Tag Archives: Denver

Sovereign Bruce Doucette found guilty of organizing a jailbreak from servitude


BREAKING: A jury of twelve Denverites just found Pro Se defendant Bruce Doucette GUILTY of multiple counts of racketeering, organized crime deeds, etc, for the actual self-confessed act of telling off his betters. By whom I mean, the local officiates of a fraudulent entity which presumes everyone’s birthright is slavery.

Judicial reform activist Bruce Doucette is next Denver sovereign to face joint FBI JTTF IRS & Colorado AG show trial

DENVER, COLORADO- Into the second week of the Doucette sovereignty trial you can’t help but imagine yourself attending the burning of a medieval heretic. There but for a modicum more caution than courage go I.
 
Sovereign Bruce Doucette and his nine co-conspirators, who prosecutors allege constituted a “criminal enterprise”, were saying what most know to be true about our nation’s corrupt justice system. Their attempts to bring reform however sparked the fear and wrath of the targeted cronies, who now lash back with all the authoritarian muscle with which they conduct their misdeeds.

Small surprise, obviously. That’s why you and I are standing around the fire and not in it. But seeing the fire being fueled by the FBI, its Joint Terrorism Task Force partners, and Colorado’s First Deputy Attorney General himself, onlookers dare not show sympathy for the heretics.

If you think this is an exaggeration, you haven’t been watching the Denver “paper terrorist” enterprise trials. Last December, the first two sovereigns were convicted of racketeering, conspiracy, etc, and given 36 and 22 year sentences. At their ages, that’s LIFE. Two remain to be tried, including Doucette. The rest took plea deals and were given only probation. This was in exchange for being made to “renounce allegiance to the sovereignty movement” and “to cease criticizing” judge whoever.

In constitutional days, criticism was free speech. And belief was a fundamental right. If you can reduce a prison sentence to probation by merely swearing fealty to the dominant authority, the real problem law enforcement has with these paper crimes is the First Amendment.

Today Colorado is giving life sentences for heresy.

Injustice
Systemic corruption among judges, sheriffs, district attorneys, and petty bureaucrats is no mere conspiracy theory. Someone is filling America’s booming for-profit prisons. Someone is enboldening cops to shoot rather than arrest. Who do you think is running the courts which prey entirely on the disadvantaged?

In Montaigne’s day, even aristocrats feared the courts. America’s innovation was to ensure the legal system benefits the rich, while pretending to serve The People. And administered by clowns who swore an oath to the people. For laughs.

Oaths
Doucette and his sovereign reformers discovered that many of these cronies had become so brash, they had dispensed with the oaths of office which they were constitutionally required to make. More hadn’t even posted bonds to secure said oaths. Bonds are mandated by the constitution to hold public officials accountable to their subjects over whom they wield disproportunate power.

But Doucette & co soon found that pointing out the missing oaths and bonds fell on deaf ears. Bond-less, oath-less, unaccountable despots can simply bang the gavel and ignore you.

While the more clever, if less principled, among us learn to exploit a crooked system, and the rest of us gnash our teeth in frustration, the Colorado sovereigns were foolhardy enough to take on the system with its own medicine.

Liens
Doucette and crew enterprised to serve official looking financial liens on the corrupt office holders, for monetary amounts corresponding to how long the officials had defrauded the public by drawing their oath-deficient salaries. With interest, compounded, the liens named extraordinary amounts due. The asserted default judgements totaled millions or billions, even TRILLIONS. This apparently frightened the officials who received the correspondence. A trillion dollar personal debt can ruin your credit.

Those lien amounts were contrived to bring the offender’s attention to their offense, if also to infer the moral bankruptcy of corruption. But instead of hopping to the swearing of oaths and the posting of their negligent bonds, the cronies called the FBI.

It turns out the FBI was already watching because the sovereigns and their ideology fall under federal definitions of domestic terrorism. You heard that right. Leave-me-alone sovereigns are considered terrorists.

Of course, sovereign ideology is a HUGE existential threat the system, but whenever did you give your assent to being thought-policed?

Sovereigns
The sovereignty movement in the US is comprised of a growing population of political constituents awake to the reality that their government no longer represents them. Their government acts unconstitutionally, to be specific. Its taxes, its judicial system, and especially its monetary mechanisms, are unconstitutional.

It’s become cliche to say our government is illegitimate. But what else are you going to call it? By a gradual process, the American democratic project became an authoritarian shadow state.

Sovereigns can argue with conspiracy theorists about maritime dominions or Freemasons or whatever complicated subterfuge, but to make a long story short, our national economy came under the control of oligarchs. The steps are easily documented.

I’ll list these highlights because they’ll pop up again later: 1861, endenturing Americans to foreign debt payments; 1913, shifting control of US currency to the predations of domestic private capital; 1949, our republic becomes a security state. All these transformations were expressly contrary to the intentions of the founding fathers and without consultation of the people.

Fraud
Despite Thomas Jefferson’s personal warnings, and his anti-Hamiltonian safeguards which held ground for generations, the American nation became enslaved to usury. Specifically it yielded to private loans and their interest rates which engineer economic instability and poverty. Our nation’s public wealth was usurped by the same financial masters who wrung opportunity, equality and equilibrium from Europe, the anemic economies from which our forefathers and subsequent immigrants declared their independance.

Because this is not what is represented to Americans in our civics classes, nor what we believe to be our citizenship compact, how can a declaration of personal sovereignty be unreasonable? The American Dream is a bait and switch. It’s false imprisonment. It’s contract fraud with our social contract.

Naturally Mommon has no intention of letting this truth be uttered. Mammon deems sovereigns as rebellious slaves. To a slaveowner, that’s terrorism.

Heresy
Sovereigns are often maligned as “patriots” in the retrograde supremicist sense. Obviously they are patriots enamored by what the American project has always pretended to be. Sovereigns are dedicated to the constitution we’re supposed to follow, to which any official with broad authority over people, is supposed to swear an oath.

In view of a lawless government and an abusive predatory bureaucracy, sovereigns try to indemnify themselves from corruption’s long greedy arm. This of course troubles our masters.

Persecution
The trial of sovereign Bruce Doucette is not a pretty thing. As a sovereign he cannot but represent himself Pro Se. You can wish his legal arguments were sharper, you can wish he had a lawyer’s chops, but Bruce Doucette is an ordinary person. He’s just smart enough to recognize injustice, and smart enough to have drawn its wrath, but stupid enough to have the moral conviction that prevents him from standing idly by like you.

Now Bruce Doucette is up against flames and torturous barbs honed by centuries of Inquisition. Today’s shackles and compliance control devices are exerted by the IRS.

Income tax is a convenient weapon with which to bludgeon sovereigns because it’s their Achilles Heel. Sovereigns take a principled stand against the income tax and they don’t pay it. We indoctrinated subjects consider income taxes ubiquitous, but it’s a contemporary government abuse.

Debt
Since prehistory, taxes were levied on wealth and land. When pre-industrial private finance schemes began to suck the wealth of nations and its land holders, governments had to make up their losses with other tax revenues.

Industrialization provided individual wages and salaries from which to trim a government’s share. Initially this was used to pay for the incidental expenses of war. Increasingly, the income tax became necessary to meet a nation’s growing interest payments to private debt in light of its diminishing assets from which to draw.

For some deranged logic, which we’ve lost the critical thinking skills to question, people accept national debt to private lenders as an obligation inherent to all national economies.

Income Tax
The history of the income tax can be traced to some telling coincidences. The first income tax appeared in England in 1799, levied to pay for the war against Napleon. Revolutionary France had thrown off the international financiers trying to impose private debt. Napoleon was fighting to preserve France’s prosperity which had come from his economic measures to thwart usury.

The first US income tax was imposed in 1861, to subsidize the War of Rebellion. By coincidence, that’s the year the Union violated long standing constitutional prohibitions against saddling our economy with private international debt. The federal income tax remained a contentious tax, until a Supreme Court declared it unconstitutional.

Undeterred, Congress eventually amended the constitution to legitimize the income tax. By no coincidence at all, they did it in 1913, the same year American bankers created the Federal Reserve, the mechanism by which the spoils of usury and financial manipulation could be rendered from London to domestic profiteers. The spoils remained private. National debt was still the means to steal the wealth created by labor.

Thus the bankers wanted not only the prosperity generated by the labor, but a cut of the wages which paid for the labor. The only thing the rich have ever wanted was everything.

Besides, again the government needed the income tax to pay the interest on the private money it borrowed from the Fed.

No wonder sovereigns repudiate the income tax. It’s a slap in the face when the usurers already have both hands in your pockets. It’s robbing you personally when they’ve already taken the wealth you helped generate. It’s taking YOUR wallet when they’ve already stolen EVERYONE’S safe. And if the chairman of the Federal Reserve determines you can do without that sandwich, they’ll peg the interest rate to take that too.

Your nation’s wealth is not just your birthright, it’s the fruit of your collective hard work. A productive community, whether agricultural or industrial, is naturally prosperous. Unless it’s harnessed to perpetual interest payments. Debt means perpetual inequity. Especially when the interest rates are variable, adjusted to ensure that borrowers are left only with the crumbs of subsistence.

Jeers
Probably you’ve little sympathy for louts who don’t pay their taxes. Defendant Bruce Doucette was certainly made to look shameful for shirking his financial responsibility to the state. If you think he had one.

As the enlightened moderns we think we’ve become, we can look back at medieval heretics and know they weren’t criminals. And we know the bishops, burgermeisters and prosecutors of old could not have burned the heretics without the support of the jeering crowds. What inclined the medieval townspeople to jeer? In hindsight it’s easy to conclude it was gullible self-defeatism.

Please consider reasons you think you have now to jeer at Bruce Doucette. He followed his convictions. He spoke his mind. He tried to make authorities show the deference due their constituents, the common people. That mission was not criminal.

Just because your would be champion isn’t erudite doesn’t make him a criminal. If you think handing a public official a lien for 17 BILLION DOLLARS, owed to the American People, makes the defendant a bad boy, then give him a spanking!

Doucette’s act didn’t make victims of the unconstitutional oath-fraud officials. The court paraded a string of judges and sheriffs to testify against Doucette. They told the jury they felt victimized by the defendant’s “paper terrorism”. Bullshit.

On the other hand, no one is considering the real victims: the ruined lives, incarcerated or in penury, harassed, condemned and sentenced by those unaccountable public officials today pretending to be “victims”. If those real victims could testify at this trial, we all might be showing a little more appreciation for Doucette.

Meow Wolf’s new Denver development is urban predation in sheep’s clothing.

Terra CottaDENVER, COLO- Alternatively, Santa Fe alt-art venue Meow Wolf is URBAN DEVELOPMENT IN CAT’S CLOTHING. Here’s the scam: Laud an arts collective of “creative types”. Let them pitch an arts space project to city planners for which you’ll supply the ownership investment. Let their non-profit creative-class cred prompt city leaders to provide otherwise unavailable land and the tax incentives and exclusions which come to cultural projects. Let them lead community fundraising to support art etc etc. You buy the land, you own the building, and you give them a 20-year lease. Their rent is subsidized by more community and city support. Cha-ching.

In the end, you’ve got another property, where you mightn’t been able lacking eminent domain. And you’ve roped in long-term tenants whose rent checks are backed by taxpayers. When your cronies lobby the city against that public support and their project is a bust, or when the lease expires, your sky is the limit! How can you lose?

Normally you pull this scam on locals, but art communities have their own MBA grads now. So how to subvert urban artists? Bring your own hicks.

In Denver, developers are using a New Mexico based band of bohemians called Meow Wolf as their shill intermediaries. Meow Wolf is a sort of Cirque du Soleil meets Halloween haunt house, in Santa Fe, who secured their own “permanent” leased space only last year with the backing of Game-of-Thrones creator George RR Martin. It’s the reverse of course, because Meow Wolf attracted the public subsidies for the pulp author turned property developer, who keeps the building.

Now someone has decided Meow Wolf can franchise their black-light immersive fun-houses everywhere that low-brow passes for art.

For 2018, Meow Wolf has rolled Denver for a new construction downtown. Except no, they and their public support get only a LEASE. Flush with praise for their success, the Meow Wolves admit they’re working on simultaneous metropolises across the west, even as they appear so fresh off the boat they hardly know what they’re doing!

They don’t, but their landlords do. Those crazy creatives!

Activist Corey Donahue is free, despite supra-judicial ploys to halt his release.

Michael Corey Donahue
DENVER, COLORADO- Occupy Denver veteran Corey Donahue was released from county jail on Thursday, thwarting two surprise court filings to keep the activist in custody for additional months. Donahue had negotiated a global plea deal to serve concurrent sentences for his outstanding charges of inciting public protests in 2011 and 2012.

Yeah, those aren’t crimes, but when you’re an involuntary guest of the Denver jail, your stamina for disputing bogus accusations wanes with every bogus meal. Municipal court judges are as vindictive and perfunctory as the petty officials pressing the original charges. Engaging that crowd is not reciprocal, so it’s especially unrewarding if it means enduring protracted incarceration.

Having cleared his cases and completed the good-behavior obligations of a 9-month sentence for the nut-tap crime, Donahue was due to be released Thursday. But that morning, the Lindsey-Flanagan justice center activated an additional 2012 case which lawyers had been prevented from negotiating because the Division-3D judge withheld it from the docket. Neither private attorneys nor public defenders had been able to compel 3D to address that lingering case number. On Thursday the case mysteriously engaged…

As a result, on Thursday Denver sheriffs demanded a large cash bond and they scheduled Corey for an in-custody court appearance the next day. When funds were rushed to the bonding office, an even larger bond was imposed for a 2011 case specifically stipulated to have been dismissed by the terms of Donahue’s global plea.

Can they fucking do that? No. And yes, everyday. Municipal court despots are not accountable even to their consciences. We’ve seen Lindsey-Flanagan chief justice Martinez confabulate on the witness stand in federal court to suit his duplicitous machinations, and his minions embellished on his lead. Usually their victims, locked in the Van Cise-Simonet Detention Center across the plaza, are powerless to decline their sadism.

Clearing up this clerical error would take until after Christmas, so it seemed more in the holiday spirit to give Denver their blood money and take the courthouse to task afterward, from the relative comfort of being out of custody. WTF.

Denver used protection orders to curb mobility of Occupy protesters in 2011


DENVER, COLORADO- Activist Corey Donahue’s 11-11-2011 protest case is still outstanding. The recently surrendered fugitive is charged with inciting a riot in the first months of the Occupy Denver encampment, when supporters crowded a police cruiser and began to rock it in protest of Corey’s third arrest. Clouding this nostalgic look back at DPD’s mishandling of mass demonstrations are the quasi-legal steps the city took to constrain the protest.

It turns out Corey’s felony riot charges were used to convince a Denver court to grant protection orders to two state troopers who considered themselves personal victims of Occupy Denver’s assertive tactics. As a resut, Corey was prevented from leading demonstrations into areas when those officers were deployed, and he didn’t know which those officers were.

The measure was of dubious legality and so far remains shrouded in disinformation. Were two officers “seriously injured”, as news outlets reported, in the so-called riot of Nov 11? Except for their official statement, no evidence was ever provided by DPD. What were the injuries and who were the officers?

Can police invoke the protection of a blanket injunction to stop public demonstrations whenever they want? Can a police department enforce protection orders and pretend its subjects can remain anonymous? These are the questions which Denver police face as they push charges against one of their most outspoken antagonists.

Can law enforcement officers unknown to a defendant file for restraining orders against the public they serve and protect? Can police require that ordinary citizens maintain a prescribed distance from them in a public space?

Encamped on the grounds of the capitol, at the peak of an ongoing protest movement, Corey Donahue was in no position to push back with a legal challenge.

Denver has since used an even more abusive method, designating “area restrictions” to keep active protest leaders out of places like the state capitol, Civic Center Park, and 16th Street Mall. DPD cite the arrestees’ repeated arrests as justification. This probation stipulation may be applicable for criminal recidivists, in particular domestic violence abusers, but it is hardly constitutional when applied to free speech. Denver’s practice hasn’t been challenged yet, for want of sympathetic plaintiffs.

Giving police protection orders, to prevent specific demonstrators from assembling near police lines, would seem to fall in a similar category of judicial misconduct.

FBI undercover rats on sovereign pals, says they planned to seize small county jails, except he was their lone soldier.

 

 
DENVER, COLORADO- Very interesting testimony Friday at the trial of sovereigns Stephen Nalty and Steve Byfield. The prosecution’s latest witness was FBI INFORMER Marshall Ringer. Not a sovereign citizen type turned by government agents, Ringer is a disgraced police officer hired by the FBI and inserted into the so-called “enterprise” to report its activities and propose courses of action conducive to arrests. Ringer calls himself a “self-employed security expert.” His handler FBI Special Agent Ryan English calls him an “embedded confidencial human source”. His targets gave him the title “Continental U.S. Marshall”. They hoped he would recruit like-minded sovereigns to the cause of correcting what they saw as a corrupt judicial system. Ringer’s FBI codename was “Earp”.

The accusations corruption hinged on the understanding that according to Article VI of the US Constitution, positions of public authority must take an oath secured by a bond. The “enterprise” had discovered that many Colorado judges and prosecutors and sheriffs and other elected officials didn’t have oaths or bonds on file. If this expectation was indeed a misconception, and Article VI is inapplicable, you’d think the remedy might be to tell the would-be reformers, “no, that is not a requirement, here’s why, etc.” Strangely that was never done. Neither to their person, in a handout, or to reporters looking into this sad case. An undercover would present an excellent opportunity to huddle with the enterprise and say “hey guys, I was looking into this oath stuff and discovered that according to such and such law, or ruling or whatnot, oaths and bonds are no longer mandatory, end of story!”

But “Earp” didn’t. Nobody did. Nobody has yet to spell it out, even in this courtroom. When the defendants have tried to put Article VI into the trial record, they’ve been refused. So the issue is certainly a curious one.

Instead of using an undercover to diffuse the oath-seekers by presenting the incontrovertible truth of their error, the FBI and the state prosecutors instead gathered evidence to ridicule their character. We’re told they met in trailerhomes, they struggled to cobble enough money together to give their marshall a pair of handcuffs. They dreamed of putting together a network of De Jure judges to replace the corrupt ones currently alas De Facto.

Tapes
You might think the taped conversations of the sovereigns would be damning. The defendants certainly seem to be embarassed by them, but they’re less incriminating than disarming. When “Earp” asked what was he to do with the officials he arrested, he was told, nothing, for now. Do not take any action on your own. Wait for instructions from the People’s Grand Jury. Every time “Earp” goaded his colleagues about what he could do, they’d tell him to wait until matters could be addressed democratically and judicially.

The most interesting information to come from the undercover testimony was about how the FBI wires up its informants. Colorado law requires that at least on person in a conversation consents to being recorded. As a result, every recording presented to the court begins with the person wearing the wire dictating this preamble: “This is confidential human source X, on such and such date, etc” before that informant gets out of his car or enters a meeting area.

This offers potential targets a remedy for how to avoid intrusive surveillance by authoritarian law enforcement agencies IN COLORADO. Before every meeting, have everyone say out loud: “I do not consent to being recorded.” In unison is fine. Then a leader can then ask: “Was that everyone?” To which everyone can answer in unison: “Yes.” Provided that everyone said it, that meeting cannot be recorded. Such a method not only invalidates a recording being used as evidence later, it makes the recording a crime and the agency undertaking it and in possession of it, cupabe. If an undercover continues with the recording, he’s committing a crime.

In the case of te sovereigns, and likely your scenario as well, the government’s criminal act will far exceed in severity what they thought they were recording you doing.

We’ve yet to learn how, but apparently this undercover was discovered by the defendants early in 2017. They outed him by accusing him of making recordings and giving them to the FBI. That’s when he extracted himself and the indictments and arrests happened immediately thereafter.

The Enterprise
However you may feel about these perhaps misguided judicial reformers, their adversaries are behaving every bit the corrupt villains they pretend not to be.

The accused called themselves the People’s Grand Jury, the Indestructible People’s Trust, The Colorado Supreme Court, the Continental US Marshalls, the De Jure whatnot, or simply We The People. There seems to be no end to the permutations but they never called themselves “The Enterprise”. Yet that is what their accusers call them. In fact, for the duration of the prosecution’s case, a posterboard has been left in the center of the courtroom, beneath the judge’s dias, from which the jury cannot look away, it’s titled The Enterprise, with photos of ten member now-defendants, like employees of the month, except with mugshots, ranked in order of their title or prominence. Another ten members didn’t warrant photos or arrest, yet are listed as culpable parties, guilty by association and without the chance to . You wonder if that is legal. It certainly is prejudicial. Never mind if the witness testimonies don’t add up, there is The Enterprise, like it’s a thing instead of a characterization fashioned by frame-up artists.

MONDAY UPDATE:
On Monday defendants were given one day’s recess to review the evidence for their defense, which being incarcerated has impeded. So FBI informer Marshall Springs will resume his testimony tomorrow. But the courtroom also heard that the prosecution plans to bring TWO MORE UNDERCOVERS to testify, plus two cooperative witnesses, one of whom is a co-defendant who’s taken a plea to turn STATE’S EVIDENCE.

So that makes THREE undercover officers infiltrating “the enterprise” of not much more than a dozen conspirators, two of whom have become so intimidated they’ve changed their minds about what they were trying to achieve.

The next few days should prove enlightening and heartbreaking because although prosecutors have been documenting what the defendants did, they haven’t demonstrated the acts were crimes,. As much as defendants conspired, organized and racketeered, they didn’t aim to make one cent profit, illicit or otherwise. To what offenses did the cooperative witnesses plead guilty and what accusations do they make toward their friends?

So Nalty and Byfield have the rest of the day to study the evidence against them. The jail has not provided the paper and pencils ordered by the judge. The jail hasn’t afforded the defendants access to the case evidence either. Nalty indicated today that he’d spent a sum total of 45 minutes with the electronic files. He asked for a break of four days to prepare for the rest of the trial.

Both are in Denver jail, though their legal papers were not transferred with them when the defendants are on loan from Adams and Arapahoe Counties respectively. All the defendants being charged with conspiracy are being detained in different jails to prevent them talking to each other. But the problem is they don’t have their case papers or filings, and are in Denver’s customary 22 hour lockdown in their cells, which inhibits using the jail computers which are confined to the jail law library.

Prosecutor Shapiro responded to the defendant’s complaints of the jail not providing paper and pencils by cavalierly handing them writing pads, which they grasped with handcuffed hands, with polite thankyous. Though Shapiro no doubt know they won’t be allowed to take these into the jail. Then he condescendingly bragged that he’d resolved that complaint by providing “brand new” pads to each defendant. Defendant Byfield’s pad had a couple sheets missing, so he immediately pointed out that his pad wasn’t new. I couldn’t help but burst out with a laugh.

The judge thought there was merit to Nalty’s complaint Both defendants have scant access to the jail computers necessary to see the evidence. By the prosecutor’s own admission, the “tens of thousands of pages” would have been prohibitive to provide on paper, and the “hours and hours of taped testimony” likewise can only be provided electronically.

Prosecutor Shapiro acquiesced to allowing the defendants one day to catch up, though it sounds like he is well aware that analyzing tens of thousands of pages and hours and hours of evidence would take longer than that. Shapiro told the judge he calculated the state had wiggle room to allow a one day delay and still finish with the case by Friday. Here’s what he calculated: The state figures to rest its case by Thursday afternoon. That should leave a day and a half, less closing arguments and jury instructions and jury deliberations, to finish the trial on Friday. The prosecutors’s case will have taken six and a half days, but Shapiro thought the extra day needed to look over the evidence could come out of the defense’s day planned for defense.

To help the defendants prepare, Shapiro volunteered a preview of the witnesses to expect to testify to close out their case. Coming up we have four Gilpin County administrators, but we have also two more government undercovers, and the two cooperating witnesses. One of them co-defendant Bryan Baylog.

Not The People v. Stephen Nalty and Steven Byfield. Right to an Unfair Trial.

Paper Terrorists Tried in Juvenile CourtDENVER, COLORADO– The trial of accused “Paper Terrorists” Stephen Nalty and Steve Byfield began Monday in courtroom 2H of Denver district court. The two face 28 odd charges, from conspiracy, criminal enterprise, to racketeering, brought by the Colorado Attorney General and the FBI.
 
And they’re defending themselves. In handcuffs.
 
Don’t worry, they’re holding their own. But already it’s day one and authorities are piling on every disadvantage. On Monday the defendants were cheated of being able to prevent the state from stacking the jury (and the defendants don’t even know it because they weren’t in the courtroom to see it done).

Watching the court clerks and lawyers prepare for the trial, you cannot but admire their civil spirit. In every hearing Nalty and Byfield have declined advisements and refused to recognize the authority of their adjudicators. The two sound like broken records about “oaths” and sovereign stuff, yet the judicial mechanism inches forward. It should of course, because the defendants have been jailed since MARCH.

For six months Nalty and Byfield have been held on $350,000 bonds. Neither of them can afford even the interest on those sums. Of course their indictment and prosecution is a travesty and a misappropriation of public resources, but how else could the state stop their criminal enterprise except to admit wrongdoing itself?

Nalty and Byfield are being railroaded and they’re sure a jury will conclude the same.

The People’s Grand Jury
For the last few years, among a team of eight “sovereign citizen” types, Nalty and Byfield have been serving judges and other public officials with legal papers and liens which achieved no response. Until Colorado’s attorney general enlisted the FBI to squash the “criminal enterprise.” The sovereigns face 28 charges of all the racketeering and conspiracy lingo, essentially for questioning why their local magistrates and officials had no oaths or bonds on file. When the sovereigns got no response, they formed a “People’s Grand Jury” to indict the violators with their ad hoc public courts. Then they’d file commercial liens against those accused for defrauding the public in violation of Article 6 of the US constitution.

When confronted from podiums, judges and lawmen dismiss the oath requirement out of hand, but it’s interesting that none spell out exactly what law supersedes the US Constitution. News articles about the Paper Terrorists list the litany of criminal charges the defendants face, but have yet to mention the asserted law-breaking which is the Paper Terrorists’ only complaint.

It is hard to get a handle on what the “People’s Grand Jury” really wants. In their dreams, they assert that the lack of filing of oaths should mean that all affected legal judgements should be overturned, and that all salaries drawn by government employees who did not file oaths or bonds should be returned to taxpayers, with interest. They calculate the total sum owed to the American people is in the multi trillions. So there’s that.

Some of the public officials targeted by the People’s Grand Jury began to suffer strikes against their credit records when they didn’t contest liens filed against them. You’d think the credit monitoring algorythms would flag multi billion dollar liens. You’d think someone could suggest a method to filter such paralegal filings.

Instead the state chose to hit back hard. Last March, the eight troublemakers were indicted for two dozen paper crimes. The state imposed bonds averaging a quarter million each. It hasn’t stopped the crew, as their wives and friends keep serving more notices and liens. So now the state intends to make them examples and imprison them for life.

Jury Selection, Only For the Prosecution
Here’s what happened Monday during jury selection, when both sides are meant to parse a jury pool to pick an impartial jury. You know, a defendant’s right to a jury of their peers?

Nalty and Byfield still don’t know what hit them. The prosecution was given the jurors’ details, the defendants learned none. They blindly accepted jurors whom the prosecutors had already carefully weeded. The defendants never knew it and the court was not “on the record” when this happened because it was before the judge entered the courtroom. But audience members saw the whole thing.

Actually, once he was presiding over the entrance of the jury pool, the judge was in a position to observe the prosecution desk already progressing well through the jury questionnaires while the defendants sat idle. Perhaps the judge didn’t know his court clerk had provided no instruction to the defendants. Ultimately whose responsibility would that be?

Monday for jury selection, the court decided it needed a jury pool of SIXTY from which to choose twelve jurors plus two alternates. To save time, the court had prospective jurors fill out 4-page questionnaires instead of having them deliver the customary recitation of their biographical details. The court assigned four digit non-sequential numbers to each candidate. Copies of these forms were made for all parties, stacked according to the seating order of the jury pool. They were put on the desks before sheriffs had brought in the defendants. The team of four prosecutors began pouring over the questionnaires and were warned by the court clerk not to get them out of order as it corresponded to how the jury pool would be admitted.

Team leader, Assistant AG Shapiro noticed that the forms bore the jurors’ signatures, which he instructed should be blacked out from the copies provided to the defendants. Two clerks set themselves to redacting the stacks for defendants Nalty and Byfield. Meanwhile the prosecution studied the forms, made their notes, and drew each other’s attention to details. This information included the applicants’ names and signatures. Trial lawyers do not discount surnames and autographs as irrelevant to evaluating a juror.

When the clerks finished their redactions there were still other courtroom delays and by the time the defendants were finally brought back from their holding cell, the prosecution had a full half hour head start studying the questionnaires, and of course twice the pairs of eyes.

The defendants were not told what the stacks were, nor that they were in any order. The defendants had barely been seated before the judge made his entrance and the jury pool was paraded into the courtroom. The defendants thus got no time to examine the questionnaires. They looked at the stacks dumbly, not knowing what they were supposed to do with them, or how, with their wrists in handcuffs. Defendant Byfield tried to shuffle through some of forms while the judge advised the jury pool. With shackles on he couldn’t manage the stack, much less keep it in order, even if he knew that would matter. Forget managing pen and paper, in addition to taking notes.

You’d hope that jurors will wonder why these “paper terrorists” are kept shackled. Who has ever asserted they pose a threat of violence to anyone?

On the other hand, if you doubt that the failure to file a public oath should earn a prosecutor the accusation of fraud, if you doubt it means they’re untrustworthy, the unfairness they eagerly exploited on the first day of trial would give you pause. They behaved every bit as corrupt and mendatious as Nalty and Byfield have been saying. How unfortunate the jury didn’t see it.

Denver magistrate separates mother from breastfeeding infant. Jail refuses pump, as they do common decency.


DENVER, COLORADO- A heartbreaking scene unfolded yesterday when Denver Magistrate Kate Boland decided to impose a $10,000 bond on a domestic violence detainee, against the recommendations of the husband (victim), the public defender, and even the city prosecutor, who all wanted the 35-yr-old mother of five released on personal recognizance. Most critical, no consideration was paid to the family’s month-old infant who is breastfeeding. Neither by Boland, nor the downtown detention center, known for its systemic disrespect for the rights and needs of its inmates.

You might not care how poorly criminals or their children are treated, but the inmates of jails are suspects, not convicts. They are unconvicted detainees held on some officer’s probable cause. They’re suspected of a crime, but have a right to a fair trial (under the 6th Amendment) and a right not to be punished before conviction (under the 14th). Depending on who calls 911, they could be YOU.

For those reasons (and the Golden Rule and the social contract), jails have to show a semblance of concern for the still innocent lives disrupted in their care. Denver’s Van Cise-Simonet Detention Center has a famously outlandish record in that regard. Marvin Booker and Michael Marshall are two well known extremes to which Denver sheriffs deputies have disrespected inmates’ lives. A rare survivor, Jamal Hunter, was awarded $3.25 million for beatings he received there. Unfortunately his settlement was contingent on burying the evidence of broader misconduct, thanks Jamal.

Those cases have generated reviews and reforms, but abuses persist. Isn’t it amazing that after repeated court-ordered overhauls, the public could still be told “the detention cenver has no protocols for breastfeeding mothers.”

Magistrate Boland made no allowance for the accused mother to maintain her feedings. After the morning hearing, friends learned the jail didn’t care to accomodate the mother either. That afternoon Baby Thomas became ill and began vomiting, so the father brought the baby to the visitor’s lobby hoping emergency visits could be arranged. The jail said no, though after some persuading, a sergeant agreed to convey a breastpump to the mother if one was supplied. A device was purchased and submitted, but the jail recinded their offer. This time a charge nurse named “Monica” explained she was under no obligation to comply, that she’d called her boss at Denver General who confirmed it. Without a court order, she said, the jail had no further responsibility.

By now activists with Denver Court Support were agitating online about the plight of Baby Thomas. The jail was innundated with telephone calls. The sheriffs cleared the public lobby, cancelled visitations, and put the facility in lockdown in anticipation of a rally.

Nevermind feeding Baby Thomas, release his mother immediately. Activists had raised the monies needed to hire a bondsman to post the bond. The jail was urged to expedite the mother’s release once bond was posted.

