Is Colo. Attorney General worried that Colorado River rights case will reduce Land of Many Uses to too few abuses?

Posted on December 1, 2017 by Eric Verlo

DENVER, COLORADO- Do you know about the lawsuit brought on behalf of the COLORADO RIVER, suing the State of Colorado for interfering with its right to flow into the sea? It’s a “Rights of Nature” initiative which suggests that if corporations can have rights, why shouldn’t natural stakeholders? Although environmental entities have been granted recent legal protections by various progressive nations around the world, the Colorado team bringing the lawsuit is widely expected to be rebuffed. The court has already delayed the initial hearing where first arguments will be presented, but this week brought a surprise development that suggests that the lawsuit’s defendants give the case better prospects. This week the Colorado Attorney General’s office served a letter to the plaintiff’s lead council, attorney Jason Flores-Williams, warning they would initiate sanctions against him if he did not voluntarily withdraw the lawsuit. Intimidating, but really a very good sign.

Police body cameras reveal Colorado Springs law enforcement used arrests to infiltrate a student socialist group.

Posted on July 18, 2017 by Eric Verlo

COLORADO SPRINGS, COLORADO- Police body worn camera footage accidentally discovered to defendants in the March 26, 2017, protest cases, has revealed a mysterious side story at the Colorado Springs Socialists’ “March Against Imperialism”. At that march, six participants were cited for marching in the street. Meanwhile, a curious seventh was detained, driven off, but not cited. CSPD Officer Krueger’s body-cam recorded what happened and more.

What happened at the March 26 rally, beside the police dispersing a fully legal assembly? This video documents that the CSPD tried to give deeper cover to a team of El Paso County Sheriff’s plainclothes operatives, by giving one of them the credibility of an arrest. In truth, it worked for three weeks and several socialist actions, until the undercover team spooked everyone with their excessively sketchy zeal. As the March 26 evidence was released to defendants, the contradictory police reports began to accrue. Then a file labeled KRUEGER BODY-CAM emerged.

1. Krueger-cam
The first thing you see is the twenty or so protesters, clad in black, waving red flags, rallying on the steps of Colorado Springs City Hall. Speakers are railing against capitalism and imperialism. CSPD Officer Krueger comes upon this scene, among the reinforcements called, because fourteen of the protesters, mostly masked, were observed to have marched on the street.

(Marchers had followed Nevada to Bijou to Tejon to Colorado back to Nevada, trailed by the cruisers of CSPD Officers Mark Keller and Roberto Williamson. Returning to City Hall, participants were told by CSPD Sergeant Clayton Blackwell that they could protest on the sidewalk but would be ticketed if they stepped back into the street.)

As the rally goes on, the officers hear that orders have changed and everyone is going to be ticketed. On camera, Officer Keller relates a possible motive: “LT wants everyone identified.”

(Most of the protesters are masked. Arrests will give police the pretext to register everyone’s identity, whether the person walked in the street or not. By “LT”, Keller may be refering to Lieutenant Webber, who dispatched officers to the scene, or Lieutenant Mark Comte, in charge of CSPD intelligence.)

As officers discuss whether to rush the group or detain two or three protesters at a time, CSPD Sergeant Blackwell discloses to his men: “There’s two UCs in there, and they’ll just take a ticket like everybody else.” Blackwell adds, jokingly: “So hopefully we don’t have to start spraying ‘cause I don’t know which ones they are.”

Officer Keller tells Krueger and Canaan he thinks one of the protesters is concealing a knife. He fingers a masked protester wearing a Carhartt jacket.

Though Krueger and his partner, CSPD Officer Dustin Canaan, were informed about undercovers, they don’t know that they are being tasked with arresting one.

Officers Krueger and Canaan are formally instructed that when the move is made to issue citations to the protesters, they are to apprehend “Carhartt”.

In fact, the first planned arrestee of March 26 is “Carhartt”. Aka the sheriff’s undercover.

Officers encircle the rally as Sergeants Ingram and Blackwell tell the socialists that “Everyone is getting a ticket!”

When the officers confront “Carhartt” he loudly abuses them with expletives proclaiming his innocence. He does this to incite fellow protesters to resist the police effort to detain him. Everybody else however is either walking swiftly away or calmly accepting their citations for Pedestrian-in-the-Roadway and Failure-to-Disperse.

Officers Krueger and Canaan ask “Carhartt” whether he has a weapon. The suspect responds with a strange command, voiced between clenched teeth: “Pat me down at the car.”

They don’t hear his response and so repeat their question. “Carhartt” sticks to his odd refrain: “Pat me down at the car!”

Krueger and Canaan walk “Carhartt” to their cruiser where he admits he has a weapon, a “M&P Shield 9mm”. He alerts the officers that his gun is tucked into his front waistline, with the safety off. In his pocket the officers find an additional magazine clip.

(Let us reflect for a moment, that only Officer Keller knew about this undercover. Imagine if events had escalated and any of the other dozens of police officers had caught a glimpse of the undercover’s gun. What kind of trigger-happy confrontation could have resulted with the socialist marchers caught in the middle? We might also wonder what Carhartt intended to do with two magazines full of bullets.)

Officer Canaan unloads the 9mm, removes the bullet from the chamber, and places everything on the front seat.

The officers ask “Carhartt” whether he wants to be cited and released on the spot, or taken to be booked at the station? The detainee responds he wants to go wherever the other arrestees are being processed.

Asked whether he has a concealed carry permit “Carhartt” replies no.

It occurs to the officers that they can’t catch and release someone, however cooperative, if they’ve apprehended you carrying a concealed weapon without a permit.

Officer Krueger leaves to consult his supervisor Sergeant Blackwell about this arrestee who is carrying a gun without a permit.

Blackwell asks Krueger: “Is he one of our UCs?” He explains again: “We have two UCs. Do you recognize him?”

Krueger says no.

Blackwell comes to the cruiser to see for himself.

Blackwell doesn’t recognize the detainee either.

As Sergeant Blackwell walks away from the cruiser, he tells Krueger the suspect is not one of their UCs, then he ponders: “…unless he’s with the sheriff’s office?”

The suspect gives his name as Mark Jackson, d.o.b. 7/20/75, last digits of SS# 1033, phone number (281) 606-0532. All of which is probably phony.

His partner “Amy Walter” has been sitting nearby on the curb. She didn’t flee like the other participants, but oddly, was neither cited nor unmasked like all those who remained.

(“Amy Walter” kept her cover for months after the arrests. She claimed to drive up from Pueblo and only appeared fully bloc’d up. She’s gregarious and eager, and speaks with an Eastern European accent.)

Jackson remains detained in the back seat. After a few minutes CSPD Officer Mark Keller comes to the window to look at the suspect. He walks off camera, probably to tell Sergeant Blackwell that he can confirm the detainee is indeed an undercover.

Blackwell returns shortly to the cruiser to tell Krueger “We’re good.” Lowering his voice, he adds: “He’s UC.”

After some thought, Krueger turns to Jackson and asks in a whisper: ”Are you with the Sheriffs?” The undercover answers in the affirmative.

Krueger turns off his body-cam.

2. Canaan-cam
The body-cam worn by Krueger’s partner, Officer Canaan, has all the while recorded the same sequence of events, but he wasn’t paying attention to the whispers, so his camera continues to record.

Officer Keller walks back to the cruiser, this time to tease the undercover. Keller leans in and jokes about the arrest he arranged by pretending to suspect that Jackson had a knife.

Keller begins: “You really should hang out with a better crowd.”

Mocks Jackson: “I know. ‘Fuck the Police’. Ha ha.”

Keller goes on: “Hey, youse in the street, I figured you should get a ticket like everybody else.”

The undercover then says: “That’s why I yelled ‘COME FUCKING ARREST ME!’”

The two then discuss whether the undercover’s female partner should also be ticketed. Jackson theorizes that one ticket is enough.

Meanwhile an unspoken decision is made not to carry through with Jackson’s citation. This disturbs the undercover. He asks “How will it look when I don’t get a ticket?”

As Officer Mark Keller leaves the conversation at the cruiser, he looks directly at Canaan’s body-cam.

Undercover Jackson then notices that Officer Canaan did not grasp the development. He tells Krueger “You better tell your partner what’s going on.” Canaan turns off the audio on his body-cam.

ANALYSIS
To recap. Sergeant Blackwell revealed that the city had two UCs planted in the Socialist march. Officer Keller knew of the undercover Sheriff’s deputies “Jackson” and “Walter”. An effort was orchestrated to give a citation to “Jackson” but that plan was aborted. Wouldn’t it be interesting to know why?

Jackson’s detainment did not generate officer reports from either Krueger or Canaan, but the alias “Mark Jackson” was listed in three places. 1) on the March 26 police blotter, 2) in the radio log as “Mark Jackson in custody”, and 3) mentioned in passing in the report filed by Officer Roberto Williamson.

For three weeks “Mark Jackson” continued to infiltrate the socialist group, participating in several counterprotests, until everyone gave him the cold shoulder. His partner “Amy Walter” continues to contact group members.

The infiltration operation is extraordinary when you consider that the “Colorado Springs Socialists” essentially comprises the UCCS Socialist Discussion Group, a year-old student club chartered at the school. Though the students sometimes conceal themselves bandanas and hoodies when they attend social justice protests, they’ve committed zero acts of rioting, violence, or property destruction.

Once the video files had been released to the March 26 defendants, city prosecutors fought tooth and nail to quash the defendants’ subpoenas to the officers involved. The judge refused to review the body-cam footage, explaining that the El Paso Sheriffs Office had the discretion to refuse to provide further information.

Defendants insisted the prosecution was obligated to produce all the witnesses it knew to be on the scene of the alleged offenses, whether the witnesses were uniformed police or undercover. But the court won’t concede that the undercover operation merits looking into. The city stresses the importance of detectives being able to remain undercover to monitor ongoing crimes, in this case, jaywalking. The defendants are charged with obstruction and failure to disperse. If those are the crimes worth embedding undercovers, then the officers ought to be summoned to the trial to testify and secure convictions.

