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El Paso County Commissioners, District Attorney agree: COVID criminal charges ‘absolutely a last resort’

COLORADO SPRINGS–During a meeting of the El Paso Board of County Commissioners (BOCC) at which the BOCC passed a variance request from the county to Governor Polis allowing restaurants to reopen, commissioners and 4th Judicial District Attorney Dan May (DA May) agreed that in all but the most serious cases criminal charges are not warranted for COVID-19 regulation violations.

As originally reported by Springs, DA May appeared before the BOCC Thursday, May 14 to clarify his position regarding “probable cause” criminal prosecutions for violations of state or county health orders. His appearance was triggered by a dispute with El Paso County Attorney Diana May (CA May) regarding the expectations of the BOCC for enforcement actions by DA May.

“Diana May, the county attorney, has indicated to me that it was her expectation that we have a four step process where the Department of Health does an investigation,” said DA May. “They first give a verbal warning, [then] a written warning, and a cease and desist [order], and the last resort would be criminal charges.”

County Attorney May said, “That was a process that the district attorney’s office had agreed to also, and that is the framework that we have been working under with the law enforcement.”

DA May disputed CA May’s claim, saying he does not have that understanding.

“We shared a series of emails back and forth where Diana May indicated that she felt that if there’s probable cause soon after the cease and desist to believe that a crime had been committed, that it was her expectation that we would be bringing criminal charges, and she indicated that my statements lead the Board of County Commissioners to believe that same thing,” said DA May. “That’s not my expectation.”

Board chairman Mark Waller, who is also running for district attorney said, “Our expectation would be that the district attorney’s office does what the district attorney’s office always does and operates in a way that your mandated to operate, the same with the sheriff’s office.”

“We’re happy to look at position of the district attorney,” said CA May. “If the district attorney’s office is changing their position from the prior agreement, because that was the agreement that was reached with his office, we’re always happy to sit down and have a dialogue if his position has changed.

DA May retorted, “I don’t think I’ve ever committed to filing charges on probable cause. I’m concerned that the board doesn’t understand what probable cause is. It’s a legal term.”

After asking DA May who told him the BOCC had such expectations, and hearing DA May’s offer to explain the meaning of probable cause, Waller said, “I think we understand what probable cause means.”

Distancing the BOCC from the disagreement Waller said, “we’re not mentioned in the email at all.”

He went on to say, “I’ll tell you that not one of us has advocated for anybody being charged with a crime as a result of anything that’s happened related to COVID-19. In fact I think we’ve said nothing but citizens are doing a great job in this.”

But DA May persisted in explaining on the record why he doesn’t feel criminal charges are appropriate in any but the most serious situations.

“Quite frankly the law is a 50/50 proposition, if the board isn’t aware of that, it’s a probability. And so I’d be arresting people and filing charges on a 50/50 possibility a crime was committed and a 50/50 possibility this person’s doing it,” DA May said. “We’ve never acted on that in my office. Since I’ve been DA, and I’ve worked under every DA since 1982 I think, we’ve never used [probable cause] for charging.

Probable cause, or “more likely than not” is the standard used by law enforcement in making a lawful arrest.

“We’ll be looking for every other possibility that we can before we get to that,” said DA May. “Because once you ratchet up to criminal, its a whole different matter and quite frankly you’re labeling someone as a criminal for the rest of their lives.”

“It is not my expectation law enforcement is going to be going in to give tickets for every single item in [the county’s order] that isn’t being processed,” said DA May.

DA May said because restaurants are licensed premises there are other appropriate measures the county or state can take to enforce health orders short of criminal charges.

“I think it’s wrong to threaten that way. I don’t want people to feel threatened that we are going to put people in jail for a year and a half,” DA May said. “I’ve heard people say that. That is not our goal. I don’t want people to live under threat that they can go to jail because they shake somebody’s hand or give somebody a hug.”

But DA May does not promise a get-out-of-jail-free card to anyone.

“There may be the extreme situations, outside of the restaurant business, and we look at them case by case. We’re not going to be doing it on probable cause, we’ll be doing it [based on] firm evidence,” DA May said. “But in the appropriate situation we will look at it, but I think it’s going to be the extreme rarity.”


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