Shouldn’t inmates be release when they’ve paid to have their freedom? This is where the Van Cise-Simonet’s disrespect is arbitrary, punitive, and universal. Time to process inmates, either intake or release, takes forever, or just feels like it. Denver’s Van Cise-Simonet Detention Center likes to take a MINIMUM of 11 HOURS for these proceedures.

The pretext for the first delay is “for fingerprints to clear”. Enough time for INTERPOL in Timbuktu to review your prints and give the all clear, because they can’t be expected to be standing at the fax machine at all hours of the day, the jailers explain.

That step is required before a bond can be posted. Once a bond is paid, an inmate’s release requires a second computer delay. Also commonly at least eleven hours. The jailers attribute that wait to “that’s how long the system takes.”

On occasion we’ve seen public pressure result in a shortening of the release time. The upshot is the the release time appears to be at the jail’s whim. In the case of our breastfeeding mother the jail wouldn’t budge.

Worse for Baby Thomas’ mother, someone new to the bonding desk re-initiated the print clearing process instead of terminating it. She had to wait another interminable cycle.

The mother was taken into custody on Monday, her prints cleared by Tuesday morning. After the hearing in Room 2300, where the $10,000 bond was set, the bondsman tried to pay but learned he had to wait. The aforementioned administrative error meant it wouldn’t be before WEDNESDAY morning when her bond could be posted. Everyone is awaiting her release STILL.

As it stands, the mother is supposed to be fitted with an ankle bracelet by 8pm today. That will make it more than 48 hours that she’ll have been in custody. Mothers under stress withheld from feeding infants can stop lactating in less than that time.

The specifics of this domestic violence case are few. A neighbor called the police because the mother was seen holding a knife. The police chose to charge the mother and take her into custody. Who knows what the whole story is. The Denver Court Support activists didn’t get involved to solve the couple’s problems. Because that’s beside the point.

A child shouldn’t have to be harmed while authorities sort this out. An infant deprived of breastmilk suffers a calculable detriment which this magistrate and this jail could minimize, if they cared.

It’s hard to imagine anyone cares at Van Cise-Simonet. The jail is notorious for inedible food and poor health standards. The 23-hour lockdown is standard in all pods. Right now we hear that inmates are sleeping three to four in a cell which has only bunks for two. The one or two extra sleep on the concrete floor. This of course in addition to the litigated sadism of the Denver jailers.

Last night, outside the door of the jail, the Denver sheriffs deputies eventually re-admitted visitors into the lobby at 8pm, but kept the activists outside. Then deputies lined up and started warning the father’s friends to “calm down”. That warning and the posture of the deputies was recognizable to activists –and to many African Americans– as the precursor to the use of tasers. The only option was to leave.

UPDATE: The mother wasn’t able to rejoin her children until 10PM Wednesday. The baby is okay, although no doubt impacted by the interrupted feedings. At a public meeting the next evening to address law enforcement accountability to the community, activists told officials about what happened. They were told by the Denver Sheriff Patrick Firman that the jail DOES HAVE A POLICY to handle breastfeeding and that he was very sorry his employees didn’t know to tell the complainant.

Denver judge dismisses case against masked marcher who knew his rights


DENVER, COLORADO – US veteran cryptologist Jordan McDuffie was detained after last year’s Million Mask March and charged with two counts, Obstruction and Pedestrian-in-the-roadway, for stepping unto Lincoln Avenue west of the capitol steps when DPD says the Anon- masked protester they believe to have been Jordan ought not have. Before his May 24 jury trial could begin and after offering increasingly favorable plea deals, the city motioned to dismiss the charges.

Jordan, age 26, is a recently discharged vet. He was arrested at the march held every year in Denver on Guy Fawkes Day, Nov5. On November 5, 2016, after meandering about Denver’s pedestrian mall, keeping to the sidewalk as small demonstrations are wont to do, about ten masked protesters stood on northbound Lincoln for less than a minute until cops arrived and the protesters left the street. One masked standee, not Jordan, was chased by officers up and down Capitol Hill but no contact or arrest was made. That marked the end of the otherwise uneventful, nonviolent 2016 march.

An hour later, after a calm rally of speeches and singing, when everyone had left, Jordan and two vet friends were walking to their car and were jumped by Metro SWAT. Jordan and friends were pushed to the ground by approx twelve officers. One friend had his phone knocked out of his hands as he tried to video Jordan’s arrest. Jordan cried out that the officers were injuring his war wound for which he was discharged but the brutalization continued.

Two blocks away another participant, African American Kris Randolph, 32, was similarly arrested, in front of his mom. Both he and Jordan were jailed overnight. Without being told he didn’t have to, Kris gave a videotaped interview while in detention. The two were released the next day on $100 PR bonds.

Kris and Jordan were given Colorado state case numbers (16M10457 & 16M10458) which were transferred sixty days later to municipal cases (17GS000146 & 17GS000195), no reason given, except their 90-day speedy trial clocks started only thereafter. Both were assigned to Division 3H with Judge Kerri Lombardi.

Kris, a roofer, father of four, with a minor criminal record, qualified for a public defender. Kris kept a number of court dates but eventually FTA’d at an April disposition hearing. Hopefully Kris can get back on track in view of how Jordan was able to resolve his case.

Jordan represented himself Pro Se through several hearings. Right from the start Jordan submitted multiple motions, one asserting his First Amendment right to assemble in the street etc, another demanding expanded discovery to include the DPD “After Action Report” (AAR) for Nov 5, 2016. An AAR erroneously disclosed in a previous case revealed that 27 undercover officers had been deployed at the 73-attendee 2015 Million Mask March. Judge Lombardi did not agree with Jordan’s assertion that he didn’t need a permit to be in the street, but granted his discovery request. She commanded the city lawyers to inquire about an AAR.

At a March hearing, prosecutors produced an AAR, but it was incomplete, missing the “Staffing detail” pages. The added pages were referenced because there were insufficient lines on the AAR form, but not provided. Jordan complained to the judge that he was seeking a list of all the officers who were on the scene of his alleged offense, including “Shadow Teams” if any, to know whose reports he was entitled to see. Jordan explained that he was not fishing for confidential information, he would be satisfied with the judge performing an In Camera review, so long as he could be assured that the city was discovering all the witness testimony evidence, ie. “Brady Material” relevant to his case. The prosecuting attorney assured the judge that there was no more information to provide.

At the May 8 trial date, the prosecutors declared ready, but pulling him aside in the hall they pushed hard for Jordan to take a plea. They offered Jordan one year probation with deferred sentence, then six months probation, then six months without even having to make a plea. Jordan refused.

After Jordan refused their offers, the city announced it was not ready. They motioned for a continuance because the HALO-cam operator they needed to call as their key witness was suddenly not available that day. Indeed all the probable cause statements cite HALO footage as being the evidence against Jordan and so the city explained they needed the camera operator to testify. A continuance was granted.

One day before his May 24 trial date, Jordan received a notice from the prosecution, seeking to endorse a new witness. Detective Michael Timmerman, badge # P00086, was supposed to be an eyewitness to Jordan’s alleged offense. Not knowing how to properly object, Jordan drafted three motions: 1) to exclude the witness based on the untimely endorsement; 2) to dismiss the charges based on the implication that the state might be withholding evidence of other witnesses whose testimonies could exhonorate him; and 3) to show cause why the city and DPD weren’t in contempt of the court’s order to produce exactly this kind of evidence when asked.

Of course the Timmerman development was a win/win. His being allowed to testify would create grounds to appeal, and his taking the stand would mean being able to ask him under oath about the other Shadow Teams present and what were they assigned to do. Were they, for example, walking into the street, trying to get authentic participants into trouble? Who knows what they were doing and how they planned to differentiate masked offenders from innocents.

Judge Lombardi avoided ruling on Jordan’s three motions by instead deciding not to allow the city to endorse witness Timmerman. Lombardi argued that her continuance had only been granted to allow the HALO operator a second trial date at which to appear.

The city argued that since the last trial date and after closer inspection, the HALO footage was deemed too grainy and inconclusive. The prosecutor even walked up and played it on his laptop for the judge. The city argued they no longer believed that their operator’s testimony would lead to a conviction. The city explained that after much back and forth communication with DPD in the interim, at the eleventh hour, the police agreed to reveal the identity of one of their shadow officers to testify against Jordan, such was the importance to the DPD of pursuing Jordan’s conviction. Without Detective Timmerman as a witness the city said it would not be able to proceed to trial.

Judge Lombardi declined the city’s endorsement, the city motioned to dismiss, and defendant McDuffie was thanked by the judge for his always polite and respectful decorum.

NOW when Kris proceeds with his case, there will be another chance to bring the elusive Detective Timmerman to the stand. What can a DPD shadow officer reveal to everyone under oath?

 

Oath-sticklers take the US Constitution literally


DENVER, COLORADO- These guys have been complaining about corrupt local officials and trying every which way to bring them to justice, even the people’s own. Now the state is throwing the book at the accusers. The eight are in jail, unable to post bond, and getting no attention from the press except derision. They’re being labeled “Paper Terrorists” but no one’s explaining what they were doing, certainly not trying to enrich themselves. What kind of “criminal enterprise” is not for profit?

Here’s the front page of their indictment:

As homeless defendants face camping charges, Denver courts lie to jurors.


DENVER, COLORADO- Trial began yesterday for three homeless activists charged with violating Denver’s Unauthorized Camping Law. An ordinance enacted in 2012 partly as a coordinated response to Occupy Wall Street encampments across the country, partly to smooth the city’s gentrification plans. Though six years old, the ordinance has escaped judicial scrutiny by DPD’s careful avoidance of citing only homeless victims in no position to fight the charges in court. Deliberate civil disobedience attempts have been thwarted by the city bringing other charges in lieu of the “Urban Camping Ban” for which police threatened arrests. Thus Denver Homeless Out Loud’s coup of at last dragging this sham into the Lindsey Flanigan Courthouse has generated plenty of interest. I counted four print reporters and three municipal court judges in the audience! From a jury pool of forty, city prosecutors were able to reject the many who stated outright they could not condemn the homeless defendants for the mere act of trying to survive. At one point the jury selection process was stymied for an hour trying to fill one remaining alternate seat because each successive candidate would not “check their social values at the door.” One potential juror, a hairdresser, became alarmed that all the sympathetic candidates would be purged and so she refused to say how she felt about the homeless. She was removed and they were. As usual jurors were told it was not their place to decide against enforcing bad law. Only those who agreed were allowed to stay. And of course that’s a lie. The only way bad laws are struck down, besides an act of congress, a please reflect how that near impossibility has spawned its own idiom, is when good jurors search their conscience and stand up for defendants.

For those who might have wanted to get out of jury duty, it was an easy day. Show some humanity, provoke authentic laughter of agreement by declaring “Ain’t no way I’m convicting people for camping.” The jury pool heard that Denver’s definition of camping is “to dwell in place with ANY FORM OF SHELTER” which could be a tent, sleeping bag, blanket, even newspaper.

Several jury candidates stated they had relatives who were homeless. Another suggested it would be an injustice to press charges such as these.

“So this isn’t a case for you” the city lawyer asked.

“This isn’t a case for anyone” the prospective juror exclaimed, to a wave of enthusiam from the jury pool and audience.

Another prospect said she didn’t think this case should be prosecuted. The city attorney then asked, “so you couldn’t be fair?”

“I am being fair” she answered. All of these juror prospects were eliminated.

What remained of the jury pool were citizens who swear to uphold whatever law, however vile. One juror that remained even said she gives the benefit of the doubt to police officers. Not removed.

But there is hope because they couldn’t remove everyone. Of the six that remain, one juror agreed to follow the law, even if it was a law which he knew was wrong. That juror works in the legal cannabis industry. He admits he breaks federal law every day. That law is worng he says, but if he has to, he’ll abide by this one.

He admitted, “I can find them guilty. But I’ll have to live with that guilt for the rest of my life.” Ha. Technically the city had to live with that answer.

Another juror recognized that this case was about more than the three homeless defendants. “This case affects not just these three, but the countless homeless outside” gesturing to the whole of downtown Denver.

4/5 UPDATE:
In closing arguments the city lawyers reminded the jury that they swore to uphold the law. No they didn’t, but we’ll see what verdict emerges. After only a couple minutes from beginning deliberations, a juror emerged with this question: if the defendants are found guilty, can the juror pay their fine?

EPILOG:
Well the City of Denver breathes a sign of relief tonight. By which I mean, Denver’s injustice system, Denver’s cops, Denver’s gentrifiers and ordinary residents who are uncomfortable with sharing their streets with the city’s homeless. Today’s offenders were CONVICTED of violating the ordinance that criminalizes the poor for merely trying to shelter from the elements. Today the police and prosecutors and judge and jury acted as one to deliver a message to Denver homeless: no matter the hour, no matter how cold, pick up your things and move along.

This time it wasn’t a jury of yuppy realtors and business consultants that wiped their feet on homeless defendants. It was a cross section of a jury pool that yesterday looked promising.

Today when the jury entered with their verdict the courtroom audience was able to see which juror had been appointed the jury foreman. The revelation wasn’t comforting. Though not the typically dominating white male, this foreman was a female Air Force officer who had declared during voir dire that she had no greater loyalty than law and order. As the jury pool overflowed that first day with professions of sympathy for the homeless, it was the Air Force office, Juror Number Two, who grabbed the microphone to assert that rule of law must always prevail.

Yes, in the interest of optimism I had glossed over those lesser interesting juror statements, in hope that they were only playing to what prosecutors wanted to hear. Left on the jury was a domineering older woman who had said she gives police officers the benefit of the doubt.

An older man, an organist, whose father had been the CEO of a major Fortune 500 company, actually thought that homeless people should be arrested.

I’ll admit now that everyone’s hopes had been pinned on the pot guy who swore he’d have to live with his guilt forever. And so now it’s come to pass.

When those very small people of the jury go home tonight, and eventually read what they’ve done, upheld Denver’s odious, UN-condemned anti-homeless law, they’re going to figure out that they were made to administer the system’s final blow. And Denver couldn’t have done it without them.

The prosecutor had told the jury in her closing statement, that despite the tragic circumstances, everyone was doing their job, the police, the city attorneys, and the judge, and now the jury was expected to do its job. Except that was another lie. It wasn’t the jury’s “job”. They didn’t enlist and they weren’t paid to be executors of the city’s inhuman injustice machine. Whether by ignorance, poor education, or the courtroom team’s duplicity, this jury chose to do it.

But the ignorance runs deep. Judge Lombardi, in her closing remarks to the defendants, reiterated that all the elements had been proved and that justice was served. She praised the jury’s verdict and explained that the only way they could have found otherwise was through “jury nullification”. She said those words after the jury had been dismissed, but she said them on the record, two words that lawyers and defendants are forbidden to utter. In full Judge Lombardi added “and juries are not allowed to do jury nullification.” As if we all can be misled by that lie.

If it’s illegal for homeless to sit on the ground, take away their benches! The Tattered Cover sweeps its sidewalk.


DENVER, COLORADO- Homeless sweeps continue in Denver, this round the downtown development authority is sweeping away their furniture. In particular the Wazee-to-Wynkoop block of the 16th Street Mall, in front of the Tattered Cover Bookstore. Not only was the quiet block popular with Denver homeless, it is the site of Occupy Denver’s friday night feed, the weekly shared community meal hosted at the doorstep of the Tattered Cover in protest of their support of the city’s anti-homeless measures. With the benches gone, there remain no surfaces from which to serve food, nor of course, seating areas to accommodate the homeless community.

DIA issues protest permit under court order, but limits crowd size to, wait for it, FOUR! Then court stays injunction.


DENVER, COLORADO- Abiding by the injunction in McDonnell v Denver, DIA administrators granted us a free speech permit within 24-hours on Thursday, but they insisted that the terminal location desired could only accommodate FOUR PEOPLE. You heard right. Four. There’s irony here too because there were FIVE people named on the permit application! Thus the permit was actually 20% denied, and in reality 92% denied given that we sought a permit for 50 people, a number easily lower than the DIA International Arrivals area can handle.
 
MEANWHILE, in the 10th Circuit Court, the city of Denver appealed the DIA injunction and asked for a stay. This is not usually granted in First Amendment cases, but on Thursday it was. The 10th Circuit stayed the injunction and wants to hear arguments on March 17. So at DIA for now we’re back to the impermissive permit process that precludes accomodating public expression at the Denver airport. And the signing of President Trump’s new improved Muslim Ban looms…

THAT’S the more significant development in the case for free speech at DIA. But let’s get back to our story, to how poorly DIA administrators complied during the small window when our court injunction was in force and DIA was enjoined to be accomodating to the public’s right to expression.

Getting the permit process started was not easy. There are instructions on the DIA website but no application. A call to DIA was routed to a person who insisted we read instructions online. We said we did. She replied that if we had, we’d know what to do. We reiterated that there was no application there, and that we needed an application. She took our names and vowed to have someone call us back. This was at 11:30am.

After an hour we called back, explaining that time was of the essence, as was for them as well in responding to our request. We were given the same instruction, to consult the rules online. We explained that we’d READ the rules, STUDIED THEM in fact, and had them reviewed by a FEDERAL COURT. We exlained there was now a federal injunction to which DIA was bound and we required our permit request to be considered promptly, the first step of which, we presumed to be, the submission of an application! Our call was forwarded to a person who eventually emailed an application blank at approximately 4pm.

We filed the application immediately and here’s the correspondence that resulted:

Mr. Dalton
Please find attached a request for permit to protest at DIA at outside of international arrivals. We are requesting this in an expedited fashion  pursuant to judge Martinez’s decision of a preliminary injunction re: Civil Action No 17-cv-0332-W JM-MJW. A new executive order is anticipated to be announced regarding the “Muslim ban” in the next day or two and we are requesting that the permit be processed within 24 hours to allow for a timely protest. We do not intend to obstruct airport operations. I will send you a copy of the judge’s order in a separate email.

Please note that I contacted the airport to request this permit by telephone at 11:35 am today.
Thank you
Nazli McDonnell

The attached application detailed our request to accomodate up to 50 protesters in the area where people await international arrivals. We received this response at 10:40am the next day:

Nazli McDonnell,

Your request for a permit to protest has been received, and it will be processed as quickly as possible.  Some additional information will help us best respond to your request and will help ensure the safe and efficient flow of passengers while allowing your organization to communicate your message.

.    What times do you expect individuals associated with your organization to be at the airport protesting?  

.    Due to the very limited space for meeters and greeters between the international arrivals exit and the entrance to the north screening checkpoint, we will not be able to approve more than four (4) people with your organization at that location.  All additional protestors, up to 50, would need to assemble on the Plaza between the Terminal and the Westin Hotel.  How does this affect the intent of your protest?

Please respond at your earliest convenience, and feel free to call at the office number list below if you have any questions.

Sincerely,
DAVE DALTON, C.M.
ASSISTANT DIRECTOR – TERMINAL OPERATIONS
Denver International Airport
Airport Operations

To which we replied:

Mr Dalton
We expect to be present at the airport during times that international flights would be arriving and expect to be there a few hours at a time. We do not intend a day long presence at the airport.

If only 4 of us can be accommodated at international arrivals (which seems VERY unreasonable since there are no limit as to how many friends or family members can greet a single passenger) why would the rest of us have to be located outside of the terminal building as opposed to the great hall area which can accommodate many more people and we can reach more people with our message? The intended audience for our message are the travelling public not the hotel guests. This restriction you intend to impose does not seem consistent with Judge Martinez’s recent federal injunction. I am copying our legal counsel to this email. We do not plan to cause congestion, obstruction or disruption at international arrivals or great hall and we can make sure safe passage space is available for travelers and employees at all times.

I hope that a reasonable permit that will allow the intended protest can be processed promptly in accordance with the court ruling.

A permit was issued at end of day Feb 23:

February 23, 2017

TO: ATN — Nazli McDonnell, Citizen

FROM: Department of Aviation, City and County of Denver

RE: Permit Request – 2/22/2017

In accordance with Part 50 Rule 50.04 of the Denver Municipal Airport System’s Rules and Regulations (DEN Rules), the City and County of Denver, by and through its Department of Aviation (City), grants the multiple citizens associated with organization representative, Nazli McDonnell, to hold signs and protest the Executive Orders restricting refugees and Muslim visitors entering the U.S. (Speech Related Activities) at Denver International Airport (DEN). The City grants permission based on the following:

— Unless otherwise exempted herein, Speech Related Activities are conducted in accordance with Rule 50; and

— No more than four (4) people conduct Speech Related Activities at the approved location “A” (see attachment, Terminal map); and

— No more than fifty (50) people conduct Speech Related Activity at the approved location “B” (see attachment, Terminal map); and

— Speech Related Activities at the approved location “A” are conducted outside of the Federal Inspection Services (FIS) facility on level 5 of the DEN Terminal, as depicted on the attached Terminal map; and

— Speech Related Activities are conducted during flight banks with international passenger arrivals.

— Speech Related Activities are conducted from February 23, 2017, thru March 23, 2017.

An on-site representative from your organization must have a copy of this letter, the attached permit application, and attached Terminal map showing approved locations at all times. The City grants an exemption to Part 50, Rule 50.10, requiring all participants to wear and display the permit. Please ensure that the approved activities do not interfere with the safe and efficient movement of persons to and from the FIS facility and throughout Denver International Airport.

Very respectfully,

Dave Dalton
Assistant Director — Terminal Operations

cc. DEN Terminal Operations file

Colo. US District Court judge enjoins DIA to limit restriction of free speech (grants our preliminary injunction!)

Plaintiffs Nazli McDonnell and Eric Verlo
DENVER, COLORADO- If your civil liberties have ever been violated by a cop, over your objections, only to have the officer say “See you in court”, this victory is for YOU! On January 29 we were threatened with arrest for protesting the “Muslim Ban” at Denver International Airport. We argued that our conduct was protected speech and that they were violating our rights. They dismissed our complaints with, in essense: “That’s for a court to decide.” And today IT HAS! On Feb 15 we summoned the cops to federal court and this morning, Feb 22, US District Court Judge William Martinez granted our preliminary injunction, severely triming DIA’s protest permit process. In a nutshell: no restrictions on signs, size of assemblies or their location within the main terminal (so long as the airport’s function is not impeded). Permits are still required but with 24 hours advance notice, not seven days. Below is Judge Martinez’ 46-page court order in full:

Document 29 Filed 02/22/17 USDC Colorado

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Judge William J. Martínez

Civil Action No. 17-cv-0332-WJM-MJW

NAZLI MCDONNELL, and
ERIC VERLO,

Plaintiffs,

v.

CITY AND COUNTY OF DENVER,?
DENVER POLICE COMMANDER ANTONIO LOPEZ,
in his individual and official capacity, and?
DENVER POLICE SERGEANT VIRGINIA QUIÑONES,
in her individual and official capacity,

Defendants.

________________________________________________________

ORDER GRANTING PRELIMINARY INJUNCTION IN PART
________________________________________________________

Plaintiffs Nazli McDonnell (“McDonnell”) and Eric Verlo (“Verlo”) (together, “Plaintiffs”) sue the City and County of Denver (“Denver”), Denver Police Commander Antonio Lopez (“Lopez”) and Denver Police Sergeant Virginia Quiñones (“Quiñones”) (collectively, “Defendants”) for allegedly violating Plaintiffs’ First and Fourteenth Amendment rights when they prevented Plaintiffs from protesting without a permit in the Jeppesen Terminal at Denver International Airport (“Airport” or “Denver Airport”). (ECF No. 1.) Currently before the Court is Plaintiffs’ Motion for Preliminary Injunction, which seeks to enjoin Denver from enforcing some of its policies regarding demonstrations and protests at the Airport. (ECF No. 2.) This motion has been fully briefed (see ECF Nos. 2, 20, 21, 23) and the Court held an evidentiary hearing on February 15, 2017 (“Preliminary Injunction Hearing”).

For the reasons explained below, Plaintiffs’ Motion is granted to the following limited extent:

• Defendants must issue an expressive activity permit on twenty-four hours’ notice in circumstances where an applicant, in good faith, seeks a permit for the purpose of communicating topical ideas reasonably relevant to the purposes and mission of the Airport, the immediate importance of which could not have been foreseen seven days or more in advance of the commencement of the activity for which the permit is sought, or when circumstances beyond the control of the permit applicant prevented timely filing of the application; ?

• Defendants must make all reasonable efforts to accommodate the applicant’s preferred demonstration location, whether inside or outside of the Jeppesen Terminal, so long as the location is a place where the unticketed public is normally allowed to be; ?

• Defendants may not enforce Denver Airport Regulation 50.09’s prohibition against “picketing” (as that term is defined in Denver Airport Regulation 50.02-8) within the Jeppesen Terminal; and ?

• Defendants may not restrict the size of a permit applicant’s proposed signage beyond that which may be reasonably required to prevent the impeding of the normal flow of travelers and visitors in and out of Jeppesen Terminal; and specifically, Defendants may not enforce Denver Airport Regulation 50.08-12’s requirement that signs or placards be no larger than one foot by one foot. ??

Any relief Plaintiffs seek beyond the foregoing is denied at this phase of the case. In particular, the Court will not require the Airport to accommodate truly spontaneous demonstrations (although the Airport remains free to do so); the Court will not require the Airport to allow demonstrators to unilaterally determine the location within the Jeppesen Terminal that they wish to demonstrate; and the Court will not strike down the Airport’s usual seven-day notice-and-permit requirement as unconstitutional in all circumstances.

I. FINDINGS OF FACT

Based on the parties’ filings, and on the documentary and testimonial evidence received at the evidentiary hearing, the Court makes the following findings of fact for purposes of resolving Plaintiffs’ Motion.?

A. Regulation 50

Pursuant to Denver Municipal Code § 5-16(a), Denver’s manager of aviation may “adopt rules and regulations for the management, operation and control of [the] Denver Municipal Airport System, and for the use and occupancy, management, control, operation, care, repair and maintenance of all structures and facilities thereon, and all land on which [the] Denver Municipal Airport System is located and operated.” Under that authority, the manager of aviation has adopted “Rules and Regulations for the Management, Operation, Control, and Use of the Denver Municipal Airport System.” See https://www.flydenver.com/about/administration/rules_regulations (last accessed Feb. 16, 2017). Part 50 of those rules and regulations governs picketing, protesting, soliciting, and similar activities at the Airport. See https://www.flydenver.com/sites/default/files/rules/50_leafleting.pdf (last accessed Feb. 16, 2017). The Court will refer to Part 50 collectively as “Regulation 50.”

The following subdivisions of Regulation 50 are relevant to the parties’ current dispute:

Regulation 50.03: “No person or organization shall leaflet, conduct surveys, display signs, gather signatures, solicit funds, or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes, or in connection with a labor dispute, except pursuant to, and in compliance with, a permit for such activity issued by the CEO [of the Airport] or his or her designee. . . .” ?

Regulation 50.04-1: “Any person or organization desiring to leaflet, display signs, gather signatures, solicit funds, or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes, or in connection with a labor dispute, shall complete a permit application and submit it during regular business hours, at least seven (7) days prior to the commencement of the activity for which the permit is sought and no earlier than thirty (30) days prior to commencement of the activity. The permit application shall be submitted using the form provided by the Airport. The applicant shall provide the name and address of the person in charge of the activity, the names of the persons engaged in the activity, the nature of the activity, each location at which the activity is proposed to be conducted, the purpose of the activity, the hours during which the activity is proposed to be conducted, and the beginning and end dates of such activity. A labor organization shall also identify the employer who is the target of the proposed activity.”

Regulation 50.04-3: “Upon presentation of a complete permit application ?and all required documentation, the CEO shall issue a permit to the applicant, if there is space available in the Terminal, applying only the limitations and regulations set forth in this Rule and Regulation . . . . Permits shall be issued on a first come-first served basis. No permits shall be issued by the CEO for a period of time in excess of thirty-one (31) days.” ?

Regulation 50.04-5: “In issuing permits or allocating space, the CEO shall not exercise any discretion or judgment regarding the purpose or content of the proposed activity, except as provided in these Rules and Regulations. The issuance of a permit is a strictly ministerial function and does not constitute an endorsement by the City and County of Denver of any organization, cause, religion, political issue, or other matter.” ?

Regulation 50.04-6: “The CEO may move expressive activity from one location to another and/or disperse such activity around the airport upon reasonable notice to each affected person when in the judgment of the CEO such action is necessary for the efficient and effective operation of the transportation function of the airport.” ?

Regulation 50.08-12: “Individuals and organizations engaged in leafleting, solicitation, picketing, or other speech related activity shall not: * * * [w]ear or carry a sign or placard larger than one foot by one foot in size . . . .” (underscoring in original).

Regulation 50.09: “Picketing not related to a labor dispute is prohibited in ?all interior areas of the Terminal and concourses, in the Restricted Area, and on all vehicular roadways, and shall not be conducted by more than two (2) persons at any one location upon the Airport.” ?

Regulation 50.02-8: “Picketing shall mean one or more persons marching or stationing themselves in an area in order to communicate their position on a political, charitable, or religious issue, or a labor dispute, by displaying one or more signs, posters or similar devices” (underscoring in original).

The Airport receives about forty-five permit requests a year. No witness at the Preliminary Injunction Hearing (including Airport administrators who directly or indirectly supervise the permit process) could remember an instance in which a permit had been denied.

?Although there is no formal written, prescribed procedure for requesting expedited treatment of permit requests, the Airport not infrequently processes such requests and issues permits in less than seven days. Last November, less than seven days before Election Day, the Airport received a request from “the International Machinists” 1 to stage a demonstration ahead of the election. The Airport was able to process that request in two days and thereby permit the demonstration before Election Day.
?
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1 Presumably, the International Association of Machinists and Aerospace Workers. ?
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B. The Executive Order

On Friday, January 27, 2017, President Trump signed Executive Order 13769 (“Executive Order”). See 82 Fed. Reg. 8977. The Executive Order, among other things, established a 90-day ban on individuals from seven Muslim-majority countries from entering the United States, a 120-day suspension of all refugee admissions, and an indefinite suspension of refugee admissions from Syria. Id. §§ 3(c), 5(a), 5(c). “The impact of the Executive Order was immediate and widespread. It was reported that thousands of visas were immediately canceled, hundreds of travelers with such visas were prevented from boarding airplanes bound for the United States or denied entry on arrival, and some travelers were detained.” Washington v. Trump, ___ F.3d. ___, ___, 2017 WL 526497, at *2 (9th Cir. Feb. 9, 2017). As is well known, demonstrators and attorneys quickly began to assemble at certain American airports, both to protest the Executive Order and potentially to offer assistance to travelers being detained upon arrival.?

C. The January 28 Protest at the Denver Airport

Shortly after 1:00 p.m. on the following day—Saturday, January 28, 2017— Airport public information officer Heath Montgomery e-mailed Defendant Lopez, the police commander responsible for Denver’s police district encompassing the Airport. Lopez was off-duty at the time. Montgomery informed Lopez that he had received media inquiries about a protest being planned for the Airport later that day, and that no Regulation 50 permit had been issued for such a protest.

Not knowing any details about the nature or potential size of the protest, and fearing the possibility of “black bloc” and so-called “anarchist activities,” Lopez coordinated with other Denver Police officials to redeploy Denver Police’s gang unit from their normal assignments to the Airport. Denver Police also took uniformed officers out of each of the various other police districts and redeployed them to the Airport. Lopez called for these reinforcements immediately in light of the Airport’s significant distance from any other police station or normal patrol area. Lopez knew that if an unsafe situation developed, he could not rely on additional officers being able to get to the Airport quickly.

Through his efforts, Lopez was eventually able to assemble a force of about fifty officers over “the footprint of the entire airport,” meaning inclusive of all officers already assigned to the Airport who remained on their normal patrol duties. Lopez himself also came out to the Airport.

In the meantime, Montgomery had somehow learned of an organization known as the Colorado Muslim Connection that was organizing protesters through Facebook. Montgomery reached out to this organization through the Airport’s own Facebook account and informed them of Regulation 50’s permit requirement. (Ex. 32.) One of the Colorado Muslim Connection’s principals, Nadeen Ibrahim, then e-mailed Montgomery “to address the permit.” (Ex. 30.) Ibrahim told Montgomery:

The group of people we have will have a peaceful assembly carrying signs saying welcome here along with a choir and lots of flowers. Our goal is to stand in solidarity with our community members that have been detained at the airports since the signing of the executive order, though they do have active, legal visas/green cards. Additionally, we would like to show our physical welcoming presence for any newly arriving Middle Eastern sisters and brothers with visas. We do not intend to block any access to [the Airport].

