People v. Ford

knife, assault with a committed sexual might gun, armed and who

who Colorado, The PEOPLE of the State might danger constitute a to the ar- well Plaintiff-Appellant, resting others. officers to the course pursuit, of their the officers had deter- mined the location of the crime eliminat- FORD, Jarosz, Mark Ted Lawrence ing possible apart- other locations in the McKay, Colorado, Modern Books of complex. Upon arriving ment at the defen- Neville, Johnston, Clarence James apartment, they probable dant’s had cause Kelloff, Myrna Bastian, Mitchell Clint person to that the believe who committed Hopkins, Darryl Deighton, Gordon Mi sexual assault was inside. zell, Snyder, and Richard Defendants- justification entry for the into the Appellees. apartment clearly defendant’s was estab- suppression hearing. lished at the Some MOUNTAINS AND PLAINS BOOKSEL officers were concerned about the defen- ASSOCIATION; LERS Tattered Cover escape, dant’s while others were concerned Bookstore, Inc., corpora a Colorado possible about the destruction of evidence tion; Joyce Knauer; Books, Gordon’s apartment. inside the These concerns were corporation; Cathy a Colorado illusory. not likely defendant would Nachtigal, Bookplace Apple d/b/a presence have been alerted to the wood, Plaintiffs-Appellants, police officers as a result of the extended knocking apartment on his door at three Moreover, morning. o’clock in the it was implausible that if the capacity Norman EARLY in his officers waited official apartment warrant, outside the for a Attorney City as District & might attempt escape, defendant to there- County Denver; J.D. MacFarlane in

by endangering others, the officers or capacity Manager his official as might attempt dispose of critical evi- Safety City County Denver; for the & during short, dence delay. the cir- Coogan and Thomas in his official ca confronting cumstances the officers at the pacity City as Chief of Police for the & entry time of their were sufficiently com- Denver, County Defendants-Appel pelling justify the action taken. lees. Since, view, my entry into the apartment constitutionally permissible, COLFAX, INC., Kitty’s 735 EAST d/b/a I no in concluding have hesitation that the Palace, Plaintiff-Appellant, Pleasure statement, defendant’s given custodial af- Miranda proper ter warnings, was not the fruit of Fourth Amendment violation. EARLY; MacFarlane; Norman J.D. I am also satisfied that the warrantless Coogan, and Thomas check, seizure of the up the bedsheet rolled Defendants-Appellees. floor, large knife,

on the kitchen as clothing, well as several items of was con- 87SA61, Nos. 87SA480 and 88SA3. stitutionally justified as the fruit of a valid Colorado, Court of search incident to the defendant’s arrest. En Banc. I suppression. would reverse the order of I say am authorized to that Justice RO- May 1989. join VIRA Justice MULLARKEY Rehearing for 87SA480 Denied this dissent. June

Barney Iuppa, Atty., Dist. M. Robert Brown, Deputy Atty., Chief Dist. Linda A. McMahan, Deputy Atty., Dist. Colorado Springs, people. for the Schwartz, P.C., Arthur M. Arthur M. Schwartz, Gross, Bradley Michael W. J. Reich, Denver, Ford, for Mark et al. Recht, Recht, Moya Den- and Daniel N. ver, Littleton, Ney Peter H. for Mountains Ass’n, Plains Booksellers et al. and Jr., Early, Atty., Norman S. Dist. Nathan Coats, Appellate Deputy Dist. B. Chief Denver, Atty., Early, for Norman et al. Schwartz, P.C., Arthur M. Arthur M. Denver, Schwartz, Gross, Michael for W. Inc. East ROYIRA, Justice. appeals

These concern the constitutional- statute, ity of the Colorado -105, 8B 18-7-101 to C.R.S. We §§ separate to consolidate three have elected cases, opinion, purposes of this be- challenges validity cause each upon statute based the first amendment to the United States Constitu- tion, II, article section of the Colorado Constitution, process and the due clause of each constitution. We hold that the ob- overbroad, scenity vague not process requirements, due does violate passes it therefore constitutional mus- ter. We do not address the constitutionali- 18-7-104.5, ty provides of section neighboring property remedies to own- civil ers, justiciable there is no issue or because legal controversy in at this time. existence I. Ford, People People instituted v. against proceeding

an enforcement defen- dants, clerks of adult the owners and sales (booksellers) in Colorado bookstores charging promoting Springs, them with ob- of sections 18- scene materials violation -102, (1986). The trial 7-101 and 8B C.R.S. dis- granted defendants’ motion to court ground stat- miss on the held unconstitutional. The court ute is constitutionally impermissible that it is of a impose liability on the basis criminal attacking has the the statute party state of “average person’s” hypothetical unconstitutional be- proving it vague because burden mind; that the People v. doubt. yond communi- a reasonable premised on a liability is criminal French, (Colo.1988); v. con- P.2d 1369 Cox standard of than a ty opinion rather (Colo.1987);People v. 10 of the Colo- P.2d 153 duct; People, that article (Colo.1985). Schoondermark, criminaliza- prohibits the rado Constitution books, magazines, in cases in applied this rule even promoting have tion of We infringes upon alleged a standard a statute films based it is picture motion tolerance; People stat- and that the freedoms. See on first amendment (Colo.1988); criminally culpable French, Peo- true 762 P.2d 1369 of a ute’s lack (Colo.1984); vague- Moore, to exacerbate ple rea serves mens Enea, from People appeal problems. ness order of dismissal. contend, however, that The booksellers Booksellers and Plains In Mountains rights allegedly are first amendment where associ- a booksellers’ Early, v. Association of infringed, the burden bears declaratory judgment ac- instituted a ation constitutionality of the demonstrating the current version of seeking to have the contention, tion they support In of this statute. obscenity declared un- the Colorado recent federal to a number of direct us This suit was consolidated constitutional. place proof of burden decisions Early, v. a Colfax, East Inc. with 735 See, Jersey e.g., New Citizen on the state. declaratory and requesting separate action Township, 797 F.2d 1250 v. Edison Action against en- injunctive relief permanent (3d Cir.1986); v. City Illinois Watseka of obscenity statute. After of the forcement (7th Council, 796 F.2d Public Action trial, declaring court issued an order a Cir.1986); Municipality ACORN v. of appeal, the constitutional. On the statute (10th Cir.1984); Golden, F.2d 739 on challenge this conclusion booksellers Frontenac, 714 F.2d City v. ACORN of grounds we will discuss several addition, (8th Cir.1983). they point In turn. case has that at least one Colorado out would not be indicated that an ordinance

