Legal resources on immigration

This section contains legal resources on mass immigration. We are not attorneys, and this is not legal advice, but rather it is a compendium of legal information that we believe will be helpful to those dealing with immigration issues.

Here are legal resources on other sites:

Juan Mann's Frequently Asked Questions About Immigration and the Law, by Juan Mann, VDare.com, December 11, 2002

Here are additional legal resources:

8 U.S. Code 1327 - Aiding or assisting certain aliens to enter

8 U.S. Code § 1327 – Aiding or assisting certain aliens to enter

Current through Pub. L. 114-38. (See Public Laws for the current Congress.) US Code:

Any person who knowingly aids or assists any alien inadmissible under section 1182(a)(2) (insofar as an alien inadmissible under such section has been convicted of an aggravated felony) or 1182(a)(3) (other than subparagraph (E) thereof) of this title to enter the United States, or who connives or conspires with any person or persons to allow, procure, or permit any such alien to enter the United States, shall be fined under title 18, or imprisoned not more than 10 years, or both.

(June 27, 1952, ch. 477, title II, ch. 8, § 277, 66 Stat. 229; Pub. L. 100–690, title VII, § 7346(a), (c)(1), Nov. 18, 1988, 102 Stat. 4471; Pub. L. 101–649, title V, § 543(b)(4), title VI, § 603(a)(16), Nov. 29, 1990, 104 Stat. 5059, 5084; Pub. L. 104–208, div. C, title III, § 308(d)(3)(A), Sept. 30, 1996, 110 Stat. 3009–617.)

 


 

CAIRCO Note

Thus under federal law, declaring your city a sanctuary city brings with it imprisonment of "not more than 10 years."

HB 1224 - Colorado Secure and Verifiable Identity Document Act

In 2003, Colorado passed the Colorado Secure and Verifiable Identity Document Act (2003 HB 1224). This was a direct result of the proliferation of the non-secure Mexican Matricula Consular ID card.

You can read the entire bill on the Colorado Legislature website: Colorado Secure and Verifiable Identity Document Act (HB03-1224). You can also read CAIRCO's synopsis of HB 1224.

Immigration and Nationality Act Section 237

The Immigration and Nationality Act Section 237 states:

Immigration law requires that aliens be documented for legal entry. Avoiding this documentation process is referred to as entry without inspection, or EWI.

In addition, some aliens enter with legal documentation and then violate the terms of their admission by taking jobs they are not authorized to take, or by overstaying their authorized period of stay in our country. The INS estimated in 1996 that about 60% of the then estimated five million illegal aliens were EWI and 40% were visa overstayers. Both types of illegal aliens are deportable under Immigration and Nationality Act Section 237 (a)(1)(B) which says:

Any alien who is present in the United States in violation of this Act or any other law of the United States is deportable."

Local Law Enforcement may cooperate with Immigration Enforcement

A review of applicable rulings shows that local law enforcement may cooperate with ICE (immigration enforcement)

In a March 22, 2005 ruling, in Muehler v Mena, in unanimous decision from a Court known for its 5-4 splits, the United States Supreme Court essentially said that asking about immigration status during a lawful police contact (or, by implication, any lawful contact) was as fundamental a question as asking for name, address and date of birth. Indeed, the Court made clear that no predicate "independent reasonable cause' need exist to inquire into immigration status. It is the Law of the Land.
 
Calling a decision by the 9th Circuit Court of Appeals “faulty,” the Supreme Court held that “mere police questioning [regarding one’s immigration status] does not constitute a seizure.” The Court continued its landmark ruling on this issue by stating that “the officers did not need reasonable suspicion to ask Mena for her name, date of birth, or immigration status.”...
 
If there were even a hint that merely asking about immigration status is discriminatory (as claimed by proponents of the proposed Ordinance), then you might expect to have had at least one dissenter in that decision: Justice Ruth Bader Ginsberg. Justice Ginsberg was general counsel of the ACLU from 1973 to 1980 and sat on its National Board of Directors from 1974 to 1980. Justice Ginsberg's joining the entire court in this decision speaks volumes about its judicial wisdom and legal common sense.
 
Congress expressly intended for local law enforcement to act in cases in which officers have reason to believe that an individual is in the country illegally, even though immigration law enforcement is not their primary responsibility. In 1996, Congress passed and President Clinton signed legislation that protects individual officers who act to enforce federal immigration laws, even if their departments have non-cooperation policies.

