Colorado’s constitutionally illegal restraint bill 11-049 gets second read by State Senate

This JUST IN:  Colorado’s proposed Bill No. 11-049 was defeated.

Colorado proposed Bill No. 11-049  is substantively invalid and violates the laws of Colorado and the United States.

False impetus for the introduction of legislation

We understand that the advocates and now the Colorado senate are using the recent death at one of Colorado’s Developmental Disabilities facilities as the guise for the need to push through legislation that would limit a Colorado citizen’s natural and constitutional rights. From the newspaper accounts the fatality occurred while a patient was left unattended for over 10 minutes in mechanical restraint.  While unfortunate, this factual situation does not justify the current legislation.  First, the staff at the DD facility should not be leaving a mechanically restrained client unattended.  Second, this scenario would never happen at a school because schools are not using 4 and 5 point mechanical restraint.  Third, this factual scenario is inapplicable to physical restraint as it is impossible to simultaneously physically restrain someone and leave them unattended.   Fourth, as this recent fatality and all the past fatalities happened at Colorado DD facilities who supposedly “banned” prone restraint, maybe there’s an issue with Colorado’s DD Facilities and the training (or lack thereof) that they are receiving.   Notably none of the fatalities happened at schools or other facilities which allow for and train staff in properly engineered prone restraint.

Proposed Bill 11-049 Violates the 5th and 14th Amendments to the United States Constitution

First and foremost, the proposed ban violates a person’s legal right to self-defense and right to come to the defense of another child or adult in Colorado using reasonable and proportionate force in accordance with a “reasonable person” standard.    

Further, the proposed bill is inherently inequitable on its face as it allows peace officers to use reasonable and appropriate physical force necessary to effect an arrest or to prevent the escape from custody of an arrested person, but does not allow employees or contractors of state and local government agencies or school districts to use reasonable and appropriate physical force to protect themselves or another from harm (including where the patient or student is inflicting self-harm). 

Thus the Colorado senate gave preliminary approval over a bill that arbitrarily limits classes of persons — i.e. those persons publicly employed — right to defend themselves and others.  The bill further limits a publicly employed professional’s right to develop treatment plans based on their professional judgment and needs of the client.

Thus Colorado’s proposed bill no. 11-049 violates a constellation of existing Federal, Constitutional (both U.S. and Colorado’s Constitution) and other Colorado laws governing restraint usage in schools and human services.   Specifically:

Colorado laws that are violated by this ban:

            The Constitution of the State of Colorado

Article II Bill of Rights Section 3 states “Inalienable rights. All persons have certain natural, essential and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties; of acquiring, possessing and protecting property; and of seeking and obtaining their safety and happiness.”

Colorado Defense Laws 18-1-704: Use of physical force in defense of a person

18-1-704(1) States. “Except as provided in subsections (2) and (3) of this section, a person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose.”        

Colorado’s Self-Defense Laws do not require anyone to submit meekly to the unlawful infliction of violence regardless of what mental condition may be causing the threatening behavior or the age of the actor.  This right to self defense does not terminate if the person works for the Colorado government or when the government of Colorado contracts with an entity or person for services. Consumers and children also retain their right to self defense while on the organization’s grounds or in the entity’s care. 

Federal laws that are violated by this ban:

The United States Constitution

Specifically, 5th and 14th Amendment rights to due process/equal protection. 

Youngberg v. Romeo, 457 U.S. 307 (1982)

This Supreme Court ruled that the legal responsibility for making treatment decisions is exclusively in the hands of the professionals who work directly with the client or student and who are best able to 1) determine the clinical needs of the client or student and 2) balance those needs with the overall safety and security.

Considering the array of physical, emotional and medical issues that complicate the decision as to which holding method best will meet a particular consumer’s needs, the legislature cannot possibly make that choice on behalf of the entity or qualified professional.

HHS Departmental Appeals Board (“DAB”)

St. Catherine’s Care Center of Findlay v. Centers for Medicare & Medicaid Services, Docket No. C-01-721; Decision No Cr1190 (June 14, 2004)

A Federal Administrative Court ruled that it is the responsibility of the entity that directly cares for the client to determine which specific behavior management/restraining tools are necessary to maintain safety. 

The court ruled that the mere fact that an entity provides some type of restraint training, even when that training is provided by a national vendor, it is still the treating entity’s responsibility to provide training and tools for its workers that meet the “real” needs of its target population.  In the case cited, the restraint program that was used only contained standing holds which was determined to be insufficient to maintain a safe environment. If a standing-only hold is ultimately found to be insufficient to manage the specific population at hand, the entity has a legal obligation to correct course.

The institution itself is responsible for protecting the safety of patients and staff by providing sufficiently effective training to manage risk

Centers for Medicare & Medicaid

 In 2007, after extensive review and chance for public comment, the Centers for Medicare & Medicaid Services (“CMS”) adopted the final rule on the Patients’ Rights Condition of Participation (CoP).  In the public comment section, CMS offers guidance on dealing with a dangerous patient, stating:

 “When a patient is exhibiting violent or self-destructive behavior and the patient is in danger of harming themselves or others.  . . . The use of less restrictive interventions that are ineffective . . . may, in fact, further jeopardize the safety of those involved.   Therefore, it is critical that staff employ the least restrictive interventions that will be effective in ensuring the safety of the patient, staff and others.” (emphasis added).

For a publication entitled Stopping School violence, attacking our teachers click here:

http://stoppingschoolviolence.com/bookstore_ssv.html

  • FACT: 160,000 kids miss school everyday due to bullying and school violence.
  • FACT: 950,000 students across the United States bring weapons to school every month.
  • FACT: Schools now report over a quarter of a million students per month are being physically attacked during the school day
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