July 17, 2019

Colorado Court of Appeals: Plain Language of Statute Grants Immunity from Suit to Provider of Services for Developmentally Disabled Adult

The Colorado Court of Appeals issued its opinion in McLaughlin v. Oxley on July 5, 2012.

Negligence—CRS § 13-21-117.5—Immunity.

Defendants Christopher Oxley, Ricardo Sison, and Ability Specialists, Inc. (Ability) appealed the trial court’s holding that they were not immune from the suit brought by plaintiffs Brandon McLaughlin, Michael McLaughlin, and Selena McLaughlin. The Court of Appeals reversed the trial court’s order and the case was remanded with directions.

Michael and Selena McLaughlin retained Ability to provide services to assist in the care of their developmentally disabled son, Brandon, who at the time was 21 years old. As part of the services, Oxley, an employee of Ability, was supervising Brandon at Oxley’s home, while Oxley’s own 7-year-old son, B.O., was present. Brandon and B.O. were left unattended together, during which time Brandon put B.O. in a “spanking position,” pulled down B.O.’s pants, and kissed him. Oxley informed his superiors, who called the police to investigate. The police charged Brandon with sexual assault on a child. The criminal case was dismissed after Brandon was found incompetent to proceed.

Plaintiffs later sued defendants, alleging negligence against Oxley and Ability. Defendants moved for summary judgment on all claims, arguing they were immune from liability under CRS §§ 13-21-117.5(4) and (6). The trial court denied the motion and defendants appealed.

CRS § 13-21-117.5 was enacted to “mitigate the risk of liability to providers to the developmentally disabled to the extent that such mitigation is reasonable and possible.” The Court agreed with defendants that the trial court erred in finding that § 13-21-117.5(6) did not apply. The trial court reasoned that the section applied only to immunize a provider against civil actions initiated by a victim of a developmentally disabled person’s assaultive behavior and not, as here, to a suit regarding harm to the developmentally disabled person. The Court found no support for such an interpretation of the statute. The order was reversed and the case was remanded for entry of summary judgment in favor of defendants.

Summary and full case available here.

Local Case and Attorneys at the Supreme Court: Cheney’s Secret Service Agents Entitled to Qualified Immunity

It isn’t often that a case rooted in Colorado reaches the U.S. Supreme Court, but on June 4, 2012, the Supreme Court announced its decision in a case with deep Colorado connections, Reichle v. Howards. The facts of the case occurred in Beaver Creek, Colorado, and the respondent, Golden resident Steven Howards, was represented by Denver attorney David Lane of Kilmer Lane & Newman LLP, while the petitioner Secret Service agents were represented by Denver lawyer Sean Gallagher of Polsinelli Shughart, PC.

The case involved Howards, who confronted Vice President Cheney at a 2006 event at a mall in Beaver Creek. According to the Court’s opinion, Howards entered the line to meet Cheney, made critical remarks regarding the administration’s policies in Iraq, and touched Cheney on the shoulder before leaving (something Howards later denied to Secret Service agents). Howards was arrested by Secret Service agents Gus Reichle and Dan Doyle. He was charged with harassment, but the charges were later dropped. Howards then brought suit against the agents, claiming that he had been arrested without probable cause, a violation of the Fourth Amendment, and in retaliation for his comments to Vice President Cheney, a violation of the First Amendment.

The Court granted certiorari on the questions of (1) whether a First Amendment retaliatory arrest claim could be brought where the arrest was supported by probable cause and (2) whether there was clearly established law at the time of Howards’s arrest as to the first question. The Court only addressed the second question, and found that the law was not clearly established at the time of the arrest, entitling the agents to qualified immunity.

Lane summarized his thoughts on the ruling in a statement to the Associated Press, “‘They broke absolutely no legal ground while managing to duck every significant issue in the case.’” However, Gallagher saw the decision differently: “‘This ruling confirms that the federal courts will not subject law enforcement officials to personal liability except when it is absolutely clear that they have no basis to make the arrest.’” While it remains an open question whether a First Amendment retaliatory arrest claim can be brought where the arrest is supported by probable cause, this case was certainly fascinating for the facts and issues involved, as well as its connections to Colorado and two of Denver’s prominent attorneys.

