- The Prosecution asked the Judge to reconsider his ruling from our original Motions Hearing (1/29/2010) in which the Judge ruled that the Deputy Sheriff and the two Social Service Workers were trespassing and unlawfully on our property at the time of the incident. The Prosecution is arguing that if the Judge’s ruling stands (if the trespassing laws and the Constitution applies to Police Officers and Social Service Workers) then the ability to investigate allegations of child abuse would be severely harmed and would violate the Children’s Code directive to investigate those allegations. The prosecution is complaining about a Ruling in which they prevailed: While the Judge did rule that the Deputy and CPS workers were trespassing he did support the prosecutions argument that “evidence of the crime” was admissible in this case due to the corruption of our Constitutional protections through the application of case law. In other words the Prosecution was asking that the Motion that they WON should be reconsidered.
- The Defense asked the Judge to dismiss the case based on testimony provided at the Motions Hearing (1/29/2010) where the Deputy Sheriff and both Social Service Workers all state that I never pointed my gun at anyone AND I never verbally threatened anyone coupled with the 2nd Amendment to the U.S. Constitution and Article II Section 13 of the Colorado Constitution that each provide The People the right to “Bear” (carry) arms. We argued that the application of the Felony Assault and Felony Menacing laws as applied to this case are unconstitutional (they violate the right to bear arms) because the only “crime” I appear to have committed was holding a gun in the presence of a Deputy and CPS workers.
View the Judge’s Rulings from 3/3/2010 here.
In his ruling the Judge calls the Prosecution’s arguments “disingenuous” and denied their request to reconsider his prior ruling maintaining his Ruling that the Deputy Sheriff and both Social Service Workers were TRESPASSING on our property at the time of this alleged “crime”.
What’s more interesting (to me) is that the Judge has created a substantial hill for the Prosecution to climb in order to convict me of the charges (Assaulting a Police Officer and Felony Menacing of the Social Service Workers).
- We will be able to point out to the jury that the Sheriff and CPS workers were trespassing
- The Judge stated that if the prosecution did NOT have MORE or DIFFERENT evidence at trial to support their case then they would FAIL to meet their burden of proof!
- If the Prosecution DOES have MORE or Different evidence to present at trial they will need to prove the charges AND they will need to overcome my right to bear arms in self-defense of myself, my property and my home.
- If the Prosecution is able to convince the jury that I am guilty of any of these charges then he will consider the constitutionality of the laws I am charged with violating “as applied” in my case => He might throw out the guilty verdict if the laws “as applied” are unconstitutional.
Essentially the Judge is agreeing that it is NOT illegal to hold a gun on your own property in Colorado in self-defense! He is also stating in absolute terms that the Trespassing laws of Colorado DO APPLY to Police Officers and Social Service workers (all government workers). Until the 4th amendment of the U.S. Constitution and the 7th Amendment to the Colorado Constitution are BOTH repealed the Police and Social Service workers may NOT invade your property under the color of law draped in the flag of “official business” to question you or I about our activities if we have posted “Keep Out” or “No Trespassing” signs (we have a fundamental right to our privacy and to be secure in our persons, papers, homes and effects).
In plain language the Judge is telling the Prosecution that unless they have more or different evidence of the alleged crimes they don’t have a case. I have been through the discovery material so many times now that I almost have every page memorized. There are certain facts that are not contested:
- I never pointed my gun at anyone
- I never verbally threatened anyone
- I never physically touched anyone or their vehicles
- I never hurt anyone
- I was holding my gun
- The first time the Sheriff’s Deputy and the Social Service Workers saw me I was carrying my gun
- The Deputy and the Social Service workers continued to advance on our property AFTER they saw that I was carrying a gun.