(Id.) Montgomery apparently did not construe this e-mail as a permit request, or at least not a properly prepared one, and stated that “Denver Police will not allow a protest at the airport tonight. We are willing to work with you like any other group but there is a formal process for that.” (Id.)

Nonetheless, protesters began to assemble in the late afternoon and early evening in the Airport’s Jeppesen Terminal, specifically in the multi-storied central area known as the “Great Hall.” The Great Hall is a very large, rectangular area that runs north and south. The lower level of the Great Hall (level 5) has an enormous amount of floor space, and is ringed with offices and some retail shops, but the floor space itself is largely taken up by security screening facilities for departing passengers. The only relatively unobstructed area on level 5 is the middle third, which is currently designed primarily as a location for “meeters-and-greeters,” i.e., individuals waiting for passengers arriving from domestic flights who come up from the underground train connecting the Jeppesen Terminal with the various concourses. There is a much smaller meeters-and-greeters waiting area at the north end of level 5, where international arrivals exit from customs screening.

The upper level of the Great Hall (level 6) has much less floor space than level 5 given that it is mostly open to level 5 below. It is ringed with retail shops and restaurants. At its north end is a pedestrian bridge to and from the “A” concourse and its separate security screening area.

Given this design, every arriving and departing passenger at the Airport (i.e., all passengers except those only connecting through Denver), and nearly every other person having business at the airport (including employees, delivery persons, meeters-and-greeters, etc.), must pass through some portion of the Great Hall. In 2016, the Airport served 58.3 million passengers, making it the sixth busiest airport in the United States and the eighteenth busiest in the world. Approximately 36,000 people also work at the airport.

The protesters who arrived on the evening of January 28 largely congregated in the middle third of the Great Hall (the domestic-arrivals meeter-and-greeter area). The protesters engaged in singing, chanting, praying, and holding up signs. At least one of them had a megaphone.

The size of the protest at its height is unclear. The witnesses at the evidentiary hearing gave varying estimates ranging from as low as 150 to as high as 1,000. Most estimates, however, centered in the range of about 200. Lopez, who believed that the protest eventually comprised about 300 individuals, did not believe that his fifty officers throughout the Airport were enough to ensure safety and security for that size of protest, even if he could pull all of his officers away from their normal duties.

Most of the details of the January 28 protest are not relevant for present purposes. Suffice it to say that Lopez eventually approached those who appeared to be the protest organizers and warned them multiple times that they could be arrested if they continued to protest without a permit. Airport administration later agreed to allow the protest to continue on “the plaza,” an area just outside the Jeppesen Terminal to its south, between the Terminal itself and the Westin Hotel. Protesters then moved to that location, and the protest dispersed later in the evening. No one was arrested and no illegal activity stemming from the protest (e.g., property damage) was reported, nor was there any report of disruption to travel operations or any impeding of the normal flow of travelers and visitors in and out of Jeppesen Terminal.

D. The January 29 Protest at the Denver Airport

Plaintiffs disagree strongly with the Executive Order and likewise wished to protest it, but, due to their schedules, were unable to participate in the January 28 protest. They decided instead to go to the Airport on the following day, Sunday, January 29. They came that afternoon and stationed themselves at a physical barrier just outside the international arrival doors at the north end of the Great Hall, level 5. They each held up a sign of roughly poster board size expressing a message of opposition to the Executive Order and solidarity with those affected by it. (See Exs. 2, 4, M.)

Plaintiffs were soon approached by Defendant Quiñones, who warned them that they could be arrested for demonstrating without a permit. Plaintiffs felt threatened, as well as disheartened that they could not freely exercise their First Amendment rights then and there. Plaintiffs felt it was important to be demonstrating both at that particular time, given the broad news coverage of the effects of the Executive Order, and at that particular place (the international arrivals area), given a desire to express solidarity with those arriving directly from international destinations—whom Plaintiffs apparently assumed would be most likely to be affected by the Executive Order in some way.

Plaintiffs left the Airport later that day without being arrested, and without incident. They have never returned to continue their protest, nor have they applied for a permit to do so.

E. Permits Since Issued

The airport has since issued permits to demonstrators opposed to the Executive Order. At least one of these permits includes permission for four people to demonstrate in the international arrivals area, where Plaintiffs demonstrated on January 29.

II. REQUESTED INJUNCTION

Plaintiffs have never proposed specific injunction language. In their Motion, they asked for “an injunction prohibiting their arrest for standing in peaceful protest within Jeppesen Terminal and invalidating Regulation 50 as violative of the First and Fourteenth Amendments to the United States Constitution.” (ECF No. 2 at 4.) At the Preliminary Injunction Hearing, Plaintiffs’ counsel asked the Court to enjoin Defendants (1) “from arresting people for engaging in behavior that the plaintiffs or people similarly situated were engaging in,” (2) from enforcing Regulation 50.09 (which forbids non- labor demonstrators from holding up signs within the Jeppesen Terminal), and (3) from administering Regulation 50 without an “exigent circumstances exception.” Counsel also argued that requiring a permit application seven days ahead of time is unconstitutionally long in any circumstance, exigent or not.

III. LEGAL STANDARD

A. The Various Standards

In a sense, there are at least three preliminary injunction standards. The first, typically-quoted standard requires: (1) a likelihood of success on the merits, (2) a threat of irreparable harm, which (3) outweighs any harm to the non-moving party, and (4) that the injunction would not adversely affect the public interest. See, e.g., Awad v. Ziriax, 670 F.3d 1111, 1125 (10th Cir. 2012).

If, however, the injunction will (1) alter the status quo, (2) mandate action by the defendant, or (3) afford the movant all the relief that it could recover at the conclusion of a full trial on the merits, a second standard comes into play, one in which the movant must meet a heightened burden. See O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 389 F.3d 973, 975 (10th Cir. 2004) (en banc). Specifically, the proposed injunction “must be more closely scrutinized to assure that the exigencies of the case support the granting of a remedy that is extraordinary even in the normal course” and “a party seeking such an injunction must make a strong showing both with regard to the likelihood of success on the merits and with regard to the balance of harms.” Id.

On the other hand, the Tenth Circuit also approves of a

modified . . . preliminary injunction test when the moving party demonstrates that the [irreparable harm], [balance of harms], and [public interest] factors tip strongly in its favor. In such situations, the moving party may meet the requirement for showing [likelihood of] success on the merits by showing that questions going to the merits are so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation.

Verlo v. Martinez, 820 F.3d 1113, 1128 n.5 (10th Cir. 2016). This standard, in other words, permits a weaker showing on likelihood of success when the party’s showing on the other factors is strong. It is not clear how this standard would apply if the second standard also applies.

In any event, “a preliminary injunction is an extraordinary remedy,” and therefore “the right to relief must be clear and unequivocal.” Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1256 (10th Cir. 2003).

B. Does Any Modified Standard Apply?

The status quo for preliminary injunction purposes is “the last peaceable uncontested status existing between the parties before the dispute developed.” Schrier v. Univ. of Colo., 427 F.3d 1253, 1260 (10th Cir. 2005) (internal quotation marks omitted). By asking that portions of Regulation 50 be invalidated, Plaintiffs are seeking to change the status quo. Therefore they must make a stronger-than-usual showing on likelihood of success and the balance of harms.

IV. ANALYSIS

A. Irreparable Harm as it Relates to Standing

Under the circumstances, the Court finds it appropriate to begin by discussing the irreparable harm element of the preliminary injunction test as it relates Plaintiffs’ standing to seek an injunction.

Testimony at the Preliminary Injunction Hearing revealed that certain groups wishing to protest the Executive Order have since applied for and obtained permits. Thus, Plaintiffs could get a permit to demonstrate at the airport on seven days’ advance notice—although Regulation 50.09 would still prohibit them from demonstrating by wearing or holding up signs. In addition, as discussed in more detail below (Part IV.B.3.c), Plaintiffs could potentially get a permit to hold a protest parade on public streets in the City and County of Denver with as little as 24 hours’ notice. And as far as the Court is aware, the two Plaintiffs may be able to stand on any public street corner and hold up signs without any prior notice or permit requirement. Thus, Plaintiffs’ alleged irreparable harm must be one or both of the following: (1) the prospect of not being able to demonstrate specifically at the airport on less than seven days’ notice, or (2) the inability to picket in opposition to the government action they oppose—that is, the inability to hold up “signs, posters or similar devices” while engaging in expressive activity at the airport. The Court finds that the second of these options is a fairly traditional allegation of First Amendment injury—even if they do apply for and obtain a permit, by the express terms of Regulation 50.09 Plaintiffs will not be allowed to carry or hold up signs, posters, or the like. The first option, however, requires more extensive discussion and analysis.

The rapidly developing situation that prompted Plaintiffs to go to the Airport on January 29 has since somewhat subsided. The Executive Order remains a newsworthy topic, but a nationwide injunction now prevents its enforcement, see Washington, ___ F.3d at ___, 2017 WL 526497, at *9, and—to the Court’s knowledge—none of the most urgent effects that led to airport-based protests, such as individuals being detained upon arrival, have since repeated themselves. Nonetheless, the circumstances that prompted this lawsuit reveal a number of unassailable truths about “freedom of speech . . . [and] the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” U.S. Const. amend. I.

One indisputable truth is that the location of expressive activity can have singular First Amendment significance, or as the Tenth Circuit has pithily put it: “Location, location, location. It is cherished by property owners and political demonstrators alike.” Pahls v. Thomas, 718 F.3d 1210, 1216 (10th Cir. 2013). The ability to convey a message to a particular person is crucial, and that ability often turns entirely on location.

Thus, location has specifically been at issue in a number of First Amendment decisions. See, e.g., McCullen v. Coakley, 134 S. Ct. 2518, 2535 (2014) (abortion protesters’ ability to approach abortion clinic patrons within a certain distance); Pahls, 718 F.3d at 1216–17 (protesters’ ability to be in a location where the President could see them as his motorcade drove past); Citizens for Peace in Space v. City of Colo. Springs, 477 F.3d 1212, 1218–19 (10th Cir. 2007) (peace activists’ ability to be near a hotel and conference center where a NATO conference was taking place); Tucker v. City of Fairfield, 398 F.3d 457, 460 (6th Cir. 2005) (labor protesters’ ability to demonstrate outside a car dealership); Friends of Animals, Inc. v. City of Bridgeport, 833 F. Supp. 2d 205, 207–08 (D. Conn. 2011) (animal rights protesters’ ability to protest near a circus), aff’d sub nom. Zalaski v. City of Bridgeport Police Dep’t, 475 F. App’x 805 (2d Cir. 2012).

Another paramount truth is that the timing of expressive activity can also have irreplaceable First Amendment value and significance: “simple delay may permanently vitiate the expressive content of a demonstration.” NAACP, W. Region v. City of Richmond, 743 F.2d 1346, 1356 (9th Cir. 1984); see also American-Arab Anti-Discrimination Comm. v. City of Dearborn, 418 F.3d 600, 605 (6th Cir. 2005) (“Any notice period is a substantial inhibition on speech.”); Church of Am. Knights of Ku Klux Klan v. City of Gary, 334 F.3d 676, 682 (7th Cir. 2003) (“given that . . . political demonstrations are often engendered by topical events, a very long period of advance notice with no exception for spontaneous demonstrations unreasonably limits free speech”); Douglas v. Brownell, 88 F.3d 1511, 1524 (8th Cir. 1996) (“The five-day notice requirement restricts a substantial amount of speech that does not interfere with the city’s asserted goals of protecting pedestrian and vehicle traffic, and minimizing inconvenience to the public.”).

This case provides an excellent example of this phenomena given that —whether intentionally or not— the President’s announcement of his Supreme Court nomination on January 31 (four days after signing the Executive Order) permitted the President to shift the media’s attention to a different topic of national significance. Thus, the inability of demonstrators to legally “strike while the iron’s hot” mattered greatly in this instance. Cf. City of Gary, 334 F.3d at 682 (in the context of a 45-day application period for a parade, noting that “[a] group that had wanted to hold a rally to protest the U.S. invasion of Iraq and had applied for a permit from the City of Gary on the first day of the war would have found that the war had ended before the demonstration was authorized”).

These principles are not absolute, however, nor self-applying. The Court must analyze them in the specific context of the Airport. But for present purposes, the Court notes that the Plaintiffs’ alleged harm of being unable to protest at a specific location on short notice states a cognizable First Amendment claim. In addition, by its very nature, this is the sort of claim that is “capable of repetition, yet evading review.” S. Pac. Terminal Co. v. Interstate Commerce Comm’n, 219 U.S. 498, 515 (1911). Here, “the challenged action”—enforcement of the seven-day permit requirement during an event of rapidly developing significance —“was in its duration too short to be fully litigated prior to its cessation or expiration.” Weinstein v. Bradford, 423 U.S. 147, 149 (1975). Further, “there [is] a reasonable expectation that the same complaining party would be subjected to the same action again.” Id. More specifically, the Court credits Plaintiffs’ testimony that they intend to return to the Airport for future protests, and, given continuing comments by the Trump Administration that new immigration and travel- related executive orders are forthcoming, the Court agrees with Plaintiffs that it is reasonably likely a similar situation will recur —i.e., government action rapidly creating consequences relevant specifically to the Airport.

Thus, although the prospect of being unable to demonstrate at the Airport on short notice is not, literally speaking, an “irreparable harm” (because the need for such demonstration may never arise again), it is nonetheless a sufficient harm for purposes of standing and seeking a preliminary injunction.

The Court now turns to the heart of this case—whether Plaintiffs are likely to succeed on the merits of their claims. Following that, the Court will reprise the irreparable harm analysis in the specific context of the likelihood-of-success findings.

B. Likelihood of Success on the Merits

Evaluating likelihood of success requires evaluating the substantive merit of Plaintiffs’ claim that Regulation 50, or any portion of it, violates their First Amendment rights. To answer this question, the Supreme Court prescribes the following analysis:

1. Is the expression at issue protected by the First Amendment? ?

2. If so, is the location at issue a traditional public forum, a designated public ?forum, or a nonpublic forum? ?

3. If the location is a traditional or designated public forum, is the ?government’s speech restriction narrowly tailored to meet a compelling ?state interest? ?

4. If the location is a nonpublic forum, is the government’s speech restriction ? ?reasonable in light of the purpose served by the forum, and viewpoint neutral?

See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797–806 (1985).

The Court will address these inquiries in turn.

1. Does the First Amendment Protect Plaintiffs’ Expressive Conduct?

The Court “must first decide whether [the speech at issue] is speech protected by the First Amendment, for, if it is not, we need go no further.” Id. at 797. There appears to be no contest that the sorts of activities Plaintiffs attempted to engage in at the Airport (including holding up signs) are expressive endeavors protected by the First Amendment. Accordingly, the Court deems it conceded for preliminary injunction purposes that Plaintiffs are likely to succeed on this element of the Cornelius analysis.

2. Is the Jeppesen Terminal a Public Forum (Traditional or Designated)?

The Court must next decide whether the Jeppesen Terminal is a public forum:

. . . the extent to which the Government can control access [to government property for expressive purposes] depends on the nature of the relevant forum. Because a principal purpose of traditional public fora is the free exchange of ideas, speakers can be excluded from a public forum only when the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest. Similarly, when the Government has intentionally designated a place or means of communication as a public forum[,] speakers cannot be excluded without a compelling governmental interest. Access to a nonpublic forum, however, can be restricted as long as the restrictions are reasonable and are not an effort to suppress expression merely because public officials oppose the speaker’s view.

Id. at 800 (citations and internal quotation marks omitted; alterations incorporated).

a. Is the Jeppesen Terminal a Traditional Public Forum??

Plaintiffs claim that “[t]he Supreme Court has not definitively decided whether airport terminals . . . are public forums.” (ECF No. 2 at 7.) This is either an intentional misstatement or a difficult-to-understand misreading of the most relevant case (which Plaintiffs repeatedly cite), International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 679 (1992) (“Lee”).

The plaintiffs in Lee were disseminating religious literature and soliciting funds at the airports controlled by the Port Authority of New York and New Jersey (JFK, LaGuardia, and Newark). Id. at 674–75. By regulation, however, the Port Authority prohibited “continuous or repetitive” person-to-person solicitation and distribution of literature. Id. at 675–76. The Second Circuit held that the airports were not public fora and that the regulation was reasonable as to solicitation but not as to distribution. Id. at 677. The dispute then went to the Supreme Court, which granted certiorari specifically “to resolve whether airport terminals are public fora,” among other questions. Id.

The Court answered the public forum question in the negative. Relying on the historical use of airport terminals generally, the Court found that “the tradition of airport activity does not demonstrate that airports have historically been made available for speech activity.” Id. at 680. “Nor can we say,” the Court continued, “that these particular terminals, or airport terminals generally, have been intentionally opened by their operators to such activity; the frequent and continuing litigation evidencing the operators’ objections belies any such claim.” Id. at 680–81. Then, invoking the reasonableness test that applies to government regulation of nonpublic fora, the Court affirmed the Second Circuit’s holding that the solicitation ban was reasonable. Id. at 683–85.

Five justices (Rehnquist, White, O’Connor, Scalia, and Thomas) joined all of the major rulings regarding the solicitation ban, including the nonpublic forum status of airport terminals and the reasonableness of the ban. The outcome regarding the distribution ban, however, commanded no majority opinion. Justice O’Connor, applying the reasonableness standard for nonpublic fora, agreed with the Second Circuit that the distribution ban was not reasonable. Id. at 690–93 (opn. of O’Connor, J.). Justice Kennedy, joined in relevant part by Justices Blackmun, Stevens, and Souter, agreed that the Second Circuit’s judgment regarding the distribution ban should be affirmed, but on different grounds, namely, under a strict scrutiny test (because these justices believed that the airport terminals should be deemed a public forum). Id. at 708–10 (opn. of Kennedy, J.). The result was that the Second Circuit’s invalidation of the distribution ban was affirmed without any opinion commanding a majority view.

Regardless of the outcome with respect to the distribution ban, it is beyond debate that five Supreme Court justices in Lee agreed that airport terminals are not public fora. Id. at 680–81. The Tenth Circuit has acknowledged this holding. Mocek v. City of Albuquerque, 813 F.3d 912, 930 (10th Cir. 2015) (“As an initial matter, an airport is a nonpublic forum, where restrictions on expressive activity need only ‘satisfy a requirement of reasonableness.’” (quoting Lee, 505 U.S. at 683)). Notably, Plaintiffs have cited no case in which any court anywhere has deemed an airport to be a public forum.

b. Is the Jeppesen Terminal a Designated Public Forum??

Even though the Jeppesen Terminal is not a traditional public forum, Denver could still designate it as a public forum if Denver “intentionally [opens the Jeppesen Terminal] for public discourse.” Cornelius, 473 U.S. at 802. Denver denies that it has done so, and Plaintiffs’ arguments to the contrary lack merit.

i. Terminal Visitors’ Incidental Expressive Activities

Plaintiffs argue that visitors to the Jeppesen Terminal “engage in First Amendment activity; they wear buttons, shirts, and hats that convey distinct messages to other visitors. They engage in one-on-one conversations.” (ECF No. 21 at 3.) Thus, Plaintiffs say, Denver has designated a public forum within the Jeppesen Terminal.

The Tenth Circuit has already foreclosed this argument. Addressing the public forum status of the Denver Performing Arts Complex, the Court stated the following: “Even if Denver allowed patrons to wear political buttons or shirts with slogans, this would not be sufficient to establish a designated public forum. The First Amendment does not require the government to impose a ‘zone of silence’ on its property to maintain its character as a nonpublic forum.” Hawkins v. City & Cnty. of Denver, 170 F.3d 1281, 1288 (10th Cir. 1999).

Indeed, even if it wanted to, Denver almost certainly could not impose such a “zone of silence,” as illustrated by Board of Airport Commissioners of City of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569 (1987). There, the Los Angeles airport authority adopted a resolution announcing that “the Central Terminal Area at Los Angeles International Airport [LAX] is not open for First Amendment activities.” Id. at 570–71 (internal quotation marks omitted). The Supreme Court found that this provision did not “merely reach the activity of [the religious proselytizers who challenged it],” but also prohibited

even talking and reading, or the wearing of campaign buttons or symbolic clothing. Under such a sweeping ban, virtually every individual who enters LAX may be found to violate the resolution by engaging in some “First Amendment activit[y].” We think it obvious that such a ban cannot be justified even if LAX were a nonpublic forum because no conceivable governmental interest would justify such an absolute prohibition of speech.

Id. at 574–75. Thus, the evidence at the Preliminary Injunction Hearing established beyond any possible dispute that Denver has shown no intent to designate the Airport as a public forum by allowing speech at that location which it may not disallow in the first instance.

ii. The Effect of Regulation 50 Itself?

Plaintiffs further argue, “Regulation 50 states that free speech activity is proper in the Jeppesen Terminal (pursuant to a restriction). Denver has [thus] designated the Jeppesen Terminal a public forum for leafleting, conducting surveys, displaying signs, gathering signatures, soliciting funds, and other speech related activity for religious, charitable, or political purposes.” (ECF No. 21 at 3–4.) Although clever, this argument cannot be correct. 2

First, the Airport knows from the Supreme Court’s Jews for Jesus decision, just discussed, that it cannot prohibit all behavior that can be characterized as First Amendment-protected expressive activity.

Second, the Airport also knows from the Lee decision that it likely cannot completely ban some forms of intentional First Amendment communication (such as leafleting) given that the Jeppesen T erminal, like the Port Authority terminals at issue in Lee, is a large multipurpose facility that can reasonably accommodate some amount of intentional First Amendment activity. So, again, the Airport’s choice to regulate what it could not prohibit in the first place is not evidence of intent to designate a public forum. See Stanton v. Fort Wayne-Allen Cnty. Airport Auth., 834 F. Supp. 2d 865, 872 (N.D. Ind. 2011) (“[t]he designation of certain free speech zones, along with the permit requirement and limitation of expression to certain times, manners, and places as set forth in the permit, are marks of the Airport Authority’s attempt to restrict public discourse, and are inconsistent with an intent to designate a public forum” (emphasis in original)).

Third, Plaintiffs’ position, if accepted, would likely turn out to chill expressive speech in the long run. If a government will be deemed to have designated a public forum every time it accommodates citizens’ natural desire to engage in expressive activity in a nonpublic forum, governments will likely cut back on such accommodations as far as they are constitutionally allowed. Cf. Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983) (government may un-designate a designated public forum).

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2 Plaintiffs have unsurprisingly cited no decision from any court adopting their reasoning.
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iii. “Welcome Home” Messages?

Plaintiffs finally argue that “[s]ome individuals (who, importantly, are not airlines passengers) hold signs welcoming home loved ones or those returning from overseas deployment.” (ECF No. 21 at 3.) The Court will address signs welcoming home veterans and active-duty military members in Part IV.B.3.f, below, and for the reasons stated there finds that this practice, to the extent it exists, does not show intent to designate a public forum. As for welcoming home loved ones, the Court sees no greater religious, charitable, political, or labor-related significance in a typical welcome home sign than standing in the meeter-and-greeter area with a pleasant smile.

In any event, to the extent a welcome home sign has greater significance, “[t]he government does not create a public forum by inaction.” Cornelius, 473 U.S. at 802. Thus, simple failure to enforce Regulation 50 against such signholders is not itself sufficient to infer that the Airport intended to designate a public forum. And finally, even if the Court were to find such an intent, the Court would still be required to consider whether the Airport only intended to designate a public forum specifically for, e.g., those wishing to convey welcome home messages: “A public forum may be created for a limited purpose such as use by certain groups, or for the discussion of certain subjects.” Perry, 460 U.S. at 45 n.7 (1983) (citations omitted). Plaintiffs have nowhere addressed this.

For all these reasons, Plaintiffs have failed to demonstrate that the Jeppesen Terminal is a designated public forum. 3

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3 Plaintiffs also attack Regulation 50 as a “prior restraint.” (ECF No. 2 at 6–7.) “The term prior restraint is used ‘to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.’” Alexander v. United States, 509 U.S. 544, 550 (1993) (quoting M. Nimmer, Nimmer on Freedom of Speech § 4.03, p. 4-14 (1984)) (emphasis in original). Whether or not that definition could fit Regulation 50, it adds nothing to this case because the Supreme Court’s forum analysis provides the governing principles.
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3. Given that the Jeppesen Terminal Is Not a Public Forum, Is Regulation 50 Reasonable in Light of the Purposes Served by the Airport, and Is It Viewpoint-Neutral?

a. Reasonableness of the Need for a Permit Submitted in Advance, Generally

Reasonableness is a fact-intensive inquiry into the “particular nature of the public expression” at issue and “the extent to which it interferes with the designated purposes” of the nonpublic forum. Hawkins, 170 F.3d at 1290. Justice O’Connor’s concurring opinion in Lee is significant here, both because of its reasoning and because it has reached the somewhat paradoxical status of a “controlling concurrence.” See id. at 1289 (“In actuality, [Justice O’Connor’s reasonableness analysis in Lee] constitutes only Justice O’Connor’s view, who provided the swing vote in the highly-fractured Lee decision, but as the narrowest majority holding, we are bound by it.”).

In Lee, Justice O’Connor noted the Port Authority’s airports were not single-purpose facilities (unlike many other locations where the Supreme Court had previously examined speech restrictions). 505 U.S. at 688. Rather, the airports were “huge complex[es] open to travelers and nontravelers alike,” id. at 688, and had essentially become “shopping mall[s] as well as . . . airport[s],” id. at 689. The question, then, was whether Port Authority’s restrictions were “reasonably related to maintaining the multipurpose environment that the Port Authority has deliberately created.” Id.

Justice O’Connor’s description of the Port Authority Airports aptly describes the Jeppesen Terminal, to an extent. The Great Hall is lined with restaurants and retail establishments, and in that sense is reminiscent of a shopping mall. On the other hand, most of the floor space on level 6 is simply the floor space needed to get from location to location (the equivalent of wide hallways), and most of the floor space on level 5 is dedicated to security screening. The only large area that is usually free of significant obstructions is the central meeter-and-greeter area—and even that area has at times been taken up by art installations or other features. 4

Moreover, despite certain characteristics of the Airport that may resemble a shopping mall, the Airport’s undisputed primary purpose is to facilitate safe and efficient air travel. The need for safety hopefully needs no discussion —for decades, airports and airplanes have been the specific target of terrorists. As for efficiency, the significance of the Great Hall within the Jeppesen Terminal is particularly evident given that it is the node through which every arriving and departing passenger must pass. As noted, the Airport served 58.3 million passengers last year. Even assuming that just 20 million (about a third) were arrivals and departures (the remainder being those who connect through without reaching the Jeppesen Terminal), this still comes to more than 55,000 passengers moving through the Great Hall per day, or about 2,300 per hour. If the Airport could somehow maintain precisely that average over all days and hours of its operation —which of course never happens— it would still be the equivalent of perpetually filling and emptying a large concert hall every hour.

In this light, the Airport’s general purposes for requiring demonstrators to apply for a permit in advance are difficult to question. As stated by the various Airport administrators who testified at the Preliminary Injunction Hearing (Ken Greene, chief operations officer; Patrick Heck, chief commercial officer; and Dave Dalton, assistant director for terminal operations), it is important for the Airport to have advance notice regarding the presence of individuals coming for reasons other than normal airport- related activities, and particularly those who come to the airport intending to attract the attention of passengers and others. The Airport needs an opportunity to determine the appropriate location for a group of the requested size in light of the day(s) and time(s) requested. The permitting requirement also gives the Airport the opportunity to point out Regulation 50’s code of conduct (Regulation 50.08), so that demonstrators know what activities are and are not permissible.

In addition, the Airport fairly desires an opportunity to understand the nature of the expressive activity, which can inform whether additional security is needed. As Lopez’s testimony illustrates, it is not a simple matter to bring additional police officers to the Airport on a moment’s notice. Lopez further pointed out the advantage of understanding the subject matter of the dispute so that he can anticipate whether counter-protesters might arrive and potentially create at least a difficult, if not dangerous, situation.

Importantly, Denver does not need to prove that any particular past event has raised serious congestion or safety concerns: “Although Denver admits that plaintiffs did not cause any congestion problems or major disruption on the particular occasion that they demonstrated . . . , that is not dispositive. ‘[T]he Government need not wait until havoc is wreaked to restrict access to a nonpublic forum.’” Hawkins, 170 F.3d at 1290 (quoting Cornelius, 473 U.S. at 810). Thus, the Airport may reasonably require a permit applied for in advance. The Court does not understand Plaintiffs to be arguing to the contrary, i.e., that the Airport is never justified in requiring an advance permit under any circumstances.

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4 Plaintiffs’ Exhibit 15, for example, is a photograph of the meeter-and-greeter area in 2008, and shows that a fountain occupied a significant portion of floor space at the time.
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?b. Reasonableness of the Seven-Day Requirement, Specifically

Plaintiffs do attack Regulation 50.03’s requirement that permit applications be submitted seven days in advance of the desired activity, apparently arguing that this is unconstitutionally unreasonable in all circumstances. Given both Plaintiffs’ testimony at the Preliminary Injunction Hearing, it is not clear that they would be satisfied by a shorter advance-notice period, nor that it would redress their claimed injury —the inability to protest essentially at a moment’s notice on a topical event. But, to the extent Plaintiffs are challenging the seven-day requirement through the overbreadth doctrine (see Part IV.B.4, below), the Court finds that they have not met their higher burden (or even the normal preliminary injunction burden) to show that they are likely to succeed on proving the seven-day requirement unreasonable in all circumstances.

The Airport’s witnesses were not aware of any other airport with a seven-day requirement. The Indiana airport at issue in the Stanton case —which Defendants have relied upon heavily— had a two-day notice requirement, and also a provision by which the airport could accept an application on even shorter notice. 834 F. Supp. 2d at 870. On the other hand, that Airport handled about 40,000 departing and arriving passengers per month, id. at 868, whereas the Denver Airport handles far more than that per day.

The Court’s own research has revealed that airports ahead of the Denver Airport in 2016 passenger statistics have varied requirements:

• O’Hare International Airport (Chicago) — six business days, see Chicago Department of Aviation Amended Rules and Regulations Governing First Amendment Activities at the City of Chicago Airports § 3(A) (Sept. 18, 2015), available at http://www.flychicago.com/SiteCollectionDocuments/ OHare/AboutUs/cdaamendedRulesandRegs.pdf (last accessed Feb. 16, 2017);

• Dallas-Fort Worth International Airport — three business days, see Code of Rules and Regulations of the Dallas-Fort Worth International Airport Board, ch. 3, § 4, art. VI(A) (2006), available at https://www.dfwairport.com/cs/groups/public/documents/webasset/p1_008800.pdf (last accessed Feb. 16, 2017); ?

• John F. Kennedy International Airport (New York City) — twenty-four hours, see Port Authority of New York and New Jersey Airport Rules and Regulations § XV(B)(2)(a) (Aug. 4, 2009), available at http://www.panynj.gov/airports/pdf/Rules_Regs_Revision_8_04_09.pdf (last accessed Feb. 16, 2017). ??

Obviously there is no clear trend. Depending on how these airports define “business day,” some of these time periods may actually be longer than the Denver Airport’s seven-day requirement. ?

In any event, Plaintiffs have never explained how the Airport, in its particular circumstances, cannot reasonably request seven days’ advance notice as a general rule. Indeed, Plaintiffs could not cite to this Court any case holding that any advance notice requirement applicable to a nonpublic forum was unconstitutional in all circumstances. Accordingly, Plaintiffs have not made a strong showing of likelihood of success on this particular theory of relief.

c. Reasonableness of the Regulation 50.03’s Lack of a Formal Process for Handling Permit Application More Quickly in Exigent Circumstances

Plaintiffs would prefer that they be allowed to demonstrate at the Airport without any advance notice in “exigent circumstances.” Given the serious and substantial purposes served by an advance notice requirement, the Court cannot say that Plaintiffs are likely to succeed on this score. Plaintiffs have given the Court no reason to hold that the Airport has a constitutional duty, even in exigent circumstances, to accommodate demonstrators as they show up, without any advance warning whatsoever.

