November 18, 2017

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Colorado Supreme Court: Contracting Jail Nurse Not “Compensated Employee” of Law Enforcement Agency

The Colorado Supreme Court issued its opinion in Mulberger v. People on Monday, February 22, 2016.

Criminal Case Jury Selection—Challenges for Cause.

The Supreme Court held that, under the plain language of the challenge for cause statute, CRS § 16-10-103(1)(k), a “compensated employee of a public law enforcement agency” is a person who provides labor and services to, is paid by, and receives direction from a public law enforcement agency. The potential juror in this case contracted with and received compensation from a private agency for work she performed as a nurse at a county jail. That potential juror therefore was not a “compensated employee” of the county jail because she was not paid by the county jail, and the record does not contain any evidence that she was subject to the jail personnel’s direction and control. Accordingly, the trial court did not err in denying defendant’s challenge for cause. Because the trial court did not err, the Court did not address the issue concerning the proper remedy for a trial court’s erroneous ruling on a challenge for cause.

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

Colorado Supreme Court: Privately Owned Prison Not “Law Enforcement Agency” for Jury Selection Purposes

The Colorado Supreme Court issued its opinion in People v. Bonvicini on Monday, February 22, 2016.

Criminal Case Jury Selection—Challenges for Cause.

The Supreme Court held that, under the plain language of the challenge for cause statute, CRS § 16-10-103(1)(k), a “public law enforcement agency” is a division or subdivision of state or federal government that has the authority to investigate crimes and to arrest, prosecute, or detain suspected criminals. The potential juror in this case worked at a prison owned and operated by a private company that housed inmates from Alaska. The Court concluded that the private company operating the prison is not a “public law enforcement agency” under the statute because it is not an official governmental entity. Therefore, the trial court appropriately denied defendant’s challenge for cause to the potential juror who worked at the private prison. Because the trial court did not err, the Court did not address the issue concerning the proper remedy for a trial court’s erroneous ruling on a challenge for cause.

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

SB 14-123: Granting Peace Officers Standards and Training Board Authority to Promulgate Certain Rules and Award Grants to Nonprofit Organizations

On Monday, January 27, 2014, Sen. Lucia Guzman introduced SB 14-123 – Concerning the Authority of the Peace Officers Standards and Training Board, and, in Connection Therewith, Providing Additional Rule-Making Authority; Raising the Maximum Fee for Certification and Skills Exams; Allowing Awarding Grants to Nonprofit Organizations; and Denying Certification for Municipal Violations. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

As introduced, the bill gives the peace officers standards and training board (P.O.S.T. board) the authority to promulgate rules regarding:

  • Certification of inspectors of vehicle identification numbers;
  • Annual in-service training requirements for certified peace officers and the suspension of certification for the failure to receive annual in-service training;
  • Any necessary or proper rules that carry out the provisions and purposes of the P.O.S.T. board; and
  • Procedures for reinstatement of suspensions of certification.

The bill raises the maximum fee for certification and skills examinations from $125 to $150.

Under current law, the P.O.S.T. board can provide grants to local governments and colleges and universities to fund training programs. The bill also allows grants to nonprofit organizations.

The bill allows the P.O.S.T. board to deny certification to anyone who is convicted of a municipal violation that is the equivalent of any of the state law violations that permit denial of certification.

On Feb. 12, the Judiciary Committee amended the bill and moved it to the Finance Committee. The bill is on the Finance Committee calendar for Thursday, Feb. 27—“Upon Adjournment.”

Local Case and Attorneys at the Supreme Court: Cheney’s Secret Service Agents Entitled to Qualified Immunity

It isn’t often that a case rooted in Colorado reaches the U.S. Supreme Court, but on June 4, 2012, the Supreme Court announced its decision in a case with deep Colorado connections, Reichle v. Howards. The facts of the case occurred in Beaver Creek, Colorado, and the respondent, Golden resident Steven Howards, was represented by Denver attorney David Lane of Kilmer Lane & Newman LLP, while the petitioner Secret Service agents were represented by Denver lawyer Sean Gallagher of Polsinelli Shughart, PC.

