The chief judge does not have significant additional power to decide how particular cases are decided, however. 

In the United States Court of Appeals for the 10th Circuit, cases are assigned to three appellate judge panels randomly. 

All judges in the 10th Circuit hear cases decided by a three judge panel which are then reviewed en banc by the entire 10th Circuit Court of Appeals.  But the chief judge does have the power to decide which judge writes a rare opinion in an en banc review of a panel’s decision when he joins a majority opinion.

The United States Courts of Appeals are second only to the U.S. Supreme Court in the federal court system.

The other twelve chief judges of U.S. Courts of Appeals in the United States are Republican appointees.

Defendants in felony cases are entitled to a variety of pro-defendant procedures, such as a larger jury and the opportunity to test the evidence of the charges in a preliminary hearing prior to trial, that are not available for people accused of misdemeanors.

But in Colorado, some crimes, including simple assaults involving domestic violence, that are usually misdemeanors, are treated as felonies at sentencing in cases involving habitual offenders. Do these crimes receive the more elaborate procedures applicable to felonies, or the streamlined procedures applicable to misdemeanors?

The Colorado Court of Appeals held last week that misdemeanors treated as felonies for sentencing purposes because someone is a habitual offender, can still be tried with the more streamlined procedures applicable to misdemeanors, creating a class of back-door felonies. It held that in these cases, the offense is a misdemeanor with more severe than usual consequences rather than a true felony.

This may be a distinction without a difference for the defendant.

The U.S. Constitution has little impact on the case. Most rights of criminal defendants under the U.S. Constitution limited to felony defendants, such as the right to trial by some jury, apply whenever the maximum punishment is more than six months in jail.  Almost all rights that the U.S. Constitution requires in felony cases, that do not involve a death sentence, are afforded to both felony and misdemeanor defendants in Colorado. 

Joe Rakes was charged with a conspiracy involving a white supremacist group, the Soldiers of Aryan Culture, which sent a letter threatening attorneys in Utah’s U.S. Attorney’s office based on the fact that they put other members of the group in prison.  It said in the key phrase:

You stupid bitch! It is because of you that my brothers are in jail for the Rico. I know you live on the [street name redacted]. We will get you. til the casket drops.

Rakes and prosecutors reached a plea agreement whose core provision called for him to spend nine months incarcerated and also had a number of other conditions.  It was conditionally accepted by the judge.  But the judge rejected it, in part based upon a victim impact statement from the prosecutor who was a target of the letter, which was not disclosed to the defendant.  The judge stated in a ruling rejecting the deal:

This is a serious matter. The impact on a respected Assistant U.S. Attorney in her role as an Assistant U.S. Attorney is very real. Furthermore, the impact on her as an individual, on her family is very real. And the Court is concerned about the message that might be sent if this matter is not properly punished.

The generous deal may have had something to do with the somewhat thin evidence of the conspiracy and the possibility that a key participant in the conspiracy may have written the letter because she was “threatened by someone else or the voices in her head,” rather than by Rakes, as the prosecution alleged.

The plea was withdrawn, and Rakes went to trial, was convicted and was ultimately sentenced to 63 months in prison.

The appellate court recognized that making important decisions in the criminal justice process was not the best practice.

We agree with Mr. Rakes and the government that it would have been better for the district court to have provided the parties with copies of the victim impact letter prior to its disposition of the plea agreement. Doing so would have made more transparent the district court’s concerns about whether the plea agreement’s proposed sentence adequately accounted for the crime’s impact on the victim prosecutor and would have allowed the parties to address those concerns more intelligently.

It also determined that in this particular case, the non-disclosure of a victim impact statement was harmless, because the defendant was on notice of the general issues to be raised and couldn’t explain how the additional evidence would have changed the result:

