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.

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1 No relation to the undersigned.?
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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.)

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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.”
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?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.
————

?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

Pro-immigrant activists with Occupy Denver file suit against DIA and DPD, challenge airport free speech “permit”


DENVER, COLORADO- Civil liberties champion David Lane has filed a complaint in US district court challenging Denver’s office of the city attorney for instituting a permit process at DIA to prevent public protest. Holding signs has become impermissible at the airport, without the issuance of a permit seven days in advnace, although police are not bothering themselves about signs welcoming homecomers or seeking to connect business visitors with their limo service. That selective enforcement is unconstitutional of course, and the lawfirm powerhouse of Kilmer Lane & Newman is filing suit on behalf of two Occupy Denver plaintiffs. last Sunday, January 29, both were threatened with arrest by DIA police. While two earlier attempts to assemble had capitulated to DPD intimidation, the Occupy Denver activists stood their ground. Why did you file your lawsuit? “We know our rights. We want the POLICE to know our rights.”

1. Full text of complaint:

Case 1:17-cv-00332 Document 1
Filed 02/06/17 USDC Colorado Page 1 of 14

Civil Action No.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

NAZLI MCDONNELL,
ERIC VERLO,

Plaintiffs, vs.

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

Defendants.

______________________________________________________________________________

COMPLAINT

______________________________________________________________________________

Plaintiffs, by and through their attorneys David A. Lane and Andy McNulty of KILLMER, LANE & NEWMAN, LLP, allege as follows:

INTRODUCTION

1. Plaintiffs Eric Verlo and Nazli McDonnell challenge a regulation of alarming breadth that bans all First Amendment expression at Denver International Airport without a permit.

2. Plaintiffs are concerned citizens who believe that President Donald Trump has overstepped his executive authority by signing the January 27, 2017, Executive Order (hereinafter “Muslim Ban”), which permanently bans Syrian refugees from emigrating to the United States, temporarily bans nationals of seven countries (including permanent legal residents and visa-holders), and suspends all applications to the United States refugee program (even as to vetted entrants currently in transit).

3. Plaintiffs wish to express their disgust with President Trump’s (likely unconstitutional) Muslim Ban. They wish to do so in the same place that hundreds of thousands of Americans across the country have done: standing directly outside of the secure Customs and Border Protection (hereinafter “CBP”) screening area within an airport where immigrants to America enter into the main terminal after clearing customs. Plaintiffs, unlike many citizens across this great nation who have exercised their opposition to the Muslim Ban in airports by chanting, singing, dancing, and praying, simply wish to stand in silent protest, holding signs that express their solidarity with immigrants and the Muslim community.

4. Plaintiffs are banned from doing so by DENVER INTERNATIONAL AIRPORT REGULATION 50 (hereinafter “Regulation 50”).

5. Regulation 50 states: “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.” DENVER INTERNATIONAL AIRPORT REGULATION 50.03. In order to obtain a permit, an individual must “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[.]” DENVER INTERNATIONAL AIRPORT REGULATION 50.04-1.

6. Plaintiffs ask that this Court enjoin the enforcement of Regulation 50 and prohibit Defendants from arresting them for their First Amendment-protected activity of standing in peaceful protest within Jeppesen Terminal. Regulation 50 is overbroad in violation of the First Amendment and vague in violation of the Fourteenth Amendment’s Due Process Clause.

7. This is a civil rights action for declaratory and injunctive relief as well as fees and costs arising under 42 U.S.C. §§ 1983, 1988 and 28 U.S.C. Section 2201 et seq. due to Defendants’ current and imminent violations of Plaintiffs’ rights guaranteed by the First and Fourteenth Amendments to the Constitution of the United States.

PARTIES

8. Plaintiff Eric Verlo is a citizen of the United States of America. Mr. Verlo wishes to show his resistance to President Trump’s Muslim Ban, so that others will be inspired to join in the resistance.

9. Plaintiff Nazli McDonnell is a citizen of the United States of America. Ms. McDonnell wishes to show her resistance to President Trump’s Muslim Ban, so that others will be inspired to join in the resistance.

10. Defendant City and County of Denver is a municipal corporation and political subdivision of the State of Colorado. Thus, it is an entity subject to the provisions of § 1983.

11. Defendant Antonio Lopez is a Commander with the Denver Police Department. Commander Lopez is responsible for security at Denver International Airport’s Jeppesen Terminal.

12. Defendant Virginia Quinones is a Sergeant with the Denver Police Department. Sergeant Quinones is responsible for security at Denver International Airport’s Jeppesen Terminal.

JURISDICTION AND VENUE

13. Plaintiffs bring this claim pursuant to 42 U.S.C. § 1983; the First Amendment to the United States Constitution, incorporated as against States and their municipal divisions through the Fourteenth Amendment to the United States Constitution; and the Due Process Clause of the Fourteenth Amendment.

14. This Court has jurisdiction under 28 U.S.C. § 1331 over Plaintiffs’ claims that “arise[] under the Constitution of the United States.”

FACTS

15. On January 27, 2017, President Donald Trump signed an Executive Order, which permanently banned Syrian refugees from emigrating to the United States, temporarily banned nationals of seven countries (including permanent legal residents and visa-holders), and suspended all applications to the United States refugee program (even as to vetted entrants currently in transit). President Trump’s Executive Order has been subsequently referred to as a “Muslim Ban,” because it both mirrors President Trump’s racist, anti-Islam statements made on December 7, 2015, that he was planning to ban all Muslims from entering the United States until our representatives can “figure out what’s going on” and the ban targets countries whose population is predominantly Muslim and seemingly bears little rational relation to each country’s security threat to the United States.

16. Immediately upon the enactment of President Trump’s Muslim Ban there was an outpouring of outrage from a large proportion of the American population and across the spectrum of political affiliation. This outrage led to resistance in the form of protests.

17. On January 28, 2017, and January 29, 2017, protests erupted in nearly every major city in the United States. The protests organically formed in our nation’s airports. Protesters chose to express their disgust with President Trump’s Muslim Ban in airports (and specifically outside of the secure CBP screening area) because individuals affected by the ban who were in transit to the United States were being held and questioned by CBP agents there. Many of these travelers, including lawful United States residents, were forced to sign documents revoking their lawful status within the United States and deported. Still others were simply deported with no explanation. Others still were held for hours as teams of lawyers rushed to prepare habeas petitions for their release.

18. News reports about the protests make clear that they have been peaceful and non- disruptive despite the gathering of, in some cases, thousands of people.

19. Airport staff have told protesters, and would-be protesters, at numerous airports across the nation, including Kansas City International Airport, that there are no restrictions on their speech and that all protesters who wish to participate in actions against the Muslim Ban are allowed. Protests have continued in other cities to this day.

20. On January 28, 2017, there was one such protest at Denver International Airport, within the Jeppesen Terminal. At approximately 5:00 p.m. hundreds gathered in the Jeppesen Terminal’s atrium, near arrivals, to protest and many others gathered to bear witness.

21. Prior to the protest, leaders had applied for a permit. It was denied. The reason for its denial was that the permit was not requested with seven days advance notice of the protest occurring. Regulation 50 requires seven days advance notice.

22. The January 28, 2017, protest began with speeches, chants, songs, and prayers. It was a peaceful gathering of solidarity for immigrants and Muslims. Every person at the January 28, 2017, protest was contained in an area of the Jeppesen Terminal atrium that is designed as a gathering space for people to sit, relax, and converse. No one was standing in the walkways or passageways of the terminal.

23. Soon after the January 28, 2017, protest began, members of the Denver Police Department arrived on-scene. Commander Antonio Lopez engaged the leader of the protest, Amal Kassir, along with State Representative Joe Salazar and representatives from the ACLU of Colorado, and informed them that the protest was unlawful. Commander Lopez told Ms. Kassir that anything that “could be construed as Free Speech” was prohibited at the Denver International Airport, including within the Jeppesen Terminal, without a permit. See Exhibit 1, January 28, 2017 Video.

24. Commander Lopez also stated that all “First Amendment expression” was prohibited at the Denver International Airport, including within the Jeppesen Terminal, without a permit on Regulation 50. Commander Lopez handed Regulation 50 to multiple protesters, including Ms. Kassir. See Exhibit 2, January 28, 2017 Video 2.

25. Regulation 50 states (in pertinent part): “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.” DENVER INTERNATIONAL AIRPORT REGULATION 50.03. In order to obtain a permit, an individual must “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[.]” DENVER INTERNATIONAL AIRPORT REGULATION 50.04-1.

26. Commander Lopez, along with members of Denver International Security, told Ms. Kassir that every portion of Denver International Airport property, which has an approximately fifty square mile footprint, is off-limits for First Amendment expression. They suggested that Ms. Kassir move her protest to Tower Road, which is approximately six miles from the Jeppesen Terminal and, like most of the land surrounding Denver International Airport, adjacent to open prairie land with no inhabitants.

27. Commander Lopez threatened Ms. Kassir and numerous other demonstrators with arrest if they didn’t immediately cease any “First Amendment expression.” According to Commander Lopez’s directives, the individuals gathered in the Jeppesen Terminal could not stand holding signs, sing, speak to others about matters of public concern, hold the United States Constitution above their shoulders, or stand silently with their arms interlocked.

28. Ultimately, to avoid arrest, Ms. Kassir and the demonstrators moved outside of the Jeppesen Terminal to the large area on its south side, adjacent to the escalators leading to the commuter rail and under the Westin Hotel. The protest continued peacefully for a little while longer, then disbursed without issue.

29. The next day, January 29, 2017, Plaintiffs Eric Verlo and Nazli McDonnell traveled to Denver International Airport’s Jeppesen Terminal to express their opposition to President Trump’s Muslim Ban.

30. Mr. Verlo and Ms. McDonnell brought with them signs expressing support for immigrants and expressing concern that history was repeating itself with disastrous potential consequences.

31. Mr. Verlo and Ms. McDonnell positioned themselves adjacent to the secure CBP screening area within the Jeppesen Terminal at approximately 1:15 p.m.

32. Adjacent the secure CBP screening area at the Jeppesen Terminal is the only place where Mr. Verlo and Ms. McDonnell can reach their intended audience. Mr. Verlo and Ms. McDonnell wish to communicate with those who could be swayed by their message and, particularly, with immigrants. International travelers are often immigrants and/or lawful United States residents, including green card and other visa holders, other than citizens. Mr. Verlo and Ms. McDonnell wish to express their solidarity with immigrants directly to these individuals. Further, United States citizens who arrive from international locations are also individuals with whom Mr. Verlo and Ms. McDonnell wish to communicate. International travelers have experienced other cultures and are likely to be sympathetic to Mr. Verlo and Ms. McDonell’s message.

33. The secure CBP screening area is also the location where the Muslim Ban has been enforced by DHS, both at Denver International Airport and across the nation. Neither Plaintiff attempted to enter any restricted areas of Denver International Airport.

34. While silently displaying their signs, Mr. Verlo and Ms. McDonnell were in the open plaza near the secure CBP screening area within the Jeppesen Terminal and positioned significantly behind the railing, which demarcates where those waiting for loved ones are permitted to stand. Mr. Verlo and Ms. McDonnell did not impede the right of way of any passengers hustling to catch flights at the last moment. They simply stood with placards showing their distaste for the Executive Order and the man who executed it.

35. Mr. Verlo and Mr. McDonnell also observed another man in the terminal, named Gene Wells, who was expressing views similar to theirs.

36. Mr. Wells was wearing a sign taped to the back of his shirt.

37. Mr. Wells left the Jeppesen Terminal, but subsequently returned to protest. When he did, he was stopped by Denver Police Department officers who told him that he could not walk around the terminal with the slogan he had affixed to his back. Mr. Wells eventually rejoined Mr. Verlo and Mr. McDonnell at the international arrivals doors, but not without trepidation. He feared he might be arrested.

38. While Mr. Verlo and Ms. McDonnell were displaying their signs, Defendant Sergeant Virginia Quinones approached Mr. Verlo and Ms. McDonnell and threatened them with arrest if they did not leave Jeppesen Terminal. See Exhibit 3, January 29, 2017, Video.

39. Sergeant Quinones handed Mr. Verlo and Ms. McDonnell Regulation 50 and cited it as the reason they would be arrested if they did not leave Jeppesen Terminal. Id. Sergeant Quinones told Mr. Verlo and Ms. McDonnell that they would need a permit in order to stand silently, holding signs in opposition of the Muslim Ban and be in compliance with Regulation 50.

