In Case Against Department of Human Services, Dearth of Specific Case Law Brings Challenges

Settlement in civil rights case earns attorneys Case of the Year nomination

Killmer Lane & Newman has built itself a reputation for taking on challenging civil rights cases, which often come with troubling fact patterns. For a settlement the firm reached last year in K.M., et al v. Hickenlooper, et al, Mari Newman, Darold Killmer and Michael Fairhurst, along with solo attorney James Croshal, have earned a nomination for the Colorado Trial Lawyers Association’s Case of the Year Award. The case involved alleged violations of the rights of people with disabilities living at the Pueblo Regional Center.

More than two dozen residents sued, either in their own capacity or through next friends, after they were subjected to nonconsensual strip searches in March 2015 by employees of the Colorado Department of Human Services. The Arc of Pueblo and the Arc Pikes Peak Region served as next friends for several of the plaintiffs. They brought claims under a number of federal laws, including the Fourth Amendment, the Americans with Disabilities Act for illegal discrimination and failure to accommodate, and the 14th Amendment for violation of familial right to make decisions concerning the care, custody and control of wards.

The case settled last spring. The CDHS agreed to pay $1 million to the plaintiffs, along with making a number of policy changes at the Pueblo Regional Center. The changes included an expansion of incident reporting requirements, no longer using blanket consent forms for residents and more communication with residents’ legal guardians.

Newman said the monetary part of the settlement is important because it shows the gravity of what the plaintiffs went through. But it also helped the plaintiffs purchase comforts that can make their lives better, such as reclining chairs or a vacation. Newman said such things make a big difference in their quality of life given the limitations they have to live with because of their disabilities. 

One benefit of the settlement, in general, she added, is the ability to negotiate policy changes that a jury wouldn’t have had the ability to mandate had the case gone all the way through trial.

According to the complaint, employees of the Colorado Department of Human Services subjected Pueblo Regional Center residents to strip searches the residents were not given the opportunity to give consent for. The complaint also alleged most of the residents weren’t legally competent to give consent, and the CDHS didn’t seek consent from their legal guardians or get warrants for the searches. The strip searches were performed because of suspicions that a few Pueblo Regional Center residents may have been abused several months earlier, stated the complaint, which called the suspicions “vague, stale and anecdotal.”

More than a dozen CDHS employees, the CDHS as a whole and then-Gov. John Hickenlooper were among the named defendants.

Newman said the case set in motion when some Pueblo Regional Center residents under the guardianship of the Arc of Pueblo who have the capacity to speak told executive director Stephanie Garcia about the strip searches. Garcia alerted Croshal, a local attorney, who Newman said then contacted her since he doesn’t specialize in constitutional law. She said Croshal played a big role in getting the settlement approved in probate court. 

In addition to the legal claims being complex, Newman said the investigation process into the incident was also complicated because the residents’ disabilities could make communication difficult, especially since some are nonverbal. 

“It wasn’t the standard kind of investigative interview that you could do. The questions had to be very carefully asked to not plant the answer,” she said. Newman added she also had to take care not to re-victimize the residents when she talked to them about the strip searches.

The CDHS employees who conducted the strip searches did not work at the Pueblo Regional Center. Newman said some people who did work there witnessed the searches, and the accounts they and residents gave of the incident differed from how the defendants said the searches were conducted. The complaint states CDHS spokespeople referred to the searches as “body inspections,” “body audits” and “skin audits,” terms the complaint called “inaccurate” and “misleading.”

Newman said a lack of case law to provide guidance on this particular case’s fact pattern complicated things as well, because the state is entitled to qualified immunity from liability if there isn’t clearly established law that the government’s conduct at issue is illegal. 

Newman said there is case law, though, that says the state can’t claim immunity for conduct that doesn’t have case law around it, but is obviously outrageous. Newman said the attorneys analogized the case’s fact pattern to precedents such as the illegality of strip-searching children in schools without parental consent.

“So what we had to prove … is the kind of thing that creates a legal challenge, which is that even though there’s not case law that says rounding up people with disabilities and strip searching them is illegal, it’s illegal.”

— Julia Cardi

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