Tag Archive: Colorado

Colorado Bill Would Strengthen State Media Shield Law

In response to pressure applied to Jana Winter, a New York-based Fox News reporter, to divulge her source regarding information about the 2012 Aurora, Colorado theater shootings, Colorado state senator Bernie Herpin has authored a bill which would strengthen Colorado’s media shield law.

Jana Winter learned of a notebook the Aurora gunman, James Holmes, sent to his psychiatrist before the shooting took place in July 2012.  Winter discussed the notebook in an article originally published on July 25, 2012.  James Holmes’ attorneys requested a Colorado District Court to compel Winter to travel to Colorado to testify who provided her with the information about the notebook.  Further, since Winter worked and lived in New York, Holmes’ attorneys instituted the proper proceedings in New York, seeking a subpoena be issued compelling Winter to testify.  Ultimately a New York Court of Appeal denied Holmes’ request, relying on New York’s media shield law, which is considered one of the strongest in the nation.

Under the current Colorado media shield law, Winter could be compelled to divulge her confidential sources or be held in contempt and face jail time if she refused.  Sen. Herpin’s bill would not only raise the burden of proof from ‘a preponderance of the evidence’ to the ‘clear and convening’ standard; it also creates a requirement that the party requesting the subpoena show the following four elements:

(1)   “the newsperson did not obtain the information in confidence;”

(2)   “the news information is highly material and relevant to a substantial issue involved in the proceeding;”

(3)   “the news information is critical or necessary to the maintenance of a party’s claim, defense, or proof of an issue material thereto; and”

(4)   “the news information is not obtainable from any alternative source.”

Sen. Herpin’s proposal would make it much more difficult to compel reporters to reveal their sources.  The Colorado Legislature’s Senate Judiciary Committee originally heard the bill on January 15, 2014, but lawmakers, wanting more time to debate the bill, delayed a vote.  During the hearing, Sen. Herpin read a statement by Winter, who wrote, “[n]o journalist should have to go through what I did, simply for doing his or her job and working to protect the public’s right to know.”

On January 27, 2014, Sen. Herpin’s bill was debated again by the Judiciary Committee and ultimately brought to a vote.  The majority of the lawmakers on the Judiciary Committee voted against the proposal, thus killing the bill.  Sen. Herpin said that he was disappointed following the vote, stating, “I think that freedom of the press acting as watchdogs of government is very important.”

Arizona’s Proposed Bathroom Law and Transgender Rights

Arizona lawmakers are considering legislation that would make it a criminal offense for transgender people to use public restrooms not associated with their birth gender. The proposed bill created so much controversy that it had to be delayed. Specifically, the proposed bill provides: “[A] person commits disorderly conduct if they intentionally enter a public restroom, bathroom, shower, bath, dressing room or locker room, and a sign indicates that the room is exclusively for the use of one sex, and that person is not legally classified as a member of that sex on their birth certificate.” The proposed bill makes a violation of the law a Class 1 misdemeanor that could include up to six months in prison or $2,500 in fines.  The bill provides exceptions for persons who enter as part of their job responsibilities; persons who enter to give aid or assistance to another; a child in need of assistance; and persons who are physically disabled.

The proposed bill was largely in response to a human rights ordinance passed by the Phoenix City Council that prohibits gender identity discrimination at public accommodations. State Representative John Kavanagh, who has spearheaded the proposed legislation, argues that the state should not allow people to use facilities based on “what you think you are.” He justifies the proposed law by claiming, “This law simply restores the law of society: Men are men and women are women … For a handful of people to make everyone else uncomfortable just makes no sense.”

There are a number of interesting concerns that this bill raises. One of the chief concerns is how the law would be enforced. Some commentators have aptly noted that the law essentially requires showing papers just to use the bathroom. According to Representative Kavanagh, police officers would have to make judgment calls about when to enforce the law. Another concern with the proposed law is the negative impact it would have on transgender people. According to a recent National Gay and Lesbian Task Force study, fifty-three percent of transgender people report being harassed or disrespected in public accommodations. One commentator cleverly concludes, “The government should keep politics out of the bathroom and focus on other issues. The only ‘papers’ that anyone should have to worry about in the bathroom are Charmin and Angel Soft.”

The debate over the proposed bill also highlights the increased national discussion over transgender rights in recent months. Earlier this year, a six-year old transgender girl in Colorado filed a complaint with the Colorado Division of Civil Rights after her school barred her from using the female restroom after allowing her to do so for a year.

Colorado School District Bathroom Ban for Transgender Student

Coy Mathis is a 6-year-old first grader who identifies herself as a girl but was born with a boy’s body. Recently the Fountain-Fort Carson School District informed Coy’s parents that Coy would no longer be allowed to use the girls’ restroom at school.

Coy Mathis is a triplet who has lived as if she were a girl since she was 18 months of age. By age 4, Coy was telling her mother that she felt as if something were wrong with her body. Coy is diagnosed with gender identity disorder and her doctors recommend that she live as a girl. Since kindergarten Coy has presented as a female and has been using the restrooms designated as girls’ restrooms.

After the decision by the school district not allowing Coy to use the girl’s restroom, Coy’s parents with the assistance of the Transgender Legal Defense and Education Fund (TLDEF), filed a discrimination complaint in Colorado on Coy’s behalf. Attorney Michael Silverman of the TLDEF stated that, “For many transgender people, discrimination is a daily part of life,” and the complaint is “a test of Colorado’s Anti-Discrimination Act.”

In making its decision not allowing Coy to use the girls’ restroom at school, the district “took into account not only Coy but the other students in the building, their parents and the future impact a boy with male genitals using a girls’ bathroom would have as Coy grew older.”

