July 19, 2019

Archives for December 20, 2012

Colorado Supreme Court: Announcement Sheet, 12/20/12

The Colorado Supreme Court issued four published opinions on Thursday, December 20, 2012. This was a special announcement day to make up for the court closure on Monday, December 17, 2012. The Colorado Court of Appeals will not announce cases on Thursday, December 20, 2012.


Kazadi v. People

In re Warden v. Exempla

Tate v. People

General Steel v. Bacheller (opinion modified sua sponte to include an additional citation in footnote 1)

The summaries for these cases are forthcoming, courtesy of The Colorado Lawyer.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Five Reasons to Become an Active Member of the Colorado Bar Association

Deanna[This article is directed primarily to new attorneys, but if you are an experienced attorney who has not been active in the Bar, this is for you too!]

As you start your practice, you will be faced with many new challenges. First, there really are only 24 hours in the day. Second, if you are fortunate enough to have a legal job, your employer would like you to commit the first 23 hours each day to them. Meanwhile, you desire to have some balance in your life. Finally, the Bar Association keeps asking you to join.

Your time at the Bar Association is not billable. It is not guaranteed to lead to a better job offer or new clients. However, it is one of the most valuable investments you can make in your career. In no specific order, here are my five top reasons for being active in the Colorado Bar Association:

  1. Networking: My favorite part about being an active member of the Bar is networking. I used to think networking meant meeting people and figuring out how they could help me in my professional career. While that is still part of networking, I have embraced a larger definition that includes finding ways to spend time with amazing people and, sometimes, improve our society along the way.
  2. Opportunities: Many of my relationships that were started at the Colorado Bar Association offices have led to opportunities. These opportunities have often been unpaid, such as serving on a committee, writing an article, or teaching a seminar. In addition to aiding in my education and professional development, these opportunities have been incredibly enjoyable.
  3. Resources: Because I have served in many roles at the Bar Association, I now know attorneys who are experts in diverse areas of practice who return my phone calls willingly. When I don’t know who to call, the Bar Association will provide me with names of experts who are likely to be willing to discuss a novel legal issue with me.
  4. Legislative Collaboration: I spend time with smart, caring people working on important issues that affect all Coloradans. The attorneys who serve on the various Bar committees check their personal politics at the door and work hard to obtain results that provide real benefits to Colorado.
  5. Continuing Education: I started attending Bankruptcy Subsection meetings because I learned a lot at the case law updates, without much effort. I also met a lot of people who were also interested in bankruptcy. I continue to learn from case law updates, meetings, and sponsored lectures. Learning in a social, interactive setting is more enjoyable and more interesting than reading cases in my office.
  6. A Bonus—Sense of Satisfaction and Fulfillment: When I reflect upon my experiences as a lawyer, many of the most fulfilling happened at Bar Association functions. Practicing law is hard, but it can also be satisfying. For me, the Bar Association is a place to reach beyond the day to day practice and engage in the greater legal community.

I highly recommend taking the time to attend Bar functions and find your own niche in the Colorado Bar Association. There is room for all of us.

If you would like to join the CBA or the Business Law Section, you can send an email to membership@cobar.org or go to http://www.cobar.org/index.cfm/ID/767/dpmem/Membership-Applications/.
You can also contact Jill Lafrenz to become more involved in the Section.

DEANNA L. WESTFALL is the Managing Attorney for the bankruptcy department in the Colorado office of Castle Stawiarski, LLC.  Ms. Westfall is Chair of the Business Law Section of the Colorado Bar Association.  In addition, she is Chair of the Bankruptcy Section of the USFN. Ms. Westfall is a member of the Colorado and Denver Bar Associations.  She is a frequent speaker on bankruptcy and creditors’ rights for CLE Colorado and other organizations. Additionally, she serves as a board member of CLE Colorado.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Tenth Circuit: Officers Entitled to Qualified Immunity When Inmate Cut His Dreadlocks, Contrary to His Religious Beliefs; No RLUIPA Cause of Action Against Individual Officers

The Tenth Circuit published its opinion in Stewart v. Beach on Tuesday, December 18, 2012.

Mr. Stewart was an inmate at the Kansas Department of Corrections. In accordance with his Rastafarian religious beliefs, he did not cut or comb his hair, which he kept in dreadlocks. Stewart learned that his mother had been diagnosed with cancer.  To be closer to her, Stewart requested a transfer to the Lansing Correctional Facility. His request was granted. On the day of the transfer, defendant Officer Beach refused to allow Stewart to board the transport vehicle because he could not comb out his dreadlocks as was required as a security procedure. Beach consulted with her supervisor, defendant Wilson, who gave Stewart the choice of either cutting his hair or foregoing the transfer. Stewart eventually cut off his dreadlocks and was transferred to Lansing.

Stewart filed an action asserting that defendants forced him to choose between adhering to his religious beliefs and transferring closer to his ailing mother, and that this violated his rights under the Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act (RLUIPA). Beach and Wilson filed a motion to dismiss, which was granted on the ground that Beach and Wilson were entitled to qualified immunity. Stewart appealed.

Stewart argued that the officers were not entitled to qualified immunity. Qualified immunity shields government officials performing discretionary functions from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. In resolving a motion to dismiss based on qualified immunity, a court must consider whether the facts that a plaintiff has alleged make out a violation of a constitutional right, and whether the right at issue was clearly established at the time of defendants’ alleged misconduct. The dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.