In fairness to the district court we must also note that, although the parties did not have the victim’s letter, they were at least on notice of its existence and could have sought its production. The pre-sentence report prepared for the plea hearing explicitly stated, under “Victim Impact,” that “[the victim] is preparing a statement that will be submitted directly to the Court.” . . . . After Mr. Rakes became aware of the victim impact letter, he asked the district court to reconsider its decision to reject the parties’ plea agreement, arguing that the court’s decision had improperly relied on undisclosed information. The district court denied reconsideration, citing, among other grounds, the fact that it “would have rejected the plea agreement regardless of the letter for the reasons set forth plainly on the record.” . . . Those reasons included the district court’s assessment that the Guidelines advisory sentence for the crime to which Mr. Rakes agreed to plead guilty was at least double that of the parties’ agreed sentence and neither party had offered a persuasive reason for such a disparity under the facts and circumstances of this case. . . .  Mr. Rakes likewise offers us no reason to doubt the district court’s assessment . . . . Neither does he identify, nor did he state in his motion to reconsider, what information in the victim’s letter was incorrect or what arguments addressing it he would have made to the district court. Without being given some reason to think that a sentencing court would have reached a different outcome in the disposition of the plea agreement had the letter been disclosed, we are compelled to conclude that, even taking the district court’s failure to disclose the letter to be error, it was harmless error.

But, notably, the appellate court also left open the possibility that relying on secret evidence to reject a plea agreement might be harmless even if the information did change the trial court’s mind:

[B]y its plain terms, [the] Rule . . . obligates the district court to provide the parties advance access to information on which it “will rely in sentencing.” And the harm it seeks to safeguard against is sentencing based on evidence that the parties have not had reasonable notice of and opportunity to address. Here, however, the court did not sentence Mr. Rakes. . . As it is . . . we cannot say the rule, by its plain terms, was violated, or that the harm it seeks to avoid was implicated.  Beyond [the] Rule . . . A district court enjoys substantial discretion in deciding whether to accept or reject a plea agreement . . . But that discretion is not without limit. . . . While a defendant has no absolute right to have his plea agreement accepted, in our supervisory capacity we have placed some boundaries on the district court’s discretion – requiring district courts, for example, to articulate reasons on the record if and when they decide to reject such agreements in order, among other things, “to insure district courts exercise sound judicial discretion.” . . .  The parties, however, have directed us to no authority on this issue and, at the end of the day, we believe this case is properly resolved without reaching it.

While in this case the evidence was found to be harmless, since the general issues raised were known and no one later claimed the secret evidence was inaccurate, nothing in the ruling prevents a judge from making a similar ruling based upon secret “national security” information that was decisive in its importance and that a defendant felt was untrue.  Yet, given that the vast majority of cases end in plea bargains that impose sentences less harsh than those that would be received after a trial, for many defendants, the acceptance of this bargain is the most important decision made by judges in their criminal justice process.

Holcomb sued, alleging that a call was made in violation of the law implementing Colorado’s No-Call List, a key legislative initiative of then-Colorado Attorney General Ken Salazar.  The trial court threw out Holcomb’s case.  But the Colorado Supreme Court agreed, in a 4-3 vote, that he had a valid basis for his lawsuit.

The four judge majority ruled Monday that:

Nothing in the provision establishing and prescribing the operation of the no-call list . . . ; the proscription against soliciting residential subscribers on the list, . . . ; or the definition of “residential subscriber” itself, . . . , suggests that using a no-call listed telephone for business purposes or permitting it to appear on commercial telephone listings causes an otherwise qualifying “residential subscriber” to somehow lose the protections of the Act.

The majority left the application of any defenses for the trial court applying its ruling, but stated that the defense of making a good faith effort to comply applies “on its face, only to persons or entities that have otherwise fully complied with the provisions of the Act and have both established and implemented written practices and procedures to effectively prevent telephone solicitations in violation of the Act[.]”

The three dissenting judges in the seven-justice court noted that:

Holcomb had several businesses for which he used his residence number as his business number that might have been included on business phone lists such as those compiled by Info USA:  “You know . . . from Google phone numbers . . . he’s Virtual Business Services . . . Holt Realty . . . Attorney Realty . . . Mortgage Max. There’s all kinds of businesses on here. Info USA could easily pick up one of these other businesses on here.” . . . 

The county court found that Jan-Pro — by purchasing from reputable companies a list of business phone numbers, requesting listings only by specific SIC codes, and asking that home-based businesses be omitted — established and implemented, prior to this particular call, written practices and procedures to effectively prevent telephone solicitations in violation of the statute. The county court found that Jan-Pro reasonably relied on the lists it purchased as having only business phone numbers, it had utilized the lists for four years without incident, and it would have deleted Holcomb from its call list had he simply asked.