The defendants risked just that by insisting that the undercovers come forward as witnesses, but that risk was worth what the defendants were really after. What were those undercovers doing at the rally and at the march? Were they leading marchers into the street? Were undercovers taunting the cops as a demonstration that the protesters heard police orders to get off the street. Most marchers did not hear any orders, nor see police do much other than block traffic for their procession, contrary to the tone set by undercover Mark Jackson’s “COME FUCKING ARREST ME”. To prove the charge of Failure to Disperse” the prosecution has to prove that the accused wilfully defied the police. Jackson’s words seem meant to stand in for that proof.

Likewise, was Jackson’s belligerant response to police trying to arrest him meant to spark more resistance? Very often, riot cops target their own infiltrators who know to act outraged and resistive so that the crowd responds protectively. Jackson was clearly trying to do that.

Most of all, defendants wanted to get to the bottom of CSPD’s complicated operation to set their undercovers up to “take a ticket like everybody else.” How many officer were involved, and why didn’t officers recognize each other? Are the undercovers in fact with the El Paso Sheriffs Office or are they intelligence contractors or government agents? Who was coordinating this infiltration operation and who decided to call off issuing the ticket?

Who above all, thought they needed to insert an armed undercover, or two, possibly four, in the midst of a peaceful anti-imperialism march? Could a socialist group’s reckless co-opting of city streets warrant an undercover team’s reckless endangerment of unsuspecting activists surounded by very likley PTSD-addled police officers?

Jackson’s jittery behavior while detained in the back of the police cruiser hardly gives you confidence that even he should be trusted to wield a gun.

APPENDIX
The Krueger and Canaan body cam videos are circulating online. We’ll link to them as we locate stable copies. Below is an index of the events described above.

On the KRUEGER body-cam:

[0:45] Officer Mark Keller: “L.T. wants everyone identified.”

[3:05] Sergeant Clayton Blackwell: “There’s two UCs in there, and they’ll just take a ticket like everybody else. So hopefully we don’t have to start spraying ‘cause I don’t know which ones they are.”

[3:50] Off-camera officer: “Guy in the Carhartt [jacket] has a knife in his pocket.”

[9:00] Officers Krueger and Canaan discuss orders to arrest “Carhartt” suspected of carrying a knife.

[14:02] Sergeant John Ingram shouts: “Everyone is going to get a ticket!”

[15:20] Krueger and Canaan contact “Carhartt” who responds in a hostile and provocative manner. Unlike the other arrestees who are fully cooperative, he objects with loud profanity and derision.

[18:05] Krueger and Canaan discover “Carhartt” is armed with a 9mm handgun, tucked in his front waistband, and no concealed carry permit.

[20:04] Suspect gives his name as “Mark Jackson, d.o.b. 7/20/75”, and asks: “How do you know I was in the street?” Officer Canaan replies “An officer pointed you out. He’s been watching you the whole time.”

[23:38] Krueger consults Sgt. Blackwell who determines that “Jackson” is not one of their two UCs embedded in the march.

[28:56] Off camera Sgt. Blackwell tells Krueger “He’s U.C.”

[29:20] “Mark Jackson” admits he is with Sheriff’s Office.

[29:50] Krueger turns off body-cam.

On the CANAAN body-cam:

[16:41] Officer Dustin Canaan unloads the detainee’s “M&P Shield 9mm” and places gun, magazines, and extra bullet on front seat.

[22:02] Officer Mark Keller approaches cruiser to take a look at the detainee’s face.

[24:52] Sergeant Blackwell taps on cruiser window, says “We’re good.” Whispers to Krueger (inaudible, but it’s on the Krueger cam where we hear: “He’s UC”)

[25:03] Officer Keller returns to cruiser to joke with “Mark Jackson” about having arranged his fake arrest. Says Keller: “Hey, you’se in the street, I figured you should get a ticket like everybody else.” To which Jackson replies: “That’s why I said ‘Come fucking arrest me!’”

[25:25] Keller discusses with Jackson whether or not to ticket his female partner.

[26:27] Canaan turns off the audio of his body-cam.

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

Posted on April 5, 2017 by Eric Verlo

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Posted on February 22, 2017 by Eric Verlo

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

Document 29 Filed 02/22/17 USDC Colorado

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Judge William J. Martínez

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

NAZLI MCDONNELL, and
ERIC VERLO,

Plaintiffs,

v.

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

Defendants.

________________________________________________________

ORDER GRANTING PRELIMINARY INJUNCTION IN PART
________________________________________________________

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

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

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

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

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

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

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

I. FINDINGS OF FACT

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

A. Regulation 50

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

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

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

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

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

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

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

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

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

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

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

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

B. The Executive Order

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

C. The January 28 Protest at the Denver Airport

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

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

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

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

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

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

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

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

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

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

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

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

D. The January 29 Protest at the Denver Airport

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

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

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

E. Permits Since Issued

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

II. REQUESTED INJUNCTION

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

III. LEGAL STANDARD

A. The Various Standards

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

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

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

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

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

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

B. Does Any Modified Standard Apply?

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

IV. ANALYSIS

A. Irreparable Harm as it Relates to Standing

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

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

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

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

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

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

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

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

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

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

B. Likelihood of Success on the Merits

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

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

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

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

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

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

The Court will address these inquiries in turn.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

i. Terminal Visitors’ Incidental Expressive Activities

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

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

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

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

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

ii. The Effect of Regulation 50 Itself?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

d. Reasonableness of the Airport’s Power to Control the Location of Permitted Expressive Activity

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

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

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

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

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

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

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

f. Viewpoint Neutrality

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

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

(Id.) Denver responds:

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

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

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

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

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

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

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

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

4. Is Regulation 50 Overbroad or Vague?

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

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

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

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

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

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

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

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

?C. Irreparable Harm

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

?D. Balance of Harms

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

?E. Public Interest

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

F. Bond

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

V. CONCLUSION

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

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

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

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

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

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

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

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

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

__________________________
William J. Martínez?
United States District Judge

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

Posted on February 21, 2017 by Eric Verlo

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

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

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

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

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

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

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

Posted on February 16, 2017 by Eric Verlo

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

DHOL’s 2/17 press release:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Posted on February 16, 2017 by Eric Verlo

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

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

Posted on February 8, 2017 by Eric Verlo

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

Document 28 Filed 08/25/15 USDC Colorado

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

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

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

Plaintiffs, v.

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

Defendants.

______________________________

ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION
______________________________

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

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

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

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

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

I. LEGAL STANDARD

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

II. BACKGROUND

A. Facts Alleged in the Original Complaint

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

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

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

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

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

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

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

?(Id. at 4.)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

C. Evidence Received at the Preliminary Injunction Hearing

1. Commander Lopez

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

2. Mr. Steadman

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

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

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

III. ANALYSIS

A. Article III Standing

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

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

***

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

(ECF No. 23 ¶¶ 2, 4.)

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

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

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

?B. Likelihood of Success

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

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

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

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

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

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

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

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

2. Is the Courthouse Plaza a Public Forum?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

6 The ensuing analysis assumes, of course, that the Second Judicial District may attempt to enforce the Plaza Order through its own contempt power. If such power did not exist, there would likely be no reason to scrutinize the Plaza Order under any constitutional standard given Denver’s control over the Plaza and its stipulation not to interfere with Plaintiffs’ intended activities. (See Part III.A, supra.)
—————

3. Is the Plaza Order Narrowly Tailored to Serve a Significant Government Interest, and Does it Leave Open Ample Alternative Means of Communication?

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

a. “Content-Neutral”?

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

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

The Plaza Order itself asserts several interests:

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

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

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

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

c. “Leave Open Ample Alternative Channels of Communication”

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

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

?C. Irreparable Injury

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

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

E. Public Interest

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

?F. Scope of Injunctive Relief

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

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

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

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

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

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

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

IV. CONCLUSION

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

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

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

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

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

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

Dated this 25th day of August, 2015.

BY THE COURT:

William J. Martínez?
United States District Judge

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

Posted on February 6, 2017 by Eric Verlo

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

Erdogan fakes coup in Turkey, purges army and supreme court, shuts down US air base to force extradition of rival

Posted on July 17, 2016 by Eric Verlo

The military coup in Istanbul was not what the Turkish President’s tightly reined media, nor the West’s fascist controlled media, say it was. It was not a coup, it was a Reichtag Fire. Now Recep Erdogan is rounding up the “plotters”, most of them supreme court judges, who were the last checks and balances on his authoritarian ambitions. We’re supposed to believe jurists plotted with foot soldiers? Imagine you get a ransom note from kidnappers, but the person they say they’ve kidnapped is on Facetime with CNN assuring you he’s free! Imagine you’re the kidnapper and you see that! But you’re only a soldier, doing your compulsory military service, following orders to prevent rioters from storming a bridge, and you’re not watching television as your president calls citizens to take to the streets and attack the disloyal “rebels.” Meanwhile the officers ordered to give you the orders hop a helicopter to Greece because they know they are going to be the scapegoats. And get this: jet pilots who precision bomb Kurds and ISIS for lunch, can only lob lunchbox bombs upon the parliament and sundry official buildings. Now US pundits, speaking as former CIA officers, resting their laurels on having been advisors to countless military coups, are claiming the coup was “bungled”. Yeah? Do you think Turkish soldiers don’t know their capitol is in Ankara, not Istanbul? Former CIA director James Woolsey is among the pundits. Woolsey, we learn, has been in Turkey for the last six months. What is HE doing in Turkey? Now Erdogan has closed US use of Incirlik Air Base and he’s asking President Obama to extradite Fethullah Gülen, the Turkish expat whose is seen as Erdogan’s main political rival.

The Lindsey Flanigan Courthouse Plaza protest timeline (July 2015 – present)

Posted on June 23, 2016 by Eric Verlo

UPDATED: This is a timeline of the legal battle which began in July 2015 over activists’s right to protest in the Lindsey Flanigan Courthouse Plaza. It explains why activists with Occupy Denver did not believe they were being given lawful orders when commanded to stop and why activists still believe the DPD were wrong to make their arrests. The city’s charges of “encumbrance” and “obstruction” appeared calculated to circumvent a federal injunction protecting the public’s First Amendment rights.

July 27, 2015
Mark Iannicelli and Eric Brandt distribute jury nullification literature at Lindsey Flanigan Courthouse (LFC) plaza. Mark Iannicelli is arrested and jailed for two days, charged with seven felony counts of jury tampering. #15CR03981 (charges dismissed 12/16 by Judge Plotz).

Aug 7
Warrant is issued for arrest of Eric Brandt for same incident, same charges. Eric Brandt is arrested and jailed #15CR04212 (charges dismissed 12/16).

