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

—————
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.)
—————

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.

————
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.
————

?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

————
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).
————

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

Are Colorado Springs Citizens Being Gagged On Fracking Issue?

Our colleague Lotus has initiated some fruitful correspondence on the subject of the still-impending fracking of the Pikes Peak region. In light of the City’s abrupt cancellation of the May 17 public hearing, we’ll present excerpts of his emails and telephone notes here.

Are Colorado Springs Citizens Being Gagged On Fracking Issue?

The fracking hearing was cancelled. The more I learn about how the fracking issue is being dealt with in Colorado Springs, the more it looks like citizens have very little room for input. This even seems to be true of the way the City Council Advisory Committee on fracking was run – very little room for public input.

The letter from Councilman Val Snider below seems to be saying that the public will only be allowed to respond to the recommendations of the advisory committee, will not be allowed general input concerning the issue of fracking.

It appears that 4-5 people from Huerfano/Las Animas Counties, who have been harmed by fracking, may be willing to speak to the city council and the public here in Colorado Springs. But the process seems to be so closed that it does not appear likely that these people who were harmed will be allowed to speak, allowed to warn people here in Colorado Springs what may be in store for them if they allow fracking in Colorado Springs. The informal Council meetings do not allow for public input. The formal meeting only allow for 3 minutes of input on subjects not on the agenda. And what will be on the agenda may not allow for general input, will be limited to discussion of the recommendations of the committee.

I read articles about how the El Paso County Commission dealt with fracking, and they ignored the recommendations of their own planning commission when they watered down their regulations. Where is the protection of our water, land and air when it comes to fracking? There does not seem to be much of any.

Lotus

From Colorado Springs City Councilman Val Snyder:

Hi Lotus,

The city will not be having any public meetings on fracking. The city will have public meetings on the recommendations of the Oil and Gas Committee on areas of potential regulation for oil and gas activities. The first public meeting on this is May 24, 6-8pm, at the City Administration Building.

There will be opportunities for public comment before City Council, as the potential oil and gas regulations work their way through the process. The first is tentatively scheduled for June 12, a formal Council meeting.

Thank you for your writing.

Val

From a telephone conversation with May Jensen:

Anti-Fracking Info From Mary Jensen & Other Info
(From my notes, so hope is accurate.)

I have been wondering why people from other communities who have been harmed by fracking (their land, water, personally, etc) have not been asked to speak to the local Colorado Springs City Council, El Paso County Commissioners, etc. So I finally located the author of a letter to the editor of the CS Independent, Mary Jensen, who has a doctorate in applied clinical nutrition.

Mary Jensen’s March 8-14, 2012 email:

Fracking concoction by Mary Jensen:

Across the state and the country, there is documented evidence of wells being contaminated by chemicals used in oil and gas fracking. Yet Gov. John Hickenlooper recently demonstrated how supposedly safe fracked water is by taking “a swig of it.”

I am incensed at the example he’s setting — playing Russian roulette by drinking water that may or may not have been sanitized for a cheap publicity stunt. He need only look as far as his own state to see the irreparable harm done to our people, our livestock, our air, our water and our lands.
Here are some materials Hickenlooper might have ingested in his fracked beverage:

• Benzene, a powerful bone-marrow poison (aplastic anemia) associated with leukemia, breast and uterine cancer. It may also cause fatigue, skin and mucous membrane irritation, and narcotic behavior including lightheadedness, disorientation, loss of consciousness and coma.

• Styrene, which may cause eye and mucous membrane irritation, neurotoxic effects in the central and peripheral nervous systems, loss of consciousness and death.

• Toluene, which may cause muscular incoordination, tremors, hearing loss, dizziness, vertigo, emotional instability and delusions, liver and kidney damage, and anemia — besides potential harm to developing fetuses.

• Xylene, with cancer-causing and neurotoxic effects, which can cause reproductive abnormalities and death through respiratory or cardiac arrest. More toxic than benzene and toluene!

• Methylene chloride, which may cause cancer, liver and kidney damage, central nervous system disorders and worse.

• Or any of more than 1,000 other safe “food additives” used by the oil and gas industry.

Hickenlooper is welcome to come down to Huerfano and Las Animas counties to talk with the ranchers and other folks who have been irreparably damaged by these poisons.

— Mary Jensen, Ph.D.

