People v. Juvenile Court, City and County of Denver, 93SA325

Docket NºNo. 93SA325
Citation893 P.2d 81
Case DateMarch 13, 1995
CourtSupreme Court of Colorado

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893 P.2d 81
The PEOPLE of the State of Colorado, Petitioner,
Judges Thereof, Honorable David E. Ramirez, Respondents.
No. 93SA325.
Supreme Court of Colorado,
En Banc.
March 13, 1995.
As Modified on Denial of Rehearing
April 17, 1995.

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A. William Ritter, Jr., Dist. Atty., Second Judicial Dist., Nathan B. Coats, Chief Appellate Deputy Dist. Atty., Denver, for petitioner.

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David F. Vela, State Public Defender, David M. Furman, Julie Iskenderian, Deputy State Public Defenders, Denver, for respondent.

Bonham, Peake & Hutchinson, P.C., Kathy P. Bonham, Denver, Susan L. Burrell, Youth Law Center, San Francisco, CA, for amicus curiae Youth Law Center.

Nancy J. Hutchinson, Denver, for amicus curiae American Civil Liberties Union.

Rudolph Schware, Ruth Buechler, Denver, for amicus curiae Nat. Lawyers Guild.

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John Daniel Dailey, Deputy Atty. Gen., Denver, for amicus curiae Colorado State Atty. Gen.

Justice KIRSHBAUM delivered the Opinion of the Court.

In this original proceeding filed pursuant to C.A.R. 21, the petitioner, the People of the State of Colorado, challenges an order entered by the respondent, the Juvenile Court of the City and County of Denver, concluding that section 19-2-204(3)(a)(III), 8B C.R.S. (1994 Supp.) (the presumption statute), violates constitutional guarantees of substantive and procedural due process of law. The petitioner also seeks reversal of a portion of the juvenile court's order purporting to prohibit future pretrial secure detention of juveniles accused of violating section 18-12-108.5, 8B C.R.S. (1994 Supp.) (the handgun statute). Having issued a rule to show cause why the relief requested should not be granted, we make the rule absolute.


In September 1993, the Governor of the State of Colorado, Roy Romer, convened a special session of the General Assembly to consider issues related to conduct by juveniles. During that special session the General Assembly adopted several measures prohibiting the possession of handguns by juveniles, 1 including the presumption statute. 2 That statute provides that a juvenile is presumed dangerous to himself or herself or the community and therefore may be ordered by a judicial officer to be detained if the juvenile is alleged to have committed a crime as enumerated in section 16-11-309, 8A C.R.S. (1986 & 1994 Supp.); to have committed a felony offense as enumerated in article 3 of title 18, C.R.S.; to have used a firearm during the commission of a felony; or to have possessed a handgun in violation of the handgun statute. 3 Ch. 1, §§ 1-16, 1994 Colo.Sess.Laws 1st Extraordinary Session 1-10.

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On Friday, October 8, 1993, F.N., a juvenile, was arrested for felony menacing in violation of section 18-3-206, 8B C.R.S. (1986), 4 and unlawful possession of a handgun by a juvenile, in violation of the handgun statute. F.N. was immediately placed at Gilliam Youth Center (Gilliam), a facility designed for the confinement of juveniles, in secure detention. On Sunday, October 10, 1993, a magistrate found probable cause to detain F.N. for felony menacing and for violation of the handgun statute. 5

On Tuesday, October 12, 1993, a hearing officer conducted a detention hearing, pursuant to section 19-2-204(3)(a)(I), 8B C.R.S. (1994 Supp.). F.N. was represented by a public defender at the hearing. The prosecutor recommended continued detention of F.N. pending a priority filing of a delinquency petition. 6 After reviewing the pretrial detention worksheet and the police report, the hearing officer found that F.N. had pointed a loaded handgun at two people after making "some rather tasteless remarks" to them, concluded that he constituted a danger to himself and to the community, and ordered his continued detention.

On Thursday, October 14, 1993, a petition in delinquency was filed charging F.N. with the class 5 felony of felony menacing and the class 2 misdemeanor of illegal possession of a handgun by a juvenile. On October 19, 1993, F.N. was transferred to the juvenile detention unit of the Arapahoe County Jail.