Aug 14
Colorado 2nd Judicial District Chief Judge Michael A. Martinez issues order CJO-1 barring protest, including structures, in LFC plaza. (The Chief Judge later explained that his motivation was to preempt racial unrest on occasion of potential death sentence being given to African American Dexter Lewis, so soon after Aurora Theater Shooter James Holmes, who is white, had been spared the death penalty.)

Aug 17
Through attorney David Lane of Kilmer, Lane & Newman, plaintiffs Eric Verlo, Janet Matzen & Fully Informed Jury Association file complaint for federal injunction protection against continued arrest of jury nullification pamphleteers in LFC plaza

Aug 19
Having become apprized of CJO-1 posted at courthouse, Verlo et al file amended complaint to include a challenge of the “plaza order”. US District Court Judge William J. Martinez grants an injunction hearing for August 21.

Aug 21
1. An AMENDED CJO-1 is posted to courthouse entrance. Colorado Chief Judge Martinez amends PLAZA ORDER prohibitions to apply only to “highlighted area”, not entire plaza.

2. US Judge Martinez hears oral arguments on federal injunction. LFC plaza is stipulated to be not just a “designated” free speech zone but a “traditional” free speech zone.

Aug 25
US District Judge William Martinez grants preliminary injunction, strikes first paragraph from amended plaza order. He rules the prohibitions in the highlighted area cannot limit non-amplified speech, the accosting of passersby, or the distribution of literature.

Aug 26 FOUR ARRESTS
8am: New REDACTED amended CJO-1 [Plaza Order] is posted on glass door of Lindsey Flanigan Courthouse. Occupy Denver activists initiate an all-day protest to distribute FIJA fliers.

10am: Protesters erect a popup canopy which is immediately confiscated by DPD citing activist lack of permit. Other materials confiscated include table, chairs, drums, banners, signs and jury nullification brochures. However there are no arrests or citations.

1pm: City Attorney Wendy Shea agrees to have DPD return confiscated property. DPD equivocates (for two days), citing lack of a specific person to whom property should be released.

3pm: Plaintiffs Verlo et al file motion to hold DPD in contempt of federal injunction for the confiscations. (DPD was later found not to be in contempt because evidence was not conclusive that literature had been confiscated.)

9pm: Occupy Denver erects three tents. DPD and SWAT seize the tents. Four protesters arrested for “obstruction”: William Hall #15GS012195 (took a plea deal: probation and area restriction), Adrian Brown #15GS012196 (trial 3/8, not guilty obstruction & failure to obey, guilty interference, 20 days jail, on appeal), Fred Hendrich #15GS012197 (case dismissed 6/13), Eric Verlo #15GS012198 (trial 1/11, guilty obstruction & interference, 20 days jail, on appeal)

10pm: Remaining protesters stay overnight in sleeping bags awaiting release of arrestees. (Thus begins a 24-hour protest which continues for 56 days.)

Aug 28 ONE CITATION, TWO ARRESTS
4pm: After further calls to city attorney, the canopy is reclaimed from DPD property, and is erected immediately. DPD confiscates it as “encumbrance”. Citation is issued for dog off-leash to Caryn Sorado #15GV552914 (dismissed 11/24 via plea deal)

7pm: Immediately after his delayed release from jail, Adrian “Monk” Brown erects a tent. Within half hour, while walking his dog at South end of plaza, Brown is arrested by DPD and tent is confiscated. #15GS012303 (trial 11/16 w Rodarte, jury finds Brown NOT GUILTY)

8pm: Eric Brandt protests Brown’s arrest, chases DPD Commander Lopez car, arrested. #15GS012304 (trial 8/24 w Spahn)

Sept 1
8am: Hearing before US judge Martinez to hold DPD in contempt. Paying a visit to the Denver Department of Pubic Works, activist learn that there is no permit required for “free speech activity” and furthermore the department does not have jurisdiction over the Lindsey Flanigan Courthouse plaza.

4pm: Activists erect three empty tents marked with bold letters “JURY NULLIFICATION TENTS”. At 6pm, DPD arrives in force to confiscate the three tents, and pass out paper notices [Encumbrance Notice] which read:

“!!Notice!! It is illegal to place ANY encumbrance on the public right of way. An encumbrance is defined as “any article, vehicle or thing whatsoever” which is on “any street, alley, sidewalk, parkway or other public way or place.” D.R.M.C. § 49-246 et. seq. The manager of Public Works may order all encumbrances in the public right-of-way to be removed. The failure to remove items so ordered is a criminal offense; the maximum possible penalty for which is up to one year in the county jail and/or up to $999 fine. PLEASE REMOVE ALL PERSONAL ITEMS FROM THIS AREA. If personal items are not removed immediately, you may be subject to an order of removal at which time all items will be subject to removal by the Denver Police Department. Agency – Denver Police Department”

The Denver ordinance cited above reads:

“§ 49-246. The manager of public works or the manager’s designee (hereinafter in this article, “manager”) is authorized to remove or to order the removal of any article, vehicle or thing whatsoever encumbering any street, alley, sidewalk, parkway or other public way or place (any such thing hereinafter in this article to be called an “encumbrance”). The manager may prescribe appropriate methods, specifications, placement and materials for encumbrances in the public right-of-way.”

Sept 3
US District Court Judge William Martinez rules DPD is not in contempt because evidence was not conclusive that literature had been confiscated. (Note: plaintiff’s order to show cause was filed on 8/26 before that evening’s arrests.)

Sept 7
In the LFC Plaza, city workers install steel signs in center of plaza which read: “NOTICE In reference to DRMC Sec. 49-246 this plaza must remain free from all encumbrances/obstructions – Denver Public Works”

Sept 8
4:30pm: DPD conducts sixth raid on protest, confiscating everything that can’t be gathered and held by activists.

Sept 11
Night raid, to avoid arrest everyone must stand and gather personal items as if to leave.

Sept 12
DPD Night raid. Everyone made to stand, no arrests.

Sept 13
Night raid, stop and frisk of Timothy Campbell because he “looked threatening” to an HSS security guard. Campbell is handcuffed but released. Michael Moore is issued a citation for having his dog Lizzie off leash #15GS013171 (1/5 plea deal, six month probation).

Sept 14
DPD confiscates “encumbrances”: chairs, flags, banners, toilet paper

Sept 15
While Michael Moore is loudly protesting at doors of jail about delayed release of Eric Brandt, jail deputies assault Moore and attempt to take him into custody. DPD arrives and delivers Moore to Detox. No arrests.

Sept 16 ONE ARREST
Surveillance operator observes Jose “Pedro” Trejo urinating in public. DPD force arrives, Pedro arrested #15GS013298 (Plea deal, time served, $50 fine).

Sept 17
1am night raid makes 12th raid. DPD threaten arrest for “violation of urban camping ban”

Sept 18 FOUR ARRESTS
While activists are celebrating 4th anniversary of Occupy Wall Street, DPD evict assembly citing encumbrances, arrest Eric Brandt #15GS013512 (trial 8/29 w Spahn) and confiscate majority of protest equipment and personal property, warn others to leave and face arrest upon return. Activists return and DPD arrest three more: Adrian Brown #15GS013537 (dismissed 3/18), Jay Maxwell #15GS013517 (plea deal, year probation), and Timothy Campbell who is tackled and charged with assault #15CR05088 (jailed 4 days, charges dropped 9/22).

Via their attorney, plaintiffs Verlo et al receive Spoliation Letter to preserve all correspondence, media, eg. evidence of activities in plaza, from August 2015 onward.

Sept 19 ONE ARREST
2:38am: Later that night, Mark Iannicelli is arrested for not removing his chair from plaza #15GS013527 (District court considering motion to dismiss)

Sept 24 THREE ARRESTS
Possible police agent sent into camp to provoke fight. Arrest of Adrian Brown #15M08835 (charges dropped) and Matthew Lentz #15CR05197 (jailed 5 days, charges dropped 9/28). Brandt arrested for interference #15GS013823 (6/13 trial ended in hung jury. Retrial is 8/1 w Faragher).

Sept 25
Adrian Brown files motion for expanded discovery on 8/26 tent arrest case (#15GS012196). Sept 25 is before the 30 day period after which HALO camera footage is regularly overwritten. (Other 8/26 defendants will be told their discovery motions were filed too late to prevent destruction of HALO surveillance video. Although all motions were similarly worded and requested the identical evening’s footage at Brown.)

City challenges temporary injunction with US Court of Appeals.

4pm: CURFEW notice posted by City workers who install eight steel signs on periphery of plaza declaring a curfew. Signs read:

“NOTICE The grounds of the Lindsey-Flanigan Courthouse and the Denver Detention Center are closed to the public from 8:30PM until 7:30AM. Except to conduct official business within tne facilities. Violators are subject to citation or arrest pursuant to D.R.M.C 38-115”

7:25pm: Activist are driven off the plaza by DPD. Protest continues overnight on sidewalk along Colfax Ave. DPD conduct night raid forcing everyone to stand and gather sleeping bags as usual.

Sept 26
Protest relocates across Colfax Ave to triangle shaped park on Northwest corner of Tremont and Colfax.

Sept 28?
After an activist discussion of an alternative fallback location being the plaza in front of the Wellington Webb Building, we discover curfew signs have now been posted there too.

Sep 30
City of Denver files motion to dismiss injunction.

Oct 6 ONE ARREST
Possible infiltrator disrupts camp by stealing property. She is ousted by Caryn Sodaro but later files a complaint in municipal court seeking a protection order against Sodaro. Warrant is issued for Sodaro’s arrest #15GS014734 (11/18 plea deal, 150 days jail).

Oct 9
Plaintiff files response to motion to dismiss.

Oct 16
Reply brief by plaintiffs

Oct 21 ONE ARREST
On first day of rain since plaza protest began, DPD effects full eviction of COLFAX CAMP. Confiscates personal property and protest materials. Hauls much of it in a garbage truck. Eric Brandt is arrested for obstruction and interference #15GS015407 (trial 9/7 w Spahn)

Oct 26
Reply from plaintiffs.

Nov 12
Reply in support of defense

Nov 16
Jury finds Monk Brown no guilty of 8/28 obstruction. Judge Nicole Rodarte in 3G. Deputy city attorney prosecuted the case.