There are some details that are contested:
- Exactly how I was holding my gun (everyone agrees I was holding it with two hands across my body and not pointed at either people or vehicles — but the small details of how I was holding the gun are slightly in dispute)
- Exactly when / where the Deputy and Social Service workers first saw that I was holding a gun (heck, they don’t agree with each other — or even themselves when you compare their statements the day after the incident {7/11/2008} to their sworn testimony at the Motions Hearing {1/29/2010})
- The exact words I used when I told them that if they did not have a warrant they were trespassing and needed to leave immediately (The essence of the statements is agreed to but the exact words and the use of profanity represents the area of conflict)
- The speed of the vehicles entry upon our driveway
I do not believe the Prosecution has any more evidence of the alleged crime then what was presented at the Motions Hearing on 1/29/2010. There were only a few people who were present at this incident: The Deputy Sheriff, the two Social Service Workers, my wife, my son, one of my daughters and myself. All of the key prosecution witnesses testified at the Motions Hearing. The total time of this incident is less than 10 minutes. No amount of creativity is going to change the basic facts of those few minutes and there is no argument that I never pointed my gun, I never verbally threatened, I was extremely consistent in my message.
I suppose they could argue that I was not acting in self-defense. How the heck they think they are going to be able to get away with that logic is a real mind bender: I saw two fast moving vehicles approaching our house at dusk, I had a gut feeling trouble was heading our way, I grabbed my gun and put myself a quarter mile deep in our property on our driveway next to our home and waited for the aggressive trespassers to approach. If that is not the actions of someone in self-defense mode then self-defense does not exist. (I was prepared to defend myself, I exercised my rights to be free from an unreasonable search and used my good judgment to avoid harming anyone without my life or the lives of my family being put directly at risk)
Both the Social Service Workers and the Deputy testified at the Motions Hearing that it was their intent to attempt to “surprise” us with their visit. They take no responsibility for their decision NOT to call first — that is normal operating procedure for these folks. They take NO responsibility for their decision NOT to stop their vehicles the moment they saw me with a gun (The Social Service workers absolutely knew I owned guns — it is in their statements to the Adams County Sheriff’s Detectives on 7/11/2008. After 22 years on the job in Adams County the Sheriff should have known that most rural folk own guns for their own protection.). They take NO responsibility for trespassing on our clearly marked “Keep Out” property (they testified in the Motions Hearing that they routinely ignore Keep Out signs). No, while they are making an aggressive, illegal, surprise visit on our property they feel that all of the responsibility lies with the person who perceives a threat and prepares to defend himself, his property, his home and his family. These are truly dangerous minds at work.
It turns out that the Social Service Worker who was driving the lead car contemplated running me over in my own driveway! That statement is documented in her original statements to the Detectives on 7/11/2008 and is QUOTED in the “AFFIDAVIT IN SUPPORT OF WARRANTLESS ARREST”. I am hard pressed to understand how that Social Service Worker’s statements do NOT achieve the level of intent to inflict bodily harm (including death) with the use of an automobile. It would seem that a reasonable person should be able to easily conclude that the Social Service Workers were operating in an aggressive and potentially dangerous mode and did present a threat to my safety (my gut instinct was correct) and my families safety.
I suppose they could argue that they would never have left if I had not been holding a gun, that they would have continued to trespass. Maybe they will argue that if I had not been holding my gun that they would have removed our children from our custody and possibly added the charge of kidnapping to the list of crimes they were willing to commit on that day. It is really NOT clear to me how they hope to prevail when it was their aggressive and illegal actions that created the situation.
One might think that given the Court’s latest ruling the Prosecution might reconsider and drop the charges against me. However, they are not spending their money, they are spending OUR money and they have no “skin in the game”. They have been out to destroy my life and my family since this incident took place and they show no signs of letting up now.
