When is it a felony or a misdemeanor to spit on a cop?

Colorado’s Supreme Court settled on a definition of what state lawmakers meant when they made it a felony to spit on police officers with an intent to harm, agreeing Monday to vacate a woman’s convictions because a trial judge’s attempt at defining “harm” was incorrect.

Spitting on a first responder could constitute either a felony or a misdemeanor under Colorado law, depending on the defendant’s intent. Although there is no elaboration in the law about what constitutes an intent to harm — a felony offense — a majority of the Supreme Court decided it must reflect a desire to cause “prolonged” psychological or emotional harm from a fear of infection, rather than a “temporary shock or minor discomfort.”

That explanation differed from the instruction Cheryl Lynette Plemmons’ jury received, as they were not asked to find Plemmons meant for prolonged damage to two La Plata County sheriff’s deputies by spitting in their faces.

“We can’t be confident beyond a reasonable doubt that the erroneous instruction didn’t contribute to the convictions,” wrote Justice William W. Hood III in the Sept. 26 opinion.

But the majority’s definition of “harm” arguably did little to resolve the problem, as two members of the court warned the definition instead introduces new ambiguity over the meaning of “prolonged.”

“Nothing in this statutory or legislative history suggests a concern for ‘prolonged’ harm,” insisted Justice Richard L. Gabriel, writing for himself and Justice Monica M. Márquez in a concurring opinion. He also urged the General Assembly to amend the law and clarify what it means to have an intent to harm first responders.

Two lawmakers at the time the legislature enacted its 2015 change to the spitting-on-officers law, whose contemporary statements the Supreme Court referenced in its decision, echoed Gabriel’s call for the General Assembly to step in and fix the law’s vagueness.

“I do think harm should include psychological harm, and I think I would’ve intended that with my vote to pass the bill,” said former Rep. Mike Foote, D-Lafayette. “I also agree with the concurrence that it would be helpful for a future General Assembly to clarify the matter.”

“Courts shouldn’t have to stretch so far to interpret a statute,” added former Rep. Joe Salazar, D-Thornton, also siding with the concurrence.

Two deputies responded to Plemmons’ home in December 2016 for a welfare check, after a friend reported Plemmons was feeling suicidal. Although Plemmons initially wanted the deputies to leave, she eventually agreed to speak with them. At one point, she flung a small knife across the room, not at either of the deputies, and they handcuffed her.

They planned to transport Plemmons to a hospital and helped her put on her coat and boots. In response, Plemmons spat on them.

Plemmons later testified she had done so to communicate, “Please don’t hurt me, please don’t take me to jail.”

The deputies arrested her and put her in the back of a patrol vehicle. While there, Plemmons spat on one of the deputies again through the partition.

Prosecutors charged her with second degree assault of a peace officer, which occurs when someone causes a first responder to come into contact with bodily fluids with an “intent to infect, injure, or harm.” The offense is a felony.

If, however, Plemmons had spat with an intent to “harass, annoy, threaten, or alarm,” her conduct would have amounted to only a misdemeanor.

The split between felony and misdemeanor offenses came in 2015, when the General Assembly nearly unanimously passed a bill intended to address assaults on emergency responders. Sen. John Cooke, R- Greeley, who was one of the bill’s sponsors, noted the intent of the law change was to recognize that contact with bodily fluids could potentially do “more damage” psychologically than physically because of first responders’ fear of contracting a communicable disease.

Some lawmakers were concerned, however, that making spitting a felony under all circumstances would over-criminalize certain behaviors. One representative, for example, balked at charging a person with a felony for spitting on a firefighter’s boot. Accordingly, the bill as enacted split up the level of intent needed for a felony and a misdemeanor.

At Plemmons’ 2017 trial, the question arose: What does an intent to harm mean?

According to Plemmons’ lawyers, prosecutors could conceivably choose to charge someone with a felony or misdemeanor for spitting on a police officer because the meaning of the term was so vague.

Then-District Court Judge William L. Herringer conceded the law was ambiguous, but determined the legislature intended “harm” to refer to psychological or emotional damage. He instructed Plemmons’ jurors they could convict her even if the harm Plemmons’ intended to cause was not “permanent or long-lasting in nature.”

Jurors found her guilty on three counts of second-degree assault — twice for spitting on the officers in her home and once for spitting in the patrol car.

After the state’s Court of Appeals upheld her convictions, Plemmons turned to the Supreme Court.

“I’m asking this court to hold that harm refers to exclusively physical injuries,” Deputy State Public Defender Jacob B. McMahon, representing Plemmons, told the justices in May of this year. Some members of the court were sympathetic to the idea that the law’s vagueness could result in arbitrarily charging people with misdemeanors or felonies without a clear

distinction.

“We are potentially giving too much discretion to prosecuting authorities to take two defendants, each of whom spits in an officer’s face, and treat them entirely differently. I’m worried about that,” Márquez said.

The Supreme Court’s majority ultimately disagreed with Plemmons that “harm” was solely physical. But it also rejected Herringer’s instruction to Plemmons’ jury about the degree of harm needed.

The law “evinces an intent to criminalize a particular kind of trauma inflicted upon peace officers: prolonged psychological or emotional harm that stems from the possibility that the officer has been infected by or could become a vector for disease,” Hood elaborated.

The court agreed to uphold Plemmons’ one conviction for spitting inside the patrol vehicle because her spitting, coupled with her verbal threats to the deputies, could have motivated the jury to find Plemmons had any number of intents, including to harm. As for her convictions for spitting on the officers in her home, the majority of justices did not believe Herringer’s instruction allowed jurors to focus specifically on whether the harm was “prolonged.” Hood pointed out that neither deputy had testified to having concerns about the long-term effects of being spat upon.

The court consequently overturned two of Plemmons’ convictions and ordered a new trial.

Gabriel agreed with the ultimate outcome, but took issue with the majority’s attempt at defining harm by referring to “prolonged” infection-related psychological damage. There was no guidance, he noted, for how juries are supposed to interpret a prolonged injury.

“As a result, the majority’s definition affords prosecutors substantial discretion to charge the very same conduct as either a felony or a misdemeanor, with no discernible standard for distinguishing one from the other,” he wrote.

Gabriel indicated he would have adopted Plemmons’ solely-physical definition of harm for the felony offense. He further asked the General Assembly to clarify the law.

Salazar, the former lawmaker who served on the House Judiciary Committee at the time of the law change, believed the Supreme Court correctly documented the concerns of legislators, even though the issue at the heart of Plemmons’ case did not seemingly arise.

“I don’t recall that the House had any discussions about prolonged psychological effects,” Salazar said. “For my part, I was worried about the potential physical effects of law enforcement being spat upon (i.e. infection).”

The case is Plemmons v. People.