Nonetheless, the Airport’s complete lack of any formal mechanism for at least expediting the permit application process in unusual circumstances raises a substantial and serious question for this Court. As noted in Part IV.A, above, timing and location are cardinal First Amendment considerations, and a number of cases regarding public fora (streets and parks) have held or strongly suggested that an advance notice requirement is unconstitutional if it does not account for the possibility of spontaneous or short-notice demonstrations regarding suddenly relevant issues.

Indeed, as the undersigned pointed out to Defendants’ counsel at the Preliminary Injunction Hearing, Denver itself is willing to accept an application for a street parade on twenty-four hours’ notice (as opposed to its standard requirement of thirty days) “if the proposed parade is for the purpose of spontaneous communication of topical ideas that could not have been foreseen in advance of [the] required application period or when circumstances beyond the control of the applicant prevented timely filing of the application.” Denver Mun. Code § 54-361(d). But again, this governs a public forum (city streets), where time, place, and manner restrictions such as this must satisfy a narrow tailoring analysis and leave open ample alternative channels for communication. See Perry, 460 U.S. at 45. As the above discussion makes clear, under controlling authority the Airport need not satisfy the same legal standards.

The parties have not cited, nor has the Court located, any case specifically discussing the need for a nonpublic forum to accommodate short-notice demonstrations. But the Court likewise has not found any case expressly precluding that consideration when evaluating reasonableness in the context of a nonpublic forum. It is perhaps unsurprising that the specific question has never come up in a nonpublic forum until now. The Court believes it to be an accurate observation that this country has never before experienced a situation in which (a) the motivation to protest developed so rapidly and (b) the most obviously relevant protest locations was a place the Supreme Court had already declared to be a nonpublic forum—the airport terminal.

When evaluating the reasonableness of a First Amendment restriction in a nonpublic forum, the Court concludes that it may appropriately consider the ability to shorten an advance notice requirement in a place like the Airport, given how unique airports are within the category of nonpublic fora. As Justice O’Connor noted in Lee, most of the Supreme Court’s major nonpublic forum cases aside from airport cases have involved

discrete, single-purpose facilities. See, e.g., [United States v.] Kokinda, [497 U.S. 720 (1990)] (dedicated sidewalk between parking lot and post office); Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788 (1985) (literature for charity drive); City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984) (utility poles); Perry, supra (interschool mail system); Postal Service v. Council of Greenburgh Civic Assns., [453 U.S. 114 (1981)] (household mail boxes); Adderley v. Florida, 385 U.S. 39 (1966) (curtilage of jailhouse).

505 U.S. at 688 (parallel citations omitted). As Justice O’Connor observed, however, many airports have become large, multipurpose facilities, see id. at 688–89, and that describes the Denver Airport well. To be sure, the reason for expanding beyond the bare minimum of infrastructure needed to handle travelers and airplanes is to promote air travel—to make the airport a more convenient and welcoming location specifically (although not exclusively) for travelers—but the reasonableness of First Amendment restrictions must nonetheless be judged according to the “multipurpose environment that [airport authorities] ha[ve] deliberately created.” Id. at 689.

Moreover, modern airports are almost always owned and operated by a political body, as well as secured by government employees. Thus, short-notice demonstrations reasonably relevant to an airport are also reasonably likely to be demonstrations about political or otherwise governmental topics, “an area in which the importance of First Amendment protections is at its zenith.” Meyer v. Grant, 486 U.S. 414, 425 (1988) (internal quotation marks omitted).

Given all this, and in light of the First Amendment interests in location and timing that this very case has made salient, the Court finds it unreasonable for the Airport to have no formal process by which demonstrators can obtain an expedited permit when -to borrow from the Denver parade ordinance— they seek to communicate topical ideas reasonably relevant to the Airport, the immediate importance of which could not have been foreseen in advance of the usual seven-day period, or when circumstances beyond the control of the applicant prevented timely filing of the application. The Court further finds in the particular circumstances of the Airport that reasonableness requires a process by which an applicant who faces such circumstances can request a permit on twenty-four hours’ notice. If this is all the notice Denver needs to prepare for a street parade, the Court can see no reason why more notice is needed (in exigent circumstances) for a substantially more confined environment like the Airport. 5

Accordingly, the Court finds that Plaintiffs are strongly likely to succeed in their challenge to Regulation 50.03 to this limited extent.

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5 At the Preliminary Injunction Hearing, Defendants’ counsel argued that preparing for a street parade is actually easier than preparing for demonstrations at the airport. The Court cannot fathom how this could possibly be the case, at least when comparing a typical street parade request to the typical Airport demonstration request. Indeed, the normal street parade request window is thirty days, suggesting just the opposite. Denver Mun. Code § 54-361(d). The challenges may be different, but the Court cannot accept—on this record, at least—that Airport demonstrations on average require more preparation time than do public parades or marches.
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d. Reasonableness of the Airport’s Power to Control the Location of Permitted Expressive Activity

At the Preliminary Injunction Hearing, it became clear that Plaintiffs not only wish for a more expansive right to protest in the Jeppesen T erminal, but they also argue for the right to select precisely where in the Terminal they should be allowed to stand. The Court recognizes that, from Plaintiffs’ perspective, their message is diluted if they cannot demonstrate in the international arrivals area, and this is a legitimate concern for all the reasons discussed previously about the power of location when conveying a message. The Court must also account, however, for Airport administrators’ superior knowledge about airport operations, foot traffic patterns, concerns particular to the specific day of the protest, and so forth.

?Regulation 50.04-1 requires permit applicants to specify “each location at which the [expressive] activity is proposed to be conducted,” but nowhere in Regulation 50 is there any limitation on the Airport’s discretion whether to approve the location request. Rather, the only provision addressing this topic is Regulation 50.04-6, which applies to a demonstration already underway: “The CEO may move expressive activity from one location to another and/or disperse such activity around the airport upon reasonable notice to each affected person when in the judgment of the CEO such action is necessary for the efficient and effective operation of the transportation function of the airport.”

There is no evidence that Airport administrators are using their discretion when approving a demonstration’s location to suppress or dilute a particular message, but there is also no logical reason to leave Airport administrators’ discretion essentially unfettered at the permitting stage while restricting it once the demonstration is underway. The Court finds Plaintiffs are likely to succeed at least in proving that Regulation 50.04-1 is unreasonable to the extent the Airport’s discretion is not restrained to the same degree as in Regulation 50.04-6. Defendants will therefore be enjoined to follow the same restraints in both settings.

e. Reasonableness of Regulation 50.09’s Prohibition of Signage Within the Jeppesen Terminal, and Regulation 50.08-12’s Limitation of All Signs to One Square Foot

Regulation 50.09 establishes that “picketing” (defined to include “displaying one or more signs, posters or similar devices,” Regulation 50.02-8) is totally prohibited in the Jeppesen Terminal unless as part of a labor protest. And, under Regulation 50.08-12, any permissible sign may be no larger than “one foot by one foot in size.”

?Any argument that the picketing ban is reasonable in the context of the Airport is foreclosed by Justice O’Connor’s analysis of the leafleting band at issue in Lee. See 505 U.S. at 690–93. Leafleting usually involves an individual moving around, at least within a small area, and actively offering literature to passersby. Signholding is usually less obtrusive, given that the signholder often stays within an even smaller area and conveys his or her message passively to those who walk by and notice the sign. The Court simply cannot discern what legitimate or reasonable Airport purpose is served by a complete ban on “picketing” or signholding among permitted demonstrators in the Jeppesen Terminal.

The Court also finds the one-foot-by-one-foot signage restriction unreasonable. The Airport has a legitimate interest in regulating the size of signs, as well as other aspects of their display (such as whether they will be held in the air, as in traditional picketing), but a one-foot-by-one-foot restriction is barely distinguishable, both legally and as a factual matter, from a complete ban. The point of a sign is to make a message readable from a distance. Few messages of substance are readable from any kind of distance if they must be condensed into one foot square. Reasonableness instead requires the Airport to consider the size of the signs that a permit applicant wishes to display as compared to the needs and limitations of the location where the applicant will demonstrate. Any restriction by the Airport which limits the size of a permit applicant’s signage beyond that which may be reasonably required to prevent the restriction or impeding of the normal flow of travelers and visitors in and out of Jeppesen Terminal will be preliminarily enjoined.

f. Viewpoint Neutrality

?A nonpublic forum is not required to be content-neutral, but it is required to be viewpoint-neutral with respect to the First Amendment activity it permits. Hawkins, 170 F.3d at 1288. Regulation 50, on its face, is viewpoint neutral, and Plaintiffs do not argue otherwise. Rather, they say that “Regulation 50 is being enforced as a clearly view-point-based restriction.” (ECF No. 2 at 14 (emphasis added).) This appears to be an as-applied challenge:

Individuals walk through Denver International Airport with political messages and slogans on their shirts and luggage and discuss politics on a daily basis. Counsel for Plaintiffs has worn political shirts while traveling through Denver International Airport and discussed modern politics with fellow passengers on many occasions. However, no other individual, to Plaintiffs or Plaintiffs’ counsel’s knowledge, has been threatened with arrest for engaging in this political speech. Nor has any individual been arrested for displaying pro-President Trump messages, for example a red hat that reads “Make America Great Again.” Only Plaintiffs’ expressive activity against the President’s Executive Order, and others advocating similarly, has been threatened with arrest.

(Id.) Denver responds:

The permit requirement furthers the nonpublic forum purpose by mitigating disruption at the airport by individuals who choose to be at the airport for non-travel related activities. In Stanton, the [Northern District of Indiana] rejected this exact argument challenging a nearly identical permitting rule of the Fort Wayne-Allen County Airport on an as applied basis by distinguishing between incidental expressive activities by members of the traveling public versus those arriving at the airport solely for purposes of engaging in expressive speech. Any messages a traveler or individual picking up a family member conveys by wearing T-shirts or hats are “incidental to the use of the Airport’s facilities” by persons whose “primary purpose for being present at the Airport is a purpose other than expressing free speech rights,” which is different in kind than individuals arriving at an airport whose primary purpose is expressive speech. Id. at 880–882.

(ECF No. 20 at 11 (emphasis added).)?

This argument obviously relies on a particular interpretation of Regulation 50 (given that the Regulation itself makes no explicit distinction between those who arrive at the airport for travel-related purposes and those who do not). Nonetheless, this is how Airport administrators interpret Regulation 50, as they made clear at the Preliminary Injunction Hearing. They also made clear that they have never sought to enforce Regulation 50 against someone wearing a political shirt, for example, while on airport-related business. Plaintiffs’ own arguments support the sincerity of the Airport administrators’ testimony. By Plaintiffs’ own admission, they are unaware of anyone going about his or her typical airport-related business who has been arrested or even threatened with arrest for wearing a political shirt, discussing politics, etc.

At the Preliminary Injunction Hearing, Plaintiffs attempted to present an as- applied viewpoint discrimination case by showing that the Airport regularly allows individuals to hold rallies, display signs, and so forth, for returning servicemembers and veterans, yet without requiring those individuals to obtain a permit under Regulation 50. The Court agrees that pro-military and pro-veteran messages are political statements, at least to the extent being conveyed by someone not at the Airport to welcome home a relative or loved one (and perhaps even by those persons as well). Thus, it would seem that pro-military messages would fall under Regulation 50. However, Plaintiffs have failed at this stage to show that the Airport’s alleged treatment of pro-military and pro-veteran messages amounts to viewpoint discrimination.

At the outset, Plaintiffs fail to note the subjective element of their claim: “viewpoint discrimination in contravention of the First Amendment requires a plaintiff to show that the defendant acted with a viewpoint-discriminatory purpose.” Pahls, 718 F.3d at 1230. In that light, it is tenuous to suggest that allowing (allegedly) unpermitted pro-military or pro-veteran expression at various times in the past but not allowing these recent unpermitted protests against the Executive Order is evidence of viewpoint discrimination. The question of whether our nation should honor servicemembers and the question of how our nation should treat foreign nationals affected by the Executive Order are not really in the same universe of discourse. To bridge the gap, it takes a number of assumptions about where pro-military attitudes tend to fall in the American political spectrum, and what people with those attitudes might also think about the Executive Order. This would be a fairly tall order of proof even outside the preliminary injunction context.

Moreover, Plaintiffs’ evidence of unpermitted pro-military expression is fairly weak. Plaintiffs’ main example is the activities of the Rocky Mountain Honor Flight, an organization that assists World War II veterans to travel to Washington, D.C., and visit the World War II Memorial, and then welcomes them home with a large and boisterous rally held in the meeter-and-greeter portion of the Great Hall. A former servicemember who helped to organize one of these rallies testified that she inquired of a more-senior organizer whether the Airport required any special procedures, and the answer she received was “no.” However, Airport administrators presented unrebutted testimony that Rocky Mountain Honor Flight rallies are planned far in advance and sponsored by the Airport itself, in connection with TSA and certain airlines. The Airport does not need a Regulation 50 permit for its own expressive activities, and a government entity’s expression about a topic is not a matter of First Amendment concern. See Pleasant Grove City v. Summum, 555 U.S. 460, 467 (2009) (“The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech.”).

Apart from the Rocky Mountain Honor Flight, Plaintiffs’ evidence comprises photos they gleaned from a Getty Images database showing individuals over the last decade or so being greeted at the Airport by persons holding signs. Some of these signs appear to be simple “welcome home” signs directed at specific returning family members. In the obviously servicemember-related photos, American flags are common. The Court finds that these photos, presented out of context, are not sufficient evidence to make a strong showing of likelihood of success regarding viewpoint discrimination, particularly the subjective intent requirement. Thus, the Court finds no reason for an injunction based on alleged viewpoint-discriminatory conduct. 6

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6 Even if Plaintiffs’ evidence were enough, the Court would find at this stage of this litigation that the only injunctive relief appropriate in light of the balance-of-harms and public interest considerations, below, would be an injunction to enforce Regulation 50 evenhandedly. Such an outcome would not advance Plaintiffs’ interests here.
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4. Is Regulation 50 Overbroad or Vague?

Plaintiffs bring both overbreadth and vagueness challenges to Regulation 50, which, in this case, are really two sides of the same coin. If a speech regulation’s sweep is unclear and may potentially apply to protected conduct, a court may invalidate the regulation as vague; whereas if the regulation actually applies to unprotected as well as protected speech, an individual who violates the regulation through unprotected speech may nonetheless challenge the entire statute as overbroad. See Grayned v. City of Rockford, 408 U.S. 104, 108–09, 114–15 (1972); 1 Smolla & Nimmer on Freedom of Speech ch. 6 (Oct. 2016 update). Here, Plaintiffs argue either that Regulation 50 is overbroad because it forbids (without a permit) protected conduct such as wearing a political hat while walking to one’s flight (ECF No. 2 at 16–18); or it is vague because it is unclear to what it applies precisely, given that Plaintiffs have seen Regulation 50 enforced against themselves but not against those who wear political hats or buttons, who are welcoming home military veterans, etc., all of whom are “seemingly in violation” of the Regulation (id. at 18–20).

The first task, then, is to determine what Regulation 50 actually encompasses. Again, the Regulation states that “no person or organization shall leaflet, conduct surveys, display signs, gather signatures, solicit funds, or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes, or in connection with a labor dispute, except pursuant to, and in compliance with, a permit for such activity issued by the CEO or his or her designee.”

The portion about leafleting, conducting surveys, displaying signs, gathering signatures, or soliciting funds is not vague. It does not fail to “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited.” Grayned, 408 U.S. at 108. Nor is it overbroad given that it is not a complete prohibition of leafleting (as in Lee), but simply a prohibition without a permit.

The arguably difficult portion of Regulation 50 is the “or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes” clause. It is grammatically possible to interpret this passage as extending to any religious, charitable, or political “speech related activity” by anyone at the Airport, including travelers wearing political buttons or sharing their religious beliefs with others.

Denver argues that no person of ordinary intelligence would have such a worry: “a person of ordinary intelligence cannot reasonably claim that they are unable to discern the difference between a traveler walking through the airport with a ‘make America great again’ baseball cap or travelers discussing politics as they walk to their intended destination and a gathering of people who have no purpose for being at the airport other than to march or station themselves in order to communicate their position on a political issue.” (ECF No. 20 at 14.) This argument is slightly inapposite. The question is not whether someone can distinguish between a passenger’s pro-Trump hat and a gathering of anti-Trump protesters. The question is whether Regulation 50 contains such a distinction, and particularly a distinction between the incidental activities of those who come to the airport for airport-related purposes and the intentional activities of those who come to the airport to demonstrate.

However, to the extent Denver means to say that Regulation 50 would not be interpreted by a person of ordinary intelligence to encompass, e.g., a traveler choosing to wear a “Make America Great Again” hat, the Court agrees. Regulation 50 is not, as Plaintiffs suggest, just one paragraph from Regulation 50.03. Regulation 50 comprises sixteen major subdivisions, many of which are themselves subdivided. A person of ordinary intelligence who reads Regulation 50 —all of it— cannot avoid the overwhelming impression that its purpose is to regulate the expressive conduct of those who come to the Airport specifically to engage in expressive conduct. Thus, Regulation 50 is not vague.

As for overbreadth, “[t]he first step in [the] analysis is to construe the challenged statute; it is impossible to determine whether a statute reaches too far without first knowing what the statute covers.” United States v. Williams, 553 U.S. 285, 293 (2008). For the reasons already stated, the Court finds that the only reasonable construction is one that does not extend to an airline passenger wearing a political T-shirt, or anything of that character. Cf. Jews for Jesus, 482 U.S. at 575. This is, moreover, the Airport’s own interpretation, the sincerity of which is borne out by Plaintiffs’ own experience. Thus, Regulation 50 is not overbroad. 7

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7 Even if Regulation 50 were vague or overbroad, the Court would nonetheless find that an injunction against enforcing Regulation 50 as a whole would be against the public interest. The more appropriate remedy would be an injunction to follow precisely the interpretation that the Airport currently follows, but that would be of no benefit to Plaintiffs.
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?C. Irreparable Harm

Having found that Plaintiffs are strongly likely to succeed in invalidating a narrow subset of Regulation 50, the Court returns to irreparable harm. Given that Plaintiffs First Amendment rights are at stake in those portions of Regulation 50 that the Court finds to be unreasonable, irreparable harm almost inevitably follows: “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1190 (10th Cir. 2003) (internal quotation marks omitted).

?D. Balance of Harms

The injury to a plaintiff deprived of his or her legitimate First Amendment rights almost always outweighs potential harm to the government if the injunction is granted. See Awad v. Ziriax, 670 F.3d 1111, 1131 (10th Cir. 2012); ACLU v. Johnson, 194 F.3d 1149, 1163 (10th Cir. 1999). Thus, the Court finds that the harm to Plaintiffs from the Airport’s continued enforcement of the unreasonable portions of Regulation 50 would be greater than the harm to the Airport in refraining from such enforcement, particularly given that the unreasonable portions are quite limited and most of Regulation 50 will remain unchanged.

?E. Public Interest

Finally, as with irreparable injury and balancing of interests, it is almost always in the public interest to prevent a First Amendment violation. See Awad, 670 F.3d at 1132; Johnson, 194 F.3d at 1163. Moreover, the Court is not striking down Regulation 50 or even altering it in any significant respect. Thus, the public’s interest in safe and efficient Airport operations remains unaffected.?

F. Bond

A party awarded a preliminary injunction normally must “give[] security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c). The Tenth Circuit has held, however, that “a trial court may, in the exercise of discretion, determine a bond is unnecessary to secure a preliminary injunction if there is an absence of proof showing a likelihood of harm.” Coquina Oil Corp. v. Transwestern Pipeline Co., 825 F.2d 1461, 1462 (10th Cir. 1987) (internal quotation marks omitted); see also 11A Charles Alan Wright et al., Federal Practice & Procedure § 2954 n.29 (3d ed., Apr. 2016 update) (citing public rights cases where the bond was excused or significantly reduced). Denver has not argued that Plaintiffs should be required to post a bond, and the Court finds that waiver of the bond is appropriate in any event.

V. CONCLUSION

For the reasons set forth above, the Court ORDERS as follows:

1. Plaintiffs’ Motion for Preliminary Injunction (ECF No. 2) is GRANTED to the ?limited extent stated in this order and otherwise DENIED; ?

2. The City and County of Denver (including its respective officers, agents, ?servants, employees, attorneys, and other persons who are in active concert or participation with any of them, and further including without limitation Defendants Lopez and Quiñones) (collectively, “Defendants”) are PRELIMINARILY ENJOINED as follows:

a. Defendants must timely process a permit application under Denver Airport Regulation 50.04-1 that is received less than 7 days but at least 24 hours prior to the commencement of the activity for which the permit is sought, provided that the applicant, in good faith, seeks a permit for the purpose of communicating topical ideas reasonably relevant to the purposes and mission of the Airport, the immediate importance of which could not have been foreseen 7 days or more in advance of the commencement of the activity for which the permit is sought, or when circumstances beyond the control of the applicant prevented timely filing of the application; however, circumstances beyond Defendants’ control may excuse strict compliance with this requirement to the extent those circumstances demonstrably interfere with the expedited permitting process; ?

b. So long as a permit applicant seeks to demonstrate in a location where the unticketed public is normally allowed to be, Defendants must make all reasonable efforts to accommodate the applicant’s preferred location, whether inside or outside of the Jeppesen Terminal;

c. Defendants may not enforce Denver Airport Regulation 50.09’s prohibition against “picketing” (as that term is defined in Regulation 50.02-8) within the Jeppesen Terminal; and

d. Defendants may not restrict the size of a permit applicant’s proposed signage beyond that which may be reasonably required to prevent the impeding of the normal flow of travelers and visitors in and out of Jeppesen Terminal; and specifically, Defendants may not enforce Denver Airport Regulation 50.08-12’s requirement that signs or placards be no larger than one foot by one foot.

3. This Preliminary Injunction is effective immediately upon issuance of this Order, and will remain in force for the duration of this action unless otherwise modified by Order of this Court.

Dated this 22nd day of February, 2017, at 8:05 a.m. Mountain Standard Time. BY THE COURT:

__________________________
William J. Martínez?
United States District Judge

DPD commander reveals arrest threat is a regular “ploy” to disperse protest

DENVER, COLORADO- We heard on Friday that US judge William Martinez needed more time to craft an opinion on a temporary injunction of DIA’s enforcement of their free speech permit. He commited to a decision early this week, and frankly we don’t know what to expect. From challenges he posed to attorneys at Wednesday’s hearing, the judge appears to think DIA needs some degree of “notice” about potential disruptions. He is unlikely to rule against the permit altogether because he opened the hearing already proclaiming that DIA is a “not a public forum” and thus has discretion about what expression to allow. DIA can limit subject matter, but not viewpoint, and can constrict assemblies. Judge Martinez’s starting point was based on US Supreme Court precedent set at JFK and Dulles airports, ignoring that both of those facilities are decentralized and lack DIA’s literal public square. Ironically, neither JFK or Dulles attempted to quash their Muslim Ban protests as did DIA. I’d like to mention some other details revealed at the preliminary injunction hearing.

For starters, the person in charge of approving permits has a highy subjective attitude about viewpoint. To him, pro-military messages are not oints of view at all, they’re just patriotic. They don’t require permits. Also, his department hasn’t declined to issue permits. They work with applicants to arrive at accommodations suitable to the airport. For example, the American Islamic Society was recently granted a permit, the airport requires they limit their participant numbers to FOUR.

DPD Commander Tony Lopez explained why he needs advance notice of protest actions, to be able to schedule officers without having to pay short-notice overtime. Lopez revealed that his optimal staffing numbers are a one to one ratio with activists. Small wonder he was demoted to DIA from downtown District Six. Lopez also testified that he often threatens to make arrests “as a ploy” to make a crowd disperse. And “it usually works” he said. A next step is to mobilize his officers to appear to be targeting particular activists, to increase the intimidation, without an actual intention of making arrests, or justifying them. His testimony confirmed what I described to the court, of officers often threatening to arrest us, even when they had no legal basis, and telling us we needed a permit when none was required.

From the attitude of the city attorneys and the DIA personnel, one became uneasily aware that administrators don’t even blink at sacrificing civil liberties for the interests of security. If airport surveillance can’t size you up as either a traveller or meetor-greetor, they can’t predict your behavior and you’ve suddenly become a security risk. Airport customs and TSA lines are already areas inhospitable to personal freedoms. Apparently airport managers would like all their hallways and public centers to be as restricted. If cops had their way, public streets and sidewalks would be single-purpose conduits as well.

We await a federal judge’s ruling for now, with optimism in judgement superior to that of petty administrators, city lawyers and police. Seeking protection from the courts is contigent on the premise that if needed, the wisdom of the US Supreme Court could be brought to bear. Of late it’s hard to regard those justices as the brightest minds or uncorrupted. We have the Citizens United decision as an example. To which I would add, the terrible compromise that airports are not public forums.

As President Trump considers a follow-up executive order to replace his first Muslim Ban now stymied by the courts, it’s interesting to note we just marked the anniversary of FDR’s order to put Japanese-Americans, the “others” of his day, into internment camps. The supreme court of his day upheld his order. Technically that legal precedent still stands.

Denver judge rules BEING HOMELESS IS IRRELEVANT to defendants charged with violating city’s urban camping ban

DHOL defendants with attorney Jason Flores-Williams
DENVER, COLORADO- A hearing was held today to review motions submitted before the criminal trial of three homeless activists arrested last November for violating Denver’s Urban Camping Ban. Terese Howard, Jerry Burton, and Randy Russel featured in the infamous 2016 video that showed Denver police officers confiscating their sleeping bags and blankets on the snowy steps of city hall. Through attorney Jason Flores-Williams, fellow Denver Homeless Out Loud (DHOL) activists have filed a civil lawsuit to halt the city’s homeless sweeps. In municipal court DHOL hopes to challenge the ordinance being used to harass, displace and imprison the downtown homeless. Already the city’s case appears to be derailing based on developments at the motions hearing. Denver municipal court judge Kerri Lombardi approved all the city’s motions and none for the defense. Lombardi approved the use of 404B evidence for the city, but simultaneously restricted Res Gestae evidence for the defense. In particular, she refused to qualify two experts on homelessness, precluding the accused from arguing a “necessity defense”. Judge Lombardi stated that being homeless was irrelevant to whether they were violating the urban camping ban. When asked to recuse herself, the judge declined, so attorney Flores-Williams declared his intent to file an interlocutory appeal to bump the case to district court. Meanwhile speedy trial was waived and a new court date was set for April 5th.

DHOL’s 2/17 press release:

Yesterday there was a dispositive motions hearing in the Camping Ban criminal cases where homeless and poor people are being charged with crimes for sleeping on the streets with blankets and shelter in Winter. The hearing was noteworthy for the bias and prejudice shown toward Defendants by the Court.

1) At the start of the hearing, prior to any argument, the Judge looked at Defense counsel and said: “The one thing I don’t want is any drama from you, Mr. Flores-Williams.” Defense counsel had never practiced in this court.

2) Without allowing any substantive legal argument, the Court ruled that it was permissible for theProsecution to file a 34-person witness list eight days after the court’s deadline and only two weeks prior to trial.

3) The Court then Excluded all of Defense’s expert witnesses without hearing or testimony, saying that “Homelessness has nothing to do with this case.”

4) The Court then ordered Defense counsel to limit all arguments so that no argument or line of questioning could be construed at trial as an attempt to persuade the jury that the Camping Ban ordinance is itself unjust.

5) At this juncture, defense counsel cited to Fed R. 37(c)and its CO equivalent concerning the prejudice resulting from late disclosure of witnesses. No court response. Defense counsel then quoted from sections from Chambers v. Mississippi, a landmark 1973 civil rights case concerned with due process in which the overall prejudice to defendants becomes so cumulative and egregious that defendants fair trial rights are eviscerated. No response.

6) The Court then took up a Motion from the prosecution that does not exist. A “Res Gestae/404(b) Motion” that wrongfully conflates two different types of evidentiary concepts and underlying analyses. Res Gestae is concerned with the natural narrative of a case. Example: someone robs a liquor store, the fact that they stopped at two bars and to pick up their weapon on the way to the robbery. 404(b)has to do with a very specific set of factors that a defendant leaves at various crime scenes as identifiers. Not to be rude, but the classic example is when serial killer leaves identifiers at numerous crime scenes showing his m.o. The court conflated these two very different legal concepts and construed the “Res Gestae/404b” motion as allowing the prosecution to offer proof of Defendants’ mental states, but not the fact that defendants were homeless. (If this seems like 2+2=5, Wintston, they are….)(The court also disregarded that the motion was filed late and that it was amended without leave of court.)

7) Defense counsel then objected to the fact that the court had asked the prosecution for their jury instructions without asking defense for their jury instructions, and now was reverse injuring the court’s ruling from the prosecutions jury instructions. Objection overruled.

8) Defense counsel made oral motion for the judge to recuse, i.e. that he Judge take herself off the case for bias against defendants. Denied.

9) Defense counsel cited to several cases concerning due process rights, wrongful exclusion of defense witnesses, and the right to fairly address criminal accusations. No response.

10) Defense requested findings of law and fact – none given.

11) Defense counsel asked for a stay of the proceeding to file an interlocutory appeal regarding the court’s rulings.

12) Court stated that interlocutory orders cannot be appealed from municipal court so that none of the court’s decisions are reviewable.

13) Court ruled that the prosecution’s disclosure of 95 police body cameras three days prior to the hearing was permissible, then scolded defense for not reviewing the 95 videos prior to hearing. Defense counsel, concerned that the court would issue sanctions if he responded, had no comment.

We are now seeking an interlocutory appeal of the Court’s rulings.

The trial is scheduled for April 5th, 2017. Mark your calendar.

I’m told it’s a good day when you get to say “motherfucker” in federal court

The Colorado Springs Gazette was not amused. Nor was the Denverite about my testimony yesterday in US district court, seeking an injunction against the Denver International Airport’s free speech permit. The city attorney tried to discredit me by forcing me to recite for the federal judge the full unabridge text of the sign I held at DIA. It was a riff on anti-Nazi cleric Martin Niemöller’s oft-paraphrased parable: “First they came for the Socialists, but I said nothing, etc”, this time foreshortened as a visceral response to Trump’s Muslim Ban: “-and we said NOT TODAY [strong expletive]!” We argued about whether my message was “welcoming”. I assured her that it was very warmly received and could not be interpreted as anything but uniquivocal solidarity. So I read it forcefully, resisting the inclination to lean into the microphone on the last word. Afterward my attorneys assured me it’s a good day in their line of work when you get to say MOTHERFUCKER in court! Judge William Martinez restricted hearing testimony to the single day (Wednesday) and promised to rule on the preliminary injunction by Friday, February 17.

Denver jury trial for offense of leaving your homeless little dog off the leash

Adrian Brown arrested June 21, 2016
DENVER, COLORADO- Adrian “Munk” Brown faces trial on Monday, charged his dog being at large on the Lindsey Flanigan Courthouse Plaza. This happened on June 21 of last year, when he was testifying at the trial of a fellow activist. Because Munk wouldn’t let the dog catcher seize his dog, he is charged with interference. Because more than a dozen officers responded to the scene, things escalated from there and Munk was taken to jail. But that’s the pretext. In truth– ADRIAN BROWN WAS TARGETTED, STALKED, TAUNTED & ARRESTED.

1. BRIEF STORY OF INCIDENT
2. PREDICTED SCHEDULE
3. CALL TO ACTION
4. LEGAL DISCLAIMER

1. WHAT HAPPENED?
Ridding the streets of substantive evils, three animal control officers, a dozen courthouse deputies, and half dozen Denver police ultimately arrest Munk for not having an ID card and animal at large. Of course they added obstructing animal control and interference with police.

Join me on the plaza tomorrow at 7am. My unleashed dog will be with me. Who else has a well behaved and appropriate in public canine buddy they can bring?