The case involved Howards, who confronted Vice President Cheney at a 2006 event at a mall in Beaver Creek. According to the Court’s opinion, Howards entered the line to meet Cheney, made critical remarks regarding the administration’s policies in Iraq, and touched Cheney on the shoulder before leaving (something Howards later denied to Secret Service agents). Howards was arrested by Secret Service agents Gus Reichle and Dan Doyle. He was charged with harassment, but the charges were later dropped. Howards then brought suit against the agents, claiming that he had been arrested without probable cause, a violation of the Fourth Amendment, and in retaliation for his comments to Vice President Cheney, a violation of the First Amendment.

The Court granted certiorari on the questions of (1) whether a First Amendment retaliatory arrest claim could be brought where the arrest was supported by probable cause and (2) whether there was clearly established law at the time of Howards’s arrest as to the first question. The Court only addressed the second question, and found that the law was not clearly established at the time of the arrest, entitling the agents to qualified immunity.

Lane summarized his thoughts on the ruling in a statement to the Associated Press, “‘They broke absolutely no legal ground while managing to duck every significant issue in the case.’” However, Gallagher saw the decision differently: “‘This ruling confirms that the federal courts will not subject law enforcement officials to personal liability except when it is absolutely clear that they have no basis to make the arrest.’” While it remains an open question whether a First Amendment retaliatory arrest claim can be brought where the arrest is supported by probable cause, this case was certainly fascinating for the facts and issues involved, as well as its connections to Colorado and two of Denver’s prominent attorneys.

Colorado Court of Appeals: Officers’ Ruse During “Knock and Talk” Was Intended to Get Occupant to Open Door, Not to Deceive into Giving Consent to Enter Apartment

The Colorado Court of Appeals issued its opinion in People v. Nelson on March 15, 2012.

Standing—Search—Resident—Motion to Suppress Evidence—Ruse—Probable Cause—Exigent Circumstances—Independent Source Exception—Exclusionary Rule.

Defendant Harvey Nelson appealed the judgment of conviction entered on jury verdicts finding him guilty of numerous illegal substance-related offenses. The case was remanded.

On January 27, 2006, police officers went to an apartment building after receiving a tip from an anonymous informant that narcotics distribution was occurring in one of the apartments. The officers knocked on the apartment door, and Nelson answered it. Another man inside the apartment attempted to flee the apartment by running out the back door. The officers recovered a glass pipe commonly used for smoking marijuana from a table inside the apartment and methamphetamine from the other man’s pockets.

The People contended that Nelson lacked standing to challenge the search because he was not an “overnight guest” and, after the entry and search began, he stated that he did not live there. However, undisputed facts adduced at the suppression hearing showed that Nelson was living in the apartment. Thus, he had standing to challenge the entry and search.

Nelson contended that the trial court erred in denying his motion to suppress evidence based on police officers’ unconstitutional entry and search of his residence. The officers testified that they wished to conduct a “knock and talk” investigation to seek consent to enter the apartment. Their ruse of claiming to be maintenance workers was intended only to get a person inside the apartment to open the door; it was not intended or used to deceive any person into giving consent to enter or search the apartment. Therefore, the officers’ ruse was permissible. Further, the officers’ subsequent entry into the apartment was justified by probable cause and exigent circumstances. The officers knew from a reliable informant that narcotics distribution was possibly taking place at the apartment and that a large quantity of methamphetamine was reportedly inside, and the officers personally observed the glass pipe and the other man fleeing before entering the apartment.

Nelson contended that, even if the initial entry into the apartment was constitutional, his girlfriend’s subsequent consent to search was invalid as to him. Because the evidence proved that Nelson lived there, the girlfriend’s consent to search was invalid in light of Nelson’s refusal to consent. The court ruled there was probable cause for issuance of the search warrant. However, the case was remanded to determine whether the independent source exception to the exclusionary rule permitted the recovery and use at trial of the items seized pursuant to issuance of the search warrant, despite the illegality of the consent search.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on March 15, 2012, can be found here.