From telephone conversation with Mary Jensen on 5-12-12:

Mary especially emphasized that we should get Josh Joswick to speak to our elected leaders. Josh Joswick: commissioner in southern Colorado’s La Plata County, which successfully fought state regulators and companies in court for a say in oil and gas production.

http://www.chron.com/business/energy/article/Drilling-threatens-nature-Colorado-residents-say-1968302.php

Josh Joswick is now a Staff Organizer, Oil and Gas Issues the San Juan Citizens Alliance Staff Organizer, Colorado Energy Issues josh@sanjuancitizens.org Josh brings nearly 20 years of experience in dealing with the oil and gas industry to the position of Oil and Gas Issues Organizer. He served three terms as a La Plata County Commissioner from January 1993 to January 2005; in that capacity, locally he worked to see that La Plata County’s oil and gas land use regulations were not only enforced but expanded to protect surface owners’ rights. Josh has dealt with numerous agencies, and legislative and Congressional elected officials, to uphold the rights of local governments to exercise their land use authority as it pertained to oil and gas development, and to assert the right of local government to address with the environmental impacts of oil and gas development.

http://www.sanjuancitizens.org/otherpages/contact.shtml

http://www.spoke.com/people/josh-joswick-3e1429c09e597c10008191b9

Mary Jensen said there are probably at least 4-5 people who have been adversely affected by fracking that would be willing to travel to Colorado Springs in order to speak to the Council. Many people have gone to court and signed a settlement that they later learned prevents them from speaking to the press. Many of these people have spent everything they have fighting the fracking companies in court.

Silencing Communities: How the Fracking Industry Keeps Its Secrets
http://truth-out.org/news/item/9004-silencing-communities-how-the-fracking-industry-keeps-its- secrets

See attached two page fracking information add that was run in the LaVeta Signature and Huerfano County Journal. Organizers paid over $2,000 for these adds.

Mary mentioned that 6 people in her area have died of brain cancer, and another person has brain cancer.

Mary Jensen went on to say that she had heard that drilling down around Trinidad was disastrous in terms of contaminating many wells, but she did not have specifics. Her understanding is that the gas company declared bankruptcy and walked away from it all. (Contaminated wells are not likely to be usable for 100 years.)

In one of the Gazette articles, see below, it said that the Colorado Springs moratorium on fracking ends May 31, 2012. (A reason to extend the moratorium would be in order to provide more time to revise the regulatory structure.)

Mary said that fracking, this dangerous method of oil and gas extraction, is not more effective than simply drilling for oil and gas. Read: Deborah Rogers Transcript of “In Their Own Words: Examining Shale Gas Hype”

http://preservethefingerlakes.org/?p=127

Mary said that there is now a network of 14 anti-fracking organizations. The contact for getting on the Grassroots EnErgy activist Network (GREEN) is Citizens for Huerfano County, Kelly Kringel, kkringel@gmail.com

The CHC website is http://www.huerfanofrack.com/.

Also there is going to be a Colorado Grassroots Fractivist Summit, Jun 9, 2012

Mary stated that it was important that I visit the website TEDX http://www.endocrinedisruption.com/home.php and learn about the 600+ chemical used in fracking hundreds of which adversely affect the endocrine system.

http://www.endocrinedisruption.com/home.php

Mary said another important resource on fracking is A Primer for Local Governments on Environmental Liability

http://www.mrsc.org/subjects/environment/envliabprim.pdf

She said that the president of Citizens for Huerfano County, Kelly Kringel, kkringel@gmail.com , would be able to provide me with access to this document. The CHC website is
http://www.huerfanofrack.com/

On http://www.huerfanofrack.com/ I located POW: Protect Our Wells appears to be a mainly Colorado Springs based group. The president is Sandy Martin, 719-351-1640, sandra@protectourwells.org .

Other board members also seem to have CS area phone numbers

http://www.protectourwells.org/ ,
http://www.protectourwells.org/BOD.html .
http://www.huerfanofrack.com/
also listed the Sierra Club
http://rmc.sierraclub.org/ppg/
and Green Cities Coalition, which I am already familiar with.
http://www.greencitiescoalition.net/index.php?option=com_content&view=article&id=88&Itemid=30

Both of these organizations have people on the committee advising the Colorado Springs City Council on fracking.

Mary said that Perry Cabot from Colorado State University in Pueblo was helping people in her area with base line water studies. These are needed in order to later prove well contamination.