On October 21, 1993, F.N. filed a motion for release from custody, asserting as grounds therefor that the handgun statute creates a status offense and that detention for commission of a status offense violates the Colorado Children's Code, §§ 19-1-101 to 19-6-106, 8B C.R.S. (1994 Supp.) (the Children's Code), and the Juvenile Justice Delinquency and Prevention Act, 42 U.S.C. §§ 5601 to 5785 (1980) (the Juvenile Act); that the detention of juveniles without bond at Gilliam and at the Arapahoe County Jail constitutes a violation of the Children's Code; and that the presumption statute, both facially and as applied to F.N., violates the due process and equal protection clauses of the Fifth and Fourteenth Amendments to the United States Constitution and article II, section 25, of the Colorado Constitution.

A hearing on the motion was held, during which several witnesses testified with respect to conditions at Gilliam and the Arapahoe County Jail. At the conclusion of the hearing the juvenile court entered an order concluding in part that enactment of the handgun statute and the presumption statute "gives rise to a Constitutional right to bail for affected juveniles." The juvenile court found that Gilliam and the Arapahoe County Jail were overcrowded, unsanitary, and in many respects unsafe and that juveniles were not treated differently than adults at the Arapahoe County Jail. The juvenile court held that in light of these circumstances detention of juveniles in those two facilities constituted punishment and that no justification

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existed for denying to such juveniles the constitutional rights to bail enjoyed by adults. The juvenile court also determined that the presumption statute places the burden of persuasion on a detained juvenile to overcome the presumption of dangerousness and that a juvenile's constitutional right to refuse to make self-incriminating statements is impermissibly implicated by the presumption statute.

The juvenile court concluded that in combination the handgun statute and the presumption statute violate the Children's Code and the Juvenile Act and that the presumption statute violates constitutionally protected substantive and procedural due process rights of juveniles, facially and as applied to F.N. The juvenile court ordered F.N. released on bond and also entered an order prohibiting the state from detaining juvenile status offenders in secure facilities. Pursuant to the People's request, we have stayed that portion of the juvenile court's order purporting to prohibit the state from seeking secure detention of juveniles who allegedly have violated the handgun statute. 7


The People initially contend that the juvenile court erred in concluding that in combination the handgun statute and the presumption statute violate the Children's Code and the Juvenile Act. We agree that the statutes do not violate the Children's Code. The issue of whether the juvenile court erred in determining that the statutes violate the Juvenile Act is moot.


It must first be observed that F.N. was initially detained on the basis of allegations that he committed the offense of felony menacing by use of a deadly weapon as well as the offense of possession of a handgun. The former offense is not a status offense. To the extent the juvenile court's analysis is focused exclusively on the assumption that F.N. was detained on the basis of an alleged status offense, the analysis is fundamentally flawed.

The handgun statute prohibits any person younger than eighteen years of age from knowingly possessing a handgun. § 18-12-108.5(1)(a), 8B C.R.S. (1994 Supp.). An initial violation of the statute constitutes a class 2 misdemeanor offense. § 18-12-108.5(1)(c)(I), 8B C.R.S. (1994 Supp.). Any subsequent violation of the statute constitutes a class 5 felony offense. § 18-12-108.5(1)(c)(II), 8B C.R.S. (1994 Supp.). The statute constitutes an amendment to the Colorado Criminal Code. The purposes of the Criminal Code are quite different from the purposes of the Children's Code. People ex rel. M.C., 774 P.2d 857, 861 (Colo.1989). An amendment furthering the purposes of the former cannot be deemed invalid on the ground that such legislation is contrary to the purposes of the latter.

The juvenile court appropriately noted that the offense of possession of a handgun by a juvenile is a "status" offense--an offense consisting of conduct that would not constitute an offense if engaged in by an adult. In re J.E.S., 817 P.2d 508, 512 n. 6 (Colo.1991). The presumption statute establishes a presumption that any juvenile alleged to have committed one of several enumerated offenses will be presumed to be a danger to himself or herself or the community, warranting further detention. § 19-2-204(3)(a)(III), 8B C.R.S. (1994 Supp.).

Two sections of the Children's Code are directly related to the detention of youths. Section 19-2-204(1) contains the following pertinent provisions respecting the detention of children who do not require physical restriction:

Detention and shelter--hearing--time limits--confinement with adult offenders--restrictions. (1) A juvenile who must be taken from his home but who does not require physical restriction shall be given temporary care in a shelter facility designated by the court or the county department

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of social services and shall not be placed in detention.

§ 19-2-204(1), 8B C.R.S. (1994 Supp.). Section 19-3-401 contains the following provisions respecting temporary custody of children:

Taking children into custody. (1) A child may be taken into temporary custody by a law enforcement officer without order of the court:

(a) When the child is abandoned, lost, or seriously endangered in such child's surroundings or...

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