Am I the only one who finds it somewhat Orwellian that Munk was arrested when SGT A. A. Martinez shows up and asks Munk if he will give him his ID. Then Munk asks him who he is. To which Martinez responds: he will take that as a refusal (to identify) and cuffs and stuffs him. COPS ARE REQUIRED TO PRODUCE THEIR NAME AND BADGE ID NUMBER TO THE PUBLIC UPON DEMAND. Members of the public, whom cops serve, are not required to carry papers or ID card with them. So the Master shall be criminalized for refusing to produce a non-existent ID to a servant upon demand, by a servant who refused to identify himself as required? Did I miss something here?

SGT A. A. MARTINEZ IS A KNOWN DOMESTIC TERRORIST WHO HAS BEEN OBSERVED ACCOSTING A PREGNANT WOMAN FOR SIMPLY SITTING DOWN ON THE GROUND TO REST. (Yes, it is a crime in Denver to sit on the ground).

DEPUTY FOOS is a known terror leader who commands a group of violent terrorists known as the FOOShiban. FOOS and his lawless thugs have harassed, detained, obstructed, pestered, and kidnapped Munk many times in the past – in fact, when a bystander observing this event speaks out and tells Foos he knows who Munk is and to share – HE DOES! He pulls out his little book, flips a few pages, and points to a place on the page to which the animal control officer responds by writing information on the citation clearly implying that Foos knows Adrian Brown well enough to have his identifying information at his finger tips.

2. PREDICTED SCHEDULE OF MONDAY EVENTS:
Based on past trials, I predict the schedule will approximately be:

Day 1
0700 – CHALK-A-THON
0730 – JUROR RIGHTS OUTREACH
0830 – DOCKET BEGINS
1030 – JURY SELECTION
1300 – POLICE TESTIMONY

DAY 2
0900 – BYSTANDER TESTIMONY
1500 – JURY DELIBERATION
1530 – JURY VERDICT – NOT GUILTY

3. CALL TO ACTION
I am advocating not only for you to join us in perfectly legal and utterly appropriate activism educating the public using the courthouse about their rights and encouraging them to exercise them to the fullest.

I am also advocating for civil disobedience. I intend to break a handful of laws tomorrow morning. I have every intention to repeatedly violate the so-called JAYWALKING codes to start with. Then I intend going to graffiti the plaza with sidewalk chalk. All the while I intend to be accompanied by my unleashed wiener dog, Rusty. Then I intend to sit down on the ground – lie down on the ground even. I will be demanding my immediate incarceration for these wonton and deliberate acts in violation of numerous codes. AND I WILL REFUSE TO PRODUCE MY ID CARD. I might even burn a flag or two!

AND I ADVOCATE YOU TO DO THE SAME ILLEGAL ACTS!

4. DO REMEMBER
The above actions are prohibited and if you commit those acts you could be arrested, tried, convicted, AND INCARCERATED FOR YEARS. I’m just saying…

Oh yeah- and this is the same judge who was presented by the prosecutors in another sit and lie trial, PRINTOUTS OF MY FACEBBOOK PAGE, and asked to gag me.

And this is the same judge who put Munk in jail for 20 days contempt simply for stating the scientifical fact that Judge Adam Esponosa is in fact “A PUNK ASS BITCH”.

Occupy allstar Caryn Sodaro breaches bank doors, allows water protectors to ask Denver Wells Fargo to defund DAPL

Glenn Morris, Caryn Sodaro
DENVER, COLORADO- At the behest of the beseiged Standing Rock encampment currently blocking the Dakota Access Pipeline, Denver water protectors held an unannounced rally on the capitol steps Friday morning and marched prompty to the Wells Fargo building several blocks north. Led by the American Indian Movement, and joined by allies, the predominantly Native American assembly intended to deliver a message to the major banking entity underwriting the Energy Transfer pipeline project. The action Friday was prompted by President Trump’s recent executive order to bypass legal restrictions holding up the drilling. Arriving at the bank, the hundred fifty marchers found all doors locked.

After a few minutes of rallying outside, a door suddenly opened and everyone rushed inside the atrium. That everyone included drummers, dancers, leaders, and television crews.

After a long rally and a round dance were held in the Wells Fargo atrium, another door leading to the bankteller counters miraculously opened and the group was able to rush in to the bank. Behind these miracles was veteran Occupy Denver activist Caryn Sodaro.

The security guards and police were unable to reach the open door in time, so within a minute the lobby was filled with water protectors making loud their demands. Eventually all the banners were gathered inside and multiple television cameras and reporters covered it all.

Occupy Denver has breached the Wells Fargo Building before, in 2011, for an allied action against the predatory bank. The original feat resulted in an arrest.

In the bank lobby, the water protectors chanted and walked in circles as leaders asked to speak to bank representatives. None appeared, and eventually DPD took to a megaphone and gave the gathering three minutes to leave. That was the cue for AIM leader Glenn Morris to spend well over three minutes telling the bank and the police that the water protectors would be back.

Caryn Sodaro
Caryn Sodaro urges water protectors to raise their voices so that bank officials can hear them from the upper floors.

Caryn’s feat on Friday was unheralded even as participants celebrated their victory. But that’s par for the course for the unsung agitator. Maybe it’s unwise to brag about it here. Nonesense. Activists deserve mythbuilding all the more when the adversarial media and moderate reformists refuse to credit radical actions. I’ve purposefully obfuscated the details of Caryn’s breach so that they remain Occupy Denver trade secrets. But let’s here give Caryn Sodaro her due. If the DPD can glean one lesson from their unsuccessful blockaid of marchers on Friday, it can be this: next time keep better eyes on Caryn!

Occupy v. Martinez (Plaza Protest Ban) 2016 US 10th Circuit Court of Appeals Decision AFFIRMING Prelim Injunction


Yesterday I published the federal judge’s order to grant the 2015 preliminary injunction against the Lindsey Flanigan Courthouse. Since that time the city motioned to dismiss, there were show cause hearings, and depositions, and an appeal to the 10th Circuit Court of Appeals. On April 8, 2016 the appeals court AFFIRMED the preliminary injunction. As a result this legal action is on the road to becoming a permanent injunction, to be decided at trial this April. The prospects look promising, based on how the appelate judges schooled our First Amendment adversaries. I’m reprinting their full decision below.

In particular you might enjoy Judge McHugh’s citing of US Supreme Court Justice Owen Roberts, writing in 1939 for the majority, in a decision to uphold public first amendment rights in Hague v. [AFL-]CIO. Robert affirmed that streets were traditional free speech areas:

“Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.”

Here’s the full 2016 opinion rejecting Denver’s appeal of our federal injunction:

Document: 01019599889 Date Filed: 04/08/2016

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

_________________________________

ERIC VERLO; JANET MATZEN; and FULLY INFORMED JURY ASSOCIATION,

Plaintiffs – Appellees,

v.

THE HONORABLE MICHAEL MARTINEZ, in his official capacity as Chief Judge of the Second Judicial District,

Defendant – Appellant,

v.

THE CITY AND COUNTY OF DENVER, COLORADO, a municipality; ROBERT C. WHITE, in his official capacity as Denver Chief of Police,
Defendants – Appellees.

_______________

FILED ?United States Court of Appeals Tenth Circuit

April 8, 2016

Elisabeth A. Shumaker Clerk of Court

No. 15-1319

_________________________________

Appeal from the United States District Court for the District of Colorado ?(D.C. No. 1:15-CV-01775-WJM-MJW)
_________________________________

Stephanie Lindquist Scoville, Senior Assistant Attorney General, Office of the Attorney General for the State of Colorado, Denver, Colorado (Cynthia H. Coffman, Attorney General; Frederick R. Yarger, Solicitor General; Matthew D. Grove, Assistant Solicitor General; Ralph L. Carr, Colorado Judicial Center, Denver, Colorado, with her on the briefs) for Defendant – Appellant.

David A. Lane, Killmer, Lane & Newman, LLP, Denver, Colorado, for Plaintiffs – Appellees.

Wendy J. Shea, Assistant City Attorney; Geoffrey C. Klingsporn, Assistant City Attorney; Evan P. Lee, Assistant City Attorney; Cristina Peña Helm, Assistant City Attorney, Denver City Attorney’s Office, Denver, Colorado, filed a brief on behalf of Defendants – Appellees.
_________________________________

Before BRISCOE, McKAY, and McHUGH, Circuit Judges.
_________________________________

McHUGH, Circuit Judge.
_________________________________

This is an interlocutory appeal challenging the district court’s grant of a preliminary injunction, enjoining in part the enforcement of an administrative order (Order) issued by Defendant-Appellant Judge Michael Martinez, acting in his official capacity as Chief Judge of the Second Judicial District of Colorado (Judicial District). The Order prohibits all expressive activities within an area immediately surrounding the Lindsey-Flanigan Courthouse in Denver (Courthouse). Plaintiffs-Appellees Eric Verlo, Janet Matzen, and the Fully Informed Jury Association (collectively, Plaintiffs) sought the preliminary injunction to stop enforcement of the Order against their expressive activities. Following an evidentiary hearing, the district court enjoined enforcement of a portion of the Order as against Plaintiffs. The Judicial District now appeals.

Based on the arguments made and evidence presented at the preliminary injunction hearing, we hold the district court did not abuse its discretion in granting Plaintiffs’ motion in part. Although we affirm the district court’s order granting a limited preliminary injunction, we express no opinion as to whether a permanent injunction should issue. Instead, we provide guidance to the district court and the parties regarding the factual inquiry and the applicable legal standard relevant to that question on remand.

I. BACKGROUND

The genesis of this case is an incident involving nonparties. On July 27, 2015, two men were distributing pamphlets on the plaza outside the Courthouse (Plaza). The pamphlets contained information about jury nullification, a practice in which a jury refuses to convict a defendant despite legal evidence of guilt because the jury members believe the law at issue is immoral. 1 Both men were arrested and charged with jury tampering in violation of Colorado law. See Colo. Rev. Stat. § 18-8-609(1) (“A person commits jury-tampering if, with intent to influence a jury’s vote, opinion, decision, or other action in a case, he attempts directly or indirectly to communicate with a juror other than as a part of the proceedings in the trial of the case.”).

———
1 Jury nullification has been defined as “[a] jury’s knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury’s sense of justice, morality, or fairness.” Jury Nullification, Black’s Law Dictionary (10th ed. 2014).
———

Plaintiffs, like the men who were arrested, wish to distribute literature relating to and advocating for jury nullification to individuals approaching the Courthouse who might be prospective jurors. Fearing they too would be subject to arrest, Plaintiffs brought suit against the City and County of Denver and Robert C. White, Denver’s police chief, in his official capacity (collectively, Denver) to establish their First Amendment right to engage in this activity. On the same day they filed suit, Plaintiffs also moved for a preliminary injunction, seeking to restrain Defendants from taking action to prevent Plaintiffs from distributing jury nullification literature on the Plaza. Two days later, Plaintiffs amended their complaint to also challenge the Order issued by the Judicial District.

That Order, entitled Chief Judge Order Regarding Expressive Activities at the Lindsey-Flanigan Courthouse, states in relevant part:

The Court has the responsibility and authority to ensure the safe and orderly use of the facilities of the Second Judicial District; to minimize activities which unreasonably disrupt, interrupt, or interfere with the orderly and peaceful conduct of court business in a neutral forum free of actual or perceived partiality, bias, prejudice, or favoritism; to provide for the fair and orderly conduct of hearings and trials; to promote the free flow of pedestrian and vehicular traffic on sidewalks and streets; and to maintain proper judicial decorum. Those having business with the courts must be able to enter and exit the Lindsey-Flanigan Courthouse freely, in a safe and orderly fashion and unhindered by threats, confrontation, interference, or harassment. Accordingly, the Court hereby prohibits certain expressive activities on the grounds of the Courthouse, without regard to the content of any particular message, idea, or form of speech.

Prohibited Activities: The activities listed below shall be prohibited in the following areas: anywhere inside the Lindsey-Flanigan Courthouse, including courtrooms, corridors, hallways, and lobbies; the areas, lawns, walkways, or roadways between the Courthouse and public sidewalks and roads; and any areas, walkways, or roadways that connect public sidewalks and roads to Courthouse entrances or exits. This includes, but is not limited to, the Courthouse entrance plaza areas on the east and west sides of the Courthouse as depicted in the highlighted areas of the attached map.

1. Demonstrating; picketing; protesting; marching; parading; holding vigils or religious services; proselytizing or preaching; distributing literature or other materials, or engaging in similar conduct that involves the communication or expression of views or grievances; soliciting sales or donations; or engaging in any commercial activity; unless specifically authorized in writing by administration; ?

2. Obstructing the clear passage, entry, or exit of law enforcement and emergency vehicles and personnel, Courthouse personnel, and other persons having business with the courts through Courthouse parking areas, entrances, and roadways to and from Courthouse and Courthouse grounds;

3. Erecting structures or other facilities, whether for a single proceeding or intended to remain in place until the conclusion of a matter; or placing tents, chairs, tables, or similar items on Courthouse grounds; except as specifically authorized in writing by administration; and ?

4. Using sound amplification equipment in a manner that harasses or interferes with persons entering or leaving Courthouse grounds or persons waiting in line to enter the Courthouse. ?

The Order was accompanied by an image depicting an aerial view of the Courthouse and its grounds, with the areas in which the Order prohibited expressive activity highlighted in yellow (Restricted Areas).

The Courthouse is bordered on its north side by Colfax Avenue and on its west side by Fox Street. Both Colfax Avenue and Fox Street have public sidewalks running along the perimeter of the Courthouse. Immediately to the east of the Courthouse lies the Plaza. The Plaza is bisected by Elati Street, which is closed to traffic other than police vehicles. Elati Street runs through a large circular area (Main Plaza) between the Courthouse and the Van Cise-Simonet Detention Center (Detention Center), which houses pretrial detainees. The Main Plaza contains planters, benches, public artwork, sidewalks, and gravel areas and is suitable for public gatherings.

Of relevance to this appeal are the Restricted Areas, which include an arc-shaped walkway and planter area immediately to the east of the Courthouse. The arced walkway runs from the corner of Elati Street and Colfax Avenue in a curved path across the front of the Courthouse and ends where it intersects with an open area in front of the Courthouse containing planters and benches (the Patio), which also forms part of the Restricted Areas. The Patio provides access to the main entrance on the east side of the Courthouse. Thus, the Restricted Areas encompass only the portions of the Plaza closest to the Courthouse.

The Judicial District opposed Plaintiffs’ motion for a preliminary injunction and, in doing so, defended the Order. In contrast, Denver entered into a joint stipulation (the Stipulation) with Plaintiffs. The Stipulation asserted that the entire Plaza between the Courthouse and the Detention Center—specifically including the Restricted Areas—was “a public forum and any content-based regulations must be narrowly drawn to effectuate a compelling state interest and reasonable time, place and manner regulations.” It further acknowledged that Plaintiffs were entitled to distribute jury nullification literature on the Plaza and pledged that Denver would not “arrest or otherwise charge Plaintiffs for handing out literature regarding jury nullification so long as Plaintiffs do not violate Colorado law or Denver’s Revised Municipal Code when they are handing out their literature.” The Stipulation specifically referenced the Judicial District’s Order, indicating Denver did not “intend to enforce [the Order] as written and will only impose content and viewpoint neutral reasonable time, place and manner restrictions on the use of the Plaza, and/or other exterior areas surrounding the Plaza if Denver determines that a compelling need exists to do so.”

At the preliminary injunction hearing, the parties called only two witnesses. Plaintiffs called Commander Antonio Lopez of the Denver Police Department. Commander Lopez described the Plaza as a public “open space” much like the city’s various parks. He testified that in the five years since the Courthouse opened he has witnessed “more First Amendment activity take place in [the Plaza] than [he] can recall.” Specifically, Commander Lopez described a variety of protest activities “at one point . . . averaging about two or three a week” in the Plaza. He further testified that the Denver Police Department had never taken steps to stop protest activity in the Plaza, other than intervening if protesters became violent or otherwise broke the law. Relevant to this appeal, Commander Lopez testified that in his experience, the entire Plaza—including the Restricted Areas—has traditionally been used for First Amendment protest activities. On cross-examination, Commander Lopez acknowledged that the “majority” of the protests in the Plaza occurred closer to the Detention Center, but that he had also seen protests directed at the Courthouse.

The Judicial District called Steven Steadman, administrator of judicial security for Colorado. Mr. Steadman testified that the Order was motivated by concern about anticipated protests of a verdict in a death penalty case being tried at the Courthouse.?Mr. Steadman explained that he met with Chief Judge Martinez to discuss security concerns relating to that verdict and recommended the Judicial District adopt a policy similar to one recently implemented in Arapahoe County during another high-profile capital trial.

Mr. Steadman also testified about the design of the Plaza, including the Restricted Areas. He indicated that the planters, gravel areas, and sidewalks were intentionally designed to “signal to the average user how to find their way, and where you should go and what the main travel ways are.” Mr. Steadman explained that the Patio and arced walkway’s “sole purpose is to allow people, the public, to enter and exit the [Courthouse] without being interfered with.” But Mr. Steadman also stated that, prior to imposition of the Order, protestors—including pamphleteers—were allowed to protest immediately in front of the doors to the Courthouse, provided they did not interfere with ingress or egress from the Courthouse. He explained that the “general response” of protestors was to cease their activities when requested by Courthouse security not to interfere with public access to the Courthouse. Mr. Steadman further testified that no person had ever been arrested for blocking ingress or egress from the Courthouse since it opened in 2010. Important to this appeal, Mr. Steadman acknowledged that Plaintiffs’ activities of passing out jury nullification literature did not present “any security risk” beyond what had previously been tolerated without incident throughout the time the Courthouse had been open.

The district court also accepted a proffer of Plaintiffs’ testimony, indicating that their intent was to approach people entering the Courthouse to discuss quietly the concept of jury nullification and to distribute their literature. Plaintiffs asserted that proximity to the front door of the Courthouse was key to their message because otherwise their intended audience—“people who are going to serve or are in fact serving on juries”—will “very frequently just bypass them” in the designated free speech zone by “walking on one of the sidewalks that is part of the [Restricted Areas].” By contrast, positioning themselves near the front door would allow Plaintiffs “to pass out literature to anyone who wants it” and “if people want to stop and talk about [it], they can then explain to them what the concept of jury nullification is.” Thus, according to Plaintiffs, the Order effectively prevented them from reaching their target audience. Finally, the district court accepted the parties’ jointly stipulated exhibits, which consisted of a series of images of the Plaza and Restricted Areas, as well as a copy of the Order.

Following the evidentiary hearing, the district court granted Plaintiffs’ request for a preliminary injunction. In doing so, the district court relied on Denver’s Stipulation that the Plaza was a public forum and the Judicial District’s position that resolving the forum status was not necessary because the Order “would satisfy even the strictest test.” The district court concluded Plaintiffs had demonstrated a likelihood of success on the merits because, treating the Restricted Areas as public fora, the Order’s complete ban on expressive activity was not narrowly tailored to accomplish a significant government interest.

Accordingly, the district court entered a carefully circumscribed preliminary injunction in favor of Plaintiffs. Specifically, the district court enjoined enforcement of Paragraph 1 of the Order against Plaintiffs “to the extent he or she is otherwise lawfully seeking to distribute and/or orally advocate the message contained in [Plaintiffs’ pamphlets]” in the Restricted Areas. But the district court expressly left the remainder of the Order in place.

Following entry of the preliminary injunction, the Judicial District moved to stay the injunction pending appeal pursuant to Rule 62(c) of the Federal Rules of Civil Procedure. In its motion to stay, the Judicial District introduced evidence that— subsequent to entry of the preliminary injunction—protesters had “descended on the Courthouse Plaza” and engaged in a pattern of disruptive and inappropriate behavior, including erecting canopies, harassing citizens seeking to enter the Courthouse, damaging the Courthouse landscaping, yelling and taunting court personnel, and posting signs in the planters and on the flagpoles in the Plaza. The Judicial District argued that a stay of the injunction was appropriate because protesters had been “emboldened” by the injunction to violate even the portions of the Order not subject to the injunction, thereby irreparably harming the Judicial District. The district court declined to stay the injunction, finding the Judicial District had not demonstrated a likelihood of success on appeal because the harm identified was not caused by the injunction. The district court reasoned the Judicial District and Denver were free to enforce the Order against the parties engaging in the complained-of disruptive behavior because such behavior was unlawful and not protected by the narrow injunction issued by the court with respect to Plaintiffs’ activities only.

The Judicial District now appeals. Exercising jurisdiction pursuant to 28 U.S.C. § 1292(a)(1), we affirm.

II. DISCUSSION

On appeal, the Judicial District raises two arguments. First, it asserts the district court erred when it concluded the Plaintiffs had demonstrated a likelihood of success in establishing the Restricted Areas are public fora. Second, the Judicial District argues the district court incorrectly applied strict scrutiny when evaluating the Order. As a result, the Judicial District asks this court to reverse the district court’s entry of the preliminary injunction and remand for further proceedings.

We review the district court’s grant of a preliminary injunction for abuse of discretion. Planned Parenthood of Kan. & Mid-Mo. v. Moser, 747 F.3d 814, 822 (10th Cir. 2014). “A district court abuses its discretion when it commits an error of law or makes clearly erroneous factual findings.” Id.

A. Scope of Review

Before addressing the merits of the parties’ arguments, we pause to clarify the scope of our review. The district court granted a narrow preliminary injunction drafted to address Plaintiffs’ First Amendment concerns related to their specific expressive activities. Although Plaintiffs asked the district court to prohibit enforcement of the entire Order, the court enjoined only the first paragraph, which imposes a complete ban on First Amendment activities—picketing, pamphleteering, protesting—within the Restricted Areas. The district court left in place the rest of the Order, including the prohibitions against obstructing Courthouse entrances, erecting structures, and using sound amplification equipment in the Restricted Areas.

The district court further limited the scope of the preliminary injunction by enjoining the first paragraph of the Order only as to Plaintiffs’ specific pamphleteering activities. In fact, the court enjoined enforcement of the Order only as to Plaintiffs’ distribution and discussion of two specifically identified pamphlets. The Judicial District remains free to enforce the first paragraph of the Order—even against Plaintiffs—for all other First Amendment activities within the Restricted Areas.

Finally, the district court limited the geographic scope of the injunction. Although the Order prohibits First Amendment activity both inside and outside the Courthouse, the district court enjoined enforcement of Paragraph 1 as to Plaintiffs only outside the Courthouse, leaving the entirety of the Order intact within the Courthouse. And the district court did not enjoin enforcement of any part of the Order within those portions of the Restricted Areas dedicated to Courthouse landscaping and security features. Thus, the Order continues to prohibit all expressive activity in the planter boxes or other landscaping and in the gravel security areas. Accordingly, the features of the Restricted Area to which the preliminary injunction applies are limited to (1) the arced walkway running south from Colfax Avenue between the gravel security area (to the west of the walkway) and a raised planter (to the east of the walkway) and ending at the Patio area at the main entrance on the east side of the Courthouse; 2 and (2) the Patio area at the main entrance. 3

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2 As discussed, the Order’s prohibition on expressive activities in the planter and gravel security areas were not enjoined by the district court.

3 The evidence presented about the geographic layout and physical features of the Restricted Area consisted primarily of approximately fifteen photographs. Because the record contains little testimony about the photographs, we rely on our own review of them to describe the Restricted Areas. In particular, it is unclear whether and to what extent the Restricted Areas include the sidewalk running along Fox Street on the west side of the Courthouse. The exhibit appears to highlight some areas of the sidewalk, but counsel for the Judicial District conceded at oral argument that it would be “constitutionally questionable” to prevent speech on a public sidewalk, and then indicated “[t]hat is precisely why the order here does not extend that far.” Therefore, we do not treat the Fox Street sidewalk as part of the Restricted Areas for purposes of our analysis.
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Our task in this appeal is to determine whether the district court abused its discretion when, based on the record before it at the preliminary injunction hearing, it issued this narrow, targeted injunction. But the Judicial District asks us to consider events occurring after the preliminary injunction hearing to determine whether the district court abused its discretion in issuing the preliminary injunction. Specifically, the Judicial District points to evidence introduced during the Rule 62(c) hearing on the motion to stay the injunction pending appeal, which indicated that following the injunction, protestors had engaged in a series of inappropriate and disruptive behaviors. Some of these behaviors included harassing court personnel seeking to enter the Courthouse, erecting canopies and signs, and trampling Courthouse landscaping. According to the Judicial District, these post-injunction events demonstrate the “concrete concerns” motivating the creation of the Restricted Areas and therefore should have been considered by the district court.

Although we share the Judicial District’s concern about the disruptions created by some protestors following issuance of the injunction, these post-injunction events are not relevant to our resolution of this interlocutory appeal for two reasons. First, this evidence relates to events occurring after the preliminary injunction issued, and therefore none of it was presented to the district court at the hearing. We will not hold that the district court abused its discretion based on evidence not before it when it ruled. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998) (noting the general principle, in the context of de novo review of a summary judgment disposition, that we conduct our review “from the perspective of the district court at the time it made its ruling, ordinarily limiting our review to the materials adequately brought to the attention of the district court by the parties”); Theriot v. Par. of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999) (“An appellate court may not consider . . . facts which were not before the district court at the time of the challenged ruling.”). Cf. Ambus v. Granite Bd. of Educ., 975 F.2d 1555, 1569 (10th Cir. 1992) (“[W]e will not reverse the grant of summary judgment . . . based on evidence not before the district court.”). Accordingly, our review is limited to the evidence before the district court at the time of the preliminary injunction hearing, and we will not consider post-injunction events.

Second, even if we were to consider the post-decision evidence, it would not alter our analysis. The evidence the Judicial District relies on to demonstrate the negative effects of the preliminary injunction, in fact, does not implicate the injunction at all. As discussed, the preliminary injunction enjoins enforcement of Paragraph 1 of the Order specifically against Plaintiffs’ pamphleteering activities in certain parts of the Restricted Areas. The district court expressly allowed the Judicial District to continue enforcing the entire Order as to all other parties and all other First Amendment activities in the Restricted Areas. Importantly, the preliminary injunction does not affect the Judicial District’s ability to enforce the Order against any protestors, including the Plaintiffs, who engage in disruptive behaviors. For example, the injunction does not prohibit the Judicial District from taking action against protestors who obstruct Courthouse entrances, damage the Courthouse landscaping, or erect structures. All of this behavior remained prohibited by the Order after issuance of the injunction. In short, nothing in the preliminary injunction before us on appeal interferes with the Judicial District’s or Denver’s ability to enforce the Order against anyone, including Plaintiffs, engaging in such behavior.

The evidence of post-injunction bad behavior of some protestors may be relevant on remand to a motion to modify the injunction4 or to the district court’s ultimate decision on whether to issue a permanent injunction. But for the purposes of this appeal, we limit our review to the evidence before the district court at the time it issued the preliminary injunction.

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4 As the district court noted, the Judicial District did not move to modify the preliminary injunction based on changed circumstances. See Fed. R. Civ. P. 60(b)(5) (allowing a party to obtain relief from a judgment or order when “applying [the judgment or order] prospectively is no longer equitable”); Horne v. Flores, 557 U.S. 433, 447 (2009) (noting that under Rule 60(b)(5) “[t]he party seeking relief bears the burden of establishing that changed circumstances warrant relief”).
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B. Abuse of Discretion

We now turn our attention to the question of whether the district court abused its discretion when it issued the preliminary injunction.

To obtain a preliminary injunction the moving party must demonstrate: (1) a likelihood of success on the merits; (2) a likelihood that the moving party will suffer irreparable harm if the injunction is not granted; (3) the balance of equities is in the moving party’s favor; and (4) the preliminary injunction is in the public interest.

Republican Party of N.M. v. King, 741 F.3d 1089, 1092 (10th Cir. 2013). In the First Amendment context, “the likelihood of success on the merits will often be the determinative factor” because of the seminal importance of the interests at stake. Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1145 (10th Cir. 2013) (internal quotation marks omitted); see also Heideman v. S. Salt Lake City, 348 F.3d 1182, 1190 (10th Cir. 2003) (“[T]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”).

1. The district court did not abuse its discretion in finding the second, third, and fourth factors weighed in Plaintiffs’ favor.

Here, the district court found the second (irreparable harm), third (balance of equities), and fourth (public interest) factors weighed in Plaintiffs’ favor in light of the important First Amendment interests at stake. As an initial matter, the Judicial District has not challenged the district court’s determination as to these factors beyond a single footnote in its opening brief stating it had challenged them before the district court. A party’s offhand reference to an issue in a footnote, without citation to legal authority or reasoned argument, is insufficient to present the issue for our consideration. See San Juan Citizens All. v. Stiles, 654 F.3d 1038, 1055–56 (10th Cir. 2011). Accordingly, the Judicial District has waived any challenge to the district court’s findings related to the elements of irreparable harm, the balance of equities, and the public interest. But even if the Judicial District had properly challenged these factors on appeal, we would nevertheless affirm the district court’s conclusion that they weigh in Plaintiffs’ favor.

The Supreme Court has instructed that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976); see also Awad v. Ziriax, 670 F.3d 1111, 1131 (10th Cir. 2012) (“[W]hen an alleged constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.”). There is no dispute that Plaintiffs’ pamphleteering constitutes First Amendment activity. See McCullen v. Coakley, 134 S. Ct. 2518, 2536 (2014) (recognizing that one-on-one communication and leafletting are First Amendment-protected activities). And the Judicial District does not dispute that the Order would bar Plaintiffs from engaging in their pamphleteering in the Restricted Areas. Accordingly, the district court did not abuse its discretion in finding that the factor of irreparable harm weighs in Plaintiffs’ favor.

The third factor—balance of equities—also tips in Plaintiffs’ favor. Before the district court, Plaintiffs proffered testimony that the Order would substantially impair their ability to convey their intended message to their target audience because it would prevent Plaintiffs from approaching potential jurors and engaging in a meaningful discussion of jury nullification. The district court also heard testimony from Mr. Steadman that Plaintiffs’ distribution of jury nullification literature and one-on-one discussions with potential jurors did not present a security risk. And the Judicial District presented no evidence that Plaintiffs’ activities otherwise interfered with Courthouse functions. On this record, the district court did not abuse its discretion in finding the balance of equities weighed in favor of Plaintiffs. See Awad, 670 F.3d at 1132 (“Delayed implementation of a [governmental] measure that does not appear to address any immediate problem will generally not cause material harm, even if the measure were eventually found to be constitutional and enforceable.”).

As to whether the preliminary injunction is in the public interest, we agree with the district court that “it is always in the public interest to prevent the violation of a party’s constitutional rights.” Id. (internal quotation marks omitted); Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221, 1237 (10th Cir. 2005) (“Vindicating First Amendment freedoms is clearly in the public interest.”). The district court did not abuse its discretion in finding the public interest was served by issuing the preliminary injunction to prevent the violation of Plaintiffs’ First Amendment rights.

Thus, we agree the second, third, and fourth factors weigh in Plaintiffs’ favor. The only remaining question, then, is whether the district court abused its discretion in finding Plaintiffs demonstrated a likelihood of success on the merits. 5 Specifically, we must determine whether the Order violated Plaintiffs’ First Amendment right to distribute jury nullification pamphlets and engage in one-on-one conversations with individuals entering and leaving the Courthouse.

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5 The Tenth Circuit has modified the preliminary injunction test when the moving party demonstrates that the second, third, and fourth factors “tip strongly” in its favor. See Oklahoma ex rel. Okla. Tax Comm’n v. Int’l Registration Plan, Inc., 455 F.3d 1107, 1113 (10th Cir. 2006). “In such situations, the moving party may meet the requirement for showing success on the merits by showing that questions going to the merits are so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation.” Id. (internal quotation marks omitted). But because we conclude the district court did not abuse its discretion in finding Plaintiffs demonstrated a likelihood of success on the merits, we need not decide whether this more lenient test applies.
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2. On this record, the district court did not abuse its discretion in finding Plaintiffs demonstrated a likelihood of success on the merits.