II. impinges presumed constitutional when it freedoms, citing City represents the on first amendment The statute under review Associa- attempt to for- Lakewood v. Unlimited Assembly’s latest General of Colfax tion, (Colo.1981). pass will mulate an statute which muster. Former versions of constitutional place Many federal cases which unconstitutional statute were declared this proving constitutionality of the burden Horizons, Inc., 200 Colo. People v. New Organization on the state cite of a statute (1980), People v. 616 P.2d 106 402 U.S. Keefe, a Better Austin v. Tabron, 149, 544 P.2d 372 (1971), as au- 91 S.Ct. 29 L.Ed.2d People Thirty-Five In East Col- Seven However, the thority proposition. for this Inc., (Colo.1985), this fax, imposition only that the court in held Keefe portions of the certain court invalidated expression pre- prior a restraint on of statute, remaining but found the have held We too sumed unconstitutional. Before ad- portions to be constitutional. system prior of restraint on first any vagueness, dressing merits of the over- heavy subject freedoms is to a amendment issues, breadth, process first and due we against va- presumption its constitutional claim that consider the booksellers’ People Thirty-Five lidity. See v. Seven government must bear the burden estab- East reg- constitutionality law lishing the has nev- States Court United ulating of first amendment the exercise requires the first amendment er held that rights. pre- proscribing that a statute prior re- no sumed unconstitutional where consistently held that We have presumption constitutional, Because a straint is involved. presumed to be constitutionally re- offensive” is further defined section 18- invalidity is 7-101(4), no quired, and because we see reason 8B C.R.S. to mean “so proof differently treat the burden offensive on its face as to affront current challenges in other than community first amendment standards of tolerance.” challenges, we believe that constitutional Ford, People the trial court held retain the burden of estab- the booksellers that article of the Colorado lishing obscenity statute is inval- that the prohibits Constitution the criminalization id.1 books, promoting magazines, and films upon “tol- based standard III. Additionally, erance.” ar- booksellers 18-7-101(2), (1986),de- 8B C.R.S. Section gue impermissi- standard a tolerance as: fines “obscene” bly infringes speech protected which is (2) per- means material or a “Obscene” by the first amendment to the United that: formance Finally, they States Constitution.3 contend (a) average person, applying con- the lack of a Colorado tradition of standards, temporary community would prohibiting obscenity indicates that the con- appeals find that taken as a whole to the provide stitutional framers intended to un- sex; prurient interest in protection limited constitutional to freedom (b) speech. Depicts or describes: (I) Patently representations offensive Thirty-Five East Seven acts, descriptions nor- of ultimate sex (Colo.1985), 348 we simulated, perverted, mal or actual or “patently held that the term offensive” intercourse, sodomy, including sexual could not be defined terms of a commu- bestiality; and sexual or nity decency. of We stated that a standard (II) Patently representations offensive community standard of tolerance is re- masturbation, descriptions or of excreto- minimum, quired, by at a the United States functions, sadism, masochism, ry lewd Constitutions, and Colorado but noted genitals, exhibition of the the male or the issue of the tolerance standard whether genitals in of female a state sexual stim- constitutionally sufficient is was before arousal, geni- ulation or covered male squarely us at that time. We are now state; discemibly turgid tals a faced this issue. (c) whole, lit- Taken as a lacks serious artistic, erary, political, or val- scientific A. ue.

Thus, examine whether the tolerance incorporates defini- First we the section constitutionally is sufficient un- approved by tion of standard der the first amendment to the United the United States Miller Court 15, 2607, California, 413 U.S. 93 S.Ct. 37 States Constitution. United States Su- v. (1973).2 spoken in of phrase “patently preme 419 Court has often terms L.Ed.2d work, whole, appeals validity a 1. Our decision does not affect the find that the taken as prurient opinion City to the interest ... court’s Lakewood v. Colfax describes, (b) depicts Association, whether the work Unlimited patently way, There, offensive sexual conduct in a specifically zoning prohibited the future a ordinance applicable defined state constitutionally protected dissemination law; and such, speech. As the ordinance constituted a work, whole, (c) a whether the taken as restraint, presumptively prior thus un- and was artistic, literary, political, or sci- lacks serious constitutional. entific value. three-part v. Cali 2. The test articulated in Miller "Congress guarantee that 3. The first amendment 15, 24, 2607, 2615, fornia, 413 U.S. 93 S.Ct. 37 abridging the freedom of shall make no law ... (1973), identifying L.Ed.2d obscene ma 419 speech” applicable to the states under terial is: Douglas City v. Jean fourteenth amendment. 877, 157, (a)whether nette, average person, applying 87 L.Ed. 1324 ‘the 319 U.S. 63 S.Ct. contemporary community would standards’ 1064 addition, “accepted” In numerous “tolerated” or federal

material which is discussing adopted community courts community have by the when standard of tolerance. See United prong of the States “patently offensive” v. Articles Obscene Merchan Thus, v. 413 Various California, test. in Miller dise, (2d Cir.1983); F.2d 2607, 709 132 United 419 93 37 L.Ed.2d U.S. S.Ct. (6th Peraino, F.2d v. 645 548 Cir. discussing States (1973), requirements when 1981); Vance, Red Drive-In v. 648 standard, community stated: of a Court Bluff (5th Cir.1981); Al F.2d Goldstein v. constitutionally nor “It is neither realistic lain, (N.D.Miss.1983); F.Supp. First Amendment as sound read the Wilkinson, Box Home requiring people of Maine or Mis- Office (D.Utah 1982); F.Supp. 987 City Port sissippi depiction conduct accept public (Me.1985); A.2d 646 Jacobsky, land v. Vegas, found in Las or New York tolerable Ass’n, Booksellers Leech American City.” Id. 93 S.Ct. 2619. The at at (Tenn.1979). S.W.2d 738 We believe that it to state: use of ‘na- Court went on “The constitutionally permissible to measure however, standards, necessarily tional’ im- patent offensiveness of material plies that found in some materials tolerable against standard of tolerance criteria, places, but not under ‘national’ under United States Constitution. they nevertheless be will unavailable where acceptable.” are Id. at n. 93 S.Ct. at States,

