Court Seals File in Highlands Ranch (Colorado) School Shooting Case

Brandon Combs pointed me to the news about the case being sealed, so I reached out to Denver-based First Amendment lawyer Steve Zansberg, a partner at Ballard Spahr, who knows a great deal about such matters; and he was kind enough to pass along the following:

Throughout my career here, which began in 1996, Colorado has had more than its fair share of tragedies that have attracted national media attention: Columbine, Kobe Bryant, the Aurora Theater Shooting, a fatal shooting in a Planned Parenthood clinic the day after Thanksgiving. And, each time such a terrible tragedy had befallen us, the same day, or in the days following it, my phone "rings of the hook," with calls from reporters, producers and news directors saying, "we need to get our hands on the records in the court file, A.S.A.P., so we can tell our readers and viewers what happened, and why [suspect] is charged with [#] counts of murder!"

Not this time.

Last Tuesday, May 7, two high school students shot and killed an 18-year old (Kendrick Castillo, who was to graduate last Friday) and wounded eight other students at the STEM Charter School in Highlands Ranch, Colorado. Both of the shooters were apprehended that day and are being charged, as adults, with multiple counts of murder and attempted murder. The older of the two suspected shooters, Devon Erickson, has appeared in court twice.

But the entire court file in his murder case is "suppressed" from public inspection. This even over the express request of the prosecutor, George Brauchler (who also tried the Aurora Theater Shooting case), to have the judge unseal all court records other than the affidavits of probable cause. Even the criminal Complaint, asserting 48 separate counts, is not available for public inspection. In Colorado, such a "record of official action" cannot be sealed from public view, as a matter of state law.

And yet … I've received not a single call, or email, from anyone (other than Professor Volokh) asking how this could be the case. Isn't this America, after all?

Well, not exactly; it's Colorado.

You may recall that last year, our State Supreme Court issued a ruling saying that in this state—unlike all others—the public enjoys no presumptive right, under the federal or state constitution, to inspect records on file in courts of law. Trial judges, like Theresa Slade in Douglas County District Court, who is presiding over the Erickson murder case, have been given essentially unfettered "discretion" to seal their court files. And, (with our State Supreme Court's blessing), they don't need to articulate any reason beyond "there are countervailing considerations" to justify their denying the public's ability to monitor the conduct of judges, prosecutors and other officers of the court.

So, perhaps that is why my phone hasn't rung. Because in these cash-strapped times, members of the news media cannot afford to fight battles of principle that are "almost certainly a losing cause." And, who knows, there is a chance the court file, or some portions of it, may be unsealed when Erickson next appears in court on June 7. Perhaps.

Yes, sadly, this is America, or at least one outlier state in our great nation.

Comments

[LiborCon]

“So, perhaps that is why my phone hasn’t rung. Because in these cash-strapped times, members of the news media cannot afford to fight battles of principle that are “almost certainly a losing cause.””

Or perhaps because this shooting doesn’t fit with the medias anti-gun agenda, and that demonizing a transgender shooter would contradict the ‘transgendered people are helpless victims of a bigoted society’ narrative.

[Jimmy the Dane]

Shut up. The liberal media doesn’t want you to talk about such things. Being a tranny is totally normal and isn’t in any single way a product of mental illness.

Hey look over here. Remember when a white kid shot up a school. Yeah. Remember that! Let’s do an article about that Dylan Roof kid even though that happened like two years ago.

[Sarcastr0]

Yes, it was sealed in collusion with the vast liberal media-judges-transgender-anti-gun conspiracy.

[Brett Bellmore]

You write that like it’s unlikely. So, why WAS this particular shooting sealed, unlike the others, then?

“Because it disrupts the narrative” seems a pretty good theory.

[C. S. P. Schofield]

I doubt it’s ‘because it disrupts the narrative’. All they have to do to preserve the narrative is ignore the story. The Media twerps are good at that.

No, I suspect that the record has been sealed because one or both of the shooters was a known head case, and the system fumbled him/her. Can’t have our Betters looking like thumb-fingered morons.

[Sarcastr0]

Absence of a clear reason is not evidence of a conspiracy.