The dissenting justices would have agreed that home offices are covered, but found that a good faith effort to exclude residential numbers from their call list (such as limiting lists to commercial business directories and attempting to exclude home-based businesses) would protect this commercial solicitor from liability in this case, even if the solicitor had not checked its numbers against the Colorado No-Call List.

The No-Call List escaped historical free speech protections for telephone solicitors by securing an individualized indication from telephone customers that they do not wish to receive telephone solicitations and exempting certain particular sensitive kinds of calls such as political solicitations.

James Baker (no relation to the televangelist with a similar sounding name), is a felon who was charged with possession of ammunition by a felon and possession of stolen ammunition in the following incident:

At approximately 4:00 a.m. on November 1, 2005, James Baker was sitting in a car in a parking lot outside his stepdaughters’ apartment complex. Officer Richard Bachman of the Wichita, Kansas Police Department was patrolling the area and thought that the vehicle, which was parked with its lights on, looked suspicious. He turned his patrol car’s lights on the vehicle. As he did so, Mr. Baker got out of the car and approached the patrol car. Officer Bachman instructed Mr. Baker to stop moving and asked Mr. Baker for identification, which he provided. The dispatcher ran a routine records check on the vehicle, which revealed that the tag had been reported as lost or stolen. Based on this information, Officer Bachman detained Mr. Baker. The dispatcher then reported that a records check on Mr. Baker revealed the existence of two active city bench warrants for his arrest. Officer Bachman therefore arrested Mr. Baker. During a search incident to the arrest, Officer Bachman found a speed loader with six rounds of live ammunition in Mr. Baker’s pocket. It was later discovered that the ammunition had been stolen earlier that night during a burglary of Doc’s Steakhouse in Wichita.

Mr. Baker made the unusual choice of testifying at trial to explain himself, despite the fact that this opened the door to allowing his testimony to be impeached by his criminal record.  Baker said he picked up the ammunition for the purpose of giving it to a cop and keeping it out of reach of children.

During the trial, Mr. Baker testified that he saw the ammunition on the ground after leaving a Halloween party at an apartment complex. According to Mr. Baker, he picked up the ammunition so that he could turn it into the police; he did not want to leave it on the ground because he was worried that a child might find it. Before Mr. Baker drove to the police station, however, he and two other individuals drove to another apartment complex. He testified that he was sitting in the car in the complex’s parking lot when he saw Officer Bachman in the patrol car. Mr. Baker figured he could hand the bullets over to Officer Bachman rather than go to the police station, so he got out of the car and approached Officer Bachman, who had exited the patrol car. Officer Bachman immediately started questioning Mr. Baker about the reason he was in the parking lot, and before Mr. Baker could give him the bullets, Officer Bachman placed him under arrest and discovered the bullets. Mr. Baker also testified that he only had the ammunition for about ten minutes before he was arrested.

The dissenting judge also noted that:

Baker testified that he had an aversion to firearms because three relatives had been killed by gunshots. He testified that he had not possessed a firearm since 1996. Further, his testimony was that on this Halloween night, in spite of the very late hour, there were children out and about at the apartment complex where he found the ammunition and that he took the contraband away from that place out of concern for safety; that he intended to take the ammunition to a police station; that he made one short stop on the way to accommodate one of his companions; and that he had been in possession of the ammunition for only ten minutes. His testimony that he approached Officer Bachman with the intention of turning the ammunition over to him was partially corroborated by the officer, who testified that Baker was approaching him before he ordered Baker to stop. Thus Baker’s testimony, which should be accepted in determining if Baker made a viable innocent possession showing, demonstrated that he did not possess the ammunition for illicit purposes.

The dissenting judge also noted “that no firearm or other weapon was involved in this

offense, nor was one involved in any of the prior convictions which formed the basis for the determination that Baker was subject to a mandatory minimum sentence of fifteen years as an ‘Armed Career Criminal.’ “

The Legal Issue

Baker asked for a jury instruction describing an “innocent possession” defense adopted by the U.S. Court of Appeals for the D.C. Circuit seven years ago in a similar case involving a firearm.  To establish the defense the D.C. Circuit held that the defendant must show that:

(1) the firearm was attained innocently and held with no illicit purpose and (2) possession of the firearm was transitory – i.e., in light of the circumstances presented, there is a good basis to find that the defendant took adequate measures to rid himself of possession of the firearm as promptly as reasonably possible.