The September 8, 2005 article Local police can enforce laws on immigration, states:

...A recently unearthed U.S. Justice Department memo says state and local cops can make arrests after traffic stops if they find civil immigration violations, such as someone overstaying a visa.
 
No specific federal authority is needed for local officers to make such arrests, according to the 2002 memo, which came to light in a recent court case....
 
The Associated Press reported Thursday the 2002 memo was issued by then-Attorney Gen. John Ashcroft and his staff. It overturned a 1996 letter from Justice Department lawyers that said state and local police could enforce only criminal immigration violations, such as sneaking across a border....

Excerpts from Testimony of James Jay Carafano, Ph.D. Before the House Select Committee on Homeland Security:

The DHS and the states should pursue, and Congress should support, the use of Section 287 of the Immigration and Naturalization Act (INA) as a mechanism for state and local law enforcement to enforce the immigration aspect of border security. Section 287 (g) of the INA provides authority for state and local enforcement to investigate, detain, and arrest aliens on civil and criminal grounds. Officers governed by a §287 (g) agreement must receive adequate training and operate under the direction of federal authorities. In addition, in a civil lawsuit, the state law enforcement officers would be considered to have been acting under federal authority, thereby shifting liability to the federal government and providing additional immunity for the state law enforcement officers enforcing federal laws.

Excerpts from Testimony on The 287(g) Program: Ensuring the Integrity of America’s Border Security System through Federal-State Partnerships, Kris W. Kobach, Professor of Law, University of Missouri (Kansas City) School of Law, July 27, 2005

The inherent authority of local police to make immigration arrests was recognized by the Justice Department’s Office of Legal Counsel (OLC) and was announced by Attorney General Ashcroft on June 6, 2002. OLC’s unequivocal conclusion was that arresting aliens who have violated either criminal provisions of the Immigration and Nationality Act (INA) or civil provisions of the INA that render an alien deportable “is within the inherent authority of the states.”1 Such inherent arrest authority has never been preempted by Congress. This inherent authority is simply the power to arrest an illegal alien who is removable, detain the alien temporarily, and then transfer the alien to the custody of the Bureau of Immigration and Customs Enforcement (ICE).
 
In contrast, Section 287(g) delegates authority that is considerably broader than the power to merely arrest an alien and transfer him to ICE custody. Section 287(g) encompasses the spectrum of basic enforcement powers. Such 287(g) authority includes not only the power to arrest and transfer, but also the power to investigate immigration violations, the power to collect evidence and assemble an immigration case for prosecution or removal, the power to take custody of aliens on behalf of the federal government, and other general powers involved the routine enforcement of immigration laws. This broader enforcement authority can only be delegated to state and local law enforcement agencies through a formal Memorandum of Understanding (MOU), which effectively deputizes members of state or local law enforcement agencies to perform the “function[s] of an immigration officer.” 8 U.S.C. § 1357(g).
 
It has become a cliché since 9/11 to say that enhanced state-federal cooperation is essential if we are to improve our homeland security. All too often those words are devoid of real meaning. However, Section 287(g) is a program that facilitates systematic, structured cooperation with proven results. I wholeheartedly urge this Committee to support its expansion.

Excerpts from Testimony on Immigration and the Alien Gang Epidemic: Problems and Solutions, by Heather Mac Donald, Senior Fellow, Manhattan Institute for Policy Research, before the House Judiciary Subcommittee on Immigration, Border Security, and Claims, April 13, 2005:

...Sanctuary laws are a serious impediment to stemming gang violence and other crime. Moreover, they are a perfect symbol of this country’s topsy-turvy stance towards illegal immigration.
 
Sanctuary laws, present in such cities as Los Angeles, New York, Chicago, Austin, Houston, and San Francisco, generally forbid local police officers from inquiring into a suspect’s immigration status or reporting it to federal authorities. Such laws place a higher priority on protecting illegal aliens from deportation than on protecting legal immigrants and citizens from assault, rape, arson, and other crimes....
 
Sanctuary laws violate everything we have learned about policing in the 1990s. Police departments across the country discovered that utilizing every law enforcement tool in their tool chest against criminals yielded enormous gains....