40. Had Mr. Verlo and Ms. McDonnell applied for a permit the second President Trump signed the Executive Order implementing the Muslim Ban, they still would have been unable to engage in protest within the Jeppesen Terminal under the terms and conditions of Regulation 50 on January 29, 2017.

41. Mr. Verlo and Ms. McDonnell did not immediately leave the Jeppesen Terminal after being threatened with arrest. However, they were startled by Sergeant Quiones’ threat and feared arrest for the duration of the time they were there.

42. Throughout the time Mr. Verlo and Ms. McDonnell were expressing their views within the Jeppesen Terminal they received numerous shows of support from passersby. Multiple self- proclaimed Muslims expressed heart-felt statements of appreciation to Mr. Verlo, Ms. McDonnell, and others holding signs.

43. Mr. Verlo and Ms. McDonnell ultimately left Jeppesen Terminal.

44. Mr. Verlo and Ms. McDonnell wish to return to Jeppesen Terminal to express solidarity with Muslims and opposition to the Muslim Ban, but are reticent to do so for fear of being arrested.

45. Upon information and belief, no individual has been arrested, or threatened with arrest, for wearing a “Make America Great Again” campaign hat without a permit within the Jeppesen Terminal at Denver International Airport.

46. Upon information and belief, no individual has been arrested, or threatened with arrest, for holding a sign welcoming home a member of our military without a permit within the Jeppesen Terminal at Denver International Airport.

47. Upon information and belief, no individual has been arrested, or threatened with arrest, for holding a sign and soliciting passengers for a limousine without a permit within the Jeppesen Terminal at Denver International Airport.

48. Upon information and belief, no individual has been arrested, or threatened with arrest, for discussing current affairs with another person without a permit within the Jeppesen Terminal at Denver International Airport.

49. At all times relevant to this Complaint, Defendants acted under color of law.

CLAIM I: FIRST AMENDMENT
(§ 1983 violation – all Defendants)

50. Plaintiffs repeat, re-allege, and incorporate by reference the allegations in the foregoing paragraphs of this Complaint as fully set forth herein.

51. Regulation 50 violates the Free Speech Clause of the First Amendment to the Constitution, on its face and as applied, because it impermissibly curtails Plaintiffs’ free-speech rights.

52. Plaintiffs wish to speak on a matter of public concern. 11

53. Denver International Airport’s Jeppesen Terminal is a public forum.

54. Regulation 50 directly infringes upon and chills reasonable persons from engaging in activity that is protected by the First Amendment.

55. Regulation 50 acts as an unconstitutional prior restraint on speech because it (1) requires a permit before allowing individuals to engage in speech, (2) allows for arbitrary and/or discriminatory permit denials, and (3) requires advance notice that is unconstitutionally excessive.

56. Regulation 50 is overbroad.?

57. Regulation 50 is not narrowly tailored to serve a compelling government interest.?

58. Regulation 50 does not further a substantial government interest.?

59. Regulation 50’s restriction on expressive conduct is greater than necessary to further any
government interest.?

60. Defendants’ actions and/or omissions enforcing Regulation 50 caused, directly or
proximately, Plaintiffs to suffer damages.

CLAIM II: FIRST AMENDMENT RETALIATION
(§ 1983 violation – all Defendants)

1. All statements of fact set forth previously are hereby incorporated into this claim as though set forth fully herein. ?

2. Plaintiffs engaged in First Amendment protected speech on a matter of public concern ?while displaying signs opposing President Trump’s Muslim Ban on January 29, 2017.

3. Defendants jointly and on their own accord responded to Plaintiffs’ First Amendment protected speech with retaliation, including but not limited to threatening Plaintiffs with arrest.

4. Defendants retaliatory actions were substantially motivated by Plaintiffs’ exercise of their First Amendment rights.

5. By unlawfully threatening Plaintiffs with arrest, Defendants sought to punish Plaintiffs for exercising their First Amendment rights and to silence their future speech. Defendants’ retaliatory actions would chill a person of ordinary firmness from engaging in such First Amendment protected activity.

6. Defendants’ actions and/or omissions enforcing Regulation 50 caused, directly and proximately, Plaintiffs to suffer damages.

CLAIM III: FOURTEENTH AMENDMENT DUE PROCESS
(§ 1983 violation – all Defendants)

7. All statements of fact set forth previously are hereby incorporated into this claim as though set forth fully herein.

8. The prohibitions of Regulation 50 are vague and not clearly defined. ?

9. Regulation 50 offers no clear and measurable standard by which Plaintiffs and others can ?act lawfully.

10. Regulation 50 does not provide explicit standards for application by law enforcement officers.

11. Regulation 50 fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits, and authorizes or encourages arbitrary and discriminatory enforcement, or both.

12. Defendants’ actions and/or omissions enforcing Regulation 50 caused, directly and proximately, Plaintiffs to suffer damages.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully request that this Court enter judgment in their favor and against Defendants, and grant:

(a) Appropriate declaratory and other injunctive and/or equitable relief; 13

(b)  Enter a declaration that Regulation 50 is unconstitutional on its face and enjoin its enforcement; ?

(c)  Compensatory and consequential damages, including damages for emotional distress, loss of reputation, humiliation, loss of enjoyment of life, and other pain and suffering on all claims allowed by law in an amount to be determined at trial; ?

(d)  All economic losses on all claims allowed by law; ?

(e)  Punitive damages on all claims allowed by law and in an amount to be determined ?at trial; ?

(f)  Attorney’s fees and the costs associated with this action, pursuant to 42 U.S.C. § ?1988; ?

(g)  Pre and post-judgment interest at the lawful rate; and ?

(h)  Any further relief that this court deems just and proper, and any other relief as ?allowed by law. ?

Dated this 6th day of February 2017.

KILLMER, LANE & NEWMAN, LLP
s/ Andy McNulty

___________________________________
David A. Lane
?Andy McNulty?
Killmer, Lane & Newman, LLC
1543 Champa Street, Suite 400 Denver, Colorado 80202?
Attorneys for Plaintiff

2. Full text of Feb 6 motion for preliminary injunction:

Case 1:17-cv-00332 Document 2
Filed 02/06/17 USDC Colorado Page 1 of 23

Civil Action No.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

NAZLI MCDONNELL,
ERIC VERLO,

Plaintiffs, vs.

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

Defendants.

______________________________________________________________________________

MOTION FOR PRELIMINARY INJUNCTION

______________________________________________________________________________

Plaintiffs, by and through their attorneys David A. Lane and Andy McNulty of KILLMER, LANE & NEWMAN, LLP, hereby submit the following Motion for Preliminary Injunction, and in support thereof, states as follows:

1. Introduction

Over the last four days, many Americans have expressed public disapproval of President Donald Trump’s January 27, 2017, Executive Order, which permanently bans Syrian refugees from emigrating to the United States, temporarily bans nationals of seven countries (including permanent legal residents and visa-holders), and suspends all applications to the United States refugee program (even as to vetted entrants currently in transit). Plaintiffs are concerned and alarmed United States citizens who wish to join the growing chorus of voices expressing opposition to the Executive Order. To do so, they wish to stand in silent protest at the Jeppesen Terminal within Denver International Airport.

Plaintiffs did just this on January 29, 2017, standing in silent protest of the Executive Order outside of the secure Customs and Border Protection (hereinafter “CBP”) screening area within Jeppesen Terminal. Almost immediately, Plaintiffs were threatened with arrest by Denver Police Department Sergeant Virginia Quinones for standing silently and holding signs opposing the Executive Order, despite that fact that the Jeppesen Terminal has previously been used for expressive activity (and that protesters at more than ten major airports nationwide have protested peacefully without major disruption or legal restriction). While silently displaying their signs, Plaintiffs were in the plaza within the Jeppesen Terminal and positioned significantly behind the railing, which demarcates where those waiting for loved ones are permitted to stand, in the open plaza outside of the secure CBP screening area at the Jeppesen Terminal. Plaintiffs did not impede the right of way of any passengers hustling to catch flights at the last moment. They simply stood with placards showing their distaste for the Executive Order and the man who executed it.

Even though Plaintiffs were simply engaged in peaceful First Amendment protected expression, they were threatened with arrest. Sergeant Quinones informed Plaintiffs that, in order to stand silently with political signs, they would need a permit. Without a permit, Sergeant Quinones stated, all “First Amendment expression” at the Denver International Airport was banned.

This was not the first time since the enactment of the Executive Order that the Denver Police Department threatened individuals with arrest for engaging in First Amendment protected activity in Jeppesen Terminal. On January 28, 2016, a protest was held in the plaza of Jeppesen Terminal. During the protest, Denver Police Commander Antonio Lopez instructed multiple individuals, including State Representative Joseph Salazar and representatives from the ACLU of Colorado, that all “First Amendment expression” was banned at Denver International Airport without a permit. See Exhibit 1, January 28, 2017, Video 1; Exhibit 2, January 28, 2017, Video 2. The protesters had, in fact, applied for a permit earlier that day. However, it had not been granted because they had not done so seven days in advance of the protest in compliance with Denver International Airport regulations. Although no arrests were ultimately made, protesters were threatened numerous times by Commander Lopez, and other officers, with arrest.

The Denver International Airport regulation that both Sergeant Quinones and Commander Lopez relied upon in instructing Plaintiffs, and others, that Denver International Airport bans all “First Amendment expression” without a permit is DENVER INTERNATIONAL AIRPORT REGULATION 50 (hereinafter “Regulation 50”). Regulation 50 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.” DENVER INTERNATIONAL AIRPORT REGULATION 50.03. In order to obtain a permit, an individual must “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[.]” DENVER INTERNATIONAL AIRPORT REGULATION 50.04-1.

Plaintiffs wish to return to Denver International Airport to protest the Executive Order, but are reasonably frightened of arrest and, absent action by this Court, must choose between lawfully exercising their First Amendment right and being subject to arrest and/or prosecution.

Plaintiffs ask that this Court enter 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.

2. Factual Background

All statements of fact set forth in the simultaneously filed Complaint are hereby incorporated into this Brief as though set forth fully herein.

3. Argument

3.1 The standard for issuance of a preliminary injunction.

When seeking a preliminary injunction, a plaintiff must establish that (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm; (3) the balance of equities tips in his favor; and (4) that an injunction is in the public interest. Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008); see also ACLU v. Johnson, 194 F.3d 1149, 1155 (10th Cir. 1999).

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); see also 820 F.3d 1113, n.5 (10th Cir. 2016). “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). Moreover, this “fair chance of prevailing” test is appropriate in this case because Plaintiffs are challenging a policy, not a statue or ordinance. See Planned Parenthood Minn, N.D., & S.D. v. Rounds, 530 F.3d 724, 732 (9th Cir. 2008) (“[C]ourts should… apply the familiar ‘fair chance of prevailing’ test where a preliminary injunction is sought to enjoin something other than government action based on presumptively reasoned democratic processes.”).

Under either standard, Plaintiffs are able to demonstrate that the issuance of a preliminary injunction is appropriate in this matter.

3.3 Regulation 50 implicates Plaintiffs’ First Amendment rights. 1

When the government regulates the exercise of First Amendment rights, the burden is on the proponent of the restriction to establish its constitutionality. Phelps-Roper v. Koster, 713 F.3d 942, 949 (8th Cir. 2013). Moreover, when assessing the preliminary injunction factors in First Amendment cases, “the likelihood of success will often be the determinative factor.” Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1145 (10th Cir. 2013). This is because “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably, constitutes irreparable injury,” Heideman v. Salt Lake City, 348 F.3d 1182, 1190 (10th Cir. 2003), and it is invariably in the public interest to protect an individual’s First Amendment rights. See Homans v. City of Albuquerque, 264 F.3d 1240, 1244 (10th Cir. 2001) (noting that “the public interest is better served” by protecting First Amendment rights).

[NOTE 1. It is important to note that facial challenges to government policies and statutes, when based on First and Fourteenth Amendment grounds, are not disfavored. See United States v. Stevens, 559 U.S. 460, 473 (2010); City of Chicago v. Morales, 527 U.S. 41 (1999).]