C. S. P. Schofield somewhat less outlandish supposition is still an unsupported story filling in the gaps. That’s just inviting bias in to reinforce itself outta nothing real.

[Jimmy the Dane]

The evidence is clear just by the lack of interest in the lame stream media. They don’t want to cover a tranny shooting up a school because it begs the mental illness question. Instead they will go find a fake hate crime to make the next national news story. All for the narrative.

[Sarcastr0]

lame stream media
tranny

Ooh, edgy.

How many multiple shootings by kids do you think aren’t covered by the media? Hint: quite a bit more than you think.

[EddieinLA]

No collusion you effing m0ron. It is the act of leftist judge in blue Colorado. She wants to avoid scrutiny of the membership of these two ghouls in some of the left’s favored groups. Yes, leftist judges are a thing.

[ReaderY]

But the right to keep and bear arms is a right of the people. And only permanent legal residents, and possibly only citizens, are members of the people.

The 9th Circuit might as well say fetuses have a right to life.

[[Eugene Volokh] Court Seals File in Highlands Ranch (Colorado) School Shooting Case – Jehtro Lewis – Blog]

[…] from Law https://reason.com/2019/05/16/court-seals-file-in-highlands-ranch-colorado-school-shooting-case/ […]

[Black Richard]

I don’t understand the reason for the self-referential link. What did I miss?

[Brett Bellmore]

You missed that Reason has implemented “trackbacks” in their comment section? So that when somebody is detected to have placed a link back to a Reason article, a comment like the above is automatically generated?

Notice that the name is a link to a blog commenting on this particular essay?

Personally, I think that, if they’re going to start using trackbacks, they should at least segregate them from the real comments, so as to not disrupt the flow.

[jubulent]

It appears that blog just republishes articles from Volokh.

[KenveeB]

I really don’t understand the purpose of sealing even the indictment. Sealing things like the PC affidavit, obviously, but why seal the formal charges? I don’t see the benefit to any side.

[Robert Beckman]

It’s an exercise of dominance. At the very least, it’s a show of power that the judiciary can.

Same reason teenage boys start fights – to show their dominance.

Or dictators wear military uniforms.

[C. S. P. Schofield]

Dictators wear military uniforms because when they wear their Tarzan leopardskin, people laugh.

[RoyMo]

They just don’t make dictators like Mobuti Sese Seko anymore

[markm23]

Precautionary principle. Judges cannot get into trouble for sealing something that should have been open to the public, but might worry about the opposite error. Were the shooters under 18? In that case, their identities would be protected until there is a determination otherwise. (That can be abused to keep the public from learning that kids with a long record of violent crime, or insanity plus violence, were walking free, but the laws protect the majority of juvenile criminals who appear to be salvageable.)

And these days, nothing that was released once can ever be effectively sealed. A court order just gives many places out of the jurisdiction of all American courts a reason to re-post it.

[C. S. P. Schofield]

It may be that this levil of sealing is the only one that conceals whatever the judge wants concealed…or that lesser levels involve lesser levels of punishment for leaking?

[CrispyBacon]

Today a panel of the 4th Circuit held the Administration’s rescission of DACA unlawful because “it was not adequately explained and thus was arbitrary and capricious.” I would think enforcing a valid law cannot be arbitrary and capricious. Prosecutorial discretion can provide some limited exception to stringent enforcement but should rightfully be revoked if the executive decides.

Interesting contrast with the court here providing absolutely no reason for a decision impacting many important rights.

https://assets.documentcloud.org/documents/6007676/DACA-ca4-20190517.pdf

[Sarcastr0]

The APA constrains executive discretion when it comes to broad policies like this.

It’s not hard for the Administration to build a case under the APA. They’ve proven time and again to be unwilling and unable to do that.

Sealing an individual case is not a broad policy, and also it’s by a court and not under the APA.

[CrispyBacon]

The broad policy of…enforcing the law. The text of the APA forbids review of “agency action…committed to agency discretion by law.” The argument is NOT that the Administration is arbitrary and capricious in its enforcement of immigration law. If that were the case, bring on the APA. The court is a step removed from all that. Per the court, the Executive doesn’t have the discretion to enforce the law as written (a command by Congress to the Executive), if previously the Executive engaged in non- or under-enforcement. Enforcing the law doesn’t require special justification. You point at the law and the judge should say, “oh, you’re right.” To contend, as you (and the 4th) do that the “APA constrains executive discretion when it comes to broad policies like this” presents a gross overreach by the judiciary. As pointed out, the APA forbids it.

