An El Paso County District Court judge lacked any justification in ordering a sex offender to avoid contact with his own child, the Colorado Court of Appeals ruled on Thursday.
“The conditions of a sex offender’s probation often exist at the intersection between public safety and the offender’s constitutional rights,” wrote Judge Matthew D. Grove for the appellate panel. “The existing record does not establish the existence of compelling circumstances necessary to impose the restrictions on familial association.”
Prosecutors charged John Jacobs Cooley in El Paso County with sexual assault on an adult, along with counts of kidnapping, robbery, theft and unlawful sexual contact. Cooley pleaded guilty to one count of sexual assault and received sex offender probation for between 10 years to life.
There were 28 conditions of Cooley’s probation, including that he “shall have no contact with any children under the age of 18, including your own children,” except if the court or his probation officer authorized it. A further stipulation warned that if Cooley had “incidental contact” with minors, “you will be civil and courteous to the children and immediately remove yourself from the situation. You will discuss the contact at your next treatment session and your next probation appointment.”
The district court judge told Cooley that there would be an assessment of whether it was appropriate for him to be around children, but the appellate court found no evidence that the process happened.
Following an instance of Cooley talking to his daughter in his car, the court revoked his probation for not immediately reporting the encounter, and sentenced him to between two years and life in prison. Cooley appealed, arguing the court’s conditions did not require an “immediate” report.
The appeals panel agreed, noting that the actual stipulation required Cooley to immediately remove himself from the situation, while discussing the contact with his probation officer at the next opportunity. Grove added that while it is possible Cooley violated the condition of immediate removal, that was not the basis of the district judge’s decision.
Furthermore, the appellate judges found the lower court lacked sufficient justification to impose the no-contact provision in the first place. Grove’s opinion cited United States v. Burns, a 2014 decision of the U.S. Court of Appeals for the 10th Circuit. In that case, the court overturned a prohibition on the defendant’s contact with his minor daughter after his conviction for possessing child pornography. The circuit panel, which included now-U.S. Supreme Court Justice Neil Gorsuch, noted that the defendant, James Burns, had a constitutional right to familial association. Because there was no finding that Burns posed a danger to his daughter, the condition forbidding unapproved contact was improper.
In the absence of a risk assessment for Cooley, Grove wrote, “virtually none” of the court record supported curtailing Cooley’s contact with his daughter. The appeals panel reinstated Cooley’s probation, but notably did not instruct the El Paso County court to repeal the no-contact condition. Instead, the judges asked the court to reconsider the need for the stipulation.
The case is People v. Cooley.