Relying on Colorado’s 2020 police accountability law, a man attempted to sue the Huerfano County sheriff for causing the prosecution of his assailant to fall through.

A crime victim cannot claim the Huerfano County Sheriff’s Office violated his constitutional rights when it failed to process key evidence and compromised his assailant’s prosecution, Colorado’s second-highest court ruled on Thursday.

In a case that seemed to be the first of its kind, Brian Puerta attempted to sue Sheriff Bruce Newman and three of his subordinates for their failure to submit evidence of his attempted murder for testing in time for the perpetrator’s trial. Puerta’s lawsuit invoked Colorado’s landmark police accountability law, enacted in 2020, which enables people to hold police officers liable for violations of state constitutional rights.

However, a three-judge panel for the Court of Appeals noted the Colorado Constitution forbids the government from depriving someone of life, liberty or property without due process. There was no dispute Puerta’s life and liberty were not at stake, so the only question was whether a competent investigation by law enforcement amounted to a “property” interest.

The panel found no such guarantee existed for Puerta.

“Indeed, the limited case law considering whether a crime victim has a property interest in law enforcement officers’ performance of their duties weighs against Puerta’s position,” wrote Judge Lino S. Lipinsky de Orlov in the Oct. 26 opinion.

The General Assembly enacted Senate Bill 217 as a wide-reaching police reform measure soon after a police officer murdered George Floyd while arresting him in Minneapolis. Sponsors of the legislation invoked the deaths of other Black Americans, including Breonna Taylor in Kentucky and Elijah McClain in Aurora, in justifying the new accountability measures.

Puerta’s lawsuit raised a different sort of dilemma: How can a crime victim hold law enforcement responsible for their mistakes in an investigation?

Relatedly, do Colorado’s laws and constitution protect due process rights more broadly than the U.S. Constitution?

Case: Puerta v. Newman

Decided: October 26, 2023

Jurisdiction: Huerfano County

Ruling: 3-0

Judges: Lino S. Lipinsky de Orlov

Craig R. Welling

Christina F. Gomez

“There currently is no state authority mandating that the police do anything in particular to make sure criminal defendants are prosecuted adequately, thus the Court of Appeals reached the correct result in this case,” said David Lane, a civil rights attorney.

However, Andy McNulty, a lawyer who also litigates civil rights cases, criticized the Court of Appeals panel for borrowing from the U.S. Supreme Court’s interpretation of the federal Constitution, rather than exploring the limits of Colorado’s own due process guarantee.

“The court has to do its own independent analysis,” he said.

According to his lawsuit brought in Huerfano County District Court, Puerta was sitting in his parked car near Walsenburg when John Wilson shot him three times for no apparent reason. A helicopter had to transport Puerta to Pueblo for emergency surgery.

Police soon apprehended Wilson and prosecutors charged him with attempted murder. Wilson’s trial was scheduled for November 2021, meaning the prosecution needed to disclose its evidence to the defense 35 days beforehand.

Despite the prodding of the district attorney’s office, Undersheriff Milan Rapo, Captain Craig Lessar and Deputy Roman Hijar did not send the gun, bullets and other evidence to the state for testing in time for the deadline. Because of the oversight, District Attorney Henry Solano called Puerta to say he had to abandon the attempted murder charge and prosecute Wilson for felony menacing instead.

Wilson ultimately pleaded guilty to vehicular eluding and received three years in prison, rather than 15-25 years for attempted murder.

Puerta and Solano both filed civil suits against the sheriff’s office. Solano alleged the office had a pattern of withholding evidence that compromised public safety in the county. A judge agreed Newman had a “persistent failure” with compliance and ordered the sheriff to comply with his legal obligations in December 2021. Earlier this year, the same judge, M. Jon Kolomitz, held Newman in contempt for disobeying the order.

At the same time, Kolomitz considered Puerta’s claims against the sheriff and his subordinates.

The defendants “recklessly interfered with Mr. Puerta’s rights as a victim by obstructing the District Attorney’s ability to prosecute Mr. Wilson, thus denying Mr. Puerta’s right to due process,” wrote Puerta’s attorneys.

Kolomitz disagreed that the constitutional right to due process allowed Puerta to sue for a shoddy police investigation. He also rejected the idea that Puerta, as a crime victim, was deprived of his right to speak at Wilson’s sentencing hearing for the specific crime of attempted murder.

During oral arguments before the Court of Appeals panel earlier this month, the judges appeared uncertain how Puerta could realistically claim he personally had a “property” interest in the correct handling of evidence.

“You’d have to argue for a particular amount of damages,” Lipinsky observed.

“He was extremely put off by the fact that the trial did not go forward,” responded Puerta’s attorney, Robert M. Liechty. Also, “for the indignation that he had to suffer for not being able to have the satisfaction of a criminal against him be punished.”

“But you can’t tell us the amount?” Lipinsky asked.

Judge Craig R. Welling wondered how Puerta would prove at trial that the improper handling of evidence violated his own constitutional rights.

“You have to have a trial within a trial that establishes, had this been processed, they wouldn’t have dropped the charges. And had they not dropped the charges and had this evidence, they would have been able to prove guilt beyond a reasonable doubt,” he said.

Welling cautioned the result could be that anytime a defendant is acquitted, a victim would be able to sue the police for an allegedly sloppy investigation.

In the panel’s opinion, Lipinsky explained that Puerta’s “indignation” about the handling of his case did not rise to a constitutional violation.

He cited Town of Castle Rock v. Gonzales, a 2005 U.S. Supreme Court decision that found a Colorado woman could not sue the government for law enforcement’s failure to enforce a restraining order against her husband, who ultimately violated the order and killed their children. The Supreme Court’s majority believed the federal Constitution did not guarantee “the benefit that a third party may receive from having someone else arrested.”

Relying heavily on the Castle Rock decision, the panel reasoned the state constitution did not contain that guarantee either.

Lawyers for the defendants declined to comment and Puerta’s attorney did not immediately respond to an email.