Compare this to Texas v. US (5th Cir. 2015) challenge to DAPA [upheld by SCOTUS 4-4]. The Obama Administration argued DAPA unreviewable under the APA. And at least arguendo, the court accepted the argument that the program could be revoked at any time. The court held that while mere nonprosecution may be beyond judicial review it could review whether “the agency exceeded its statutory powers” because the administration claimed to provide legal status and other procedures not authorized by the statute. That dividing line of going outside the text of the statute with a proposed rule is what triggered APA review, per the court.

Obviously the APA is not relevant to the sealing of cases. The analogy concerns the imposition of a rational basis test, which the courts love to foist upon the Executive but less keen to apply to themselves. If you want another analogy, there’s no “rational basis” when courts deny death penalty appeals with little to no explanation. And that is their right.

You say this particular court’s sealing is not a broad rule. But the law permitting it is a broad policy. Given that, you’d think any court acting under it would feel compelled to provide some rationale. They certainly have no right to impose a higher standard against another co-equal branch.

[Sarcastr0]

…I’d say you’re begging all sorts of questions that DACA was against the law as written. The Obama admin put it through some hoops, and the right argued it should have gone through more

I don’t know what’s going on in this case, or why, but your general complaint that courts don’t check themselves often enough seems to ignore the entire structure of our judicial system. Not everything is a question of fact.

[Toranth]

DACA is the same policy as DAPA, just applied to different people. DAPA was found unconstitutional.

These idiots don’t seem to understand that stopping an illegal and unconstitutional policy of violating the law is not subject to the APA.

[CrispyBacon]

I’m relaying what the 5th Circuit wrote about applying the APA to a parallel law. It’s about the standards applied, not about the disposition of that case. Thus your objection to persuasive precedent is bizarre. As explained, the 5th Circuit accepted that a policy of mere under-enforcement of a law can avoid APA standards altogether and such policy may be revoked at whim. You’re acting like the 5th was stringently applying the APA when it was doing just the opposite!

When we’re talking about enforcing a law, the 5th Circuit’s analysis strongly, if not absolutely, indicates enforcing a law avoids APA scrutiny. It should be obvious that the Executive simply enforcing a valid law passed by Congress avoids APA scrutiny.

No idea what you’re on about “ignoring the entire structure of our judicial system” and “not everything is a question of fact.” I’m concerned here with the working of the judicial system, respect for co-equal branches, and the legitimacy of laws.

[Millennial Lawyer]

🙂

“Imagine a deadly school shooting just weeks after the 20th anniversary of Columbine where the media quickly lose interest in it.

You would think you were living in an alternate universe, no?..

One student, who is being hailed as a hero, Kendrick Castillo, was killed; eight others were wounded; and the two suspected shooters, Devon Erickson (18) and Maya McKinney (16), are still alive! That means upcoming court appearances, trials, attorney interviews, interviews with parents and maybe even the suspects themselves.

This is what our media would normally call a Narrative Bonanza, the kind of story that hooks viewers and keeps them tuning in to see how it all ends…

Where’s the 24/7 firehose of experts, the parade of talking heads culled from law enforcement, legal, and psychiatric retirement homes? Where are Jake Tapper’s town halls where not even a rape victim is safe? Where’s the MSNBC freakout over The Children and all those Guns in America?…

There’s no political upside for the media this time.

I mean, this is only a school shooting; it’s not like a kid in a Make America Great Again hat smirked at a member of the protected class.

You see, what we have here is a school shooting that is politically inconvenient to our unbiased, objective, not-at-all left-wing media.

And if a story, any story, is politically inconvenient — if our unbiased, objective, not-at-all left-wing media cannot further a preferred narrative through the coverage of even what amounts to a Columbine Part II — this very same unbiased, objective, not-at-all left-wing media are going to move on as quickly as possible.

Oh, yes, there are countless reasons our corrupt media see this story as toxic.