Tenth Circuit: Claim for Suspension and Withdrawal of Air Traffic Control Specialist Certificate Not Barred by Feres Doctrine

The Tenth Circuit Court of Appeals published its opinion in Newton v. Lee on Tuesday, April 24, 2012.

The Tenth Circuit affirmed in part and declined to exercise jurisdiction in an interlocutory appeal. Petitioner alleges that two officers of the Utah Air National Guard violated his due process rights when they suspended and subsequently withdrew his Air Traffic Control Specialist (ATCS) certificate, and when they suspended his employment as an Air Traffic Control Supervisor at Hill Air Force Base in Utah. The district court granted summary judgment to Respondents on Petitioner’s due process claim regarding the suspension of his employment. However, it denied summary judgment on his due process claim regarding the withdrawal of his ATCS certificate, holding this claim is not barred by qualified immunity or by intramilitary immunity under the Feres doctrine.

In this interlocutory appeal, Respondents challenge the denial of qualified immunity and intramilitary immunity on Petitioner’s ATCS certificate claim. Petitioner cross-appeals the grant of summary judgment on his employment claim. The Court held that Petitioner’s ATCS certificate is not barred by the Feres doctrine, and that it had no jurisdiction over the interlocutory appeal from the denial of qualified immunity to Respondents. The Court also declined to exercise pendent jurisdiction over Petitioner’s cross-appeal.

HB 12-1244: Requiring the Department of Local Affairs to Develop an Inventory of Local Governments

On February 7, 2012, Rep. Ray Scott and Sen. Joyce Foster introduced HB 12-1244 – Concerning an Inventory of Local Governmental Entities Maintained by the Department of Local Affairs and, in Connection Therewith, Requiring the Inclusion of Certain Information in the Inventory. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill requires the department of local affairs to update its on-line inventory of local governmental entities with certain information, including information about local governmental entity agents authorized to receive notices of claims under the “Colorado Governmental Immunity Act.”

Filing a notice of a claim arising under the act with a person listed as an agent in the inventory is deemed to satisfy requirements for filing such notice. Service to the most recently listed registered agent is deemed valid if the local governmental entity failed to timely update its registered agent information. The bill passed out of the House on February 28 and is assigned to the Local Government Committee. Committee review is scheduled for Tuesday, March 20 at 2 p.m.

Summaries of other featured bills can be found here.

Colorado Supreme Court: Trial Court Must Decide Before Trial if Party Is Immune from Suit Pursuant to Aviation and Transportation Security Act

The Colorado Supreme Court issued its opinion in Air Wisconsin Airlines Corp. v. Hoeper on March 19, 2012.

Defamation—Statutory Immunity—Actual Malice.

The Supreme Court affirmed the court of appeals’ judgment and held that a trial court must decide before trial if a party is immune from suit pursuant to the Aviation and Transportation Security Act (ATSA), 49 U.S.C. § 44941. The Court held that (1) Air Wisconsin Airlines Corporation was not immune from suit for defamation under the ATSA; (2) the record showed clear and convincing evidence to support a finding of actual malice; (3) Air Wisconsin’s statements were not protected as opinion; and (4) the evidence was sufficient to support the jury’s determination that the statements were false.

Summary and full case available here.

Report from the ABA House of Delegates Meetings at the 2012 Midyear Meeting in New Orleans

I have the privilege of serving the Denver Bar Association as a delegate to the American Bar Association (“ABA”) House of Delegates.  The ABA House of Delegates met at the ABA’s midyear meeting held in New Orleans, Louisiana, on February 6, 2012.  This Article summarizes the House of Delegates events at the midyear meeting and the action taken by the House.