Nov 17
Oral arguments to court of appeals, courtroom III

Dec 16
Denver District Court Judge Kenneth Plotz dismisses Jury Tampering charges against Mark Iannicelli and Eric Brandt (city does not appeal).

Jan 11
8/26 tent arrestee Eric Verlo found guilty of obstruction and interference, 20 days jail. Represented by public defender. On appeal based on ineffective assistance of counsel.

Jan 13
City makes first request for plaintiffs to show documents to defendants, as per spoliation letter. (Meanwhile activist defendants have received discovery motion responses that surveillance video is overwritten and all of city correspondence is privileged.)

Feb 1
Plaintiffs Verlo et al are informed that US District Judge William Martinez wishes to hold a full trial to consider a permanent injunction. Depositions will be recorded on Feb 12.

March 8
8/26 tent arrestee Monk Brown found not guilty of obstruction and failure to obey, but guilty on interference, sentenced to 20 days jail, on appeal based in inconsistent verdict.

March 16
Mark Iannicelli arrested again distributing JN fliers #16GS003320. He’s detained and cited for harassment and violation of CJO-1. Released within hours, charges dropped are 3/18.

May 2
Verlo et al file motion to show cause why former Denver defendants should not be held in contempt of court for the March 16 arrest of Mark Iannicelli. Filing was delayed because city refused to produce discovery evidence. Plaintiffs had to file a CORA request to learn facts of Iannicelli’s arrest.

May 11
Deposition of Chief Justice Michael Martinez

May 31
Order received from Federal Judge William Martinez:

ORDER: Before the Court is Plaintiffs’ Motion for Order to Show Cause Why Former Denver Defendants Should Not Be Held in Contempt of Court [108]. Per D.C.COLO.LCivR 7.1(d) and Federal Rule of Civil Procedure 6(d), the Denver Defendants’ deadline to respond was May 26, 2016. Denver filed nothing on that date, and has since filed nothing. Accordingly, the Court could deem the motion confessed. Solely in the interests of justice, however, Denver is ORDERED to file a response on or before June 3, 2016. No reply will be accepted without prior order or leave of Court. SO ORDERED by Judge William J. Martinez on 05/31/2016.

June 1
Motion to dismiss 8/28 chair arrest of Mark Iannicelli moves case to district court. Dismissal expected.

June 3
City responds to motion to show cause.

June 13
Fred Henrich 8/26 tent case dismissed.

June 20
Federal judge William Martinez responds:

ORDER: Before the Court is Plaintiffs’ Motion for Order to Show Cause Why Former Denver Defendants Should Not Be Held in Contempt of Court [108]. Given the nature of the alleged violation of this Court’s preliminary injunction, and given the lack of evidence that the alleged violation presents an ongoing problem, the Court sees no pressing reason to address potential contempt at this time. Plaintiffs are therefore DIRECTED to file a notice, no later than June 24, 2016, explaining why the Court should give priority to their motion. Otherwise, the Court intends to set this matter for a hearing immediately following the bench trial scheduled to begin on April 17, 2017 between Plaintiffs and the Second Judicial District. SO ORDERED by Judge William J. Martinez on 06/20/2016.

June 22
Jury trial for Eric Brandt’s 9/24 interference arrest results in hung jury. Retrial scheduled for 8/1 w Judge Faragher.

—-

NOTES:
A. List of 2015-16 plaza arrests (20) & citations (2)

No. Name: Date: Offense: Result:
1. Mark Iannicelli 7/27 (jury tampering) DISMISSED 12/16
2. Eric Brandt 7/27 (jury tampering) DISMISSED 12/16
3. William “Reno” Hall 8/26 TENT (obstr.) PLEA, prob., area restriction
4. Adrian “Monk” Brown 8/26 TENT (obstruction) NOT GUILTY obstruct & failure, GUILTY interference
5. Fred Hendrich 8/26 TENT (obstruction, interference, failure to obey) DISMISSED 6/13
6. Eric Verlo 8/26 TENT (obstruction, interference) GUILTY, 20 days jail, on appeal
7. Caryn Sodaro 8/28 (DOG citation) PLEA deal
8. Adrian “Monk” Brown 8/28 TENT (obstruction) NOT GUILTY 11/17
9. Eric Brandt 8/28 (failure to obey) ***trial 8/24
10. Michael Moore 9/13 (DOG citation) PLEA deal
11. Jose “Pedro” Trejo 9/16 (urinating in public) PLEA deal
12. Eric Brandt 9/18 TARP (obstruction) ***trial 8/29
13. Jay Maxwell 9/18 HANDCART (obstruction) PLEA deal
14. Adrian “Monk” Brown 9/18 A COOLER (obstr) DISMISSED 3/8
15. Tim Campbell 9/18 (assault/resisting) DROPPED
16. Mark Iannicelli 9/19 CHAIR (obstruction) to be dismissed
17. Matthew Lentz 9/24 (assault) DROPPED
18. Adrian “Monk” Brown 9/24 (assault) DROPPED
19. Eric Brandt 9/24 (interference) ***hung jury, retrial 8/1
20. Caryn Sodaro 10/6 (disturb, threats) PLEA deal, 150 days concurrent
21. Eric Brandt 10/21 WET PILE (obstruction) ***trial 9/7
22. Mark Iannicelli 3/16/2016 (harassment, violation of CJO-1) DISMISSED

B. Running tally:
Cases dropped or dismissed: 9
Not guilty verdict, obstruction: 2
Guilty verdict, interference: 1
Guilty verdict, obstruction & interference: 1
Plea deals: 6
Cases outstanding: 4

3. Trials still scheduled:
August 1, Eric Brandt (9/24 interloper interference), RETRIAL, LFC 3H
August 24, Eric Brandt (8/28 Lopez failure to obey), jury trial, LFC 3F
August 29, Eric Brandt (9/18 tarp obstruction), jury trial, LFC 3F
September 7, Eric Brandt (10/21 Tremont obstruct.), jury trial, LFC 3F
April 17-19, 2017, Verlo v Martinez, permanent injunction, Araj Federal Courthouse Rm A801

MP Jo Cox was no humanitarian. She was shill for neoliberal banking & war.

Posted on June 20, 2016 by Eric Verlo

At best, murdered Member of Parliament Jo Cox was a humanitarian in the Hollywood celebrity mold. Syria, Darfur, etc. Her concerns for refugees or “pro-democracy” collateral ony promoted neoliberal interventionism. The British MP’s martyrdom while opposing the BREXIT was beautifully parlayed into a character assassination of its proponants. The corporate media was able to paint them as far right extremists, instead of a grassroots groundswell against continued subjugation to Europe’s banker class. MP Cox was a shill for the European Union mechanisms binding regional economies to unelected technocrats not representative governments. While the London establishment is morning the killing of their rising star, Jo Cox was no more than telegenic and young, a new face to sell their old same as the new world order.

The Queen can’t name her own successor, get it right.

Posted on April 30, 2016 by Brother Jonah

One of the few good things coming from the Cromwell Regime civil war in England was the Union Constitution. That’s the “British Empire” as represented by the Union Jack flag. Their constitution was much more liberal than that of the US and a hundred years earlier. My apologies, IS more liberal still.

And one part of it is that the succession is decided in Parliament. But there was another (yet another) gaudy news headline on a gossip “news” paper at the checkout line in King Soopers. Stating that QE2 had chosen Prince William to succeed her on the throne.

By the way, all through the time I spent thinking of this and now writing it, I’ve had this Python routine being an obsessive waking dream… “strange ladies lying in puddles distributing swords is no basis for kingship… true executive authority comes by a mandate from The Masses, not some farcical aquatic ceremony” and you either know the rest of that or you really should buy the DVD of Monty Python and the Holy Grail and just damned learn it. It is worthwhile. What Mrs Saxe-Goetheberg needs to really do is make a big grand gesture, not the one involving the middle finger nor the brit version which is a backward peace sign…

Instruct the Prime Minister to push a bill in Parliament to dissolve the monarchy, have all her heirs executed and abdicate. Charlie and Camilla almost got their asses dragged out of their limo and street justice would have prevailed, blue blood would have run in the gutters of London etc…

5 years ago more or less. I was impressed that the London Anarchists had found a neat way to block and defeat “kettling” and that the issue at hand was BessTwo planning a royal pain in the ass I mean “Royal Wedding” which cost the people millions of USD (only in euros) while and at the same time the Tory government which licks her feet was demanding austerity measures for the peasants.

But in return of the original thread, even though the most recognized Hereditary Dictator on earth, she is powerless to name her successor in advance. I don’t know if Will and Kate actually are the sweetest people in the world. Wouldn’t matter. Nobody is actually born to serve under or rule over any other person. It’s that simple.

As for the niceness of any of the Royals, their family has trained their bastard get to be nothing like nice for generations. Nature v Nurture but they sure have a lot of the latter. And it’s almost universally bad. The family has Dracula, Jack the Ripper and the Bush family tagged onto them.

Very ugly indeed.

Virginia Dare was an “Anchor Baby”

Posted on April 29, 2016 by Brother Jonah

Not meaning to poke fun at young Ms Dare who disappeared along with the rest of the Roanoke Colony more than 400 years ago. More like mocking and reproving redneck bigots who make a big stink about other people having the same immigration privileges as THEIR ancestors did. Especially as it’s an election issue.

Along with the Religious Refugees. See, the first English immigrants were notably religious extremists fleeing from other religious extremists. Virginia the colony was named not for the Virgin Mary, but for Queen Elizabeth. The one who bullied Parliament into passing the Conformity doctrines. Which led to some hugely large massive horrifying monstrous big “civil” wars in England, Scotland, Wales, Ireland. Then exported to America along with the ongoing British v Spain and France wars. The plan was then as now (think Israel) put a large amount of people who are just too contentious to allow them to stay in the Motherland, give them discount passage and sell them limited supplies and weapons. And do a lot of it on credit. The French term for it was pioneers. A support system for military adventures. Make sure they’re likely to piss off the natives, but not likely to survive without some “emergency” backup from Momma England.