2619 n. Smith United B. 1766, 52 L.Ed. U.S. 97 S.Ct. We must now examine the Colorado 2d 324 the Court held that “contem- Constitution determine whether the ob porary community ap- standards must be scenity passes definition constitutional plied by juries in accordance with their own muster. section 10 Article of the Colo understanding of the of the aver- tolerance provides: rado Constitution age person in community....” their Ferber, passed No shall impairing New York v. 761 n. law U.S. every person n.12, speech; freedom shall be 73 L.Ed.2d S.Ct. speak, (1982), publish free to or write whatever the Court “It would be stated: subject, being will on any responsible he equally equate community’s to unrealistic liberty; for all abuse of that in all and sexually toleration for material oriented prosecutions suits and for libel the truth permissible scope legislation the of evidence, may given in thereof be protecting at aimed children from sexual court, jury, the direction of under Illinois, exploitation.” Finally, in Pope shall determine the law and the fact. 497, 499, 1918, 1921, 481 U.S. 107 S.Ct. (1987), distinguished L.Ed.2d 439 the Court Although obscenity we stated that is un- prong obscenity third of the Miller test protected by of section 10 article II of the prongs from the two which were to be in Colorado Constitution v. Seven standards, against community measured Thirty-Five East stating: repre- ideas “Just as the a work (Colo.1985), urge the booksellers us to majority approval sents need not to obtain reject that conclusion hold that neither, protection, merit as the insofar constitutional framers had no to intention concerned, First Amendment is does the protections limit constitutional for freedom vary community of value the work from to expression. They of contend that because community degree on the local based of lacks Colorado a consistent tradition of cen- acceptance it indi- has won.” These cases soring obscenity, obscenity and the first that, prong cate in contrast to the of third passed statute was not until the con- test, Supreme the Miller the United States obscenity stitutional to framers considered expects patent Further, Court of protected offensiveness in expression be adopt material to determined of by they argue a standard should histor- that we particular accept Oregon what a analysis will ical made Henry, tolerate. in Court State v. Or. (1987),4 right prohibition disseminating so as to find that the fram- on P.2d 9 obsceni- ty, obscenity indicates that such material con- exempt intention to was ers had no sidered an “abuse” of the freedom of protection provided from the constitutional speech. Accordingly, reject we book- 10 of our constitution. in article sellers’ first contention. evaluating us in the booksellers’ To aid of arguments, we look to the status obscen- adopt We also decline to the historical ity in and nation- statutes both Colorado in analysis Henry, 302 Or. State wide at the time that our constitution was Oregon because the court adopted in 1876. concentrated on the in the law the early century 19th rather than at the time contention, Contrary to the booksellers’ adopted our constitution was 1876. We history pro- Colorado has a consistent obscenity regula- believe that status of scribing obscenity. territory, still a While early tion across the nation in the 1870’sis legislature prohibited the Colorado the im- assessing more relevant whether the portation obscenity. or dissemination of pro- framers of our constitution intended to Colo., XXII, X, Rev.Stat. of ch. div. See obscenity. tect (1868).5 proscription against This ob- § scenity immediately reenacted was after provisions Our constitution contains two adopted its constitution and Colorado protect the expression: freedom of achieved statehood. Gen.Laws of First, passed that no law should be Colo., XXIV, X, ch. div. § impair speech; would the freedom of proscribed obscenity pri- fact that Colorado second, every person speak, is free to immediately adoption or to and after of our write, publish any subject, but provision speech free is evidence that the responsible liberty. abuse of that framers of our constitution did consider At the time that our constitution was protected expression. he It adopted, twenty-six virtually states had that, significant although obscenity was provisions identical in their state constitu- proscribed prior adoption of the constitu- tions.6 In the majority vast of those tion, gave states, the framers no indication that it proscribed by was protected. prior adoption by would henceforth be This si- to the of its Colorado part, lence on their the face of an out- constitution 1876.7 4. Const, Const, I, 9; I, 5; Oregon Supreme analyzed Henry, § § Court art. N.J. art. Const, Const, I, 8; guarantee its of freedom ex- art. N.C. § constitutional N.Y. Const, I, 20; pression, very Rights Declaration of Ohio art. § which is similar to our Colorado Const, Const, 11; I, 8; I, provision. Or. art: Pa. art. § § The court held that was Const, 1868, art..I, 7; Const, 7; exception S.C. Tenn. § § not a historical speech, to the freedom of Const, I, 19; I, 8; expression art. Const, Tex. art. Va. pro- § § and thus obscene Const, I, 12; I, art. Oregon § § art. Wis. 3. tected under the Constitution. 48, Stat., (1894) (Act Ark.Dig. 7. See of ch. Colorado, 22, 10, § 5. Revised Statutes of ch. div. IX, 8, Code, 1859); of Feb. CaLPenal tit. ch. (1868), provides: § Vin, Fla., 1637, (1872); 311-314 Stat. of ch. §§ bring any person If shall hereafter or cause 8, 6, 1868); (August of § sub. ch. Ind., Rev.Stat. brought imported territory, into this to be 53, Ill, (1843); ch. art. Iowa Rev. § sale, or shall sell or offer to sell Laws, IV, 23, 172, (1860); part tit. ch. § 4359 book, pamphlet print, every obscene such XVI, Code, Punishments, Crimes & tit. La.Penal conviction, shall, person be fined in a sum II, Me.Rev.Stat., XI, (1833); ch. ch. art. 340 tit. dollars, twenty-five nor more not less than 124, Md.Pub.Gen.Laws, (1871); 13-14 art. §§ than two hundred dollars. Mich.Rev.Stat., XXX, 30, (1860); tit. ch. § 78 Const, Const, I, 158, Minn.Pub.Stat., 96, II, 6; (1846); ch. See art. Cal. art. 13-14 § §§ Ark. Const, Ill, 1868, NJ.Rev.Stat., Crimes, 2; (1859); Rights XI ch. § Fla. of Declaration of § Const, 15; 1160, P.L.1869, 9; 1861, I, 1, (1877) (P.L.1868, p. p. Ga. of art. Ind. 44-47 § § §§ ¶ Const, Const, Code, VII, I, 9; I, 7; combined); Kan. N.Y.Penal ch. § § art. Iowa art. Const, 1317, Ohio, I, Const., 11; 1850, (1868); Rights Ky. of Crim.Code of tit. § §§ Bill of Const, 9, 27, XIII, 9; 1868, (1877) 1872); (April Rights, of of Bill of ch. Or., 9-10 Stat. § §§ art. La. 4; Punishments, 11, (1855) IV; Const., Rights 10§ Declaration of Crimes & ch. § art. Me. 40; reenacted, Const., Rights, (post-statehood, see Hill’s Annot. Md. Const, Declaration of art. Mich. Const, IV, 42; I, Or., 2, 7, (1887)); of ch. Pa.Stat. § of art. Minn. art. Laws Law, tit. § Const, II, 14; LX; (1920) (P.L. 3; § § Mo. of art. Nev. art. § § C. addition, adopted had ei- nine states impairing the freedom prohibition ther the the “tolerance” We also believe that grant of freedom of expression of or the acceptable is under the Colorado standard responsibility for its speech stated, to subject previously We have Constitution. these, today, our constitution abuse, Of seven and reaffirm that not both.8 but of protection to freedom extends broader coexisting proscribing statutes had states first expression than does the amendment obscenity.9 Constitution. Peo to the United States obscenity proscriptions The fact that Inc., Thirty-Five Colfax, East ple v. Seven fact prevalent, that obscen were so (Colo.1985). In to be order in face constitu ity prohibited was sufficient, constitutionally the definition of or identical to that provisions similar tional “patently incorporate offensive” must Colorado, us to the conclu adopted lead protects all but the most standard generally con that was sion explicit material. sexually insufferable of an freedom of sidered “abuse” Although both federal and state courts speech. not unaware of The framers were “patently of approved definitions of have in other when status of the laws states incorporate community fensive” fact, adopted. decency, acceptance, or toler our was standards constitution ance, that tolerance stan we believe models looked to other states as framers protects expression, freedom of dard better provi of our constitutional for almost all only and is the standard of three which the constitu sions. We that believe when satisfy would the Colorado Constitution. II, section adopted article tional convention “decency” implies community Whereas concept accepted widely held it “accept proper, is standard what of the freedom of an abuse approval, ance” connotes tolerance speech. find no merit We therefore community’s standards to stretches the in that the framers booksellers’ contention limits. tolerance their outermost When a provide protection to to unlimited tended employed, is is not offen standard material expression, our reaffirm freedom sive unless the cannot endure protected by obscenity is not view that it. People v. Sev Colorado Constitution. See argue a toler The booksellers Thirty-Five East en impermissible because the ance standard is guarantees of freedom constitutional is object section 10 to of article speech designed protect precisely are against “guard the the trammels of press not be that material which would otherwise political power, and to the whole secure It that the tolerated. must remembered public a full discussion of people and free only employed is de tolerance standard Cooper People, affairs.” “patently of termine whether material decision 22 P. Our sought protection by the fensive.” The unprotected the Colora- obscenity is actually found in the third booksellers is way impedes these if prong do no test. Even mate Constitution prurient rial directed to the interest objects. Const, Tenn., IV, 5; Const., 22; 31, 1860); Rights part § Bill of R.I. § Code tit. N.H. March 8, Const., I, 20; Code, Rights, II, (1858); Declaration of § Vt. art. 4847 Tex.Penal art. § ch. (1858) 13. (post-statehood, reenacted Tex. art. § 399 Rev.Stat., Code, 10, 5, art. Penal tit. ch. 343 Punishments, Conn.Rev.Stat., 54, 196, Va., (1879)); & Crimes § of tit. ch. Code X, Ill., Wis.Rev.Stat., IV, XXX, 139, (1849); (I860); of part 135-136 Rev.Laws §§ tit. ch. ch. Crim.Code, div., (1833); (1849). Mass.Rev. § 11th 11-12 §§ I, 130, (1836); Stat., IV, part ch. §§ tit. 10-11 Const, XX, 5; Neb.Gen.Stat., (1873); 1875, I, ch. N.H.Rev. § of art. Conn. § 8. See Ala. Const, Const, 113, 5; Stat., XIV, (1842); 6-7; I, I, of § ch. Pub.Laws Ill. tit. § art. Del. art. §§ Const, (1844); 4; Const., R.I., 1870, §§ Punishments 91-92 Crimes & of art. Mass. Decla- § Const, Vt.Rev.Stat., 23, 99, (1839). I, XVI; ch. 10§ tit. Rights, art. Neb. art. of ration sex, patently is Coins, offensive to the com- Beacom, (Colo. Inc. v. 699 P.2d 930 munity, protected it 1985). remains unless taken whole, literary, artistic,

