person of another instruction informed that Delgado could be found guilty if he 3. knowingly, a. obtained or exercised control over, b. anything of value, c. which was the property of another person, d. without authorization or by threat or deception, and 4. with intent to permanently deprive the other person of the use or benefit of the thing of value, and 5. the thing of value was taken, a. from the person of another, b. by means other than the use of force, threats or intimidation.

On appeal, Delgado argued that the verdicts were legally and logically inconsistent. Both parties agreed the inconsistent verdict issue was not preserved, so the court of appeals reviewed for plain error. The court of appeals concluded that the force elements of the two crimes were legally and logically inconsistent, since the robbery count required use of force, threats, or intimidation, whereas the theft count required that the theft be committed by means other than the use of force, threats, or intimidation. The court found the error was plain because it casts serious doubt on the reliability of the conviction.

The prosecution argued that the court of appeals should enforce the more serious conviction for robbery and vacate the theft conviction. The court of appeals disagreed, finding that when jury verdicts are legally and logically inconsistent, there is no way to know what the jury actually found. It is not possible to discern the jury’s intent. The court thus remanded for a new trial.

The court of appeals reversed the judgment and sentence and remanded for a new trial with the prosecution choosing to retry Delgado on either the robbery count or the theft count, and, if the prosecution chooses to submit both counts, the jury must be instructed that it can choose one count or the other but not both.

Colorado Gives: Rocky Mountain Immigrant Advocacy Network Promotes a More Humane Immigration System

Colorado Gives: CBA CLE Legal Connection will be focusing on several Colorado legal charities in the next few days to prepare for Colorado Gives Day, December 6, 2016. These charities, and many, many others, greatly appreciate your donations of time and money.

rmianThe Rocky Mountain Immigrant Advocacy Network (RMIAN) is a nonprofit legal services organization that believes justice for immigrants means justice for all. RMIAN provides life-changing legal services to vulnerable immigrant children in Colorado, and to adults in immigration detention. Without this assistance from RMIAN’s attorneys, RMIAN’s child clients and individuals in detention would be forced to face immigration court hearings entirely on their own, an injustice by any standard. A national study, headed by a federal judge, found that immigrants with lawyers are five times more likely to win their cases than those without. For many, a loss in immigration court means deportation and a forced return to the persecution, abuse, or other violence from which they fled. For many others, it signifies a permanent and heartbreaking separation from spouses, partners, children, siblings, and other loved ones.  RMIAN’s programs are dedicated to ensuring legal representation, due process, and support.

RMIAN’s Detention Program has a daily presence at the immigration detention center in Aurora, Colorado, where over 900 individuals are detained on civil immigration charges every day. RMIAN’s attorneys provide know-your-rights presentations before detained individuals have to go before the immigration judge for the first time, assist with applications and case preparation, refer cases to pro bono attorneys, represent clients, and provide social service support for the most vulnerable detainees. Recent RMIAN cases involving clients in detention include a man from Somalia granted asylum on the basis of his political opinion; a longtime lawful permanent resident granted a second chance by the immigration judge to stay with his family in Colorado; a young man from Honduras granted asylum based on the persecution he would face because of his sexual orientation; and numerous clients who won bond reductions with RMIAN’s representation. In 2015, RMIAN’s Detention Program provided 209 know-your-rights presentations to over 1,700 individuals in detention, conducted over 800 individual intakes, held 33 workshops for over 100 individuals fighting their cases on their own, and provided intensive individual assistance to over 500 detainees. In addition, RMIAN’s staff attorneys and volunteer attorneys represented 59 clients in their complete immigration court cases.

RMIAN’s Children’s Program provides immigration legal services to children through Colorado. Recent clients include a young man who was granted a T visa based on being a victim of human trafficking; several children who won Special Immigrant Juvenile Status as a result of being abused, abandoned or neglected; several young crime victims and their family members who were granted U Visas; and numerous youth who were granted Deferred Action for Childhood Arrivals. In the past several years, RMIAN’s Children’s Program has seen an exponential increase in its representation of unaccompanied children who fled horrors in their home countries and who are now seeking asylum and other immigration relief before the Denver Immigration Court. In 2015, RMIAN’s Children’s program directly represented 288 children, conducted 658 intakes and consultations, and referred 205 cases to pro bono attorneys. By providing free legal services to immigrant children, as well as outreach efforts to community partners, RMIAN educates children and their families on the rights and protections to which they are entitled under federal immigration law and works to ensure that Colorado’s communities are safe.