Others did the same thing, the English just were the ones who got away with it. Davy Crockett was part of two such maneuvers. Born in Tennessee when the Revolution hadn’t been worked out, Tennessee having been treaty land which the Crown was refusing to allow English expansion. One of the sore spots that the sorehead revolutionaries used as an excuse for the revolution. It’s referenced in the Declaration of Independence. The British government honoring some of their treaty obligations by selling weapons to Natives. And blankets (ahem!) and other goods. The Treaties in question being the peace agreements after the 7 Years War which was fought mostly in Europe but in American History class we’re taught to call it the French and Indian War. And since he was born in 1786 which was just barely almost 20 years before the Louisiana purchase, where the kings of France and Spain took turns financing each others wars by selling land in The New World which had never been visited by any European king. They sold land back and forth that they had never seen. Along with the people of the region. Subject of Spain one morning and France the next. The English and their bastard child The United States did the same thing.

to tie it all together….

Definitely Davy Crockett was born of illegal immigrants on Cherokee land. The Roanoke colony was located in what’s now the Carolinas, named for one of the Kings Charles of England. The Conformity Acts caused such frictions between English Christians that Protestant groups like the Pilgrim Church, Puritans, Presbyterians and of course Catholics were slaughtered and persecuted whenever their factions weren’t persecuting every other faction. And a whole bunch of Christians who just could not conform to other Christian doctrines fled to America to set up shop. And put up shot. There was for instance a running feud which often broke into gunfire between South Carolina and North Carolina about the difference between Presbyterian and Episcopalian and another cross-Potomac same thing because Virginia was mostly Protestant and Maryland was predominately Catholic. You didn’t have to be across the Catholic Protestant line to piss off the authorities. Just being a Non Conformist protestant would do the trick. I got that from the Oxford World Almanac which interestingly enough is sponsored by the Episcopal Church.

Whatever happened to Ms Dare and the rest of the Roanoke settlers is pure speculation but there sure is a lot of that too. Some have said in my hearing that the Roanoke people assimilated into the Cherokee or other nearby tribes. No documentation of that, all the documentation is on the lines that they Never Were Found Again. Some of the speculation seems, to me, very cult like.

And a lot of the ones who promote that kind of conspiracy theories are also heavily into the Birther and Minuteman militias. And with ties to the Klan.

But with all these centuries of Christian v Christian slaughter, it’s somehow the fault of Jewish merchants (who say Happy Holidays instead of Merry Christmas)and Muslims. There have already been calls for the opening of internment camps for American Muslims.

Although the Hate Groups keep telling us that Muslims can’t be Americans. Or Native American Church. Or Jews. Or anybody who doesn’t attend Their Church. Ask any of those who proposing a Church State which one is to be the State Church and he’ll probably (eventually) say his own church of course.

Before any of all that comes around, maybe Christians better stop hating each other first. And your fellow Americans regardless of whether you think we’re actually Americans.

Occupy Denver shifts night camp to Colfax Ave to confound plaza curfew

Posted on September 26, 2015 by Eric Verlo

DENVER, COLORADO- The occupiers of the Lindsey-Flanigan Courthouse Plaza were thrown a curve on Friday afternoon when city workers were observed installing signs closing the grounds to the public from 8:30pm until 7:30am. Was this an affront to US District Court Judge William Martinez who had affirmed in federal court that the courthouse plaza was a free speech zone “24/7”? There wasn’t time to consult a legal opinion, so when a DPD cruiser interrupted the Occupy Denver GA at 8:25pm to announce the curfew and threaten arrests, the occupiers retreated to the public sidewalk north of the courthouse, where the higher profile of Colfax Avenue would make up for having to time-share their 24hr encampment. DPD swept through the park at 8:30pm to assure it was vacated and activist spent the next hours making a ruckus on the street, egged on by Friday night traffic. At bedtime a civilian dupe came over from the jail to warn that deputes told her everyone would be arrested. Laughs. At 2am a DPD platoon paid the habitual visit. Warnings that the activists were in violation of the trespass order were laughed off, and the officers told off for abusing their authority telling lies, so police could only force sleepers off the public sidewalk and mandate that signs be untied from the trees. From their beachhead on Colfax Activists promised to retake the plaza at 7:30am where they intended to catch up on their lost sleep in broad daylight.

Denver’s Argonaut Wine and Liquor reserves the right to roll their derelict customers without you videotaping it

Posted on June 17, 2015 by Eric Verlo

DENVER, COLORADO- Occupy Denver activist Caryn Sodaro was arrested in April for filming Denver police officers physically tormenting a drunken itinerant behind the Argonant liquor store on 760 East Colfax. Appearing in municipal court yesterday Caryn learned her accusers aren’t the DPD but Argonaut itself, whose employees charge Caryn with trespass for not removing herself from their parking lot with sufficient deference. Caryn was among a group of onlookers who were hoping to curb the police abuse by recording it. Of course documenting police brutality is not illegal, so the City of Denver is relying on private interests to complain to take the heat from law enforcement’s decision to make an arrest. You might well ask, what interest does the Argonaut have to keep customers or passersby from witnessing police officers kicking homeless men behind its store?

Caryn was retreating as ordered. In fact she was four spectators removed from the crime scene when DPD reinforcements lunged toward her to nab her.

Now the DPD want to hang Caryn’s arrest on a technicality, that she was trespassing, ignoring whether witnessing the potential commission of a crime wouldn’t be sufficient excuse to bend the Argonaut’s property rights. No one otherwise pretends that crimes like domestic violence are protected by claims to the privacy afforded by private property. Why does the DPD think its officers can indulge sadistic tendencies behind a veil of private security guards?

On Tuesday Argonant dispatched staffers Chris Crowley and William Dehl to bear witness against Caryn Sodaro. I wouldn’t bother to highlight the pair’s personal identities here were it not for a colorful twist in the courtroom which in retrospect is unsurprising from blond thick-necked goons who may delight in watching inebriates get the jack-boot. Waiting their turn to receive instruction from the judge, Crowley and Dehl amused themselves through the long morning docket by making disparaging and racist remarks to each other about the mainly Hispanic and black defendants in the clutches of Denver’s judicial quagmire, many of whom were in-custody and could not post bond.

The Argonaut has been a Capitol Hill favorite for a half-century, and no doubt it has finessed the art of dealing with the regular drunks. No doubt letting local officers vent their anger against bums in back alley is a tradition in the liquor biz. Fortunately cell phone cameras mean those days are waning. The Colorado legislature recently reinforced the public’s right to film the police. It can hardly be in the Argonaut’s best interest to shield police brutality from citizens who want to intervene. The Argonaut doesn’t want to highlight the consequence of alcoholism. Hopefully despite Argonaut’s efforts, getting rolled by the cops will prove to be less inevitable.

Osama bin Laden’s books. They could do you more good than they did him.

Posted on June 4, 2015 by Eric Verlo

Last week the CIA decided
to declassify the list of books found in Osama bin Laden’s last hideout when Seal Team Six made their raid. There were 39 titles, which the press has categorized as heavy on conspiracy theory. That’s true, untrue, and unsurprising if you consider the official White House line is that the US does not support illegal coups. These authors beg to differ, including the unimpeachable Noam Chomski. Other investigative standouts include William Blum, Greg Palast, John Perkins. The list did not include publication dates or editions, just author and title. A closer inspection of the list is revealing.

(This is part one of a continuing series.)

It would be more accurate to describe Osama bin Laden’s bookshelf as history, mostly contemporary with notable exceptions. For example, bin Laden’s reference on Christianity and Islam in Spain 756-1031 was published in 1889 with the full title “The Relations and Mutual Influences of Christianity and Mohammedanism During the Khalifate of Cordova.” In 1889 European perspectives on the Moorish occupation appear dramatically antisemitic.

The history of The US and Vietnam 1787-1941 begins with Thomas Jefferson’s first interests in trading for rice with “Cochinchina”. Written by a former ambassador, it was published in 1990 by the National Defense University Press. The Best Enemy Money Can Buy is about the symbiotic relationship between the US military industrial complex and Russia’s.

Some of bin Laden’s “books” such as Michael O’Hanlon’s Unfinished Business were staple-bound publications from US policy think tanks. I’ll review those and the various intelligence agency exposés in subsequent posts.

Here are the 39 titles listed alphabetically:
The 2030 Spike by Colin Mason; A Brief Guide to Understanding Islam by I. A. Ibrahim; America’s Strategic Blunders by Willard Matthias; America’s ‘War on Terrorism’ by Michel Chossudovsky; Al-Qaeda’s Online Media Strategies: From Abu Reuter to Irhabi 007 by Hanna Rogan; The Best Democracy Money Can Buy by Greg Palast; The Best Enemy Money Can Buy by Anthony Sutton; Black Box Voting: Ballot Tampering in the 21st Century by Bev Harris; Bloodlines of the Illuminati by Fritz Springmeier; Bounding the Global War on Terror by Jeffrey Record; Checking Iran’s Nuclear Ambitions by Henry Sokolski and Patrick Clawson; Christianity and Islam in Spain 756-1031 A.D. by C. R. Haines; Civil Democratic Islam: Partners, Resources, and Strategies by Cheryl Benard; Confessions of an Economic Hit Man by John Perkins; Conspirators’ Hierarchy: The Committee of 300 by John Coleman; Crossing the Rubicon by Michael Ruppert; Fortifying Pakistan: The Role of U.S. Internal Security Assistance (only the book’s introduction) by C. Christine Fair and Peter Chalk; Guerrilla Air Defense: Antiaircraft Weapons and Techniques for Guerrilla Forces by James Crabtree; Handbook of International Law by Anthony Aust; Hegemony or Survival: America’s Quest for Global Dominance by Noam Chomsky; Imperial Hubris by Michael Scheuer; In Pursuit of Allah’s Pleasure by Asim Abdul Maajid, Esaam-ud-Deen and Dr. Naahah Ibrahim; International Relations Theory and the Asia-Pacific by John Ikenberry and Michael Mastandano; Killing Hope: U.S. Military and CIA Interventions since World War II by William Blum; Military Intelligence Blunders by John Hughes-Wilson; Project MKULTRA, the CIA’s program of research in behavioral modification. Joint hearing before the Select Committee on Intelligence and the Subcommittee on Health and Scientific Research of the Committee on Human Resources, United States Senate, Ninety-fifth Congress, first session, August 3, 1977. United States Congress Senate Select Committee on Intelligence; Necessary Illusions: Thought Control in Democratic Societies by Noam Chomsky; New Pearl Harbor: Disturbing Questions about the Bush Administration and 9/11 by David Ray Griffin; New Political Religions, or Analysis of Modern Terrorism by Barry Cooper; Obama’s Wars by Bob Woodward; Oxford History of Modern War by Charles Townsend; The Rise and Fall of the Great Powers by Paul Kennedy; Rogue State: A Guide to the World’s Only Superpower by William Blum; The Secret Teachings of All Ages by Manly Hall (1928); Secrets of the Federal Reserve by Eustace Mullins; The Taking of America 1-2-3 by Richard Sprague; Unfinished Business: U.S. Overseas Military Presence in the 21stCentury by Michael O’Hanlon; The U.S. and Vietnam 1787-1941 by Robert Hopkins Miller; “Website Claims Steve Jackson Games Foretold 9/11,” article posted on ICV2.com.