The report, State and Local Authority to Enforce Immigration Law - A Unified Approach for Stopping Terrorists, by Mr. Kris W. Kobach, Center for Immigration Studies, June, 2004, states:

This Backgrounder briefly summarizes the legal authority upon which state and local police may act in rendering such assistance and describes the scenarios in which this assistance is most crucial. It does not cover the provisions of Section 287(g) of the Immigration and Nationality Act (INA) (that is, Section 133 of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) of 1996 titled "Acceptance of State Services to Carry Out Immigration Enforcement"), since the scope of such delegated authority is evident on the face of the Act. Rather, this Backgrounder describes the inherent arrest authority that has been possessed and exercised by state and local police since the earliest days of federal immigration law.

Open borders and sanctuary city proponents claim illegal aliens have not violated criminal law, only civil law, and thus that this distinction makes illegal entry into the U.S. a less serious matter. The Attorney General of New York clearly points out that this is incorrect. Below is part of his letter to a New York attorney:

You have asked whether New York law enforcement officials are authorized to make warrantless arrests for violations of the federal Immigration and Nationality Act ("INA" or "Act"). 8U.S.C. ch. 12. There is no definitive authority in the New York state courts holding that state and local police officers may make warrantless arrests for federal crimes. However, it appears likely that if the question were to be presented directly, the state courts would so hold.
 
If state and local officers do have such authority under state law, the INA permits them to arrest an individual without a warrant where the arresting officer has probable cause to believe that the individual has committed a criminal violation of the Act. Importantly, reasonable belief that a person has committed a civil violation of the Act does not provide a valid basis for an arrest. Therefore, a person’s status as illegally present in the country, which is a civil violation of the INA, without evidence that the person illegally entered the United States (a violation of the criminal provisions of the Act), does not, perforce, provide probable cause that the person is subject to arrest for violation of any criminal provision."
 
"Under the Act, "illegal alien" may mean an alien who has illegally entered the country, which is a criminal offense under § 1325, or an alien who legally entered but is illegally present in the United States, which may be only a civil violation."

Thus, a definite legal distinction exists between a) evidence that a person is in the U.S. illegally, which may not have been caused by illegal entry - which is a civil violation, 2) evidence that the person has entered the U.S. illegally, which is a criminal violation.
 
Note that the Attorney General is stating that state and local authorities do have the authority "to make warrantless arrests for federal crimes," meaning that they can arrest people for criminal (but not civil) violations of immigration law even if no warrant has been issued.
 
See the relevant portion of the INA, which refers to Title 18 of the United States Code, which is titled "Crimes and Criminal Procedures".

Notes on Federal versus criminal law

The law says the following about entering this country illegally (really, it's a criminal violation):

"8 U.S.C. 1325 - Improper Entry by Alien
 
(a) Improper time or place; avoidance of examination or inspection; misrepresentation and concealment of facts; Any alien who -
 
(1) enters or attempts to enter the United States at any time or place other than as designated by immigration officers, or
 
(2) eludes examination or inspection by immigration officers, or
 
(3) attempts to enter or obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall, for the first commission of any such offense, be fined under Title 18 or imprisoned not more than six months, or both, and, for a subsequent commission of any such offense, be fined under Title 18, or imprisoned not more than two years or both."

Civil and federal crime

Being illegally in the U.S. is a civil matter. However, it is a federal crime to enter the country without inspection (EWI, USC 8 1325). A first offense can bring a fine and/or up to six months followed with deportation. A second offense (a felony) can bring up to two years and/or fine and then deportation. Thus, illegal immigration is a federal crime and a civil offense, with two separate courts.

The criminal charge will be filed by a U.S. Attorney and heard in U.S. District Court. The deportation (the removal) will then be conducted by the immigration courts, the Executive Office of Immigration Review (EOIR) before an Administration Law Judge.

Along the southern border, 95 percent of the cases get deposed of by "voluntary removal" on the part of the illegal, with no prosecutions in District Court. However, some U.S. Attorneys are indeed now filing all violations of USC 8, 1325. The U.S, Attorney in the Southern District of Texas is doing exactly that, with en masse proceedings. In Denver about one-half of detainees go through the formal deportation as outlined above.

