Crime, homelessness, economics, & the politics of cannabis

Local policy makers are touting the economic benefits of commercial cannabis cultivation as a meansNational Public Radio’s Central California affiliate, a one-acre grow operation could bring in $19 million a year![1] While profits vary, jobs in the 420-industry, such as bud trimmer earn $12-13 an hour, according to Forbes. The grow master or cultivator can expect to earn $100,000+ per year.[2] to replenish depleted coffers. Looking at the numbers, it is hard to deny their claims. According to a report by

Colorado’s Amendment 64 was passed by the voters in November 2012; and the commercial sale of marijuana to adults, 21 years of age and over, for recreational use began on January 1, 2014.[3] This date is important, because in the March 15, 2017 issue of the Grand Junction Daily Sentinel, it was reported that property crimes and all crimes reported saw a major increase from 2014 onwards. While violent crimes declined in the year 2014, thereafter, violent crimes have also seen a significant increase.[4]

One hypothesis is that crime and homeless have increased in Colorado since the legalisation of recreational marijuana.

The Sentinel article quotes Grand Junction Police Chief, John Camper, as saying, “I talk to police chiefs throughout the state and they’re seeing the same thing that we’re seeing – a level of violence that we haven’t seen before,” noting that it’s hard to pinpoint the reason for the rise.[5] Chief Camper is quoted later in the article as saying increases in property crimes are “often an indication of an increase in drug activity.”[6]

From 2014 to 2016, School District 51 students, who are broadly identified as homelessness, soared nearly 55% from 388 to 600, according to a Daily Sentinel article at the time.[7]

The 2016 Housing and Urban Development Report on Homelessness, reports that “Between 2015 and 2016, the number of individuals experiencing homelessness increased in 22 states. The largest absolute increases were in California (4,504 people), Washington (1,374 people), and Colorado (721 people).” [8] Percentwise, this was 13 points up from the previous year and represented a reversal of the trend which showed homelessness slightly declining over the past decade.[9]

In privileged conversations, some Western Colorado policymakers have expressed to this author their belief that the legalisation of recreational cannabis has led to an increase in crime and homelessness.

Looking at the numbers state-wide, the Colorado Bureau of Investigation reports that all major crime classes have increased 6.20% since the beginning of 2014.[10] Between 2013 and 2014, crime actually decreased by one percent. Looking at the aggregate picture of crime in Colorado for the decade 2005 to 2015, crime generally was decreasing annually until 2012.[11]

Comparing these state-wide numbers with more pronounced local findings, there does suggest a slight correlation between increased crime and legalisation of recreational cannabis. More data and in-depth analysis will be required to know for sure, but certainly those who have expressed concern are not without merits.

The Financial Crisis 2007-08, sparked by the subprime mortgage market and excessive global barrowing and risk taking, had major ramifications at the local level. By 2009, Colorado hit the high-water mark with 46,394 home foreclosure filings.[12] Smaller jurisdictions, such as Delta County saw their worst numbers in 2010, with 264 foreclosure filings.[13]

In 2009, a small group of Delta citizens, from various churches, concerned by seeing homeless people lingering around town, organized to start a homeless shelter. As the Financial Crisis became entrenched and foreclosures mounted, industries such as the local lumber company and saw mill closed, followed by the North Fork coal mines. At the same time, Mesa County saw a major reduction in the Oil and Gas industries. As the layoffs, failures, and foreclosures mounted, so did the homeless situation.

Homelessness had increased enough locally, that in November 2014, the Abraham Connection (Delta County’s Homeless Shelter), made the decision to move out of the Delta Methodist Church’s basement and begin construction of a $750,000 facility,[14] which opened in November 2015.

During the Nov. 2013–May 2014 season, the Abraham Connection provided 840 bed nights. Contrast that number with 2,665 which was the total number of bed nights provided during the Nov. 2016–May 2017 season.[15] In three years’ time, that is a 217% increase in homelessness.

Looking at Delta County as a case study, with over 1,000 coal mining jobs gone, a couple hundred timber related jobs chopped, and countless ‘mom and pop’ stores shut for good, a rising homeless population and a school district and hospital struggling under declining revenues due to ratcheted-down property valuations, many policy makers have turned to marijuana as the saviour.

Delta County Commissioner, Mark Roeber, told the Denver Post that he receives calls “almost daily, saying marijuana is going to save us.”[16] While Delta County, and the municipalities within the county, have sustained a prohibition on commercial retail and cultivation since 2013, some towns have explored the retail pot question.

In 2014 Paonia voters rejected a retail pot question, as was the case in Hotchkiss in 2016. By 2017, Orchard City considered repealing their prohibition on commercial marijuana, as did the Paonia town council.[17]

Aside from the cultivation operation owner, the grow master or cultivator is the only employee who would earn what a displaced coal miner had earned annually.[18] Other jobs in the 420-industry would pay comparable to entry level west slope salaries.[19]

While the Green Rush has more likely than not increased crime and homelessness, the costs of these increases to local societies should be calculated when setting budgets for social serves, programs, and law enforcement. Communities should factor in all costs when considering the economics of boosting a city or county’s coffers.

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[1] Romero, Ezra David. "California Farmers Consider Cashing In On A New Crop . . . Marijuana." Valley Public Radio. NPR, 15 Dec. 2015. Web. 15 Mar. 2017.

[2] Borchardt, Debra. "The Five Best Marijuana Jobs." Forbes. Forbes Magazine, 27 May 2016. Web. 15 Mar. 2017.

[3] Healy, Jack. "Up Early and in Line for a Marijuana Milestone in Colorado." The New York Times. The New York Times, 01 Jan. 2014. Web. 15 Mar. 2017.

[4] McIntyre, Erin. "All Categories 
of Crime in GJ 
rising Sharply." GJSentinel.com. The Grand Junction Daily Sentinel, 15 Mar. 2017. Web. 15 Mar. 2017

[5] Ibid.

[6] Ibid.