Deadliest motorcycle “gang” in Waco shoot-out was not Bandidos, Cossacks, Scimitars, or Vaqueros. It was police.

Posted on May 19, 2015 by Eric Verlo

393

Bandidos, Cossacks, Scimitars, Vaqueros Motorcycle Clubs
Was the Waco Shoot-out a gunfight between rival gangs or an ambush laid by law enforcement? Police are monopolizing the testimony but the evidence suggests a barroom brawl became a pretext to kill or arrest club officers, essentially grassroots organizers, now charged with “organized crime”. Investigators can litter the crime scene with brass-knuckles, knives and wallet chains, but the shell casings are going to be police issue. Motorcycle headlights were on, indicating club members were trying to leave. Police claim that the brawlers redirected their fire toward officers, but did that happen while the bikers were trying to ride off? Because riding requires both hands. This gangland “shoot-out” was a St Valentine’s Day Massacre executed by cops.

[5/20 Update: HA! The nine casualties died of gunshot wounds, sustained outside the restaurant. No shell casings were found around the bodies. Eight of the nine were Cossacks. The eighteen wounded are not expected to be charged. So much for the narrative that gangs were fighting each other, or that Bandidos were the aggressors.]

It’s described as being a gang shoot-out, but what happened in Waco is still shrouded in the fog of the official POV. Did motorcycle club members shoot at each other? They’re unavailable for interviews, locked up on million dollar bonds. The Twin Peaks restaurant claims the shooting started outside. The only witnesses reaching reporters are the sergeant giving the press briefing and undercover cops purporting to describe the tensions between the “gangs”. By my reading, informant provocateurs incited trouble by “rocking” patches which claimed the territory of “Texas” for the Cossacks Motorcycle Club.

Something like three dozen undercover officers were monitoring the usually uneventful bi-monthly meeting of the Confederation of Clubs and Independents, in anticipation that the “Texas” patch would offend the Bandidos MC. They were able to respond within 45 seconds of the alleged altercation. What might have been an unremarkable barroom brawl, if even that was not contrived, turned into an ambush that killed nine and wounded eighteen. Zero officers were hit and I will bet every bullet was theirs.

Let’s say the melee happened as the police and media describe. Why the blackout on the club affiliations? Why are the 170 arrestees being detained on a million dollar bond each? Why aren’t reporters challenging the police narrative? Witnesses assert that at least four of the dead were killed by police. How long before we learn how many undercover officers had fired their guns?

The media is making much of the anticipation that fellow gang members are converging on Texas to avenge their comrades. I think the police know that it’s themselves who are the targets of the bikers’ vengeance.

No doubt one can say the bikers were not boy scouts, but have you seen the photos? These “gangs” wore their colors, in this case patches, like boy scout badges. And everyone in uniform creased jeans and leather vests as tidy as bowling shirts. Did you see the mugshots? If you look past the long hair and tattoos you’ll note everyone is clean shaven. This was a Sunday outing. These are family men and women, not gang members. The Cossacks are a “Harleys Only” motorcycle club for God’s sake!

Police aren’t naming the “gangs” involved in what’s being called the “Waco Shoot-out”. Because they are motorcycle clubs, for one, and because the only gang deserving of the notoriety is really the police.

NOTES 5/20:
Names of 9 dead. All killed by gunshot wounds, all outside the restaurant: COSSACKS MC ROAD CAPTAIN Daniel Raymond Boyett, 44, of Waco TX; COSSACKS MC ROAD CAPTAIN Wayne Lee Campbell, 43, of Arlington TX; COSSACKS MC SERGEANT AT ARMS Richard Vincent Kirschner Jr., 47, of Kylie TX; COSSACKS MC Matthew Mark Smith, 27, of Keller TX, formerly of Scimitars; COSSACKS MC Charles Wayne Russell, 46, of Tyler TX; COSSACKS MC Jacob Lee Rhyne, 39, of Ranger TX; Jesus Delgado Rodriguez, 65, of New Braunfels TX; Richard Matthew Jordan II, 31, of Pasadena, TX; and BANDIDOS MC Manuel Isaac Rodriguez, 40, of Allen TX.

Names of the 170 booked and charged with organized criminal activity: Martin Lewis, 62, retired San Antonio PD detective; Marcus Pilkington, 37; Michael Kenes, 57; Michael Woods, 49; Julie Perkins, 52; Nate Farish, 30; Ronald Warren (wounded), 55; Morgan English, 30; Ryan Craft, 22; Rolando Reyes, 40; Jonathan Lopez, 27; Richard Benavides, 60; Michael Baxley, 57; Aaron Carpenter, 33; Jarrod Lehman, 30; Ricky Wycough, 56; Royce Vanvleck, 25; Ester Weaver, 46; Ryan Harper, 28; Timothy Bayless, 53; Michael Chaney, 53; Mitchell Bradford, 29; Nathan Champeau, 34; Noe Adame, 34; Owen Bartlett, 34; Rene Cavazos, 46; Berton Bergman, 47; Greg Corrales, 47; John Wiley, 32; Jeff Battey, 50; Kenneth Carlisle, 36; John Craft, 47; Lindell Copeland, 63; Matthew Clendennen, 30; Michael Thomas, 59; Narciso Luna, 54; Owen Reeves, 43; Richard Donias, 46; Robert Robertson, 36; Reginald Weathers, 43; Richard Dauley, 47; Rudy Mercado, 49; Seth Smith, 25; Steven Walker, 50; Thomas Landers, 58; Valdemar Guajardo, 37; Walter Weaver, 54; William English, 33; Marco Dejong, 37; Melvin Pattenaude, 51; Jarron Hernandez, 21; Jason Moreno, 30; Jeremy King, 32; John Martinez, 30; Jeremy Ojeda, 37; John Guerrero, 44; John Moya, 26; Jose Valle, 43; Joseph Ortiz, 34; John Vensel, 62; John Wilson, 52; Jorge Salinas, 24; Justin Garcia, 23; Justin Waddington, 37; Lance Geneva, 37; Lawrence Kemp, 40; Lawrence Garcia, 51; Josh Martin, 25; Eliodoro Munguia, 49; Lawrence Yager, 65; James Rosas, 47; James Stalling, 56; James Venable, 47; Gage Yarborough, 22; Gilbert Zamora, 60; Gregory Salazar, 42; George Wingo, 51; James Eney, 43; Edward Keller, 47; Christopher Eaton, 46; Christopher Stainton, 42; Daniel Johnson, 44; Daniel Pesina, 21; Don Fowler, 51; Doss Murphy, 44; Drew King, 31; Brian Eickenhorst, 28; Edgar Kelleher, 50; Andrew Sandoval, 30; Andrew Stroer, 49; Arley Harris, 32; Bobby Samford, 35; George Rogers, 52; Jacob Reese, 29; Joseph Matthews, 41; Juventino Montellano, 46; Mark White, 41; Bradley Terwilliger, 27; Ares Phoinix, 36; Benjamin Matcek, 27; Craig Rodahl, 29; Daryle Walker, 39; David Martinez, 45; David Rasor, 37; Christopher Rogers, 33; Andres Ramirez, 41; Robert Nichols, 32; Seth Smith, 28; Theron Rhoten, 35; Timothy Satterwhite, 47; Anthony Palmer, 40; Terry Martin, 48; Wesley McAlister, 32; William Redding, 35; Matthew Yocum, 25; Phillip Sampson, 43; Phillip Smith, 37; Jason Dillard, 39; Jacob Wilson, 28; Dustin McCann, 22; Billy Mcree, 38; Kevin Rash, 42; John Arnold, 43; Kristoffer Rhyne, 26; Raymond Hawes, 29; Richard Kreder, 33; Robert Bucy, 36; Ronald Atterbury, 45; William Aikin, 24; Trey Short, 27; Christian Valencia, 26; Michael Moore, 42; Jason Cavazos, 40; Roy Covey, 27; Brian Logan, 38; Colter Bajovich, 28; Ronnie Bishop, 28; Nathan Grindstaff, 37; James Gray, 61; Jimmy Pond, 43; Clayton Reed, 29; Tommy Jennings, 56; Ray Allen, 45; James Devoll, 33; Blake Taylor, 24; Matthew Folse, 31; Sandra Lynch, 54; Marshall Mitchell, 61; Mario Gonzalez, 36; Larry Pina, 50; Richard Luther, 58; Salvador Campos, 27; Michael Lynch, 31; Michael Herring, 36; Richard Cantu, 30; Tom Mendez, 40; Sergio Reyes, 44; Bohar Crump, 46; Jerry Pollard, 27; Eleazar Martinez, 41; Jim Harris, 27; Christopher Carrizal, 33; Diego Obledo, 40; David Cepeda, 43; Brian Brincks, 23; Dusty O’Ehlert, 33; Juan Garcia, 40, engineer for Austin water dept; Kyle Smith, 48; and Jimmy Spencer, 23.

The frequently cited St Paul Principles had their time and place: ST PAUL

Posted on May 3, 2015 by Eric Verlo

In my circle they’re called “Saint Paul’s Principles” because my colleagues think the edicts are Catholic I guess. The St Paul Principles came from St Paul Minnesota, circa 2008, and were formally adopted by the varied groups organizing to disrupt the Republican National Convention of 2008. They’ve lived on as guiding principles for activists of all ilk. In 2011 many Occupy encampments ratified the StPP as their own code of conduct, indifferent to whether they were applicable or even beneficial. Let’s examine the well intended dogma. Do they apply universally? Are they constructive? And how did they work out for St Paul? The last one is easy. As you may remember, disruption of the 2008 RNC failed spectacularly.