Other commonly committed federal crimes include: the misdemeanor Failure to Carry Alien Registration. 18 USC 911, False Claim of US Citizenship, is a felony with an up to five-years in prison. Under 18 USC 1546, false document and fraud misuse on an I-9 claim is a felony.

U.S. Code Title 18 - voting

From USCIS and Alien Voting: Falling Down on the Job, ImmigrationReform.com, July 7, 2017:

With very limited exceptions, U.S. citizenship is required to vote in an American election. It is a crime for non-citizens to vote in a federal election. And aliens who do so may be charged with a crime pursuant to 18 U.S. Code Section 1611.  Similarly, an alien who makes a false claim to U.S. citizenship in order to vote may be prosecuted pursuant to 18 U.S. Code Section 1015(f).

Pursuant to the terms of the Immigration and Nationality Act (INA), any alien who has voted in violation of any federal, state or local constitutional provision, statute, ordinance, or regulation is both inadmissible and deportable.

 

U.S. Code Title 8 - Aliens and Nationality

U.S. Code Title 8 - Aliens and Nationality says the following:

Chapter 12 - Immigration and Nationality
Subchapter II - Immigration
Part IX--Miscellaneous

Sec. 1373. Communication between government agencies and the Immigration and Naturalization Service
 
(a) In general Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.
 
(b) Additional authority of government entities Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual:
 
(1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service.
(2) Maintaining such information.
(3) Exchanging such information with any other Federal, State, or local government entity.
(c) Obligation to respond to inquiries

 
The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.
(Pub. L. 104-208, div. C, title VI, Sec. 642, Sept. 30, 1996,110 Stat. 3009-707.)
 
Codification
 
Section was enacted as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, and also as part of the Omnibus Consolidated Appropriations Act, 1997, and not as part of the Immigration and Nationality Act which comprises this chapter.

U.S. Code Title 8 Section 1324a

Section 1324a states: "Any person who knowingly hires/harbors/transports any illegal alien is guilty of a felony punishable by 10 years jail + $2000 fine per illegal alien + forfeiture of the vehicle or property used to commit the crime".
 
Section 1324c states, "All officers whose duty it is to enforce criminal laws shall have authority to make arrests for a violation of any provision of this section" (affirmed U.S. v. Perez-Gonzalez 2002 Fed App 0360, 6th Circ.).
 
Section 1644, same title states, "No local ordinance, rule, or measure shall stop law enforcement officers from enforcement of this section" (affirmed Southern District Court of NY, U.S. v. Rudy Guiliani,1996).

U.S. Code Title 8 - In-state Tuition for Illegal Aliens

U.S. Code Title 8, Chapter 14, Subchapter II, § 1623 addresses preferential treatment of illegal aliens in higher education.

8 USC § 1623 - Limitation on eligibility for preferential treatment of aliens not lawfully present on basis of residence for higher education benefits

(a) In general
Notwithstanding any other provision of law, an alien who is not lawfully present in the United States shall not be eligible on the basis of residence within a State (or a political subdivision) for any postsecondary education benefit unless a citizen or national of the United States is eligible for such a benefit (in no less an amount, duration, and scope) without regard to whether the citizen or national is such a resident.


(b) Effective date
This section shall apply to benefits provided on or after July 1, 1998.

Source: Cornell Law School Legal Information Institute: 8 USC § 1623

 

 

U.S. Code Title 8 - Offenses

U.S. Code Title 8 Section 1324(a) - Offenses

Title 8, U.S.C. § 1324(a) defines several distinct offenses related to aliens.

Subsection 1324(a)(1)(i)-(v) prohibits alien smuggling, domestic transportation of unauthorized aliens, concealing or harboring unauthorized aliens, encouraging or inducing unauthorized aliens to enter the United States, and engaging in a conspiracy or aiding and abetting any of the preceding acts. Subsection 1324(a)(2) prohibits bringing or attempting to bring unauthorized aliens to the United States in any manner whatsoever, even at a designated port of entry. Subsection 1324(a)(3).

Harboring -- Subsection 1324(a)(1)(A)(iii) makes it an offense for any person who -- knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation.

Encouraging/Inducing -- Subsection 1324(a)(1)(A)(iv) makes it an offense for any person who -- encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law ...