[7] Langford, Katie. “Homelessness on rise for kids in District 51: Increase due to better identification, economic and family reasons.” The Grand Junction Daily Sentinel, 18 April 2016. A1+

[8] “The 2016 Annual Homeless Assessment Report (AHAR) to Congress.” US Department of Housing and Urban Development. Office of Community Planning And Development, Nov. 2016. Web. 1 May 2017. Pg.14.

[9] Ibid.

[10] “Crime in Colorado Annual Reports 2005-2015.” Colorado Bureau of Investigation. Colorado Department of Public Safety, 2016. Web. 8 May 2017.

[11] Ibid.

[12] “Foreclosure Reports and Statistics 2002-2015.” Division of Housing. Colorado Department of Local Affairs, 2017. Web. 8 May 2017.

[13] Delta County Treasurer’s Office Report 2006-2016.

[14] Press Release Nov 2014. Abraham Connection / Delta County Homeless Shelter.

[15] Facebook announcement 1 May 2017. Abraham Connection / Delta County Homeless Shelter. Web. Accessed 8 May 2017.

[16] Finley, Bruce. “Collapse of Colorado coal industry leaves mining towns unsure what’s next.” The Denver Post, 14 May 2016. Web. Accessed 8 May 2017.

[17] Soper, Matt. “Timeline details Marijuana votes and regulations (Delta County, Colorado).” Delta County Independent, 1 March 2017.

[18] Op. Cit. see Finley article and Borchardt article.

[19] Ibid. 

Legal Perspective: Doctrine of abatement ab initio

The doctrine of abatement ab initio is a common law creation which operates to extinguish all criminal proceedings initiated against defendant from indictment through conviction, where the
defendant dies pending appeal.

The reason for such a doctrine is twofold: 1) unfair to maintain conviction against a deceased Defendant, where conviction is untested by appellate review, and 2) the primary purpose of criminal proceedings is to punish behaviour and correct behaviour and warm others not to engage in similar behaviour. With Defendant death, the state can't really punish or correct anymore.

Aaron Hernandez entering a courtroom.
2017/NY Post photo

The first part of the reasoning for the doctrine is rooted in Blackstone, which is quoted in the Sports Illustrated article by University of New Hampshire Law Professor Michael McCann, as it is better that 10 guilty go free, than one innocent be punished. This same quote was refashioned by Benjamin Franklin to be 100 guilty go free, than one innocent be punished. The idea is that without a conviction being reviewed by an appellate court, even the narrowest or margins for innocence are untested.

The second part of the reason is the idea that if the person for whom punishment and correction is sought no longer is alive, then the state's interest in penal justice ceases too.

The doctrine dates back to the 19th Century, earlier references being matters of bankruptcy and debt collection, rather than the voiding of a criminal case. The first US Supreme Court case fully addressing the issue was List v. Pennsylvania (1888) 131 U.S. 396. In List, the Court ordered abatement and dismissal of the writ of error. The reasoning was that it was a criminal case. Courts' focus in the 19th and early 20th Centuries was on punishing crime and upholding due process, thus abatement ab initio flows very logically. Later, victims became more of a concern for courts.

 A Texas Court of Appeals in the 1879 case of March v. State, held that a criminal proceeding were still pending when an appeal was being taken. Because defendant died before opinion of appeals court was announced, the court declared that the prosecution abated in toto. March v. State (1879) 5 Tex. Ct. App. 450.

In 1892, the Illinois Supreme Court took the view that, "[a] judgment cannot be enforced when the only subject-matter upon which it can operate has ceased to exist." O'Sullivan v. People (1892) 32 N.E. 192.

Interestingly, some states never developed the doctrine of abatement ab initio, Connecticut is one example. In 1971 the issue came before the state supreme court and the court refused to render opinion, citing that the issue was "neither briefed, nor argued before." State v. Raffone, 285 A.2d 323, 325-26 (Conn. 1971).

The doctrine in the US derived from the issue of whether the obligation to pay penal fines abated with death of the defendant. In the 1907 case of US v. Pomeroy, the Second Circuit Court of Appeals noted there was little precedent for the court, but the judges did reason on policy grounds, stating that the purpose of the criminal is to punish the defendant and not the relic and issues. Court held that defendant's penal monetary obligation abated along with the judgement against defendant and thus the estate was not liable. United States v. Pomeroy, 152 F. 279, 280 (C.C.S.D.N.Y. 1907), rev'd sub. nom., United States v. N.Y. Cent. & H.R.R. Co., 164 F. 324 (2d Cir. 1908).

Throughout the 20th Century the doctrine developed along the lines of Pomeroy. The idea being that the personal representative, estate, spouse and children of deceased defendant should not bear the obligation. Boyd v. State, 108 P. 431 (Okla. Crim. App. 1910); also see: Blackwell v. State, 113 N.E. 723, 723 (Ind. 1916) and People v. Alexander, 281 P. 697, 697 (Cal. Ct. App. 1929).

In the US, "there has never been a constitutional right to appeal a criminal conviction. The ability to review a conviction is essential to protecting due process and ensuring that 'the innocent will
not be punished'." Timothy A. Razel, Dying To Get Away With It: How the Abatement Doctrine Thwarts Justice--And What Should Be Done Instead, 75 Fordham L. Rev. 2193, 2202 (2007).

By the late 20th Century and early 21st Century, the rights of victims emerged as worthy of preserving. 1 Wayne R. LaFave et al., Criminal Procedure § 1.4(k) (2d ed. 2000).

In 1982, President Ronald Reagan commissioned a task force on victim's rights that recommended amending the Sixth Amendment of the US Constitution to ensure victim's right to be "heard" in all phases of criminal proceedings. President's Task Force on Victims of Crime, Final Report 114 (1982). Amending the constitution didn't go anywhere, but proponents were able to convince Congress to pass the Victim and Witness Protection Act of 1982, Pub. L. No. 97-291, 96 Stat. 1248 (codified in scattered sections of 18 U.S.C. (2000)).