The St. Paul Principles

1. Our solidarity will be based on respect for a diversity of tactics and the plans of other groups.

2. The actions and tactics used will be organized to maintain a separation of time or space.

3. Any debates or criticisms will stay internal to the movement, avoiding any public or media denunciations of fellow activists and events.

4. We oppose any state repression of dissent, including surveillance, infiltration, disruption and violence. We agree not to assist law enforcement actions against activists and others.

It’s hard to argue against this elegant expression of solidarity. With the SPPs, the protest organizers aimed at preempting COINTELPRO style disruption from generating conflict within the movement. The implicit condemnation of violence was of state sponsored violence, not authentic barricade defense. And no snitching. The SPPs addressed the problems which were already scuttling Denver’s 2008 DNC protests. In Denver, “Recreate ’68” planners let the press infer they meant to revive the Chicago riots of 1968, prompting almost every traditional social justice group to circulate a contract which everyone was expected to sign. It was a vow of nonviolence. Organizations who refused to sign were ostracized and could expect the violent police clobbering they invited.

Essentially the SPPs aimed to unite the nonviolent and non-nonviolent activists, to ensure neither denounced the other, and that physically neither wound up caught in each other’s fights or sit-ins. Probably the chief concession was being asked of the nonviolent crowd: Please, as long as we promise not to shroud your family atmosphere and your baby strollers in tear gas, please let the Black Blocs do their thing without your repudiation. Please. We share the same goals.

Can you begin to see where such a strategy might fail to lead?

But the St Paul organizers did share the same goals. Their aim was to disrupt the RNC via a strategy they called “3S” actions. SWARM, SEIZE. STAY. It’s easy to see why three years later Occupy Wall Street was attracted to these directives. “3S” defines Occupy and another three years on, OWS activist followed the 2014 Climate March with an action called “Flood Wall Street” the instructions for which rephrased 3S aquatically.

The “movement” to which the SPPs refer shared a goal, to disrupt the RNC, by means of swarming, seizing, and staying, by whatever tactic each member group wanted. They shared a further agreement, that the city of St Paul was to be partitioned in sectors allowing groups to conduct their actions in isolation, united in time, but separated geographically so that red zone, yellow zone and green zone participants needn’t mix and find themselves out of their respective confort zones.

The groups organizing against the 2008 RNC shared one more thing in common, bound as they were to the St Paul Principles, they were all signatories to the principles.

Do the St Paul Principles apply universally?
It’s easy to see that the 2011 OWS occupations in major cities across the country shared a similar goal. It was, if perhaps more vague than to prevent a party convention, to disrupt the wheels of commerce by means of encampments; the “3S” tactic now reduced to a single verb “Occupy”. Allies such as unions and antiwar organizations, while sympathetic, cannot be said to have shared the same determinaton to disrupt. Even MoveOn with their “99% Spring”, FireDogLake with their merchandizing, and Adbusters had to relent with the revolutionary rhetoric. Eventually OWS spinoffs like Occupy Sandy Relief began to serve functions diametrically opposed to disruption. Did they expand the “movement”? Of course. But did the more inclusive “movement” outgrown the capacity for St Paul Principles to maintain its unity? Are activists bent on disruption expected to respect and support activists determined to prevent disruption?

I know it’s lovely to imagine every social justice effort as anti-authoritarian, and whether nonviolent or indulgent, each comprises a unique wing of a broad anti-government movement. If you are prepared to pretend that everyone’s aims are progressive, we share similar enough goals and we are reformists. But if some aims are revolutionary, explicitely anti-Capitalist for example like Occupy Wall Street, then reformists are counterrevolutionary. If you think reformists aren’t Capitalism’s first line of defense, even as they consider themselves activists, then you don’t know your adversaries from your allies. To imagine that activists shouldn’t address such chasms of understanding in favor of upholding popular delusion is going to get a movement nowhere.

At last year’s Climate March in NYC, the prevailing sentiment was against Capitalism. The organizers didn’t want to mouth it, but a vast number of marchers began to grasp instinctively that Capitalism has no solution for Climate Change. The anti-Capitalist movement can become “the movement” but reformists will have to understand they are obstructionists before they as individuals can be said to share the common goal.

The St Paul RNC Welcoming Committee aimed to disrupt the Republican National Convention for a WEEK. Can activist groups as they grow and transform over years and compete for membership and community resources expect that they shouldn’t be critical of one another’s missteps or aggressions even as their goals diverge?

How scalable are the St Paul Principles? Do they apply to no matter who considers themselves part of a greater “movement”. Do they apply to signatories and non-signatories alike?

Are the St Paul Principles constructive?
I would argue: Hardly. While it seems safer to segregate the Black Bloc from the civil disobedients from the family picnic crowd, you’re not going to reach critical mass with each on its own. With public dischord still in its infancy and while we have nowhere near the numbers to defend against or deter violent repression, perhaps it is only reasonable to program our street protests according to color zones, as if marches were amusement rides for protest tourism.

If you’re satisfied to lead combatants to jail and probation for mere symbolic shows of defiance, and you’re prepared to let nonviolent activists subject themselves to brutality which even when filmed will not awaken the conscience of the sociopathic oligarchs, and you’re resigned to let the masses burn themselves out with boredom given nothing to challenge their apathy, then the St Paul Principles are for you.

The Putin knock-knock joke is easier to find than his Kremlin speech on Crimea

Posted on March 27, 2014 by NMT

This graphic circulating on the interwebs is a lot easier to find than Vladimir Putin’s March 18 address to the Kremlin about the referendum in Crimea after the Western coup in Ukraine. Bypassing dubious translations excerpted on Capitalist media sites, here is a transcript of his speech direct from the Kremlin. Putin is no hero, but he threatens US-EU banking hegemony, gives asylum to Edward Snowden, and executes zero people with drones.

QUOTING PRESIDENT OF RUSSIA VLADIMIR PUTIN:
Federation Council members, State Duma deputies, good afternoon. Representatives of the Republic of Crimea and Sevastopol are here among us, citizens of Russia, residents of Crimea and Sevastopol!

Dear friends, we have gathered here today in connection with an issue that is of vital, historic significance to all of us. A referendum was held in Crimea on March 16 in full compliance with democratic procedures and international norms.

More than 82 percent of the electorate took part in the vote. Over 96 percent of them spoke out in favour of reuniting with Russia. These numbers speak for themselves.

To understand the reason behind such a choice it is enough to know the history of Crimea and what Russia and Crimea have always meant for each other.

Everything in Crimea speaks of our shared history and pride. This is the location of ancient Khersones, where Prince Vladimir was baptised. His spiritual feat of adopting Orthodoxy predetermined the overall basis of the culture, civilisation and human values that unite the peoples of Russia, Ukraine and Belarus. The graves of Russian soldiers whose bravery brought Crimea into the Russian empire are also in Crimea. This is also Sevastopol – a legendary city with an outstanding history, a fortress that serves as the birthplace of Russia’s Black Sea Fleet. Crimea is Balaklava and Kerch, Malakhov Kurgan and Sapun Ridge. Each one of these places is dear to our hearts, symbolising Russian military glory and outstanding valour.

Crimea is a unique blend of different peoples’ cultures and traditions. This makes it similar to Russia as a whole, where not a single ethnic group has been lost over the centuries. Russians and Ukrainians, Crimean Tatars and people of other ethnic groups have lived side by side in Crimea, retaining their own identity, traditions, languages and faith.

Incidentally, the total population of the Crimean Peninsula today is 2.2 million people, of whom almost 1.5 million are Russians, 350,000 are Ukrainians who predominantly consider Russian their native language, and about 290,000-300,000 are Crimean Tatars, who, as the referendum has shown, also lean towards Russia.

True, there was a time when Crimean Tatars were treated unfairly, just as a number of other peoples in the USSR. There is only one thing I can say here: millions of people of various ethnicities suffered during those repressions, and primarily Russians.

Crimean Tatars returned to their homeland. I believe we should make all the necessary political and legislative decisions to finalise the rehabilitation of Crimean Tatars, restore them in their rights and clear their good name.

We have great respect for people of all the ethnic groups living in Crimea. This is their common home, their motherland, and it would be right – I know the local population supports this – for Crimea to have three equal national languages: Russian, Ukrainian and Tatar.

Colleagues,

In people’s hearts and minds, Crimea has always been an inseparable part of Russia. This firm conviction is based on truth and justice and was passed from generation to generation, over time, under any circumstances, despite all the dramatic changes our country went through during the entire 20th century.

After the revolution, the Bolsheviks, for a number of reasons – may God judge them – added large sections of the historical South of Russia to the Republic of Ukraine. This was done with no consideration for the ethnic make-up of the population, and today these areas form the southeast of Ukraine. Then, in 1954, a decision was made to transfer Crimean Region to Ukraine, along with Sevastopol, despite the fact that it was a federal city. This was the personal initiative of the Communist Party head Nikita Khrushchev. What stood behind this decision of his – a desire to win the support of the Ukrainian political establishment or to atone for the mass repressions of the 1930’s in Ukraine – is for historians to figure out.

What matters now is that this decision was made in clear violation of the constitutional norms that were in place even then. The decision was made behind the scenes. Naturally, in a totalitarian state nobody bothered to ask the citizens of Crimea and Sevastopol. They were faced with the fact. People, of course, wondered why all of a sudden Crimea became part of Ukraine. But on the whole – and we must state this clearly, we all know it – this decision was treated as a formality of sorts because the territory was transferred within the boundaries of a single state. Back then, it was impossible to imagine that Ukraine and Russia may split up and become two separate states. However, this has happened.

Unfortunately, what seemed impossible became a reality. The USSR fell apart. Things developed so swiftly that few people realised how truly dramatic those events and their consequences would be. Many people both in Russia and in Ukraine, as well as in other republics hoped that the Commonwealth of Independent States that was created at the time would become the new common form of statehood. They were told that there would be a single currency, a single economic space, joint armed forces; however, all this remained empty promises, while the big country was gone. It was only when Crimea ended up as part of a different country that Russia realised that it was not simply robbed, it was plundered.

At the same time, we have to admit that by launching the sovereignty parade Russia itself aided in the collapse of the Soviet Union. And as this collapse was legalised, everyone forgot about Crimea and Sevastopol – the main base of the Black Sea Fleet. Millions of people went to bed in one country and awoke in different ones, overnight becoming ethnic minorities in former Union republics, while the Russian nation became one of the biggest, if not the biggest ethnic group in the world to be divided by borders.

