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Court upholds ruling Colorado City abused power

Colorado City, Arizona. Photo by Sarah Nichols via Flikr Creative Commons

Colorado City, Arizona. Photo by Sarah Nichols via Flikr Creative Commons

A federal appeals court has upheld the conclusion of a judge and jury that officials of Colorado City unconstitutionally used their power to discriminate against those who were not members of a certain religious sect.

In a unanimous ruling Monday, a three-judge panel of the 9th U.S. Circuit Court of Appeals said there was “overwhelming evidence” that the community along the Arizona-Utah border deprived residents who were not members of the Fundamentalist Church of Jesus Christ of Latter-Day Saints of their constitutional rights. This ranged from the passive, like refusing to grant them the same legal protections and even water services, to the overt like the use of the police department to harass non-church members.

Milan Smith

Milan Smith

Monday’s ruling, unless overturned, upholds the decision of a trial judge to require supervision of top police officials and new training for police officers.

There also was a separate $1.6 million settlement between Colorado City and neighboring Hildale, Utah. The Utah community chose not to appeal the trial court decision, leaving only Colorado City.

Calls to the attorney representing the town were not immediately returned.

The lawsuit, which dates to 2012, traces its roots back a decade earlier when Warren Jeffs became the head of the church, which practices polygamy. That, according to the Department of Justice, led to a strict set of rules for FLDS members including prohibitions on vacations, toys, attendance at public schools, and displays of affection between husbands and wives.

According to the lawsuit, both Colorado City and Hildale and the towns’ agencies engaged in a pattern of discrimination against those who were not members of the church. In essence, they said that the governments functioned as an arm of the church and used municipal resources to advance church interests.

During the trial, the government offered testimony to argue that the church ran the government and the government was part of the church.

For example, appellate Judge Milan Smith Jr., a President George W. Bush appointee writing for the unanimous three-judge panel, said the evidence showed town marshals ignored violations of the law ranging from underage marriage to food stamp distribution by FLDS members. At the same time, the marshal’s office provided equipment like Tasers and night-vision binoculars to the church’s private security force.

A jury concluded in an advisory verdict that the town was guilty of violating the 1994 federal Violent Crime Control and Law Enforcement Act which prohibits government authority from engaging in patterns or practice that deprive people of their constitutional rights, privileges or immunities.

Warren Jeffs

Warren Jeffs

That paved the way for U.S. District Court Judge Russel Holland to rule that the marshal’s office “fostered excessive government entanglement with religion” in an effort to “endorse, favor or promote the FLDS church at the expense of non-FLDS residents. Holland also found that the marshal’s office “selectively enforced the law based on religion” and arrested several residents who were not church members without probable cause.

Holland then ordered both communities to work with a court-appointed monitor to institute national guidelines for constitutional policing.

In its appeal, Colorado City argued that the government could not be found guilty absent a showing that the town was liable for the actions of its officers and agents. But Smith said the law under which the town was found guilty does not require a showing that employees were acting under an official law or policy.

“The plain text of (the law) shows that any government agent who engages in a pattern or practice of conduct that deprives persons of their constitutional rights violates (the law),” he wrote. Smith said it was clear that Congress, in enacting the law, intended for local governments to be held liable when their employees act in unconstitutional ways.

Smith also rejected arguments that the trial court should not have allowed jurors to consider statements made out of court by others, mostly FLDS leaders including Jeffs, in an effort to prove a conspiracy. The judge said there was “extensive evidence” to back that claim.

“That evidence included testimony that officials from the towns attended meetings in which FLDS leaders instructed them on how to handle legal issues in a way that advanced the church’s interests,” Smith wrote. He also said that Jeffs excommunicated town leaders who did not follow his orders, that the church determined who would be mayor and council members, and that members of the marshal’s office helped Jeffs evade capture by the FBI.

Recent court filings in an unrelated case claim that Jeffs has suffered a mental breakdown.

That case involves claims against him and the trust that used to run the border communities by a woman who claims she was sexually abused by Jeffs when she was a child. Attorneys for Jeffs, who is currently serving a life sentence in Texas on charges he assaulted young girls he considered his “brides,” said his current mental condition means he cannot provide testimony.

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