The trial judge in Baker’s case refused to offer an instruction concerning the innocent possession case to the jury, on the basis that “the instruction was not warranted on the evidence presented.” 

The jury convicted Baker of possession of ammunition by a felon, but acquitted him of possession of stolen ammunition, so it is possible that the jury believed his story.  He was sentenced to 235 months in prison (almost 20 years), a sentence aggravated by his prior criminal history.

The 10th Circuit could have affirmed the trial judge’s ruling on the basis that it was not an abuse of discretion for the trial court to determine that the evidence that it was really necessary for Baker to take the ammunition to a policeman at 4 a.m., rather than making a phone call to leave a tip, for example, was too weak to merit offering a jury instruction.

Instead, the 10th Circuit ruled 2-1 that the D.C. Circuit was incorrect in interpreting the law, and that Congress meant to be harsh and punish innocent possession of ammunition by a felon with a stiff sentence.  This creates a direct split of authority on the interpretation of the law between the D.C. Circuit and the 10th Circuit with the 10th Circuit taking the more conservative position.  The 10th Circuit position has also been taken by the 1st and 7th Circuit Courts of Appeal in nearly identical cases.  There is also a case from the often liberal 9th Circuit Court of Appeals that has taken a similar legal position on facts that are less similar.

The majority rejected the D.C. Circuit’s reasoning that “absent such a defense, ‘a felon-in-possession always will be guilty once he knowingly possesses a weapon, without regard to how or why he came into possession or for how long possession was retained.’ “  The majority concluded that this “is precisely what Congress envisioned by prohibiting knowing, as opposed to willful, possession of ammunition.”  The majority’s reason was largely textual.

The dissenting judge, in contrast, reasoned that:

The majority’s holding is that, even if the jury believed every part of Baker’s testimony, it is in keeping with Congressional intent that Baker serve nearly 20 years in prison for his conduct. I cannot agree that Congress intended such ” … a harsh and absurd result.” …  First, as Baker argues in his brief, courts that have rejected the innocent possession defense based on a strict statutory construction and public policy grounds have generally not acknowledged the contradiction posed by the fact that they have recognized the duress or justification defenses, which are similarly not found in the statutory language and so are, presumably, contrary to the posited legislative intent of strict liability. …

Second, the majority’s reliance on prosecutorial discretion is misplaced, as this case illustrates rather clearly. This is not because there was an abuse of prosecutorial discretion in this case. To the contrary, on this record it seems reasonable for the prosecutor to have decided that Baker’s explanation was “plausible, albeit debatable.” … That being so, it was not improper to present the case to the grand jury and to prosecute it on the basis of the resulting indictment. But to avoid injustice, the trial jury should have been instructed on the innocent possession defense on these facts. Such a narrow defense “does not offend the statute’s goal of keeping guns out of the hands of convicted felons.” …  No doubt prosecutorial discretion will lead to a decision not to prosecute in a few easy cases. But again, the instant case shows that prosecutorial discretion is hardly a panacea, or a guarantee of even-handed justice.

The dissent, in contrast, notes that judges routinely look beyond the bare text of statutes to interpret and apply them, and makes the case that an exception in this case would be consistent with the intent of Congress in enacting the relevant laws, particularly in light of the consequences of making a purely textual interpretation, which would impose a harsh sentence for a basically well meaning and civic-minded act.  The dissent also trusts the jury to make the right decision, while a strict textual reading sees the very purpose of the statute to impose strict liability, which removes discretion from the jury to interpret the context in which the offense alleged happened.

How Likely Is Further Review?

The vast majority of criminal verdicts and sentences affirmed by a federal appellate court end there.  But there is good reason to think that this case might have a different fate.  This split of authority, and the division of the panel itself, makes the case ripe for further review by the U.S. Supreme Court. 

