June 26, 2019

Archives for December 30, 2013

Colorado Court of Appeals: Parcel of Land Sold to School District Was Never a Park

The Colorado Court of Appeals issued its opinion in Friends of Denver Parks, Inc. v. City & County of Denver on Thursday, December 26, 2013.

City Land—Park—Common Law—Denver Charter § 2.4.5.

Defendant, the City and County of Denver (City), agreed to transfer a parcel of land (southern parcel) to a school district so that the district could build a school on it. Plaintiffs, an organization called Friends of Denver Parks, Inc. and several other interested parties, tried to file a referendum petition to repeal the ordinance transferring the southern parcel; however, the City’s Clerk and Recorder refused to accept the petition. Plaintiffs then filed a motion for a preliminary injunction to enjoin the City’s transfer of the southern parcel to the school district. The court denied both requests.

On appeal, plaintiffs argued that the trial court erred in denying their requested relief because (1) the City’s conduct over the years had dedicated the southern parcel as a park under the common law; and (2) the City’s charter requires that voters approve the transfer of a “park belonging to the city as of December 31, 1955.” The Court of Appeals disagreed on both counts.

Denver Charter § 2.4.5 sets forth the sole mechanism as of December 31, 1955 for creating parks and transferring parks. The City did not pass an ordinance dedicating the southern parcel as a park pursuant to § 2.4.5 after December 31, 1955. Additionally, the record did not clearly establish that the City, through its unambiguous actions, had demonstrated an unequivocal intent to dedicate the southern parcel as a park on or before December 31, 1955. Therefore, Denver Charter § 3.2.6 authorized the City to sell or transfer it without following the requirements of § 2.4.5, and the trial court did not abuse its discretion when it determined that plaintiffs did not establish a reasonable likelihood of success on the merits of this issue. The order was affirmed.

Summary and full case available here.

Tenth Circuit: Qualifed Immunity Denial Reversed Because No Constitutional Duty to Release Person Arrested Based on Probable Cause

The Tenth Circuit Court of Appeals published its opinion in Panagoulakos v. Yazzie on Friday, December 20, 2013.

Defendant Officer Patricia Yazzie appealed the district court’s denial of qualified immunity in this § 1983 action alleging wrongful arrest and imprisonment (Count I) and illegal seizure of property (Count II). This is an interlocutory appeal following the district court’s ruling in an action brought by Spero Panagoulakos pursuant to 42 U.S.C. §§ 1983 and 1988, and 28 U.S.C. § 1343.

An Albuquerque police officer pulled over Panagoulakos in a traffic stop. Panagoulakos informed the officer he had a firearm in the vehicle. The officer ran a check and learned Panagoulakos was the subject of a protective order. Officer Yazzie was called to the scene and instructed to take Panagoulakos to the station and confirm the protective order was valid and that it did not contain an exception to the prohibition on firearm possession claimed by Panagoulakos. Yazzie mistakenly believed all orders of protection prohibit firearms possession, but 18 U.S.C. § 922(g) prohibits such possession only when the subject is classified as an “intimate partner.” Yazzie prepared a criminal complaint and had Panagoulakos detained.

The Tenth Circuit stated that to show that Yazzie violated a clearly established constitutional right, Panagoulakos would need to “show that, even though probable cause supported his initial arrest, clearly established law gave fair warning to Officer Yazzie that following her review of the protective order it was her constitutional duty to release him.” Because the majority of courts had never imposed such a duty, the court, in a 2-1 decision, held that Yazzie was entitled to qualified immunity and reversed the district court.