In the absence of controlling authority, the Tenth Circuit concluded that a constitutional right is clearly established if there is a robust consensus of cases of persuasive authority. From the Court’s survey of these cases, the most it could say was that defendants had warning that enforcement of the grooming policy might violate Stewart’s free exercise right. But the Court could not say that it was clearly established that their enforcement of the policy violated Stewart’s constitutional rights.  The Court therefore concluded that defendants were entitled to qualified immunity.

 Stewart further argued that his rights were violated under RLUIPA. The Act protects institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government’s permission and accommodation for exercise of their religion. RLUIPA also provides a cause of action against a government. Since RLUIPA does not provide a cause of action against individual defendants in their individual capacities, the Tenth Circuit affirmed the district court’s dismissal of this claim.


Tenth Circuit: No Fourth Amendment Violation in Search and Seizure of Defendant’s Home and Vehicle

The Tenth Circuit published its opinion in United States v. Jones on Tuesday, December 18, 2012.

Officers of the Missouri State Highway Patrol conducted surveillance of a hydroponics store in Kansas City, Missouri. Defendant-Appellant Mr. Jones (“Jones”) arrived at the store.  After he entered the store, Sergeant Blunt requested a computer check on the license plate of Mr. Jones’s truck. The records indicated that his driving privileges had been suspended in Missouri, and that he was on parole in Missouri for a prior drug offense. Mr. Jones drove from the store in Kansas City, Missouri, to his residence in Kansas City, Kansas. The officer approached Mr. Jones in the alley behind his house, where the Officer told Jones he was conducting a drug investigation, and that he was there for Mr. Jones’ marijuana plants.

Without explicitly saying so, Sergeant Blunt indicated that he wanted to search Mr. Jones’s residence.  Sergeant Blunt never explicitly told Mr. Jones that he could refuse consent. Mr. Jones never told the officers that he did not want them to search his residence. At some point, Mr. Jones walked toward his residence. Once inside, Mr. Jones unlocked another door, grabbed a gun, and shot Sergeant Blunt.  Trooper Tyrrell wounded Mr. Jones and the officers retreated to their vehicles.

The officers radioed dispatch, who notified the officers that they were in fact in Kansas City, Kansas.  The Kansas City, Kansas, Police Department responded to the location and took command.

The Kansas City, Kansas, Police Department got search warrants to search Mr. Jones’s residence and vehicle, which resulted in the seizure of evidence related to marijuana and firearms possession.

Mr. Jones was indicted and filed a motion to suppress, arguing that the evidence obtained from Mr. Jones’s home and truck was obtained as a result of an unlawful detention of Mr. Jones, and a warrantless entry into his home without consent. The district court denied the motion. Jones appealed.

On appeal, Mr. Jones makes five arguments:

First, Jones argues that because the Missouri officers were acting outside of their jurisdiction (in Kansas), their seizure of Mr. Jones effected a Fourth Amendment violation. There is no dispute that the interaction with Mr. Jones and the Missouri officers was outside of their jurisdiction. However, in federal prosecutions, the test of reasonableness in relation to the Fourth Amendment protected rights must be determined by federal law even though the police actions are those of state police officers. Accordingly, Mr. Jones’s argument is mistaken.

Second, Jones contends that the Missouri officers’ conversation with him in the alley amounted to a seizure. A Fourth Amendment seizure does not occur simply because a police officer approaches an individual and asks a few questions. Accordingly, under the totality of the circumstances, a reasonable person in Mr. Jones’s position would have felt free to terminate his encounter with the Missouri officers outside of his home.

Third, Mr. Jones contends that there was not reasonable suspicion for the officers to take his driver’s license and detain him. The government admits that what began as a consensual encounter became an investigative detention once the agents received Mr. Jones’ driver’s license and did not return it to him. However, there were a number of facts available to the Missouri officers at the time they took Mr. Jones’s license that would have justified their objectively reasonable suspicion that Mr. Jones was engaged in criminal activity, warranting his detention for further investigation.

Fourth, he maintains that he did not consent to the Missouri officers’ entry into his home. There can be no doubt that Mr. Jones’s actions here—though nonverbal—could have been reasonably interpreted by the Missouri officers as communicating Mr. Jones’s consent to their accompanying him into his home.

Finally, because the Kansas search warrants for his home and car were based upon information improperly unearthed by the Missouri officers in violation of the Fourth Amendment, the evidence secured by the warrants is tainted and thus inadmissible. However, the Tenth Circuit already concluded that the Missouri officers’ lack of authority under Kansas law was of no import to the Fourth Amendment seizure analysis. Therefore, the evidence that the Missouri officers obtained during their investigation could properly form the basis for the warrants secured by the Kansas officers.



Tenth Circuit: Unpublished Opinions, 12/18/12

On Tuesday, December 18, 2012, the Tenth Circuit Court of Appeals issued two published opinions and eight unpublished opinions.

The Meadows at Buena Vista v. Arkansas Valley Publishing Company

United States v. Batts

United States v. Huerta-Cesareo

Kinney v. Blue Dot Services of Kansas

Kinney v. Department of Justice

United States v. Ciocchetti

Ramone v. Bravo

Myers v. Jackson

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.