About 60 percent of cases taken up by the U.S. Supreme Court involve this kind of split of authority.  This does not, by any means, imply that the U.S. Supreme Court reviews all splits of authority between circuits on questions of federal law. About 400 new circuit splits arise every year, and about 200 circuit split cases appealed to the U.S. Supreme Court are denied review every year, while about 30 to 40 receive review.  Well-developed splits (i.e., those involving more than just two circuits chiming in on the issue) are more likely to make the cut, as are splits of authority in cases with no facts to undistinguish them from each other legally.  Simple, fact bound  criminal cases, with squarely presented issues, are also among the most common types of cases to be granted U.S. Supreme Court review even when law clerks recommend against it (a practice called “reaching out“).  Realistically, if appealed to the U.S. Supreme Court, this case would probably have an extraordinarily high 20 to 30 percent chance of being considered.

It is also not obvious how this case would be resolved if the U.S. Supreme Court did take it up.  Fact specific interpretations of statutes often defy crude ideological characterizations, even though this case does seem to have a liberal-conservative dimension.

This settlement closes the chapter on a painful period of the University’s history. . . . Ms Simpson’s efforts have contributed to making the University a safer place for all its students. The university and I profoundly regret that that Ms. Simpson underwent a very traumatic experience while a member of our University community. Her experience has assisted the university and other institutions in addressing very difficult problems of sexual harassment and assault. With this lawsuit behind her, I hope that she will be successful in working toward her life goals, including continued advocacy for victims of sexual assault.

Brown added with respect to the other plaintiff with whom the university settled that:

[Her] efforts have contributed to making the University a safer place for all its students. Her experience has assisted the university and other institutions in addressing very difficult problems of sexual harassment and assault. With this lawsuit behind her, I hope that she will be successful in working toward her life goals.

The University also made public the other plaintiff’s statement:

I am relieved that a settlement has been reached with the University of Colorado. My personal decision to settle in no way diminishes my convictions in this matter. I have chosen not to participate in an ongoing exhaustive litigation process and will instead move forward on my healing process privately. I am proud to have played a small role in creating a safer learning environment for all students.

The University’s press office went on to say:

As part of the settlement, the University has agreed to appoint an independent Title IX advisor to assist it in identifying any further reforms that will prevent sexual harassment and misconduct. The University has also committed to adding another part-time counselor in its Office of Victim’s Assistance, and Ms. Simpson wished to thank the Office of Victim’s Assistance for its assistance to her.

The Denver Post notes that the University of Colorado spent about $3 million in litigation costs defending the case, in addition to the settlement, and that all but $1 million of the University’s expenses will be funded by the University’s insurance company. 

The settlement contains the customary statement that it “does not constitute an admission of liability or fault” and a promise from the parties that they will not call the payment “compensation for any wrongful conduct by the University.”  The reality, of course, is that no institution pays a settlement of this magnitude in a case like this one without the damning evidence suggesting that the University engaged in wrongful conduct that the 10th Circuit Court of Appeals laid out in its opinion, reinstating the case after it was dismissed by the trial court prior to trial.

The University’s statement, while not strictly speaking an apology, is exceptionally conciliatory and contrite.  Few statements from institutions that have settled civil rights lawsuits acknowledge that the plaintiff has been harmed or that the organization had problems related to the plaintiff’s harm that needed to be solved.

None of the individuals who carried out the alleged gang rape that was the basis of the suit, or the university officials who put in place the university policies questioned by the 10th Circuit Court of Appeals, were held responsible for their actions with either criminal sanctions or civil liability.  The District Attorney in Boulder found the case against the alleged rapists too hard to prove beyond a reasonable doubt, and so it refused to do so.  Four CU football players pleaded guilty to providing alcohol to minors at the party.  The incident was also one factor of many in the departure of a number of university administrators and sports program officials from the school. 