The Midyear Meeting was very well-attended.  It had the best reported attendance on record.  The ABA sponsored numerous programs on issues such as the Ethics 20/20 commission, the state court funding crisis, and efforts to improve access to justice.  There were many important issues addressed by the House of Delegates at the midyear meeting.  This Article summarizes a few of them.

Ethics 20/20 Commission’s White Papers and Proposals Relating to the Ethics of Litigation Financing, Non-Lawyer Ownership of Law Firms, Outsourcing, and the Use of Technology of Mobile Devices

Before the House of Delegates convened, the Ethics 20/20 Commission sent information around to the delegates regarding the work of the Commission and its proposals.  Specifically, the Commission informed the delegates of its plan to bifurcate its presentation of proposals to help facilitate the House of Delegates’ consideration of the Commission’s recommendations.  The decision to bifurcate the presentation of proposals foretells a concern that some of the Commission’s proposals will be controversial and will generate much discussion and debate.

Indeed, from the preview that the Commission has provided, some of the issues that the Commission will put before the House will generate much discussion.  The Commission has produced white papers that discuss many of the complex ethical issues that cannot effectively be addressed through changes to Model Rules.  Specifically, one of the Commission’s white papers discusses ethical issues involved with litigation financing, including issues regarding conflicts of interest, a lawyer’s duty of confidentiality, the attorney-client privilege, and rules regulating the exercise of the lawyer’s independent judgment.  The Commission’ white paper can be found by clicking here.

The Commission also is working on proposals relating to alternative business structures for law firms, outsourcing of legal services and confidentiality-related ethics issues arising from lawyers’ use of technology. Additionally, the Commission also is working on a model rule relating to lawyers’ obligations to retain client files.  An issues paper regarding alternative business structures for law firms – including non-lawyer ownership of law firms – has been distributed by the Commission.  It can be found by clicking here.

During the House of Delegates meeting, Former ABA President Carolyn B. Lamm addressed the House about the Commission’s progress.  President Lamm explained that numerous various roundtable sessions and meetings have been held around the country.  She explained that formal recommendations will be presented at the annual meeting in 2012 and at the midyear meeting in 2013.  President Lamm explained that one of the Commission’s more controversial issues is whether non-lawyers should be allowed under legal ethics rules to have a limited ownership interest in law firms in the United States.  This issue has been discussed extensively in Colorado previously.

President Lamm explained that the Commission is considering other issues relating to the need to balance the convenience and efficiencies inherent in a lawyer’s use of new technologies, while also preserving the lawyer-client relationship, confidentiality, competence and the values of the profession.  President Lamm explained that the Commission plans in presenting proposals on each of these issues for consideration by the House of Delegates.  All interested members of the Bar should get in touch with me or other Colorado delegates to discuss any concerns about any of the issues that are being considered by the Ethics 20/20 Commission, or the proposals that are likely coming from the Commission.

Summary of the House of Delegates

After the House of Delegates convened on February 6, 2012, the Delegates were greeted by Mitchell Landrieu, the Mayor of New Orleans, who also is a lawyer.  Mayor Landrieu talked about the challenges that the city has been through in recent years, with Hurricanes Katrina and Rita, and the BP oil spill.  Mayor Landrieu quipped that the city is “waiting for locusts now.”  Mayor Landrieu’s speech was interesting and insightful, explaining that New Orleans is truly resilient and has become the “a laboratory for innovation and change,” because of the disasters it has suffered.  Mayor Landrieu’s speech was an excellent way to kick-off the work of the House.