Mary said the Land Owner’s Guide To Oil and Gas Development by the Oil and Gas Accountability Project was another important document. And also the book Oil and Gas At Your Door: 970-259-3353.

Citizens for Huerfano County President, Kelly Kringel, kkringel@gmail.com, asked in an email if I knew Mary Talbott. I do not, so I did a search and came up with:

Mary Talbott & fracking issue:

Commissioner to energy company: ‘We’re scared of you’

http://www.gazette.com/articles/drilling-127253-county-approved.html

Citizens, county respond to frack attack

(Talbott, who is retired from the El Paso County Department of Health and Environment and does not live near prospective drill sites)

County, city leaders to get a present on Tuesday

(She plans to hand them a copy of “Split Estate,” a 75-minute DVD about drilling issues in Rifle, Colo. )

http://thecountyseat.freedomblogging.com/tag/el-paso-county-commissioners/

Talbott presented fracking report to El Paso County Board of Health (bottom p 3)

http://www.elpasocountyhealth.org/sites/default/files/11_14_11_Minutes.pdf

What has happened in El Paso County…Majority of Commissioners Ignored head of own planning commission, and the recommendations of the Commission!

Gazette article:

County adopts slimmed-down oil and gas regulations

ANDREW WINEKE
THE GAZETTE

http://www.gazette.com/articles/talbott-129368-denver-citizens.html

El Paso County commissioners on Tuesday narrowly approved a basic set of regulations to govern oil and gas drilling in the county.

The Board of County Commissioners voted 3-2 to approve a proposal that was significantly scaled down from what the county’s planning commission approved earlier this month. The regulations govern transportation, emergency response, noxious weeds and, controversially, water quality issues related to drilling.

Commissioners Peggy Littleton and Darryl Glenn objected to the water quality regulations, arguing that the county was overstepping its authority because the Colorado Oil and Gas Conservation Commission also regulates drilling-related water issues.

“I think it would be irresponsible for us to open ourselves up to lawsuits,” Littleton said.
The Attorney General’s Office and oil and gas commission director Dave Neslin have expressed concern over the county’s proposed rules, both in the version approved by the planning commission and a trimmed-down version the county’s planning staff developed last week, arguing that the county can’t regulate areas where the state has its rules in place.

However, commissioners Amy Lathen, Sallie Clark and Dennis Hisey said that water quality was too important to leave up to the state.

“I really don’t mind pushing the envelope when it comes to our water quality,” Hisey said.
The water quality monitoring regulations adopted by the county are similar to what the oil and gas commission has agreed to in other counties, requiring wells to be monitored initially for a baseline measurement and then at one, three, and six-year intervals after drilling begins.

The commissioners scrapped most of the rules proposed by the planning commission, including measures that would have governed setbacks from structures and property lines, mitigation of visual impacts and noise and impacts to wildlife. The commissioners will instead try to address those issues by working with the oil and gas commission on an intergovernmental agreement.

Getting some kind of oil and gas regulations in place was vitally important for the county, since a moratorium on oil and gas permits expired at midnight Tuesday and the county had no other regulations in place. Houston-based Ultra Resources has applied to drill six wells in El Paso County, four in unincorporated parts of the county and two more in Banning Lewis Ranch, inside the Colorado Springs city limits. The city imposed its own moratorium and set up a task force to study oil and gas regulations. The task force plans to make a recommendation to City Council by early May.
All of this was decided in a meeting that stretched nearly nine hours Tuesday. Several dozen speakers weighed in on the proposed regulations on each side of the issue.

Jeff Cahill, who lives near the Corral Bluffs Open Space, said that the proposed drilling has already hurt his property values and made it difficult for he and his wife to sell their home.
“They say they’re not going to impact us,” he told the commission. “Well, they’ve already impacted me.”

Steve Hicks, chairman of the El Paso County planning commission, urged the commission to pass more stringent regulations such as those approved by the planning commission.

“At times, there needs to be extra regulation where the state doesn’t go far enough, and this is one of them,” he said.

Other speakers praised the economic potential of expanded oil and gas development in the county.
Bob Stovall recounted his experience as an oil and gas lawyer and a city attorney in Farmington, N.M.

“Air is pretty clean there. Water is pretty clean there – and that’s after 100 years of oil and gas,” he said. “If oil and gas is around in this county, it could be good for us and it can be done well.”

Tisha Conoly Schuller, president and CEO of the Colorado Oil and Gas Association, said the county’s new regulations were a good framework to build on.