In addition to direct legal services, RMIAN provides community education and training about immigration law, particularly as it relates to individuals in immigration detention and immigrant children. In 2015, RMIAN gave 66 presentations to 2,210 community members.

Please consider making a donation to RMIAN today to help us fulfill our values statement, “We believe that justice for immigrants means justice for all.” Donations may be mailed directly to RMIAN at 3489 West 72nd Avenue, Suite 211, Westminster, CO 80030 or via RMIAN’s website at  RMIAN is participating in Colorado Gives Day on Tuesday, December 6, 2016.

Candor to the Tribunal and the Duty of Confidentiality: How to Broach This Ethical Pitfall

qtq80-uSztbKRule 3.3 of the Colorado Rules of Professional Conduct provides that a lawyer shall not “make a false statement of material fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer” or “fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.” But what exactly does this mean in the everyday practice of attorneys in Colorado?

Suppose the lawyer faces a client who intends to give false testimony or who refuses to correct a misstatement. What is material? May or must the lawyer withdraw from representation? Must the lawyer take further remedial measures? What must the lawyer do in an ex parte situation? In sum, how must the lawyer balance his or her duties to the client (particularly the attorney-client privilege) and the tribunal?

The Colorado Bar Association Ethics Committee addressed these questions in Formal Opinion 123, “Candor to the Tribunal and Remedial Issues in Civil Proceedings.” Opinion 123 requires the attorney to first remonstrate with the client. If that is unsuccessful, the attorney may be required to withdraw from representation. As a final measure, the attorney may make disclosure to the tribunal under certain circumstances. However, “the disclosure to remedy such a false statement must be limited to the extent reasonably necessary to achieve such ends and must be made in the manner that is the least harmful to the client while satisfying the commands of Colo. RPC 3.3.”

At noon on Tuesday, December 6, 2016, attorney Paul Gordon will delve into the intricacies involved with Colo. RPC 3.3 in a timely one-hour CLE. Mr. Gordon will bring his expertise in representing plaintiffs in malpractice claims against lawyers throughout the United States. Attendees will also receive a copy of Mr. Gordon’s chapter in Lawyers’ Professional Liability in Colorado with further discussion of the topic. Register here or by clicking the links below.



CLE Program: Lawyers’ Duty of Candor to the Tribunal and Remedial Measures in Civil Actions and Proceedings

This CLE presentation will occur on December 6, 2016, at the CBA-CLE offices (1900 Grant Street, Third Floor), from noon to 1 p.m. Register for the live program here or register for the webcast here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here: MP3Video OnDemand.

Colorado Court of Appeals: Deferred Juvenile Adjudication Not Predicate Felony Offense for POWPO Purposes

The Colorado Court of Appeals issued its opinion in People in Interest of A.B. on Thursday, November 17, 2016.

A.B., a juvenile, was the rear driver’s side passenger in a parked car when police blocked the car due to a noise violation from the car’s loud stereo. All three of the vehicle’s occupants exited when the police arrived, and an officer saw A.B. pull a gun from his waistband and throw it into the car. He was charged with possession of a weapon by a previous offender (POWPO) based on a prior incident in which A.B. accepted a deferred adjudication on a charge of aggravated motor vehicle theft in the first degree, a felony.

Before trial, A.B. moved to suppress the weapon, arguing the search was unconstitutional because when police officers ordered him to get back in the car, they seized him but lacked reasonable suspicion to do so. The trial court denied the motion to suppress based on the officer’s testimony that he saw A.B. throw the gun into the car. The officer presented the same testimony at trial. When the prosecution rested, A.B. moved for judgment of acquittal, arguing the deferred adjudication did not constitute a prior adjudication for POWPO purposes. The court denied his motion, and A.B. was convicted and sentenced to two years in youth corrections.