3.4 Plaintiffs are likely to succeed on the merits.

Plaintiffs are likely to succeed on the merits because Regulation 50 violates the Free Speech Clause of the First Amendment and the Due Process Clause of the Fourteenth Amendment.

3.4(a) Plaintiffs engaged, and wish to engage, in speech on a matter of public concern.

Plaintiffs’ speech is at the core of the First Amendment’s protection because it deals with a matter of public concern. “Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.” Snyder v. Phelps, 562 U.S. 443, 453 (2011) (internal quotation marks and citation omitted). “Speech on matters of public concern is at the heart of the First Amendment’s protection.” Id. at 451-52 (alterations and quotation marks omitted). “The First Amendment reflects ‘a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.’” Id. at 452 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)). Plaintiffs wish to engage in expression about President Donald Trump’s January 27, 2017, Executive Order, a topic that has generated nearly unprecedented debate and dissent. See Adrienne Mahsa Varkiani, Here’s Your List of All the Protests Happening Against the Muslim Ban, THINK PROGRESS (Jan. 28, 2017), https://thinkprogress.org/muslim-ban-protests-344f6e66022e#.ft1oznfv4 (compiling list of direct actions planned in response to President Trump’s January 27, 2017, Executive Order). Thus, Plaintiffs’ speech “‘occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.’” Snyder, 562 U.S. at 452 (quoting Connick v. Myers, 461 U.S. 138, 145 (1983)).

3.4(b) Regulation 50 acts as a prior restraint.

The restriction at issue in this matter is a prior restraint. “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)). Regulation 50 is in an administrative order that forbids future communication and bases the ability to communicate in the future on the discretion of an administrative official. See DENVER INTERNATIONAL AIRPORT 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 or his or her designee.” (emphasis added)). It is a prior restraint.

The burden of proving a prior restraint is permissible is particularly steep. The Supreme Court has repeatedly held that “[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963). For the reasons outlined infra, Defendants cannot meet this especially significant burden.

3.4(c) Jeppesen Terminal, outside of the passenger security zones, is a traditional public forum.

The Supreme Court has not definitively decided whether airport terminals, including Jeppesen Terminal, are public forums. In Lee v. International Society for Krishna Consciousness, Inc., 505 U.S. 830 (1992) (hereinafter “Lee I”), issued the same day as International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992) (hereinafter “Lee II”), the Supreme Court struck down a total ban on distribution of literature in airports. In Lee I, the Court issued a one sentence per curiam opinion, which affirmed the Second Circuit for the reasons expressed by Justice O’Connor, Justice Kennedy, and Justice Souter in Lee II. See Lee I, 505 U.S. at 831. Justice Kennedy and Justice Souter’s opinions in Lee II found that “airport corridors and shopping areas outside of the passenger security zones… are public forums, and speech in those places is entitled to protection against all government regulation inconsistent with public forum principles.” Lee II, 505 U.S. at 693 (Kennedy, J., concurring in the judgment); but see Lee II, 505 U.S. at 683 (“”[W]e think that neither by tradition nor purpose can the terminals be described as satisfying the standards we have previously set out for identifying a public forum.”).

Therefore, Plaintiffs ask this Court to find the area of Jeppesen Terminal outside of the passenger security zones to be a public forum. The historical use of the Jeppesen Terminal’s plazas and other areas outside of the passenger security zones (including the area outside of the secure CBP screening area) for political speech (particularly, the history of welcoming of American military personnel home from service, discussion between passengers of matters of public concern, and display of clothing advocating for political views and ideals) indicates that it is a public forum. See First Unitarian Church of Salt Lake City v. Salt Lake City Corp., 308 F.3d 1114, 1130 (10th Cir. 2002) (“Where courts have considered the traditional use of publicly accessible property for speech, they have refused to attribute legal significance to an historical absence of speech activities where that non-speech history was created by the very restrictions at issue in the case.”). Further, that the Jeppesen Terminal is free and open to the public (outside of the passenger security zones), illustrates that it is a public forum. See, e.g., Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 676 (1998); Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 800, 805, 809 (1985). Finally, Jeppesen Terminal retains characteristics similar to parks: it has large plazas lined with benches, it is surrounded by businesses which are open to the public, and it has dedicated walkways, similar to sidewalks, indicating that it is a public forum. See e.g., Frisby v. Schultz, 487 U.S. 474, 480-481 (1988); United States v. Grace, 461 U.S. 171, 177 (1983). Further, the Supreme Court has not strictly limited the public forum category to streets, sidewalks, and parks. See, e.g., Se. Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975) (finding leased municipal theater is a public forum); Heffron v. Int’l Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981) (finding state fair is a public forum); Edwards v. South Carolina, 372 U.S. 229 (1963) (finding grounds of state capitol are a traditional public forum). Even if the City claims that it has never intended for Jeppesen Terminal to be a public forum, this is not dispositive. See Lee, 505 U.S. at 830 (government policy prohibiting distribution of literature at airport on property struck down); Cornelius, 473 U.S. at 805 (government’s decision to limit access is not itself dispositive). Plaintiffs’ ask that this Court find Jeppesen Terminal, outside of the passenger security zones, a traditional public forum.

Since Jeppesen Terminal is a traditional public forum, any restriction on Plaintiffs’ speech must be content-neutral and narrowly tailored to a compelling government interest. Regulation 50 fails at both.

3.4(d) Regulation 50 is content-based.

Regulation 50 is a content-based restriction of expression. Although the Supreme Court has long held that content-based restrictions elicit strict scrutiny, see, e.g., Carey v. Brown, 447 U.S. 455 (1980), lower courts diverged on the meaning of “content-based” until Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015). 2 Reed clarified that a restriction is content based simply if it draws distinctions “based on the message a speaker conveys.” 135 S. Ct. at 2227. Reed is clear that even “subtle” distinctions that define regulated expression “by its function or purpose . . . are distinctions based on the message a speaker conveys, and therefore, are subject to strict scrutiny.” Id. This accords with Texas v. Johnson, which held that “the emotive impact of speech on its audience is not a secondary effect unrelated to the content of the expression itself.” 491 U.S. 491 U.S. 297, 412 (1989) (internal quotations omitted).

[NOTE 2. Reed involved a municipal “sign code” that regulated signs differently based on the kind of message they conveyed (such as “ideological,” “political,” or “temporary directional”). 135 S. Ct. at 2224-25. The Court rejected the city’s argument that a law had to discriminate against certain viewpoints in order to be a content-based restriction. Id. at 2229.]

Regulation 50 is content-based on its face. It distinguishes between content and requires that an official determine the content of the speaker’s message when enforcing its proscriptions. Reed, 135 S. Ct. at 2227; see DENVER INTERNATIONAL AIRPORT 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[.]” (emphasis added)). The distinctions drawn by Regulation 50 make it a facially content-based restriction on expression that must elicit “the most exacting scrutiny.” Johnson, 491 U.S. at 412; Reed, 135 S. Ct. at 2227.

3.4(e) Regulation 50 is not narrowly tailored to serve a compelling government interest.

As a facially content-based restriction of expression at traditional public fora, Regulation 50 is presumptively unconstitutional unless Defendant “prove[s] that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.” Reed, 135 St. Ct. at 2231; accord Johnson, 491 U.S. at 412.

“A statute is narrowly tailored if it targets and eliminates no more than the exact source of the ‘evil’ it seeks to remedy.” Frisby v. Schultz, 487 U.S. 474, 485 (1988) (citation omitted). Regulation 50 reaches more speech than that which would impair the security of the airport or ensure that passengers are not unduly encumbered. In fact, it completely bans all “First Amendment expression.” “A complete ban can be narrowly tailored, but only if each activity within the proscription’s scope is an appropriately targeted evil.” Id.. Regulation 50 is not such a ban. For instance, Plaintiffs’ expression does nothing to jeopardize security at Denver International Airport or to inhibit the free flow of passengers through the airport.

Further, any argument that Plaintiffs can engage in expressive activity in another location lacks merit, as the Supreme Court has held that the First Amendment is violated when one specific location or audience, when important to the speaker, is foreclosed. See McCullen v. Coakley, 134 S. Ct. 2518, 2536 (2014); Schenck v. Pro-Choice Network, 519 U.S. 357, 377 (1997) (invalidating a “floating” buffer zone around people entering an abortion clinic partly on the ground that it prevented protestors “from communicating a message from a normal conversational distance or handing leaflets to people entering or leaving the clinics who are walking on the public sidewalks”); Schneider v. New Jersey, 308 U.S. 147, 163 (1939) (invalidating anti-handbilling ordinances even though “their operation is limited to streets and alleys and leaves persons free to distribute printed matter in other public places”). Regulation 50 lacks the narrow tailoring necessary to survive First Amendment strict scrutiny analysis.

3.4(f) Regulation 50 violates the First Amendment even if this Court determines Jeppesen Terminal is a nonpublic forum.

Regulation 50 bans all “First Amendment expression” absent a permit; it is unconstitutional even when analyzed under the lower standard of scrutiny applied by courts to First Amendment political speech in a nonpublic forum. In Board of Airport Commissioners of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569 (1987), the Supreme Court considered whether a resolution restricting free speech in the airport was constitutional. The resolution at issue stated that the airport “is not open for First Amendment activities by any individual and/or entity.” Id. at 574. Although the Court did not explicitly find that the airport was a nonpublic forum, it did hold that the resolution restricting speech in the airport was facially unreasonable, even if the airport was a nonpublic forum. Id. at 573. The Court noted that enforcing the resolution would prohibit “talking and reading, or the wearing of campaign buttons or symbolic clothing.” Id. at 574. The Court also noted, “[m]uch nondisruptive speech–such as the wearing of a T-shirt or button that contains a political message–may not be ‘airport related’ but is still protected speech even in a nonpublic forum.” Id. at 575 (citing Cohen v. California, 403 U.S. 15 (1971) (holding that wearing of jacket with offensive language in a courthouse was a form of nondisruptive expression that was protected by the First Amendment)). Thus, although specific conduct was not at issue in the Jews for Jesus decision, the Court nonetheless implicitly held that non-disruptive speech is protected by the First Amendment in nonpublic fora and that restrictions that encumber non-disruptive expression are unreasonable.

In Lee II, Justice O’Connor set forth the test for determining reasonableness in the context of nonpublic fora. 505 U.S. at 687 (O’Connor, J., concurring). 3 She stated, ”[t]he reasonableness of the Government’s restriction [on speech in a nonpublic forum] must be assessed in light of the purpose of the forum and all the surrounding circumstances.” Id. (O’Connor, J., concurring) (quoting Cornelius, 473 U.S. at 809). However, Justice O’Connor noted that while “[o]rdinarily . . . we have . . . been confronted with cases where the fora at issue were discrete, single-purpose facilities,” airports present a different analysis because they are multipurpose facilities. Id. at 688 (O’Connor, J., concurring) (citations omitted). She determined airports to be multipurpose facilities because

the Port Authority [has] chosen not to limit access to the airports under its control, [and] has created a huge complex open to travelers and nontravelers alike. The airports house restaurants, cafeterias, snack bars, coffee shops, cocktail lounges, post offices, banks, telegraph offices, clothing shops, drug stores, food stores, nurseries, barber shops, currency exchanges, art exhibits, commercial advertising displays, bookstores, newsstands, dental offices and private clubs.

Id. This led to the finding that “[t]he reasonableness inquiry, therefore, is not whether the restrictions on speech are consistent with preserving the property for air travel, but whether they are reasonably related to maintaining the multipurpose environment that the Port Authority has deliberately created.” Id. at 689. A complete ban on First Amendment activity at the Jeppesen Terminal, absent a permit that must be obtained by providing seven days advance notice, is not a reasonable restriction. Regulation 50 does not comport with Justice O’Connor’s conclusion that airports are more than simply places where air travel occurs.

[NOTE 3. It is important to note that Lee involved a plurality opinion, joined by Justice O’Connor. Therefore, Justice O’Connor’s concurrence is the “narrowest grounds” that justify the Court’s result and her concurrence holds substantial precedential weight.]

Moreover, Justice O’Connor distinguished between solicitations (which the Supreme Court found could be reasonably restricted) and distributing leaflets (which the Supreme Court found could not be reasonably restricted) in the airport:

[L]eafleting does not entail the same kinds of problems presented by face-to-face solicitation. Specifically, “one need not ponder the contents of a leaflet or pamphlet in order mechanically to take it out of someone’s hand . . . . The distribution of literature does not require that the recipient stop in order to receive the message the speaker wishes to convey; instead the recipient is free to read the message at a later time.”

