Colorado Law Blog

A federal appeals court has ruled that qualified immunity does not apply to protect a former deputy district attorney from being personally sued. The claim against the deputy district attorney arises from her approval of a search warrant of a student journalist's home due to a professor's unhappiness over a parody in a University of Northern Colorado community newspaper, the Howling Pig.

The search was performed by Greeley police searching for evidence to support a charge of criminal libel. But the 10th U.S. Circuit Court of Appeals, reversing a federal district court, found that the officials overseeing the matter should have known that the First Amendment protected the "Junius Puke" parody of professor Junius Peake from prosecution under the libel law.

Following the appearance of the parody in print, the home of the student journalist Thomas Mink, and that of his mother, was searched by the police.

The appeals court held in its written opinion that the district court erred in requiring direct participation by DA Knox in the civil rights deprivation to establish a valid cause of action against her. All that was needed was "an affirmative link between the constitutional deprivation and the officer's exercise of control or direction," explains the 10th Circuit in its written opinion.

The 10th Circuit previously ruled that absolute immunity didn't apply to Knox because she was acting as an investigator rather than an advocate in the case. Thus, the 10th Circuit said, qualified immunity did not apply to prevent former deputy DA Susan Knox from being personally sued over the search.

Then an employee of the state's 19th Judicial District, Knox now works as a federal prosecutor in Colorado. The American Civil Liberties Union Foundation of Colorado filed suit on Mink's behalf in an effort to invalidate the criminal libel law, but expressed satisfaction over the result.

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Denver police are cracking down on drivers who make illegal lane changes and cut in line on the interstate. Beginning the initiative, police focused on Interstate 225 at the DTC Boulevard exit, giving 56 tickets on Tuesday morning. Most of the tickets were issued to drivers making illegal lane changes that cut off backed-up traffic. Some tickets were also given to drivers passing on the right shoulder.

Even kindergarteners know that taking "cuts", cutting in line ahead of cars waiting in a traffic jam, is bad form but some drivers do not realize it may also be illegal. Police also warn that it can be dangerous and even lead to road rage.

With increasing congestion the problem seems to also grow - more than 160 accidents have been reported at the I-225/DTC exit in the past three years. Drivers become impatient, enter the exit lane, proceed as far as possible, to just at the point where the driver is committed to the exit, then attempt to re-enter the highway flow. This forces traffic to slow down to let vehicles over, and, especially during times of high-volume traffic, presents a safety hazard.

Interestingly, a Denver police study found Tuesday to be the worst day for traffic during the morning commute, with the heaviest volume from 7:15 to 10 a.m.
Next week, officers are going to be focusing on westbound I-70 and southbound I-25 at the Mousetrap. Those caught will face a $100 ticket and 3 points assessed to their driving record.

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This November, California voters will decide whether to legalize marijuana. Polls indicate it will pass.

The FBI reports that more than 850,000 people were arrested on pot charges last year, 90 percent of them for possession. In the US, we spend between $10 billion and $15 billion enforcing these laws.

Colorado is in the difficult stage of defining legal medical marijuana use. Colorado Gov. Bill Ritter signed two bills into law in early June that are designed to more strictly regulate the state's medical marijuana industry.

Local governments will now have the option of banning dispensaries in their communities, and doctors who recommend marijuana must demonstrate that they actually examined their patients and have a bona fide doctor-patient relationship. The second law establishes 60 pages of new regulations for dispensaries.

Almost every Denver neighborhood has a dispensary -- and many half several. And the part of the new law that medical marijuana advocates seem most worried about allows local governments -- or voters through a local initiative -- to ban dispensaries and large growing operations altogether. Already, several city councils have started the process of banning dispensaries. Among them -- the ski resort town of Vail.

So what would happen if pot became legal? Legal experts offer the following as probable outcomes:

Drug arrests would drop and prison space would open for violent offenders. There were more than 800,000 pot-related arrests in 2008, if marijuana were legalized, these drug-related arrests would drop immensely, freeing up jail space and allowing police to focus on violent crimes.

Fewer kids would try marijuana. It may be counter-intuitive, but legalizing marijuana for adults could lead to less pot use by kids. Studies have shown that even though pot is currently illegal, kids find it more easily than beer and cigarettes. Legalizing marijuana would put street dealers out of business who don't care about the age of their customers.

Street violence would drop. If pot were legal, buyers and sellers could resolve their business disputes just like everyone else -- in court.

State governments would have a lot more money. If pot were legal, state governments could heavily tax it just like alcohol and tobacco, creating a new stream of revenue. For example, estimates show California could rake in over $1 billion per year in pot taxes. What's more, according to The Budgetary Effects of Marijuana Prohibition, taxpayers are spending about $14 billion each year on the war against marijuana. That's money that would be saved if marijuana were legal.

Accidents and emergency room visits may increase. Although marijuana doesn't conjure up images of wife beating and recklessness like alcohol, it does impair motor skills and judgment, which could lead to more accidents.

The price of marijuana would drop and corporations would profit. In areas where medical marijuana is legal, the increased supply has already caused prices to plummet
Mexican drug cartels would be crippled. Marijuana accounts for as much as half of Mexican drug cartel revenue, which means legalizing it would cripple their business.

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Even if your doctor is drunk, addicted to drugs or outright incompetent, don't expect the local medical community to blow the whistle. A new survey finds that many American physicians fail to report troubled colleagues to authorities, believing that someone else will take care of it, that nothing will happen if they act or that they could be targeted for retribution, according to a new study headed by the Harvard Medical School.