Today, the majority of courts, including most all of the federal circuits, allow abatement ab initio. A dozen states refuse to abate a jury conviction and therefore the conviction stands post-defendant death. Around seven states allow a substitute party to continue the appeal on behalf of the defendant, but not abating. The Third and Fourth Circuits abate all but restitution orders. Some states, such as Connecticut, just don't recognise the doctrine.

Victims have an interest in receiving compensation for loss due to crime perpetrated against them by the defendant. The doctrine can have devastating effects on the ability of victims (or their families) to recover damages in a civil action. If the record is not vacated, victims or their families in death cases, can use the criminal conviction in a later civil trial for damages.

Massachusetts has been the scene of three prominent abatement cases. The first is the case of  John Salvi who opened fire on an abortion clinic in 1994, killing two women and injuring five others. After Salvi's conviction, but before appeal, Salvi committed suicide. The court abated and one of the deceased victim's mother took the the pulpit and said it is as if the judiciary wiped Salvi's record clean for the history books. The Massachusetts legislature nearly passed a law the following session to abolish abatement in criminal matters.

The next case is that of Father John Geoghan, a priest who was convicting of sexually molesting children. Geoghan was murdered by a fellow inmate in his prison cell whilst awaiting an appeal. The court abated, rendering him innocent by operation of law. After the order, one lawyer quipped that abatement "revictimize the victims."

The last case is also one that is pending in Massachusetts. Former New England Patriots' Tight End Aaron Hernandez had been convicted, after a nine week jury trial, in April 2015 of murdering, in the first degree, Odin Lloyd. Hernandez was sentenced to life in prison. "On Apr. 19, just five days after being acquitted of two murders in Boston, Hernandez hung himself in his jail cell at the Souza-Baranowski Correctional Center in Shirley, Mass." Michael McCann, Examining the effects of a potential abatement in the aftermath of Aaron Hernandez's death, Sports Illustrated online ed. 2 May 2017.

According to McCann, the prosecution has asked that the court not abate in this case. Time will tell whether the Hernandez case could contribute to the growing trend towards abrogating abatement; or whether the court will follow stare decisis, whereby the court follows precedent.

How to be a County Court Judge in Colorado

We’ve all heard the stories: “You don’t need to go to law school to be an attorney.” “If you fail a section of the bar exam, then you can re-sit that section.” “You don’t need to be a lawyer in order to become a judge.”

As a general rule, all three of the statements are false. There are exceptions, such as Vermont, Washington, California, Virginia and Wyoming that allow for an apprentice readership scheme for being admitted to practice law. When most people think of “the bar exam”, they are referring to the July and February multiday exam, in which you must pass all sections for that sitting in order to pass the entire exam. There is no a la carte exam.

In New York for example, to become licenced, you would need to pass the Uniform Bar Exam
(UBE), the NY Law Exam (NYLE), and the Multistate Professional Responsibility Exam (MPRE). The latter two are offered several times a year and are considered requirements of licensure, but not the bar.

Qualifications to be a judge in Colorado generally go contrary to the one liner above. District Court judges are required to have five years of legal experience practicing before being able to become a judge. Many county courts require that a candidate be at least licenced in Colorado. However, there is an exception where the county is a small population county.

State statute divides counties into four classes. Class C and D counties may have a county court judge that is merely a high school diploma holder. An exception to this exception is when the workload hits 80% of full time. In this case, the judge would need to meet the requirements of a Class B county and be licenced to practice law in Colorado.

CRS 13-6-201 lays out the classes of counties:

Class A shall consist of the city and county of Denver.

Class B shall consist of the counties of Adams, Arapahoe, Boulder, Douglas, Eagle, El Paso, Fremont, Jefferson, La Plata, Larimer, Mesa, Montrose, Pueblo, Summit, Weld, and the city and county of Broomfield.

Class C shall consist of the counties of Alamosa, Delta, Garfield, Las Animas, Logan, Montezuma, Morgan, Otero, Prowers, and Rio Grande.

Class D shall consist of the counties of Archuleta, Baca, Bent, Chaffee, Cheyenne, Clear Creek, Conejos, Costilla, Crowley, Custer, Dolores, Elbert, Gilpin, Grand, Gunnison, Jackson, Hinsdale, Huerfano, Kiowa, Kit Carson, Lake, Lincoln, Mineral, Moffat, Ouray, Park, Phillips, Pitkin, Saguache, San Juan, San Miguel, Sedgwick, Rio Blanco, Routt, Teller, Washington, and Yuma.

The annual salary of Denver is affixed by the ordinances of Denver.

The annual salary of Class B county judges is $63,500. CRS 13-30-103(j). This is section is read in tandum with CRS 13-30-104, which states that “for the fiscal year commencing July 1, 1999, and for each fiscal year thereafter, the increase over and above the provisions set forth in this section and section 13-30-103, if any, in compensation of justices and judges shall be determined by the general assembly as set forth in the annual general appropriations bill. Any increase in judicial compensation set forth in an annual general appropriations bill shall be an increase only for the fiscal year of the annual general appropriations bill in which the amount is specified and shall not constitute an increase for any other fiscal year. It is the intent of the general assembly that an increase in judicial compensation specified in an annual general appropriations bill shall be added to the compensation set forth in this section and section 13-30-103 and shall not represent a statutory change.”

The annual salary of judges of the county court in each Class C or Class D counties is determined annually by the chief justice and certified to the general assembly and the controller pursuant to procedures approved by the Supreme Court. In determining the salaries to take effect on July 1 of each year, the chief justice shall use the average number of cases filed annually in each county court during the three-year period ending on the previous December 31. CRS 13-30-103(l).

For a current table of judge’s salaries in Colorado, click here.

Senate Bill 15-288, which was signed into law by Colorado Gov. John Hickenlooper, on June 3, 2015, ties lawmakers’ and other elected officials’ pay to a percent of judges’ salaries. The law takes effect in January 2019 and means that any increases for judges, will also increase executive and legislative branch pay simultaneously.