Id. at 690 (quoting United States v. Kokinda, 497 U.S. 720, 734 (1990)).

Thus, the Court held in Lee II that prohibiting solicitation in a nonpublic forum is not unreasonable, but that prohibiting the distribution of leaflets and other literature at a nonpublic forum is unreasonable. See also Lee, 505 U.S. at 830 (decided the same day as Lee II and striking down a prohibition on the distribution of leaflets and other literature at La Guardia, John F. Kennedy, and Newark International airports) (per curiam). Circuit courts have also recognized the inherent right to distribute paper and other information in nonpublic fora. Following Lee I and Lee II, two circuit courts have held that airports, as nonpublic fora, could not preclude newspaper publishers from placing newsracks in airport terminals. See Jacobsen v. City of Rapid City, South Dakota, 128 F.3d 660 (8th Cir. 1997); Multimedia Publishing Co. of South Carolina, Inc. v. Greenville-Spartanburg Airport Dist., 991 F.2d 154 (4th Cir. 1993). To the extent that the airports were concerned about safety or the impediment of traffic flow, the courts held that the airport may impose reasonable restrictions, but they could not enforce an outright ban on the newspaper racks. See Jacobsen, 128 F.3d at 660; Multimedia Publishing Co. of South Carolina, Inc., 991 F.2d at 154.

Denver, through Regulation 50, has banned all “First Amendment expression” including leafleting and protests. In fact, Plaintiffs expression is arguably less intrusive and disruptive to air travel than the form of expression, namely leafletting, that the Court held could not be reasonably restricted in the areas of an airport that precede the security screening area. It is clear from Lee I, Lee II, and Jews for Jesus that Denver cannot ban all “First Amendment expression” at the Jeppesen Terminal.

3.4(f)(1) Independently, the viewpoint-based prohibition of Plaintiffs’ speech, based on Regulation 50, violates the First Amendment.

Even if Jeppesen Terminal is a nonpublic forum, “this does not mean the government has unbridled control over speech, . . . for it is axiomatic that ‘the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others.” Summum v. Callaghan, 130 F.3d 906, 916 (10th Cir. 1997) (quoting Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 394, (1993)). “Restrictions on speech in nonpublic fora must be viewpoint neutral[.]” Warren v. Fairfax Cty., 196 F.3d 186, 193 (4th Cir. 1999) (citing Cornelius, 473 at 809). Defendants’ restriction of Plaintiffs’ speech, under the guise of Regulation 50, discriminates on the basis of viewpoint. 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. Regulation 50 is being enforced as a clearly view-point based restriction. Defendants’ application of Regulation 50 to Plaintiffs speech is view-point based and violates the First Amendment.

3.4(g) The seven day advance notice requirement for obtaining a permit is not a reasonable restriction.

Notice periods restrict spontaneous free expression and assembly rights safeguarded in the First Amendment. Plaintiffs, like many others throughout history, wish to engage in First Amendment expression in quick response to topical events. While even in such time-sensitive situations, a municipality may require some short period of advance notice so as to allow it time to take measures to provide for necessary traffic control and other aspects of public safety, the period can be no longer than necessary to meet the City’s urgent and essential needs of this type. See 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.”).

Advance notice requirements that have been upheld by courts have most generally been less than a week. See, e.g., A Quaker Action Group v. Morton, 516 F.2d 717, 735 (D.C. Cir. 1975) (two-day advance notice requirement is reasonable for use of National Park areas in District of Columbia for public gatherings); Powe v. Miles, 407 F.2d 73, 84 (2d Cir. 1968) (two-day advance notice requirement for parade is reasonable); Progressive Labor Party v. Lloyd, 487 F. Supp. 1054, 1059 (D. Mass. 1980) (three-day advance filing requirement for parade permit approved in context of broader challenge); Jackson v. Dobbs, 329 F. Supp. 287, 292 (N.D. Ga. 1970) (marchers must obtain permit by 4 p.m. on day before the march), aff’d, 442 F.2d 928 (5th Cir. 1971). Lengthy advance filing requirements for parade permits, such as the seven day advance notice requirement imposed by Regulation 50, have been struck down as violating the First Amendment. See American-Arab Anti-Discrimination Comm., 418 F.3d at 605-07 (holding that provision requiring thirty days’ notice is overbroad and is not saved by an unwritten policy of waiving the provision); NAACP, W. Region v. City of Richmond, 743 F.2d 1346, 1357 (9th Cir. 1984) (“[A]ll available precedent suggests that a 20-day advance notice requirement is overbroad.”). Even an advance filing requirement of five days has been held too long to comport with the First Amendment. See Douglas v. Brownell, 88 F.3d 1511, 1523-24 (8th Cir. 1996) (city’s asserted goals of protecting pedestrian and vehicular traffic and minimizing inconvenience to the public does not justify five-day advance filing requirement for any parade, defined as ten or more persons).

It is clear that, in the case at bar, a permit requirement of seven days advance notice is not a reasonable restriction of Plaintiffs’ First Amendment rights. Plaintiffs wish to engage in timely, direct action against, what they perceive as, a tyrannical and unconstitutional exercise of the executive power. If Plaintiffs were to have applied for a permit at the exact moment President Trump signed the Executive Order, they would still have been prevented from engaging in First Amendment activity on January 29, 2017. In direct action, like in most things, timing is everything. As evidenced by myriad protests that occurred across the nation’s airports, which were accompanied by no violence or destruction of property and did not otherwise jeopardize security, accommodation of protest at the Jeppesen Terminal is reasonable. Such a lengthy approval period, with no exceptions for spontaneous, peaceful protests, violates the First Amendment. See Church of the American Knights of the Ku Klux Klan v. City of Gary, 334 F.3d 676, 682 (7th Cir. 2003) (noting that “the length of the required period of advance notice is critical to its reasonableness; and 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” (emphasis added)).

3.4(h) Regulation 50 is overbroad in violation of the First Amendment.

“[A] law may be invalidated as overbroad if ‘a substantial number of its applications are unconstitutional, judged in relation to the [ordinance]’s plainly legitimate sweep.’” United States v. Stevens, 559 U.S. 460, 473 (2010) (quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 n.6 (2008)). An overbroad statute may be challenged on its face even though a more narrowly drawn statute would be valid as applied to the party in the case before it. City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 798 (1984) (“[B]roadly written statutes may have such a deterrent effect on free expression that they should be subject to challenge even by a party whose own conduct may be unprotected.”). The Supreme Court “has repeatedly held that a government purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 307 (1964); see also Grayned v. City of Rockford, 408 U.S. 109, 114-15 (1972) (“The crucial question, then, is whether the ordinance sweeps within its prohibitions what may not be punished under the First and Fourteenth Amendments.”). Courts have “provided this expansive remedy out of concern that the threat of enforcement of an overbroad law may deter or ‘chill’ constitutionally protected speech—especially when the overbroad statute imposes criminal sanctions.” Virginia v. Hicks, 539 U.S. 113, 119 (2003).

Determining whether a law is substantially overbroad requires a two-step analysis. First, a court must “construe the challenged [law]; it is impossible to determine whether a [law] reaches too far without first knowing what the [law] covers.” United States v. Williams, 553 U.S. 285, 293 (2008). Second, based on the first step, a court must determine whether the law “criminalizes a substantial amount of protected expressive activity.” Id. at 297.

Regulation 50 provides 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.” Those tasked with enforcing Regulation 50, have stated that it bans all “First Amendment expression.” See Exhibit 1, January 28, 2017, Video 1; Exhibit 2, January 28, 2017, Video 2.

A complete prohibition on First Amendment expression and related activity proscripts a substantial amount of protected expressive activity. See Jews for Jesus, 482 U.S. at 569; Lee, 505 U.S. at 830. It prohibits face-to-face conversations and wearing clothing intended to convey a message, along with leafleting and other traditional First Amendment activity, all of which protected expression. Regulation 50’s overbreadth is stark and violates the guarantees of the First Amendment.

3.4(i) Regulation 50 is unconstitutionally vague.

“A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required.” F.C.C. v. Fox Television Stations, Inc., 132 S. Ct. 2307, 2317 (2012). “A law’s failure to provide fair notice of what constitutes a violation is a special concern where laws ‘abut[ ] upon sensitive areas of basic First Amendment freedoms’ because it ‘inhibit[s] the exercise’ of freedom of expression and ‘inevitably lead[s] citizens to steer far wider of the unlawful zone … than if the boundaries of the forbidden areas were clearly marked.’” Stahl v. City of St. Louis, 687 F.3d 1038, 1041 (8th Cir. 2012) (quoting Grayned, 408 U.S. at 109). For this reason, a stringent vagueness test applies to a law that interferes with the right of free speech. Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982). “Where a statute’s literal scope, unaided by a narrowing state court interpretation, is capable of reaching expression sheltered by the First Amendment, the doctrine demands a greater degree of specificity than in other contexts.” Smith v. Goguen, 415 U.S. 566, 573 (1974).

Regulation 50 is vague, and therefore unconstitutional, for two separate reasons. First, Regulation 50 fails “to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits.” City of Chicago v. Morales, 527 U.S. 41, 56 (1999). A law is unconstitutionally vague where it “does not provide people with fair notice of when their actions are likely to become unlawful.” Stahl, 687 F.3d at 1041. Because violators of Regulation 50 are subject to criminal sanction, the strictest vagueness test applies. See Reno v. ACLU, 521 U.S. 844, 872 (1997) (recognizing criminal sanctions might “cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images” which, together with the “‘risk of discriminatory enforcement’ of vague regulations, poses greater First Amendment concerns than those implicated by [a] civil regulation[.]”). Whether expressive activity will be deemed “First Amendment expression” in the Jeppesen Terminal is not predictable. Plaintiffs have reasonably refrained from protected speech for fear that someone might consider their expression to be in violation of the regulation. However, officials have failed to enforce the regulation against many others who are seemingly in violation, including those discussing politics with other passengers, wearing clothing meant to make some social or political statement, limo drivers soliciting passengers, and those welcoming home military veterans. Although there might be times when a speaker knows, or should know, that certain speech will violate the statute, in many situations such an effect is difficult or impossible to predict. See Stahl, 687 F.3d at 1041 (finding vagueness because even “[t]hough there are certainly times when a speaker knows or should know that certain speech or activities likely will cause a traffic problem, in many situations such an effect is difficult or impossible to predict.”). Regulation 50 fails to give fair notice and therefore violates the mandates of the Fourteenth Amendment.

Regulation 50 is also unconstitutionally broad because it “authorize[s] and even encourage[s] arbitrary and discriminatory enforcement.” Morales, 527 U.S. at 56. Regulation 50’s terms allow law enforcement officials wide discretion to decide whether any given speech is prohibited and arrest the speaker. “Such a statute does not provide for government by clearly defined laws, but rather for government by the moment-to-moment opinions of a policeman on his beat.” Cox v. Louisiana, 379 U.S. 536, 579 (1965); see Norton v. Discipline Comm. of E. Tenn. State Univ., 399 U.S. 906, 909 (1970) (“Officials of public universities . . . are no more free than policemen or prosecutors to punish speech because it is rude or disrespectful, or because it causes in them vague apprehensions, or because for any other reason they do not like its content.”).

Officers have been observed enforcing Regulation 50 against those protesting President Trump’s Executive Order, but not against those wearing other political shirts or buttons. Officers have not enforced the regulation against other political expression, including those standing in support of military veterans returning home from combat. Seemingly, the only ones who have been subject to this regulation are those who are specifically speaking against President Trump’s Executive Order. “The most meaningful aspect of the vagueness doctrine is . . . the requirement that a legislature establish minimal guidelines to govern law enforcement.” Smith, 415 U.S. at 574. Because the terms allow a police officer leeway to determine that expressive conduct is lawful, or not, they are vague. Regulation 50 permits “a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.” Kolender v. Lawson, 461 U.S. 352, 358 (1983) (internal citations omitted). It is unconstitutional.

3.5 Absent an injunction, Plaintiffs will suffer irreparable harm.

“The 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 Verlo v. Martinez, 820 F.3d 1113, 1127 (10th Cir. 2016); 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.”); Verlo v. Martinez, 820 F.3d 1113, 1127 (10th Cir. 2016).

