News Law and Policy

Media Coalition Demands Access to Accused Planned Parenthood Shooter Court Documents

Jessica Mason Pieklo

A coalition of media organizations wants the Colorado Supreme Court to unseal the court documents related to the November siege of a Colorado Springs Planned Parenthood.

A Colorado state judge has 20 days to explain why court records related to accused Planned Parenthood shooter Robert Lewis Dear Jr. remain sealed, the Colorado Supreme Court ruled last week.

Fourth Judicial District Chief Judge Gilbert Martinez has until February 16 to justify his decision denying a media coalition’s motion to release the court records. Martinez in late December ruled that unsealing Dear’s arrest warrant and other court documents would be “contrary to public interest.” A media coalition petitioned the Colorado Supreme Court to reverse Martinez’s decision, arguing it violated the Colorado Constitution and the U.S. Constitution.

Once Martinez files his response defending his decision, the coalition will have 20 days to file its response before the Colorado Supreme Court will issue its ruling.

Dear faces 179 charges, including eight for first-degree murder for the November siege of a Colorado Springs Planned Parenthood reproductive health-care facility that ended in a shootout with police. He was transferred to a state hospital, where he will undergo a mental health evaluation. Defense attorneys raised questions about Dear’s competency after several courtroom outbursts, including a proclamation by Dear that he is a “warrior for the babies.”

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Dear has accused defense attorneys of colluding with Planned Parenthood officials and trying to drug him. Court-appointed evaluators will try to determine if Dear is mentally competent to understand the proceedings and charges against him.

Dear’s attorneys had sought to limit the scope of Dear’s mental evaluation and block mental health professionals from asking Dear questions about facts in the case or his mental state at the time he is accused of taking the Planned Parenthood facility under siege. Dear’s attorneys argued those issues were irrelevant in determining whether Dear is competent to stand trial.

Defense attorneys had also sought to block the state hospital from disclosing to prosecutors any information about Dear’s evaluation.

Judge Martinez denied both requests.

Dear’s proceedings are mostly at a standstill until the evaluation is complete, a process that could take months. Meanwhile, prosecutors have not yet decided if they will seek the death penalty for Dear. The next hearing set for the case is February 24.

News Violence

Admitted Planned Parenthood Shooter Again Deemed Not Competent for Trial

Jessica Mason Pieklo

A Colorado judge ruled Thursday that Robert Lewis Dear Jr. remains not legally competent to stand trial on charges related to a November 2015 clinic siege that left three dead.

A Colorado judge ruled Thursday that Robert Lewis Dear Jr., the man who has admitted to killing three people during a siege of a Colorado Springs Planned Parenthood, is still not legally competent to stand trial. Dear faces 179 criminal counts, including murder and attempted murder, for the November 27, 2015 attack.

This was the second time Judge Gilbert Martinez has made such a determination. In May, Martinez made the ruling following two days of hearings where forensic pathologists told the court that Dear’s extreme political beliefs amounted to a delusional disorder sufficient to render Dear incompetent for trial.

Dear had previously told law enforcement officers and state mental health evaluators that he believed the federal government was persecuting Christians.

During Dear’s May competency hearing, Dear argued his attorneys were seeking a ruling of legal incompetence over his objections. Dear said during that hearing that he instead wanted to put forward a defense during trial that his actions were legally justified to prevent the greater evil of Planned Parenthood “selling baby parts,” a claim based off a series of discredited videos that claimed the reproductive health-care provider was illegally profiting from fetal tissue donations.

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Multiple state and federal investigations have not found any wrongdoing with regard to Planned Parenthood’s fetal tissue donation program.

Dear’s proposed “justified homicide” defense is the same on that Scott Roeder, the man who murdered Kansas abortion provider Dr. George Tiller in 2009, tried to raise during his trial. Operation Rescue President Troy Newman had also advocated for the murder of abortion providers under the theory that killing abortion providers prevents the so-called greater harm of those providers performing legal abortions. He has since walked back those statements. Newman is an advisor to David Daleiden, the anti-choice activist behind the videos Dear referenced to law enforcement.

Dear’s Colorado siege was not his first alleged anti-choice action. Court records show Dear had superglued locks at an abortion clinic in South Carolina and deeply admired Paul Hill, a former minister who was executed in 2003 for the 1994 murders of Florida abortion provider Dr. John Britton and Britton’s bodyguard.

As a result of Thursday’s ruling Dear will remain in a Colorado state mental health facility until his next evaluation by the court, which will take place in November.

Analysis Law and Policy

The Issue of Trans Student Rights Inches Closer to the Supreme Court

Jessica Mason Pieklo

With several cases in the legal pipeline, it's becoming a question of when—not whether—the Roberts Court will step into the fight over transgender rights and bathroom access.