Report from the ABA House of Delegates Meetings at the 2012 Midyear Meeting in New Orleans

I have the privilege of serving the Denver Bar Association as a delegate to the American Bar Association (“ABA”) House of Delegates.  The ABA House of Delegates met at the ABA’s midyear meeting held in New Orleans, Louisiana, on February 6, 2012.  This Article summarizes the House of Delegates events at the midyear meeting and the action taken by the House.

The Midyear Meeting was very well-attended.  It had the best reported attendance on record.  The ABA sponsored numerous programs on issues such as the Ethics 20/20 commission, the state court funding crisis, and efforts to improve access to justice.  There were many important issues addressed by the House of Delegates at the midyear meeting.  This Article summarizes a few of them.

Ethics 20/20 Commission’s White Papers and Proposals Relating to the Ethics of Litigation Financing, Non-Lawyer Ownership of Law Firms, Outsourcing, and the Use of Technology of Mobile Devices

Before the House of Delegates convened, the Ethics 20/20 Commission sent information around to the delegates regarding the work of the Commission and its proposals.  Specifically, the Commission informed the delegates of its plan to bifurcate its presentation of proposals to help facilitate the House of Delegates’ consideration of the Commission’s recommendations.  The decision to bifurcate the presentation of proposals foretells a concern that some of the Commission’s proposals will be controversial and will generate much discussion and debate.

Indeed, from the preview that the Commission has provided, some of the issues that the Commission will put before the House will generate much discussion.  The Commission has produced white papers that discuss many of the complex ethical issues that cannot effectively be addressed through changes to Model Rules.  Specifically, one of the Commission’s white papers discusses ethical issues involved with litigation financing, including issues regarding conflicts of interest, a lawyer’s duty of confidentiality, the attorney-client privilege, and rules regulating the exercise of the lawyer’s independent judgment.  The Commission’ white paper can be found by clicking here.

The Commission also is working on proposals relating to alternative business structures for law firms, outsourcing of legal services and confidentiality-related ethics issues arising from lawyers’ use of technology. Additionally, the Commission also is working on a model rule relating to lawyers’ obligations to retain client files.  An issues paper regarding alternative business structures for law firms – including non-lawyer ownership of law firms – has been distributed by the Commission.  It can be found by clicking here.

During the House of Delegates meeting, Former ABA President Carolyn B. Lamm addressed the House about the Commission’s progress.  President Lamm explained that numerous various roundtable sessions and meetings have been held around the country.  She explained that formal recommendations will be presented at the annual meeting in 2012 and at the midyear meeting in 2013.  President Lamm explained that one of the Commission’s more controversial issues is whether non-lawyers should be allowed under legal ethics rules to have a limited ownership interest in law firms in the United States.  This issue has been discussed extensively in Colorado previously.

President Lamm explained that the Commission is considering other issues relating to the need to balance the convenience and efficiencies inherent in a lawyer’s use of new technologies, while also preserving the lawyer-client relationship, confidentiality, competence and the values of the profession.  President Lamm explained that the Commission plans in presenting proposals on each of these issues for consideration by the House of Delegates.  All interested members of the Bar should get in touch with me or other Colorado delegates to discuss any concerns about any of the issues that are being considered by the Ethics 20/20 Commission, or the proposals that are likely coming from the Commission.

Summary of the House of Delegates

After the House of Delegates convened on February 6, 2012, the Delegates were greeted by Mitchell Landrieu, the Mayor of New Orleans, who also is a lawyer.  Mayor Landrieu talked about the challenges that the city has been through in recent years, with Hurricanes Katrina and Rita, and the BP oil spill.  Mayor Landrieu quipped that the city is “waiting for locusts now.”  Mayor Landrieu’s speech was interesting and insightful, explaining that New Orleans is truly resilient and has become the “a laboratory for innovation and change,” because of the disasters it has suffered.  Mayor Landrieu’s speech was an excellent way to kick-off the work of the House.