Moreover, Plaintiffs’ expression is a time-sensitive response to a nearly unprecedented action by our federal government. But see C. Norwood, A Twitter Tribute to Holocaust Victims, THE ATLANTIC (January 27, 2017), https://www.theatlantic.com/politics/archive/2017/01/jewish-refugees-in-the-us/514742/ (describing the rebuff of refugees fleeing Nazi Germany in 1939, many of whom would be murdered during the Holocaust); Korematsu v. United States, 323 U.S. 214 (1944). Delaying Plaintiffs’ protest, and discouraging Plaintiffs and others from demonstrating, detracts from its importance and provides a false appearance that Denver is not like other cities of all sizes across the country that have mustered sizeable protests at their airports. Denver has held itself out as a “sanctuary city.” Jon Murray, Mayor Hancock says he welcomes “sanctuary city” title if it means Denver supports immigrants and refugees, The DENVER POST (January 30, 2017), http://www.denverpost.com/2017/01/30/mayor-hancock-welcomes-sanctuary-city-title-denver-supports-immigrants-refugees/. For Colorado’s citizens to seemingly show lackluster support in this time of trial would not only irreparable harm Plaintiffs, and others, but it would go against the public interest.

3.6 The balance of the equities weighs in favor of granting a preliminary injunction.

“The balance of equities… generally favors the constitutionally-protected freedom of expression.” Phelps-Roper v. Nixon, 545 F.3d 685, 690 (8th Cir. 2008) overruled on other grounds by Phelps-Roper v. City of Manchester, Mo., 697 F.3d 678 (8th Cir. 2012). Courts have consistently held that when First Amendment freedoms are threatened, the balance of the equities weighs in the Plaintiffs’ favor. See Verlo, 820 F.3d at 1127; Awad, 670 F.3d at 1132. There is no harm to Defendant, who has no significant interest in the enforcement of Regulation 50 since it is likely unconstitutional.

3.7 A preliminary injunction is in the public interest.

“[I]t is always in the public interest to prevent the violation of a party’s constitutional rights.” Awad, 670 F.3d at 1133 (internal quotation marks omitted); accord Verlo, 820 F.3d at 1127; Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221, 1237 (10th Cir. 2005) (“Vindicating First Amendment freedoms is clearly in the public interest.”); Cate v. Oldham, 707 F.2d 1176, 1190 (10th Cir. 1983) (noting “[t]he strong public interest in protecting First Amendment values”).

4. Conclusion

For the reasons stated, Plaintiffs respectfully request that this Court grant their Motion for a Preliminary Injunction, enjoin enforcement of Regulation 50, and prohibit Defendants from arresting Plaintiffs and all others similarly situated when they engage in First Amendment protected activity within Jeppesen Terminal.

Dated this 6th day of February, 2017

KILLMER, LANE & NEWMAN, LLP
s/ Andy McNulty
__________________________

David Lane
Andy McNulty
1543 Champa Street, Suite 400 Denver, CO 80202
Counsel for Plaintiffs

Denver’s Office of the Independent Monitor moved, no one’s saying where

Denver’s Office of the Independent Monitor moved from its offices on the 12th floor of the Wellington Webb Building. Staff for the City Attorney, who’ve moved in, are saying they don’t know where the OIM has gone. Convenient. FYI, it’s moved to the Denver Post Building, but the information desk there won’t tell you were it is either. So the bad news is that you have to know it’s there, you have to have an appointment, and you have to know who you’re seeing there before security will send someone to escort you up. Denver’s OIM recently made the news about city council renewing their commitment to its existance, but it’s becoming nearly invisible to the public it’s supposed to serve.

Denver art student informs Tale of Two Hoodies with Goya’s Third of May 1808. This KKK cop executes the black child.

A Tale of Two Hoodies
DENVER, COLORADO- Here’s what the Denver Post article didn’t explain about the Denver high school art student who was pressured to remove her controversial piece from public display. Where was it being shown? At the Wellington Webb Building. That’s not irrelevant because it’s where viewers became offended. You could go inquire about the incident, if you knew where to ask, or where to protest the work’s removal. The WELLINGTON WEBB BUILDING downtown on Colfax. What’s so controversial, the scene is real isn’t it? There’s more.

The student’s drawing is essentially a reproduction of Michael D’Antuono’s 2014 piece “A Tale of Two Hoodies” which still sparks outrage. Missing in this version is the bag of Skittles which the black child offers the cop, locking the two figures in a standoff. Or obviously a mugging. The Skittles of course recalls Trayvon Martin and we know how that ended. The hands in the air references “Hands Up Don’t Shoot” and Michael Brown who shared the same fate.

Original 2014 workAll else about the Denver student’s contextualization of D’Antuono’s work is the same, the confederate flag uncovered from beneath the wallpaper of Old Glory. In the student’s piece the American flag appears worn through. In D’Ontuono’s original the racist flag has bursted through. The cop and hood are the same, except in the original the cop was maybe more fat.

What’s also missing in the DenPo whitewash is the context of the unamed student’s assignment. She was tasked with contextualizing TWO works. The influence of the second piece is not as apparent as the first. The boy’s hands-up wasn’t merely recalling the mantra of the Black Lives Matter movement, it was evoking the student’s other chosen influence, Goya’s famous “The Third of May 1808.” In that iconic work, a firing squad is executing a rebel with outstretched arms.

KNOWING THIS, you can see the student’s policeman has drawn his gun for an EXECUTION, not an arrest. The boy is not following an order or raising his hands in surrender. If even in resignation, this boy’s upheld arms communicate a plea. How does that inform you about this young Denver student’s understanding of “Hands Up Don’t Shoot” or “I Can’t Breathe”?

The officer’s Klan hood certifies that this shooting is a lynching. Many lynchings in the traditional sense were perpetrated by deputized citizens.

Denver Chief of Police Robert White said of the student’s work: “I’m greatly concerned about how this painting portrays the police.” Well sure, and Chief White didn’t know the half of it.

Should you go complain at the Wellington Webb Building? The Denpo article mentions Chief White intends to “have a conversation with the student and her parents.” You may want to caution that the Office of the Independent Monitor be invited attend that conversation, as a ride-along so to speak, to assure it isn’t the one-sided transaction to which we are becoming accostomed and inured.

Does Chief White think that racially enhanced officer involved extrajudicial executions should not be a student’s concern? He needs to look past what offended him and try to understand the art piece before he forces a conversation. Or what kind of conversation will it be. The student has already made her statement.

FOOTNOTE:
Here’s what Michael D’Antuono had to say about his original work. I’ve updated the original broken links:

This painting, created during the Trayvon Martin case, symbolizes the travesty of racism in the criminal justice system. It has been the object of much controversy and censorship. In 2014, I was Incensed that George Zimmerman was trying to profit from his notoriety for killing an unarmed teenager by auctioning his painting on eBay. In response, I put this piece on eBay with half of the proceeds going to the Trayvon Martin Foundation. The very same day Zimmerman sold his painting for $100,000, and as soon as it became evident that my piece was on par to pass Zimmerman’s mark, eBay shut mine down for violating their strict policy of not selling anything on their site glorifying hate groups or showing anything symbolic of the Klu Klux Klan. The hypocrisy of eBay was that at the time they killed my auction, they were selling over 1500 other items related to the KKK. Misrepresenting it’s meaning, a hate group co-opted the piece in 2015, passing out flyers in Southfield, Michigan. In 2016, a high school teacher in Nevada, was suspended for using the painting to inspire critical though.

Delayed Habeas Corpus for Eric Brandt, then two Westminster kangaroo courts, despite $3,500 bond being paid.


WESTMINSTER, COLORADO- It was quite a day for Eric “Fuck Cops” Brandt, in custody at the Denver County Jail since Monday August 10, as usual for exercising his First Amendment rights. Even by Wednesday the jail wouldn’t allow Eric visitors or bail. Next they delayed his court appearance almost two hours. Then the judge wouldn’t grant a PR bond, choosing to require the homeless veteran to raise $3,500 for bail. Then the clerk insisted the entire docket be completed before the bond paperwork would be available. Eventually Eric’s bond was covered by a benefactor, but before Eric could be processed for release, the City of Westminster transferred him to their municipal court for a full afternoon of hearings.

In Westminster, Associate Judge Paul Basso refused Eric’s motion for a jury trial then immediately declared court to be in recess and walked out as Eric’s attorney David lane tried to voice his objections. Funny story: though Basso had declined the motion, he misspoke and declared that Eric was to have a jury trial, so Basso had to reenter the courtroom to reiterate for the record: there was to be no jury trial. This time Lane offered to put Brandt’s former public defender on the stand, he was there waiting, to attest that Brandt had never declined his right to a jury. Judge Basso refused and again walked out.

Next up, Presiding Judge John Stipech declined motions to dismiss, to recuse, or to appoint a special prosecutor for Brandt’s cases. Stipech declined to hear witnesses present and ready to testify that Westminster staffers were overheard plotting to incarcerate Brandt no matter what. No hearing, set all the trial dates up like bowling pins.

Next on the agenda, Judge Stipech ordered Eric to remove documents he’d posted to “his Facebook”: confidential police internal affairs reports sloppily surrendered during discovery and now published in Westword. Eric was supposed to comply whether in custody or homeless, or be found in contempt.

Brandt was put back en route to Denver while attorneys were asked to set the upcoming court dates. Suddenly Eric’s transport was ordered to return so that the Westminster prosecutor could motion to revoke Eric’s multiple bonds on account of his new felony charges in Denver. Fortunately the bond revocation hearing was set for Sept 2 to allow David Lane time to subpoena witnesses. This date will also follow the Aug 31 hearing in Denver where Lane has subpoenaed the Denver DA to account for the unconstitutional train wreck.

Now back at Denver Jail, Eric is being kept overnight with the excuse that the pretrial services office was closed and doesn’t reopen until 8AM. Eric Brandt has been incarcerated since Monday afternoon, his bond met, his tattoo assuring he can’t be confused for anyone else. He’s front and center today on the Denver Post and Westword, but the city’s top law enforcers can still pretend to delay his release on technicalities. They spent eighteen hours “running his fingerprints” when everyone in downtown Denver can recognize Eric Brandt a block away, three, when he’s got his sign.

Mainstream Media Missed The Mark, or give me another helping of Monsanto GMO potatoes and corn and pass me the latest comic book

March against Monsanto, Denver, May 23, 2015:
Once again the main stream media failed to show up when one of their corporate paymasters tells them to go sit in the corner and be quiet. All mainstream media were noticeably absent. However they could be found at the Colorado Convention Center where the fourth annual COMIC CON event was held. The message we can all take away from this; when it comes to the health of human beings, watching your local news or reading the Denver Post is akin to reading the funny papers or watching cartoons.
 
KGNU sent the only newsperson to the Monsanto Protest

The police murder of Jessie Hernandez -what happened? (to the outrage)

DENVER, COLO.- The Denver police had really stepped in it this time. At 6:30am on January 26, officers opened fire on a parked car full of unarmed teenage girls, killing Jessie Hernandez with eighteen bullets. This time the most homocidal police force this side of Baltimore used lethal force against a charismatic 17-year-old Latina. Even if officers had confused the queer tom-boy for a male, Jessie wouldn’t pass for a boy over eleven. Jessie’s killing follows a year rocked by public protests against police excessive force in Ferguson and New York City. Victims Mike Brown and Eric Garner were black males with the attendant stigmas. This victim was literally a poster child. If Jessie had a criminal record it was as a juvenile. The official account immediately began to unravel as witnesses came forward. Most notably, after the passengers were released from jail, one of them said the police fired first, before an officer was struck by the vehicle and not afterward as the officers claimed. Yet the public’s revulsion has been measured and dimminishing. What happened? Was the outcry stage-managed? By whom? The aftermath of Jessie’s execution was captured on video, in defiance of officers threatening the bystanders. It’s only been described to reporters but the Denver Post has it.

If the family of Jessie Hernandez decides they don’t want people to protest, do we cease protests? If the family doesn’t want to see the video, do we stop demanding its release? Of course they don’t want to relive the brutality of Jessie’s murder, no one does. But the DPD and the Denver Post must not be allowed to draw the curtain on the teen’s brutal death. The DPD’s actions must be exposed. The family doesn’t own this tragic crime. The responsibility to demonstrate against police brutality doesn’t fall on them, or the Latino community or the queer community. It falls on everyone. The Denver police own Jessie’s murder. They own all eighteen bullets, they own the handcuffing and searching of Jessie’s still-live body, they own the jailing of the four other traumatized teens, and they own all the subsequent lies told to excuse the inexcusable, shooting at a carload of unarmed children. If the public is not given the chance to face the reality of police brutality, we’ll never stop the DPD.