To demonstrate a violation of their First Amendment rights, Plaintiffs must first establish that their activities are protected by the First Amendment. See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797 (1985). If so, a court must identify whether the challenged restrictions impact a public or nonpublic forum, because that determination dictates the extent to which the government can restrict First Amendment activities within the forum. See id. Finally, courts must determine whether the proffered justifications for prohibiting speech in the forum satisfy the requisite standard of review. Id. We address each element in turn.

a. Plaintiffs’ activities are protected by the First Amendment

The Supreme Court recently reaffirmed that pamphleteering and one-on-one communications are First-Amendment-protected activities. See McCullen, 134 S. Ct. at 2536. The Court “observed that one-on-one communication is the most effective, fundamental, and perhaps economical avenue of political discourse” and that “no form of speech is entitled to greater constitutional protection” than leafletting. Id. (internal quotation marks and alteration omitted). The Court went on to state, “[w]hen the government makes it more difficult to engage in these modes of communication, it imposes an especially significant First Amendment burden.” Id. Thus, Plaintiffs’ activities are protected by the First Amendment.

b. The district court did not abuse its discretion by assuming for purposes of analysis that the Restricted Areas are public fora

To properly place the district court’s decision in context, we begin with a brief discussion of the significance of forum status to the protection afforded under the First Amendment to public speech on government property. We then review the argument presented by the Judicial District to the district court regarding the forum status of the Restricted Areas here. Because the Judicial District either made a strategic decision to forgo any argument that the Restricted Areas are nonpublic fora, or inadequately presented that argument to the district court, we conclude the argument is waived. As a result, the district court did not abuse its discretion by scrutinizing the Order under public forum analysis for purposes of the preliminary injunction motion.

Turning now to the constitutional restrictions on speech, our analysis is guided by Plaintiffs’ wish to engage in First Amendment-protected activity on government property. “Nothing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker’s activities.” Cornelius, 473 U.S. at 799–800. But in some instances, the public may have acquired by tradition or prior permission the right to use government property for expressive purposes. See id. at 802. To determine when and to what extent the Government may properly limit expressive activity on its property, the Supreme Court has adopted a range of constitutional protections that varies depending on the nature of the government property, or forum. Id. at 800.

The Court has identified three types of speech fora: the traditional public forum, the designated public forum, and the nonpublic forum. Id. at 802. Traditional public fora are places that by long tradition have been open to public assembly and debate. See id.; Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983) (“At one end of the spectrum are streets and parks which ‘have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.’” (quoting Hague v. Comm. for Indus. Org., 307 U.S. 496, 515 (1939))). In these traditional public fora, the government’s right to “limit expressive activity [is] sharply circumscribed.” Id. A designated public forum is public property, not constituting a traditional public forum, which the government has intentionally opened to the public for expressive activity. Id. The government is not required to retain the open character of the property indefinitely, but “as long as it does so, it is bound by the same standards as apply in a traditional public forum.” Id. at 46. If the property is not a traditional public forum and it has not been designated as a public forum, it is a nonpublic forum. “Access to a nonpublic forum . . . can be restricted as long as the restrictions are ‘reasonable and are not an effort to suppress expression merely because public officials oppose the speaker’s view.’” 6 Cornelius, 473 U.S. at 800 (brackets omitted) (quoting Perry Educ., 460 U.S. at 46).

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6 Not relevant to this appeal, the Supreme Court has also recognized that the government can create a “limited public forum” by allowing “selective access to some speakers or some types of speech in a nonpublic forum,” while not opening “the property sufficiently to become a designated public forum.” Summum v. Callaghan, 130 F.3d 906, 916 (10th Cir. 1997) (citing Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829–30 (1995)).
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Because the nature of the forum dictates the standard of scrutiny with which restrictions on speech are reviewed, courts typically begin the analysis of a challenge to restrictions on speech involving government property by identifying the nature of the forum involved. See, e.g., Doe v. City of Albuquerque, 667 F.3d 1111, 1128 (10th Cir. 2012). But the procedural posture of this appeal restricts the scope of our inquiry. That is, we need not determine whether the Restricted Areas are, in fact, public or nonpublic fora to resolve this interlocutory appeal. Rather, our task is to determine whether the district court abused its discretion when it found, based on the evidence and arguments presented, that Plaintiffs had demonstrated a likelihood of success on the merits. See Atchison, Topeka & Santa Fe Ry. Co. v. Lennen, 640 F.2d 255, 261 (10th Cir. 1981) (“It is only necessary that plaintiffs establish a reasonable probability of success, and not an ‘overwhelming’ likelihood of success, in order for a preliminary injunction to issue.”). Because the Judicial District waived any argument that the Restricted Areas are nonpublic fora, we conclude the district court did not abuse its discretion by evaluating the Plaintiffs’ likelihood of success under the scrutiny applicable to public fora.

To explain our rationale for this conclusion, we track the evolution of the Judicial District’s arguments in the district court regarding the forum status of the Restricted Areas. Plaintiffs argued in their motion for preliminary injunction that the entire Plaza, including the Restricted Areas, constitutes a traditional public forum. Denver also stipulated with Plaintiffs that the Plaza is a public forum.

In response to the motion for preliminary injunction, the Judicial District claimed Plaintiffs were unlikely to prevail on the merits of their First Amendment claim because “[i]rrespective of Denver’s view of the courthouse plaza, it is not a traditional public forum. And even if it were, the [Order] comes nowhere near banning all expressive activity in that area. To the contrary, it is a reasonable time, place, and manner restriction.” But the Judicial District did not then provide any support for its assertion that the Plaza is not a public forum. Rather, it first claimed that Plaintiffs lacked standing to challenge the Order and then continued its argument under the heading, “This Court need not decide whether the plaza is a traditional public forum for the purposes of this proceeding.” Under that heading, the Judicial District asserted that the Stipulation between the Plaintiffs and Denver did not bind the Judicial District or the district court and that therefore “[t]he status of the plaza is an open question.” But, again, rather than present argument on the correct forum status of the Plaza or ask the district court to reach a contrary conclusion, the Judicial District stated the district court need not identify the precise forum status of the Restricted Areas “because [the Order] would satisfy even the strictest test.” That is, the Judicial District claimed that “[e]ven if Plaintiffs were correct that the entire plaza is a traditional public forum,” and thus subject to a higher standard of review, the Order was constitutional as a reasonable time, place, and manner restriction. The Judicial District maintained this tactical approach through oral argument on the motion for a preliminary injunction.

After the close of evidence at the hearing on Plaintiffs’ motion for a preliminary injunction, the district court attempted to clarify the Judicial District’s position:

THE COURT: In your briefing the Attorney General took the position that it doesn’t matter whether the area in question is a public forum or a non-public forum area, because the Attorney General believes that you can establish the grounds necessary under the standards to apply in either case.

JUDICIAL DIST.: To be clear, our position is that this is not a public forum. However, that is a factually intensive question that I don’t think the Court has been presented with sufficient evidence to decide today.

THE COURT: Well, I have a stipulation from the owner of the property that it is a public forum area.

JUDICIAL DIST.: I understand that. I don’t think that binds either [the Judicial District] or this Court.

THE COURT: Well, that’s something I need to decide, right?

JUDICIAL DIST.: Not necessarily.

THE COURT: Okay. But here’s what I am getting at. Your position is, whether it’s public or non-public, you believe that the . . . Plaza Order . . . is sufficiently narrowly tailored to meet the concerns of ingress and egress to the courthouse and threat to the public safety. Is that your position?

JUDICIAL DIST.: Yes. Our position is that the order satisfies time, place, and manner requirements. . . .

The discussion then proceeded under the assumption that the Order impacted a public forum and therefore had to be narrowly tailored. Recall that the government has broad discretion to restrict expressive activity in a nonpublic forum, irrespective of whether the restrictions are narrowly tailored. Perry Educ., 460 U.S. at 46. But, as will be discussed in more detail below, even content-neutral restrictions on speech in a public forum—whether a traditional public forum or a designated public forum—must be narrowly tailored to advance a significant government interest. See id. at 45–46.

Consistent with its acquiescence to the district court’s application of a public forum analysis at the preliminary injunction stage, the Judicial District limited its oral argument on the motion for preliminary injunction to the proper definition of “narrowly- tailored.” Tellingly, the Judicial District provided no argument relevant to whether the Restricted Area was, in fact, a public forum, or that the restrictions did not have to be narrowly tailored at all because they impacted only nonpublic fora. Instead, the Judicial District conceded that the evidence was insufficient to allow the district court to determine the forum status of the Restricted Areas. But it claimed the district court could proceed to the merits under a public forum analysis nevertheless, because the result would be the same whether the Restricted Areas were public or nonpublic fora. That is, the Judicial District argued the district court could assume for purposes of analysis that the Restricted Areas are public fora. And the district court did as suggested in its Order Granting Motion for Preliminary Injunction.

In the Preliminary Injunction Order’s discussion of the likelihood that Plaintiffs will succeed on the merits, the district court discussed forum in a section titled, “Is the Courthouse Plaza a Public Forum?” In this section, the district court considered the significance of the nature of the forum, the disagreement between Denver and the Judicial District on that issue, and the Stipulation between Denver and Plaintiffs that the Restricted Areas are public fora. Relying in part on the Stipulation, the district court concluded Plaintiffs are “likely to prevail in their claim that the Courthouse Plaza is at least a designated public forum, if not a traditional public forum.” But the district court also notes “the Second Judicial District has not specifically argued for a finding that the Courthouse Plaza is a nonpublic forum. Rather, it says that ‘resolving [the type of forum at issue] is not necessary for the purposes of this proceeding because the [Plaza Order] would satisfy even the strictest test.’”

Our review of the record is consistent with the district court’s assessment of the Judicial District’s argument. During the briefing and argument to the district court in opposition to Plaintiffs’ motion for preliminary injunction, the Judicial District never provided legal argument supporting its conclusory statement that the Restricted Areas are nonpublic fora. As noted, it instead indicated the forum status of the Plaza was an open question the district court need not decide, and further conceded it was a question the district court could not decide based on the evidence presented. In sum, the Judicial District made the strategic decision to accept Plaintiffs’ characterization of the Restricted Areas as a public forum for purposes of analysis and to present only an argument that the Order is constitutional under the scrutiny applicable to restrictions of speech in public fora. And the Judicial District maintained that position throughout the district court proceedings.

The Judicial District filed a motion in the district court to stay the injunction pending appeal, in which it stated “courthouse plazas are not traditional public fora,” and cited, without further analysis, Hodge v. Talkin, 799 F.3d 1145 (D.C. Cir. 2015), a new decision at the time holding the plaza of the Supreme Court building is not a public forum. But again, the Judicial District did not seek a ruling that the Restricted Areas are nonpublic fora or provide reasoned analysis to support such a claim. Consistent with its earlier strategy, the Judicial District argued that “even if the [Courthouse Plaza] were a traditional public forum,” the district court applied the wrong level of scrutiny. Significantly, the Judicial District never claimed it could bar or reasonably restrict speech in the Restricted Areas because they were nonpublic fora; it argued the district court had erred because “[s]trict scrutiny applies only to content-based restrictions on speech in a public forum.”

For the first time on appeal, the Judicial District provides substantive argument for the claim that the Restricted Areas are nonpublic fora and, therefore, the district court should have considered only whether the content-neutral restrictions contained in the Order were reasonable. When a party pursues a new legal theory for the first time on appeal, we usually refuse to consider it. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127–28 (10th Cir. 2011); Lone Star Steel Co. v. United Mine Workers of Am., 851 F.2d 1239, 1243 (10th Cir. 1988) (“Ordinarily, a party may not lose in the district court on one theory of the case, and then prevail on appeal on a different theory.”).

As noted, the Judicial District was aware of the “open question” with respect to the forum status of the Restricted Areas but made the strategic decision to forgo presenting meaningful argument on this point. In its response brief to Plaintiffs’ motion for preliminary injunction filed with the district court, the Judicial District cited three cases in support of its statement that the forum question remains open. But it provided no argument incorporating those decisions into a cogent legal analysis of the Restricted Areas as nonpublic fora. See United States v. Wooten, 377 F.3d 1134, 1145 (10th Cir. 2004) (“The court will not consider such issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation.” (internal quotation marks omitted)). And although forum status is a fact-intensive inquiry, the Judicial District failed to explain how the particular facts here color that analysis. Cf. Fed. R. App. P. 28(a)(8)(A) (providing that appellant’s opening brief must contain an argument section that includes “appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies”).

Thus, the Judicial District has waived this issue, at least for purposes of our review of the preliminary injunction order. Richison, 634 F.3d at 1127 (explaining that if a party intentionally chooses not to pursue an argument before the district court, “we usually deem it waived and refuse to consider it”). 7 And the forum status issue is not properly before us even if we generously conclude the Judicial District presented alternative arguments to the district court that (1) the Restricted Areas are not public fora; or (2) even if the Restricted Areas are public fora, the Order can survive the applicable level of scrutiny. Although the Judicial District presented cogent legal argument on the second issue, it failed to present reasoned argument on the first to the district court. See Ark Initiative v. U.S. Forest Serv., 660 F.3d 1256, 1263 (10th Cir. 2011) (holding that the “scant discussion” of an issue in the district court “appear[ed] as an afterthought, and [did] not meet the standard for preserving an issue for review”).

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7 Even if this argument had been merely forfeited, it would nevertheless be an inappropriate basis for reversal because the Judicial District has not argued plain error. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011) (“And the failure to do so —the failure to argue for plain error and its application on appeal— surely marks the end of the road for an argument for reversal not first presented to the district court.”). Nor are we inclined to exercise our discretion to consider the forum status issue despite the failure to raise it to the district court because we agree with the Judicial District that the preliminary injunction record is inadequate for that purpose. Cf. Cox v. Glanz, 800 F.3d 1231, 1244–45 (10th Cir. 2015) (exercising discretion to consider forfeited argument on “clearly established” prong of qualified immunity).
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Our conclusion that the Judicial District failed to adequately present this issue to the district court is further supported by the district court’s view that “the Second Judicial District ha[d] not specifically argued for a finding that the Courthouse Plaza is a nonpublic forum.” Id. (“Not surprisingly, the district court never addressed” the issue.). Accordingly, the argument that the Restricted Areas are nonpublic fora was waived either by the Judicial District’s strategic decision not to present it, or by the Judicial District’s failure to adequately brief the issue. As such, the district court’s application of a public forum analysis is not a legitimate ground on which to reverse the preliminary injunction order.

We now address the only other challenge the Judicial District makes to the preliminary injunction: that the district court abused its discretion by applying the wrong test, even if the Restricted Areas are public fora.

c. The district court did not apply the wrong standard to the content-neutral restrictions imposed by the Order

Having determined the district court did not abuse its discretion by treating the Restricted Areas as public fora for purposes of analysis, we next consider whether the district court abused its discretion when it found Plaintiffs had demonstrated a likelihood of success on the question of whether the Order violated their constitutional rights under the relevant First Amendment standards. 8 In a public forum, the government cannot ban all expressive activity. Perry Educ., 460 U.S. at 45. But even in a public forum, the government can restrict speech through “content-neutral time, place, and manner restrictions that: (a) serve a significant government interest; (b) are narrowly tailored to advance that interest; and (c) leave open ample alternative channels of communication.” Doe, 667 F.3d at 1130–31. Content-based restrictions, however, “must satisfy strict scrutiny, that is, the restriction must be narrowly tailored to serve a compelling government interest.” Summum, 555 U.S. at 469.

The Judicial District argues the district court abused its discretion by applying an incorrect legal standard. Specifically, the Judicial District contends the district court applied the stringent strict scrutiny analysis reserved for content-based restrictions. And because the Order imposes only content-neutral restrictions, the Judicial District claims this was an abuse of discretion. Although we agree the restrictions are content-neutral, we are not convinced the district court applied the more stringent standard applicable to content-based restrictions.

The district court explained that under the relevant standard, “[t]he state may . . . enforce regulations of the time, place, and manner of expression which [1] are content- neutral, [2] are narrowly tailored to serve a significant government interest, and [3] leave open ample alternative channels of communication.” On its face, then, the district court appears to have invoked the correct legal standard. Cf. Doe, 667 F.3d at 1130–31 (same). Nevertheless, the Judicial District argues that in considering whether the restrictions are “narrowly tailored,” the district court inappropriately applied the more demanding standard applicable to content-based regulations.

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8 “Government restrictions on speech in a designated public forum are subject to the same strict scrutiny as restrictions in a traditional public forum.” Pleasant Grove City v. Summum, 555 U.S. 460, 470 (2009). Thus, our analysis does not turn on whether the Restricted Areas are considered traditional or designated public fora.
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The term “narrowly tailored” appears in the tests for both content-based and content-neutral regulations on speech. See Doe, 667 F.3d at 1130–31 (indicating a content-neutral regulation must be “narrowly tailored” to advance a significant government interest); Pleasant Grove, 555 U.S. at 469 (stating that content-based restrictions “must be narrowly tailored to serve a compelling government interest”) (emphasis added)). And, as the Judicial District correctly notes, there are subtle differences in the way courts apply the concept of narrow tailoring in the two contexts. For the purposes of a content-neutral regulation, “the requirement of narrow tailoring is satisfied so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation, and does not burden substantially more speech than is necessary to further the government’s legitimate interests.” Wells v. City & Cty. of Denver, 257 F.3d 1132, 1148 (10th Cir. 2001) (ellipsis and internal quotation marks omitted). In contrast, a content-based restriction is narrowly tailored only if it is the least restrictive means of achieving the government’s compelling objective. See Ashcroft v. ACLU, 542 U.S. 656, 666 (2004); United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (2000).

According to the Judicial District, the district court considered alternatives to the Order that might have been employed to achieve the Judicial District’s objectives, and such consideration proves the district court applied the “least restrictive means” standard. In the Judicial District’s view, any inquiry into alternative means of achieving the government objective is inappropriate where, like here, the restrictions are content-neutral, rather than content-based, and thus not subject to the least restrictive alternative form of narrow tailoring. We disagree.

The Supreme Court has not discouraged courts from considering alternative approaches to achieving the government’s goals when determining whether a content- neutral regulation is narrowly tailored to advance a significant government interest. Although the Court has held that a content-neutral regulation “need not be the least restrictive or least intrusive means of serving the government’s interests,” it has also explained that “the government still may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.” McCullen, 134 S. Ct. at 2535 (internal quotation marks omitted). And when considering content-neutral regulations, the Court itself has examined possible alternative approaches to achieving the government’s objective to determine whether the government’s chosen approach burdens substantially more speech than necessary. Id. at 2537–39. That is, the government may not “forgo[] options that could serve its interests just as well,” if those options would avoid “substantially burdening the kind of speech in which [Plaintiffs’] wish to engage.” Id. at 2537; id. at 2539 (“The point is not that [the government] must enact all or even any of the proposed [alternative approaches]. The point is instead that the [government] has available to it a variety of approaches that appear capable of serving its interests, without excluding individuals from areas historically open for speech and debate.”). Thus, “[t]o meet the requirement of narrow tailoring [in the context of content-neutral regulations], the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier.” Id. at 2540.

As a result, we cannot conclude the district court applied the wrong legal standard merely because it considered whether the Judicial District had options other than the complete ban on speech contained in Paragraph 1 of the Order that would equally serve its interests. We now turn our attention to whether, under the standard applicable to content-neutral regulations in a public forum, the district court abused its discretion when it found Plaintiffs had demonstrated a likelihood of success on the question of whether the Order survives constitutional scrutiny.

d. The district court did not abuse its discretion by concluding that Plaintiffs were likely to succeed on the merits

As discussed, for purposes of the preliminary injunction analysis, the Judicial District acquiesced in the district court’s acceptance of Plaintiffs’ characterization, and Denver’s Stipulation, that the Restricted Areas are public fora. Under that assumption, we can easily conclude the district court did not abuse its discretion in finding Plaintiffs were likely to succeed on their claim that a complete ban of their expressive activities violates the First Amendment. Our resolution of this issue is informed by the Supreme Court’s recent decision in McCullen, which is highly analogous.

In McCullen, the Supreme Court considered the constitutionality of a state law creating thirty-five-foot buffer zones around the entrances of facilities where abortions are performed. Id. at 2525. The McCullen plaintiffs wished to approach and talk to women outside such facilities —to engage in “sidewalk counseling”— in an attempt to dissuade the women from obtaining abortions. Id. at 2527. The buffer zones forced the McCullen plaintiffs away from their preferred positions outside the clinics’ entrances, thereby hampering their sidewalk counseling efforts. Id. at 2527–28. The McCullen plaintiffs brought suit, arguing the buffer zones restricted their First Amendment rights and seeking to enjoin enforcement of the statute creating the buffer zones. Id. at 2528. After the First Circuit upheld the statute as a reasonable content-neutral time, place, and manner restriction, the Supreme Court granted certiorari. Id.

The Court began its analysis by recognizing that the buffer-zone statute operated to restrict speech in traditional public fora: streets and sidewalks. Id. at 2529. It then held the buffer-zone statute was a content-neutral restriction because violations of the act depended not on what the plaintiffs said, but on where they said it. Id. at 2531 (“Indeed, petitioners can violate the Act merely by standing in a buffer zone, without displaying a sign or uttering a word.”). The Court then proceeded to apply the test for content-neutral restrictions in a public forum, assessing whether the buffer-zone statute was “narrowly tailored to serve a significant governmental interest.” Id. at 2534. Because the plaintiffs had not challenged the significance of the government’s asserted interests, the Court’s analysis largely focused on the question of whether the statute was narrowly tailored to serve that interest.

The Court noted the buffer zones placed serious burdens on the plaintiffs’ speech activities. Id. at 2535. Specifically, by preventing the plaintiffs from engaging in quiet, one-on-one conversations about abortion and distributing literature, the buffer zones “operate[d] to deprive petitioners of their two primary methods of communicating with patients.” Id. at 2536. Although the First Amendment does not guarantee a right to any particular form of speech, the Supreme Court explained that some forms of speech -one-on-one conversation and leafletting on public sidewalks— “have historically been more closely associated with the transmission of ideas than others.” Id. The Court held that “[w]hen the government makes it more difficult to engage in [one-on-one communication and leafletting], it imposes an especially significant First Amendment burden.” Id.

The Court also rejected the idea that the buffer zones were constitutional because they left ample alternative channels for communication. Id. at 2536–37. In McCullen, the size of the buffer zone made it difficult to distinguish persons headed to the clinic from passersby “in time to initiate a conversation before they enter[ed] the buffer zone.” Id. at 2535. As a result, the plaintiffs were often forced to raise their voices from outside the buffer zone once they identified the clinic patients, thereby forcing a mode of communication contrary to their compassionate message and preventing them from distributing pamphlets. Id. at 2535-36. Where the plaintiffs wished to engage in quiet conversations with women seeking abortions and not in noisy protest speech, the Court held it was “no answer to say that petitioners can still be ‘seen and heard’ by women within the buffer zones.” Id. at 2537. Instead, the Supreme Court concluded the thirty-five foot buffer zones had “effectively stifled petitioners’ message” by prohibiting the plaintiffs’ chosen means of communication. Id.

Finally, the Court held the buffer zones burdened substantially more speech than necessary to achieve the state’s asserted interests in public safety, preventing harassment of women and clinic staff seeking entrance to clinics, and preventing deliberate obstruction of clinic entrances. Id. Although the Court acknowledged the importance of these interests, it determined the state’s chosen method of achieving them —categorically excluding most individuals from the buffer zones— was not narrowly tailored. Id. at 2537–41. That is, the Court held the government had not demonstrated “that alternative measures that burden substantially less speech would fail to achieve the government’s interests.” Id. at 2540. In so doing, the Court expressly rejected the argument that the government could choose a particular means of achieving its interests merely because that method was easier to administer. Id.

Here, the Order imposes substantially similar restrictions on Plaintiffs’ First Amendment activities as the buffer-zone statute did in McCullen. Specifically, the Order imposes a categorical ban on First Amendment activity within the Restricted Areas. This ban effectively destroys Plaintiffs’ ability to engage in one-on-one communication and leafletting within the Restricted Areas. And the record is silent on whether Plaintiff could adequately identify and thereby engage in their preferred method of communication before the public entered the Restricted Areas. Where the district court’s preliminary injunction analysis was based on a public forum analysis and the record does not contain facts to distinguish McCullen, we cannot conclude that the district court abused its discretion in finding that the Plaintiffs are likely to succeed on the merits of their First Amendment claim.

Moreover, the Judicial District’s asserted interests in banning First Amendment activity in the Restricted Areas are largely identical to the government interests asserted in McCullen: unhindered ingress and egress and public safety. See id. We agree these interests are legitimate. But on this record at least, the district court did not abuse its discretion in concluding the means chosen to achieve those interests —a total ban on expressive activity— is not narrowly tailored, as even content-neutral regulations in a public forum must be. 9

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9 This is not to say that the Judicial District cannot impose content-neutral time, place, and manner restrictions that are narrowly-tailored to advance the significant interests it identifies. Indeed, several of the provisions contained in the Order were not enjoined by the district court. As one example, paragraph 4 of the Order prohibits the use of sound amplification equipment. This type of content-neutral restriction has long been upheld. See Ward v. Rock Against Racism, 491 U.S. 781, 796–97 (1989).
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In summary, the district court did not abuse its discretion by analyzing the issues at the preliminary injunction stage as if the Restricted Areas were public fora, or by considering alternative means of achieving the governmental interests in determining whether the Order is narrowly tailored to serve a significant government interest. Similarly, the district court did not abuse its discretion by finding Plaintiffs were likely to prevail on their claim that the complete prohibition of Plaintiffs’ plans to distribute pamphlets to people in a public forum is unconstitutional. See United States v. Apel, __ U.S. __, 134 S. Ct. 1144, 1154–55 (2014) (Ginsburg, J., concurring) (“When the Government permits the public onto part of its property, in either a traditional or designated public forum, its ‘ability to permissibly restrict expressive conduct is very limited.’” (quoting United States v. Grace, 461 U.S. 171, 177 (1983)).

Nevertheless, because the question of the forum status of the Restricted Areas will remain central to the district court’s permanent injunction analysis on remand, we now address principles relevant to the resolution of this issue. See Cook v. Rockwell Int’l Corp., 618 F.3d 1127, 1142 n.15 (10th Cir. 2010) (“[I]t is proper to . . . decide questions of law raised in this appeal that are certain to arise again . . . in order to guide the district court on remand.”). In doing so, we express no opinion as to the merits of that question.

C. Issues on Remand

To determine whether a permanent injunction should be granted, the district court must reach a final decision on the First Amendment issues in this case. Because the relevant First Amendment test varies according to the nature of the forum involved and because the Judicial District will presumably contest Plaintiffs’ characterization of the Restricted Areas as public fora, the district court is required to first determine the forum status of the Restricted Areas. In resolving this question, the parties must present evidence, and the district court must enter factual findings supporting its conclusion, that each of the Restricted Areas constitutes a traditional public forum, a designated public forum, or a nonpublic forum. See, e.g., Huminski v. Corsones, 396 F.3d 53, 90–92 (2d Cir. 2004) (separately considering the forum status of state courthouses, court lands/grounds, and parking lots); Sammartano v. First Judicial Dist. Ct., 303 F.3d 959, 966–68 (9th Cir. 2002) (concluding plaintiffs were likely to succeed on First Amendment challenge to rule restricting expressive clothing in municipal complex, including courtrooms, because the rule “does not differentiate between courtrooms and other public areas”), abrogated on other grounds by Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008); United States v. Gilbert, 920 F.2d 878, 884 (11th Cir. 1991) (Gilbert I) (holding portions of courthouse grounds were designated public fora, while other parts of the grounds were nonpublic fora). We summarize the relevant precedent on these issues now in an attempt to aid the district court and the parties in this task on remand. In addition, we provide some limited guidance to the district court and the parties on the tension between the Judicial District and Denver over the appropriate use of the Restricted Areas.

1. Traditional Public Fora

The Supreme Court has long recognized “that public places historically associated with the free exercise of expressive activities, such as streets, sidewalks, and parks, are considered, without more, to be public forums.” United States v. Grace, 461 U.S. 171, 177 (1983) (internal quotation marks omitted); see also Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983) (identifying as “quintessential” public fora those spaces that “time out of mind[] have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions”). Here, the Restricted Areas include the arced walkway that runs from the corner of Elati Street and Colfax Avenue in a curved path across the front of the Courthouse to the Patio in front of the main entrance to the Courthouse. The inclusion of this area raises at least a question concerning its status as traditional a public forum.

The Supreme Court has also cautioned, however, that not all streets and sidewalks are traditional public fora. See United States v. Kokinda, 497 U.S. 720, 727 (1990) (discussing a postal sidewalk “constructed solely to provide for the passage of individuals engaged in postal business” from the parking area to the post office door); Greer v. Spock, 424 U.S. 828, 835–37 (1976) (speech restrictions on a military reservation that contained streets and sidewalks). Instead, the particular characteristics of a sidewalk are highly relevant to the inquiry. See Grace, 461 U.S. at 179–80. “The mere physical characteristics of the property cannot dictate” the outcome of the forum analysis. Kokinda, 497 U.S. at 727. Rather, “the location and purpose of a publicly owned sidewalk is critical to determining whether such a sidewalk constitutes a public forum.” Id. at 728–29.

The Supreme Court’s discussion in Grace is likely to be of particular relevance on remand. In Grace, the Court considered whether a federal statute prohibiting expressive activities on the Supreme Court’s grounds could be constitutionally applied to the adjacent public sidewalks. 461 U.S. at 172–73. The Court found the public sidewalks along the perimeter of the grounds were physically indistinguishable from other public sidewalks in Washington, D.C. Id. at 179. “There is no separation, no fence, and no indication whatever to persons stepping from the street to the curb and sidewalks that serve as the perimeter of the Court grounds that they have entered some special type of enclave.” Id. at 180. See also Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 680 (1992) (“[W]e have recognized that the location of property also has a bearing [on whether it is a traditional public forum] because separation from acknowledged public areas may serve to indicate that the separated property is a special enclave, subject to greater restriction.”). In the absence of some physical distinction between typical public sidewalks and the sidewalks making up the perimeter of the Court grounds, the Court in Grace held the perimeter sidewalks were traditional public fora, subject only to those restrictions normally allowed in such spaces. 461 U.S. at 180. Thus, on remand here, the district court must determine whether the evidence supports a finding that the arced walkway is physically distinguishable from other public sidewalks.

But the physical similarity to public sidewalks is not alone determinative of these sidewalks’ forum status. In Kokinda, the Supreme Court held that a sidewalk owned by and in front of a United States Post Office was not a traditional public forum, despite the fact that it was physically identical to a public sidewalk across the parking lot from the post office entrance. 497 U.S. at 727. The Court reasoned the post office sidewalk did not share the characteristics of a sidewalk open to the public at large. Although the public sidewalk formed a public passageway that served as a general thoroughfare, in contrast, “the postal sidewalk was constructed solely to provide for the passage of individuals engaged in postal business.” Id. As a result, the Court held the postal sidewalk was not a traditional public forum. Id. at 729–30. Accordingly, the evidence and findings of fact on remand should be focused on the physical characteristics and the intended and actual use of any sidewalks included in the Restricted Areas.

Importantly, the mere fact a sidewalk abuts a courthouse or its grounds is not determinative of the forum status of the sidewalk. 10 The Grace Court expressly rejected the idea that a traditional public forum could be transformed into a nonpublic forum merely because of its physical proximity to government property. 461 U.S. at 180. The Court stated

[t]raditional public forum property occupies a special position in terms of First Amendment protection and will not lose its historically recognized character for the reason that it abuts government property that has been dedicated to a use other than as a forum for public expression. Nor may the government transform the character of the property by the expedient of including it within the statutory definition of what might be considered a non-public forum parcel of property.

Id.; see also Rodney A. Smolla, 1 Smolla & Nimmer on Freedom of Speech § 8:32 (“With the development of modern public forum doctrine, courts increasingly have come to recognize that they are not immune from the rules set down for other public property.”). In Grace, the Supreme Court concluded, “[w]e are convinced . . . that the [statute], which totally bans the specified communicative activity on the public sidewalks around the Court grounds, cannot be justified as a reasonable place restriction primarily because it has an insufficient nexus with any of the public interests [asserted].” 461 U.S. at 181. Similarly, the fact that the arced walkway abuts the Courthouse here is not determinative alone of its forum status.