Indeed, former head football coach Gary Barnett managed to secure a settlement of his wrongful discharge claims larger than the one paid to the two women combined, despite the fact that the 10th Circuit spent four pages of its opinion in the case describing in detail evidence of Barnett’s extensive culpability in creating a climate hostile to women at the University of Colorado.  The 10th Circuit concluded that analysis by noting that:

In sum, the evidence before the district court would support findings that by the time of the assaults on Plaintiffs, (1) Coach Barnett, whose rank in the CU hierarchy was comparable to that of a police chief in a municipal government, had general knowledge of the serious risk of sexual harassment and assault during college-football recruiting efforts; (2) Barnett knew that such assaults had indeed occurred during CU recruiting visits; (3) Barnett nevertheless maintained an unsupervised player-host program to show high-school recruits “a good time”; and (4) Barnett knew, both because of incidents reported to him and because of his own unsupportive attitude, that there had been no change in atmosphere since 1997 (when the prior assault occurred) that would make such misconduct less likely in 2001.

Barnett has strenuously complained that a settlement was reached.

The settlement, by its terms, does not release anyone other than the University and its insurers from liability, but the statute of limitations to bring or renew a suit against anyone else has lapsed. 

In March of 2005, the women had just had their case dismissed, and studies of appellate decisions in the federal appellate courts have shown that “defendants fare better than plaintiffs on appeal.”  But, in law, it isn’t over until it is over, and the long struggle of these two women to seek redress eventually prevailed.  A third plaintiff discontinued her prosecution of a related case three years ago.

What Happened?

It all began when someone brought a lawsuit against James Jay Doke.  In every lawsuit the person sued must be “served” with “civil process” which means that legal papers are hand delivered to them or another proper person.  This task is often carryed out by a sheriff’s deputy.

According to the court, here is what happened:

Three Weld County sheriff’s deputies arrived at James Doke’s home to serve him with civil process. The deputies were in uniform. Serving process for members of the public was among their regular duties. Three deputies were assigned to this task because the sheriff’s department had previous experience with Doke’s avoiding civil process and being uncooperative with law enforcement officers.

Doke’s property is in a rural area of Weld County. His home is one of several structures on the property, and he operates a sod farm on the property. The residence is partially visible from an adjacent county road. A sign posted in the driveway reads “No Trespassing – Stop.” At the front door, a second “No Trespassing” sign hangs above the doorbell. No gates or fences block the entry of the property or the residence.

The deputies rang the front doorbell. There was no response, but they observed movement within the home. After several minutes, they walked on a paved pathway to the back of the home and then up the stairs of the back porch. Through a window in the back door, one of the deputies identified Doke inside the residence sitting in a recliner chair with his eyes closed. The deputy identified himself from outside the door and pounded on the door, but Doke remained seated with his eyes closed. The deputy remained on the porch and attempted to elicit a response from Doke for approximately ten minutes.

Another deputy contacted the commander and advised that there may be a medical problem because Doke was not responding. The commander recommended that the deputies open the door to determine if Doke was stable, but to wait for a medical unit to arrive. One of the deputies opened the back door six to eight inches and announced that he was a sheriff’s deputy there to serve papers. He closed the door when a large dog approached but then reopened the door and announced that he was calling for a medical unit. The deputies did not call for medical assistance at any time during the incident.

At that point Doke opened his eyes. He looked at the deputy and grabbed a shotgun located by the front door. The deputies withdrew from the doorway and ordered Doke to put down the gun. Doke locked his door and remained inside despite numerous orders to come out.

Did The Deputies Break The Law?

It isn’t obvious who, if anyone, was violating the law in this situation, and the Colorado Supreme Court didn’t resolve that question on the merits in Doke’s case.

Sheriff’s deputies, and other third-party process servers, are allowed by state law to ignore some laws that don’t involve physical injury to another person. For example, process servers and deputies who are carrying out their duties usually are immune to laws against trespassing. Deliberately undermining legitimate efforts to deliver legal papers through some improper means can constitute the crime of obstruction of justice.

Also, under certain circumstances, citizens have a duty to follow the orders of a sheriff’s deputy.

These powers of sheriff’s deputies have to be weighed, however, against the requirements of the constitution.

The constitution ordinarily requires law enforcement officers to obtain a warrant based upon probable cause in order to search your home, or to seize property from it.  Normally, if law enforcement obtains evidence in violation of the constitution, it cannot be used against you in a court of law. 

Whether the delivery of legal papers to someone known to be on the premises is either a search or a seizure or is otherwise restricted by the constitution is still a legal gray area.  The Colorado Supreme Court reserved that question for another day in this case.  It reached its decision by assuming for the purpose of argument only that it the deputies did break the law by entering Doke’s house without a warrant. 