When the workload for a part-time county judge reaches eighty percent of a full-time workload, the chief justice may assign the part-time county judge to serve on a full-time basis, so long as the part-time county judge meets the qualifications established for county judges in Class A and Class B counties, as specified in section 13-6-203.

As to the qualifications:

(1) The county judge shall be a qualified elector of the county for which he is elected or appointed and shall reside there so long as he serves as county judge.

(2) In counties of Class A and B, no person shall be eligible for election or appointment to the office of county judge unless he has been admitted to the practice of law in Colorado.

(3) In counties of Class C and Class D, a person is not eligible for appointment to the office of county judge unless he or she has graduated from high school. CSR 13-6-203.

The jurisdiction of county courts includes the handling of such things as civil cases under $15,000, misdemeanours, traffic infractions, small claims, and protection orders.

In 2011, The Denver Post reported that seven counties had non-attorney judges.

Whose prerogative is it anyway? Britain’s referendum to withdraw from EU draws constitutional legal challenges*

1. Introduction

On June 23, 2016 the British people voted to exit the European Union, or simply “Brexit”. The
United Kingdom’s EU Referendum, in which a record 72.2% of the electorate voted, resulted in 48.1% choosing to “remain” and a surprising 51.9% opting to “leave”.

Immediately after the plebiscite’s unexpected outcome, a snowball reaction began that caused turmoil in Britain’s political leadership , a weakened pound-sterling, havoc within financial markets , and challenges to the royal prerogative power . Following the vote, solicitors at Michcon de Reya, acting on behalf of an anonymous group of clients, sought assurances the government would not act without parliament.

2. R (Miller) v Secretary of State for Exiting the EU

In October 2016, the High Court of Justice’s three most senior judges – Lord Thomas of Cwmgiedd, Sir Terence Etherton, and Lord Justice Sale – heard oral arguments in London addressing whether the Crown, acting through the government, is entitled to use royal prerogative powers to trigger Article 50 of the Treaty on European Union (TEU)?  The issue central to this debate is whether the Prime Minister is entitled to use powers of the royal prerogative to commence the two year exiting process, without a vote in Parliament.

This case is the biggest British Constitutional question of the century and pits the royal prerogative powers of the executive branch against the sovereign powers of parliament. The government lost in the high court and is currently appealing to the UK Supreme Court.  Prime Minister Theresa May, through a spokesperson, said, “[T]he government’s planned timetable for triggering Article 50 is unchanged after the court ruling.”

a. Royal Prerogative

The royal prerogative powers were historically exercised by Britain’s monarch acting on his or her own initiative. Today, by constitutional convention, the monarch exercises the prerogative on the advice of the prime minister and the cabinet. It is under the royal prerogative that money is minted, assets allocated for war, pardons granted, and foreign affairs conducted.

b. Parliamentary Sovereignty

In the British Constitutional system, the doctrine of ‘parliamentary sovereignty’  implies the Parliament of Westminster is the supreme legal authority for the entire United Kingdom. Contrast this principle with the United States’ system of government, where a codified constitution is the highest law and the Supreme Court has the power to judicially review acts of Congress and the executive. In the UK, courts cannot generally overrule legislation and no parliament can pass laws binding a future parliament.

2. EU Referendum Act

The legal authority for the EU Referendum came from legislation passed by Parliament in December 2015.  The act said nothing whatsoever about the effect of the vote’s outcome, and the referendum was persuasive and not binding on the government. In practice, the UK government will, most likely, have to respect the vote’s results.


3. Article 50 TEU: Withdrawing from EU

Under Article 50 of the Treaty of European Union (TEU), the framework is laid for withdrawing from the EU. A two-part process is required for invoking Article 50. First, a Member State must “decide” to withdraw, and second, that member state “shall notify” the European Council of their desire to withdraw.

A “decision,” for the purposes of Article 50(1) TEU, must be in accordance with the given member state’s own constitutional requirements. This means a “decision” is made by either the exercise of the prerogative powers (i.e. Prime Minister acting on behalf of the Crown) or through a piece of primary legislation (i.e. Parliament acting in its role as sovereign).

4. Looking forward

The British government announced they planned to “notify” the EU Council of the withdrawal decision by the end of March 2017. The Queen’s 2017 Speech to Parliament will be used to introduce the Great Repeal Bill, which will nullify the European Communities Act 1972 from the statute books. The anticipated date for Brexit to be official would be the end of March 2019, which would be in time for the 2020 General Election.

The government’s timetable could be complicated by the Supreme Court upholding the High Court’s decision, Scotland pressing for a second Independence Referendum, or the Prime Minister asking the Queen to dissolve parliament, triggering a shotgun election.

Even if the Supreme Court upholds the claimant’s position that parliament, as supreme constitutional law, must vote to “decide” to withdraw, more likely than not, Members of Parliament will uphold the people’s determination to leave the EU.

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*ABA Year-in-Review 2016, Section on International Law, Europe Committee (summer 2017)

Amendment 71 pinches our ability to govern ourselves

A lot of folks have told me they are voting for Amendment 71 because it will make the state Constitution harder to change. The reality is Amendment 71 will kill the constitutional initiative system in Colorado, as it creates draconian barriers to direct democracy preventing ordinary Coloradoans from exercising an important constitutional right.

Deciding big constitutional ideas by ballot is a Colorado tradition that goes back over a century. Often times Colorado voters are faced with deciding tough issues that legislators cannot or will not address themselves. Such issues have included: term limits, campaign finance, legalization of marijuana, and limitations on state expenditures (TABOR). Coloradoans have also used initiatives to ban the 1976 Winter Olympics, prohibit underground nuclear explosions, and ban state funded abortion, along with making Colorado a right-to-work state in 1958, legalizing the sale of alcohol in 1932, and creating the power to recall politicians.

Out of all these initiatives, very few are actually approved by the voters. see table

The direct initiative process was not part of the original state constitution in 1876, but became law in the early 1900s when a group of voters got frustrated by the state government being overly influenced by big industries, such as railroads and timber.