After the Mayor’s speech and some other introductory actions, the House got to work debating and voting on resolutions before the House.  The House adopted a number of important resolutions, including:

  • Resolution 101A, which adopted the black letter ABA Criminal Justice Standards on Law Enforcement Access to Third Party which provide a framework through which legislatures, courts acting in their supervisory capacity and administrative agencies can balance the needs of law enforcement and the interests of privacy, freedom of expression and social participation.
  • Resolution 101B, which urged governments at various levels to require laboratories producing reports for use in criminal trials to adopt pretrial discovery procedures requiring comprehensive and comprehensible laboratory and forensic science reports, and listed relevant factors to be included in such reports.
  • Resolution 101C, which urged trial judges who have decided to admit expert testimony to consider a number of factors in determining the manner in which that evidence should be presented to the jury, and also provided guidance about how to instruct the jury in its evaluation of expert scientific testimony in criminal and delinquency proceedings.
  • Resolution 101F, which supported legislation, policies and practices that allow equal and uniform access to therapeutic courts and problem-solving sentencing alternatives, such as drug treatment and anger management counseling, regardless of the custody or detention status of the individual.
  • Resolution 113, which called for adoption as ABA policy uniform standards for language access in courts.  The policy provides clear guidance to courts in designing, implementing, and enforcing a comprehensive system of language access services that is suited to the need in the communities they serve.
  • Resolution 102B, which approved the Uniform Electronic Legal Material Act promulgated by the National Conference of Commissioners on Uniform State Laws in 2011, as an appropriate Act for those states desiring to adopt the specific substantive law suggested therein.  The Uniform Act provides rules for the authentication and preservation of electronic legal material.
  • Resolution 108, which urged state and territorial bar admission authorities to adopt rules and procedures to accommodate the unique needs of military spouse attorneys who move frequently in support of the nation’s defenses.
  • Resolution 111, which urged entities that administer a law school admission test to provide appropriate accommodations for a test taker with a disability to best ensure the exam reflects what the test is designed to measure and not the test taker’s disability.
  • Resolution 302, which supported the principle that “private” lawyers representing governmental entities are entitled to claim the same qualified immunity provided “government” lawyers when they are acting “under color of state law.”  This issue is particularly important given that there is a pending case before the United States Supreme Court considering this question.  See Filarsky v. Delia, U.S. No. 10-1018, argued 1/17/2012.

A summary of the resolutions adopted by the House can be found by clicking here.  Additionally, I can provide a copy of the resolutions to any interested reader. Contact me if interested.

Statement from President Robinson

In addition to this important work, the House of Delegates heard from Bill Robinson, President of the ABA.  President Robinson explained that the most pressing issue facing the legal system today is under-funding of the courts, which is at a crisis level.  President Robinson urged all ABA members to consider the under-funding crisis to be a threat to our liberty and rule of law.  President Robinson explained the ABA’s efforts to combat this crisis, including its extensive education efforts and its efforts to increase public awareness about the crisis.  Additionally, the ABA has made the crisis the core of the law day events, which will focus on the theme: “No Courts, No Justice, No Freedom.”

Nomination of James Silkenat as President-Elect

Additionally, the nominating committee announced that James Silkenat of New York was nominated to be President-Elect Designee of the ABA.  The House of Delegates will vote on his nomination at the Annual Meeting in Chicago this August.  If elected, Mr. Silkenat will serve a one-year term as President beginning in August, 2013.  All members of the Bar are urged to give any input on Mr. Silkenat to me or any of the other Colorado delegates.

Other Matters

Finally, the House of Delegates also considered other matters.  Those other matters included a report from the ABA’s Executive Director, Jack Rives, and a report from the ABA’s treasurer.  The House also heard from Chief Judge Washington, who is the President of the Conference of Chief Justices.  Chief Judge Washington spoke about language access to the courts.  He also discussed the core focuses of the Conference, which are judicial independence and civics education.


I hope this Article sufficiently highlighted many of the more interesting or important the agenda items considered by the House of Delegates at the midyear meeting in New Orleans.  I appreciate all input that any members of the Denver Bar Association have regarding any of the issues that have been considered, or will be considered, by the ABA House of Delegates.

The American Bar Association is offering a free trial membership in the ABA and in a section of the ABA. Sign up here.

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Tenth Circuit: Decedent’s Right to Be Free from Forceful Takedown Was Clearly Established; Officer Not Entitled to Qualified Immunity

The Tenth Circuit Court of Appeals published its opinion in Morris v. Noe on Monday, February 27, 2012.