In one of our prior court dates one of the Deputy D.A.’s told my attorney that they were confident that they would win this case: All they had to do was convince the jury that is was “unreasonable” for me to stand on my own property holding a gun protecting my rights. While that might sound far fetched he was exactly correct and it is not that hard to do when the T.V. is routinely showing programs where the very possession of a gun is a crime. In our current culture very few people take the time to read their State Constitution and understand their rights and responsibilities — let alone the U.S. Constitution. Unfortunately, in most criminal cases today “the law” is not a frequent companion to the deliberations, in fact, the Court “gives the law” to the jury and most jurors do NOT understand that they have the responsibility to judge the facts AND the law in their deliberations:
“The jury has a right to judge both the law as well as the fact in controversy” — John Jay, First Chief Justice of the U.S. Supreme Court, 1789
“The jury has the right to determine both the law and the facts” — Samuel Chase, U.S. Supreme Court Justice, 1796, Signer of the unanimous Declaration
“The jury has the power to bring a verdict in the teeth of both law and fact” — Oliver Wendell Holmes, U.S. Supreme Court Justice, 1902
“The law itself is on trial quite as much as the cause which is to be decided” — Harlan F. Stone, 12th Chief Justice of the U.S. Supreme Court, 1941
The last stand against tyranny is the jury. Most folks have never learned that the fundamental “checks and balances” put in place by our Founding Fathers is NOT the division of power into the Executive, Legislative and Judicial Branches but rather it is the duty of The People to stand up and oppose oppression by government. The easiest method to exercise that responsibility for the average Joe is to participate and engage the system through the process of being a juror.
In may case, the tide appears to be turning through the application of the law with a Judge who does seem to value the U.S. and Colorado Constitutions. The Judge is bringing the law back into the court room so that a juror’s opinion about “reasonable actions” is tempered with the knowledge of some of our natural rights. These small steps will make it much more difficult for the Prosecution to rely upon the drama of the court room and their supposed role as protectors of The People’s “safety” and force them to win this case by proving their allegations of the crimes.
One of the aspects of this case that I have not focused much attention on is that directly after this incident took place I called 911 and attempted to file a trespassing complaint against the Social Service workers and the Sheriff’s Deputy. The 911 operator had the Adams County Sheriff’s Sargent call me back: 3 times I asked that the Sargent take the trespassing complaint and 3 times he refused. The Sargent finally told me that this matter would be settled in court and that criminal charges would be brought against me before he hung up the phone and abruptly ended our conversation. I then filed a written complaint with the Adams County Sheriff’s Internal Affairs division attempting again to file a trespassing complaint as well as filing a complaint against the Sargent who would not take my complaint.
I believe that I must have really pissed off the staff at the Adams County Sheriff’s Department with my persistence in seeking to file the trespassing complaint to the point where they are determined to teach me a lesson. It is clear, now, looking through the discovery material that multiple individual at the Adams County Sheriff’s Department worked to insure that the trespassing complaint was never accepted or investigated. I suppose that they could argue that they are so ignorant of the laws of Colorado that they thought that the trespassing laws simply do not apply to them (but the Judge has now sorted out that misconception) or they could argue that they are ignorant of the natural rights of the People of Colorado that are protected by both the U.S. and Colorado Constitutions and that they did not know that holding a gun on your own property for the purpose of self-defense is NOT a crime (The Judge is sorting that out as well). However, if that argument is made we (The People) really need to consider if the staff we have employed in Adams County in our Sheriff’s Department is properly trained, educated and more essentially, qualified to serve and protect our needs at our expense. Personally, I do not believe these folks are stupid, I believe they knew exactly what they were doing and it is my opinion that they were out to protect their own and used (abused) the power The People have given them to inflict damage on me and my family. (It is my opinion). I think they assumed that I did not have the strength to stand and fight these charges. Truth is, by myself, I never would have had the strength. Fortunately, I live in a community, a global village, that has decided that they would support me and together they have given me the strength to stay the course these last 20 months.
Just in case anyone of Adams County Sheriff’s Staff reads this they should be advised that my natural right to express my opinion is covered by Constitutionally protected “Free Speech”.
The Judge’s ruling is very, very good news. I will not claim that I am not frustrated that the charges have not been dropped. I will not claim that I am not frustrated and angry that the criminal charges were leveled against me in the first place. I will not tell you that my family and I have not been substantially damaged financially, emotionally and even physically by these Police State tactics. I will tell you I am feeling much more optimistic about the outcome of the upcoming trial next week 
Peace,
Dave
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