August 23, 2019

Archives for June 12, 2015

Several Water Forms and One Criminal Form Revised in May

In May 2015, the Colorado State Judicial Branch issued several new forms, most of which were in the Water category. The forms are available here in PDF format or from State Judicial’s website in Word or PDF.


  • JDF 638 – “Rule 106.5 Complaint for Review of Quasi-Judicial Action of the CDOC” (revised 5/15)


  • JDF 241W – “Application for Simple Change in Surface Point of Diversion” (revised 5/15)
  • JDF 296W – “Application for Conditional/Absolute Water Rights (Surface)” (revised 5/15)
  • JDF 297W – “Application for Conditional/Absolute Water Storage Right” (revised 5/15)
  • JDF 298W – “Application for Conditional/Absolute Underground Water Right” (revised 5/15)
  • JDF 299W – “Application for Change of Water Right” (revised 5/15)
  • JDF 300W – “Application for Finding of Reasonable Diligence/To Make Absolute in Whole or in Part” (revised 5/15)
  • JDF 301W – “Application for Approval of Plan for Augmentation” (revised 5/15)

Additionally, the new JDF 622, “Proposed Case Management Order,” is now available, although it is not for use until July 1, 2015 and has a promulgation date of 07/15.

For all of State Judicial’s JDF forms, click here.

Tenth Circuit: Plaintiff Cannot Bring § 1983 Claim for Damages if it Renders Conviction Invalid

The Tenth Circuit Court of Appeals issued its opinion in Havens v. Johnson on Wednesday, April 15, 2015.

In January 2007, the Denver Metro Auto Theft Team Task Force planned a sting to arrest Darrell Havens, who had arranged to sell a stolen Audi in an alcove behind a Target store. Havens drove the Audi into the icy alcove, where officers surrounded him in other vehicles and on foot. Several vehicles rammed into the Audi from many directions. At one point, Officer Johnson, who was not in a vehicle, was directly in front of the Audi and fired shots at the driver, leaving him a paraplegic. Havens testified at deposition that he did not have control of the Audi after it was hit the first time and did not make any other maneuvers, but other officers testified the Audi was accelerating toward Officer Johnson and about to pin him against another vehicle when he fired the shots. Officer Johnson testified that he thought he was about to be crushed by the Audi, which was accelerating toward him, and fired into the windshield to stop the driver. Havens was left a quadriplegic after the shooting.

After the incident Havens was charged with multiple crimes. He pleaded guilty to attempted first-degree assault of Johnson, among other charges. At the plea hearing, the court insisted on a record that Havens admitted committing the crimes and was pleading guilty to them. His attorney said he had no recollection of the incident because of the serious injuries he suffered that night. The court then asked Havens if he knew what he was pleading guilty to and he said yes. Havens filed a motion for postconviction relief in state court, arguing that his plea was not knowing, intelligent, or voluntary. The state court denied the motion and the court of appeals affirmed. The Colorado Supreme Court denied certiorari. Havens then filed a § 1983 action against Johnson in federal district court, denying any wrongdoing by Havens and asserting the criminal prosecution was bogus. The district court granted summary judgment to Johnson, finding Havens failed to establish a prima facie case of excessive force and Johnson was entitled to qualified immunity. Johnson argued in the alternative that Havens’ guilty plea supported summary judgment on grounds of issue preclusion, judicial estoppel, and Heck, but the district court denied the other grounds.

The Tenth Circuit affirmed summary judgment on a different ground, finding that Heck required judgment for Johnson and that the Heck defense was properly before the Tenth Circuit because it had been raised and fully briefed below and he raised it again on appeal. Heck was a Supreme Court case where the Court ruled a plaintiff could not bring a § 1983 claim for damages if it rendered a criminal conviction invalid. In this case, Havens’ § 1983 claim asserted no wrongdoing on the part of Havens, instead attributing all fault to the officers. Havens’ version of the events could not sustain a conviction for attempted first-degree assault, and his theory of innocence is barred by Heck.