Penalties -- The basic statutory maximum penalty for violating 8 U.S.C. § 1324(a)(1)(i) and (v)(I) (alien smuggling and conspiracy) is a fine under title 18, imprisonment for not more than 10 years, or both. With regard to violations of 8 U.S.C. § 1324(a)(1)(ii)-(iv) and (v)(ii), domestic transportation, harboring, encouraging/inducing, or aiding/abetting, the basic statutory maximum term of imprisonment is 5 years, unless the offense was committed for commercial advantage or private financial gain, in which case the maximum term of imprisonment is 10 years. In addition, significant enhanced penalties are provided for in violations of 8 U.S.C. § 1324(a)(1) involving serious bodily injury or placing life in jeopardy. Moreover, if the violation results in the death of any person, the defendant may be punished by death or by imprisonment for any term of years. The basic penalty for a violation of subsection 1324(a)(2) is a fine under title 18, imprisonment for not more than one year, or both, 8 U.S.C. § 1324(a)(2)(A). Enhanced penalties are provided for violations involving bringing in criminal aliens, 8 U.S.C. § 1324(a)(2)(B)(i), offenses done for commercial advantage or private financial gain, 8 U.S.C. § 1324(a)(2)(B)(ii), and violations where the alien is not presented to an immigration officer immediately upon arrival, 8 U.S.C. §  1324(a)(2)(B)(iii). A mandatory minimum three year term of imprisonment applies to first or second violations of § 1324(a)(2)(B)(i) or (B)(ii). Further enhanced punishment is provided for third or subsequent offenses.

U.S. Constitution - Invasion

America's Founders were concerned about invasion. It was mentioned it four times in the Constitution, though the term was never explicitly defined.

Article I, Section 8, Paragraph 15: The Congress shall have the Power (to) provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

Article I, Section 9, Paragraph 2: The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of Rebellion or Invasion the public Safety may require it.

Article I, Section 10, Paragraph 3: No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Article IV, Section 4, Paragraph 1: The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestics Violence.

Colorado law on display of flags

Law on display of flags in Colorado pertains to Mexican flags in Colorado public schools.

18-11-205. Unlawful to display flag - exceptions

Statute text

(1) Any person who displays any flag other than the flag of the United States of America or the state of Colorado or any of its subdivisions, agencies, or institutions upon any state, county, municipal, or other public building or adjacent grounds within this state commits a class 1 petty offense.

(2) Any person who displays any flag other than the flag of the United States of America or the state of Colorado or any of its subdivisions, agencies, or institutions in any place where it is likely to be viewed by the public or a substantial portion thereof, knowing that under the circumstances then existing such display is likely to cause a breach of the peace, commits a class 1 petty offense.

(3) "Flag", as used in this section, means any flag, ensign, banner, standard, colors, or replica or representation thereof which is an official or commonly recognized symbol of a particular nation, state, movement, cause, or organization.

(4) (a) This section does not apply to:

(I) The display of the flag of the United Nations or the flag of a foreign nation displayed to identify persons officially representing such foreign nation or the property or premises of the person or nation;

(II) The display of an appropriate flag upon ceremonial or commemorative occasions proclaimed by the president of the United States, the governor of the state of Colorado, the board of county commissioners of any county, or the mayor or other chief executive officer of a city or town within this state;

(III) The display of the flag of any adjacent state with the flag of the state of Colorado at the ports of entry weigh stations, in recognition of the joint state port operation; or

(IV) The display of any flag or representation thereof described in subsection (1) of this section that is part of a temporary display of any instructional or historical materials not permanently affixed or attached to any part of the buildings or grounds described in subsection (1) of this section.

(b) This subsection (4) shall be an affirmative defense.

References

Source: L. 71: R&RE, p. 480, § 1. C.R.S. 1963: § 40-11-205. L. 73: p. 540, § 11. L. 93: (4) amended, p. 39, § 3, effective July 1. L. 2002: (4) amended, p. 317, § 2, effective August 7.

Cross references: For affirmative defenses generally, see §§ 18-1-407, 18-1-710, and 18-1-805; for requirement that the flag be displayed in certain state institutions, see § 27-2-108.

C.J.S. See 36A C.J.S., Flags, § 2.

Law reviews. For article, "Red Flags and the Flag", see 13 Rocky Mt. L. Rev. 47 (1940).