Did Doke Commit A Crime?

Why would Doke even consider aiming a gun at a uniformed sheriff?

In Colorado, it is a felony to aim a gun at someone in a manner that indicates that you might use it if provoked. This crime is known as menacing. But there are exceptions, called justifications, to this rule. Justification is an affirmative defense to the crime of menancing. Colorado’s best known justification is called the “Make My Day” law.

Colorado’s Make My Day law allows homeowner’s to use deadly force to repel people who have unlawfully entered their homes. But the Make My Day law allows this use of force only if the homeowner reasonably believes that the invader also intends to or has committed a crime other than mere unlawful entry.

For example, if a burglar enters your home and is carrying away your jewelry, you may draw a gun on the burglar in order to make the burglar leave your home. You may also shoot the burglar if this is necessary to remove the threatening criminal from your house. The Make My Day law was passed in response to cases that had held that an armed homeowner had a duty to flee their own homes if flight could prevent anyone from getting hurt.

Doke is arguing in this case that the Make My Day Law makes it legal for him to use a gun to repel anyone unlawfully entering his home, even a uniformed sheriff’s deputy without a warrant who is serving civil process.

What Happened Next?

In Doke’s case, after the initial incident concluded, the sheriff obtained a warrant calling for a search of his house and his arrest on charges of menacing, obstructing a peace officer and failure to leave premises or property upon request of a peace officer. According to the court:

Ultimately, a SWAT team entered the residence and arrested Doke. Later that night, a fourth deputy prepared an affidavit in support of a search warrant based on information given by the three deputies present during the incident. A warrant was issued, and the search revealed a twelve-gauge shotgun.

At the pre-trial stage of the case, Doke asked the judge to throw out all evidence of his response to the deputies. He argued that the deputies had violated his constitutional rights when they trespassed into his house to serve him with process and that the evidence that they secured as a result of this constitutional violation should be kept out of court.

If Doke successfully kept out this evidence, the menancing charges would have been thrown out. In addition, Doke would have established the precedent that no court could ever consider evidence that someone used inappropriate or excessive force to resist police officers engaged in an unlawful warrantless search or seizure.

The Colorado Supreme Court unanimously disagreed with Doke. It ruled that while the constitution excludes evidence of some other crime obtained in an unlawful search, that it does not exclude evidence related to crimes that may have been committed by someone in reaction to an unlawful search and seizure.

What Happens Now?

Doke hasn’t lost his case, yet. But he won’t win on a technicality. He will have to incur the time and expense of a jury trial on the menacing and other charges.

To acquit him, the jury will have to believe that he had justification under the Make My Day Law to draw his shotgun on three uniformed sheriff’s deputies. This will require him to do two things. He will have to convince a judge to instruct the jury that it was unlawful for the deputies to enter his home. Then, the jury will need to believe that Doke reasonably believed that the deputies intended to commit a crime other than merely unlawfully entering his home.

Given that the deputies announced their lawful purpose to deliver legal papers to Doke, and the fact that their uniforms made them hard to confuse with burglars, this will be a difficult defense for Doke to establish.

Citizens challenging the initiative argued that the proposal had the additional subject of changing the standard that applies to review of all government agency decision-making at the state level by establishing a:

mandatory public trust standard for agency decision-making whereby conflicts between “economic interest” and “public ownership and public conservation values in lands, waters, public resources, and wildlife,” must always be resolved in favor of “public ownerships and public values.”

The majority, in an opinion written by Justice Gregory J. Hobbs, Jr., agreed with those challenging the initiative. 

Justice Allison Eid, joined in dissent by Justices Nathan B. Coats and Nancy E. Rice, argued that the ballot measure, in fact, constituted a single subject, arguing that what the majority described as a substantive public trust standard for Colorado law was merely a mission statement for a new department.