On appeal, A.B. argued the trial court erred in denying his motion to suppress. The court of appeals disagreed. The court declined to reach the constitutional issue of whether the encounter was a seizure for Fourth Amendment purposes, and instead found that the officers had reasonable suspicion that every person in the vehicle was violating the Denver Municipal Code’s noise ordinance. Therefore, the court found that the officers had reasonable suspicion to seize A.B. based on a violation of the noise ordinance.

A.B. next argued that his deferred adjudication was not a predicate felony for POWPO purposes. The court of appeals agreed. The court analyzed the POWPO statute applicable to juveniles, C.R.S. § 18-12-108(3), and found no reference to deferred adjudications. A.B. relied on the plain statutory language in arguing that because he accepted a deferred adjudication, he was not actually adjudicated at the time of the POWPO offense. The Attorney General analogized the juvenile statute to its adult counterpart, relying on cases interpreting “conviction” to include deferred judgments. The court of appeals analyzed the juvenile delinquency statutes and found that they distinguished deferred adjudications from adjudications of juvenile delinquency both as to definition and effect. The court found that the General Assembly expressly equated deferred adjudications to delinquency adjudications in several instances, evidencing an intent to separate the two definitions. The court found that A.B.’s deferred adjudication was not a predicate offense for POWPO purposes.

The court of appeals affirmed the denial of the suppression order, reversed the adjudication, vacated the sentence, and remanded for entry of judgment of acquittal.

Colorado Court of Appeals: Facts, If True, Would Establish Justifiable or Excusable Neglect

The Colorado Court of Appeals issued its opinion in People v. Torres on Thursday, November 17, 2016.

Guilty Plea—Immigration Status—Post-Conviction Motion—Statutory Time Bar—Justifiable Excuse—Excusable Neglect.

Chavez-Torres is a citizen of Mexico who came to the United States with his family when he was a child. While in high school, Chavez-Torres pleaded guilty to first degree criminal trespass. The trial court sentenced him to probation, which he successfully completed.

Seventeen years after his criminal trespass conviction, the U.S. Department of Homeland Security initiated removal proceedings, alleging that Chavez-Torres was not legally present in the United States and had been convicted of a crime involving moral turpitude. Chavez-Torres moved for post-conviction relief from his criminal trespass conviction under Crim. P. 35(c) based on ineffective assistance of counsel. He alleged that he had informed his plea counsel that he was not a U.S. citizen but counsel advised him to accept the plea agreement without telling him that the guilty plea carried a risk of adverse immigration consequences. He claimed that had he been properly advised he would have insisted on going to trial. He asserted that as a result, his plea and conviction were constitutionally infirm. While acknowledging that his post-conviction motion was untimely, he alleged that these circumstances amount to justifiable excuse or excusable neglect. The trial court denied the motion as untimely, finding that the prejudice to the state would be too great, given the passage of time, and that he failed to assert facts amounting to justifiable excuse or excusable neglect.

On appeal, Chavez-Torres contended that the district court erred in summarily denying his post-conviction motion based on the statutory time bar because he asserted facts that, if true, would establish justifiable excuse or excusable neglect. Here, even though Chavez-Torres had informed plea counsel that he was not a citizen of the United States, counsel had advised him to accept the plea agreement without telling him that the guilty plea carried a risk of adverse immigration consequences. Chavez-Torres subsequently completed his probation and did not learn that his conviction had adverse immigration consequences until the removal proceedings were initiated. Under these circumstances, it cannot be concluded, as a matter of law, that justifiable excuse or excusable neglect did not exist.

Defendant also argued that the finding that the State would suffer “great” prejudice has no record support. The Colorado Court of Appeals determined that the existing record does not support the district court’s finding that the state will suffer great prejudice.

The order denying the post-conviction motion was reversed and the case was remanded to the district court to determine whether Chavez-Torres has established justifiable excuse or excusable neglect for his untimely post-conviction motion. If he can, the court must then consider the merits of his post-conviction motion.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Exigent Circumstances Justified Warrantless Search of Suspect’s Mouth

The Colorado Court of Appeals issued its opinion in People v. Carr on Thursday, November 17, 2016.