US torture industry defends its murder of Marvin Booker at Denver federal courthouse

Stop whining murderous crybabies
DENVER, COLO- Well, you’ve almost missed the most compelling courtroom drama this side of television. Although even on TV you don’t see a judge having to repeatedly admonish the audience to refrain from reacting with audible incredulity at the clueless ambivalence, awkward dissembling, and brazen lies being told on the stand by sheriff deputies and their witnesses concerning the death of Marvin Booker, 56, in their custody on July 9, 2010. National law enforcement experts have been flown in to defend the Denver Sheriff’s Department policies. It’s been quite a laugh and the jury seems wise to the scheme. Closing arguments begin Friday. If you’ve followed the Denver Post coverage you can skip the next paragraph, but those who’ve been packing the federal courtroom these past three weeks can assure you, you haven’t been treated to the half of it.

Four years ago Marvin Booker, an itinerant African American street preacher who weighed 135 pounds, died under a pileup of Denver Sheriff deputies simultaneously restraining him, kneeling on his prone body, twisting his wrists, contorting his ankles with nunchucks, choking him by the neck, and Tasing him. All of these methods are permitted means of “pain compliance”. Denver County Jail deputies assert they were trying to stop Booker from struggling. Asked one juror: “Could you keep still if you thought you were being killed?”

They held Marvin Booker in a carotid choke hold for two and a half minutes, and tased him for up 27 seconds.

Perhaps you’ve heard about the anomalies. The deputies met afterward to get their stories straight. Surveillance footage is missing, video of inmate witness testimony is missing, the taser is missing! Now everyone’s memory has gone missing too, they even try the excuse in the present. “No I don’t recall seeing myself do that in the video just now.” But most of what may be damning video is gone. The deputies were said to be high-fiving themselves afterward in an area where the camera footage is missing.

The significance of the missing taser means follow-up investigations can conclude its use is unproved. Another taser with a timestamp indicating it was deployed at an event forty minutes later, was fired for eight seconds. The video and inmate witnesses suggest Booker was tased for 27 seconds, but because the first taser surrendered to investigators hadn’t been fired at all, authorities are allowing for the implausible: that Booker wasn’t tased at all.

[work in progress]

DPD used riot gear in dead of night to arrest camp singing national anthem


DENVER- When Occupy Denver threatens to make a difference is when authorities have to shut it down. The sweep tonight is a good sign.
I’m not worried about Occupy Denver. I have a tent booked for this weekend, the police attack tonight will just raise occupancy rate is all. Now I’ll have to move up my check-in date to be assured a space. Colorado Police have already lost this engagement. The mere threat of arrest tonight only enlarged the protest, it didn’t frighten it off. Middle of the night arrests and tent-clearing are of little consequence. At height of the crowd strength, the police backed down. Tents will go up everywhere tomorrow. There’s not enough riot gear in the US to occupy the multitude of protest occupations. Denver state capitol here we come!

Gov Hickenlooper’s use of State Troopers to clear the capitol lawn in the middle of night probably preempted actions by other Occupy camps to draw police resources away. Next time how can they distract the popo legally? Follow Occupy Denver’s lead. Apparently peaceful, nonviolent free speech is enough to bring clampdown.

GA earlier in evening reaffirmed that movement is not about having messages heard, to be ignored per usual, but SHUTTING DOWN THE SYSTEM. It’s is not about speaking truth to power. Power already knows the truth. What it doesn’t know is extent of peoples’ determination. Denver GA wasn’t won over by voices content to keep occupation as daily sidewalk protests, lasting into winter, to usual no effect. You want protracted Wall Street protest? Antiwar vigils have been ongoing for 10 years…

Tents ARE key issue for all Occupy protests. What is your right to peaceably assemble if you can’t protect yourself from cold? Does 1st Amendment only apply in summer, during the day, and when authorities aren’t too bothered by your dissent? Thinking this movement is about getting your issues heard is to pretend #OccupyWallStreet means “Voice Off to Wall Street.” Nope. Tents are needed in Denver, Wall Street and everywhere because this movement needs to stop the system, not hector it until we lose energy & body temp.

The Denver Post doesn’t have a live camera from their building which overlooks the capitol and Occupy camp. They’re not press, they’re criminals. What they have is nominal, the view above actually, but a low rez surveillance webcam is poor excuse for a media outlet.

Those who think Occupy Denver should have decamped and gone home, are not thinking of the homeless -the fullest victims of Wall Street. Hopefully Occupy members who were praising the Denver Police so warmly in earlier GAs will stick around on sidelines at least to get lesson in police state. Of course all the members who chose to flee DPD intimidation will be welcomed back tomorrow. But voicing their next 2-cents worth? Not so much.

Police are people too, but they have a job to do. By coincidence it’s to stop you from stopping Wall Street. Yep it’s a dilemma. It’s probably no surprise that pro-fracking, pro-coal, pro-war, anti-immigrant, anti-union gov of Colorado would be against Occupy Denver. Issuing a warning of arrests to be made between 11-5am is extortion, threatening unlawful arrest is police state terrorism. Do we accept police raids tonight on Denver and Seattle camps? Protest is civil right, shelter is human right. Police state is fascist wrong.

Something to thing about: Whole crowds can be subdued by one tyrant with a gun, if they remain nonviolent. Numerical superiority counts where people have courage to act. When people say there’s strength in numbers, it’s not if you’re queued obediently to have your eye put out, or shot, or for rigged elections.

Colo. State Troopers are wearing riot gear to face Denver protesters, because post-curfew peaceful campers equals RIOT in Fascist police state.

Iraq & Afghanistan should have thought to require US to withdraw occupation every night. Military bases must violate some vagrancy law.

Cops sympathetic to 99% could have shown their mettle if they’d occupy their sick leave, occupy off-duty, occupy right to refuse unlawful orders. Otherwise state troopers are dumbasses and do not represent Colorado or 99%. I know by regulation cop IQ has max limit, didn’t know cowardice was also requisite.

Occupy Denver was won Oct 14 at 11:01PM, regardless what happens now. Threat of arrest enlarged crowd, didn’t shrink it. The movement’s momentum is proved.

Mid-night raid won’t matter. Cops wouldn’t face crowd at its largest, the Occupy protests have been emboldened past critical mass.

The 40 minute warning given to the protesters is actually the police giving themselves 40 minutes to shit their pants. The OWS juggernaut is on the move and the popo have chosen to side against 99%. Denver officers, you’re marching against the 99%. Occupy Denver will forgive you and blame your bosses. But you’ve probably heard of Anonymous’ motto.

Riot gear worn by Colorado police concedes conceit that Occupy Denver issue is illegal camping. OWS protest camp is free speech and assembly.

Dear President Tar Baby…

I visited Colorado Springs, but all I got was this lousy t-shirt: BIGOTDoes anyone know if Rep. Lamborn really sent an apology to President Obama for calling him a Tar Baby?
Has anyone seen it? Lamborn’s office issued a press release saying “the congressman is confident that the President will accept his heartfelt apology.” News headlines regurgitated the story sight unseen. The Denver Post quoted Lamborn: “I am sure that he will not take offense and he’ll be happy to accept my apology because he is a man of character.”
 
How do we know an apology was sent? Because Lamborn says so? That dork told us Obama was a Tar Baby, luckily someone showed skepticism about that. This reminds me of the old gag about the man who returns to his parked car to find a note on the windshield: “Sorry I dented your car. I’m writing you this note so people will think I’m leaving my contact info, but I’m not.”

Until Representative Lamborn issues a public apology, or until President Obama acknowledges Lamborn’s contrition for such a preposterous racist remark, how is this insult to everyone’s intelligence and sense of humanity supposed to be lessened?

To judge by the lack of sensitivity shown in Lamborn’s press release, composed for the public, there couldn’t have been much by way of empathy in a private letter to Obama. Alleged. Try to find it online. Every news article about the purported apology links back to Lamborn’s press release. On his Facebook page, Lamborn has a link called “my apology to President Obama” but it leads to the same PR blurb below. (emphasis mine)

Lamborn Issues President an Apology

Congressman Doug Lamborn (CO-05) today sent a personal letter to President Barack Obama apologizing for using a term some find insensitive. Lamborn was attempting to tell a radio audience last week that the President’s policies have created an economic quagmire for the nation and are responsible for the dismal economic conditions our country faces. He regrets that he chose the phrase “tar baby,” rather than the word “quagmire.” The Congressman is confident that the President will accept his heartfelt apology.

Saying “I told him I was sorry” never passed muster in primary school, especially a pronouncement that was 3/4 filled with more insult. A child who’d offended another was made to apologize to his face, out loud. Why is Colorado’s asinine little congressman being given a pass on a transgression that reflects so unbecomingly on his community?

In response to the local fallout, Lamborn’s office has acquiesced to holding a public forum on Friday August 19. It’s outside of town, go figure, in a church pre-filled with dumb bigots, to ensure Lamborn’s supporters can find him. What’s he going to say there? “My statement wasn’t racist.” “Amen!” “It’s not Obama’s being black that makes him untouchable.” “Amen!”

A BIGOT may represent Colorado Springs, but an IDIOT is unqualified.I don’t want to go — what is there to say to him? I don’t even want to meet Lamborn’s unrepentant eyes, much less sit in an audience and give the stupid creep the impression what he has to say deserves a listen.

Ward Churchill wants his dollar back


DENVER– Remember the dollar bill awarded to Professor Churchill last year because the jury took him at his word that return of his tenure at the University of Colorado was the chief demand of his lawsuit for unlawful dismissal? Judge Larry [K]naves vacated the award and the verdict, which is why Churchill v CU is now being reprised for the Colorado Court of Appeals. As Lawyer David Lane outlined for the reporters, Churchill wants the reinstatement of an original secondary claim dismissed without a trial, he wants to resume teaching at CU Boulder, and precisely for its symbolism, Ward Churchill wants that dollar back. This post’s title is my guess at the Denver News headline.

Actually, mention of the solitary dollar was made in court, but from the other side. Believe it or not, CU argued against having to reinstate Ward Churchill because it adjudged the small award to be indicative of the 2009 jury’s intent. Instead of believing the jury’s statement, that they chose reinstatement in lieu of awarding damages, CU pretended that the trivial remuneration meant they couldn’t give a fig if the wronged professor got his job back either.

Oral arguments were heard today by the Colorado Court of Appeals, in a temporary venue located in the Denver Post building, which until recently was also home to the Rocky Mountain News. Was this a supreme irony, or like the usual M.O. in matters of Native American affairs, a direct insult? Ward Churchill had to plead for redress with authorities under the roof of the establishment most responsible for having slandered him.

How did it go? The room was packed, the judges did not appear to show their hand and promised a judgment would be forthcoming. Probably they say that to everybody.

David Lane gave his usual masterful performance, parrying cuts to the quick from the three judges as if his client’s claims were a foregone conclusion. Lane was ready with his trademark descriptive quips, Churchill’s persecution dubbed a “torchlight parade” where the CU trustees fell over each other to grab the microphone to denounce his September 11th Little Eichmanns quote, even as later they claim quasi-judicial immunity for terminating Churchill without prejudice.

Providing the perfect foil was CU’s counsel Patrick O’Rourke, the down syndrome-coiffed wunderbreadkind, who has me convinced there’s a niche for the incompetent lawyer shtick. How else to battle charismatic speakers like Lane, than play the everyman with a limp to elicit the jury’s sympathies. Lingering on my mind, as CU’s attack-defender lost his train of thought and asked a judge to repeat his question, was the news that O’Rourke is reportedly shortlisted for an appointment as judge, perhaps in recompense for his dispatch of Churchill v CU through the backdoor.

O’Rourke raised the inanity of having been presented with no evidence that the Boulder campus suffered a chilling effect as a result of Professor Churchill’s first amendment rights being violated. One judge ran with the theme, until Lane was able to politely corral the sophomoric philosophy quandary. I wished Lane could have gone for a laugh line: Clearly the CU faculty have become frightened to speak their minds, how else to explain the ongoing dearth of critics among them, in times of continuing and escalating barbarity by our history makers?