as a it lacks serious While a statute must be political, Miller, suffi or scientific value. ciently specific give warning fair U.S. at 93 S.Ct. at 2616. The value of proscribed conduct, it need not may such material be drafted by not be determined Rather, precision. Becker, mathematical community standards. value Here, P.2d person at 31. proscribed the material must is by be assessed an objective disseminating from Pope Illinois, standard. v. obscene material. U.S. Such depict 107 S.Ct. material must 95 L.Ed.2d 439 one of the acts (1987). The prong 18-7-101(2)(b), third enumerated in section 8B prevents artistic, (1986), test the literary, political, C.R.S. type and must be the or scientific value of being material from material which is considered “hard-core” hostage held particular to a community’s pornography. See California, Miller v. manner, level of tolerance. In this consti- 413 U.S. 93 S.Ct. 37 L.Ed.2d 419 protection tutional (1973). of material Moreover, which would the material must not not otherwise be tolerated in a community literary, artistic, have serious political, preserved. value, objective scientific an standard. Illinois, Pope v. 481 U.S. 107 S.Ct. defining We hold that “patently offen- (1987). 95 L.Ed.2d 439 These re sive” terms of community standards of quirements quite are specific; person tolerance does not impermissibly reach ordinary intelligence guess need not as to speech protected by either the United meaning. their Constitutions, States or Colorado therefore is not overbroad. remaining The elements of the obscenity precise. However, definition are less due