In 1912, the first year the right was available in Colorado, voters weighted in on 32 initiatives. Commencing with that first election, some pundits have complained about the process being too easy and a tool used by various voter groups. Lobbyists and special interests enjoy a cozy relationship with representative state government and democracy (via constitutional initiatives) challenges their chokehold on government.

A major shift occurred in 1988 when a unanimous U.S. Supreme Court held, in Meyer v. Grant, that under the political speech doctrine of the 1st Amendment, petition circulators could be paid. Prior to this holding, it was a felony in Colorado to pay signature gatherers. While the rate of initiatives making the ballot has increased, success at the ballot box has decreased since the Meyer decision.

There are two opposing theories of the constitution. One view is that the constitution is an expression of the founders and should rarely, if ever, be touched, leaving tremendous leverage for interpretation by the elected and appointed political actors. The other view treats the constitution as an expression of “We the People” and offers some flexibility and the ability for the people to govern themselves.

Regardless of the underlying theory, the foundational document of government ought to be fairly hard to amend. Is the state worse off because the people have too much power?

Colorado is unique, in that, citizens, through the initiative process may bypass the state legislature and place a statute (called proposition) or state constitution (called amendment) question directly on the ballot. Only 24 states (mostly in the West) allow for the initiative process and of these, only 16 allow citizens to directly amend their constitution.

Amendment 71, ironically, seeks to use the current initiative process to make future initiatives more difficult. The amendment calls for collecting a certain number of signatures from each state senate district (there are 35 in Colorado) just to place future amendments on the ballot. Once on the ballot, the amendment then requires a super majority of 55 percent for the initiative to pass. These restrictions are not in place if an initiative seeks to repeal part of the state constitution.

The complexity of Amendment 71 is a bit tough to swallow. Look at all the trouble a few Republican U.S. Senate candidates had earlier this year attempting to petition onto ballots in seven congressional districts. Imagine spreading that out across 35 senate districts!

If an issue is disliked in one or two districts, those districts would have an effective veto, thus depriving the people the ability to decide if the idea is germane or not.

Whether you love participating in democracy or not, one thing is for sure, Coloradans have, and should continue to enjoy, the ability of “We the People,” to freely exercise direct lawmaking power on proposals to change the state constitution.

If an initiative is bad, Coloradoans have proven they are more than capable of voting down amendments. In fact, only one out of five passed over the past five years.

Looking at some of the more recent constitutional initiatives, none would have passed with the supermajority (55 percent) vote tally as required by the proposed Amendment 71, except one. The Taxpayer Bill of Rights passed in 1992 with only 53.6 percent, but would have failed under the current proposal. Amendment 23 which mandated more funding for k-12 education passed in 2000 with 52.7 percent. It also would have failed. Ironically, Amendment 64, which legalized marijuana in 2012 with 55.3 percent of the vote, would still have become law.

Amendment 71 opens the door for opponents to nix the Taxpayer Bill of Rights (TABOR). The supermajority element does not apply if the initiative seeks to repeal a part of the state constitution. Thus, a progressive billionaire could fund a successful repeal with a vote tally of 50 percent plus one.

The ability of the citizens to directly participate in governing is an effective check on the power of the political class. For the average Coloradan, unduly restricting ballot access, as Amendment 71 does, means a critical democratic tool is only accessible to ultra-big-money interests who can afford the higher costs associated with the complicated signature gathering process.

These are the reasons why I am voting no on Amendment 71: Draconian restrictions on direct democracy, hard to meet signature requirements, and a double-standard for repeal vs. new provisions which would prevent ordinary citizens from an important right. For the good of Colorado vote no on Amendment 71.

Matt Soper, a CMU alumnus and Delta County resident, holds law degrees from University of Edinburgh and the University of New Hampshire. 

_________________________________________

M Soper, "Amendment 71 pinches our ability to govern ourselves" The Daily Sentinel (Grand Junction, Colo.) 16 October 2016 print. B7. online. <http://www.gjsentinel.com/opinion/articles/amendment-71-pinches-our-ability-to-govern-ourselv>; accessed 16 October 2017 

Legal Perspective: How many "mass shootings" are "terrorism"?

After a recent OpEd, Gun deaths told by the numbers, I was asked to examine how many mass shootings were actually at the hand of a terrorist. For this analysis I opted not to exam each mass shooting and apply the facts to the legal definition, but to look first at the broad legal definition and ask the policy question of how frequently should the term “terrorist” be used to describe mass shootings, or any shootings or violent acts toward humans that would satisfy the definition.

Looking at “mass shootings” committed by “terrorists,” the analysis, from a legal standpoint, is a bit challenging. Title 18 USC § 2331 defines "International terrorism" and "domestic terrorism" for purposes of Chapter 113B of the "Terrorism” code.

International terrorism has three characteristics: (i) involvement in violent acts or acts dangerous to human life in violation of state or federal law; (ii) appears to be intended to intimidate a civilian population, or to influence government policy by coercion, or to affect the conduct of a government by mass destruction, assassination, or kidnapping; and (iii) occur outside the territorial jurisdiction of the US, or the act transcended national boundaries.

Domestic terrorism has three characteristics: (i) acts that are dangerous to human life and violate state or federal law; (ii) appears to be intended to intimidate a civilian population, or to influence government policy by coercion, or to affect the conduct of a government by mass destruction, assassination, or kidnapping; and (iii) occurs primarily within the territorial jurisdiction of the US.

The federal crime of terrorism, 18 USC § 2332b, is an offence (i) calculated to influence or affect the conduct of the government by intimidation or coercion, or to retaliate against government action; and (ii) violates one of several statutes, including: killing or attempting to kill people at a federal facility with a dangerous weapon (§ 930(c)), and killing or attempting to kill officers or employees or the US government (§ 1114).

Many mass shootings could potentially be classified as acts of terrorism, as the definition of domestic terrorism is fairly broad. For example, both the Colorado Springs and San Bernardino shootings were acts dangerous to human life, namely the mass shooting, killing, and wounding of a group of a people. Such acts of murdering or attempting to murder are criminalized and in violation of both state and federal laws, thus satisfying the first element of domestic terrorism.

