Courthouse News: Restitution and Red-Flags

Diversion Program Offers Restitution, Repairs

In August 2019, District Attorney Bruce Brown started a new Adult Diversion Program for the 5th Judicial District (Clear Creek, Summit, Eagle and Lake Counties), aimed at taking offenders out of traditional criminal justice (court) processes and allowing them to repair the harm they’ve caused to victims, while participating in a structured program to repair themselves.

Since the program’s August inception, 48 felony offenders have been referred to the program or roughly 13% of all persons charged in the District with felony offenses. The advantages of Diversion Programs, as opposed to traditional criminal prosecution, include reduced taxpayer costs associated with jail terms, preserving family relationships, the employment of offenders, and allowing courts to focus their finite resources on violent felony offenders (who are ineligible for diversion)—ultimately, making our communities safer.

5th Judicial District Attorney Bruce Brown

District Attorney Brown, who currently serves on a statewide task force working group aimed at expanding diversion programs throughout Colorado as a result of Senate Bill 19-0081, commented, “Not every crime deserves a formal prosecution. In Colorado, we have one of the highest rates of recidivism in the Nation. If we don’t figure out a way to deal with crime differently we are living the definition of insanity–doing the same thing over and over and hoping for a different result. We want to use innovation to get better results for offenders and victims.”

There are many examples of Fifth Judicial District diversion program referrals and participants, including a recent case involving the destruction of a Town of Vail ice sculpture. The suspect has been referred for diversion suitability and, if accepted, will make restitution for the damage caused, author a letter of apology and perform community service. Other examples are:

• A young single mother who had stolen from her employer out of desperation and in 1 The Commission on Criminal and Juvenile Justice (CCJJ) is making bill recommendations to the 2020 Assembly on alternatives to criminal charges. The proposed Bill is due by July 1, 2020. order to feed her child. After being overwhelmed with guilt, she turned herself in days later and before it was detected. The offender paid full restitution ahead of schedule, within months of entering the diversion program, and she was put into contact with community resources (including food banks and subsidized housing options)–all aimed to help her get her life back on track.
• A young man who had been suicidal when his girlfriend called the police after a volatile situation. The Offender was identified while in jail as in need of mental health services. The DA’s office worked to quickly have him appear before a judge for immediate release so that he could start treatment and return home. He is progressing well with mental health counseling and alcohol addiction treatment. The tenets of adult diversion are simple: offenders take responsibility for their actions and sign a contract outlining the steps they can take to avoid a conviction. The contract terms include: regular check-ins with a District Attorney office staff member, restitution, letters of apology (where appropriate), community service, and participation in appropriate mental health or substance abuse treatment. Offenders who successfully complete contract terms, and who do not re-offend, avoid a felony record, which can impede future job prospects and disrupt families. The Fifth Judicial District Attorney’s diversion program was developed and has been managed by Amy Padden, Supervising Adult Diversion Prosecutor. To learn more about the program, CLICK HERE.

The above report was released to media outlets by the Public Information Officer for District Attorney Bruce Brown on Monday, Jan. 20. ALL PERSONS MENTIONED ARE PRESUMED INNOCENT UNTIL THE CONTRARY IS PROVEN IN A COURT OF LAW.

The “Red-Flag” Law in Lake County

This story was originally posted in May 2019 as the 2019 Colorado Legislative Session wrapped up and bills were signed into law. Among those passed in the 2019 session was HB19-1177, more contemptuously known as the “red flag” bill, into law. And now as 2020 is fully underway, this new law could find its way to the Lake County Courtrooms. Here’s Leadville Today’s report of what elected officials are saying about the Red-Flag Law.

Even if you don’t follow politics, it was hard to miss the firestorm surrounding this new law which will go into effect next January 2020. In brief, this new legislation will allow family or law enforcement to seek a court order to have guns seized if they believe the owner is a threat.

And perhaps it’s that over-simplistic broad-stroke of the measure presented in so many reports that provided a fresh canvass for painting another picture of community division, pitting law enforcement officers against judges, and elected officials against constituents.

The good news is that doesn’t seem to be the case in Leadville Today (LT). And by all accounts, based on LT’s interviews conducted with Lake County Judge Jonathan Shamis, Lake County Sheriff Amy Reyes, and 5th Judicial District Attorney Bruce Brown, America’s highest city might just take the lead in decent discussion, pointing the way towards enforcement of the new law with full civil liberties in check.

Here’s what those community leaders expressed regarding the impact of the new law and how things move forward from here. But first, for readers unfamiliar with the details, you can find a FULL description of HB19-1177 HERE.

Here Comes The Judge: Interpreting HB19-1177

Judge Jonathan Shamis. Photo: Leadville Today

“I’m completely neutral as to whether it’s good or bad legislation. My responsibility is to simply apply and enforce legislation that was passed and signed by the Governor,” stated Judge Jonathan Shamis who has served on the bench in the Lake County Courtroom since 2013. Fortunately, the new legislation won’t be enacted until next January 2020, giving all of the agencies involved from law enforcement to officers of the court, months to sift through the details and create some guidelines for interpretation.

Although at first glance, Judge Shamis thought that the “red-flag” law seems to parallel, to some extent, the process and procedure that currently exists for the issuance of a civil protection order. Generally these cases fall into two categories:  domestic disturbances cases, where there is a potential safety risk to themselves/others, or a criminal offense, can also put the order into motion. So then, is the HB19-1177 legislation duplicitous?  Besides seeing it as creating another mechanism to bring that situation to the attention of the court, Shamis also addresses the additional caveat:

“The thing to me that is most distinctive between the present protective orders and the new legislation is that it empowers law enforcement.  My hope would be that law enforcement would use them sparingly and only where there is a bonafide, legitimate concern for someone’s safety,” said Judge Shamis. “They (law enforcement) have a great deal of ability to expand or contract the utility of the statue.”