Vehicle—Probable Cause—Non-Consensual Search—Mouth—Unlawful Drugs—Evidence—Suppression—Fourth Amendment.

A police surveillance team identified the vehicle Carr was riding in as possibly being involved in drug sales. Officers observed the vehicle speeding and weaving into another lane and pulled it over. The officer who approached the driver’s side of the vehicle smelled alcohol and marijuana. The officers noticed that Carr was making chewing motions with his jaw and had a golf-ball sized bulge in his cheek. He refused the officers’ commands to spit out the contents of his mouth. The officers forced open Carr’s mouth and removed ten bags of drugs, which later tested positive for cocaine. Carr was charged with various crimes. He moved to suppress all evidence resulting from the search of his mouth. The court denied his motion, and he was ultimately convicted.

On appeal, Carr argued that the nonconsensual search of his mouth violated the Fourth Amendment and the court thus erred in failing to suppress the evidence obtained during that search. In addition to probable cause for the arrest of a suspect, which was not at issue in this case, the Fourth Amendment requires the state to prove three factors to render a warrantless internal body search constitutional: (1) a clear indication that incriminating evidence will be found; (2) exigent circumstances that justify the intrusion and make it impractical to obtain a search warrant; and (3) extraction of the evidence in a reasonable manner and by a reasonable method. Here, there was a clear indication that evidence would be found because the officers believed that Carr was in a vehicle that was suspected to be involved in drug dealing; they saw a large bulge in his mouth; he refused to speak to the officers or reveal what was in his mouth and was trying to chew or swallow what was in his mouth; and the officers had experience or training that indicated that suspects would attempt to swallow drugs. Exigent circumstance justified the search because Carr was attempting to chew and swallow, and it was imperative for the officers to retrieve whatever was in Carr’s mouth to preserve evidence and keep Carr from harming himself. Finally, extraction of the evidence was reasonable. Although the officers used physical force to search Carr’s mouth, they did not force him to undergo any invasive medical procedure or apply force to his throat. The minimal risk to Carr’s health and safety and the intrusion on his privacy and dignity did not outweigh the community’s interest in retrieving the bags of drugs. Therefore, the search of Carr’s mouth did not violate his Fourth Amendment rights.

The judgment of conviction was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Two Different Sentence Enhancements Can Be Applied Together

The Colorado Supreme Court issued its opinion in People v. Adams on Monday, November 21, 2016.

Curtis Adams was found guilty of assaulting a corrections officer. Because he committed that crime while serving another sentence, the district court imposed an aggravated sentence of 12 years to be served consecutively with Adams’ other remaining sentences. Thus, Adams’ sentence was enhanced twice: once by the aggravated range and once by required consecutive sentencing.

Adams appealed, and the court of appeals concluded Adams was not subject to the term of years sentence. The court of appeals followed a decision of a different panel and determined that the aggravated range did not apply because the second degree assault statute contained its own enhancement—the requirement for consecutive sentencing. The court of appeals affirmed Adams’ conviction but reversed his sentence.

The People appealed, contending the trial court was required to apply both enhancements by the statutory language. The supreme court analyzed the statutory text and determined that because the different aspects of the sentence could be applied together without conflict, both applied. Adams argued that the consecutive sentencing requirement applies to the exclusion of the aggravated range, but the supreme court disagreed.

The supreme court reversed the part of the court of appeals’ decision vacating the sentence and remanded for further proceedings consistent with its opinion.

Colorado Supreme Court: Warrant Establishes Long String of Criminal History Despite Lack of Specific Dates

The Colorado Supreme Court issued its opinion in People v. Cooper on Monday, November 21, 2016.

In September 2015, officers requested and obtained a search warrant for Lonnie Cooper’s residence and vehicles based for illegal drugs. The affidavit supporting the warrant contained information from a confidential informant about the drug activity, but did not contain any specific dates when the activity occurred. An Alamosa County magistrate signed the warrant the day it was presented, and police searched Cooper’s home, finding controlled substances, drug paraphernalia, and weapons. Cooper was charged with multiple counts.