IV. process require precision does not total statutory provisions. People Nissen, The booksellers contend that the obsceni- (Colo.1982); Weissman ty process (1) statute offends due because: Educ., Board vague; (2) it is liability premised on an requirements opinion of the community rather than con- appeal prurient material to a interest in sex individual; (3) duct of the premises it liabili- patently and be offensive as measured ty on the mental party; state of a third community’s pro- standard of (4) tolerance premises liability it subsequent on the vide “fair notice to a dealer in such materi- discretionary actions party. of a third public als that his and commercial court, activities trial Ford, found the may bring prosecution.” Miller, 413 U.S. obscenity statute to be constitutionally in- at S.Ct. at 2616. It is true that a firm in all respects. four of these We person must community’s estimate the lev- disagree. el of average tolerance and whether an person appeals would find that the material A. prurient interest, but, to the as Justice The booksellers’ first two conten States, Holmes noted in Nash v. United may tions single allegation be reduced to a 373, 377, 780, 781, 229 U.S. 33 S.Ct. impermissibly statute is L.Ed. 1232 “the law is full in- vague, and therefore process. violates due depends stances where a man’s fate on his A impermissibly law is vague if it is not estimating rightly....” sufficiently populace definite to alert the proscribed conduct, the nature of the may marginal so That there cases in people may control their actions ac which it is difficult to determine the side of or, cordingly, if the provide law does not particular line on which a fact situation specific standards so arbitrary as to avoid falls is not a sufficient reason to hold the capricious and People language ambiguous enforcement. See v. too to define a crimi- Becker, (Colo.1988); Miller, 759 P.2d 26 10, nal Exotic offense. 413 U.S. at 28 n. 1068 10; Nissen, arbitrary capricious n. 650 P.2d at and revocation.

93 S.Ct. at 2617 We Healy do not believe that the term do not believe that controls 552. We this Here, “community specific standards” is less clear case. the conduct which is is person” prohibited standard the dissemination of than the “reasonable obsceni generations Moreover, ty. provides used for in which has been where the statute specific by community other contexts. See Pinkus v. United standards which the opinion guided, States, dangers 98 S.Ct. is the U.S. at which the (1978). vagueness” This court has often “void for doctrine are aimed L.Ed.2d penal so as F disappear. held that a statute framed to See R & Enters. v. Board of Comm’rs, require a jury question County to determine 199 Colo. vague (statute (1980) provided does not make it too standards to

reasonableness practical guide acceptable good a to to afford further define term “of character and Smith, reputation”). specif People behavior. v. Our statute ically requires depict are satisfied that the Colo- that material one of We totally statute, rado is not so lack- in the statute enumerated acts be of a ing nature, literary, in standards conduct as discernible hard-core have no serious artistic, value, require political, appeal its invalidation. Miller or See scientific sex, California, 413 U.S. to a S.Ct. morbid shameful interest and specific requirements community holds offend which that standards of tolerance. provide fair incorporated vagueness our statute no- These standards in remove proscribed premising liability community tice as to the conduct mea- herent in on when prac- opinion, understanding protect against arbitrary sured common and and and capricious foregoing tices. enforcement. For the reasons, not we do believe that the obsceni reasons, For these same we believe statutes, written, ty impermissibly are as provides sufficiently statute vague. adequate standards to enable courts consistently. juries apply the law B. apply specific trier of fact must standards argue, The booksellers trial court it may to material before be labeled “ob agreed, that Ford the obsceni- addition, appellate In scene.” an court ty premises liability statute criminal on the may use these same standards in order to hypothetical “average” of mind of a particular a determination that review ma person, rather than on defendant’s Thus, terial is obscene. there exists little addition, state of mind. the trial court danger arbitrary capricious enforce found that because the does not ment this statute. The mere fact that require that a defendant know that materi- may juries reach different conclusions as to “obscene,” al a is statute lacks true does mean con same material not that rea, criminally culpable mens which serves rights Miller, abridged. are stitutional vagueness problems. to exacerbate its n. 413 U.S. at n. 93 S.Ct. at 2616 Again, disagree. we Ford, in People The trial court found imposes liability premised liability that criminal not be Section 18-7-102 could community specif- promotes a opinion person on rather than a on who obscene material LDS, act, citing Healy, if knows its ic Inc. v. he contents and character. (1979). Thus, requires Healy, particular P.2d the statute that a we “knowingly,” permitted determined defendant act clearly on defined state. The defen revocation a subdivider’s license mental engaging his dant need know the material is reputation basis of his States, vagueness. Hamling practices was “obscene.” v. United unethical void 2887, 41 grounds U.S. The statute was invalidated on the S.Ct. L.Ed.2d (1974); States, 161 U.S. premising a license Rosen v. United 29, 16 opinion provides warning 40 L.Ed. 606 How no fair as to what S.Ct. ever, prohibited danger knowledge that conduct is and creates a the material ob- necessary satisfy discretionary consti- the party, citing scene is the act of a third not Vinnola, requirement of scienter: People v. tutional Colo. P.2d Vinnola, constitutionally It is sufficient that the we found the bad prosecution a defendant show that had constitutionally check law to be unsound knowledge of the contents of the materi- bank, the decision of because the in honor- distributed, he als he and that knew the ing refusing to honor a check on drawn character and nature of the materials. funds, an account which lacked sufficient require proof To of a defendant’s knowl- prima a would establish facie case that the edge legal of the status of the materials defendant had the intent to defraud and permit the defendant would avoid guilty thus was of a crime. We held that prosecution by simply claiming that he “[cjriminal liability punishments should up had not brushed on the law. Such predicated upon party’s not be a third un- requirement formulation of the scienter fettered discretion.” Id. at 494 P.2d at required is the ... Constitution. [not] argue 831. The booksellers that because 123-24, Hamling, U.S. at 94 S.Ct. at disseminating the act of material does not 2910-11. We believe the trial court erred become a crime until the material is de- finding that the statute lacks a obscene, liability prem- clared criminal is mens rea. criminally culpable true ised on the unfettered jury discretion of the We also do not find that the stat who declares the material obscene. How- premises liability ute on the mental state of ever, criminality promoting obscene Johnson, People party. a third depend upon does not material the subse- Colo. we invalidat quent as in Vinno- party, action of a third by receiving ed the theft statute it because la. The promoted material is obscene be- imposed liability person disposed on a who act; fore and after the defendant’s it does “having an item reasonable cause to suddenly only not after become obscene that the item believe” had been stolen. We Thus, jury so decides. the criminal act is held culpability, that standard of “[t]he complete at the moment that the defendant constitutional, order to be must be what material, disseminates the and is not de- particular mind of the defen discretion. See pendent party’s on a third was, jury might dant not what a concludes Edmonds, People v. reasonably prudent be that of a fictional (1978). Any P.2d 655 other construction Id. at man.” 564 P.2d at 117-18. absurd, always would be because it is nec- However, clearly pro essary for a trier of fact to make such vides defendant must act “know liability determinations before criminal ingly.” “average person” standard imposed. accordingly reject We the book- only requirement modifies the contention. sellers’ challenged appeal prurient material to the “average interest in sex. This use of the