The second element which must be satisfied for the offence of terrorism is that the appearance of the act is to intimidate a civilian population or coerce government policy. An argument can be made that the act of killing or attempting to kill a group of people, especially in a metropolitan area that has sufficient media outlets to cover the act and convey the horror to the nation and world would seem to satisfy the requirement of intimidating a civilian population. As perverted as it may sound, a mass shooter could even be attempting to coerce the government to subvert the Second Amendment of the Constitution. A shooter, who knows one day an event will be the tipping point, may utilize such an act to influence governmental action, even if that action violates certain Constitutional provisions, such as right to bear arms, or the Fourth Amendments right of citizens to be secure in their persons, homes, papers, and effects and free from unreasonable searches and seizures. The key words in the second element are that the act’s appearance is to intimidate or coerce. It could be that the perpetrator’s motive was not to intimidate or coerce, but in order to satisfy the definition it is the appearance by a reasonable prudent person.

The final element of domestic terrorism is that the act took place in the territorial jurisdiction of the US. This is perhaps the easiest of the elements to satisfy. Both of the shootings aforementioned took place within the US.

While many, if not most, mass shootings could be classified under one of the legal definitions of terrorism, calling each event “terrorism” dilutes the meaning of the word. Terrorism is a strong word and should not be thrown out lightly. But when it looks like terrorism, smells like terrorism, then it probably is terrorism and the term should be used accordingly. 

Warnings regarding passions of the popular majority devastating the minority

To some the shutting down of debate and the end of certain ideologies is the aspiration of society. The below is penned response to the effect on the individual when religion, beliefs, ideology, values, morals, history, and law are only in favour of the popular majority.

I have been vilified and told I am the greatest monster known to humanity. But what are my crimes? I am afflicted and distressed, but no offence has been caused by my hand, nor mind or mouth. Yet my enemies have increased and they fiercely hate me. My opinions of love, responsibility, and order have brought the scourge of the mob. When I stand for the rights of the minority, the populace mock me, decry I am what is wrong with society.

All I ask for is strength to carry this through and to be rescued in the end. The only things I carry are my integrity, uprightness, and faith in hope. The nations have entered troubles. Friend and foe is blurred. Right and wrong is not the same as legal and illegal. The legislatures seek to vanquish those out with vogue.

No expression of thought outside the accepted is tolerated. Defence of a liberty becomes grounds for treason. Institutions for free thinking have become the systems for memorization and regurgitation of politically accepted material.

Our legal system punishes the helpless and makes heroes of the wicked. Those with malice live on, but the innocent who incest on privacy are accused of dreadful crimes. Guilty, until proven innocent has become the standard of our system.

History is rewritten and glories of our national past are now shameful to mention. Good deeds are recorded as having guilty intentions and the act of helping one another is written as a mere front. Heroes are vilified and the historic lessons learnt from past mistakes are lost in the rhetoric of advancing an ideology.

The masses have brought loneliness to me. I have retreated to my refuge. My hope is that no shame will be brought one me. Hope is not lost, for I have integrity, a belief in my faith, and a path in truth. I ask for vindication for I wash my hands in innocence, abhor the assemblies of the malice and deceitful. Life is redeemed with mercy and feet resting on level ground.

Mandatory snow-tire legislation needs re-treading

As Coloradoans there is nothing more frustrating than heading over I-70 in the winter and hearing the words “snow storm” and “Interstate closure” in the same sentence.

Colorado has a policy of keeping I-70 open, even during the most treacherous of winter storms. The reason is because of economic injury due to freight delays. According to economic assessment reports from the Department of Transportation and the Motor Carriers Association, disruption of national freight transportation systems stemming from closures of I-70 in Colorado alone is nearly $100 million per year.

I-70 near Loveland Pass / Eisenhower tunnel
Photo credit: thedenverchannel.com 2015

The “chain law” for commercial carriers traversing Colorado is very simple. At all times, from September until May, commercial carriers must carry sufficient snow chains or traction devices or face a $50 penalty.

When the Colorado Department of Transportation declares the chain law in effect, all vehicles with a gross combined weight 26,001 lbs or more are required to have 4 or more drive wheels covered with an appropriate traction device. Vehicles with less than 4 drive wheels must have all drive wheels covered with an appropriate traction device.

The penalty for non-compliance is $500 when the chain law is in effect. If the vehicle causes blockage of a travelable portion of the roadway, then a $1,000 enhanced fine is assessed on the commercial driver.

Colorado’s current non-commercial vehicle snow-tire law is divided into two categories: (1) chains or adequate snow-tires and (2) chains only. The Colorado Department of Transportation has the duty of invoking the “chain law,” which, depending on road conditions, maybe for commercial vehicles only, or all vehicles, including cars, trucks, and SUVs.

Currently, HB-1173, sponsored by Reps. Bob Rankin, R-Carbondale, and Diane Mitsch Bush, D-Steamboat Springs, which passed the Senate Transportation Committee unanimously last week, would require all motor vehicles traveling I-70 from Dotsero to Morrison to have sufficient traction in the form of a four-wheel or all-wheel drive vehicle with regular tires with at least one-eighth of an inch of tread depth, snow-tires with a tread depth of one-eighth of an inch, or carry tire-chains or adequate traction devices.

Drivers found in non-compliance would face a $100 fine. An enhanced penalty of $500 would be added if the non-commercial vehicle causes closure of any portion of the I-70.

The non-commercial version of the commercial “chain law” was designed to mirror the commercial version; however the Rankin-Mitsch Bush version doubles the fee for non-compliance and proceeds to solve no problems.

Under the proposed legislation, the most significant change would be to require non-commercial vehicles to have snow-tires or chains at all times from November 1 to May 15, rather than just when the “chain law” has been declared.

The bill is “nanny government” at its finest and presumes that citizens lack necessary common sense to function in society. Colorado already has a non-commercial snow tire law which is clear and goes into effect when CDOT deems the roads particularly hazardous.

