The recent arrest of Brighton's Matt Mooney for allegedly violating the Colorado stay-at-home public-health order by playing T-ball with his six-year-old daughter in an open park made international news. And despite Mooney's prompt release, not to mention an apology for police overreach from Brighton officials, the incident raises a key question: What are the odds that people violating the order will actually be prosecuted and jailed?
Very, very slim, says 18th Judicial District Attorney George Brauchler. But he doesn't entirely dismiss the possibility. "After all," he says, "people are people."
In Brauchler's jurisdiction, which includes Arapahoe, Douglas, Elbert and Lincoln counties, as well as cities such as Aurora, Centennial and Littleton, he says that law enforcement officials across the board are trying their best not to clog the court system and undermine efforts to de-populate local detention centers by taking a hard-line approach.
"I've been in touch with all four of my county sheriffs, who are coordinating with their local police agencies," he notes, "and I've also had a conversation with Aurora's interim chief of police, Vanessa Wilson. And the last thing we want to do is stroke summonses to bring people into criminal court for these things."
That option is available under the public-health order, as spelled out in this passage: "This order will be enforced by any appropriate legal means. Local authorities are encouraged to determine the best course of action to encourage maximum compliance. Failure to comply with this order could result in penalties including a fine of up to one thousand (1,000) dollars and imprisonment in the county jail for up to one year."
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Brauchler, a Republican who'd looked at a run for governor in 2018, was less than thrilled with the way Jared Polis, the man elected to the position, imposed the statewide stay-at-home order on March 25. "The governor's office didn't coordinate with any aspect of law enforcement on the local level," he allows. "I don't know if he talked to Colorado State Patrol or Stan Hilkey," the Colorado Department of Public Safety's executive director, "but I asked around, and nobody around here had heard about the contents in advance. Tri-County Health, which had already put out an order, had to vacate theirs, and that created complications, too. It was frustrating that the order was issued without any coordination with members of local law enforcement who would actually enforce it."
Ultimately, the goal of Brauchler and the law enforcement officials working with him is "compliance," he stresses, "and the tools are pretty broad to get that compliance, including social pressure and cajoling. Maybe law enforcement will have contact with people, but most of it is purely educational — like, 'You may not know this, but you can't do group yoga in this little space.' There are also local rules, things that have to do with licensing. All of that would precede the point where we would stroke a criminal summons — and before anybody strokes a ticket, they will call our office first, and we'll say, 'Let's see if there's any other possible way to do this other than to take it to court.'"
What kind of offense might push Brauchler toward prosecution? After a pause, he acknowledges, "I could see it happening where someone makes such an intentional and willful violation that it puts other people at risk. Let's say someone is holding an underage party and law enforcement gets called out and says, 'You need to disperse. This isn't compliant to the order' — and then they do it again. We haven't seen anything like that, but it could happen."
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He says that he can also envision "a private citizen who continues to re-offend and puts people at risk. That could prompt a phone call to my office, and we'd talk about it."
Other exceptions might involve ancillary crimes, "like if we got called up about a violation of the order and the officers get physically assaulted. Then there would be a prosecution on that charge."
Nonetheless, Brauchler wants his office to be viewed by police and sheriff's offices as "the last of the last of the last resorts. I hope we can come through this pandemic with zero criminal summonses."
So dads who want to play T-ball with their daughter in a public park can rest easy — if they live in the 18th Judicial District, that is.