person” standard is different from the use V. person” “reasonable standard in Mountains Plains Booksellers Associ- Johnson, where the reasonableness lan (Association) ation contends that guage appeared required as a mental state 18-7-104.5, provides civil remedies to Here, committing the crime. the “aver property vicinity real owners of an age person” standard is not an element of promoted obscenity, enterprise which has knowledge required or mental state to com Moore, vague when combined with the definition of mit the crime. (Colo.1984). Therefore, liability obscenity, unconstitutionally chills freedom premised hypo expression. Although not on the mental state of a the Association average person. thetical complaint, raised this contention in its trial court did not rule on the issue. We

C. already have held that the definition of However, vague. obscenity is we de- booksellers also contend premises liability constitutionality cline to address 87SA480, Colfax, and East Inc. v. issue has No. 735 remedies the been civil because 88SA3, Early, No. are affirmed. prematurely. raised ERICKSON, J., in the concurs result Declaratory is not judgment only. purposes advisory for simply available exists. controversy no real Three when ERICKSON, Justice, concurring in v. La Poudre Bells Ranch Assocs. Cache only: the result (Colo. Ass’n, 758 P.2d 164 Water Users in the respectfully I concur result be 1988). controversy presented legal The disagree analysis the cause I with the and one than one that must be a current rather majority agree I breadth of the decision. may future time. Heron v. arise at some opinion part majority with that Denver, City County 159 Colo. & of defining in ‘patently holds offensive’ “that (1966). Here, no civil action

411 P.2d 314 impermissibly terms tolerance does not of by property has been commenced real own speech, protected reach and therefore is against the the Association and com ers Maj. op. not at 1066. This deci overbroad.” plaint allege not that such civil suit is does in a of deci sion the most recent series Although may brought imminent. suit determining court consti by sions this the future, in the there is no at some time statute, obscenity tutionality of Colorado's controversy may result in current -105, now at sections 18-7-101 to codified challenged application of the civil remedies. (1986). People 8B v. Seven C.R.S. Thirty-Five East 697 P.2d 348 addition, the in this case defendants Horizons, Inc., (Colo.1985);People v. New parties private proper not to defend are (Colo.1980);People 616 106 v. Hilde P.2d person’s right to civil remedies under the (1976); brandt, 190 Colo. 544 brought Association this de- statute. The Denver, City County v. of Menefee claratory against the Den- judgment action (1976); People 382 190 Colo. P.2d Attorney, Manager ver District the Denver Tabron, 544 P.2d 380 v. 190 Colo. Police, Safety, of and the Denver Chief (1976) II); Tabron, (Tabron People v. acting capacity. in Al- all their official (1976) (Tabron I). P.2d Colo. though are parties proper these defendants the majority’s analysis The Colorado challenge provisions in to the criminal statute, obscenity and the Colorado Consti statutes Association has the the not, square in my opinion, with tution does “concrete adverseness demonstrated precedent, our former the issues addressed to the defendants sufficient assure vis-a-vis II, 10 of the article section Colorado when presentation the effective of the issues un- legislative or the adopted, Constitution the derlying [constitutionality of civil history to formulating in statutes enacted Community Bd. State remedies].” comply of the United with mandates Olson, Occupational v. Colleges & Educ. view, my Supreme Court. States 687 P.2d 429 importance overemphasizes the majority ruling Because trial court made no intent, framers’ the Colorado Constitution’s remedies, constitutionality of the civil speculate going even so far as to controversy there is no existence actual means that framers’ “silence” would entitle the Association to a an of the freedom “was considered ‘abuse’ determination, proper parties are Maj. speech.” op. Compare at 1065. court, we hold that this issue not before the Lamm, (Colo. P.2d Parrish v. ripe is not for review. 1988) (recognizing that article judgment of the district court provides The the Colorado Constitution Ford, 87SA61, No. is reversed People protection speech for freedom of broader remanded with instructions than first amendment the United case Constitution); judgments States Seven Thir reinstate the information. Inc., 697 ty-Five court East P.2d of the district Mountains and Colfax I, (Colo.1985) (same); Tabron Early, Plains Booksellers Association 372; In re Canon Id. This statute remained the source of (1956) (same) Colo. law Colorado until when slip op. (depicting obscenity regula at 1065 Assembly the General legisla- enacted new tion as the result of the Colorado Constitu -10, tion. 40-28-1 to C.R.S. §§ “Proceedings intent). tions’s framers’ The new statute defined obscenity as Convention,” publish of the Constitutional appealed material that person’s pru- to a Secretary ed in Colorado rient interest in sex “utterly and was with- State, separate contains no discussion of redeeming out social value.” 40-28-1. § II, any point article 10 section at which view, In my neither Cooper People, 13 Rights” reported by the “Bill of was sub 337, Colo. 22 P. 790 by cited the Proceedings committee. the Constitu majority, case, any supports nor other the Convention, 90, 143, 376, 487, 523, tional statement that the “framers of our consti- 525, (1907). 664 The “Address to the Peo tution did not obscenity pro- consider to be ple” proceedings support adop in the expression.” tected Cooper was a con- tion of the Colorado Constitution indicates tempt proceeding arising publica- out of the the Bill Rights in the state constitu tion of certain articles and a cartoon relat- simply guarantees tion retains “the usual ing pending to a Obscenity case. was rights,” except national and civil in the case, Cooper an issue does not particulars mentioned which do not include support analysis the constitutional set forth any speech. reference to freedom of at Id. majority opinion. in the Accordingly, sugges 723-24. there is no I, In Tabron we reviewed the basis for tion in the Proceedings that the framers of the enactment of the first amendment and the Colorado Constitution intended to limit stated that whether the framers of our speech guarantees the free by afforded the federal by constitution were influenced the obscenity first amendment or exclude from experience obscenity common law with protections II, the by afforded article sec I, an unresolved issue. Tabron 544 P.2d at tion 10 of the Colorado Constitution. It is History suggests that the colonists noteworthy 14, 1876, also that on March impose English had no desire to com- when our adopted, constitution was a terri mon speech law limitations on freedom of torial obscenity law on was in existence press upon and freedom of the citizens of provided: which the United States. Id. any person If bring shall hereafter or brought imported

