Residential Picketing in Colorado
The attorneys at Rights & Liberties Law Firm are experienced criminal defenses attorneys in Colorado who defend people charged with residential picketing.
Residential picketing is defined in C.R.S. 18-9-108.5 which defines the offense as follows:
C.R.S. 18-9-108.5, Colorado’s Residential Picketing Statute
In Colorado a person commits a residential picketing offense defined as:
(1) Intentionally left blank —Ed.
(a) The general assembly hereby finds that:
(I) The protection and preservation of the home is a compelling state interest;
(II) Residents of Colorado are entitled to enjoy a feeling of well-being, tranquility, and privacy in their homes and dwellings;
(III) The practice of targeted residential picketing causes emotional disturbances and distress to the occupants and has the potential to incite breaches of the peace; and
(IV) The practice of targeted residential picketing does not seek to disseminate a message to the general public but, instead, seeks to harass and intrude on the privacy of the targeted resident.
(b) The general assembly further finds that ample alternative means of communication are available to those who would choose to engage in picketing outside a person’s residence.
(2) As used in this section, unless the context otherwise requires:
(a) “Residence” means any single-family or multi-family dwelling unit that is not being used as a targeted occupant’s sole place of business or as a place of public meeting.
(b) “Targeted picketing” means picketing, with or without signs, that is specifically directed toward a residence, or one or more occupants of the residence, and that takes place on that portion of a sidewalk or street in front of the residence, in front of an adjoining residence, or on either side of the residence.
(3) Intentionally left blank —Ed.
(a) It shall be unlawful for a person to engage in targeted picketing except when the person is engaging in picketing while marching, without stopping in front or on either side of a residence, over a route that proceeds a distance that extends beyond three adjacent structures to one side of the targeted residence along the one-way length and three adjacent structures to the other side of the targeted residence along the one-way length or three hundred feet to one side of the targeted residence along the one-way length and three hundred feet to the other side of the targeted residence along the one-way length, whichever distance is shorter.
(b) Intentionally left blank —Ed.
(I) It shall be unlawful for a person while engaged in targeted picketing to hold, carry, or otherwise display on his or her person a sign or placard while he or she is on a street or sidewalk in a residential area if the person does not comply with the following restrictions:
(A) All signs or placards shall be no greater in size than six square feet;
(B) Each person may carry, hold, or otherwise display no more than one sign or placard.
(II) The restrictions specified pursuant to subparagraph (I) of this paragraph (b) shall not apply to a person while engaged in targeted picketing carrying a sign or placard temporarily while transporting the sign or placard from the person’s residence or business to a vehicle.
(4) Vehicles or trailers used in targeted picketing shall not park within three residences or three hundred feet of a residence that is the subject of targeted picketing. There is a presumption that a vehicle or trailer is used in targeted picketing when signage is affixed to the vehicle containing content related to the targeted picketing.
(5) It shall not be a violation of subsection (3) of this section unless a person has previously been ordered by a peace officer or other law enforcement official to move, disperse, or take other appropriate action to comply with this section and the person has failed to promptly comply with the warning. The warning issued by the peace officer or other law enforcement official shall indicate the required distances the person engaging in picketing must march or other conditions necessary to comply with this section. In order to ensure that an appropriate warning has been given, the local law enforcement agency shall maintain a written record indicating the name of each warned individual, the address or addresses of the targeted residence or residences, and the date and time of the warning.
(6) A person who violates subsection (3) of this section commits a petty offense.
(7) The provisions of this section shall not prohibit a local government from adopting more restrictive provisions concerning targeted picketing or carrying in a residential area more than one sign of a certain size.
Possible Penalties for Residential Picketing in Colorado
Residential Picketing
C.R.S. 18-9-108.5(6)
Possible Penalties
Petty Offense
- Up to 10 days in jail; and/or
- $300 fine;
- Restitution
Defenses to Residential Picketing in Colorado
General Denial
The accused will be acquitted if the prosecution cannot prove every element of the offense beyond a reasonable doubt. When the accused raises a general denial defense, the accused denies that the criminal elements of the offense exist. General denial is related to the failure of proof defense. The failure of proof defense arises when the accused pokes holes in the prosecution’s case and argues that the prosecution failed to prove each and every element of the offense beyond a reasonable doubt.
First Amendment – Free Speech, Right to Assemble, and Protest Defense to Residential Picketing
The First Amendment to the U.S. Constitution and Art. II. Section 7 of the Colorado Constitution protects an individual’s right to freedom of speech and the right to peaceably assemble. These rights are instrumental in allowing citizens to express their views and to protest without fear of government interference.