The Tenth Circuit affirmed the district court’s decision. Respondent brought a § 1983 action for unlawful arrest and excessive force on behalf of her deceased husband against Petitioner police officer. She alleges Petitioner violated her husband’s clearly established rights when the officer forceably arrested decedent and caused him injury. Petitioner moved for summary judgment based on qualified immunity, and the district court denied his motion. Petitioner now appeals.

The Court found that the officer “had reason to believe that [decedent] was, at most, a misdemeanant. But [the decedent] posed no threat to [the officer] or others, nor did he resist or flee. Thus, based on the facts assumed by the district court, [the decedent]’s right to be free from a forceful takedown was clearly established,” and Petitioner is not entitled to qualified immunity.

Tenth Circuit: Officers Lacked Reasonable Suspicion and Probable Cause to Detain and Arrest; Qualified Immunity Properly Denied

The Tenth Circuit Court of Appeals published its opinion in Romero v. Story on Thursday, February 23, 2012.

The Tenth Circuit affirmed in part and reversed in part the district court’s decision. Respondent brought suit against Petitioner law enforcement officers, alleging unlawful arrest and excessive force. The district court denied Petitioners’ claim to qualified immunity in the context of summary judgment, and they appealed.

The Court concluded that Petitioners lacked reasonable suspicion to detain Respondent for the vandalism and lacked probable cause to arrest Respondent for flight or evasion, “thereby violating [Respondent]’s constitutional right to be free from unlawful arrest. The district court, therefore, properly denied Petitioners’ motion for qualified immunity. However, the district court did not evaluate whether the force was excessive, and so the Court vacated the denial of qualified immunity as to Respondent’s excessive force claim and remanded to the district court to evaluate the excessive force claim separate and independent from the unlawful arrest claim.

Colorado Court of Appeals: Bad Faith Breach of Insurance Contract by Public Entity and the Colorado Governmental Immunity Act

The Colorado Court of Appeals issued its opinion in Colorado Special Districts Property and Liability Pool v. Lyons III on February 2, 2012.

Bad-Faith Breach of Insurance Contract—Public Entity—Colorado Governmental Immunity Act—Tort—Discovery—Attorney Fees

Defendants William S. Lyons, Jr. and William S. Lyons III (collectively, Lyonses) appealed the district court’s order, pursuant to C.R.C.P. 12(b)(1), dismissing their claim for bad-faith breach of insurance contract against plaintiff Colorado Special Districts Property and Liability Pool (Pool) and third-party defendant County Technical Services, Inc. (CTSI), on the ground that the Pool and CTSI are immune from liability under the Colorado Governmental Immunity Act (CGIA). The order was affirmed and the case was remanded with directions.

In early 2006, several banks purchased bonds issued by Lincoln Creek Metropolitan District (District), a quasi-municipal corporation in Douglas County. The District issued the bonds to finance construction of a proposed master-planned residential community called Lincoln Creek Village. The Lyonses were members of the District’s board of directors and LCV, LLC, the developer’s board of directors. The banks brought an action (the underlying lawsuit) against LCV and the Lyonses, alleging claims for damages arising from the offering and sale of the bonds issued by the District. The Pool claimed it had no duty to defend or indemnify the Lyonses in the underlying lawsuit because the Lyonses were not covered under the insurance policy and the banks in the underlying lawsuit did not name the District as a defendant or sue the Lyonses in their capacity as members of the District’s board of directors. The trial court found that the Pool and CTSI were both “public entities” and, therefore, immune under the CGIA. It dismissed the Lyonses’ bad-faith claim against these entities.

The Lyonses contended that the district court erred in dismissing their claim for bad-faith breach of insurance contract under the CGIA. The CGIA provides a public entity the defense of sovereign immunity against actions for tort injuries and does not apply to actions grounded in contract. Here, the Lyonses’ bad faith breach of contract claim against the Pool and CTSI was a tort claim that existed independently of the Lyonses’ underlying contract claim against the Pool. Accordingly, the district court did not err in concluding that the CGIA applied to that claim.