“The El Paso County commissioners made significant progress today,” she said. “The rules passed are 90 percent within the guidance provided by the Attorney General. There are still a couple of important issues to work through, but I am confident that the county is serious about finding common ground, and after seeing the progress made today, we will continue to work toward county regulations that are protective of the environment and within the scope of the county’s jurisdiction.”

Read more:

http://www.gazette.com/articles/county-132696-water-quality.html#ixzz1ujNiqAjK

Split Estate: an eye-opening examination of the consequences and conflicts that can arise between surface land owners in the western United States, and those who own and extract the energy and mineral rights below. http://splitestate.com/

http://www.splitestate.com/video_clips.html
http://www.amazon.com/s/ref=nb_sb_noss?rh=n%3A2625373011%2Ck%3Asplit+estate+dvd&k eywords=split+estate+dvd&ie=UTF8

“split estate,” in which landowners have surface rights but someone else owns the rights to the underground minerals. Josh Joswick : commissioner in southern Colorado’s La Plata County, which successfully fought state regulators and companies in court for a say in oil and gas production.

http://www.chron.com/business/energy/article/Drilling-threatens-nature-Colorado-residents-say- 1968302.php ;

http://www.spoke.com/people/josh-joswick-3e1429c09e597c10008191b9

Gasland, a documentary on fracking.
http://www.gaslandthemovie.com/whats- fracking/affirming-gasland ,
http://www.gaslandthemovie.com/
http://gizmodo.com/5905909/gasland-the-definitive-documentary-on-fracking

Frack-happy Ultra Petroleum is the city’s largest private landowner. What kind of neighbor might it be?

Ultra Petroleum Corp., which owns subsidiary Ultra Resources…has most of the leases and permits in El Paso County and Colorado Springs

http://www.csindy.com/coloradosprings/close-up/Content?oid=2422410

El Paso County Board fine with long lines

el-paso-countyEL PASO COUNTY, COLO.- I visited the Board of County Commissioners today to seek their intervention with problems developing with the upcoming election. They’d already voiced their support for Clerk and Recorder Bob Balink’s voter intimidation of Colorado College students. In light of national criticism of vote suppression tactics such as the fewer early-voter stations, longer wait times, and the possibility of running out of paper ballots, I wanted to give the commissioners a chance to reassure voters of El Paso County. Long lines? They’re all for them. In their own words:

While disadvantaged citizens are particularly burdened by the prospect of long lines at the polling stations, this was not a concern shared by the commissioners. They saw long lines as a sign of greater voter participation. In particular, for that reason, Commissioner Sallie Clark said “I hope there are long lines.”

Two other commissioners also up for reelection on Tuesday held the same view. Commissioner Amy Lathen said “Long lines mean people are getting out and voting … I don’t think that’s a problem.” Commissioner Dennis Hisey added “Waiting to vote is an American tradition.”

County Treasurer Sandra Damron felt compelled to stand up and add that she thought “casting aspersions” was unwarranted. Damron reminded me of a typical small town administrator bucking at the oversight of Federal supervisors whose job it is to know better.

“I’m really angry that outside organizations, feel that they can come into our community, and try to cast aspersions, when there are none that are deserved. … Last time I looked, there is no constitutional right to avoiding long lines. They just happen.

Commissioner Jim Bensberg put the blame for long lines on voters who come to the polls “without having done their homework” in view of the lengthy ballot initiatives. Commissioner Wayne Williams thought that those who criticized our local election were “ignorant” and of “questionable judgment.”

Commissioner Hisey answered the criticism of no early polling location for the South East part of town, where there are more African American, Hispanic, and military families. He explained that the Citadel Mall early-vote facility was targeted for them. “We put a polling place in the heart of where the minorities live, shop and work.”

News reports reflect the turnout at the Citadel Mall has been primarily white.

Every commissioner wanted to admonish any complainants with the reminder that they had their opportunity to mail in their ballots. No one addressed the reports of many who’ve yet to receive such ballots, nor those who await confirmation that they are registered.

The County Attorney answered a concern about Absentee ballots sent in without photocopies of personal IDs. Even he was unsure if sufficient warning was given that such photocopies were required, but he consulted with a colleague before admitting that all such ballots would be considered provisional, and then duly discarded as insufficient.