Colo Reps Bob Rankin & Yuelin Willett visit on House floor.

The Rankin-Mitsch Bush bill is a “boy scout” measure of mandating being prepared. While the bill’s authors are at it, they should mandate that Coloradoan’s know how to put on chains, perform CPR, and to always carry a medical kit, blanket, and avalanche shovel just in case accidents happen.

Moving beyond the argument that government is trying to mandate common sense, the Colorado State Patrol would have standing probably cause to search any vehicle for compliance. Fourth Amendment gurus out there should be shivering at the unprecedented power being granted to law enforcement.

It may be easy to determine speeding from a radar gun, but how hard is it to tell if a sedan is carrying chains on a beautiful, sunny, dry road day in January?

Unlike the commercial counterpart or current law concerning non-commercial vehicles, the proposed legislation would allow the state patrol to pick and choose when to enforce the law and on which vehicles. This means even when snow-flakes aren’t flying the state patrol could use this legislation to stop a vehicle in pursuit of other offences or mere revenue generation.

The Rankin-Mitsch Bush bill undermines due process, as cars are categorically not typically equipped with four-wheel or all-wheel drive; thus, creating a strong presumption that these cars may be in violation of traversing I-70 without chains, or at least one-eighth tread, regardless of the chain law being in effect.

This author conducted a analysis of all reported closures of I-70 from February 20 to March 30, 2015 and found of the six times the interstate was closed due to automobile accidents at least four were as a result of a truck or SUV. A conclusion here is that certain drivers, even with presumed adequate tires, operate their vehicle in such a way that reflects a belief of immunity from the effects of icy roads.

Before the Senate sends this bill to the Governor, perhaps a little more tread could be added to eliminate the high risk of abuse and the discriminatory aspects of this legislation.

________________________________
M Soper, "Mandatory Snowtire legislation needs re-treading"The Daily Sentinel (Grand Junction, Colo.) 5 April 2015 pg B5 http://www.gjsentinel.com/opinion/articles/mandatory-snowtire-legislation-needs-retreading# (accessed 5 April 2015)

Public Health: the importance of sports for our youth

Thinking about recent articles in the Delta County Independent, I've becoming concerned about the priorities of the City of Delta and the School District regarding the youth in our community.

Playing tennis at Cleland Park in Delta, Colorado as a 

senior at Delta High School. 

Delta is proposing drastic reductions in hours of operations for Bill Heddles Recreation Center and the School District has been forced to cut a plethora of athletic activities and elective courses from the curriculum.

When I was a freshman, a health speaker said that the best way to lose weight and maintain a healthy life style is to get onto a regime in high school. Typically, the lowest a person will weigh is on their high school graduation. I was 215 lb. my freshman year and worked hard to be at a healthy 160 lb. by graduation. I've fluctuated by 15 lb. both directions, but in the decade since graduation, I've maintained.

Had it not been for programs in school and the rec center, I could not have achieved the level of fitness I have today. In high school I played golf, tennis, and baseball. I also learned about weight lifting, stretching, and running. Today, I use the knowledge I gained then and it has been a lifelong benefit.

By getting kids into a sport they like, it serves society well in the long run by creating healthy adults. Tackling the obesity problem in America and the endemic cardiovascular problems should be a simple, low cost goal to achieve. Instead, local policy makers are saving a nickel now, only to see a dollar's worth of cost later.

Boredom is a major reason for juvenile offences; such as 

vandalism to private property.

Sports teach kids teamwork, competition, and activities they can use beyond their formative years. Most importantly, healthy activities keeps kids off the streets and out of gangs. Boredom is the number one cause of Juvenal offences in Colorado.

With fewer jobs, especially seasonal or part-time jobs for youth, activities to keep youth away from boredom are more important than ever. I'd like to challenge local policy makers to take another look at planned cuts and see if there is a way to achieve both physical health and fiscal health in a prudent and balanced manner.

Beauprez’s anti-gun past may come to haunt him

When asked about the Second Amendment, Bob Beauprez has a tendency of only talking about Governor John Hickenlooper’s policies.

So what about Bob?

A mere 14 years ago, Beauprez and and former Governor Bill Ritter were on the Amendment 22 band

Bob Beauprez flip-flops on 2nd Amendment.

wagon, which was a state-wide referendum calling for special restrictions for gun shows. These included an instant background check for certain sales that take place at a gun show, even if not required had the same sale occurred not at the gun show.

Amendment 22 passed with 70 percent of the vote.

During the 2006 contest between Beauprez and Ritter; Beauprez claimed Ritter loved gun control, whereas he supported the Second Amendment. This claim was the basis of one of the Both-ways-Bob ads which mocked Beauprez for flip-flopping on the Second Amendment.

The Independence Institute defended Beauprez’s mistake, by claiming the error was due to poor journalism by the Denver Post.

However, going back a bit further, when Beauprez was Colorado Republican State Chairman, he sent out a letter to GOP legislators calling for the party uniting on new gun control laws in the aftermath of the Columbine Shooting.

At the time, Rocky Mountain Gun Owners responded to the message by saying, “Gun rights supporters are told, in essence, to sit down, shut up, and take their medicine.”

Beauprez constantly called for closing the “loopholes in our gun laws.” The Owens Administration, working with Chairman Beauprez, crafted legislation to reign-in gun shows, proposed mandatory gun locks, and moved to disarm Coloradoans between the ages of 18 and 21.

Even Congressman Tom Tancredo voted for an assault weapons ban and a ban on magazines, along with making a few incriminating statements after the school shooting.  

The strategy, in the wake of Columbine, was to compromise a little on gun control, in order to maintain control of all three branches of state government. The results of the 2000 General Election saw the Republicans lose the State Senate to the Democrats.

The question now turns, has Beauprez become a hard-line Second Amendment kind of guy?

Recently, the question of gun control arose during an Aspen gathering. Aspen is not necessarily the friendliest of towns for gun advocates. Beauprez, playing to the audience said, if elected, and if a (gun control) repeal comes to me, I’d sign it.

