Attorneys representing Amy Lovato and Roberta Rodriguez, filed motions on Monday, February 20, to dismiss both charges against the two women filed by District Attorney Linda Stanley.
Jason Flores-Williams (representing Lovato) and Adam Tucker (representing Rodriguez) filed the motions on Monday, with the 11th District Court system. But Monday was a holiday, and the motions appeared in the system Tuesday morning, February 21.
Both women have been charged with second-degree misdemeanors in the uproar over incidents at The Schoolhouse in Poncha Springs, which was closed indefinitely on January 24. They reported a five-year-old touching other, younger children, and an incident of a few minutes below the children-to-caregiver ratio while attending to laundry from a naptime mat-wetting incident.
In the case of the charge of violating C.R.S. §19-3-304(1)(a), both women moved to dismiss that charge because the Court of Appeals has already held that the term “immediately” in C.R.S. §19-3-304(1)(a) is ambiguous, and so statute is unconstitutionally vague as applied to each of them.
On the charge of violating C.R.S. §18-6-401, each moved to dismiss that charge on the grounds that no reasonable fact-finder could find either Lovato or Rodriguez guilty of the charges beyond a reasonable doubt.
In explaining the motion to dismiss, Lovato’s attorney laid out the situation this way:
“The charges criminalize preschool behavior by turning a five-year-old into a deviant and a three-year-old into a victim for acts that are neither sexual, abusive, criminal, negligent or against any reasonable person or community standard. In the forthcoming legal arguments and litigation, let this fact not be obscured: we are here because one preschooler pulled down another preschooler’s pants and the District Attorney determined—arbitrarily per the Colorado Court of Appeals—that not reporting the act within the prosecutor’s timetable merited closing the only [major] childcare in Salida while destroying the careers of good, caring people whose only motivation was to contribute to their community.”
In raising the motion to dismiss, the attorneys point out that “the term ‘immediately’ is not defined in the statute, it is unclear to us what the ‘measurable unit’ of the crime is. How many seconds, minutes, hours, or days must pass between the mandatory reporter’s receipt of information from which he has cause to know or suspect child abuse and his report of that information for a violation of the statute to occur?'”
It turns out, Colorado law doesn’t specify what the word “immediate” means, and neither does the Cambridge Dictionary (defined as “happening or done without delay or very soon after something else”) — so it appears unclear as to when the reporting omission was not followed.
Flores-Williams gave this example of how nebulous the term “immediate” is: “A doctor says that ‘we need to do this procedure immediately’. Is that in an hour, tomorrow, next week, or in three weeks after verifying that the insurance provider has approved it?”
Regarding the second charge, which has to do with child abuse — the attorneys laid out that the Incident Report makes no allegations against either women personally causing an injury to a child’s life or health. In fact, the Incident Report identified no child by name and did not claim that any child at the daycare center suffered any injury to his/her life or health. Instead, the claim is that such an injury COULD have taken place.
The motion points out the obvious: that “the District attorney is attempting to criminalize actions that have heretofore never been considered criminal, i.e., one preschooler pulling down another preschooler’s pants at daycare center.”
If this were criminal, there may not be a single childcare center in America that could remain open (but perhaps this is a view known to the parents who have or have raised preschoolers, not someone who has no children).
Given that pants-pulling-down isn’t criminal, the DA’s office appears to be attempting to criminalize the time it took them to report; which given the inability to define ‘immediate” in the statute, wouldn’t seem to be on solid ground.
Ark Valley Voice has reported extensively on this case; breaking the news story on January 26, just after law enforcement and the day before the DA’s office filed charges against Lovato and Rodriguez.
We covered the solid alignment of the written reports filed by Lovato and Rodriguez and their verbal interviews (the more aligned, the more likely the truth is being told).
AVV covered the parents’ outrage over the initial closure of the preschool, the meeting called by DHS and law enforcement where they felt forced to fill out victims forms, interviewed the Chaffee Early Childhood Council on how licensing inspections and reports are to be read, and reported that the Chaffee Sheriff’s Office has asked a third party to review their response; which parents have termed both “an overreaction” and a show of “excessive force”.
Neither the attorneys nor the women have commented on the motions.