The turnout saw a good collection of Denver’s rising legal luminaries, Lane’s team from the original trial, the ACLU legal eagles, and members of the National Lawyers’ Guild. Also in attendance were notorious Denver activists and other Churchill supporters, including the owners of Boulder’s Left Hand Books. A notable absence for me was activist lawyer Lynne Stewart, who’d stopped by the original trial to show her solidarity for Ward Churchill and the besieged academics who served as his witnesses. At that time Stewart was appealing her sentence for aiding-and-abetting terrorists in her role as their defense counsel. This summer, Stewart received not a reprieve, but an even longer sentence, and consequently this month spent her 71st birthday behind bars.

As he did in the original trial, David Lane opened with the suggestion that this case was likely to have a legacy more broad than the presiding judges may all imagine. So far, whether the jurists for the establishment concur or not, I’d say he has been proven correct.

Diabetic care in America is a total mess

insulin injectionDiabetics skimp on lifesaving care in recession *Note, too, that how diabetes is treated in the US is a key indicator of how the Medical System as a whole is doing since diabetes is now such a common disease of aging. The system as is is actually a total failure as this Denver Post article underlines.
 
So how’s ‘National Security’ really going with all that money going for soldiers and hardly none of it going to help pay for the American people’s needed medical supplies and treatments?

Ward Churchill prevails over Western Civ

Professor Ward Churchill stands before Denver court house
DENVER- The jury ruled for Ward Churchill today, that he was wrongfully terminated, on the basis of his 9/11 essay, and that CU had no other justification to fire him. It remains for the judge to order the university to reinstate the professor, with back pay, and pay Attorney David Lane’s legal fees. In other words, the accusations made against Churchill have been repudiated, and the regents showed themselves to be perjurers. It was my impression the ex-Rocky Mountain News columnists left the courtroom with their tongues between their wobbly knees.

Churchill v University of Colorado

Churchill v University of ColoradoThis is court room 6, where the trial stretched for three and a half weeks. We’re looking over the plaintiff’s desk, to the right is the podium. That’s Ward Churchill’s coat draped on his chair.

I would expect that Churchill is owed an apology from the several publications which perpetuated the untruths about his scholarship. Beside the RMN, there’s Westword, the Denver Post, the Boulder Daily Camera, etc, etc, basically everyone who’s peddled the plagiarism falsehoods, thinking them substantiated by the CU committee. Now the falsehoods are disproved are adjudicated. Now it will be libel, to repeat those untruths about Churchill.

Churchill v University of Colorado

Churchill v University of Colorado

Churchill v University of Colorado

Churchill v University of Colorado

Press conference after verdict

Ex RMN columnists stuck to their guns

Vincent Carroll now reporting for the Denver PostDENVER- Considering the villainous role the Rocky Mountain News played in the vilification of Ward Churchill, their insinuations having been thoroughly discredited in this trial, you’d think the RMN columnists now writing for the Denver Post would be self-conscious about taking the same mocking stance. But they are not. Attorney David Lane chats with them most amicably, but still they file the typical anti-academic hit pieces. Columnist Vincent Carroll summarized Churchill’s recent testimony as: Ward’s world of brazen claims.

In an earlier piece, Carroll recaps Churchill’s alleged misconduct, but where an objective reporter would say “alleged,” Carroll writes “gross.” Don’t think the RMN vets aren’t well aware that a vindication for Churchill means a repudiation of their libel.

Mike Littwin formerly of the Rocky Mountain NewsMike Littwin is no better. For him, yawns in the audience are not a sign of defense attorney Patrick O’Rourke’s pedestrian presentation, but of the discussion’s irrelevance. Of Native American history in dispute, of genocide still denied by CU in this example, Littwin concludes: the World has moved beyond Churchill.

Churchill and his curiously vile detractors

Ward Churchill caricatureDENVER- There’s an interesting sideshow at the Churchill v CU case having to do with a cadre of unsavory Ward Churchill online critics. What they are writing is hardly interesting but their unceasing doggedness, repeating only ad hominem attacks, leads one to wonder who they are and what horse do they have, in not only this race, but in Churchill’s ongoing activism. These are the same voices which heckled the DNC organizers, AIM, and the contra-Columbus actions.

It’s a little circle of shit-knitters, who cross-link or repost each other’s comments from Blogspot blogs Drunkablog, Slapstick Politics, People’s Press Collective, and riding point on the Churchill Trial, Pirate Ballerina. These are Little Green Football variety ditto-heads, and I hardly mean to draw attention to them, but their relentless character assassination seems to wag the local media dogs, and one might as well look into that.

Meaning, more in a bit.

Churchill amused the courtroom audience by illustrating his sarcastic use of quotation marks, as one might refer to the Rocky Mountain News as a “newspaper.”

It’s not enough to conclude Professor Churchill has enemies. There are Native American casino owners who might be threatened by Churchill’s revisiting of the past, there are rivals for Churchill’s influence in the American Indian Movement. Obviously there are historians eager to retread what they’ve invested in the Master Narrative. Curiously, there are Zionists who are vehemently opposed to the discussion Churchill wants to provoke. And I suppose there are stupid white males who will stand for no diminishment of God Blessed America.

These bloggers are the latter “Right Wing” variety obviously, and bring nothing to the table but personal attacks. But what sustains them, tasked as they appear to be, to hound Ward Churchill on a daily basis, year after year?

There are players both on the national scene, and locally, who I consider complete bastards who merit every rebuke possible, but that doesn’t mean I dedicate my every utterance when they so much as visit the bathroom.

Media coverage of Denver Churchill Trial

Media gather around video feed from Churchill vs CU trial
DENVER- NMT to the rescue. So far we’ve noticed a strange media dyslexia about the Churchill vs CU trial. When we’ve attended, the proceedings look like a rout for truth and the historical record. When we haven’t made it to Denver and are left to rely on the news coverage, by all accounts Churchill is in trouble. Are the reporters freakin’ blind?

While I’ve been content to revel in the excitement of clackering laptop keyboards all about me in the courtroom, I hadn’t snooped over anyone’s shoulder, until this week. On Monday, the Boulder Daily Camera front row regular, after he’d posted his story before the first morning break, busied himself with emails, then watched a video with the Denver Post correspondent perched over his shoulder. Later another media log lump monopolized the last power outlet to play solitaire.

I’m guessing the DU law student project Race to the Bottom blogger is taking the most notes, competing with a would-be law student, not just for proficiency, but also in who takes the most drearily technical view of the proceedings.

I’ve yet been able to assess the coverage by the weekly visitor from the Silver and Gold Record, CU’s faculty publication. Check out the Wednesday account, and three previous: March 16, 14, 12.

Ward Churchill is expected to take the stand today, so I’ve come up to lend insight to the academic goings on. I’m somewhat alarmed at the angle the media is taking. Ward Churchill is not only the leading authority on Native American history, he’s among only a few outspoken academic voices. More spirited than Zinn, or Chomsky, and as result, perhaps more controversial. But I challenge anyone to name many contemporaries who match more luminary.

Next I will provide color commentary for the lesser luminaries who are dogging Churchill and his desecration of idealized Americana.

Colorado’s collapsing Medical Care

kildare promo stillThe Denver Post ran an article this Sunday that paints a pretty sad picture of what’s going on in Health Care as the Obama Regime stands by. Health services in distress- Newly jobless seek aid in “astronomical” numbers
 
Health services being shut down even as demand goes up, as the economy is just not getting the job down for what people actually need! Meanwhile, Big Business run local, state, and federal government sits idly by watching the on rush of disaster without responding to it in any meaningful manner. This is Hurricane Katrina unfolding once again, but on a national scale and a scale of national corruption that dwarfs the mess that Bush made out of Southern Louisiana and Southern Mississippi. The levees have burst wide open, because the money was spent elsewhere rather than in reinforcement of these vital services. Where’s the CHANGE?

Barack Obama resembles Gerald Ford more than he does Lincoln

Gerald FordToday’s Denver Post print edition headline reads U.S. closes door on Guantanamo, torture. Of interest is how their internet version of this headline has changed the verb tense from ‘closes’ to ‘closing’. Yes, well it amounts to about the same thing, kind of? Well but is it a closed book, or not? That question has to be asked because Gerald Ford supposedly closed the book on Watergate, which was where a President acted in a criminal manner but was left entirely free from facing any criminal charges! The President will be stopped (after his criminal acts become just too obvious and exposed) but is simply above the law, was how the message was left later to be read by the likes of Dubya Bush and Dick Cheney.

Yes, Barack Obama wants to clean America’s image up and closing Guantanamo’s detention unit down is key to that. But he also wants to sweep the dirt under the rug and get on with it, so to speak. There is no evidence that he plans to prosecute anybody for the crimes they committed by running this Federal torture camp, and this is what makes us look on these seemingly positive moves with a huge amount of scepticism.

Eisenhower, too, eventually stopped the McCarthyite witch hunt from going further forward, but then continued to wage the Korean War that resulted in millions going to their deaths. He kept the Cold War going full tilt, and much of the world worried that the ‘cold’ would become a hot war with nuclear weapons begin launched. In fact, Eisenhower’s military command thought long and hard about nuking China. So looking at the edicts coming out from Barack Obama on his first day about supposedly moving to end the torture regime of the Bush Administration should not be looked at with rose tinged glasses on.

Suspected U.S. missile attacks kill 18 in Pakistan At the same time as Barack is supposedly ending US government torture of POWs, his Administration is continuing the bombing of targets that hit civilians in Pakistan as often as not. Further, the bombing raids are a violation of Pakistan’s sovereignty, same as the continued now Barack Occupations of Iraq and Afghanistan are, too.

While nobody can expect Barack Obama to reverse all that Bush’s Klan instituted with DP loyal assistance in just one or two days, let alone one or two weeks, there still is really no reason to assume that Barack has any plan to do so… EVER. In this sense, Barack Obama resembles Gerald Ford much more than he resembles Abraham Lincoln. Eventually this will become rather obvious but for now the liberal euphoria continues. They are being led around on their leashes by the corporate media and Barack, but what we are actually seeing so far is Barack Obama pardoning Bush and his gang for crimes committed.

ACLU: Police provoked first DNC arrests

den-mon-ua-masks
The ACLU has uncovered a police report which reveals that the first gassing of protesters at the DNC was in response to actions by an undercover provocateur. The police explain their ruse was to extract the infiltrator from the crowd without blowing his cover, but those who were there saw the maneuver’s real purpose. The Denver Post wrote DNC police staged confrontation that prompted pepper spray

After two trouble free marches that day, this incident began when a group organized by Unconventional Denver stepped off the curb at Civic Center Park. Police who had been encircling the group on the grass, formed a phalanx to block their passage and immediately donned gas masks.

The demonstrators were confronted from the North and West, to keep them from leaving the park area. At any time members of the crowd could opt to step back unto the grass. This fact challenges how the Denver Police are attempting to explain their actions with the protest infiltrator.

Because the report brought to light by the ACLU revealed that the first target of the pepper spray was an undercover officer, DPD offered this story. They were trying to extract their officer without arousing suspicion. When another officer misinterpreted the scuffle, he unleashed the pepper spray. Protestations and more spraying ensued. That’s the official story.

Witnesses can attest that there were plenty of other undercover agents in the crowd, the rest of whom were able to melt away. Why the special treatment for this one?

Well, there’s another hypothesis for the police actions. It’s textbook crowd management. I’d say “riot control,” but it means inciting a riot in order to control it. Police use infiltrators to start fights in order to justify their use of violence to intervene. Often this can be as simple as an infiltrator to play stool pigeon while the police jump in to make the arrest. The crowd moves to protect what it thinks is a member unfairly targeted by the officers, and this reaction gives the police justification to crack down.

It that what happened at the DNC on Monday? Not even. While the undercover officer struggled against being “arrested,” before there might have been a reaction from the crowd, another officer “mistook” the event for a protester resisting arrest. His assault with pepper spray led to the crowd reaction which prompted indiscriminate spraying.