Beauprez further stated that people with mental illnesses shouldn’t have easy access to guns.

Sounds a bit like the old Beauprez?

Perhaps compromising on some aspects makes political sense in some areas of strategy, but once you go down the road of giving an inch, before you know it, you’ve given a mile.

To be fair to Beauprez, he has claimed that a propensity to commit crime must be an element of limiting the Constitutional rights of someone who is mentally ill.

If society knew who had a propensity to commit a crime before a crime occurred, then why wouldn’t we create a pre-crimes police force, as illustrated in the film Minority Report to stop all evils before they occur?

Beauprez has also failed to define who would be legally classified as mentally ill? Does one visit to a psychologist mean a citizen could be pre-empted from their Second Amendment rights?

Prior to endorsing Beauprez this week, State Senator Greg Brophy, had declared both Beauprez and Tancredo weak on the Second Amendment. Yet in his endorsement, Brophy steered clear of gun talk, saying Beauprez had the best odds of winning.

Perhaps being soft on the Second Amendment is the key to winning the even-split urban-7th Congressional District twice, but for voters in rural Colorado the difference between the incumbent and Beauprez regarding gun control is a shady haze of grey.

All hope is not lost.

Republicans Mike Kopp and Scott Gessler, both have served America in the Army and both believe the Second Amendment is a right not to be compromised.

The Rocky Mountain Gun Owners feels the same way and has given Kopp and Gessler the two-thumbs-up.

Defeating Hickenlooper will be tough, but victory only comes if there is a candidate who can draw distinctions, not blur the differences over key policy issues, such as the Second Amendment. 

___________________

Matthew Soper, Letter to the Editor, Beauprez’s past may come back to haunt him, Delta County Independent, May 21, 2014, at A2.

Matthew Soper, Letter to the Editor, Beauprez evaluated on the Second Amendment, Gunnison Country Times, May 21, 2014, at A14.

Hickenlooper's new trademark more than just a beer coaster

This past summer, Gov. John Hickenlooper unveiled a new ‘trianglized-licence plate looking’ trademark to market the State of Colorado nationwide and overseas. More recently, State Rep. Bob Rankin (R-Glenwood Springs), introduced legislation to have the people decide whether they want a new logo for Colorado.

Colorado's new federally registered trademark

A week ago, H.B. 1017 was killed by the Democrats, on a party line vote, in the House Business, Labor, Economic and Workforce Development Committee.

Rep. Rankin fell short of promulgating the negative legal consequences Hickenlooper’s new trademark may have on Colorado businesses. To begin, we need to first understand some basics of American trademark law.

 

A trademark is a word or phrase, logo, or other graphic symbol used by a manufacturer or seller to distinguish its product or products from others in the market place. The main purpose of a trademark is to designate the source of goods or services. Therefore, a trademark is something that only exists with respect to some commercial activity.

Trademarks can take one of three forms: standard character format; stylized/design format; or sound mark. For example, the word: “Coke” is a standard character mark, which means any style or symbol with the word “Coke” is protected under the Lanham Trademark Act of 1946. The Coke bottle-logo is a good example of a stylized/design mark. And yes, the roar of the Harley-Davidson engine is a protected sound mark.

When federally registering marks with the United States Patent and Trademark Office, a class of goods or services must be indicated. Going back to the “Coke” example, the Coca-Cola Company has registered the use of the Coke mark on everything from clothing to toys to food and drink products.

A quick search of the USPTO shows that Hickenlooper’s trademark is registered as a standard character mark, which means that the trademark owner has an obligation to pursue any individual or entity that uses the words: “CO” or “Colorado” on any “Clothing, namely, tee shirts, sweat shirts, polo's, hats, and jackets.”

In layman’s terms, Hickenlooper has successfully stifled private businesses in Colorado who make a living putting the word “Colorado” on a t-shirt and selling it to tourists. In other words, the state is now a direct competitor in the intellectual property arena with Colorado businesses.

In order to avoid open licencing, the State of Colorado will be forced to send hundreds of cease-and-desist-letters to small business across this state who dare infringe upon the state’s intellectual property right.

The second registered class which Hickenlooper is claiming is for “promoting public awareness about Colorado itself, and public services offered through Colorado state government entities, as well as promoting products and services originating from Colorado businesses and organizations.” Here, the state may have a legitimate interest, but the question still remains, why are they claiming a mountain of rights, when they really on need a hill?

The USPTO search also revealed the registered owner is not listed as the State of Colorado, but as Brand Colorado, a division of Colorado Nonprofit Development Center, which is located in Boulder. Shouldn’t the trademark owner be an actual state entity, such as the Colorado Tourism Office?

The Hickenlooper Administration’s effort to replace the Colorado State flag and seal with a trendier brand/trademark circumvents the reason for emblems of state. The current state trademarks – the flag and seal – identify and distinguish the source of state services / goods for the public. Additionally, each agency has its own trademark to indicate to the public the services they offer.

Creating more official trademarks to represent the State of Colorado blurs the distinction of which trademark represents, which is the source of the services. In other words, more marks confuse the public about which one actually represents the State of Colorado.

This past summer I was at the US Open Tennis Championships in New York and saw a man with a ball cap and Colorado flag on it. I asked him if he was from Colorado, as it is always great to see fellow Coloradoans when outside the state. He told me he had just spent a week holidaying in Aspen and thought we had a really cool flag design. Perhaps this New Yorker was not the target of the new trademark marketing campaign.

During my time in Edinburgh, Scotland, it was quite common to see tourists with stylized Colorado gear, mostly an artistic version of the red “C” with fields of blue and white. Of perhaps all the states, Colorado has one of most iconic and memorable flag-trademarks and adding a new mark only serves to block intellectual property fields which should be in the hands of the private sector.

Adding a new trianglized-licence plate looking trademark to the state’s intellectual property portfolio only serves to confuse the general public on which mark actually represents the State of Colorado. Additionally, Hickenlooper’s mark fails the state’s real objective, which is to market the state to tourists, businesses, and investors.