After the Mayor’s speech and some other introductory actions, the House got to work debating and voting on resolutions before the House.  The House adopted a number of important resolutions, including:

  • Resolution 101A, which adopted the black letter ABA Criminal Justice Standards on Law Enforcement Access to Third Party which provide a framework through which legislatures, courts acting in their supervisory capacity and administrative agencies can balance the needs of law enforcement and the interests of privacy, freedom of expression and social participation.
  • Resolution 101B, which urged governments at various levels to require laboratories producing reports for use in criminal trials to adopt pretrial discovery procedures requiring comprehensive and comprehensible laboratory and forensic science reports, and listed relevant factors to be included in such reports.
  • Resolution 101C, which urged trial judges who have decided to admit expert testimony to consider a number of factors in determining the manner in which that evidence should be presented to the jury, and also provided guidance about how to instruct the jury in its evaluation of expert scientific testimony in criminal and delinquency proceedings.
  • Resolution 101F, which supported legislation, policies and practices that allow equal and uniform access to therapeutic courts and problem-solving sentencing alternatives, such as drug treatment and anger management counseling, regardless of the custody or detention status of the individual.
  • Resolution 113, which called for adoption as ABA policy uniform standards for language access in courts.  The policy provides clear guidance to courts in designing, implementing, and enforcing a comprehensive system of language access services that is suited to the need in the communities they serve.
  • Resolution 102B, which approved the Uniform Electronic Legal Material Act promulgated by the National Conference of Commissioners on Uniform State Laws in 2011, as an appropriate Act for those states desiring to adopt the specific substantive law suggested therein.  The Uniform Act provides rules for the authentication and preservation of electronic legal material.
  • Resolution 108, which urged state and territorial bar admission authorities to adopt rules and procedures to accommodate the unique needs of military spouse attorneys who move frequently in support of the nation’s defenses.
  • Resolution 111, which urged entities that administer a law school admission test to provide appropriate accommodations for a test taker with a disability to best ensure the exam reflects what the test is designed to measure and not the test taker’s disability.
  • Resolution 302, which supported the principle that “private” lawyers representing governmental entities are entitled to claim the same qualified immunity provided “government” lawyers when they are acting “under color of state law.”  This issue is particularly important given that there is a pending case before the United States Supreme Court considering this question.  See Filarsky v. Delia, U.S. No. 10-1018, argued 1/17/2012.

A summary of the resolutions adopted by the House can be found by clicking here.  Additionally, I can provide a copy of the resolutions to any interested reader. Contact me if interested.

Statement from President Robinson

In addition to this important work, the House of Delegates heard from Bill Robinson, President of the ABA.  President Robinson explained that the most pressing issue facing the legal system today is under-funding of the courts, which is at a crisis level.  President Robinson urged all ABA members to consider the under-funding crisis to be a threat to our liberty and rule of law.  President Robinson explained the ABA’s efforts to combat this crisis, including its extensive education efforts and its efforts to increase public awareness about the crisis.  Additionally, the ABA has made the crisis the core of the law day events, which will focus on the theme: “No Courts, No Justice, No Freedom.”

Nomination of James Silkenat as President-Elect

Additionally, the nominating committee announced that James Silkenat of New York was nominated to be President-Elect Designee of the ABA.  The House of Delegates will vote on his nomination at the Annual Meeting in Chicago this August.  If elected, Mr. Silkenat will serve a one-year term as President beginning in August, 2013.  All members of the Bar are urged to give any input on Mr. Silkenat to me or any of the other Colorado delegates.

Other Matters

Finally, the House of Delegates also considered other matters.  Those other matters included a report from the ABA’s Executive Director, Jack Rives, and a report from the ABA’s treasurer.  The House also heard from Chief Judge Washington, who is the President of the Conference of Chief Justices.  Chief Judge Washington spoke about language access to the courts.  He also discussed the core focuses of the Conference, which are judicial independence and civics education.

Conclusion

I hope this Article sufficiently highlighted many of the more interesting or important the agenda items considered by the House of Delegates at the midyear meeting in New Orleans.  I appreciate all input that any members of the Denver Bar Association have regarding any of the issues that have been considered, or will be considered, by the ABA House of Delegates.

The American Bar Association is offering a free trial membership in the ABA and in a section of the ABA. Sign up here.