I can attest to two details which reinforce the likelihood of this latter scenario. Number one, all protest participants were always free to retreat from the street. It’s the path I chose in fact. My photographs illustrate my vantage point from curbside. Two, DNC activists were always savvy to the police infiltrators. We gave them as wide a berth as possible at all times. It’s likely the crowd never fell for the one who provoked the escalation of violence at Civic Center Park. In fact by the DPD’s own admission, the step up was a “mistake” on the part of one of their men.

Here’s raw surveillance footage which shows the chronology of the spraying.

Democrats push Bush Treasury giveaway to super rich while Republicans block it

What can be more pathetic and abjectly servile than the Democratic Party seen pushing to pass Bush’s bailout of the bankrupt private sector with public monies, while the Republican Party itself blocks it? And the Republicans are the minority in both the House and Senate, too! See the Denver Post’s GOP rebellion stalls bailout and Reuter’s White House calls in big guns as bailout battle rages Yes, the ‘big guns’ are being turned on the Republican Party resistance and not any resistance from the Democratic Party which is rolling over and playing dead for Bush once again.

Expect the same politics if Obama gets in the White House, since the Democrats are the party of the super rich just as much as the Republicans are. Despite all the pretense of supposedly opposing neocon programs, the Democrats are on board. The financial shenanigans and criminality of Wall Street and the DP response to them is just one more case in point. The Democrats are out to bankrupt the US Treasury arm in arm with Bush and Cheney.

CC newspaper can misreport like a pro

While I’m picking on Colorado College, have a look at what passes for journalism at the Catalyst:
Sarah Palin visits Springs
The McCain/Palin RNC speeches had already been exposed for lies by the time the two visited Colorado Springs. But the candidates repeat their earmarks/reform misrepresentations which reporters parrot without so much as a raised eyebrow. Even now the corporate media won’t call the GOP on their doublespeak. I guess neither will CC journalism students.

What kind of cheerleading did the students feel had been left out of the Gazette and Denver Post coverage? The reporter described the Colorado Springs streets lined on both sides with McCain supporters, without a mention of the prominent presence of the protesters. What a shame/sham.

No doubt a Communications Major now requires a class in UNETHICS. Who am I to judge students trying to qualify for jobs in today’s corporate state? Once more Colorado College students confirm their school’s common function as purveyor of Neo-liberal Arts.

I’d actually like to draw your attention to the article at the upper right of the front page, about the campus NEW ALCOHOL POLICY. While the drinking age in Colorado remains 21, Colorado College is relaxing its enforcement of underage drinking. This would be applicable to two thirds of the CC student body. Apparently being able to drink is a benefit the college would like to provide, regardless the laws of Colorado.

Colorado College has had its share of drinking fatalities, and neighborhood disturbances, but I guess having a campus conducive to partying would be too important to infringe upon. Especially as CC’s academic successes warrant their students being able to kick back.

Really, the college does have a stellar faculty, but even their assessment of the caliber of today’s students has perhaps become myopic. Unless the quality of America’s students as a whole has degraded to this untenable uneducable extreme.

Wake up CC alums, your campus is gone to the dogs. Drunken wet ignorant dogs. I can’t think of what could smell worse.

OBSESSION: anti-Islamic documentary is 2006 Zionist election year propaganda

Gazette insert
COLORADO SPRINGS- If you’re not going to watch the propaganda on CNN/FOX/”24″ they’ll bring it to you! Inserted in this morning’s Gazette was OBSESSION: RADICAL ISLAM’S WAR AGAINST THE WEST, a DVD distributed by The Clarion Fund and promoted by Alan Dershowitz. Why a free copy of a 2006 crockumentary now? This “non-partisan organization devoted to educating the public about national security issues” wants us to check out www.radicalislam.org because “it’s our responsibility to ensure we can all make an informed vote in November.” And the DVD insert went to newspapers in SWING STATES!

Obsession posterThe DVD wrapper features a blurb by Michael Medved, the pro-war Zionist cloaked as mild-mannered film critic. Says Medved, “Obsession is one of the most powerful, expertly crafted and undeniably important films I’ve seen this year…” No mention that the year was 2006, and the made-for-a-previous-US-election quasi-documentary has already been widely debunked as racist propaganda. An executive producer of “24” intones: “… required viewing for everyone.”

Oh, and of course Edmund Burke’s helpful nudge: “All that is necessary for the triumph of evil is that good men do nothing.”

Bad enough that this insert went to the Gazette’s 100k readership, it also went out with the newspapers below. This is more than the FREEDOM COMMUNICATION chain, it includes the NYT and the WSJ.

Do you detect a Swing-State pattern where Colorado, Florida, Michigan, Nevada, Pennsylvania, Ohio and Virginia predominate?

Paid Advertising Supplement to: Akron Beacon, Altoona Mirror, Ann Arbor News, Blade, Bucks Co. Courier Times, Centennial Citizen, Chronicle of Higher Education, Cincinnati Enquirer, Claremont Review, Clovis News Journal, Columbus Dispatch, Daily Camera, Daily Commercial, Daily Nonpareil, Dayton Daily News, Denver Post, Des Moines Register, Detroit Free Press, Erie Times-News, Examiner, Flint Journal, Florida Times-Union, Fort Collins Coloradoan, Ft. Lauderdale El Sentinel, Ft. Meyers News Press, Gazette, Grand Rapids Press, Greeley Tribune, Green Bay Press-Gazette, Hobbs News-Sun, Iowa City Press Citizen, Janesville Gazette, Journal News, Journal Times, La Crosse Tribune, Lansing State Journal, Las Vegas Review-Journal/Sun, Miami-El Nuevo Herald, Miami Herald, Middletown Journal, Milwaukee Journal Sentinel, Morning Call, Morning Journal, Nevada Appeal, New Appeal, New Hampshire Union Leader, News-Leader, New York Times, Ocala Star Banner, Orlando Sun Sentinel, Palm Beach Post, Patriot-News, Philadelphia Inquirer, Pittsburgh Post-Gazette, Portsmouth Herald, Quad-City Times, Reading Eagle, Reno Gazette-Journal, Repository, Rio Rancho Observer, Sioux City Journal, South Bend Tribune, South Florida Sun-Sentinel, St. Petersburg Times, Sun-Gazette, Tallahassee Democrat, Tampa Tribune, Toledo Blade, Tribune, Tribune-Review, Vindicator, Virginian-Pilot, Wall Street Journal, World Jewish Digest.

The Blue states of Iowa, New York and Wisconsin seem also to have been targeted…
Swing States 2008

I’ve got a few documentaries to recommend for everyone. In particular Colorado Springs. First, how about FOR THE BIBLE TELLS ME SO about the means American Fundamentalist Churches sow division and hatred between peoples. Its climax is set in the Springs, but no local commercial movie theater will dare screen the film. It did visit Colorado College, so we’ll have more to report on the film and its director later.


FOR THE BIBLE TELLS ME SO -Trailer

Next, a recent investigation into the forces moving behind the sensationalizing of NINE/ELEVEN. It’s called FABLED ENEMIES and you can view it online.FABLED ENEMIES
Also online is an investigation of the tragedy of the USS Liberty, an American Navy surveillance ship that had the misfortune to witness the Israeli preemptive attack on Egypt in 1967. LOSS OF LIBERTY recounts how Israeli jets were forced to attack the Americans to cover their tracks, killing 34 sailors and wounding 171, and the US administration had to cover-up the incident because it was determined to keep portraying Israel as America’s ally.LOSS OF LIBERTY

They had hid shit in bags!

big shitLike a carefully choreographed play, accusations by the police that they have uncovered shit and urine stockpiles by protesters has been their routine to cover up their actions at both the Democratic and Republican Party Conventions. By making these false accusations in the press, the police and politicians hope to cover up their own shitty actions against lawful protesters. What they are actually trying to do is make political dissidents in the US out to be of the same stripe as common criminals in the police torture chamber prisons around the US, thus justifying their overkill storm-trooper presence these last two weeks. Thus helping tear up all our legal protections and rights.

Sorry, Guys, it won’t work. To the world it looks like American police and government are of the same stripe as what we saw on TV in Beijing, China. Smart, Dudes! American police may still have the support of the conservatized American population as a whole, but this support will ebb if you keep these actions up for much longer.

Of note is that Denver’s Democratic Party mayor, John Hickenlooper, has joined with St. Paul’s Democratic Party mayor, Chris Coleman, in backing up these police smears in the press. The Denver Post today ran this piece of police disinformation backed up by the DP mayor of the city… Mayor: Protesters hid feces and tools Yeah, right! The real poop in bags being hidden is that of the mayor and police.

When are Democratic Party liberals going to hold their party accountable for acting like the Republicans, on behalf of the Republicans, and on behalf of abusive national policing policies? Many of you DP voting liberals are among the group of protesters being smeared with dishonest shit by these false accusations by Democratic Party mayors, so why do you take it? Shame on you and your party! All you can seem to do is scream about Sarah Palin. Democrats, you are a pathetic lot indeed. Cop talking shit!

Uncle Sam’s make-work program for stormtroopers and the Israel Connection

There is a secret, make-work program for American stormtrooper meatheads now calling themselves TLO, or “Terrorist Liaison Officers.” Don’t laugh, these people are for real! The Denver Post recently disclosed that there are 181 of these folk operating in Colorado alone. Warning though! If you want to know more about them they will monitor your visit to their US government paid website and say so! How is that for disclosure? You paid for this, too! lol…

Here below is their warning to you visitors…

Security, Intrusion, and Detection
For site security purposes, and to ensure that this service remains available to all users, all network traffic is monitored in order to identify unauthorized attempts to upload or change information, or otherwise cause damage or conduct criminal activity. Anyone using this system expressly consents to such monitoring and is advised that if such monitoring reveals evidence of possible abuse or criminal activity, system personnel may provide the results of such monitoring to appropriate officials. Unauthorized attempts to upload or change information, or otherwise cause damage to this service, are strictly prohibited and may be punishable under applicable federal law.

Given the nature of this service and the volume of postings, TLO.org cannot guarantee the accuracy of third party content, nor can TLO.org be held liable for errors or omissions. When in doubt, users of this service are advised to verify information independently.

TLO.org is operated by the Joint Regional Intelligence Center, Norwalk, CA 90650

Happy visit to these stormtrooper meatheads at The Terrorism Liaison Officer Information Network BTW, there are similar structures created in Britain, Australia, and New Zealand, too. Big Brother is looking over your shoulder at you and you may piss Big Brother off. Beware!

Oh, and one other interesting aspect about this US government program for the stormtrooper ‘national insecurity’ meatheads is their link to Debka.com, which is a website connected to people in Israel’s military apparatus, and reporting that is of interest to those folk. We can begin to see the tie-ins here with these links.

Must be great that the ‘intelligence’ that TLOs that might be working inside the local PDs in places like Boulder, Colorado Springs, and Denver have such nice companions to get their ‘info’ from. This is pretty sick stuff indeed, and TLO.org will be growing in size quite soon, no doubt. The Democrats signed off on funding this operation, too.

And to mention just one other ‘national security’ link, that would be TLO.org’s link to the Drudge Report website! Incredible! What other US government program has such nice links for cops to go to? Nice to know where they get their ‘intelligence’ from.

Press gloats over split in Antiwar Movement up in Denver

The Gazette of Colorado Springs today published a national AP report gloating about how activists planning protests in Denver during the Democratic Party convention have been split into two different organizing groups. The Denver Post, too, has a commentary about this split… Convention protest hit by groups’ split The cops and corporate press could not be happier with this unfortunate development.

The split has several causes, not least of is that Democratic voters amongst Peace-antiwar group’s memberships really don’t want much of a protest at the Democratic Party Convention at all. Here in Colorado Springs we have the same phenomena, where many Democratic Party glued liberals are doing all they can to ignore the Denver protests and will avoid at all lengths going 1- hour North to participate in them.

The local Colorado Springs based Pikes Peak Justice and Peace Commission is currently playing dead on dealing with this upcoming big Colorado event. Their 3 paid staffers and Board cliquers have other things on their agenda, like perhaps napping for a year or so? Don’t look for them to help build up much (if any?) of a good vibe for going up to Denver to protest there. Heck, the word ‘protest’ is kinda radical, is it not? And these people are as ‘peaceful’ as deep sleep. They only get violent when woken from their sleep, in fact.

Actually there really is little of a new split here. Those who want to protest will, and those that don’t want to protest will try to hinder those that do. What else is new these days in antiwar circles? The Democratic Party people amongst us really should be labeled Inactivists.