By the way, every board member took the occasion to make an opening statement at today’s meeting. Each was a Republican partisan reminder to vote for the candidates who promise smaller government, etc, etc. Commissioner Bensberg ended with this anecdote.

“One of my constituents called me yesterday with a suggestion. He was concerned that there might be a long line at the polling place, and he came up with an idea that I think is worth pursuing. I’d like to pass this along to our Clerk and Recorder, and that is, that all Republicans should vote on Tuesday, and all Democrats should vote on Wednesday.

To which Commission Hisey said “I’ll leave that one alone.” I’d say Commissioner Bensberg was trying to be humorous, but if you wonder why that disinformation tactic reemerges every election, and has been reported recently in numerous precincts around the country. We can certainly question whether elected officials should be joking about it, without a preface, or explanation. In light too of the many serious violations that the El Paso County Board of Commissioners appears to be adamant to overlook.

You can observe the complete statements on Comcast Channel 17 tonight at 7PM or later at 10PM. Otherwise the audio file becomes available at this link on the El Paso County website.

Jim Bensberg also suggested that complaints about voting irregularities always came from the “other side,” suggesting questionable motives on their part. I paraphrase: Perhaps accusations of partisanship could be dropped only when complaints come from both sides.

Well, I do not wish for either. But maybe Bensberg should let us know the minute a phony “November 5” notice emerges which instructs REPUBLICANS to vote the day after. An example I doubt we’ll ever see. Number one, because believers in democracy don’t want to disenfranchise anyone, but two, Republicans don’t dare make a fake flier to discredit the Dems, because it would mean risking their own voters falling for the ruse. An entirely likely outcome.

A fake notice distributed in Virginia:
virginia-elections-fake-flier.jpg

Corral Bluffs safe from tire track erosion

COLORADO SPRINGS- El Paso County Board of Commissioners decided today not to pursue a proposed Corral Bluffs OHV park. Their reluctant vote followed a recommendation from El Paso Parks Department that the site would be inappropriate for motorcycle trails. Open Space proponents exchanged smiles at the unexpected turn, but bore the brunt of scolding as the board tripped over each other to pander to their yokel constituency.

Our speakers today were careful to point out the argument had never been against OHV parks in general, merely for this site. Off-road motorcycling being a recreational orientation like any other. As if gas-guzzling, air-noise-polluting, and terrain-shredding were inalienable rights, a God-given American pursuit of happiness guaranteed by the Constitution.

El Paso hayseeds.

The El Paso County commissioners could have made this vote a stand on environmental grounds and heralded the Pikes Peak region’s awakening to the enlightened frame of mind generally attributed to the rest of Colorado. But no, El Paso County are proud hayseeds.

Voting down the OHV turned into protestations for having to do the right thing, without understanding, nor fully believing why. This included repeated admonitions to the Open Space group for its presumed condescending attitude toward the lowly off-road bikers. One commissioner even called upon the presumed eco-nimby crowd to help their motorcycle-preoccupied brethren to find a suitable alternative OHV location, and “not a dump, or under power lines,” etc. She would “hold [our] feet to the fire” until an OHV site was found for them.

Do we have to?

With receding fuel supplies, global warming, and a rising appreciation for man’s unsustainable environmental footprint, the days of feeling entitled to moshing about on motorized dirt devastators are probably coming to a close. I’m not sure how to defend the argument that hillbillies must be permitted their heritage of behaving badly.

It’s fun? I’m sure it is. So was bear-baiting I’m sure, and spitting, smoking or snag-hooking spawning salmon. Having come up against man’s better judgement, maybe it’s time to rain on our off-road thrill-seeking destructo-hicks. Who has the time to police whether they can tell an anthill from a pile of sawdust? They’ll scatter either like it was confetti.

A chief argument made by Commissioner Bensberg had to do with the sticker fees already collected from motorcycle owners. They’re entitled to something for that. I say they’re entitled to get their money back. Having collected the fee is not a reason to keep prostituting your down syndrome sister once someone with better judgment has let you know it’s wrong. Give the fee back. Go pimp something else, if that’s all you know to do.

El Paso County is clearly a poor steward of our land resources. Beside the sprawl, beside the lacking mass-transit system, look at our mountain scape. How are we doing? There are the mining scars along the Front Range, our part of the Front Range, where we shave for aggregate because it’s cheaper than digging for it like every other town. The mining companies have old, pre-environmental contracts, but apparently we do not care enough to stop them. For tourists, our mountains are our natural resource. How much deep-thinking do we have to do to figure out they are worth more than cheap aggregate?