To begin with, according to various news reports, Maya McKinney is the most inconvenient suspected school shooter of them all, a trans activist, a biological girl who says she is transitioning into a boy.

And Devon Erickson, well, he is real bad news for a media who have spent years demonizing traditional Christians and right-of-center Americans as Nazis because Erickson appears to have taken all that hate to heart. According to reports, Devon is a registered Democrat who hates President Trump, loves Barack Obama, and has used social media to express his hatred of Christians.

A two-year-old Facebook post of his reads, “You know what I hate? All these Christians who hate gays, yet in the bible, it says in Deuteronomy 17:12-13, if someone doesn’t do what their priest tells them to do, they are supposed to die. It has plenty of crazy stuff like that. But all they get out of it is ‘ewwwwww gays.’”

Sure sounds like someone’s been getting his religious training from CNN, amiright?

Overall, this represents a potentially troublesome thread the media do not want to pull on, especially with the news that “the motive of the alleged shooters went beyond bullying and involved revenge and anger towards others at the school.”

“Revenge” and “anger” towards whom exactly?

We’ll probably never know because the media are terrified of what the answer might be.

What’s more, CBS News producer John Fenton reports that Erickson’s car had “666,” what looks like a pentagram, and “fuck society” spray painted on it — so not exactly the Rebel Flag-waving evangelical gun nut in a MAGA cap the media are hoping for.

What about gun control, though?

Where’s the media’s ten-day gun control tantrum?

Well, once again, all the news is politically inconvenient.

To begin with, according to early media reports, both suspects have mental health issues, and the media do not like to talk about mental health because it gets in the way of their fantasy where the federal government kicks in the doors of law-abiding citizens to “buy back” our firearms — you know, for our own good.

Worse still, according to local reports, the weapons used in the shooting were stolen from a locked gun cabinet.

But-but-but what about exploiting the survivors, those young minds that can be twisted into camera Hoggs that perfectly repeat the media’s anti-Second Amendment talking points?

Surely there’s some narrative gold in them thar hills?

Well, you see, STEM School Highlands Ranch is a charter school, which means it is a school that primarily focuses on four areas of education: science, technology, engineering and mathematics — hence, STEM. This also means that unlike our rotting public schools, this school does not focus on these four areas of education: sex with everyone, hate America, icky Christianity, and Trump is a Nazi — or SHIT.

So what we have here is a school filled with students who still retain some independent thought and a healthy spirit of teenage rebellion, which we saw in action when legions of them walked out after anti-gun Democrats and activists perverted what was supposed to be a vigil for the victims into a partisan and divisive anti-gun rally.

There are reports that some students chanted “fuck the media” during the event, which *sniff* brought a tear to my eye.”

[Smooth Like a Rhapsody]

PREACH!

[Jimmy the Dane]

Students don’t want to carry the liberal media’s water and they don’t want to cover something that isn’t convenient to their agenda. Simple as that.

[Stephen Lathrop]

Problem with your take on it Millennial Lawyer, is that you seem to base your rant on the notion that gun control is just tribalism, directed against right wingers. I doubt very many advocates of gun control would view this particular shooting as different from any other, with regard to being an example to prove their (non-tribal) points about gun policy.

[Smooth Like a Rhapsody]

Barack Obama, Hillary Clinton, every person at CNN/MSNBC…and let’s not leave out our very own in house Assistant Village Idiot, Arthur Kirkland, have all made explicit often disgusting, disparaging remarks about gun owners.
Every SINGLE time they get the chance to create another David Hogg, they do it.
If that’s not “tribalism”, what is it?

[WJack]

Millennial Lawyer, best post on THE VOLOKH CONSPIRACY year to date, Wow!

[Millennial Lawyer]

John Nolte wrote it, but I had to share it.

[EddieinLA]

What a joke. Too cash strapped to pick up the phone to ask this attorney to help them get the records? They aren’t too cash strapped to run stories about how many diet Cokes Trump drinks per day so they had plenty of opportunity to place a call to this guy. The shooters don’t fit the bs narrative that right wingers are violent. They are yet another example of unhinged, narcissistic leftists who exemplify the violence of the left as it led to the murder of 50-100 million people in the 20th century.