A surprising 17 percent of the doctors surveyed had direct, personal knowledge of an impaired or incompetent physician in their workplaces. One-third of those doctors had not reported the matter to authorities such as hospital officials or state medical boards. The findings, appearing in the Journal of the American Medical Association, are based on a 2009 survey of 1,891 practicing U.S. doctors.

Programs exist for retraining doctors with weak skills and getting addicted ones into treatment. But the survey results suggest doctors are not confident in the system. The American Medical Association and other professional groups say doctors have an ethical obligation to make such reports. And many states require doctors to tell authorities about colleagues who endanger patients because of alcoholism, drug abuse or mental illness.

The survey did not specify the type or severity of the impairment or incompetence, asking: "In the last three years, have you had direct, personal knowledge of a physician who was impaired or incompetent to practice medicine in your hospital, group, or practice?"

Most states have programs that not only get doctors into treatment but also advise their colleagues how to intervene. Most will keep reports anonymous. Some use the threat of medical board sanction to persuade doctors to go to rehab.

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Earlier this month, an 8-year-old boy was rushed to a hospital after he nearly drowned in an apartment pool. The boy was playing in an apartment pool in Lakewood, with others when bystanders noticed he was unresponsive. The bystanders pulled him from the pool and administered CPR. He had a pulse when he arrived at the hospital, after West Metro firefighters responded to the scene.

Entrapment caused by powerful suction from a pool or spa's drain can trap a child or adult, often resulting in death. Many of these fatalities result when a pool or spa has a broken or missing drain cover. The suctioning force of pool and hot tub drains can be so strong, it can trap body parts or hair and hold people underwater. CPSC says there have been 73 deaths and 262 entrapments since 1980, but the agency has acknowledged the incidents are underreported. Three-quarters of the deaths and injuries since 1999 were to those younger than 15.

The Virginia Graeme Baker Pool and Spa Safety Act, passed in 2007, required public pools and hot tubs to have unblockable drain covers and backup systems that shut off the suction forces if drains are obstructed. The law was named for former secretary of State James Baker's granddaughter, who died after she was held underwater by a hot tub drain.

Proponents of the new law designed to prevent deaths and injuries from pool and hot tub drains say the CPSC watered down the measure by siding with the pool industry. Members of Congress and the parents of victims are hoping to persuade CPSC to reverse its position as public pools across the country see record throngs during the many summer heat waves.

CPSC interpreted the law in a way which eliminates the requirement for backup systems, co-sponsors of the law said in a letter to CPSC Commissioner Robert Adler last month.
Safe Kids Worldwide public-policy expert notes that drain-entrapment deaths are "particularly horrific" because parents are typically "holding the child and trying to save the child's life" when they die.

CPSC, which kicked off a pool-safety campaign earlier this month, emphasized that pool safety is more than just safe drains: At least 70 people drowned in pools since Memorial Day; 80 more almost drowned. But none were entrapment casualties.

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A truck driver from Illinois will face negligent homicide and other charges after parking on the shoulder around a curve and forcing a traffic situation that caused a fatality on Interstate 70 in Mesa County last Tuesday. The driver placed put reflective emergency triangles on the interstate two miles east of Debeque at about 2 p.m. after his truck broke down. That forced a car driver to swerve her vehicle into another lane, where it was struck.

During the rollover, a passenger was thrown from the car and died after he was airlifted to St. Mary's Hospital in Grand Junction.

The truck driver was booked into the Mesa County Jail where he faces charges for vehicular homicide, reckless endangerment and obstructing a highway.

This fatal accident followed one which has ultimately claimed all four people in a car that crashed into the back of a CDOT truck on I-70A. An elderly couple died at the scene and both teens who were passengers, have subsequently died from their injuries. The state highway truck that was spraying herbicide along I-70 west of Burlington, the Colorado State Patrol said. The truck driver suffered minor injuries.

Both accidents demonstrate how drivers on our Colorado highways must remain ever vigilant. As in each of these incidents, more than half of all accidents involving large trucks and a second vehicle, both vehicles are travelling in a straight path. For more information concerning tractor trailer accidents visit our Tractor Trailer Accidents webpage.

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Dozens of bicyclists rode to the state Capitol Tuesday at a rally hosted by Bicycle Colorado to protest Black Hawk's ban on bicycling through most of the town's roads, the only such ban in the state. The roads in Black Hawk's historic mining district are narrow and shoulderless. According to Black Hawk city officials, during summer months 30,000 motorists use its roads each day.

Black Hawk's Board of Aldermen approved an ordinance banning bicycle riding on almost every street in Black Hawk. This includes the only paved street, Gregory Street, which connects the Peak to Peak Highway with the Central City Parkway. After town officials issued warnings to cyclists, three bicyclists who rode their bikes in June from Central City into Black Hawk became the first to be fined $68 each by police. Since then, the mountain town's bike ban has gained national attention from bike enthusiasts.

Bicyclists use the road in Black Hawk to connect to the Peak to Peak Scenic Byway, a popular mountain road, but the ban forces them to walk their bikes one-half mile through town or make a 46-mile detour around the area by using Berthoud Pass.

Black Hawk would need approval for changes on a state highway but Gregory Street is no longer a state highway. Bicycle Colorado confirmed with the Colorado Department of Transportation that Gregory Street was previously State Highway 279 but was formally abandoned by CDOT about ten years ago. Since that time Black Hawk adopted it as a local street.

The Federal Highways Administration says that public roads should accommodate bicyclists but they don't withhold funding if their guidance is not followed.

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