Cooper moved to suppress the results of the search warrant, arguing that the supporting affidavit was so lacking in indicia of probable cause that no reasonable officer could, in good faith, rely on it. The trial court granted the motion. The trial court was particularly concerned about the affidavit’s “staleness,” or the lack of exact dates. The State filed an interlocutory appeal, and the Colorado Supreme Court reversed the suppression order.

The State argued that even if the warrant was stale and issued in error, the good faith exception to the exclusionary rule should apply. The supreme court agreed. The court focused on the “bare bones” situation where the good faith exception would not apply, namely “where the warrant is based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Because in this case there was considerable evidence of ongoing drug trafficking activity, an officer could have a reasonable, good faith belief that the warrant was proper.

The Colorado Supreme Court reversed the trial court’s suppression order. Justice Hood concurred, and Justice Marquez joined in the concurrence.

When Your Client’s Kid Needs Help — Advising Clients Whose Children are in Trouble

On Thursday, November 17, 2016, the Colorado Court of Appeals issued its opinion in People in Interest in R.C. When R.C. was 14 years old, he took a picture of his friend, L.P., during class one day. R.C. used Snapchat to draw a picture of a penis ejaculating near L.P.’s face. R.C. showed the picture to L.P. and three other friends, giggling. One other friend laughed, but L.P. felt bad. The class ended and the boys went to lunch. In the cafeteria, R.C. showed the altered pic to a few more people. L.P.’s friends could tell he was upset and asked R.C. to apologize, which he tried to do, but L.P. pushed him away. After lunch, L.P. and his friends reported the incident to the school’s principal.

R.C. was charged with disorderly conduct, and, after a trial, the court found that R.C. had committed disorderly conduct and sentenced him to three months’ probation, therapy, and eight hours of work crew.

R.C. appealed, arguing the prosecution failed to prove every element of disorderly conduct and that his drawing was protected speech under the First Amendment, because only “fighting words” were banned and the altered photo did not qualify as “fighting words.” The Colorado Court of Appeals noted that “fighting words” are words that by their very utterance tend to provoke retaliatory conduct in others. The court remarked that the Colorado statute does not prohibit utterances or displays that inflict injury, but only those that tend to incite an immediate breach of the peace.

The court found that the cartoon-like drawing on the photo was not enough to constitute “fighting words.” The court noted that the district court had apparently found the picture to be “fighting words” because it implied that L.P. was gay, and disagreed with this reasoning. The court found no evidence that R.C. intended to imply L.P. was gay, and even if he did, the court remarked, “We disagree with the district court, and the dissent, that the suggestion of homosexuality or homosexual conduct is so shameful and humiliating that it should be expected to provoke a violent reaction from an ordinary person.” The court determined that the average person, even the average 14-year-old, would not be expected to fly into a violent rage by seeing a picture of himself with a penis drawn on it.

The court of appeals agreed with R.C. that his photo did not amount to fighting words, and therefore found that the government failed to prove an element of the offense. The court of appeals reversed the conviction.

It is no surprise that adolescents make bad decisions. Many 14-year-old boys have joked about their friends inappropriately. R.C. did just that. But for R.C., the bad decision had severe consequences. His immature and inappropriate decision to draw a picture of a penis ejaculating near his friend’s face caused him far more than a phone call home from the principal. He faced years of legal troubles. He was charged with a criminal offense, went to trial, and was convicted. Although his conviction was reversed on appeal, he spent many years fighting it.

R.C. could have been any kid who made an immature decision. R.C.’s parents could have been any of us. But what happens when R.C.’s parents happen to be your clients for a business transaction, or estate planning, or even for a domestic dispute? The parents, your clients, are naturally going to call you for advice.

All too often attorneys are contacted by a current client that has a kid accused of wrongdoing. Federal and state laws have increased the number of suspensions, expulsions, probation, and criminal allegations against high school and college students. Educate yourself about how the laws work in Colorado.

On December 12, Lara E. Baker of Foster Graham Milstein & Calisher, LLP will present a one-hour seminar, “When Your Client’s Kid Needs Help,” to discuss the pitfalls young students face in Colorado with attorneys who have routinely handled these kinds of matters. Learn how to guide these children to avoid mistakes that can have lifelong consequences.

