July 22, 2019

Archives for December 31, 2014

Chuck Turner to Receive Colorado Bar Association’s Award of Merit

chuck turner 300Charles C. Turner will be presented with the Colorado Bar Association’s highest honor, the Award of Merit, at the Colorado Bar Foundation’s Annual Bar Fellows Dinner on Friday, Jan. 9, 2015.

Turner will step down from his position as Executive Director of the Colorado and Denver Bar Associations effective Jan. 1, after 34 years of service.  Turner was the youngest executive director in the country when selected to the post in 1980.

“I’ve been honored to serve in this capacity with an outstanding staff and dedicated leadership and members,” Turner says. “Every day has been an adventure with both internal and external considerations to deal with, but I never, ever regretted my choice of career and feel blessed to have had the chance to have a small hand in the success of our Associations and our loyal members. To be named alongside the previous award recipients is simply overwhelming.”

The five most recent recipients of the Award of Merit – Bennett Aisenberg, Michael Berger, Gary Jackson, Constance Talmage and Anthony van Westrum – came together to write a nomination letter in support of Turner. They cited his impressive service and contributions to the legal profession, to the administration of justice, and to the community. It was noted that Turner went far above and beyond for three and a half decades, turning it into much more than “just a job.” His extra elements of service, delivered “with a devotion and positive effectiveness,” make him especially deserving of this honor.

“Chuck has done it all and has done it for thirty four years,” CBA President Charles Garcia says. “We all are indebted to him and this is a token of our gratitude for all he has done for the association and each of us individually as members.”

The Award of Merit, the association’s highest honor, is given annually to a member for outstanding service to the association, the legal profession, the administration of justice and the community. Turner and CBA Young Lawyers Division’s Gary L. McPherson Outstanding Young Lawyer of the Year Award recipient Ryann Peyton will be honored at the Colorado Bar Foundation’s Annual Bar Fellows Dinner on Friday, Jan. 9, at the Hyatt Regency Denver.

Tenth Circuit: Published Concurrence Condemns Police Abuse of Children Under Color of Sovereign Immunity

The Tenth Circuit Court of Appeals published Judge Lucero’s concurrence in Hawker v. Sandy City Corp. on Friday, December 5, 2014.

The Tenth Circuit issued its opinion in Hawker v. Sandy City Corp. as an unpublished opinion. The facts of the case were that C.G.H., a 9-year-old boy, stole an iPad from a classmate. His grandmother, who was his legal guardian, found the iPad and asked C.G.H. to return it. When he was returning it, school officials caught him with the iPad and took it from him. He was upset, and school officials forcibly restrained him and called his grandmother and the police. C.G.H. began to calm down as his grandmother spoke to him, but then the police arrived and placed the child in a forcible twist-and-lock restraint and handcuffed him as he cried, “you’re hurting me!” The grandmother took him to the doctor later that day, where he was treated for a hairline fracture to his clavicle (collarbone). In addition to the fracture, C.G.H. suffered post-traumatic stress and anxiety from this experience. The grandmother brought suit on his behalf under 42 U.S.C. § 1983 against the officer and the city, but the district court granted summary judgment on qualified immunity grounds. The Tenth Circuit reluctantly upheld the summary judgment.

Tenth Circuit Judge Lucero wrote a separate concurrence, which was published. Judge Lucero concurred with the findings of the panel, since they followed the law, but disagreed with the state of the law that allows a 9-year-old boy to be treated so forcibly. Judge Lucero writes, “It is time for a change in our jurisprudence that would deal with petty crimes by minors in a more enlightened fashion and would not automatically extend qualified immunity for conduct such as occurred in this case.” The potential future consequences for this child and society at large are great; the child is now branded a criminal and no doubt has lost all faith in the criminal justice system. And although it would be ideal if this were an isolated incident, it is not. School districts across the country are adopting swift punishment for such childish behavior, and children as young as six are handcuffed and treated as criminals.

Judge Lucero condemns the “school-to-prison pipeline” and the myriad negative consequences created by treating children as criminals. Without the benefit of an education free from duress, children are unlikely to succeed in life, and end up populating already overcrowded prisons. Instead of swift punishment, the school’s aim should be to realign the child away from criminal behavior and encourage the pursuit of a productive and educated life. As Judge Lucero says in closing, “We should change course and instead leave it to the factfinder to determine whether the handcuffing of six- to nine-year-old children is excessive force rather than giving schools and police a bye by holding them immune from liability. A more enlightened approach to elementary school discipline by educators, police, and courts will enhance productive lives and help break the school-to-prison chain.”

Tenth Circuit: Attorney’s Failure to Appear at Rescheduled Hearing Justified Finding of Contempt

The Tenth Circuit Court of Appeals issued its opinion in United States v. Hernandez on Friday, November 14, 2014.

Miguel Ramon Velasco was Adrian Hernandez’s criminal attorney. In the criminal proceeding, Hernandez pleaded guilty to two counts of an indictment charging conspiracy to distribute a controlled substance. On the day before a scheduled hearing to change his client’s plea, Velasco filed a motion for continuance, citing a problem with his computer. The court granted the continuance and the hearing was rescheduled for a date two months later. Again, the day before the hearing, Velasco filed a motion to continue. The court granted the motion but admonished Velasco that no more continuances would be granted. The parties agreed on August 7, 2013, for the hearing date.

Ten days before the third hearing date, Velasco again filed a motion to continue, citing a family vacation that could not be postponed due to his children’s school schedules. Velasco asserted that his client would not agree to substitute counsel. The court did not grant the continuance, and substitute counsel appeared at the hearing, to which Hernandez objected. Substitute counsel made an oral motion for continuance, and the court, recognizing the prejudice to Hernandez if a continuance was not granted, agreed. The court directed Velasco to show cause why he should not be held in contempt of court. At the show cause hearing, the court discovered that Velasco had knowingly made vacation plans after agreeing upon the hearing date. The court held Velasco in contempt and imposed a $2,000 fine. The following day, Velasco filed a motion to reconsider, citing the fact that his client’s brother had agreed to substitute counsel, but not explaining why the brother had any authority to so agree. The court entered an opinion and order reaffirming its finding of contempt, and Velasco appealed.

Velasco asserted five points of error, each generally arguing that the court erred by employing the summary contempt procedures in F.R.C.P. 42(b) for direct contempt rather than the full notice-and-hearing procedures from F.R.C.P. 42(a) for indirect contempt. Velasco contended that review should be conducted for abuse of discretion. However, since he did not properly raise his objections in the lower court, the Tenth Circuit reviewed for plain error and found none. Under a plain error review, the court must find that (1) there was error, (2) that was plain, and (3) the plain error affected his substantial rights. If these three criteria are met, the court may act to correct the error if it seriously affects the fairness or integrity of the proceedings. The Tenth Circuit found that Velasco’s arguments failed at the second step because it is not plain that his contempt was direct. The Tenth Circuit briefly explained the differences between direct contempt and indirect contempt, and found that it was plain to the trial judge and to the Tenth Circuit that his planned vacation was directly subversive of the court’s previous ruling.

The contempt order and fine were affirmed.

Tenth Circuit: Unpublished Opinions, 12/30/2014

On Tuesday, December 30, 2014, the Tenth Circuit Court of Appeals issued three published opinions and five unpublished opinions.

Abbo v. State of Wyoming

Perez-Leeds v. Colvin

United States v. Reed

Barron-Ordaz v. Holder

Colburn v. Jones

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.