18-11-204. Mutilation - contempt of flag - penalty

Statute text

(1) It is unlawful for any person to mutilate, deface, defile, trample upon, burn, cut, or tear any flag in public:

(a) With intent to cast contempt or ridicule upon the flag; or

(b) With intent to outrage the sensibilities of persons liable to observe or discover the action or its results; or

(c) With intent to cause a breach of the peace or incitement to riot; or

(d) Under such circumstances that it may cause a breach of the peace or incitement to riot.

(2) "Flag", as used in this section, means any flag, ensign, banner, standard, colors, or replica or representation thereof which is an official or commonly recognized symbol of the United States of America or the state of Colorado.

(3) Any person violating the provisions of this section commits a class 3 misdemeanor.

References

Source: L. 71: R&RE, p. 480, § 1. C.R.S. 1963: § 40-11-204.

C.J.S. See 36A C.J.S., Flags, §§ 1, 2.

Law reviews. For note, "Comment: Constitutional Law -- Symbolic Speech -- Colorado Flag Desecration Statute", see 48 Den. L. J. 451 (1971). For article, "The Flag-Burning Episode: An Essay on the Constitution", see 61 U. Colo. L. Rev. 39 (1990).

Subsection (1)(a) unconstitutional. Provision of this section making it unlawful to mutilate, deface, and defile a flag of the United States with intent to cast contempt thereupon is unconstitutional upon its face because the interests it seeks to promote are contrary to the fundamental values protected by the first amendment. People v. Vaughan, 183 Colo. 40, 514 P.2d 1318 (1973).

Statute was not designed to proscribe mutilating or misusing flag per se. People v. Vaughan, 183 Colo. 40, 514 P.2d 1318 (1973).

Specific intent required. A violation of this section occurs only when the surrounding circumstances manifest the exercise of the intellect in such a manner that inferences may be drawn therefrom that the acts or conduct were done with the specific intent of casting contempt on the flag. There is no violation of this section where the proscribed acts are the result of thoughtlessness, inadvertence, accident, or the like. People v. Vaughan, 183 Colo. 40, 514 P.2d 1318 (1973).

Symbolic speech protected. Conduct, which consisted of wearing a pair of blue jeans on the seat of which a portion of the American flag had been sewn, manifested an expressive intent and a communicative content such as to be considered "symbolic speech" and consequently was protected "speech" under the first amendment. People v. Vaughan, 183 Colo. 40, 514 P.2d 1318 (1973).

Colorado law on pornography

This section presents Colorado law on pornography - which is pertinent to the Spanish language Novela porn in Denver Public Libraries.

18-7-103. Injunctions to restrain the promotion of obscene materials.

Statute text
(1) The district courts of this state and the judges thereof shall have full power, authority, and jurisdiction to enjoin the wholesale promotion, promotion, or display of obscene materials as specified in this section and to issue all necessary and proper restraining orders, injunctions, and writs and processes in connection therewith not inconsistent with this article.

(2) The district attorney of the county in which a person, firm, or corporation wholesale promotes, promotes, or displays, or is about to wholesale promote, promote, or display, or has in his, her, or its possession with intent to wholesale promote, promote, or display, or is about to acquire possession with intent to wholesale promote, promote, or display any obscene material may maintain an action for injunction against such person, firm, or corporation to prevent the wholesale promotion, promotion, or display or further wholesale promotion, promotion, or display of said material described or identified in said suit for injunction.

(3) This article shall not authorize the issuance of temporary restraining orders except where exigent circumstances require the same. In matters of exigent circumstances, the restraining order shall provide that the action must be commenced on the earliest possible date. No temporary restraining order may be issued to restrain the continued exhibitions of a motion picture being shown commercially before the public, notwithstanding the existence of exigent circumstances.

(4) No temporary restraining order or temporary injunction may be issued except after notice to the person, firm, or corporation sought to be enjoined and only after all parties have been offered or afforded an opportunity to be heard. A person, firm, or corporation shall be deemed to have been offered or afforded an opportunity to be heard if notice has been given and he, she, or it fails to appear. At such hearing, evidence shall be presented and witnesses examined.