  • Avoiding pitfalls in the juvenile justice system, focusing on the perils of social media
  • Drugs and alcohol
  • Sex and the laws of consent
  • School disciplinary consequences
  • Law enforcement interaction with juveniles

This is a program no parent can afford to miss. And if you represent parents of teenagers, you should attend, too. Register by calling (303) 860-0608 or clicking the links below.



CLE Program: When Your Client’s Kid Needs Help

This CLE presentation will occur on December 12, 2016, at the CBA-CLE offices (1900 Grant Street, Third Floor), from 8:30 a.m. to 9:30 a.m. Register for the live program here or register for the webcast here. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here: MP3Video OnDemand.

Tenth Circuit: Isolated Mishap with Execution Does Not Give Rise to Eighth Amendment Violation

The Tenth Circuit Court of Appeals issued its opinion in Estate of Lockett v. Governor Mary Fallin on Tuesday, November 15, 2016.

In 1999, Clayton Lockett kidnapped, raped, sodomized, and shot 19-year-old Stephanie Nieman and then had an accomplice bury her alive. He was found guilty of 19 felonies arising from the incident and was sentenced to death. He was executed in Oklahoma in 2014, using a combination of three drugs—midazolam, vecuronium bromide, and potassium chloride. The doctor and EMT had trouble starting an IV and ultimately inserted the IV into a vein in his groin area. They covered the area with a cloth so that the observers would not see Lockett’s intimate parts. Ten minutes after administering the first drug, midazolam, Lockett was declared unconscious. The executioners then administered the second and third drugs. Unexpectedly, about 15 minutes after the first drug was administered, Lockett began twitching and writhing, tried to rise from the table, uttered some words, and was grimacing in pain. The doctor checked the IV site, which had been covered so as to protect Lockett’s privacy, and discovered the IV had infiltrated so the drugs were not getting to Lockett’s veins. The doctor advised Oklahoma DOC Director Robert Patton that he believed insufficient drugs had entered Lockett’s system to cause his death. The execution was halted 33 minutes after the first drug was administered. However, 43 minutes after administering the first drug, Lockett was pronounced dead.

The Estate of Lockett filed seven claims: (1) “Eighth Amendment violation—Torture,” as to all defendants; (2) “Eighth Amendment—Using Untested Drugs and Human Medical Experimentation,” against all defendants; (3) “Eighth Amendment—Use of Compounded Drugs in Human Medical Experimentation,” against all defendants; (4) “Eighth Amendment—Human Medical Experimentation on Unwilling Prisoners,” against all defendants; (5) “Eighth Amendment—Failure to Train and Supervise,” against Warden Trammell and Director Patton; (6) Fourteenth Amendment—“Failure to Protect State-Created Rights Procedural Due Process Violation,” against all defendants; and (7) “Sixth Amendment Right to Counsel and First Amendment Access to the Court Violation,” against Warden Trammell and Director Patton. Governor Fallin, Director Patton, and Warden Trammell filed a motion to dismiss under F.R.C.P. 12(b)(6), as did Dr. Doe. Both motions asserted qualified immunity among other defenses. The district court granted both motions to dismiss on qualified-immunity grounds and sua sponte dismissed the claims against the other Doe defendants. The district court found the Estate had failed to prove defendants violated clearly established law.

On appeal, the Tenth Circuit evaluated whether the defendants were entitled to qualified immunity, based on whether the Estate asserted facts sufficient to show a violation of a clearly established right. As to Dr. Doe, since he was a private party, the Tenth Circuit also had to find that he was entitled to government qualified immunity. The Tenth Circuit found that he was. A government employee in the same position as Dr. Doe would have been entitled to qualified immunity, and the Tenth Circuit found that Dr. Doe was, too, finding “Dr. Doe is entitled to assert qualified immunity because the purposes of qualified immunity support its application here: carrying out criminal penalties is unquestionably a traditional function of government, exactly the sort of activities that Richardson reasoned qualified immunity was meant to protect.”