On August 29, the Gloucester County School Board in Virginia will file a request asking the U.S. Supreme Court to step into the fight over whether transgender student Gavin Grimm can use the bathroom that aligns with his gender identity. Grimm’s case is not the first of its kind, but it has become one of the most high-profile.

At this point, it’s not a question of whether the Roberts Court is likely to take a case concerning what rights transgender students have under Title IX. It’s more a question of when.

Title IX of the Education Amendment Act of 1972 is a federal civil rights law that prohibits discrimination on the basis of sex in any federally funded education program or activity. Historically, civil rights advocates have used Title IX to guarantee female students access to equal classes, facilities, and educational opportunities. It’s also recently become an important, if flawed tool in addressing campus sexual assault.

“Basically anything distinguishing between boys and girls or men and women is prohibited under Title IX, unless there is a specific exception in the statute or regulations allowing it to happen,” Joshua Block, senior staff attorney with the America Civil Liberties Union’s LGBT & HIV Project and one of the lawyers on Grimm’s case, explained to Rewire in an interview.

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Title IX has some small carve-outs for when and under what conditions schools may discriminate on the basis of sex, Block noted. “The Department of Education has passed very detailed regulations saying when you do and don’t have to integrate a sports team,” he explained. “It’s passed detailed regulations on under what conditions a school [can] offer sex-segregated classes. Those would otherwise be prohibited unless … authorized by the regulation,” he said.

Among the carve-outs for allowable sex-segregation under Title IX is a regulation dealing with restroom and locker room access, which is at the heart of cases like Grimm’s. And it’s that carve-out that has sparked the legal fight over trans rights at school.

“There is a long-standing regulation that says schools can have separate restrooms and can have locker rooms divided by sex,” said Block. “Now fast forward 40 years later and you have school districts saying that this regulation not only gives them permission to have boys’ and girls’ rooms, but it gives them permission to essentially banish transgender kids from those restrooms by saying they can’t use a restroom consistent with their gender identity.”

The legal landscape of trans student rights to access restrooms and locker rooms consistent with their gender identity has been shifting well before Grimm’s lawsuit. Since as early as 2009, schools in places like Maine and Illinois have faced lawsuits for prohibiting students from accessing restrooms and locker rooms consistent with their gender identity. Meanwhile, states like California and Colorado have provided affirmative protections for transgender students in the form of nondiscrimination laws so students can use restrooms and locker rooms consistent with their gender identity. But that means transgender students across the country are subject to a patchwork of legal protections that are not uniform across the country: A trans student in California has, at least in theory, more legal protections against discrimination at school than one in Mississippi. So for many trans students, Title IX is the only legal protection against discrimination they have.

Through a series of administrative actions, the Department of Education (DOE) since 2013 has tried to nudge reluctant school administrators toward understanding the difference between providing for sex-segregated facilities and using those facilities as justification for discriminating against transgender students. It has notified federally funded schools that failing to allow transgender students access to restrooms and locker rooms consistent with their gender identity will subject those schools to litigation and risk their federal funding. In other words, the DOE made explicit its interpretation of federal law: Schools may have sex-segregated facilities like restrooms, but they cannot determine on the basis of gender identity which students have access to which facilities.

Significantly, the Obama administration filed a friend-of-the-court brief in Grimm’s case, urging the federal appeals court to follow its lead on interpreting Title IX to protect against gender identity discrimination in schools. So far, both the district court and the Fourth Circuit Court of Appeals have listened to the administration, deferring to the federal agency on how best to interpret the regulations that agency publishes. Those rulings have been temporarily put on hold while the Gloucester School Board files its request to have the Roberts Court step in.

This brings us to the conservative Fifth Circuit Court of Appeals and the lawsuit filed by more than 20 states in May arguing that the Obama administration has overstepped its authority on this matter. It’s similar to the argument raised by Gloucester County in the Grimm case and rejected by the Fourth Circuit.

Raising those arguments in the conservative Fifth Circuit, the same federal appeals court that blocked the Obama administration’s executive action on deportations, is a strategic bet by conservatives that they can get a ruling in their favor. Such a ruling would create a likely circuit split, or disagreement, in the appellate courts—which is exactly the kind of situation the Supreme Court is set up to resolve.

Once again, Justice Anthony Kennedy is poised as the swing vote, the justice each side needs to rule in its favor. And while Kennedy has emerged as a moderate but leading voice in the jurisprudential recognition of LGBTQ rights, he has also been critical of some Obama administration agency action. Cases like Grimm’s, or whichever transgender rights case the Court eventually takes up, will present the ultimate test for Kennedy: Which matters more, his desire to see the “dignity” of the LGBTQ community advance in the law, or his distrust of executive authority—even if that executive authority advances LGBTQ dignity?

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