There’s the Pikes Peak Highway. Still unpaved, despite the environmental devastation it causes. Was it the advent of automobiles that convinced civilized man to pave the roads? Did I say autos? I meant Romans. Of course, paved roads came late to the American West, but they came when we tired of wiping the mud off our boots every time we crossed the street. Later we learned that paved roads are better for the environment. Well some folks believe that.

There are the ridge top homes. Pikes Peak is the only region of Colorado where homes are permitted on ridge tops. The practice is terrible for erosion and flooding, not to mention everyone else’s view, but in these parts we say Okie Dokie!

Of proposed methods for saving the archeology of Corral Bluffs, Commissioner Bensberg professed he didn’t see how either flooding or paving would preserve the artifacts, hence his preference for motorcycle trails. If you are not prepared to follow the recommendation of experts because your inexpert self doesn’t understand it, you’re probably not suited to vote on the matter.

Pikes Peak region trustees can point to the mining scars on the Front Range, the still unpaved Pikes Peak Highway, and the ridge top homes as proof that Colorado Springs won’t be told how to care for nature. And we’ll look to serve the OHV throwbacks too. Give those yokels their spitoons!

Commissioner rallies bikers to lobby

CORRAL BLUFFS, COLORADO- Residents trying to hold on to open space –Save Corral Bluffs– east of Colorado Springs have been fighting efforts to build a motorcycle raceway adjacent a pre-existing motor cross park. Local archeologists have been leading tours of the area in hope of preserving the site. Mark Lewis has helped to videotape the effort and forwarded this interesting development.

One of the county commissioners deciding the fate of Corral Bluffs has weighed in on an online dirt biker message board. It’s though this might be grounds to ask for his recusal on the matter. El Paso County Commissioner Jim Bensberg had this to say:

“Thursday morning, April 24, at the County Office Building, about 9 a.m., the Board of County Commissioners will decide whether to spend $35,000 of your OHV sticker money on a park planner pursuant to our original grant request.

The anti-access folks will be out in force to protest this next step in the plan. The point needs to be made, by someone other than me, that 18” of single track for 20 miles = 3.5 acres out of a proposed 900-acre park. Can you say “Open Space?” Sure ya can!

If the motorcycle community wants to be heard, this is a prime opportunity. Otherwise, all the Board will hear is the constant whining from the likes of Lee Milner and the NIMBYs.

So, spread the word. If motorcyclists continue to be underrepresented at these critical public meetings, they will get nothing in return. Democracy requires participation!

Jim B.”

Mark’s got lots of videotapes of the planning meetings and town forums at CSAction.org. What’s at stake is described in great detail at SaveCorralBluffs.com. The area is so-named because cattle drives could easily corral their cows in the natural confines of the bluffs. There are even cliffs discovered to have been used for buffalo jumps by Native Americans.

Defense industry’s so-called gravy train

Senator Ken Salazar described Colorado Springs as a crown jewel in our nation’s defense arsenal. The Pikes Peak area is indeed a magnet for the weapons industry because of our military installations. We have Fort Carson (3rd Armored Cav), Peterson AFB (Missile Space Command), Schriever AFB, of course NORAD and the Air Force Academy.
Mysterious Navy Pier 13We even have a land-locked high-altitude facility for the Navy.

We’re often reminded that the military keeps Colorado Springs afloat. In fact the County Commissioners, City Council and the Chamber of Commerce, egged on by car dealers and land developers, seize at every chance to lure the Defense Department budget to this city. Currently they’re trying to expand the Pinon Canyon Maneuver Site, against the unanimous desires of the Southeast area ranchers, the state legislature, even much of the city population.

Now, consider this incongruity: over the last several years, both El Paso County and the City of Colorado Springs have had to cut back their services to save money. At a time when the war business has been flush with income! County offices have reduced their hours. The city has abandoned many services altogether. Street medians are no longer maintained by city crews. Toilet facilities at city parks have simply been left locked. The only reason we’ve been able to grow the police force is by paying for them by issuing more citations. Let’s call that a nuisance tax.

The gravy train is a lie, isn’t it? We pay for the military presence in Colorado Springs with higher crime, predatory retailers, porn joints, all the low wage jobs required by businesses which cater to soldiers, and as a result, a disproportionate drain on our social services. What do we get in return? An impoverished infrastructure and the dubious privilege of schooling our kids with offspring very likely disadvantaged by troubled families and questionable role models.