Turning to the Estate’s claims, the Tenth Circuit first addressed its claims of torture and deliberate indifference. The Tenth Circuit noted a single reference in the torture claim to “deliberate indifference,” although there were several references to torture. Although the Tenth Circuit would generally find that the deliberate indifference claim was waived, it addressed the claim because Appellees suffered no prejudice from the claim. The Tenth Circuit noted a deficiency in that the Estate did not account for how cruel and unusual punishment claims operate in the death penalty context. Because the Supreme Court has found capital punishment constitutional, and some pain and suffering is inherent in capital punishment, there must be an additional showing of torture or needless addition of pain in order for an Eighth Amendment violation to stand. The Tenth Circuit noted that the Supreme Court’s death penalty opinions recognize that executions can go awry, and that an isolated mishap will not rise to the level of an Eighth Amendment violation. The Tenth Circuit found that Lockett’s infiltrated vein, coupled with the unusual difficulty securing an IV site, constituted precisely the sort of “isolated mishap” contemplated by the Supreme Court. Although the infiltrated IV could have been discovered sooner had the IV site not been covered, the covering was done to protect Lockett’s privacy, not in an attempt to cause pain and suffering.

The Estate also asked the Tenth Circuit to take judicial notice of news articles about Lockett’s botched execution, as well as Justice Sotomayor’s dissent in Glossip v. Gross, in which she discussed Lockett’s execution. The Tenth Circuit declined to take judicial notice of the news articles or the dissent. The Circuit found it inappropriate to take judicial notice of the opinions contained in the news articles, noting that judicial notice is reserved for facts beyond debate. The Tenth Circuit also declined to take judicial notice of Justice Sotomayor’s dissent, because it may only take judicial notice of the fact of the opinion and not its contents.

The Estate also claimed that the defendants violated Lockett’s Eighth Amendment rights by being deliberately indifferent to his serious medical need to die as quickly as possible. The Tenth Circuit noted that, at the same time, the Estate acknowledged that the EMT and doctor had difficulty placing an IV, and did not have alternative veinous access. The Estate argued that the appellees had no plan to respond to or prevent Lockett from suffering a prolonged death. The Tenth Circuit did not find deliberate indifference on the part of the appellees. The Tenth Circuit affirmed the district court’s decision that there was no violation of a clearly established right. The Tenth Circuit further found the appellees violated no clearly established law despite Lockett suffering pain during his execution. The IV infiltration was an “isolated mishap,” not something designed to cause additional pain. The Tenth Circuit noted that Oklahoma has changed its execution procedures to conform to the Supreme Court’s approved procedure in Baze, so the situation is unlikely to arise again in another execution.

The Tenth Circuit next addressed the Estate’s claims that Defendants Patton and Trammell failed to promulgate policies that would prevent Lockett’s execution from violating the Eighth Amendment. The Tenth Circuit found that the Estate’s reliance on the requirements enumerated in Baze was misplaced; because some of the procedural safeguards were in place, and because Oklahoma adopted more procedural safeguards after Lockett’s execution, the Tenth Circuit found no error. The Tenth Circuit noted that the Estate’s claims contained only a high level of generality, which was impermissible.

The Tenth Circuit also dismissed the Estate’s aggregation claim. Because the Estate did not set forth clearly established law to support its aggregation claim, the Tenth Circuit dismissed it. The Tenth Circuit also found no procedural due process violation because Lockett had an opportunity to challenge the drug protocol and failed to do so. Similarly, the Tenth Circuit found that Lockett had no right to counsel during the execution.

The Tenth Circuit affirmed the district court. Judge Moritz wrote a separate concurrence; she would have declined to reach the constitutional issues as to any of the Estate’s questions.

Tenth Circuit: Denial of Sentence Reduction Appropriate Where Not “Based On” Guidelines Range

The Tenth Circuit Court of Appeals issued its opinion in United States v. Gilmore on Tuesday, November 15, 2016.

