This is a civil rights case decided by the 10th Circuit Court of Appeals this week where Mr. Homaidan Al-Turki argues the Eighth Amendment to the United States Constitution was violated when he was denied medical care while he was a prisoner at Limon Correctional Facility in Colorado.
Mr. Al-Turki was a prisoner of the Limon Correctional Facility. While an inmate he began to feel severe pain in his left side and abdomen. “The pain was so severe that that he collapsed, vomited, and believed he was dying.” Al-Turki v. Robinson, et al. No 13-1107, *3 (10th Cir. Aug. 12, 2014 ). Mr. Al-Turki tried to reach a correctional officer by intercom in his cell. Apparently the officer arrived (the court’s summary is silent to this point) and he told the officer he was “experiencing severe chest pain and naseau, and he asked to be taken to the medical center.” Id. There was only one employee, Nurse Mary Robinson, who was the only medical staff on duty at the time. Id. The officer told the nurse about Mr. Al-Turki’s symptoms. Id. at 3-4.
Defendant [Nurse Robinson] knew that severe abdominal pain may be a symptom of several serious and potentially life-threatening conditions. Defendant also knew that Plaintiff had Type II diabetes and that this made him more susceptible to certain serious illnesses, for some of which pain is an initial symptom. However, Defendant told the officer she would not see Plaintiff because
it was too late and because Plaintiff’s complaint was not an emergency.
— Id. at 4.
Mr. Al-Turki either lost consciousness or fell asleep about three to four hours after the first complaint of pain. Id. He later woke about four hours later feeling somewhat less pain. Id. The pain subsided in another two hours. Id. The pain was caused by the passing of two kidney stones. Id. at 5.
You would think that after the settlement of a lawsuit for jail abuses that resulted in a $3.25 million dollar settlement this week, the Denver Sheriff’s Office would be more forthcoming with their policies and procedures. If the abuses were worth $3.25 million, shouldn’t the public be allowed to review those procedures? Since no procedures for either the Denver Sheriff or the Denver County Jail are available online, I filed an Open Records request.
The Denver Sheriff’s Office kindly told me today that if I wanted a copy of the county jail’s policy’s and procedures they would have to send me an estimate because the bill would be so large. Apparently, no one has ever asked for the Denver County Jail’s operating procedures before, so no public version exists to give me. The kind lady from the Sheriff’s Office told me she would have to go “line-by-line” to ensure only public information would be included. She said she would charge me $30 per hour for her time. She cautioned me the bill could be very large because of the all the hours it would take to make it publicly accessible.
Before, I get into why her bill is ridiculous, let me first publicly note that as of this blog post the Denver Sheriff does not have any policies written about the Colorado Records Act (CORA) whatsoever. I went to the Denver Sheriff website and there is not even a contact person listed for CORA. In fact the Denver Sheriff doesn’t even have a correct non-emergency phone number listed on its homepage (see below). I even searched the entire Denver.gov website and did not receive any help. The kind lady still insisted that she would send me an estimate because it wasn’t her fault that the CORA procedures are not posted on the Denver Sheriff’s website — she does not update the website.
You are my true love, but I can’t stand your mixed constitutional messages anymore. Instead of me having to try to decipher what you mean would you please clarify your intent?
Free speech and copyrights are both protected constitutional interests. Usually those interests act in harmony, but there are times when they conflict.
A copyright grants its holder the power to stop other people – noncopyright holders – from saying certain things or distributing certain messages. A legislative grant of this private power to stop speech on the basis of its content is in overt tension with the constitutional guarantees of speech and press freedom.
— C. Edwin Baker, First Amendment Limits on Copyright, 55. Vand. L. Rev. 891, 892 (2002).
Legislators and courts have grappled with the problem of how to hold police accountable for when rights of citizens are knowingly deprived. In other areas of law it is easy to hold actors accountable directly for their actions. Rightly or wrongly, it is almost impossible to hold a police officer directly accountable with a civil rights lawsuit.
A very interesting article sheds some light on this issue. Working through Open Records requests the author empirically looks at the issue of police officer’s being financially responsible for settlements and judgments in police misconduct cases.