The Fountain-Fort Carson School District is concerned about the possible uncomfortable feelings some students may have if Coy continues to use the girls’ bathroom as her male genitals develop. This concern raises the argument by the TLDEF that by allowing Coy to use the girls’ restroom, the school can send a message to the world and teach fair play, tolerance, and equal rights.

Setting Fire in the Snow? – Arson in “South Park”

Comedy Central’s controversial animated series – “South Park” – has resumed airing episodes of its 16th season. The show is set in the eternally snowy fictional town of South Park, Colorado and centers around the antics of four elementary school aged boys: Stan Marsh, Kyle Broflovski, Eric Cartman and Kenny McCormick. South Park’s latest episode “A Nightmare on Face Time” , which aired on October 24, 2012, was a Halloween themed episode. The episode revolved around Stan’s father – Randy – purchasing a Blockbuster Video franchise. Randy enlists the help of Stan, Sharon (Randy’s wife/Stan’s mother)  and Shelly (Randy’s daughter/Stan’s sister)  to run the franchise’s daily operations. However, the family detests working at Blockbuster because it is a failing business, and never has any customers. Additionally, the family explains to Randy that few people rent movies from Blockbuster because of the advent of RedBox, Netflix, Hulu and other methods of streaming movies online. The failure of the business has a negative effect on Randy, who begins to see, and converse with, ghosts. The family’s hatred for their Blockbuster franchise culminates in Shelly burning down the building. Shelly’s actions raise the issue of whether she committed an act of arson? Because “South Park” is set in Colorado, Colorado law applies.

The Colorado Supreme Court stated, in Copeland v. People, that: “The statute punished [Fourth Degree] arson endangering a person as a felony, and arson endangering only property as a misdemeanor: (1) A person who starts or maintains a fire or causes an explosion on his own property or that of another, and by so doing places another in danger of death or serious bodily injury or places any building or occupied structure of another in danger of damage, commits fourth degree arson. (2) Fourth degree arson is a class 4 felony if a person is thus endangered. (3) Fourth degree arson is a class 2 misdemeanor if only property is thus endangered and the value of the property is one hundred dollars or more. (4) Fourth degree arson is a class 3 misdemeanor if only property is thus endangered and the value of such property is less than one hundred dollars.”

The first element, of starting a fire placing another person in danger of death or serious injury or placing in building in danger, is met because of the circumstances surrounding Shelly’s actions. Immediately prior to Shelly’s setting fire to the building, she is seen pouring gasoline onto the movie shelves in the Blockbuster. Randy then walks up behind Shelly and questions her actions, but Shelly claims that she is doing nothing. Additionally, Shelly subsequently lights a match and throws the match onto the gasoline. After setting the fire, Shelly continues to pour gasoline onto the fire, enhancing the fire’s strength. The aggregation of these actions shows Shelly’s intent to cause damage to the building, and perhaps injure her father.

The second, third and fourth sections of the arson statute are used to determine the severity of the punishment for committing the offense. In this instance, the third and fourth elements are unlikely to be applicable.

The third and fourth sections of the statute apply to situations in which the arsonist only places property in danger of being damaged. As the Colorado Supreme Court states in People v. Garcia, the language of the arson statute is not vague and not difficult to interpret. Additionally, the Colorado Supreme Court stated that the third and fourth sections, of the fourth degree arson statute, apply in situations where only a danger to property exists and there is no danger to human life. Additionally, if there is no danger to human life, and only danger to property, then the arsonist shall be charged with a misdemeanor as opposed to a felony. When applying these principles to Shelly’s burning of the Blockbuster franchise, it is unlikely that Shelly will be charged with misdemeanor arson. The fact that Randy was still present within the building, when Shelly set the fire, shows that Randy’s life was placed in danger by Shelly’s actions. Thus, because Randy’s life, as well as the Blockbuster franchise, was endangered the third and fourth sections cannot be applied to Shelly’s actions.

Finally, the second section of the statute is likely applicable because Shelly placed Randy’s life in danger. The Copeland case states that for fourth degree arson, intent to endanger the safety of another is not necessary. However, it is sufficient if the safety of another is endangered by conduct that is dangerous. Once Shelly set the fire to the Blockbuster building, while Randy was still inside of the building, she placed his life in danger. Furthermore, even if it was not Shelly’s intent to cause harm to Randy, the fact that she placed his life in danger is sufficient to find guilt under the arson statute. Additionally, it is possible that Stan and Sharon were still present in the building, although those facts are not known for certain because Shelly only interacted with Randy prior to setting the fire.  Thus, because Shelly knowingly set fire to the Blockbuster franchise building, and subsequently placed Randy’s life in danger, it is likely that she is liable for arson in the fourth degree.

The issue of arson is raised because Shelly intentionally started a fire, and property was damaged as a result of the fire. Furthermore, human life was endangered as a result of the fire. The burning of the Blockbuster franchise is likely a message, to the viewing public, that video/DVD rentals are becoming obsolete in this new age of technology. Websites like Netflix and Hulu, allow users to view movies and television shows on their computers, cell phones or gaming systems, which eliminates the need for physical copies of movies. Additionally, pricing has become a problem for Blockbuster. Blockbuster charges more for video/DVD rentals than RedBox (Blockbuster charges $1.99 or $2.99 for the first day/ RedBox charges $1.20 for the first day). As a result, more people may rent movies from RedBox because of the less expensive price. Thus, the creators of South Park are relaying a crude message that there is very little, if any, necessity for Blockbuster in this new age of technology.

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