cause to be or accept into this I cannot the conclusion that terri- territory, sale, laws, or shall sell states, or offer to by torial laws enacted other any book, sell pamphlet print, obscene or by and the laws enacted As- General shall, every person conviction, such sembly soon after Colorado a became fined in a sum twenty-five not less than provide evidence that framers of the dollars, nor more than two hundred dol- Colorado Constitution did not consider ob- lars. scenity protected speech. Slip op. to be at 1065, interpreting 1066. Colorado cases Colo., XXII, X, Gen.Laws of ch. div. § the Colorado statutory Constitution and the (1868). In the identical law was reen- regulation obscenity long were decided by Assembly acted the General substitut- being. after the constitution came into ing the “territory.” word “state” for Gen. obscenity modern law of that controls the XXIV, X, Laws of Colo. ch. div. § (1877). first amendment issues in this case is de- obscenity statute was primarily rived from sale, California, Miller v. prohibit possession, broadened to “obscene, 413 U.S. lewd, or exhibition of S.Ct. 37 L.Ed.2d 419 or in- (1973). decent, Nowak, generally, J. publication.” or lascivious See R. Rotun- Young, da & J. specifi- Colo. Sess. Laws 172. The statute Constitutional Law 1016- (2d ed.1985). cally any newspaper magazine construing banned or the first “nude, containing pictures of partly or amendment to the United States Constitu- nude, women, pictures tion, men required of men or we are to follow the decisions positions.” Court, women indecent attitudes or Supreme of the United States but II, guide As- liberty interpret provided direction to at article General we are sembly 10 of the Colorado Constitution. to enact an Assembly repeatedly has fol- The General would meet the Miller standards. blueprint this court has lowed the decided, When I was we issued Tabron the decisions an- provided comply with companion upon the number of cases based Court of the Unit- nounced Hildebrandt, holding. Tabron I and, although recently the most ed States (upholding dismis- Colo. perfect, is not it enacted charges); Menefee, sal of muster. passes constitutional (striking Colo. 544 P.2d 382 down I, In the seminal decision of Tabron we municipal unconstitutionally as ordinance analysis of an conducted extensive obsceni- vague failing and overbroad for to describe regulation including the United ty States specificity sexual con- requisite Miller, pronouncement in Supreme Court’s depicted, thereby duct cannot be vio- 37 L.Ed.2d 419 413 U.S. S.Ct. lating standard); the Miller Tabron three-part upon We relied test (in applying Colo. forth identifying obscenity set in Mil- for standard, community Miller a statewide acknowledged and that Miller aban- ler1 employed). standard must be “utterly redeeming so- doned the without I, In response to our decision in Tabron promulgated test in cial value” A Book legislature repealed the the and reenacted Named “John Cleland’s Memoirs aof portion obscenity stat- definitional the Attorney Pleasure” v. General Woman of ute, 1, 97, July secs. effective 1976. Ch. Massachusetts, 383 Commonwealth of 1-6, 31-15-401, -402 18-7-101 to §§ § (1966). 1 86 S.Ct. 16 L.Ed.2d U.S. 1976 Laws The reen- Colo. Sess. 555-60. in I The defendant Tabron was convicted acted statute stated: promoting obscenity in violation the 40-7-101(1) obscenity statute.2 Colorado § material” means that materi- “Obscene (1971). (2), analyzed the & 8 C.R.S. We al, (4) as in of this defined subsection obscenity against backdrop statute the section, which: test and concluded under the Miller (a) whole, pru- to the appeals Taken as a promulgated by the the standards United ap- average person, rient of the interest Court, statutory the States defini plying contemporary community stan- tion of “obscene” overbroad.3 Tabron dards; and 149, 158-59, I, 544 P.2d 190 Colo. (b) Depicts or describes hard-core sexual obscenity held 378-79. We that the statute conduct; and part the of the test violated second Miller (c) whole, liter- Taken as a lacks serious it failed to describe what constitut because artistic, ary, political, or value. scientific Id. ed an “ultimate sexual act.” at (1976 18-7-102(6), declined, however, Supp.). The 8 C.R.S. P.2d at 379. 544 We § statute, then, substantially adopted judicially obscenity rewrite the statute and repeatedly three-part Although set of standards articu the cases reference 1. The test or California, U.S. obscenity entirety, lated in Miller 2607, 93 S.Ct. in their the focus statutes identifying L.Ed.2d ob challenges been the defi- the constitutional has is: scene material sections of the nitional statutes. "(a) average person applying Whether ‘the community contemporary standards’ would defined material as 3. Section 40-7-101 obscene whole, work, appeals a find that the taken as whole, which, predomi- as "that considered a ...; prurient to the interest i.e., interest, nately prurient appeals to a lustful describes, (b) depicts in Whether work sex, nudity, or duct, interest sexual con- morbid way, spe- patently sexual a cifically offensive conduct excitement, excretion, sadism, ma- sexual law; applicable defined abuse, sochism, and which or sado-masochistic beyond customary goes substantially limits of work, whole, (c) Whether the taken as lacks describing, dealing portraying, candor artistic, literary, political or scientific serious utterly re- matters and without such value." deeming social value.” Colo, I, P.2d Tabron at at 376-77 Miller, 2614). (quoting S.Ct. U.S. at at pursuant to complied with the items declared obscene the Miller standard 18-7-103, (1984 requiring Supp.).6 the use of holding of 8 C.R.S. Seven Tabron standard.4 statewide Thirty-Five East Inc. defended on ground statute is later, con we addressed the years Four unconstitutional, ap- facially both and as enacted Colorado stitutionality newly plied. We held that various terms and v. New Hori obscenity statute zons, Inc., P.2d 106 phrases un- were section 18-7- We focused on striking constitutional. Rather than down 101(5), (1980 Supp.), the section of 8 C.R.S. statute, the entire we the unconsti- severed for use that defined “material” language. Thirty-Five, 697 tutional Seven material.”5 in the definition of “obscene P.2d at 371-74. determined that the statute was uncon We Accordingly, current stat- excluded stitutional because the statute developed ute has been over the last thir- printed from the “the or written word” years through legislative response teen definition of material.” New Ho “obscene holding specific sec- to our decisions rizons, at 110. 200 Colo. at meet constitutional tions or words did not printed The exclusion of or written words against scrutiny when measured Miller considered mandates that the material be progeny. generally, and its Richard- accord accompanying without words and son, Obscenity Law in Colorado: ingly permit of fact to does not the trier Pass a Struggle to Constitutional Stat- disputed “as a as consider the work whole” ute, guidepost 60 Den. L.J. required by Because section Miller. Id. consistently has for our review been 18-7-101(5) Miller, we struck violated obscenity articulated standards on entire statute. down the in States Court Miller. United in response to our decision New Hori- majority opinion erroneously referenc- zons, Assembly again reen- the General ” obscenity and es the “framers’ view the definitional sections of the ob- acted significant part analysis of its bases statute, scenity July effective 1981. Ch. is constitutional whether or not -106, 18-7-101 to secs. to §§(cid:127) on the framers’ intent when the Colo- based 998-1002. The reenacted defi- Sess. Laws pro- enacted. The rado Constitution was nition of “material” stated: legislative judicial cess of reevaluation tangible anything “Material” means obscenity requires a the definition of capable being adapted or to used obscenity case interpretation of the narrow interest, through the me- whether arouse statutory and does not mandate law observation, sound, reading, or dium of reading grounded upon a strict con- broad manner, in- other but does not struction of the Colorado Constitution. actual three dimensional ob- clude an scene device. may be labeled “obscene” Material which by first primarily measured has been constitutionality again We considered the standards, as reflected in Mil- amendment years later in obscenity of the statute five evolved, law has As first amendment ler. Thirty-Five East Seven material is “ob- has our view what so Inc., (Colo.1985). In case Certainly, what was obscene scene.” ac- attorney commenced a civil the district the time the Colorado Consti- certain the 1800’s at injunctive relief to have tion for tation, reproduction, picture, repealed or motion was and reen 4. electrical, chemical, however, mechanical, or whether acted with amendments communicating and did not affect amendments were minimal is used as a means redrafting beings of the definitions the 1976 wholesale to human to or emotion sensation 18-7-101, senses, obscenity. visual, aural, § Ch. sec. through or tactile but Colo.Sess.Laws 982-86. printed or written word. include the does not 18-7-101(5) provides: 5. Section as was reenacted 6. Section 18-7-103 part of the reenactment entire any physical object, facsimi- "Material” means le, transcription, pictorial represen- recording, statute. its own costs on party each to bear might not obscene with be drafted tution was appeal. no decisions of the today. It is clear Supreme Courts or Colorado