This Article empirically examines an issue central to judicial and scholarly debate about civil rights damages actions: whether law enforcement officials are financially responsible for settlements and judgments in police misconduct cases. The Supreme Court has long assumed that law enforcement officers must personally satisfy settlements and judgments, and has limited individual and government liability in civil rights damages actions—through qualified immunity doctrine, municipal liability standards, and limitations on punitive damages—based in part on this assumption. Scholars disagree about the prevalence of indemnification: Some believe officers almost always satisfy settlements and judgments against them, and others contend indemnification is not a certainty. In this Article, I report the findings of a national study of police indemnification. Through public records requests, interviews, and other sources, I have collected information about indemnification practices in forty-four of the largest law enforcement agencies across the country, and in thirty-seven small and mid-sized agencies. My study reveals that police officers are virtually always indemnified: During the study period, governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement. Law enforcement officers in my study never satisfied a punitive damages award entered against them and almost never contributed anything to settlements or judgments—even when indemnification was prohibited by law or policy, and even when officers were disciplined, terminated, or prosecuted for their conduct. After describing my findings, this Article considers the implications of widespread indemnification for qualified immunity, municipal liability, and punitive damages doctrines; civil rights litigation practice; and the deterrence and compensation goals of 42 U.S.C. § 1983.
It appears the Colorado State Government and LexisNexis think they share some weird type of private ownership over the Colorado Revised Statutes (you know, the state laws). The laws are written by and voted for by legislators elected and paid for by the people of Colorado. Additionally, the laws are the rules that govern civil and criminal matters in the state. The people have more than a passing interest in ownership of the state statutes.
Colorado Revised Statutes and ancillary publications thereto, as published, shall be the sole
property of the state of Colorado as owner and publisher thereof. The committee, or its designee, may register a copyright for and in behalf of the state of Colorado in any and all original publications and editorial work ancillary to the Colorado Revised Statutes that are prepared by the general assembly or its staff. The committee shall use its best efforts to ensure that any federal copyright registered pursuant to this section is appropriately maintained. Any prior actions of
the committee and the revisor in securing such federal copyright are hereby validated. (emphasis added)
— Colo. Rev. Stat. § 2-5-115 – Copyright by State (2013)
Colorado seems to employ the strip club policy of “you can look, but don’t touch” when it comes to the Colorado Revised Statutes. You have to sign a contract of adhesion with LexisNexis to view them anywhere on the internet. You are limited by statute how much you reprint or redistribute without violating Colorado law. Colo. Rev. Stat. § 2-5-118. You can’t purchase the statutes from the Colorado Legislature. You can only purchase them through a single publisher, LexisNexis for about $300 either for the digital or a hardbound version (apparently the costs are the same to make an Ebook as it is a traditional hardbound book).
In short: the state of Colorado thinks it has a copyright interest in the Colorado Revised Statutes that it can contract to LexisNexis. I don’t think they can.
Today is part 3 of my journey into the Colorado Revised Statutes.
I want to place a complete copy of the Colorado Revised Statutes on this website free of charge to download, for anyone who is interested. The problem is that I can’t find a copy, and the state of Colorado and LexisNexis both claim to have some sort of copyright interest in the public state statutes.
Today I called up the Colorado Office of Legislative Legal Services (COLLS) based upon the advice I received yesterday on the Colorado Secretary of State’s website. “Any person wishing to reprint and distribute all or a substantial part of the statutes in either printed or electronic format must obtain prior permission of the Committee on Legal Services… (please see §2-5-118, C.R.S.).” I thought, “ok, I call up and ask for permission.”
I dialed COLLS and explained that I wanted a copy of the Colorado Revised Statutes in electronic format. I then asked if I made my inquiry to the correct department. Maybe the Secretary of State’s website did not know what it was talking about. Anyway, the nice lady on the other end said COLLS is the correct department, and she offered to give me the information to order the Colorado Revised Statutes from LexisNexis. “I don’t want to purchase the statutes from LexisNexis, can’t you give them to me for a reasonable price?” The lady on the phone paused, and replied that she couldn’t because LexisNexis is the contracted publisher of the Colorado Revised Statutes and they would have to sell it to me. She then suggested that I could use the free version on LexisNexis’ website, the one with the forced contract. “I’m sorry, I don’t want to sign a contract to read state law,” I replied.
