Civil Remedies for Criminal Wrongs: the Colorado Public Nuisance Act
| Jurisdiction | Colorado,United States |
| Citation | Vol. 10 No. 1991 Pg. 2061 |
| Pages | 2061 |
| Publication year | 1991 |
1991, October, Pg. 2061. Civil Remedies for Criminal Wrongs: The Colorado Public Nuisance Act
The idea of forfeiture of property as a remedy to a wrong can be traced as far back as the Old Testament. The Book of Exodus discloses the beginnings of forfeiture law:
If an ox gore a man or woman, that they die: then the ox shall be surely stoned, and his flesh shall not be eaten; but the owner of the ox shall be quit.(fn1)
Actions in forfeiture also appeared in early Roman and Greek law.(fn2) Surviving through centuries, the idea of forfeiture was brought to the United States through admiralty and customs practices of seizing vessels and contents engaged in piracy and war.(fn3)
In 1861, the territory of Colorado adopted this concept for the forfeiture of nuisances in the obstruction of highways or waterways.(fn4) The state legislature in 1891 adopted the current forfeiture concept as a way of dealing with "bawdy houses" in the mining districts.(fn5) This right of action is virtually unchanged today. The Colorado Public Nuisance Act ("Act") still seeks to protect the community at large from certain activities. However, the Act no longer focuses on the obstruction of highways or bawdy houses. Instead, it views felonious activities, particularly those which are related to narcotics, as dangers to the public.(fn6)
This article discusses the application and ramifications of the Act. It also addresses the responsibilities of both prosecution and defense in such actions. The article highlights provisions of the Act which may preempt general rules of civil procedure.
Under CRS § 16-13-302, it is the policy of the state of Colorado that "every public nuisance shall be restrained, prevented, abated and perpetually enjoined." Further, it is the duty of the district attorney and the attorney general to enforce this policy through public nuisance actions and to seek the forfeiture of property as provided.(fn7)
Although a public nuisance action can be maintained in four classifications,(fn8) Class 1 public nuisance provisions will be used by a district attorney in 95 percent of forfeiture actions. There are several reasons why prosecutors favor this option. First, a Class 1 action allows a police officer to seize property based on probable cause if the officer (1) believes that the property was used in violation of the public nuisance statutes and (2) is in the process of executing an arrest warrant or search warrant.(fn9) A warrant of seizure is not necessary.(fn10)
Second, a Class 1 action allows the seizure of anything: real property, including buildings, fixtures, contents and personal items; vehicles; airplanes; boats; cash; checks; bank accounts; proceeds; contraband; and anything that is traceable to a public nuisance activity.(fn11) Third, the statute has a provision for property seizures established on any felonious activity.(fn12)
Finally, in addition to this "catch-all" provision, there are a number of specifically defined activities that can result in a forfeiture action: possession or distribution of illegal narcotics;(fn13) possession of eight ounces or more of marijuana;(fn14) connection of an item to illegal gambling or prostitution,(fn15) even though the underlying offense may be only a misdemeanor; and failure to follow FAA procedures.(fn16) In People v. One 1967 Pontiac (GTO),(fn17) the Colorado Supreme Court found that one act of distribution was sufficient for the filing of a public nuisance action.
Perhaps the most misunderstood provision of the Act, and what makes it both confusing and attractive to prosecutors, is that a public nuisance action is governed by the Colorado Rules of Civil Procedure ("C.R.C.P.") unless a more specific section of the Act applies.(fn18) A criminal conviction is not a condition precedent to the filing of a public nuisance action. The public nuisance action
is considered to be an in rem proceeding, which does not seek the taking of an individual's liberty but the abatement of an offensive activity.(fn19) It is by statute an equitable and remedial proceeding, which seeks to forfeit property used to maintain, aid and abet a public nuisance.(fn20)
Therefore, the initiating documents are a complaint and an accompanying probable cause affidavit.(fn21) The prosecutor also has the option of seeking an ex parte temporary restraining order ("TRO"). Generally, the prosecutor will use this tool, seeking not only forfeiture of items seized but also continued control of the property during pendency of the action. This is done to prevent loss, destruction, encumbrance or use.
In seeking the ex parte TRO, the Act preempts the general rule of civil procedure regarding injunctions.(fn22) This is...
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