judicial immunity may not protect judge brian flynn

​No judicial immunity?
 
Colorado state court judge Brian Flynn is facing civil liability in federal district court for the unlawful jailing of 2 different people.
 
They both lost their jobs. He still has his.
 
The first lawsuit already survived a motion to dismiss that was based, in part, on judicial immunity.
 
The case alleges that Flynn’s administrative work, as opposed to his judicial work, led to the wrongful incarceration. And so far, that tactic has been successful.
 
Flynn is chief judge of the 21st Judicial District (Mesa County). According to James Roberts, a Texas attorney representing Elson Foster, Flynn allowed outdated protection orders to remain in effect. The result was that Foster was unlawfully arrested and placed in jail – 7 times.
 
A protection order is an order by the court that a criminal defendant not have contact with the victim of a crime. State law provides that the order remains in effect “until final disposition of the action.” In other words, once a sentence is served, a protection order goes away.
 
But according to allegations in the suit, Flynn violated state law by maintaining a policy of not removing protection orders after a sentence was served. He required previous criminal defendants to come back to court to remove the protection orders. If they didn’t, they could be arrested.
 
That’s what happened to Foster. An outdated protection order remained in effect due to Flynn’s policy. Worse yet, Flynn required a cash bond, as opposed to a personal recognizance bond, and that kept Foster in jail. He lost his job, and he lost his housing.
 
Foster became homeless because of Flynn’s unlawful actions. The suit alleges Flynn was deliberately indifferent and seeks monetary damages.
 
The second lawsuit is similar in that it involves wrongful incarceration, but it occurred under different circumstances.
 
Michelle Reynolds was pulled over for speeding in Mesa County. The officer who pulled her over found a warrant out of Boulder County for her arrest. She was unaware of the warrant but was taken to jail.
 
She was not allowed to post bond due to an administrative order issued by Judge Flynn. His order stated that Mesa County judges would not set bonds on out-of-county warrants. According to ACLU attorney Mark Silverstein, who is representing Reynolds along with attorney John Culver, Flynn’s policy was directly contrary to the Colorado Rules of Criminal Procedure.
 
The rules, Silverstein said, require a judge in Mesa County to set bond. The result was that Reynolds waited in Mesa County jail to be transferred to Boulder County to appear before a judge there.
 
She requested transportation to Boulder County daily. But it took more than 2 weeks before she was transferred to Boulder County and released.
 
As soon as she appeared in Boulder County, she was let out of jail on a personal recognizance bond and the charges against her were dismissed. But thanks to Flynn’s unlawful order, she was wrongfully incarcerated for 15 days.
 
The result? She lost her job – as a hospice caregiver. She was also assaulted multiple times while in jail.
 
Reynolds’ suit is currently facing a motion to dismiss based in part on judicial immunity. But her lawyers hope her case will survive the motion like Foster’s did because the judge’s administrative acts are what is at issue.
 
As for Flynn, he’s still on the bench. He’s being represented by the attorney general. Your tax dollars at work.
 
Because judicial discipline proceedings are not public in Colorado, it is not known whether he is facing any discipline due to his actions.
 
It’s also not known whether the judicial discipline commission would take any action whatsoever against a judge who is found to be civilly liable for his actions. The discipline commission did not discipline Weld County district court judge Ryan Kamada until he was convicted of a federal offense – a felony.
 
Flynn was just retained as a judge in the 2020 election. The judicial performance commission for Mesa County recommended his retention even though the commission’s report stated the following:
 
“However, among attorneys, Judge Flynn scored below the survey average for other judges in Colorado in case management, application and knowledge of the law, and in diligence.” 
 
“Some attorneys expressed concerns with Judge Flynn’s judicial temperament, judicial consistency, and unpredictable rulings more generally. Commissioners had some concern about occasional instances of judicial decisions being impaired by bias against specific lawyers.” 
 
Even if Flynn is held accountable in federal district court, or if a settlement is reached, future judicial performance commissions will not know because Colorado’s judicial performance commissions don’t do background checks on judges.

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