The Lyonses next contended that the district court erred in determining that CTSI was a “public entity” within the meaning of the CGIA and, therefore, not immune under the CGIA. The definition of “public entity” includes any “separate entity created by intergovernmental contract or cooperation” composed only of entities that are themselves public entities under the statutory definition. Here, the Pool is a “separate entity created by intergovernmental contract or cooperation” among special districts. Because CTSI is a public corporation, is governmental in nature, and serves as an intermediary to the Pool, CTSI is an “instrumentality” of the Pool and, thus, a “public entity” under the CGIA. CTSI also is a public entity under CRS § 24-10-103(5) because, like the Pool, it is a separate entity created by intergovernmental cooperation between or among other public entities.

The Lyonses next contended that the district court abused its discretion by implicitly rejecting their request to conduct discovery on whether the Pool and CTSI waived their immunity. However, by their own admission, the Lyonses chose not to conduct discovery on the immunity issue because of a perceived need to maintain consistency between their positions in this case and the underlying lawsuit.

Finally, the Pool and CTSI requested an award of attorney fees for defending against the Lyonses’ bad faith claim on appeal. CTSI was entitled to its attorney fees on appeal because the only claim asserted against it was dismissed before trial under C.R.C.P. 12(b)(1). The Pool, however, was not entitled to attorney fees on appeal because the Lyonses’ breach of contract claim was stayed in the district court and had not been dismissed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on February 2, 2012, can be found here.

Tenth Circuit: Eleventh Amendment Protects State from Suit for Money Damages under ADA when State Revoked Medical License for Public Safety

The Tenth Circuit Court of Appeals published its opinion in Guttman v. Khalsa on Wednesday, January 11, 2012.

The Tenth Circuit affirmed in part and reversed in part the district court’s decision. Petitioner is a physician with a history of depression and posttraumatic stress disorder. At the time he brought this case, he was practicing medicine in New Mexico. The Board of Medical Examiners summarily suspended Petitioner’s license after finding clear and convincing evidence that “[Petitioner]’s continuation in practice would constitute an imminent danger to public safety.” Later, “after recognizing an extensive pattern of disruptive and abusive behavior by [Petitioner] in dealing with patients and healthcare professionals, the Board revoked his license. The Board also found that further treatment of his mental health problems was unlikely to succeed, and that [Petitioner]’s inability to interact professionally with others posed a danger to his patients.”

Petitioner challenged the Board’s findings in state court, asserting for the first time that the Board’s actions violated Title II of the ADA. Because Petitioner had not raised an ADA claim before the Board, the state court refused to consider it and affirmed the revocation of his license. Petitioner also filed a pro se complaint in federal district court against New Mexico and two individuals: the Board’s administrative prosecutor and the Board’s hearing officer. The district court granted the Respondents’ motion for summary judgment after finding that the individual defendants were entitled to absolute immunity.

“The question presented in this appeal is whether the Eleventh Amendment protects New Mexico from a suit for money damages under Title II of the Americans With Disabilities Act (ADA).” The Court concluded that it does. “New Mexico has state sovereign immunity from a claim that it violated the ADA when it revoked the medical license of a physician whose practice the state claimed constituted an imminent danger to the public. As a result, [the Court] found the district court did not err by dismissing the ADA claim of [Petitioner] against the State of New Mexico for revoking his medical license. [The Court also concluded that] the state’s actions did not violate the United States Constitution.” However, Petitioner may still have extant claims for prospective injunctive relief.

Colorado Court of Appeals: Placing Foster Children In Unsafe Home is Violation of Children’s Constitutional Rights; Officials Not Entitled to Qualified Immunity

The Colorado Court of Appeals issued its opinion in Shirk v. Forsmark on January 5, 2012.