The measure would have consolidated a host of smaller programs and agencies under an independent, voter elected, board governed Department of Environmental Conservation, consisting of the state’s:

* Natural Areas Program
* Water Conservation Board
* Division of Forestry
* Division of State Parks
* Water Quality Control Division
* Division of Wildlife
* Land Use Commission
* Captive Wildlife and Alternative Livestock Board
* Board of Land Commissioners
* Great Outdoors Colorado Program
* Great Outdoors Colorado Trust Fund
* Hazardous Waste Commission
* Natural Areas Council
* Board of Parks and Outdoor Recreation
* Pollution Prevention Advisory Board
* Water Quality Control Commission
* Wildlands and Urban Interface Wildlife Working Group
* Wildlife Commission

It would also have assigned any new agencies for environmental functions to the agency.

The alignment of the Colorado Supreme Court’s more conservative justices in favor of a seemingly pro-environment measure, and of the more liberal leaning majority against it, reflect the predominance of process concerns over the underlying policy. 

Historically, Colorado’s Supreme Court has interpreted the powers of citizens to initiate legislation narrowly since state voters adopted a single subject requirement for initiatives. It notes that “one of the purposes of the single subject requirement is to apprise voters of the subject of each measure, so that surreptitious measures that could result in voter surprise or fraud are not placed on the ballot.” A tight interpretation of this requirement necessarily involves considerable analysis of the merits of the proposals brought before it.

In this case, the majority was concerned that there was a substantive change in the state’s environmental law, as well as a mere administrative reorganization of a fragmented area of the state’s government. In the majority’s view, the decision-making rules that applied to the old fragmented boards would differ from the decision-making made by the new department.

Conservatives in Colorado, in contrast, have been inclined to take a more hands-off attitude allowing issue proponents to define what they mean by a single purpose. This inclination arises from the “originalist” approach to constitutional interpretation that abhors overt policy making by judges, even when the law seems to allow judges to make decisions that could rest on policy grounds. The dissenters underline this interpretive preference with a statement in closing that states that, “The proposed initiative might be a good idea or a bad idea; we must leave that decision to the voters.”

There are many kinds of Section 125 plans but the simplest is the health insurance premium-only plan.

Under this scenario, the employer deducts from pre-tax wages an amount equal to the employee’s health insurance premium. The employee provides proof of payment of the health insurance premium to the employer. In return, he/she gets a tax-free reimbursement check for the premium payment. Tax-wise, it has the same effect as trading a smaller paycheck for employer-provided health insurance. The employer incurs only some modest additional payroll processing costs.

More elaborate Section 125 health care plans are also possible.

A “use it or lose it” fund to reimburse out-of-pocket health expenses can be established with a payroll deduction. The employer doesn’t have to contribute anything at all. However, some employers opt to contribute a flat dollar amount each month to an employee’s plan balance (also on a pre-tax basis). In this way, an employer can help with an employee’s health insurance costs without making a symbolic commitment to increase the amount contributed if health insurance premiums go up.

So in effect, employer-established Section 125 health care plans reap the benefits of both tax-deductible self-employed health insurance premiums and the old tax law that allowed unlimited medical expense deductions.

If an employer has a Section 125 plan, every employee has to have the option to participate –  though there are a few exceptions since this is byzantine federal tax law.

While there are some limits on what kind of health care insurance can be purchased, there is no requirement that employees spend the payroll  deduction on the same thing, or in the same amount.

Employees can use the money for COBRA payments, to pay for any third-party health insurance, or to set up a fund to reimburse himself for out of pocket expenses incurred under his spouse’s health care plan that also covers him. He can also elect not to participate in a plan at all.

The upside is that it gives employers and employees flexibility and allows employers to take an incremental approach towards helping employees with health care costs.

The down side is that it allows employers to indirectly finance less-regulated health insurance plans targeted at individuals and families effectively gutting state law that protects policy holders.

These plans may also allow management to get more comprehensive coverage than rank and file workers, escaping limits that require employers to provide for their employees if they want tax benefits for themselves.

Obviously, there are details. This is federal tax law, after all. But this is the basic premise of a 125 plan — one of the plans under consideration by the state health care commission.

But one civil right is special.  This is the right of an owner of property to receive due process and just compensation before the government takes property for a public purpose from the owner.  This is called an inverse condemnation lawsuit.  As the Colorado Court of Appeals explained:

Both the Fifth Amendment and Colo. Const. art. II,

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