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Tenth Circuit: Decedent’s Right to Be Free from Forceful Takedown Was Clearly Established; Officer Not Entitled to Qualified Immunity

The Tenth Circuit Court of Appeals published its opinion in Morris v. Noe on Monday, February 27, 2012.

The Tenth Circuit affirmed the district court’s decision. Respondent brought a § 1983 action for unlawful arrest and excessive force on behalf of her deceased husband against Petitioner police officer. She alleges Petitioner violated her husband’s clearly established rights when the officer forceably arrested decedent and caused him injury. Petitioner moved for summary judgment based on qualified immunity, and the district court denied his motion. Petitioner now appeals.

The Court found that the officer “had reason to believe that [decedent] was, at most, a misdemeanant. But [the decedent] posed no threat to [the officer] or others, nor did he resist or flee. Thus, based on the facts assumed by the district court, [the decedent]’s right to be free from a forceful takedown was clearly established,” and Petitioner is not entitled to qualified immunity.

SB 12-050: Eliminating Automated Vehicle Identification Systems and Prohibiting Traffic Citation Cameras

On January 11, 2012, Sen. Scott Renfroe and Rep. Randy Baumgardner introduced SB 12-050 – Concerning the Elimination of the Use of Automated Vehicle Identification Systems for Traffic Law Enforcement. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill repeals the authorization for municipalities to use automated vehicle identification systems to identify violators of traffic regulations and issue citations based on photographic evidence, and creates a prohibition on such activity. The bill is assigned to the Transportation Committee; the bill is scheduled for committee review on Tuesday, February 21 at 2:00 p.m.

Summaries of other featured bills can be found here.

HB 12-1036: Clarifying the Investigative Files Exemption to the Colorado Open Records Act

On January 11, 2012, Rep. James Kerr introduced HB 12-1036 – Concerning Clarification of the Exemption from the”Colorado Open Records Act” for Investigative Files. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill clarifies that the current exemption from the “Colorado Open Records Act” for investigative files applies to those files compiled for any civil, administrative, or criminal law enforcement purpose.

Summaries of other featured bills can be found here.

HB 12-1026: Conferring Peace Officer Status on Certain Municipality Prosecuting Attorneys

On January 11, 2012, Rep. Coran and Sen. Roberts introduced HB 12-1026 – Concerning peace officer status for certain municipality prosecuting attorneys. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill confers peace officer status on a city attorney, town attorney, senior assistant city attorney, assistant city attorney, chief deputy city attorney, deputy city attorney, special deputy city attorney, prosecuting attorney, senior prosecuting attorney, senior prosecutor, or special prosecutor employed or contracted by a municipality, city, town, statutory city or town, or city and county. The attorney may be certified by the peace officers standards and training board. Assigned to the Judiciary Committee.

Summaries of other featured bills can be found here.

Tenth Circuit: If Employee’s Primary Duty Is Related to Emergency Response or Law Enforcement, Entitled to FLSA Protections

The Tenth Circuit Court of Appeals published its opinion in Maestas v. Day & Zimmerman, LLC on Wednesday, January 4, 2012.

The Tenth Circuit affirmed in part and reversed in part the district court’s decision. Petitioners were officers in a private security force that protects Los Alamos National Laboratory. They contend that their employer, Respondent, improperly classified them as exempt employees under the Fair Labor Standards Act (FLSA). The parties disagree over which of Petitioners’ “job duties is ‘primary,’ a determination essential to the classification of their positions under FLSA.” The district court concluded that all Petitioners were exempt executive employees and granted summary judgment to Respondent.

The Court disagreed with the district court’s reasoning. “In order to fall under the executive, administrative, or combination exemptions to FLSA’s overtime protections, an employee’s primary duty must be managerial or administrative, or a combination of the two. . . . However, if an employee’s primary duty is related to emergency response or law enforcement, the employee is entitled to FLSA’s protections.” The Court held that a dispute over the classification of job duties presents a question of fact rather than an issue of law, and that “an employee who supervises subordinates while also conducting front-line law enforcement work performs a non-managerial task. Because there remains a genuine dispute as to whether three of the plaintiffs had this task as their primary duty, summary judgment was proper only against [one] plaintiff  and improper as to the other plaintiffs.”