United States century twentieth beginning of the

at the relating issues

dealt with first amendment the in- Regardless of what obscenity.

to the Colorado Constitu- at the time

tent was framed, to be will continue

tion we regarding difficult issues

confronted with measured when

the definition Su- of the United States

by the decisions Colorado Constitu- preme and our Court STERN, Plaintiff-Appellant, Ronald S. popular in community standards tion. The applica- hardly be said the 1800’s can of obscen- either the definition law ble For the IN and The COUNTY COURT ity today. Judge COUNTY OF GRAND Krob, Defendants-Appellees.

Scotty P. 87SA354. No. Colorado, Supreme Court of En Banc.

May CORPORATION, Petitioner, ROPER GREENHOUSES,

J.A. BALISTRERI assignee of J.A. Balistreri

itself and as Greenhouses,

Farms, Balistreri Greenhouses, Co., Rosa Floral

Princess Greenhouses,

Tagawa and Sable Greenhouses, E.I. Du Pont

Boulevard Co., & H.H. Robertson

De Nemours Chemicals,

Company, Reichhold

Inc., Respondents.

No. 88SC373. Colorado,

Supreme Court of

En Banc.

May COURT

ORDER OF Motion for

Upon consideration Appellant Appeal filed

Dismissal cause, response filed the above

with no in the sufficiently being advised

and now

premises, DAY that said

IT IS THIS ORDERED be, hereby is the same shall

Motion this cause DISMISSED

GRANTED and

Case Details

Case Name: People v. Ford

Court Name: Supreme Court of Colorado

Date Published: May 15, 1989

Citation: 773 P.2d 1059

Docket Number: 87SA61, 87SA480 and 88SA3

Court Abbreviation: Colo.