While still on the phone with the nice lady from COLLS, I decided to take a different route. “I would then like to file an open records request under the Colorado Open Records Act,” I stated. She seemed perplexed. “I will have to transfer you.” She then transferred me to another lady’s voice mail. I left my oral request with her and my phone number. ** I went into detail in the previous post about why I think the current state surrounding the distribution of the state statutes may violate the Colorado Open Records Act.
I decided I better place a formal email too. So I wrote out my request and sent it to firstname.lastname@example.org, the only email address I could find. I placed my request for: 1. A complete current copy of the Colorado Revised Statutes; and 2. All contracts between the Colorado Legislature and LexisNexis. I really want to see what the state voluntarily gave up in the contract.
In the meantime, I called down to LexisNexis. I thought since they have them on their website for free, maybe they would have it in a downloadable format. I talked to a sales representative in their publishing department (like I was instructed to do by the nice lady at COLLS) and I was told that it was only available for purchase — other than the free version where you had to sign your life away and couldn’t download. For a reasonable price of $298 (please note the attempt at sarcasm), I could own the Colorado Revised Statues in Ebook format. However, if I chose to purchase it from LexisNexis I still couldn’t do what I wanted with it. It is unclear if the book comes with pre-installed Digital Rights Management tools (commonly referred to as DRM) that place limitations on the ebook. Such limitations can be, who it is shared with, how many pages are printed, and what can be copied. See LexisNexis DRM explanation.
Colorado Revised Statutes Ebook
Remember from my blog post yesterday noted that the Colorado Legislature set the bar for what they needed to do to provide statutes for the public. “The state acknowledges its obligation to provide official sets of statutes that are reasonably priced, accurate, and easy to use.” Colo. Rev. Stat. § 2-5-105. Putting the misapplied copyright law aside, if the state of Colorado continues to make the argument that LexisNexis is the only place where one can purchase the state statutes, are they implying that $300 for an Ebook that the tax payers subsidize is reasonable? I can not see how the Colorado Legislature is not breaking their own statutes that they created, by allowing LexisNexis to gouge purchasers because they are the sole distributor. Does the Colorado Legislature need money that bad that they have to charge $300 for state statutes? I mean, if things are really that bad maybe we can take up a collection. I am not sure how much money the Colorado Legislature is making off the sales of the state statutes from LexisNexis, but maybe they can create a Kickstarter drive or something to offset the losses. On a side note, filing an open records request in the future to find how much profit the Colorado Legislature made each year off the sales of the Colorado Revised Statutes from LexisNexis is not a bad idea.
The cavalier behavior of the Colorado Legislature on this subject is really disturbing. It really does appear the Colorado Legislature thinks it has a private property interest in the Colorado Revised Statutes.
Colorado Revised Statutes are made available for public use by the Committee on Legal Services of the Colorado General Assembly through a contractual agreement with the LexisNexis Group. Any person wishing to reprint and distribute all or a substantial part of the statutes in either printed or electronic format must obtain prior permission of the Committee on Legal Services; permission is not required to reprint fewer than 200 sections of C.R.S. (please see § 2-5-118, C.R.S.).
— A .pdf posted on Colorado.gov. A screen grab of the document is below.
Here is the text of my Open Records request.
To Whom It May Concern:
Pursuant to Colorado Open Records Act, Colo. Rev. Stat. § 24-72-201 et. seq., I place a request for records to be used for non-commercial purposes that includes my own academic research, and additionally I will make the documents freely available on my website http://cocommonlaw.com:
1. Please provide a complete and current copy of the Colorado Revised Statutes.
2. Please provide a complete copies of any and all contracts the Colorado Legislature has entered into with LexisNexis
I will pay any reasonable fees up to $25 for the documents to be placed on electronic media. If there are charges associated with my request, please inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.
Thank you in advance for your anticipated cooperation in this matter. I request your response within three (3) business days, as per Colo. Rev. Stat. § 24-72-203(3)(b). If you are unable to complete the request within that time, please contact me with your progress and expected completion date.
As an aside, I left a voice mail with Jennifer XXX (I believe that is her name from her voice mail) and left her a voice mail message asking to make an open records request. The person who transferred to me on the telephone, was unclear who the correct person was to submit the request. Please let this email message serve as a formal request for Open Records.