(5) Before or after the commencement of the hearing on an application for a temporary injunction, the court may, and on motion of the party sought to be restrained shall, order the trial on the action on the merits to be advanced and consolidated with the hearing on the application. Where such hearings are not so consolidated, and a temporary injunction or restraining order is issued, the court shall hold a final hearing and a trial of the issues within one day after joinder of issue, and a decision shall be rendered within two days of the conclusion of the trial. If a final hearing is not held within one day after joinder of issue or a decision not rendered within two days of the conclusion of the trial, the injunction shall be dissolved. No temporary injunction or restraining order shall issue until after a showing of probable cause to believe that the material or display is obscene and a showing of probable success on the merits. Any such temporary injunction or restraining order shall provide that the defendant may not be punished for contempt if the material is found not to be obscene after joinder of issue, final hearing, and trial.

(6) Nothing contained in this article shall prevent the court from issuing a temporary restraining order forbidding the removing, destroying, deleting, splicing, or otherwise altering of any motion picture alleged to be obscene.

(7) Any person, firm, or corporation sought to be permanently enjoined shall be entitled to a full adversary trial of the issues within one day after the joinder of issue, and a decision shall be rendered by the court within two days of the conclusion of the trial. If the defendant in any suit for a permanent injunction filed under the terms of this article shall fail to answer or otherwise join issue within the time required to file his, her, or its answer, the court, on motion of the party applying for the injunction, shall enter a general denial for the defendant and set a date for hearing on the question raised in the suit for injunction within ten days following the entry of the general denial entered by the court. The court shall render its decision within two days after the conclusion of the hearing.

(8) In the event that a final order or judgment of injunction is entered against the person, firm, or corporation sought to be enjoined, such final order or judgment shall contain a provision directing the person, firm, or corporation to surrender to the sheriff of the county in which the action was brought any of the material described in subsection (2) of this section, and such sheriff shall be directed to seize and destroy the same six months after the entry of the said final order unless criminal proceedings or an indictment is brought before that time, in which event, said material may be used as evidence in such criminal proceeding.

(9) In any action brought as herein provided, the district attorney shall not be required to file any undertaking, bond, or security before the issuance of any injunction order provided for above, shall not be liable for costs, and shall not be liable for damages sustained by reason of the injunction order in cases where judgment is rendered in favor of the person, firm, or corporation sought to be enjoined.

(10) Every person, firm, or corporation who wholesale promotes, promotes, displays, or acquires possession with intent to wholesale promote, promote, or display any of the material described in subsection (2) of this section, after the service upon him of a summons and complaint in an action brought pursuant to this article, is chargeable with knowledge of the contents.

History
Source: L. 81: Entire part R&RE, p. 1000, § 1, effective July 1. L. 86: (1) to (5) amended, p. 783, § 3, effective April 21. L. 87: (8) and (10) amended, p. 1579, § 24, effective July 10.

Annotations
Editor's note: This section was contained in a part that was repealed and reenacted in 1981 and 1977. Provisions of this section, as it existed in 1981, are similar to those contained in 18-7-102 as said section existed in 1980, the year prior to the most recent repeal and reenactment of this part. Provisions of this section, as it existed in 1977, are similar to those contained in 18-7-103 as said section existed in 1976, the year prior to the first repeal and reenactment of this part.

Annotations
Am. Jur.2d. See 50 Am. Jur.2d, Lewdness, Indecency, and Obscenity, § 12, 15.

Law reviews. For article, "One Year Review of Criminal Law and Procedure", see 39 Dicta 81 (1962). For article, "Obscenity Law in Colorado: The Struggle to Pass a Constitutional Statute", see 60 Den. L.J. 49 (1982).

This section held constitutional. The procedures established by this statute are sufficient to satisfy due process. People v. Seven Thirty-five East Colfax, Inc., 697 P.2d 348 (Colo. 1985).

Requirement of adversary hearing. Where injunctive relief is sought which amounts to prior restraint, or where a search warrant is sought, there is required an adversary hearing, which may be on short notice, to determine whether the materials sought to be seized are in fact obscene. People ex rel. McKevitt v. Harvey, 176 Colo. 447, 491 P.2d 563 (1971) (decided under former § 40-9-19, C.R.S. 1963).

Obscenity provisions could not support injunction or criminal charge. The 1977 version of the Colorado obscenity statute could not be relied upon to support either a civil injunction or a criminal charge. People v. New Horizons, Inc., 200 Colo. 377, 616 P.2d 106 (1980) (decided under former § 18-7-102).