Adoption—Department of Social Services—42 U.S.C. § 1983—Abuse—Injuries—Foster Care—Qualified Immunity.

Defendants Joan Forsmark, Cathy O’Donnell, and Angela Lytle, who are all employees of the Adams County Department of Social Services (Department), sought review of the trial court’s orders denying their motions for summary judgment, which asserted qualified immunity for their discretionary decisions as government officials regarding claims arising from the placement and adoption of foster children. The orders were affirmed.

Plaintiffs Michael and Joanna Shirk filed this action individually and on behalf of their adopted children, B.N.S., R.T.S., and B.K.S., who were in the Department’s custody from approximately August 2000 through their adoption in August 2003. The case from which this interlocutory appeal arises involves 42 U.S.C. § 1983 claims on behalf of children for injuries suffered in connection with their foster care placement and adoption.

Defendants contended that because their conduct did not constitute a violation of a clearly established constitutional right, the trial court erred in denying them qualified immunity. Children in the state’s legal custody have a clearly established “constitutional right to be reasonably safe from harm; and that if the persons responsible place children in a foster home or institution that they know or suspect to be dangerous to the children they incur liability if the harm occurs.” Here, plaintiffs alleged that Forsmark placed the children in an obviously dangerous foster home because (1) there were previous reports of abuse at that home; (2) the previous foster mother, Penny Staley, had been placed on the central registry for child abuse; (3) two of Staley’s adoptive children were reported for sexually abusing other children; (4) Forsmark and O’Donnell ignored many signs of ongoing sexual abuse while the children were at the Staley home; and (5) defendants failed to disclose to the Shirks the abuse, including incestuous behavior between the children. Because plaintiffs alleged conduct violated the constitutional rights of B.N.S., R.T.S. and B.K.S, defendants were not entitled to summary judgment based on qualified immunity.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on January 5, 2012, can be found here.

Tenth Circuit: District Court Wrongly Analyzed Issues of Officer Immunity; Exigent Circumstances and Probable Cause Justified Officer Actions

The Tenth Circuit Court of Appeals issued its opinion in Kerns v. Bader on Tuesday, December 20, 2011.

The Tenth Circuit reversed the district court’s decision. Petitioner was an initial suspect in the downing of a police helicopter by a sniper. During their investigation, suspicious activity and evidence was present at Petitioner’s home, leading officers to enter the premises and later arrest Petitioner. After the charges against Petitioner were dismissed, he sued the officers, alleging they had violated his Fourth Amendment rights by briefly entering his house on the night of the crash. Second, he sued the sheriff, arguing his efforts to obtain Petitioner’s psychiatric records violated his Fourth and Fourteenth Amendment privacy rights. Finally, he accused several deputies of false arrest, false imprisonment, and malicious prosecution. All the defendants moved for summary judgment on the basis of qualified immunity, but the district court denied relief, and the defendants now appeal.

The Court disagreed with the district court’s analysis. “The relevant question the district court needed to address . . . wasn’t whether we all have some general privacy interest in our homes (of course we do). It was instead whether it was beyond debate in 2005 that the officers’ entry and search lacked legal justification. In addressing this question the district court needed to address the officers’ claim that exigent circumstances existed (based on a belief that someone who had just shot down a police helicopter might be hiding in or near the home) and their claim that their intrusion was justified in part because of the consent [an occupant] supplied (at least after the incursion was first made). And these questions the district court simply left unanalyzed.”

Additionally, the Court reversed the district court’s entry of summary judgment against the sheriff and ordering the entry of summary judgment in his favor because Petitioner “failed to identify clearly established law rendering beyond debate that the Sheriff’s conduct was unlawful.”

Lastly, the Court reasoned that each suspicious fact known to the officers does not require any speculation on their behalf. “Probable cause to arrest often arises from circumstantial evidence when the weapon responsible for the crime cannot be found or identified.” The totality of the circumstances and information available to the officers at the time created the existence of probable cause, and disposes of all of Petitioner’s claims against all the deputies.