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10 The cases relied on by the Judicial District do not support the blanket proposition that all courthouse grounds are automatically nonpublic fora merely because they physically abut a courthouse. Rather, these cases first conclude the grounds are not a traditional public forum and then carefully consider the physical characteristics of the government property, as well as the prior use of that property for expressive activities, to determine its forum status. See Huminski v. Corsones, 396 F.3d 53, 90–92 (2d Cir. 2004) (holding courthouses were nonpublic fora where buildings housing the courts had not been traditionally open to the public for expressive activities and such activities inside the courthouse would likely be incompatible with the purposes the courthouse serves); Sammartano v. First Judicial Dist. Ct., 303 F.3d 959, 966 (9th Cir. 2002) (holding civil complex, including courts and public offices had not “by long tradition or by government fiat” been open to public expression and agreeing with parties that it was a nonpublic forum), abrogated on other grounds by Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008). See also United States v. Gilbert (Gilbert I), 920 F.2d 878, 884–85 (11th Cir. 1991) (considering prior expressive activities on different areas of court grounds and holding some portions had been designated as public fora, while other parts of the grounds were nonpublic fora).
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The district court will also be required to decide the forum status of the Patio before it can apply the proper standard to restrictions on expressive activity in that Restricted Area. The D.C. Circuit recently applied the Court’s forum analysis in Grace to the question of whether the plaza in front of the Supreme Court was a traditional public forum. See Hodge v. Talkin, 799 F.3d 1145, 1158 (D.C. Cir. 2015), petition for cert. filed, 84 U.S.L.W. 3388 (U.S. Jan. 4, 2016) (No. 15-863). The court’s analysis focused on the plaza’s physical characteristics, emphasizing the architectural integration of the plaza with the Supreme Court building itself, as well as the physical separation between the plaza and the perimeter sidewalks. Id. at 1158–59. In particular, the D.C. Circuit relied on evidence that the Supreme Court plaza is elevated from the public sidewalk by a set of marble steps that contrast with the public sidewalk, but match the steps leading to the entrance of the Supreme Court building. It also relied on evidence that the plaza is surrounded by a low wall that matches the wall surrounding the Supreme Court building. Id. at 1158. According to the court, a visitor would be on notice that the pathway to the Supreme Court begins on the plaza. Id. Because the physical characteristics of the plaza indicated an intentional separation from the surrounding sidewalks and because the plaza had not traditionally been a space open for expressive activities, the D.C. Circuit held the Supreme Court plaza was a nonpublic forum. Id. at 1159–60.

Here, the parties should present evidence and the district court should make findings about the physical characteristics of the arced walkway and Patio, with attention to the ways in which each is distinguished from public sidewalks and the public areas of the Plaza. Specifically, the district court should consider whether it would be apparent to a visitor that by entering the Patio he is entering an enclave connected with the Courthouse and whether the use of the arced walkway is limited to courthouse ingress and egress.

?2. Designated Public Fora

If the district court finds that one or more of the Restricted Areas is not a traditional public forum, it must next consider whether the Restricted Area has been nevertheless designated as public fora. The Supreme Court has explained that “a government entity may create ‘a designated public forum’ if government property that has not traditionally been regarded as a public forum is intentionally opened up for that purpose.” Pleasant Grove City v. Summum, 555 U.S. 460, 469 (2009) (holding that placement of certain privately donated permanent monuments in public park while rejecting others constituted government, not public, speech). To create a designated public forum, “the government must make an affirmative choice to open up its property for use as a public forum.” United States v. Am. Library Ass’n, Inc., 539 U.S. 194, 206 (2003) (holding that library’s provision of internet access did not open a designated public forum, but was offered as a technological extension of its book collection). The Court has further cautioned that “[t]he government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse.” Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 802 (1985). See also Walker v. Tex. Div., Sons of Confederate Veterans, Inc., ___ U.S. ___, 135 S. Ct. 2239, 2249–50 (2015) (holding that Texas did not intentionally open its license plates to public discourse). Thus, the government’s intent is the focus of this inquiry. See Cornelius, 473 U.S. at 802; see also Gen. Media Commc’ns, Inc. v. Cohen, 131 F.3d 273, 279 (2d Cir. 1997) (“Governmental intent is said to be the ‘touchstone’ of forum analysis.”), as corrected and reported at 1997 U.S. App. LEXIS 40571, *15 (March 25, 1998).

The Supreme Court has further instructed that it “will not find that a public forum has been created in the face of clear evidence of a contrary intent, nor will [it] infer that the government intended to create a public forum when the nature of the property is inconsistent with expressive activity.” Cornelius, 473 U.S. at 803. If the “principal function of the property would be disrupted by expressive activity,” the Supreme Court is “particularly reluctant” to conclude the government designated it as a public forum. Id. at 804. Consequently, prohibitions on speech within a courthouse have been routinely upheld. 11 See, e.g., Hodge, 799 F.3d at 1158 (upholding statute banning expressive activities within Supreme Court building); Mezibov v. Allen, 411 F.3d 712, 718 (6th Cir. 2005) (“The courtroom is a nonpublic forum.”); Huminski, 396 F.3d at 91 (collecting cases and holding that the interior of a courthouse is not a public forum); Sefick v. Gardner, 164 F.3d 370, 372 (7th Cir. 1998) (“The lobby of the courthouse is not a traditional public forum or a designated public forum, not a place open to the public for the presentation of views. No one can hold a political rally in the lobby of a federal courthouse.”); Berner v. Delahanty, 129 F.3d 20, 26 (1st Cir. 1997) (holding that courtroom is a nonpublic forum).

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11 The preliminary injunction here does not enjoin the Order’s restrictions on speech within the Courthouse.
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Under facts similar to those here, the Seventh Circuit held the plaintiffs had no First Amendment right to distribute jury nullification pamphlets in the lobby of the county courthouse. Braun v. Baldwin, 346 F.3d 761, 764 (7th Cir. 2003) (“[Plaintiffs] have no greater right than a criminal defendant’s lawyer to tell jurors in the courthouse to disobey the judge’s instructions.” (emphasis added)). See also United States v. Ogle, 613 F.2d 233 (10th Cir. 1979) (upholding conviction for jury tampering where the defendant, who did not raise a First Amendment defense, attempted to have jury nullification literature delivered to a juror in a pending case).

Although there is little doubt the interior of a courthouse is a nonpublic forum, the forum status of a courthouse’s exterior is dependent upon the unique facts involved. Compare Grace, 461 U.S. at 182 (acknowledging “necessity to protect persons and property or to maintain proper order and decorum within the Supreme Court grounds,” but striking as unconstitutional a ban on expressive activities on abutting sidewalks), with Cox v. Louisiana, 379 U.S. 559, 562–64, 572–74 (1965) (upholding statute prohibiting demonstration outside a courthouse intended to affect the outcome of pending criminal charges, but reversing defendant’s conviction pursuant to the statute under the circumstances). In determining whether the government “intended to designate a place not traditionally open to assembly and debate as a public forum,” the Supreme Court “has looked to the policy and practice of the government and to the nature of the property and its compatibility with expressive activity.” Walker, 135 S. Ct. at 2250 (internal quotation marks omitted).

Applying these principles, the Eleventh Circuit reached contrary conclusions regarding different portions of the grounds of a federal building housing a federal district court and federal agencies. Gilbert I, 902 F.2d at 884. In Gilbert I, the plaintiff challenged an injunction prohibiting him from using the federal building as his home and from engaging in certain expressive activities in and around the building. The ground level of the federal building included an interior lobby and, outside the lobby doors, a covered portico leading to an uncovered plaza. Id. at 880–81. Because demonstrations had occurred frequently on the uncovered plaza, the Eleventh Circuit held the uncovered plaza had been designated as a public forum. In contrast, it determined the covered portico area was not a public forum. In reaching that conclusion, the court relied in part on the district court’s finding that the Government Services Agency (GSA) had an unwritten policy of excluding demonstrators from the covered portico. Although there was evidence demonstrators had occasionally used the portico during protest activities, the Eleventh Circuit relied on the district court’s finding that these were “isolated instances of undiscovered violations” of the GSA policy and not the intentional “opening of a nontraditional forum for public discourse.” 12 Id. at 884–85.

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12 After the Eleventh Circuit issued this decision, an unrelated security issue caused the GSA to place a row of planters across the uncovered plaza and to issue a statement limiting the public forum to the area between the planters and the public street. Mr. Gilbert again sued and the circuit court upheld the district court’s ruling that the GSA had effectively withdrawn the area between the planters and the building previously designated as a public forum. See United States v. Gilbert (Gilbert III), 130 F.3d 1458, 1461 (11th Cir. 1997) (“The government is not required to retain indefinitely the open character of a facility.”). Between Gilbert I and Gilbert III, the Eleventh Circuit upheld Mr. Gilbert’s conviction for obstructing the entrance to the federal building. United States v. Gilbert (Gilbert II), 47 F.3d 1116, 1117 (11th Cir. 1995).
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As the decision in Gilbert I demonstrates, the issue of whether an area associated with a courthouse has been designated as a public or nonpublic forum is highly dependent on the evidence of the government’s intent to open the area to public speech. That intent can be established by the government’s policy statements, 13 affirmative actions by the government to designate the area as a public forum, 14 stipulation, 15 the compatibility of expressive activity with the principal function of the property, 16 and whether and the frequency with which public speech has been permitted in the forum. 17 To avoid post hoc justification for a desire to suppress a particular message, courts have considered the government’s statement of policy in light of the government’s actual practice. Air Line Pilots Ass’n, Int’l v. Dep’t of Aviation of City of Chi., 45 F.3d 1144, 1153–54 (7th Cir. 1995) (“[A] court must examine the actual policy —as gleaned from the consistent practice with regard to various speakers— to determine whether a state intended to create a designated public forum.”); Hays Cty. Guardian v. Supple, 969 F.2d 111, 117–18 (5th Cir. 1992) (“[T]he government’s policy is indicated by its consistent practice, not each exceptional regulation that departs from the consistent practice.”). Accordingly, forum status is an inherently factual inquiry about the government’s intent and the surrounding circumstances that requires the district court to make detailed factual findings. See Stewart v. D. C. Armory Bd., 863 F.2d 1013, 1018 (D.C. Cir. 1988) (holding that “identifying the government’s intent . . . raises inherently factual issues that cannot be resolved on a Rule 12(b)(6) motion”); Air Line Pilots, 45 F.3d at 1154 (same). And the ultimate question is whether the facts indicate the government intended to open a nontraditional forum to expressive activity. See Cornelius, 473 U.S. at 802 (“The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse.”).

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13 Church on the Rock v. City of Albuquerque, 84 F.3d 1273, 1276-77 (10th Cir. 1996) (relying on senior citizen center policies to determine forum status of senior centers); Paulsen v. County of Nassau, 925 F.2d 65, 69 (2d Cir. 1991) (relying on county charter and local law as indicia of county’s intent to dedicate coliseum to a broad array of public and expressive purposes); Gilbert I, 920 F.2d at 884 (relying on unwritten GSA policy banning demonstrations from the covered portico).

14 Church on the Rock, 84 F.3d at 1278 (holding that senior centers were designated as public fora because the city had “permitted lectures and classes on a broad range of subjects by both members and non-members”); Huminski, 396 F.3d at 91 (holding courthouse parking lot is not a public forum because there was no evidence the government did anything to designate it as such).

15 Grider v. Abramson, 180 F.3d 739, 748 n.11 (6th Cir. 1999) (relying on stipulation of the parties that courthouse steps are a public forum).

16 Paulsen, 925 F.3d at 70 (holding that coliseum grounds are a public forum, in part, because the property can accommodate a wide variety of expressive activity without threatening the government function of the facility); Greer v. Spock, 424 U.S. 828, 835– 37 (1976) (holding military reservation is not a public forum); Adderley v. Florida, 385 U.S. 39, 47 (1966) (same as to jailhouse).

17 Widmar v. Vincent, 454 U.S. 263, 267-68 (1981) (holding university’s policy of accommodating student meetings created a forum generally open for student use); Paulsen, 925 F.3d at 70 (“The grounds of the Coliseum have been used for parades, political rallies and speeches, religious weddings and circuses. . . . Routinely, banners have been displayed by patrons . . . . Significantly, . . . many groups, including war veterans, the Christian Joy Fellowship and the Salvation Army, were regularly permitted to solicit contributions or distribute literature.”); Gilbert I, 920 F.2d at 884 (holding that unenclosed plaza of a federal building that houses courtrooms has been opened by the government as a public forum because “[d]emonstrations occur there on a frequent basis,” but holding covered portico was not opened as a public forum because occasional demonstrations there were undetected violations of GSA policy).
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3. Disagreement Over Opening the Restricted Areas as Public Fora

Here, the issue of the government’s intent is complicated by the disagreement between Denver and the Judicial District about the forum status of the Restricted Areas.

According to Denver, it intended to and did open all areas of the Plaza, including those within the Restricted Areas, to the public for expressive activity. In fact, Denver (one of the Defendants) entered into a Stipulation to this effect with Plaintiffs. Cf. Grider v. Abramson, 180 F.3d 739, 748 n.11 (6th Cir. 1999) (noting that parties had stipulated that courthouse steps are a public forum). In contrast, the Judicial District argues Denver’s Stipulation that the entire Plaza is a public forum cannot control the status of the Restricted Areas because Colorado law vests the judicial branch with inherent authority to regulate state courthouses. As such, the Judicial District asserts that its intent —not Denver’s— should control the forum status of the Restricted Areas.

This argument between Defendants raises difficult and novel questions about the intersection between a government property owner’s power to designate its property as a public forum and the rights of the occupant of the government property —in this case another governmental entity— to use that property without interference. The parties have not directed us to any authority addressing the question of whose intent controls when two governmental entities disagree about the status of the same forum, and our own research has not revealed any decision precisely on point. But a review of the evolution of the Supreme Court’s doctrine on speech forums reveals some fundamental principles that may guide resolution of this difficult question.

The Supreme Court has not always recognized a First Amendment right of the public to use publicly owned property for expressive purposes. Indeed, the Court’s early jurisprudence recognized the absolute right of the government to exclude the public from using its property. See Davis v. Massachusetts, 167 U.S. 43, 46–47 (1897); see also Geoffrey R. Stone, Fora Americana: Speech in Public Places, 1974 Sup. Ct. Rev. 233, 236–37 (discussing the Supreme Court’s early forum jurisprudence). In Davis, the Court considered a First Amendment challenge to a Boston city ordinance forbidding “any public address” on public property “except in accordance with a permit from the mayor.” 167 U.S. at 44. The Supreme Judicial Court of Massachusetts had affirmed a preacher’s conviction for violating the ordinance by preaching on Boston Common without first obtaining a permit from the mayor, stating “[f]or the Legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house.” Id. at 47 (quoting Commonwealth v. Davis, 39 N.E. 113, 113 (Mass. 1895) (Holmes, J.)). The Supreme Court unanimously affirmed, concluding that “[t]he right to absolutely exclude all right to use necessarily includes the authority to determine under what circumstances such use may be availed of, as the greater power contains the lesser.” Id. at 48. Under the Supreme Court’s jurisprudence at the time, the government —as the owner of public property— retained an absolute right to exclude the public from that property, just as any private property owner would have the right to exclude others. See Stone, supra, at 237 (“[T]he state possessed the power absolutely to prohibit the exercise of First Amendment rights of speech on public property simply by asserting the prerogatives traditionally associated with the private ownership of land. The complex and difficult problem of the public forum had been ‘solved’ by resort to common law concepts of private property.”).

Later, the Supreme Court revisited the question of the public’s use of government property for expressive purposes and again relied on traditional notions of private property ownership. See Hague v. Comm. for Indus. Org., 307 U.S. 496 (1939). In Hague, the Court considered the constitutionality of city ordinances prohibiting all public meetings and leafletting in streets and other public places without a permit. Id. at 501–03. Departing from its analysis in Davis, Justice Roberts, writing for a plurality of the Court, stated:

Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.

Id. at 515–16. Justice Roberts’s position accepted the underlying premise of Davis —that the owner of government property enjoyed the same prerogatives as any private property owner— but then extended that premise to predicate a “public forum right upon established common law notions of adverse possession and public trust.” Stone, supra, at 238. See also Harry Kalven, Jr., The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup. Ct. Rev. 1, 13 (describing Justice Roberts’s analysis in Hague as establishing “a kind of First-Amendment easement” in which the public, through long use and tradition, has acquired a right to use certain types of public property for First Amendment purposes).

Although Justice Roberts spoke only for a plurality of the Hague Court, his formulation has since been accepted by the Supreme Court as the prevailing rationale underlying the concept of traditional public fora. See, e.g., Perry Educ., 460 U.S. at 45 (defining traditional public fora by adopting Justice Roberts’s “time out of mind” description). Even in the context of a traditional public forum in which the government property owner’s power to exclude and curtail use is sharply circumscribed, the underlying rationale is premised on traditional notions of private property ownership. Indeed, the government’s power to control speech in a traditional public forum is circumscribed precisely because the public has, through the extent and nature of its use of these types of government property, acquired, in effect, a “speech easement” that the government property owner must now honor.

The Supreme Court has continued to rely on traditional notions of property ownership to describe the government’s ability to control the use of its property. For example, the Supreme Court has recognized that the government, “no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.” Greer, 424 U.S. at 836 (emphasis added). This includes the ability to designate portions of government property for expressive purposes. See Perry Educ., 460 U.S. at 45. But the underlying rationale of a designated public forum is that the governmental entity with control over the property can decide whether and to what extent to open nontraditional fora to public speech. See Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of Law v. Martinez, 561 U.S. 661, 679 (2010) (“[I]n a progression of cases, this Court has employed forum analysis to determine when a governmental entity, in regulating property in its charge, may place limitations on speech.”) (emphasis added)).

In this case, the record before the district court at the preliminary injunction hearing indicated that Denver is the owner of the Courthouse and its surrounding grounds. It was also undisputed that there is no lease agreement between Denver and the Judicial District that could have transferred some of Denver’s property interests to the Judicial District. And the Judicial District is not the only occupant of the building; the county also has courtrooms in the building. As a result, Denver’s intent will be particularly relevant to a determination of whether the Restricted Areas were designated as a public forum.

Nevertheless, the Judicial District argues Denver may not unilaterally designate the Restricted Areas as public fora because, under Colorado law, the state judicial branch is endowed with inherent authority as an independent and co-equal branch of government to regulate state courthouses. The first problem with this argument is that it ignores the limits of that inherent authority. Although Colorado permits its courts to do all that is “reasonably required to enable a court to perform efficiently its judicial functions, to protect its dignity, independence, and integrity, and to make its lawful actions effective,” the Colorado Supreme Court has recognized that this inherent authority is not without its limitations. Bd. of Cty. Comm’rs of Weld Cty. v. Nineteenth Judicial Dist., 895 P.2d 545, 547–48 (Colo. 1995) (quoting Pena v. District Ct., 681 P.2d 953, 956 (Colo.1984)). Specifically, the “court’s inherent authority terminates when its ability to carry out its constitutional duty to administer justice is no longer threatened.” Id. at 549.

On the existing record, the Judicial District has not demonstrated that Plaintiffs’ First Amendment activities interfered with the ability of the Judicial District to carry out its essential functions. Mr. Steadman testified that Plaintiffs’ pamphleteering presented no security risk to the Courthouse. And the Judicial District presented no evidence indicating that the narrow preliminary injunction issued by the district court would interfere with its judicial functions. On the record before us, therefore, the Judicial District has not demonstrated that the preliminary injunction issued by the district court implicates the court’s inherent authority.

But it is also true that Denver’s statement of its intent is only one factor to be considered by the district court in determining whether a permanent injunction should issue. Recall that the government’s statement of policy should be weighed against the evidence of its actual practice to avoid post hoc justifications. See Air Line Pilots, 45 F.3d at 1153; Hays Cty. Guardian, 969 F.2d at 117–18. Denver’s concession in the Stipulation and its expressions of past intent could be motivated by fiscal or other considerations that are inconsistent with its actual practice.

For example, although the evidence indicated that some expressive activity has occurred in the Restricted Areas, those occasions may have been “isolated incidents of undiscovered violations,” rather than evidence of affirmative acts to open the Restricted Areas as public fora. Gilbert I, 920 F.2d at 885. And a contrary intent might be gleaned from the design of the Restricted Areas and the extent to which public and private areas are clearly separated. See Grace, 461 U.S. at 179–80. Also of importance in assessing whether the Restricted Areas have been designated as public fora is the extent to which doing so is incompatible with the primary use of the Courthouse. See Cornelius, 473 U.S. at 803. That is, it would be strong evidence that Denver did not intend to designate all of the Restricted Areas as public fora if to do so would destroy the primary function of the Courthouse. Or in different terms, the district court must assess whether it is credible that a governmental owner would construct a courthouse and install state and county judicial operations within it, only to designate public fora so intrusively that the essential function of the courthouse is thwarted. Thus, although the Stipulation provides some evidence on the question of whether the Restricted Areas have been designated as public fora, it is not alone determinative of that question.

III. CONCLUSION

Based on the record before it, the district court did not abuse its discretion in granting Plaintiffs’ request for a preliminary injunction. We therefore AFFIRM the order entering a limited preliminary injunction in favor of Plaintiffs, and REMAND for further proceedings consistent with this decision.

Occupy v. Martinez (Plaza Protest Ban) 2015 Order Granting Prelim Injunction


While we await a judge’s response to the complaint and motion for a preliminary injunction against DIA’s free speech permit, I was drawn to reminisce about an earlier federal injunction GRANTED against Denver’s 2nd Judicial District. It was/is (!) also a preliminary injunction curbing police intimidation. This one prevents arrests of Jury Nullification pamphleteers at the Lindsey Flanigan Courthouse in Denver. More broadly, it halts the enforcement of the despotic “Chief Justice Order 1” which attempted to curb free speech in Tully Plaza, between the courthouse and the jail, site of innumerable protest rallies since the facility was erected in 2010. After a protracted legal battle, the case will finally come to trial in April 2017. This case also started with police overreach, then a complaint, a motion, and a hearing. In August 2015, US District Judge William Martinez issued the below court order granting the preliminary injunction.

Document 28 Filed 08/25/15 USDC Colorado

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez

Civil Action No. 15-cv-1775-WJM-MJW

ERIC VERLO,?
JANET MATZEN, and?
FULLY INFORMED JURY ASSOCIATION,

Plaintiffs, v.

THE CITY AND COUNTY OF DENVER, COLORADO, a municipality,?ROBERT C. WHITE, in his official capacity as chief of police for Denver, and CHIEF JUDGE MICHAEL MARTINEZ, in his official capacity as chief judge of the Second Judicial District,

Defendants.

______________________________

ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION
______________________________

Plaintiffs Eric Verlo, Janet Matzen, and the Fully Informed Jury Association (“FIJA”) (collectively, “Plaintiffs”) bring this lawsuit to establish that they have a First Amendment right to distribute and discuss literature regarding jury nullification in the plaza outside of Denver’s Lindsey-Flanigan Courthouse (“Courthouse Plaza” or “Plaza”). (ECF Nos. 1, 13-1.) The Lindsey-Flanigan Courthouse is where most criminal proceedings take place for Colorado’s Second Judicial District (which is coterminous with the City and County of Denver).

Plaintiffs have sued the City and County of Denver itself and its police chief, Robert C. White, in his official capacity (jointly, “Denver”). Plaintiffs have also sued the Hon. Michael A. Martinez 1 in his official capacity as Chief Judge of the Second Judicial District. Out of recognition that Plaintiffs’ lawsuit does not target Chief Judge Martinez himself but rather a policy promulgated by the Second Judicial District through Chief Judge Martinez, the Court will refer below to Chief Judge Martinez as “the Second Judicial District.”

On the same day Plaintiffs filed their complaint, they also moved for a preliminary injunction to restrain Defendants from taking any action to stop them from distributing certain literature regarding, or advocating for, jury nullification on the Courthouse Plaza (“Motion”). (ECF No. 2.) The Second Judicial District, represented by the Colorado Attorney General’s office, filed a response defending its current policy of limiting expressive activities to certain areas away from the main walkways leading to the Courthouse doors. (ECF No. 24.) Denver, represented by the Denver City Attorney’s office, did not file a response, but instead filed a joint stipulation with Plaintiffs regarding the status of the Plaza. (ECF No. 23.) As discussed further below, Denver (a) has no intent to enforce the Second Judicial District’s policy that would otherwise restrict Plaintiffs’ activities, and (b) agrees with Plaintiffs that they have a First Amendment right to distribute and discuss their literature essentially anywhere on the Courthouse Plaza, including in the areas designated as restricted by the Second Judicial District.

This Court held an evidentiary hearing and heard oral argument on August 21, 2015. Having considered all of the filings, evidence, and arguments submitted to date, the Court grants Plaintiffs’ Motion for the reasons explained below.

—————
1 No relation to the undersigned.?
————

I. LEGAL STANDARD

To prevail on a motion for preliminary injunctive relief, Plaintiffs have the burden of establishing that four equitable factors weigh in their favor: (1) they are substantially likely to succeed on the merits; (2) they will suffer irreparable injury if the injunction is denied; (3) their threatened injury outweighs the injury the opposing party will suffer under the injunction; and (4) the injunction would not be adverse to the public interest. See Westar Energy, Inc. v. Lake, 552 F.3d 1215, 1224 (10th Cir. 2009); Gen. Motors Corp. v. Urban Gorilla, LLC, 500 F.3d 1222, 1226 (10th Cir. 2007). “[B]ecause a preliminary injunction is an extraordinary remedy, the right to relief must be clear and unequivocal.” Greater Yellowstone Coal. v. Flowers, 321 F.3d 1250, 1256 (10th Cir. 2003).

II. BACKGROUND

A. Facts Alleged in the Original Complaint

Plaintiffs’ original complaint recounts the story of two non-parties, Mark Iannicelli and Eric Brandt, who were passing out pamphlets on the Courthouse Plaza on July 27, 2015. (ECF No. 1 ¶ 14.) The pamphlets were titled “Fresh Air for Justice” and “Your Jury Rights: True or False?” (Id. ¶ 15; ECF No. 1-3; ECF No. 1-4.) Both pamphlets contain some history of jury nullification and various general statements about the jury’s role as envisioned by the Framers. (See generally ECF Nos. 1-3, 1-4.) But the pamphlets also contain certain calls to action which could raise concern. “Fresh Air for Justice,” for example, contains the following:

• “Judges say the law is for them to decide. That’s not true. When you are a juror, you have the right to decide both law and fact.” (ECF No. 1-3?at 3.) ?

• “If the law violates any human rights, you must vote no against that law by voting ‘not guilty.’” (Id. (emphasis in original).) ?

“Fresh Air for Justice” also contains the following, which could be interpreted as encouraging prospective jurors to lie during voir dire:

When you are called for jury duty, you will be one of the few people in the courtroom who wants justice rather than to win or to score career points. For you to defend against corrupt politicians and their corrupt laws, you must get on the jury. During the jury selection, prosecutors and judges often work together to remove honest, thinking people from juries. ?

When you’re questioned during jury selection, just say you don’t keep track of political issues. Show an impartial attitude. Don’t let the judge and prosecutor stack the jury by removing all the thinking, honest people!

Instructions and oaths are designed to bully jurors and protect political power. Although it all sounds very official, instructions and oaths are not legally binding, or there would be no need for independent thinking jurors like you.?

?(Id. at 4.)

The other pamphlet, “Your Jury Rights: True or False?”, does not contain language quite as direct as the foregoing, but it does declare, “You cannot be forced to obey a ‘juror’s oath.’” (ECF No. 1-4 at 3.) ?

Iannicelli was arrested on the Plaza that day, and Brandt was arrested on a warrant a few days later. (ECF No. 1 ¶ 18.) Both were charged with jury tampering: “A person commits jury-tampering if, with intent to influence a juror’s vote, opinion, decision, or other action in a case, he attempts directly or indirectly to communicate with a juror other than as a part of the proceedings in the trial of the case.” Colo. Rev. Stat. § 18-8-609(1). The affidavit supporting Brandt’s arrest mentions that he and Iannicelli had been on the Courthouse Plaza at a time that jurors “would be expected to be arriving” for the ongoing death penalty prosecution of Dexter Lewis. (ECF No. 1-2 at 4.) 2

Plaintiff Eric Verlo “wishes to pass out the same literature on the Lindsey-Flannigan [sic; ‘Flanigan’] plaza as Eric Brandt and Mark Iannicelli were passing out which caused them to be arrested.” (ECF No. 1 ¶ 9.) Plaintiff Janet Matzen wishes to do the same. (Id. ¶ 10.) Plaintiff FIJA is

an association, based in Montana, who’s [sic] members passionately believe in the concept of jury nullification. FIJA intends to hold an educational campaign in Denver on September 5, 2015 where its members wish to pass out the same brochures on the Lindsey-Flannigan [sic] plaza as Eric Brandt and Mark Iannicelli . . . .

(Id. ¶ 11.) 3 Plaintiffs say that the arrests of Brandt and Iannicelli have caused them to to fear that they too might be arrested and prosecuted. (Id. ¶ 22.)

——————
2 Lewis was charged with murdering five individuals at a Denver bar in 2012. See, e.g., Jordan Steffen & Matthew Nussbaum, “Denver jury hears opening arguments in five Fero’s bar killings,” Denver Post (July 20, 2015), at http://www.denverpost.com/news/ci_28513519/denver-jury-hears-opening-arguments-five-feros-bar (last accessed Aug. 24, 2015).

3 September 5, 2015, is a Saturday —an unlikely day for a jury nullification advocate to reach his or her target audience at a courthouse. When this was pointed out at the preliminary injunction hearing, counsel for Plaintiffs qualified the date with an “on or about.”
——————

?B. Facts Alleged in the Amended Complaint & Supplemental Filings

Two days after filing suit, Plaintiffs filed an amended complaint to insert allegations regarding a Second Judicial District administrative order recently posted on the Courthouse doors. (ECF No. 13-1 ¶ 2.) The order, designated “CJO 15-1” and dated August 14, 2015, was titled “Chief Judge Order Regarding Expressive Activities at the Lindsey-Flanigan Courthouse.” (ECF No. 24-1.) This order was actually amended on August 21, 2015, hours before the preliminary injunction hearing in this Court, and admitted as Exhibit 1 in that hearing. (See ECF No. 25-1.) The Court will refer to the amended order as the “Plaza Order.” In relevant part, it reads as follows:

The Court has the responsibility and authority to ensure the safe and orderly use of the facilities of the Second Judicial District; to minimize activities which unreasonably disrupt, interrupt, or interfere with the orderly and peaceful conduct of court business in a neutral forum free of actual or perceived partiality, bias, prejudice, or favoritism; to provide for the fair and orderly conduct of hearings and trials; to promote the free flow of pedestrian and vehicular traffic on sidewalks and streets; and to maintain proper judicial decorum. Those having business with the courts must be able to enter and exit the Lindsey-Flanigan Courthouse freely, in a safe and orderly fashion and unhindered by threats, confrontation, interference, or harassment. Accordingly, the Court hereby prohibits certain expressive activities on the grounds of the Courthouse, as depicted in the highlighted areas of the attached map [reproduced below], without regard to the content of any particular message, idea, or form of speech.

Prohibited Activities: The activities listed below shall be prohibited in the following areas: anywhere inside the Lindsey-Flanigan Courthouse, including courtrooms, corridors, hallways, and lobbies; the areas, lawns, walkways, or roadways between the Courthouse and public sidewalks and roads; and any areas, walkways, or roadways that connect public sidewalks and roads to Courthouse entrances or exits. This includes the Courthouse entrance plaza areas on the east and west sides of the Courthouse as depicted in the highlighted areas of the attached map.

1. Demonstrating; picketing; protesting; marching; parading; holding vigils or religious services; proselytizing or preaching; distributing literature or other materials, or engaging in similar conduct that involves the communication or expression of views or grievances; soliciting sales or donations; or engaging in any commercial activity; unless specifically authorized in writing by administration;

2. Obstructing the clear passage, entry, or exit of law enforcement and emergency vehicles and personnel, Courthouse personnel, and other persons having business with the courts through Courthouse parking areas, entrances, and roadways to and from Courthouse and Courthouse grounds; ?