El Paso Co. to respect the Sanctity of Life

County resolved to uphold the sanctity of life in Haditha
We got a heads-up from our friends at Newspeak about an impending anti-abortion proclamation by the El Paso County Board of Commissioners. I accidentally read the 2nd page first. If you strike out half the WHEREASes, the resolution is about all human life. And their concluding paragraph dots the i. Those crazy pro-war Republicans are finally speaking out against Bush’s atrocities. It’s about time. We can be proud that El Paso County proclaims an end to war.

NOW, THEREFORE, BE IT RESOLVED that the undersigned members of the Board of County Commissioners of El Paso County, Colorado hereby proclaim January 21-28, 2007, as Sanctity of Human Life Week in El Paso County. As we reflect upon the sanctity of human life, we call upon our residents to recognize this week with appropriate ceremonies in our homes and places of worship, to rededicate ourselves to compassionate service, and to reaffirm our commitment to respecting the life and dignity of every human being.
DONE THIS 11th day of January 2007 at Colorado Springs, Colorado

THE BOARD OF COUNTY COMMISSIONERS
OF EL PASO COUNTY, COLORADO

Dennis Hisey, Chair
Jim Bensberg, Vice Chair
Wayne W. Williams, Member
Sallie Clark, Member

Bigger jails or bigger hearts

Nearly half a million people are now behind bars in the United States for nonviolent drug law violations, which is more than all of Western Europe — with a larger population — incarcerates for everything!

Our country also has the most religious denominations and has one of the highest rates for church attendance outside of the Muslim world.

What is wrong with this picture?

In the late 1980s the University of Colorado sponsored a survey seeking public opinion regarding building more prisons as a safety measure. The majority of respondents did not think more prisons would make them feel safer.

Many who reported they would feel safer with more prisons were employees or families of the police, sheriff and corrections departments. A conclusion could be that those working in criminal justice fields may have the most reasons to be fearful.

Are they afraid of traffic violators or DUI offenders, many of whom fill our jails, or is the fear predominately about nonviolent inmates who, upon release, may become violent?

Another conclusion could be one expressed by a local deputy sheriff who, several years ago, made this quip at a County Task Force meeting on Alternatives to Incarceration: “We are the only ones with job security around here!”

My El Paso County Criminal Justice education began at those meetings, where I learned:

· Various groups were protecting their turf and were adverse to using alternatives if someone else was providing them.

· No one in the task force seemed to know if there were any local use of electronic monitoring.

· Illegal drug use and mandatory minimum sentences were the main reasons prison expansion was accelerating.

This year my experience as a representative on the Justice Advisory Council has reinforced earlier observations.

I have also learned there is an overcrowding situation because of increased numbers of women behind bars (many for drug-related offenses), unfortunately indicating more children become social service statistics and likely future juvenile detainees.

There is general agreement, at least in one subcommittee, that jail alternatives such as PR bond release and electronic monitoring, along with behavioral and addiction counseling, could be utilized to a much greater degree for nonviolent offenders. Such modalities have proven successful and very cost effective in other jurisdictions.

And judges need to be better informed about available sentencing alternatives.

Common sense dictates that other solutions be tried if the $40 billion we have been spending annually in the United States to solve the drug problem remains unsuccessful. We need to stop protecting and enhancing a system that has failed over and over again.

It is time to bring about change. To do so, we must all become informed about city and county budgets and the percentage of our tax dollars being spent on criminal justice issues compared to quality of life matters that provide the following:

Health and wellness assistance for those unable to afford health insurance; free recreational opportunities in public parks and trails for residents and visitors; public transit to help our youth, elderly and disabled get to these important destinations and to help ex-inmates get to their jobs; and places to park and connect with a bus, lessening roadway congestion.

We must request the media provide complete and unbiased local government information in a timely fashion.

We must contact county commissioners as well as City Council members, giving them our perspectives on issues and ideas for solutions while demanding accountability.

We also need to contact our federal and state General Assembly members and seek changes to legislation that has contributed to our problems instead of improving the health, safety and welfare of all.

Finally, we must examine our own motivations toward and involvement with the less fortunate in our community and resolve to assist small groups and agencies that are helping people help themselves.

(Printed in YOUR TURN, THE INDEPENDENT, December 19, 2002)