The right to peaceful protest is closely tied to the freedom of speech. This means that individuals have the right to express their views, even if they are controversial or unpopular, without fear of retaliation, censorship, or legal sanction. The right to assemble peaceably is also protected, allowing people to come together and collectively express, promote, pursue, and defend their ideas.
When residential picketing charges arise out of protest or speech related activities, in certain circumstances the accused can raise a free speech, right to assemble and protest defense. This defense involves arguing that the actions taken were a form of protected speech or assembly. Free speech defenses involve a complex fact specific inquiry that depends heavily on the details of the case, including the nature of the advocacy, the intent of the individual, and the impact on the audience. In certain circumstances, the First Amendment can be a powerful defense to residential picketing.
Mistaken Identity
Mistaken identity is a general denial defense that attacks the element of who committed the alleged offense. As the prosecution is required not only to prove that the offense happened, but that the person charged committed the offense, the mistaken identity defense can be an effective way to challenge the prosecution on the element of who committed the crime. In the context of a residential picketing case, mistaken identity defenses usually arise when the accused is arrested and charged with disobedience to public safety orders in riot conditions after the alleged offense happened or when the accused is identified after a chaotic situation where eyewitness accounts are not trustworthy. Mistaken identity cases often involve witness misidentification issues, poor witness perception issues, inaccurate, improper, or biased police identification procedures, grainy surveillance videos, and mistaken eyewitness accounts.
Alternate Suspect
The alternate suspect defense occasionally arises in residential picketing cases. When the accused raises the alternate suspect defense, he or she does so to cast doubt on the identity element of the offense. In other words, the alternate suspect defense is used to cast doubt on the prosecution’s evidence that the accused committed the crime. By raising the alternate suspect defense, the accused casts doubt on the identity element of offense by raising the possibility that another person committed the offense rather than the accused. In Colorado residential picketing trials the admissibility of alternate suspect evidence will depend on “the strength of the connection between the alternate suspect and the charged crime. If there is a non-speculative connection or nexus between the alternate suspect and the crime charged, the evidence will be admissible.”
If the defense introduces “alternate suspect” evidence, the judge must “look to whether all the similar acts and circumstances, taken together, support a finding that the same person was probably involved in both the other act and the charged crime.” If the judge finds that the accused has presented evidence sufficient to support a finding that an alternate suspect committed the crime, the accused can have the jury consider this evidence in their deliberations. While the alternate suspect defense is seldom used in residential picketing cases, certain circumstances will give rise to the availability of this defense.
Duress
Under Colorado’s duress statute C.R.S. 18-1-708, a person may not be convicted of an offense, other than a class 1 felony, based upon conduct in which he engaged at the direction of another person because of the use or threatened use of unlawful force upon him or upon another person, which force or threatened use thereof a reasonable person in his situation would have been unable to resist. This defense is not available when a person intentionally or recklessly places himself in a situation in which it is foreseeable that he will be subjected to such force or threatened use thereof. The choice of evils defense, provided in section 18-1-702, shall not be available to a defendant in addition to the defense of duress provided under this section unless separate facts exist which warrant its application.
Entrapment
Under Colorado’s entrapment statute, C.R.S. 18-1-709, the commission of acts which would otherwise constitute an offense is not criminal if the defendant engaged in the proscribed conduct because he was induced to do so by a law enforcement official or other person acting under his direction, seeking to obtain evidence for the purpose of prosecution, and the methods used to obtain that evidence were such as to create a substantial risk that the acts would be committed by a person who, but for such inducement, would not have conceived of or engaged in conduct of the sort induced. Merely affording a person an opportunity to commit an offense is not entrapment even though representations or inducements calculated to overcome the offender’s fear of detection are used.
Choice of Evils
Under Colorado’s choice of evils statute, C.R.S. 18-1-702 (1) conduct which would otherwise constitute an offense is justifiable and not criminal when it is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no conduct of the actor, and which is of sufficient gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding the injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue.
(2) The necessity and justifiability of conduct under subsection (1) of this section shall not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder. When evidence relating to the defense of justification under this section is offered by the defendant, before it is submitted for the consideration of the jury, the court shall first rule as a matter of law whether the claimed facts and circumstances would, if established, constitute a justification.
Statute of Limitations for Residential Picketing in Colorado
In Colorado the statute of limitations for commencing criminal charges against a person is governed by C.R.S. Section 16-5-401. The statute of limitations for commencing criminal charges for residential picketing in Colorado is as follows:
- Petty residential picketing charges must be filed within 6 months. C.R.S. 16-5-401(1)(a.5)
Legal References
- C.R.S. 18-9-108.5 https://colorado.public.law/statutes/crs_18-9-108.5
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