Jeremy Gilmore was convicted of conspiracy to distribute and possession with intent to distribute methamphetamine in 2009. Due to his two prior drug felonies, Gilmore received a mandatory life sentence. After the Tenth Circuit affirmed his conviction, Gilmore filed a motion to vacate under 28 U.S.C. § 2255, claiming his trial counsel was ineffective. The district court granted his motion, but instead of setting aside the conviction it ordered the parties to meet and confer regarding an appropriate remedy. The two parties informed the court at a later status conference that a 168 month sentence would be fair, based on the reduction in offense level Gilmore could have received if his counsel were effective. The parties reduced their agreement to writing, wherein Gilmore agreed to knowingly admit committing one count of conspiracy, for which he had already been sentenced, in exchange for the government’s agreement not to file additional charges against Gilmore. The agreement did not specifically reference any Guidelines range. The court accepted the agreement, agreed to be bound by it, and resentenced Gilmore to 168 months’ imprisonment.

Almost two years later, Gilmore filed a motion to reduce his sentence pursuant to Amendment 782, which reduced the Guidelines ranges for various offenses. Gilmore argued that his sentence mirrored the low end of a Guidelines range based on a total offense level of 32 and a criminal history level of IV, and was thus “based on” a Guidelines range. The district court dismissed Gilmore’s motion, finding it lacked jurisdiction to reduce his sentence since it was based on the agreement of the parties and not a particular Guidelines range. Gilmore appealed.

The Tenth Circuit addressed Gilmore’s argument that the district court erred in concluding it lacked authority to modify his sentence. The Tenth Circuit found Justice Sotomayor’s concurrence in Freeman v. United States, 564 U.S. 522 (2011), compelling. Justice Sotomayor suggested that when a plea agreement is “based on” a Guidelines range that is subsequently amended, the defendant is entitled to use the amendment, but when the plea does not “use” or “employ” a particular Guidelines range, the amendment is inapplicable. The Tenth Circuit agreed with this reasoning, and found that because the sentencing agreement was not “based on” a specified Guidelines range, the amendment was inapplicable to Gilmore.

The district court was affirmed.

Tenth Circuit: Facts Existed to Support District Court’s Denial of Qualified Immunity

The Tenth Circuit Court of Appeals issued its opinion in Durkee v. Minor on Monday, November 14, 2016.

James Durkee was an inmate at the Summit County Corrections Center in Colorado. After being threatened by a notoriously violent inmate, Ricky Michael Ray Ramos, Durkee expressed concern about Ramos’ aggression and a deputy issued an incident report stating that Durkee and Ramos were not allowed to attend any programs together, be in the hallways together or in passing, or be in the booking area together. The report was signed by the jail staff, including Defendant Hochmuth. On December 28, 2012, Plaintiff Durkee was in the jail’s professional visitation room, when Ramos was escorted into the booking area by Hochmuth. Plaintiff saw both Defendant and Ramos, and Ramos saw plaintiff, but Hochmuth reported that he did not see plaintiff despite the large glass window between the rooms. When defendant removed Ramos’ shackles, he ran into the visitation room and attacked plaintiff, leaving him with severe facial fractures.

Plaintiff sued Hochmuth and the Summit County Sheriff, Defendant Minor, in their individual capacities under 42 U.S.C. § 1983 for violations of his Eighth Amendment rights. Both defendants moved for summary judgment based on qualified immunity. The district court denied summary judgment and the defendants appealed.

On appeal, the Tenth Circuit evaluated whether the district court found facts sufficient to support plaintiff’s claim that the defendants violated clearly established law. The Tenth Circuit found that, as to Hochmuth, the plaintiff had to prove sufficient facts that the defendant knew of and disregarded a substantial risk to plaintiff. Hochmuth does not dispute that he knew Ramos posed a substantial risk of harm to plaintiff “generally,” but argued he did not know plaintiff was in the unlocked room adjacent to the booking room. The Tenth Circuit noted that the success of the defendant’s defense may turn on whether the jury finds his testimony credible that he did not see plaintiff in the next room.

As to Minor, the Tenth Circuit did not find facts sufficient to prove that in his individual capacity as the director of the jail he knew of and disregarded a substantial risk of harm to plaintiff. The Tenth Circuit found that plaintiff could not show Minor’s direct personal responsibility for the harm suffered by plaintiff. The Tenth Circuit could not find a policy dilemma, since unshackling inmates in the booking area had not been a problem for anyone prior to the incident with plaintiff.

The Tenth Circuit affirmed in part, reversed in part, and remanded for further proceedings.