The Badge: A Flag on The Play?

That said, how does Lake County’s top law enforcement officer see HB19-1177? In a statement sent to Leadville Today here’s how Lake County Sheriff Amy Reyes responded as the measure worked its way through the legislative process:

Lake County Sheriff Amy Reyes.

“The House Bill as it is written does away with due process and violates the Second Amendment rights as described in the Constitution. I believe that the House Bill is unconstitutional and infringes on the rights of the people to keep and bear arms. The bill as currently written is in direct conflict with the provision of Due Process, as outlined in the Fourth Amendment, and contradicts the right to bear arms.”

So while it doesn’t appear that Sheriff Reyes is likely to initiate many orders in light of the new law, her officers would be required to enforce any as issued by Judge Shamis or other judicial officers. And while Sheriff Reyes declined to respond to LT’s questions regarding enforcement, Judge Shamis addressed the issue, confidently:

“If I give an order, law enforcement has a responsibility.  My experience with all law enforcement in the area is that if I give an order, I’ve never had any law enforcement agency say ‘I don’t care,’ or ‘I’m not going to do it.’”

(Protective) Order in the Court

So how many times is this likely to come up in Lake County Courts? It’s here that 5th Judicial District Attorney Bruce Brown brings the local picture into focus, at least when it comes to his jurisdiction which includes Lake, Summit, Eagle and Clear Creek Counties.

“I estimate the process articulated under Red Flag will be utilized approximately five times a year throughout the Fifth Judicial,” stated Brown in an exclusive interview with Leadville Today. In fact, Brown was an advocate for the measure.

“I supported (the) passage and testified before the Senate Committee about my support.” It’s an opinion that most on the prosecution end support, viewing the new measure as another layer of protection for those they consider at risk.

However, Judge Shamis also understands the “vengeance” consideration and sees that as a legitimate and real concern, but he insists that checks and balances already exist within any action that comes before the court, especially where someone might have another agenda.

“Any traditional officer would recognize that someone’s fundamental constitutional rights are at play and so in order to take any action even on a temporary ex parte basis, there needs to be a bonafide concern that meets the legal standard to issue the order,” the judge explains in legalize, but after six years on the Lake County bench, he also has the cases on-the-record to back that up.

Colorado is the 15th state in the country to have a so-called “red flag” gun law. Photo: Taken at Lake County Public Shooting Range/Leadville Today

There are individuals who have appeared before the Lake County Court that posed a potential safety risk to themselves or to others and petitions for the removal of firearms were ordered under a civil protection order. In addition, there have also been cases that have seen the implementation of what many Leadville locals know as Vonnie’s Law. While the Judge would not cite specific cases he did share that “yes, there was a need for the legislation and there are cases that come before my court where these issues are clear,” Judge Shamis stated in an exclusive Leadville Today interview. “It’s not infrequent.”

In neighboring communities, the debate took on a more heated tone, most notably coming to a frothy head with Senator Kerry Donovan (who also represents Lake County) during a Chaffee County Town Hall meeting at the local brewpub. That meeting resulted in their Sheriff requesting Chaffee’s BOCC to declare itself a Second Amendment Sanctuary County (SASC), an action that was voted down leaving the Chaffee Sheriff to sort out the impacts for his department. The term SASC, in brief, refers to resolutions adopted by more than half the counties in Colorado to not expend resources to enforce certain gun control measures perceived as violative of the Second Amendment. According to Lake County Clerk and Recorder Patty Berger, Leadville’s local BOCC has not even discussed the SASC issue in any formal meetings. Lake County has NOT declared itself a Second Amendment Sanctuary County.

Regardless, the new measure will soon be enacted; the clock has already started ticking on HB19-1177, now known as an “extreme risk protection order.”  Fortunately, it sounds like the judiciary component already has a jump on the game. In fact, one of Judge Shamis’ great efforts on the bench has been to elevate judicial confidence in areas of mental health.

“There are now so many mental health issues that come before the court that we are developing a portfolio for judges and judicial officers to have a higher level of confidence in dealing with these issues so that we can determine what is reliable information, and what is not reliable,” said Shamis.

Good to know.

Judge Shamis on the new “red-flag” law: The thing to me that is most distinctive between the present protective orders and the new legislation is that it empowers law enforcement.

Mental Health Advocates Take on The Measure

On the patient end of the issue, Leadville’s established and credentialed mental health care provider was asked to weigh in on the issue at last Monday’s Leadville Education Night.

“This is a clear opportunity for people to become more aware that we need investment in a higher level of care, particularly in small rural communities,” stated Brian Turner, CEO of Solvista who agreed to go on the record although officially the mental health organization does not take positions on legislation. “Those law enforcement officials and commissioners who have worked together are nothing but our biggest champions,” stated Turner who ultimately sees the extreme risk protection order as another tool in their box to keep people safe.

“Solvista really wants to build out an entire continuum of care including a 24/7 crisis center, detox beds, and short term residential treatment.” Ultimately their vision includes building out more resources and direct patient assistance rather than legislative policy. It’s a plan that could ease the pressure on emergency rooms and law enforcement, as well as allowing Solvista to treat patients where they live rather than having to shift them around to various services throughout the state. They have begun to put that plan into motion, particularly under Turner’s leadership, which marked one-year last month. Solvista Health is located at 714 Front Street in Leadville. Readers may review their list of services on their website.

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