The Tenth Circuit acknowledged that Havens’ plea was a nolo contedere plea, not a typical guilty plea, but found the Heck doctrine survived by the existence of a valid conviction, not the mechanism by which that conviction was obtained. In a lengthy footnote, Judge Hartz related his concerns with the effect the nolo contendere plea would have on Johnson’s issue preclusion and judicial estoppel arguments, but this footnote was not joined by the rest of the panel.

The Tenth Circuit affirmed the district court’s summary judgment.

Tenth Circuit: Excluding Evidence Based on Search Shown Later to be Legal Exacts High Toll on Justice System

The Tenth Circuit Court of Appeals issued its opinion in United States v. Huff on Tuesday, April 14, 2015.

A vehicle stopped at an intersection over the median line, then backed up and stopped the vehicle correctly. Two Kansas City police officers witnessed the violation and initiated a traffic stop. The officers approached on either side of the vehicle, and the passenger-side officer spotted a handgun under the driver’s seat as he approached. The officers ordered the two men to put their hands on the dash, but the driver, Dana Huff, made movements toward the center console that led the officers to believe he was about to drive away. The passenger-side officer opened the door, reached into the car, and removed the keys from the ignition. He spotted another weapon, a sawed-off shotgun, when he opened the door. The officers removed the men from the vehicle and Huff was subsequently indicted on one count of being a felon in possession of a firearm and one count of possession of an unregistered short-barreled rifle.

At trial, Huff sought to suppress evidence of the firearms, arguing the officers lacked reasonable suspicion of criminal activity when searching his vehicle, and also arguing that they unlawfully arrested him without a warrant and without probable cause to believe he had committed a crime. The trial court held the initial stop to be lawful because of the moving violation, and held that the officer who removed the keys from the vehicle acted lawfully, but granted the motion to suppress the firearm evidence because at the time of the arrest the officers had found no evidence of a legal violation. The government moved to reconsider suppression, citing a Kansas City municipal ordinance that prohibits transporting uncased loaded weapons. The trial court granted the government’s motion and found the officers had probable cause for the arrest. A jury convicted Huff of being a felon in possession, but did not convict on the unregistered rifle count. Huff appealed.

The Tenth Circuit first considered whether the district court properly granted the government’s motion to reconsider. Huff argued the government provided no excuse for its failure to bring the municipal ordinance to the trial court’s attention, but the Tenth Circuit found it need not do so. The government’s motion for reconsideration related to an omission of a legal argument, not the failure to present evidence on a particular issue, so the trial court concluded there was no police misconduct to deter by suppressing the evidence. Revealing a circuit split on the issue of how district courts should handle motions to reconsider suppression orders, the Tenth Circuit found persuasive the reasoning of the Second, Fifth, Seventh, and Ninth Circuits, which do not require a bright-line justification rule. Citing Supreme Court precedent, the Tenth Circuit found that application of the exclusionary rule provides no meaningful deterrence when suppressed evidence later turns out to have been legally obtained, and instead exacts a high toll on the justice system by potentially allowing guilty defendants to go free.

The Tenth Circuit next evaluated Huff’s argument that the officers arrested him without probable cause. Huff contended that because the officer who reached into the vehicle and removed his keys did not specifically cite the municipal ordinance in his testimony, it seems unlikely that the officer’s action was based on that ordinance and therefore the officer lacked probable cause. Again following Supreme Court precedent, the Tenth Circuit found these arguments foreclosed, since an officer’s subjective reason for making an arrest may be different from the criminal offense from which probable cause arises. Upon seeing the uncased weapon, the officers in this case had probable cause to conduct a search of the vehicle and arrest Huff based on the weapons violation.

The Tenth Circuit affirmed the judgment of the district court.

Colorado Court of Appeals: Announcement Sheet, June 11, 2015

On Thursday, June 11, 2015, the Colorado Court of Appeals issued no published opinion and 32 unpublished opinions.

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

Tenth Circuit: Unpublished Opinions, 6/11/2015

On Thursday, June 11, 2015, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

Waugh v. Dow

Pappas v. United States

United States v. Bartholomew

Wakefield Kennedy, LLC v. State Capital Holdings, LLC

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