July 21, 2019

Archives for October 24, 2018

Colorado Court of Appeals: Sovereign Immunity Under CGIA Waived for Injuries Suffered During Operation of Jail

The Colorado Court of Appeals issued its opinion in Hernandez v. City & County of Denver on Thursday, October 18, 2018.

Negligence—Willful and Wanton Conduct—Colorado Governmental Immunity Act—Public Employee—Waiver of Sovereign Immunity—Jail Operation.

Hernandez sustained injuries while a pretrial detainee at the Denver Detention Center. She sued six of the jail’s employees, including Deputy Sheriff Dodson, alleging, as relevant to this appeal, willful and wanton conduct. Following an evidentiary hearing pursuant to Trinity Broadcasting of Denver, Inc. v. City of Westminster, 848 P.2d 916 (Colo. 1993), and pursuant to C.R.C.P. 12(b)(1), the district court found that Dodson and another defendant had not engaged in willful and wanton conduct and therefore enjoyed immunity from suit on those allegations.

On appeal, Hernandez alleged that the district court erred in finding Dodson was entitled to immunity. The Colorado Governmental Immunity Act provides that a public employee may not assert immunity in an action for injuries resulting from the negligent operation of a jail, regardless of whether the employee engaged in willful and wanton conduct. Because the allegations of willful and wanton conduct here do not raise an issue of sovereign immunity, the district court erred in dismissing them before trial via Rule 12(b)(1) and a Trinity hearing.

The order was vacated and the case was remanded for further proceedings.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Collection Agency’s Bold and All-Caps Statement Would Be Confusing to Least Sophisticated Consumer

The Colorado Court of Appeals issued its opinion in Garrett v. Credit Bureau of Carbon County on Thursday, October 18, 2018.

Debt CollectionColorado Fair Debt Collection Practices ActLeast Sophisticated Consumer.

Credit Bureau of Carbon County (Credit Bureau) is an agency that collects or attempts to collect debts owed, due, or asserted to be owed or due to another. It sent Garrett two collection notices demanding payment on a consumer debt. Garrett sued Credit Bureau, asserting that the language of its communications overshadowed and contradicted the statutory requirements of the Colorado Fair Debt Collection Practices Act (the Act). The district court concluded that Credit Bureau’s notices had not violated the Act and denied Garrett’s motion for judgment on the pleadings, granted Credit Bureau’s motion for summary judgment, and dismissed the case.

On appeal, Garrett contended that the district court wrongly concluded that Credit Bureau did not violate the Act because the format and content of Credit Bureau’s notices overshadowed or contradicted the statutorily required disclosures. The Act requires debt collectors to provide a debt validation notice describing the debt. It prohibits debt collectors from using false, deceptive, or misleading representations when collecting a debt. Overshadowing occurs when a collection letter contains the requisite validation notice, but that information is obscured or diminished by the letter’s presentation or format. Contradiction occurs when language accompanying the validation notice is inconsistent with the substance of the rights and duties that the statute imposes. In Flood v. Mercantile Adjustment Bureau, LLC, 176 P.3d 769 (Colo. 2008), the Supreme Court adopted the “least sophisticated consumer” test to determine whether a collection agency’s notice was confusing with respect to the statutorily required disclosures. Here, Credit Bureau’s use of the bold and capitalized phrase “WE CANNOT HELP YOU UNLESS YOU CALL” in the second notice would confuse the least sophisticated consumer because it was capable of being reasonably interpreted as changing the manner in which the consumer was required by law to dispute the debt or its amount. As a matter of law, the notice was deceptive or misleading in violation of the Act.

The judgment was reversed and the case was remanded for the district court to enter judgment for Garrett and award her statutory damages, costs, and a reasonable amount of attorney fees incurred on appeal.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Statutes Limiting Sale, Transfer, and Possession of Large-Capacity Magazines Facially Constitutional

The Colorado Court of Appeals issued its opinion in Rocky Mountain Gun Owners v. Hickenlooper on Thursday, October 18, 2018.

Constitutional Law—Large-Capacity Magazines—Colorado Constitution—Right to Keep and Bear Arms.

In the wake of the mass shootings at Columbine High School and the Aurora movie theatre, the Colorado General Assembly passed House Bills 13-1224 (HB 1224), limiting large-capacity magazines (LCMs) for firearms, and 13-1229 (HB 1229), expanding mandatory background checks for firearm sales and transfers. HB 1224 added C.R.S.§§ 18-12-301, -302, and -303 (collectively, the statutes), which generally define an LCM as a magazine able to hold more than 15 rounds of ammunition and provide (with exceptions) criminal penalties for their sale, possession, and transfer after July 1, 2013.

Rocky Mountain Gun Owners, the National Association for Gun Rights, Inc., and Sternberg (collectively, plaintiffs) challenged the facial constitutionality of both bills under Colo. Const. art. II, § 13, which affords individuals the right to keep and bear arms. The district court granted the Governor’s C.R.C.P. 12(b)(5) motion to dismiss the complaint for failure to state a claim upon which relief could be granted. On the first appeal, a court of appeals division affirmed with respect to HB 1229, but remanded the case because the district court had erred in dismissing the HB 1224 claim. After a bench trial, the district court found that the statutes were constitutional.

On appeal, plaintiffs contended that the district court erred in finding the statutes constitutional. They argued that the prospective LCM ban should be subject to a heightened standard of review. The Colorado Supreme Court established the “reasonable exercise test” as the standard governing review of a claimed violation of the Colorado right to bear arms.

Plaintiffs also contended that the statutes should be interpreted as unconstitutionally broad because they ban “an overwhelming majority of magazines.” The court applied the reasonable exercise test and determined that the statutes are constitutional as a reasonable exercise of the state’s police power to protect the public’s health and safety because they (1) reasonably further a legitimate governmental interest in reducing mass shooting deaths; (2) are reasonably related to the legislative purpose of reducing mass shooting deaths; and (3) do not sweep constitutionally protected activities within their reach.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 10/23/2018

On Tuesday, October 23, 2018, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

United States v. Alderete

United States v. Morris

United States v. Ejiofor

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