To harm or not to harm: State Supreme Court reviews law prohibiting spitting at officers | Law courts

While it’s undisputed that intentionally spitting at a police officer is a crime, Colorado Supreme Court justices debated whether a La Plata County woman was properly convicted of a felony for spitting or whether she had actually committed a less serious offence.

A jury found Cheryl Lynette Plemmons guilty in 2017 of three counts of felony second-degree assault for spitting at two police officers who had originally arrived to conduct a welfare check. She spat at the two officers inside her home and once inside a patrol car. Colorado prohibits the act of bringing first responders into contact with saliva, blood, or feces if there is an “intent to infect, injure, or harm.”

Plemmons testified that by spitting she wanted to convey the message “Please don’t hurt me, please don’t take me to jail”. But the government tried to prove that Plemmons actually intended to harm. As the prosecutor told the jury, “she wasn’t spitting on them for jokes, she was spitting on them because she wanted them hurt.”

District Court Judge William L. Herringer gave jurors an instruction defining the term “prejudice.” Under the law, Herringer said, that meant “psychological or emotional harm” that could include fear, anxiety, or “another type of significant distress” from contact with bodily fluids. Further, Plemmons need not intend to cause “permanent or lasting” harm, but rather “psychological or emotional harm that is not fleeting or minimal in nature.”

This instruction was central to Plemmons’ appeal.

“This case is about the meaning of harm. I ask this court to consider that harm refers exclusively to physical injuries,” Assistant Public Defender Jacob B. McMahon, representing Plemmons, told the judges. To hold otherwise “invites unconstitutional discriminatory application by allowing the state to arbitrarily select torts and crimes for substantially the same conduct.”

McMahon was referring to the fact that there is another prohibition in Colorado law against spitting at first responders. Unlike the Crimes Act, which requires an intent to infect, injure or injure, someone is only guilty of a misdemeanor if they spit with the intent to “harass, annoy, threaten or alarm”.

The judges wondered how to draw a clear line between two offenses that seem similar, but have different criminal consequences.

“What’s it like to prove, as this trial judge said, that someone must have done a significant injury? Significantly alarming someone emotionally versus less significantly injuring someone emotionally ?” wondered Judge Melissa Hart.

Until 2015, it was a misdemeanor to spit on an officer with intent to infect, harm, injure, harass, annoy, threaten or alarm. The legislature that year took the first three intentions and created a new crime with them. As proposed, Senate Bill 67 would have simply left any act of spitting at first responders as a crime, but lawmakers changed the measure to avoid overcriminalizing actions like spitting on a firefighter’s boots.

The Supreme Court, however, found no clear direction from the legislature on how to interpret an intent to harm differently from an intent to annoy or alarm. Judge Monica M. Márquez was concerned that, without meaningful distinction, district attorneys could charge someone with a felony or misdemeanor on a whim.

“We’re potentially giving prosecuting authorities too much leeway to take two defendants, each of whom spits in the face of an officer, and treat them totally differently. I’m concerned about that,” she said.

Assistant Attorney General Patrick A. Withers acknowledged the law was “not an ideal law,” but said it was possible to single out the conduct. He dismissed McMahon’s attempt to describe “damage” as exclusively physical, arguing that the common usage of the word suggested a broader meaning.

“Indeed, when the Rolling Stones sang, ‘Who’s that woman on your arm? All dressed to hurt you, “no one asked how the woman’s clothes would cause physical pain to her mate,” Withers wrote in the government brief.

Withers instead believed that “harm” in crime law meant “substantial” harm with greater “duration or intensity” than mere annoyance.

“You’re asking us to cram a lot of things into one word, wrong,” Márquez quipped, adding that those descriptors didn’t appear anywhere in the instructions given to the Plemmons jury.

“You spit on someone, you cause them a great emotional upset, they’re worried. That seems to be the definition of an intent to alarm,” Judge Richard L. Gabriel said. “I guess I have a constitutional concern about letting the jury decide what’s important and the prosecutor could indict anyone.”

In February last year, the state Court of Appeals upheld the jury’s instruction, finding it made it clear that spitting in a way that created a risk to the officer – spitting in the face rather on his shoe – adequately communicated what “harm” meant.

McMahon acknowledged that people, including police officers, can be rightly upset when they spit on them.

“But the law is not in terms of are you really traumatized or are you only slightly traumatized,” he told the Supreme Court. “If you intend to freak someone out … you have alarmed them.”

The justices agreed to hear Plemmons’ appeal only to consider the accuracy of the trial court’s definition of “harm” and, therefore, whether there was enough evidence of harm to support the claims. Plemmons convictions. Plemmons had also sought a review of the Court of Appeal’s ruling that the Crimes Act was not so vague as to be unconstitutional.

In Plemmons’ view, the meaning of “prejudice” was ambiguous and could lead prosecutors to, as Márquez and Gabriel suggested, arbitrarily charge a person with a crime or misdemeanor. The Supreme Court declined to review the law’s constitutionality, but individual justices nevertheless felt they could consider the constitutional implications of a vague law in their decision.

“The lawmakers were pretty clearly trying to address what is a significant real-world problem – which involves many pathogens – and police officers and others who have people in custody need to be concerned about these agents. pathogens,” Judge William W. Hood said. III. “The trauma that accompanies being spat on arguably exceeds the trauma one can feel even if one is punched in the face.”

But when it comes to the meaning of evil, he added, “all roads seem to lead to ambiguity for me.”

The case is Plemons c. People.

About Jessica J. Bass

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