3. Erecting structures or other facilities, whether for a single proceeding or intended to remain in place until the conclusion of a matter; or placing tents, chairs, tables, or similar items on Courthouse grounds; except as specifically authorized in writing by administration; and ?

4. Using sound amplification equipment in a manner that harasses or interferes with persons entering or leaving Courthouse grounds or persons waiting in line to enter the Courthouse. ?

(Id. at 1–2 (formatting in original).) The Court will refer to the Plaza Order’s numbered paragraphs by their number, e.g., “Paragraph 1 of the Plaza Order” (referring to the forms of prohibited expressive activity). In their amended complaint, Plaintiffs allege that the Plaza Order was “apparently” entered in response to Brandt’s and Iannicelli’s actions. (ECF No. 13-1 ¶ 2.)

The “attached map” referenced in the Plaza Order is reproduced on the following page:

(Id. at 3.) This map shows an aerial view of the Courthouse. The top of the map is north. The Courthouse itself is the irregularly shaped, white-roofed building occupying the left half of the map. Immediately to the left (west) of the Courthouse is Fox Street. Immediately to the north is Colfax Avenue. Immediately to the right (east) of the Courthouse grounds is Elati Street, which is closed to traffic other than police vehicles as it runs past the Courthouse. Elati bisects a circular area paved in a tan color. Just to the right (east) of Elati, and not depicted in the map, is Denver’s Van Cise-Simonet Detention Center (“Detention Center”), which houses pretrial detainees. Thus, the area between the Courthouse and Detention Center is a fairly spacious place suitable for public gatherings.

Immediately to the east and west of the Courthouse are areas that the Second Judicial District highlighted in yellow to indicate where expressive activity is restricted (“Restricted Area”). This matter principally concerns the arc-shaped portion of the Restricted Area to the east of the Courthouse (“East Restricted Area”). The East Restricted Area comprises the following:

• planter boxes and public art (collectively, “Landscaping”); ?

• sidewalks, including a narrow sidewalk beginning at the north of the map ?(just below the blue bus stop icon) and following the arc of the planter boxes until it reaches a much wider sidewalk that completes the arc, which itself connects with the awning-covered steps leading to the Courthouse front doors depicted in approximately the center of the map (collectively, “Sidewalks”); and ?

• a gravel passive security feature between the narrow sidewalk and the Courthouse itself (“Gravel Area”). ?

C. Evidence Received at the Preliminary Injunction Hearing

1. Commander Lopez

?Plaintiffs called as a witness Commander Antonio Lopez of the Denver Police Department. Lopez oversees the Denver Police district that encompasses the Courthouse and the Detention Center. Lopez testified that the Courthouse opened in 2010 or 2011. During that time, he has seen “more protests [in the area between the Courthouse and the Detention Center] than [he can] recall. At one point w e were averaging about two or three a week, in that area.” On cross-examination, Lopez clarified that most of those protests were nearer to the Detention Center than the Courthouse. Nonetheless, to Lopez’s knowledge, the Denver Police Department has never restricted or interfered with any peaceful First Amendment activity taking place between the Courthouse and the Detention Center.

2. Mr. Steadman

The Second Judicial District called Steven Steadman, who is the Colorado judicial branch’s security administrator. Steadman was closely involved in the discussions leading up to the Plaza Order. Steadman testified that, during those discussions, he was unaware of Brandt and Iannicelli or the distribution of jury nullification literature, and that the Plaza Order actually arose from very different concerns.

According to Steadman, discussions began with Chief Judge Martinez in early July 2015 because the Dexter Lewis trial was scheduled to overlap with another death penalty trial in Arapahoe County, i.e., the trial of Aurora theater shooter James Holmes. Steadman and Chief Judge Martinez specifically worried about potentially violent protests that might break out if Lewis (who is black) eventually received the death penalty but Holmes (who is white) did not. Proactively seeking to avoid such a problem, Steadman gave Chief Judge Martinez a copy of an order entered by the Hon. Carlos A. Samour, Jr., who presided over the Holmes trial in Arapahoe County. Judge Samour’s order apparently was a model for what the Second Judicial District eventually issued as the Plaza Order.

On cross-examination, Steadman confirmed that the Plaza Order was intended specifically to address the protests that might erupt if Holmes and Lewis were treated differently with respect to the death penalty. Steadman admitted, however, that his office could require several hours’ notice between the announcement that the jury had reached a verdict and the actual reading of the verdict, which would permit a police presence to assemble in anticipation of protests. Steadman also admitted that nothing like the Plaza Order had been in place or enforced prior to August 14, 2015, and that passing out jury nullification literature did not present any security risk beyond what the Second Judicial District has tolerated, without incident, since the Courthouse opened.

III. ANALYSIS

A. Article III Standing

As mentioned previously, Denver has stipulated with Plaintiffs that it will not enforce any prohibition on distributing jury nullification literature on the Courthouse Plaza. Specifically, Denver has stipulated that

Plaintiffs who wish to engage in peacefully passing out jury nullification literature to passersby on the Plaza are entitled to do so and that Denver, through its police or sheriff department, will not arrest or otherwise charge Plaintiffs for handing out literature regarding jury nullification so long as Plaintiffs do not violate Colorado law or Denver’s Revised Municipal Code when they are handing out their literature. The parties stipulate that Plaintiffs’ proposed intent of peacefully handing out jury nullification literature to or discussing jury nullification with passersby at the Plaza, without more, does not violate Colorado law. . .

***

. . . Denver stipulates that it does not intend to enforce the [Plaza] Order as written and will only impose content and viewpoint neutral reasonable time, place and manner restrictions on the use of the Plaza, and/or other exterior areas surrounding the Plaza if Denver determines that a compelling need exists to do so.

(ECF No. 23 ¶¶ 2, 4.)

?Given this stipulation, the Second Judicial District argues that Plaintiffs lack Article III standing to bring this lawsuit because no threat of enforcement is imminent. (ECF No. 24 at 6–8.) See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (“the irreducible constitutional minimum of standing” includes, among other things, an “actual or imminent” “invasion of a legally protected interest”); Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1176 (10th Cir. 2009) (to obtain prospective relief, a plaintiff must show a “credible threat of future prosecution”). As stated at the preliminary injunction hearing, however, the Court rejects this contention.

The Second Judicial District’s standing argument assumes that the only way an individual could run afoul of the Plaza Order is through Denver’s independent enforcement efforts. But Chief Judge Martinez, and perhaps any other judge in the Second Judicial District, could issue a contempt citation for violating the Plaza Order. Cf. Schmidter v. State, 103 So. 3d 263, 265–69 (Fla. Dist. Ct. App. 2012) (distributor of FIJA literature convicted of contempt for violating an administrative order similar to the Plaza Order). The violator would then be required to appear before the issuing judge, and if he or she fails to appear, an arrest warrant can issue. See Colo. R. Civ. P. 107(c). Denver may then be obligated to arrest the violator —not on the authority of the Plaza Order, but on the authority of the judge’s contempt citation. See id. (requiring the sheriff to carry out the arrest). The Court takes judicial notice of the fact that Colorado state law enforcement officers, not subject to Denver’s stipulation, could also effect the arrest of such a hypothetical violator.

Thus, the Court finds that Article III standing still exists, and the Court will move on to the elements Plaintiffs must establish to secure a preliminary injunction. To repeat, those elements are: (1) likelihood of success on the merits; (2) irreparable injury if the injunction is denied; (3) the threatened injury outweighs the injury the opposing party will suffer under the injunction; and (4) the injunction would not be adverse to the public interest. Westar Energy, 552 F.3d at 1224.

?B. Likelihood of Success

Evaluating the likelihood of success requires evaluating the substantive merit of Plaintiffs’ claim that the First Amendment grants them a right to discuss and distribute pamphlets about jury nullification with individuals entering and leaving the Courthouse. To answer this question, the Supreme Court prescribes the following analysis:

1. Is the expression at issue protected by the First Amendment? ?

2. If so, is the location at issue a traditional public forum, a designated public ?forum, or a nonpublic forum? ?

3. If the location is a traditional or designated public forum, is the ?government’s speech restriction narrowly tailored to meet a compelling state interest? ?

?4. If the location is a nonpublic forum, is the government’s speech restriction reasonable in light of the purpose served by the forum, and viewpoint neutral?

See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797–806 (1985). The Court will address these inquiries in turn.

1. Does the First Amendment Protect Plaintiffs’ Pamphlets and Oral Advocacy of the Message Contained in the Pamphlets?

The Court “must first decide whether [the speech at issue] is speech protected by the First Amendment, for, if it is not, we need go no further.” Id. at 797. There appears to be no contest on this point. The Second Judicial District has raised no argument that any part of the message conveyed by the pamphlets is unprotected by the First Amendment. Accordingly, the Court deems it conceded for preliminary injunction purposes that Plaintiffs are likely to succeed on the question of whether the First Amendment protects their message.

2. Is the Courthouse Plaza a Public Forum?

The Court must next decide whether the Courthouse Plaza—and the Restricted Area specifically—is a public or nonpublic forum:

. . . the extent to which the Government can control access [to government property for expressive purposes] depends on the nature of the relevant forum. Because a principal purpose of traditional public fora is the free exchange of ideas, speakers can be excluded from a public forum only when the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest. Similarly, when the Government has intentionally designated a place or means of communication as a public forum speakers cannot be excluded without a compelling governmental interest. Access to a nonpublic forum, however, can be restricted as long as the restrictions are reasonable and are not an effort to suppress expression merely because public officials oppose the speaker’s view.

Id. at 800 (citations and internal quotation marks omitted; alterations incorporated).

?The public/nonpublic inquiry presents a unique dilemma in this case. On the one hand, Denver’s stipulation with Plaintiffs includes the following: “The Lindsey-Flanigan plaza . . . which is located between the Van Cise-Simonet Detention Center and the Lindsey-Flanigan courthouse is a public forum and any content-based regulations must be narrowly drawn to effectuate a compelling state interest . . . .” (ECF No. 23 ¶ 1 (emphasis added).) On the other hand, the Second Judicial District strong ly disagrees:

. . . Plaintiffs assert that the courthouse plaza is a traditional public forum, and therefore maintain that Chief Judge Martinez’s administrative order must be strictly scrutinized. As a matter of state law, however, Chief Judge Martinez— and not Denver—is responsible for the oversight of the courthouse and the adjoining grounds. Thus, any concession on this point by Denver binds neither the parties nor this Court.

(ECF No. 24 at 8.) Apparently a minor turf war has erupted between Denver and the Second Judicial District over control of the Courthouse grounds.

When asked at the preliminary injunction hearing regarding the “state law” that gives Chief Judge Martinez “responsib[ility] for the oversight of the courthouse and the adjoining grounds,” counsel for the Second Judicial District directed the Court to Colorado Revised Statutes § 13-3-108(1). That subsection reads: “The board of county commissioners in each county shall continue to have the responsibility of providing and maintaining adequate courtrooms and other court facilities including janitorial service, except as otherwise provided in this section.” Neither this language, nor anything else in § 13-3-108, appears to relate to a chief judge’s authority over courthouse policies or courthouse grounds.

?Counsel for the Second Judicial District also pointed this Court to State ex rel. Norton v. Board of County Commissioners of Mesa County, 897 P.2d 788 (Colo. 1995) (“Mesa County”). In Mesa County, the county commissioners defied an order from the Twenty-First Judicial District’s chief judge requiring additional security measures at the county courthouse. See Mesa County, 897 P.2d at 789. The county commissioners further announced their intent to stop providing support of any kind to the Twenty-First Judicial District, arguably in violation of § 13-3-108(1) (quoted above), Colorado Revised Statutes § 13-1-114(2) (requiring county sheriffs to assist the judiciary when the judiciary perceives a “risk of violence in the court”), and Colorado Revised Statutes § 30-11-104(1) (requiring each county to “provide a suitable courthouse”). See id. The county commissioners believed that Colorado’s constitutional Taxpayers’ Bill of Rights allowed the county to disregard the foregoing statutes because they created an impermissible “subsidy” to the court system. Id. at 789–90. The Colorado Supreme Court rejected the county commissioners’ position and held that counties’ statutory duties toward the court system are not “subsidies” under the Taxpayers’ Bill of Rights. Id. at 791.

The Mesa County decision highlights the relationship between counties and the state courts that sit within them. It emphasizes county sheriffs’ duties to assist judges in preventing “violence in the court.” Colo. Rev. Stat. § 13-1-114(2). It does not support the Second Judicial District’s notion that it controls and can speak for the status of the Courthouse grounds.

Finally, counsel for the Second Judicial District cited this Court to In re Court Facilities for Routt County, 107 P.3d 981 (Colo. App. 2004) (“Routt County”). Routt County held that, under certain circumstances, a state judicial district’s chief judge has inherent authority to order the board of county commissioners to design and pay for a new courthouse. Id. at 984. Quoting Peña v. District Court, 681 P.2d 953, 956 (Colo. 1984), Routt County relied on the notion that “courts necessarily possess certain inherent powers, which . . . consist of ‘all powers reasonably required to enable a court to perform efficiently its judicial functions, to protect its dignity, independence, and integrity, and to make its lawful actions effective.’” Routt County, 107 P.3d at 984.

Both Routt County and Peña specifically address the Colorado judiciary’s inherent authority to order another state or municipal entity to spend money on the judiciary’s behalf. That power is not at issue here. Nonetheless, the inherent authority described in Routt County and Peña could conceivably also extend to entering orders such as the Plaza Order. The ultimate question, however, is whether Denver or the Second Judicial District speaks for the First Amendment status of the Courthouse Plaza. For at least three reasons, the Court concludes that Plaintiffs are likely to prevail against the Second Judicial District on that question.

First, counsel for the Second Judicial District agrees that Denver owns the Courthouse itself and all of its grounds.

Second, counsel for the Second Judicial District further stated that there was no lease agreement of which he was aware between Denver and the Second Judicial District. Rather, the Second Judicial District occupies the Courthouse “as provided by law.”

?Third, it is undisputed that the Second Judicial District is not the Courthouse’s sole occupant. Denver County Court also sits in the Courthouse. Denver County Court is unique among county courts in Colorado because the Colorado Constitution grants Denver the authority to set the “number, manner of selection, qualifications, term of office, tenure, and removal of [its] judges.” Colo. Const. art. VI, § 26. Moreover, a Chief Justice Directive from the chief justice of the Colorado Supreme Court states that “[t]he chief judge of the Second Judicial District shall not have administrative authority over the Denver County Court.” CJD 95-01, Preamble (amended Aug. 17, 2012), available at https://www.courts.state.co.us/Courts/Supreme_Court/Directives/95-01amended8-17-12.pdf. Thus, there are two distinct judicial bodies operating in the Courthouse, and the Second Judicial District apparently cannot speak for both.

For all these reasons, the Court finds that Plaintiffs are likely to prevail in their contention that Denver controls and speaks for the Courthouse Plaza. 4 Because Denver has stipulated that the Courthouse Plaza is a public forum, Plaintiffs are likewise likely to prevail in their claim that the Courthouse Plaza is at least a designated public forum, if not a traditional public forum. See Cornelius, 473 U.S. at 800. 5

Moreover, the Court notes that the Second Judicial District has not specif ically argued for a finding that the Courthouse Plaza is a nonpublic forum. Rather, it says that “resolving [the type of forum at issue] is not necessary for the purposes of this proceeding because [the Plaza Order] would satisfy even the strictest test.” (ECF No. 24 at 9.) Thus, the Court turns to the question of whether the Plaza Order can survive a strict scrutiny analysis. 6

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4 Ultimately, a Colorado state court may need to resolve this question. See, e.g., CJD 95-01 ¶ 15 (“Any disputes arising from the exercise of the authority described in this directive shall be resolved by the Chief Justice.”). In this posture, however, the Court need only conclude that Plaintiffs are likely to succeed.

5 If the Courthouse Plaza is indeed a public forum, it would be unique in that respect. The parties have not cited, nor could the Court find, a single case in which courthouse grounds were deemed a public forum. Cf. Huminski v. Corsones, 396 F.3d 53, 90–91 (2d Cir. 2005) (courthouse grounds not a public forum); Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 966 (9th Cir. 2002) (same), abrogated on other grounds by Winter v. NRDC, 555 U.S. 7 (2008); Comfort v. MacLaughlin, 473 F. Supp. 2d 1026, 1028 (C.D. Cal. 2006) (same); Schmidter, 103 So. 3d at 270 (same).

6 The ensuing analysis assumes, of course, that the Second Judicial District may attempt to enforce the Plaza Order through its own contempt power. If such power did not exist, there would likely be no reason to scrutinize the Plaza Order under any constitutional standard given Denver’s control over the Plaza and its stipulation not to interfere with Plaintiffs’ intended activities. (See Part III.A, supra.)
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3. Is the Plaza Order Narrowly Tailored to Serve a Significant Government Interest, and Does it Leave Open Ample Alternative Means of Communication?

“In [a] quintessential public forum[], the government may not prohibit all communicative activity.” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983); see also id. at 46 (holding that the government may un-designate a designated public forum, but until it does so, “it is bound by the same standards as apply in a traditional public forum”). The state may, however, “enforce regulations of the time, place, and manner of expression which [1] are content-neutral, [2] are narrowly tailored to serve a significant government interest, and [3] leave open ample alternative channels of communication.” Id. The Court will address each element in turn as it applies to the Plaza Order.

a. “Content-Neutral”?

The Plaza Order applies “without regard to the content of any particular message, idea, or form of speech.” (ECF No. 25-1 at 1.) On its face, then, it appears content-neutral. Plaintiffs have not argued otherwise.

b. “Narrowly Tailored to Serve a Significant Government Interest”

The Plaza Order itself asserts several interests:

. . . to minimize activities which unreasonably disrupt, interrupt, or interfere with the orderly and peaceful conduct of court business in a neutral forum free of actual or perceived partiality, bias, prejudice, or favoritism; to provide for the fair and orderly conduct of hearings and trials; to promote the free flow of pedestrian and vehicular traffic on sidewalks and streets; and to maintain proper judicial decorum . . . .

(Id.) However, in response to Plaintiffs’ Motion, the Second Judicial District has only defended the Plaza Order on the bases of preserving “the efficient functioning of the court” (e.g., unhindered ingress and egress to the Courthouse) and “maintain[ing] public safety.” (ECF No. 24 at 12.)

These are potentially “significant” government interests. Legitimate time-place- manner restrictions in a public forum can be motivated by “objectives [such as] public safety, accommodating competing uses of the easement, controlling the level and times of noise, and similar interests.” First Unitarian Church of Salt Lake City v. Salt Lake City Corp., 308 F.3d 1114, 1132 (10th Cir. 2002). But the Court finds on this record that Plaintiffs are likely to succeed in proving that the Plaza Order is not narrowly tailored to these stated objectives. Paragraph 1 of the Plaza Order bans essentially all expressive activity regardless of whether it would affect “the efficient functioning of the court” or threaten “public safety.” Courts look dimly on such “First Amendment Free Zones.” See Bd. of Airport Comm’rs of City of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987); First Unitarian, 308 F.3d at 1132.

Moreover, in the Second Judicial District’s briefing (see ECF No. 24 at 12) and at the preliminary injunction hearing, it became clear that the sole motivating concern behind the Plaza Order was potentially violent protests that could follow if Dexter Lewis receives the death penalty. Steadman, the Second Judicial District’s witness, agreed that other measures could address that concern, e.g., he could arrange for additional security well in advance of any verdict announcement. He also agreed that Plaintiffs’ activities posed no greater threat to the Courthouse than it has faced in the last five years, when expressive activities have been unrestricted. Thus, the Court finds that Plaintiffs will likely demonstrate that at least Paragraph 1 of the Plaza Order is not narrowly tailored to serve the interests of maintaining public safety and the efficient functioning of the court.

c. “Leave Open Ample Alternative Channels of Communication”

Given the foregoing finding, inquiry into the alternative channels of communication is unnecessary. 7 The Court accordingly holds that Plaintiffs are likely to succeed in defeating at least Paragraph 1 of the Plaza Order under the strict scrutiny test applied to public forums.

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7 The Court nonetheless notes Plaintiffs’ argument at the preliminary injunction hearing that their advocacy requires person-to-person contact because the concept of jury nullification is obscure and does not lend itself well to pithy slogans that can easily be chanted or placed on a placard (and therefore understood from a distance). Plaintiffs’ counsel could not cite this Court to any authority holding that those wishing to advocate complicated or lesser understood concepts receive more solicitude than others when it comes to available channels of communication. To the contrary, the case law suggests that the government can more easily restrict person-to-person interaction because of its potential for harassment. See, e.g., Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 773–74 (1994). The Court need not resolve the issue at this time, but only raises it as a matter of potential concern as this case progresses.
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?C. Irreparable Injury

“[T]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1190 (10th Cir. 2003) (internal quotation marks omitted). Moreover, the Second Judicial District offers no response to Plaintiffs’ irreparable injury argument. Accordingly, the Court finds that Plaintiffs will be irreparably injured absent a preliminary injunction.
?
D. Balancing of Interests

The injury to a plaintiff deprived of his or her First Amendment rights almost always outweighs potential harm to the government if the injunction is granted. See Awad v. Ziriax, 670 F.3d 1111, 1131 (10th Cir. 2012); ACLU v. Johnson, 194 F.3d 1149, 1163 (10th Cir. 1999). And again, the Second Judicial District offers no response to Plaintiffs’ argument that the balance of interests tips in their favor. Accordingly, the Court finds that the balance indeed tips in Plaintiffs’ favor, although the Court will issue the narrowest injunction possible so that the Second Judicial District is not unduly restrained in its ability to maintain safety and proper judicial functioning. (See Part III.F, infra.)?

E. Public Interest

Finally, as with irreparable injury and balancing of interests, it is almost always in the public interest to prevent a First Amendment violation. See Awad, 670 F.3d at 1132; Johnson, 194 F.3d at 1163. The Second Judicial District does not argue otherwise. The Court therefore finds that a narrowly drawn injunction would be in the public interest.

?F. Scope of Injunctive Relief

The Court will enter a preliminary injunction in favor of Plaintiffs. However, the Court will not grant an injunction as broad as Plaintiffs’ counsel requested at the preliminary injunction hearing. Plaintiffs’ counsel requested an injunction stating that their message and form of advocacy is protected speech, supposedly to protect against any other government agency that might try to silence them. But the Court cannot say (on this record at least) that Plaintiffs’ message and form of advocacy is always protected speech under all circumstances. In addition, an injunction must run against a party—this Court cannot enter an injunction against the world at large. See, e.g., Fed. R. Civ. P. 65(d)(2) (describing persons bound by an injunction). If Plaintiffs believe that a particular government agency is likely to attempt to silence them, they need to join that agency as a party and satisfy the preliminary injunction as against that agency. 8

Further, although Plaintiffs apparently seek to strike down the entire Plaza Order as unconstitutional, the Court will limit its injunction only to certain portions of the Plaza Order. As counsel for the Second Judicial District pointed out at the preliminary injunction hearing, the Plaza Order applies both inside and outside the Courthouse, but Plaintiffs have only challenged its restrictions outside the Courthouse. Accordingly, the Court will not disturb the Plaza Order as it operates inside the Courthouse.

In addition, the Court notes the Landscaping and Gravel Area in the East Restricted Area. Although no party discussed the scope of a potential injunction in these specific areas, the Court assumes for present purposes that Denver did not intend its public forum stipulation to authorize Plaintiffs to tramp through the Landscaping or the Gravel Area, both of which are ultimately designed for the Courthouse’s security. The Court therefore will not enjoin the operation of the Plaza Order as it applies to the Landscaping and Gravel Area.

The Court also notes that Plaintiffs have specifically alleged their intent to distribute and discuss the two pamphlets attached to their original complaint, “Fresh Air for Justice” (ECF No. 1-3) and “Your Jury Rights: True or False?” (ECF No. 1-4). At the preliminary injunction hearing, counsel for Plaintiffs reemphasized that these two pamphlets form the basis of what they wish to discuss. The Court will therefore limit its injunction to distribution of those specific pamphlets and oral advocacy of the message contained in those pamphlets.

Finally, only Paragraph 1 of the Plaza Order is truly at issue here. Plaintiffs have not challenged the Second Judicial District’s authority to prevent obstruction of the entryways (Paragraph 2), to prohibit the erection of structures (Paragraph 3), or to restrict sound amplification equipment (Paragraph 4). Thus, the Court will limit the injunction to Paragraph 1 of the Plaza Order. 9

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8 Plaintiffs’ counsel expressed some concern that the Denver District Attorney’s office had been involved in the arrest of Brandt and Iannicelli and that the DA’s office might continue to pursue similar prosecutions. But Plaintiffs have not joined the DA’s office as a party, and in any event, in light of Denver’s stipulation with Plaintiffs, it is questionable whether the Denver Police Department would execute any arrest warrant based on Plaintiffs’ activities.

9 A party awarded a preliminary injunction normally must “give[] security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c). The Tenth Circuit has held that “a trial court may, in the exercise of discretion, determine a bond is unnecessary to secure a preliminary injunction if there is an absence of proof showing a likelihood of harm.” Coquina Oil Corp. v. Transwestern Pipeline Co., 825 F.2d 1461, 1462 (10th Cir. 1987) (internal quotation marks omitted). The Second Judicial District has not put forth any evidence of a likelihood of harm, nor has it argued that Plaintiffs should be required to post a bond. Having considered the issue sua sponte, the Court determines that a bond is unnecessary in light of the lack of likely harm to the Second Judicial District, and in light of the nature of the case. Cf. 11A Charles Alan Wright et al., Federal Practice & Procedure § 2954 n.29 (3d ed., Apr. 2015 update) (citing public rights cases where the bond was excused or significantly reduced).
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IV. CONCLUSION

For the reasons set forth above, the Court ORDERS as follows:

1. Plaintiffs’ and Denver’s Stipulation (ECF No. 23) is ACCEPTED and shall be treated as if an order from this Court; ?

2. Plaintiffs’ Motion for Preliminary Injunction (ECF No. 2) is GRANTED; and ?

3. The City and County of Denver, its police chief, Robert C. White, in his official capacity, and the Second Judicial District (including their respective officers, agents, servants, employees, attorneys, and other persons who are in active concert or participation with any of them) (collectively, “Defendants”) are PRELIMINARILY ENJOINED as follows (all capitalized terms bear the respective meanings assigned above): ?

a. Save for any Plaintiff physically located on the Landscaping or Gravel Area, Defendants shall not enforce Paragraph 1 of the Plaza Order against any Plaintiff (including any FIJA member) physically located in the Restricted Area to the extent he or she is otherwise lawfully seeking to distribute and/or orally advocate the message contained in the pamphlets titled “Fresh Air for Justice” and/or “Your Jury Rights: True or False?”

b. To the extent consistent with the foregoing prohibition, Defendants remain free to enforce Paragraphs 2–4 of the Plaza Order.

Dated this 25th day of August, 2015.

BY THE COURT:

William J. Martínez?
United States District Judge

Thousands rally in Denver against wall and Muslim Ban


DENVER, COLORADO- Thousands streamed into Civic Center Park to spend Saturday afternoon listening to speeches against President Trump’s MUSLIM BAN. Lots of families with kids so I kept my sign on the fringe pointed outward. I don’t usually favor profanity but this slogan was spotted at New York’s JFK airport last Satruday, then replicated across the country the same weekend. I spotted several at the Denver rally AND in Colorado Springs, because I think, NOT TODAY MOTHERFUCKER says it best. Racism, bigotry and wanton abuse of power is obscene.

Unresolved 2015 protest case reveals Denver police have been concealing evidence from all activist trials

Eric Brandt on the hoof
DENVER, COLORADO- A seemingly ordinary protester-in-the-roadway case has exploded in the face of Denver city lawyers from the prosecutor’s office to the department of civil liabilities. The case against activist Eric Brandt, for chasing a police motorcade which had falsely arrested a fellow demonstrator, today revealed that in arrests made at political protests, Denver police have been withholding key reports from the evidence disclosed to those defendants.

Denver police file what’s called an “After Action Report” for public protests that prompt a mobilized law enforcement response. But the department doesn’t release the report to arrestees who face charges stemming from those actions. Ostensibly the reports are kept secret to avoid public scrutiny of crowd control strategies, but the reports also document the attendance of officers who witness the purported crimes. Those –otherwise undocumented– personnel write reports which are then not included in the discovery evidence. That is what defense lawyers call “Brady Material”, witnesses who are not consulted about what they saw, possibly exculpatory evidence which is being denied to the accused. What role those officers might play in the circumstances leading to the arrests is also kept a mystery.

Last week just before Eric Brandt’s trial, a DPD After Action Report for the protest arrests of August 28, 2015 was accidentally brought to the court’s attention the morning of trial. DPD Commander Tony Lopez brought the AAR report with him as a crib sheet to help his officers corroborate their witness testimonies. The prosecuting attorney coaching the witnesses was offered the report as an aid and as a consequence she was obligated to reveal it to the defense. At first Judge Frederick Rogers gave the defense one hour to study the new document. An hour later, after everyone had pondered the implications, the jury pool was excused for good and Rogers conceded that more time was needed for further subpoenas.

At a pretrial conference today Judge Rogers tried to limit the extent of additional evidence needed before the case could proceed. He rejected a subpoena which he deemed too broad, and limited requests for further AARs to those filed August 26 and 28th. While a prosecuting attorney described such reports as so rare she’s never encountered one before, another city attorney sheepishly admitted that a paralegal in his office had unearthed three AARs that may meet the criteria. So much for rare, that’s three in as many days. Another city attorney insisted that she needed to vet those beforehand, but a peeved Judge Rogers volunteered to assess their applicability himself. If they weren’t in his in-box by 4pm, he’d assume they were forwarded to the defense as ordered.

In question in this particular case was a mention that the head of Denver’s Dept of Public Works had ordered the police action on August 28. This is at odds with all previous police testimony which denied communication with Public Works. It goes toward impeachment of those officers as well as establishing whether Denver police have been abusing the city’s “encumbrance” ordinance. The encumbrance code is what Denver has used to squash sustained protests beginning with the original 2011 Occupy Denver encampments.

This is not the first time After Action Reports have come to light. A lieutenant testifying against an activist last November mentioned in his testimony that the reason he was fully confident in answering how many officers had responded to the protest in question was that he’s just reviewed the AAR. Unfortunately the lawyer defending that case didn’t bite.

And the public learned about AARs when one was accidentally included in the discovery evidence of an Anonymous protester arrested at MMM2015. That report famously revealed that the police outnumbered the protesters, 27% of whom were undercover “Shadow Teams”. Unfortunately the furthest defense attorneys got to more evidence were reports sent for in-camera review by the judge, in that case municipal Judge Espinosa, who ruled there was nothing relevant to the case. The case by the way is under appeal.

Now it remains for someone to file a CORA Colorado Open Records Act request for the missing AARs. There’s one for every public protest countered by police. Anyone who has been convicted of an infraction at a protest, or was coerced into taking a plea deal on the face of one-sided evidence, was denied the full story they needed to defend themselves.

For Eric Brandt’s current case, his being the last of charges filed against activists who occupied the Lindsey Flanigan Courthouse plaza in Fall months of 2015, the defense is seeking the AARs for the 26 police raids made against the protest, from its start on August 26 to its terminal extraction on October 22. Were the police acting within their authority? Were their orders legal? Did Denver abuse an ordinance to curtail free speech in the plaza? Ultimately authorities curbed the protest by imposing a curfew. Was that a flagrant work-around to circumvent a federal injunction meant to prevent their harassment of protected activity in not only a traditional free speech area but a designated free speech zone. That battle is already scheduled in April 2017 in federal court.

NOTES:
Those dates, if you’re interested, were Aug 26, 10am & 11pm; Aug 28, 6pm & 7:30pm; Sep 2, 6pm; Sep 8, 4:30pm; Sep 12, 1am; Sep 13, 3am & 11pm; Sep 14, 11am & 1:30pm; Sep 15, 3am; Sep 16, 12am; Sep 17, 1:20am; Sep 18, 1:20am & 5pm; Sep 19, 2:40am; Sep 22, 12:30am; Sep 24, 3am; Sep 25, 8:30pm & 9:30pm; Sep 26, 2:15am; Oct 9, 1pm; Oct 10, 10:20am; Oct 21, 2pm; and Oct 22, 10am. There may have been more.