Now, many years later, I heard residents of Crimea say that back in 1991 they were handed over like a sack of potatoes. This is hard to disagree with. And what about the Russian state? What about Russia? It humbly accepted the situation. This country was going through such hard times then that realistically it was incapable of protecting its interests. However, the people could not reconcile themselves to this outrageous historical injustice. All these years, citizens and many public figures came back to this issue, saying that Crimea is historically Russian land and Sevastopol is a Russian city. Yes, we all knew this in our hearts and minds, but we had to proceed from the existing reality and build our good-neighbourly relations with independent Ukraine on a new basis. Meanwhile, our relations with Ukraine, with the fraternal Ukrainian people have always been and will remain of foremost importance for us.

Today we can speak about it openly, and I would like to share with you some details of the negotiations that took place in the early 2000s. The then President of Ukraine Mr Kuchma asked me to expedite the process of delimiting the Russian-Ukrainian border. At that time, the process was practically at a standstill. Russia seemed to have recognised Crimea as part of Ukraine, but there were no negotiations on delimiting the borders. Despite the complexity of the situation, I immediately issued instructions to Russian government agencies to speed up their work to document the borders, so that everyone had a clear understanding that by agreeing to delimit the border we admitted de facto and de jure that Crimea was Ukrainian territory, thereby closing the issue.

We accommodated Ukraine not only regarding Crimea, but also on such a complicated matter as the maritime boundary in the Sea of Azov and the Kerch Strait. What we proceeded from back then was that good relations with Ukraine matter most for us and they should not fall hostage to deadlock territorial disputes. However, we expected Ukraine to remain our good neighbour, we hoped that Russian citizens and Russian speakers in Ukraine, especially its southeast and Crimea, would live in a friendly, democratic and civilised state that would protect their rights in line with the norms of international law.

However, this is not how the situation developed. Time and time again attempts were made to deprive Russians of their historical memory, even of their language and to subject them to forced assimilation. Moreover, Russians, just as other citizens of Ukraine are suffering from the constant political and state crisis that has been rocking the country for over 20 years.

I understand why Ukrainian people wanted change. They have had enough of the authorities in power during the years of Ukraine’s independence. Presidents, prime ministers and parliamentarians changed, but their attitude to the country and its people remained the same. They milked the country, fought among themselves for power, assets and cash flows and did not care much about the ordinary people. They did not wonder why it was that millions of Ukrainian citizens saw no prospects at home and went to other countries to work as day labourers. I would like to stress this: it was not some Silicon Valley they fled to, but to become day labourers. Last year alone almost 3 million people found such jobs in Russia. According to some sources, in 2013 their earnings in Russia totalled over $20 billion, which is about 12% of Ukraine’s GDP.

I would like to reiterate that I understand those who came out on Maidan with peaceful slogans against corruption, inefficient state management and poverty. The right to peaceful protest, democratic procedures and elections exist for the sole purpose of replacing the authorities that do not satisfy the people. However, those who stood behind the latest events in Ukraine had a different agenda: they were preparing yet another government takeover; they wanted to seize power and would stop short of nothing. They resorted to terror, murder and riots. Nationalists, neo-Nazis, Russophobes and anti-Semites executed this coup. They continue to set the tone in Ukraine to this day.

The new so-called authorities began by introducing a draft law to revise the language policy, which was a direct infringement on the rights of ethnic minorities. However, they were immediately ‘disciplined’ by the foreign sponsors of these so-called politicians. One has to admit that the mentors of these current authorities are smart and know well what such attempts to build a purely Ukrainian state may lead to. The draft law was set aside, but clearly reserved for the future. Hardly any mention is made of this attempt now, probably on the presumption that people have a short memory. Nevertheless, we can all clearly see the intentions of these ideological heirs of Bandera, Hitler’s accomplice during World War II.

It is also obvious that there is no legitimate executive authority in Ukraine now, nobody to talk to. Many government agencies have been taken over by the impostors, but they do not have any control in the country, while they themselves – and I would like to stress this – are often controlled by radicals. In some cases, you need a special permit from the militants on Maidan to meet with certain ministers of the current government. This is not a joke – this is reality.

Those who opposed the coup were immediately threatened with repression. Naturally, the first in line here was Crimea, the Russian-speaking Crimea. In view of this, the residents of Crimea and Sevastopol turned to Russia for help in defending their rights and lives, in preventing the events that were unfolding and are still underway in Kiev, Donetsk, Kharkov and other Ukrainian cities.

Naturally, we could not leave this plea unheeded; we could not abandon Crimea and its residents in distress. This would have been betrayal on our part.

First, we had to help create conditions so that the residents of Crimea for the first time in history were able to peacefully express their free will regarding their own future. However, what do we hear from our colleagues in Western Europe and North America? They say we are violating norms of international law. Firstly, it’s a good thing that they at least remember that there exists such a thing as international law – better late than never.

Secondly, and most importantly – what exactly are we violating? True, the President of the Russian Federation received permission from the Upper House of Parliament to use the Armed Forces in Ukraine. However, strictly speaking, nobody has acted on this permission yet. Russia’s Armed Forces never entered Crimea; they were there already in line with an international agreement. True, we did enhance our forces there; however – this is something I would like everyone to hear and know – we did not exceed the personnel limit of our Armed Forces in Crimea, which is set at 25,000, because there was no need to do so.

Next. As it declared independence and decided to hold a referendum, the Supreme Council of Crimea referred to the United Nations Charter, which speaks of the right of nations to self-determination. Incidentally, I would like to remind you that when Ukraine seceded from the USSR it did exactly the same thing, almost word for word. Ukraine used this right, yet the residents of Crimea are denied it. Why is that?

Moreover, the Crimean authorities referred to the well-known Kosovo precedent – a precedent our western colleagues created with their own hands in a very similar situation, when they agreed that the unilateral separation of Kosovo from Serbia, exactly what Crimea is doing now, was legitimate and did not require any permission from the country’s central authorities. Pursuant to Article 2, Chapter 1 of the United Nations Charter, the UN International Court agreed with this approach and made the following comment in its ruling of July 22, 2010, and I quote: “No general prohibition may be inferred from the practice of the Security Council with regard to declarations of independence,” and “General international law contains no prohibition on declarations of independence.” Crystal clear, as they say.

I do not like to resort to quotes, but in this case, I cannot help it. Here is a quote from another official document: the Written Statement of the United States America of April 17, 2009, submitted to the same UN International Court in connection with the hearings on Kosovo. Again, I quote: “Declarations of independence may, and often do, violate domestic legislation. However, this does not make them violations of international law.” End of quote. They wrote this, disseminated it all over the world, had everyone agree and now they are outraged. Over what? The actions of Crimean people completely fit in with these instructions, as it were. For some reason, things that Kosovo Albanians (and we have full respect for them) were permitted to do, Russians, Ukrainians and Crimean Tatars in Crimea are not allowed. Again, one wonders why.

We keep hearing from the United States and Western Europe that Kosovo is some special case. What makes it so special in the eyes of our colleagues? It turns out that it is the fact that the conflict in Kosovo resulted in so many human casualties. Is this a legal argument? The ruling of the International Court says nothing about this. This is not even double standards; this is amazing, primitive, blunt cynicism. One should not try so crudely to make everything suit their interests, calling the same thing white today and black tomorrow. According to this logic, we have to make sure every conflict leads to human losses.

I will state clearly – if the Crimean local self-defence units had not taken the situation under control, there could have been casualties as well. Fortunately this did not happen. There was not a single armed confrontation in Crimea and no casualties. Why do you think this was so? The answer is simple: because it is very difficult, practically impossible to fight against the will of the people. Here I would like to thank the Ukrainian military – and this is 22,000 fully armed servicemen. I would like to thank those Ukrainian service members who refrained from bloodshed and did not smear their uniforms in blood.

Other thoughts come to mind in this connection. They keep talking of some Russian intervention in Crimea, some sort of aggression. This is strange to hear. I cannot recall a single case in history of an intervention without a single shot being fired and with no human casualties.

Colleagues,

Like a mirror, the situation in Ukraine reflects what is going on and what has been happening in the world over the past several decades. After the dissolution of bipolarity on the planet, we no longer have stability. Key international institutions are not getting any stronger; on the contrary, in many cases, they are sadly degrading. Our western partners, led by the United States of America, prefer not to be guided by international law in their practical policies, but by the rule of the gun. They have come to believe in their exclusivity and exceptionalism, that they can decide the destinies of the world, that only they can ever be right. They act as they please: here and there, they use force against sovereign states, building coalitions based on the principle “If you are not with us, you are against us.” To make this aggression look legitimate, they force the necessary resolutions from international organisations, and if for some reason this does not work, they simply ignore the UN Security Council and the UN overall.

This happened in Yugoslavia; we remember 1999 very well. It was hard to believe, even seeing it with my own eyes, that at the end of the 20th century, one of Europe’s capitals, Belgrade, was under missile attack for several weeks, and then came the real intervention. Was there a UN Security Council resolution on this matter, allowing for these actions? Nothing of the sort. And then, they hit Afghanistan, Iraq, and frankly violated the UN Security Council resolution on Libya, when instead of imposing the so-called no-fly zone over it they started bombing it too.

There was a whole series of controlled “colour” revolutions. Clearly, the people in those nations, where these events took place, were sick of tyranny and poverty, of their lack of prospects; but these feelings were taken advantage of cynically. Standards were imposed on these nations that did not in any way correspond to their way of life, traditions, or these peoples’ cultures. As a result, instead of democracy and freedom, there was chaos, outbreaks in violence and a series of upheavals. The Arab Spring turned into the Arab Winter.

A similar situation unfolded in Ukraine. In 2004, to push the necessary candidate through at the presidential elections, they thought up some sort of third round that was not stipulated by the law. It was absurd and a mockery of the constitution. And now, they have thrown in an organised and well-equipped army of militants.

We understand what is happening; we understand that these actions were aimed against Ukraine and Russia and against Eurasian integration. And all this while Russia strived to engage in dialogue with our colleagues in the West. We are constantly proposing cooperation on all key issues; we want to strengthen our level of trust and for our relations to be equal, open and fair. But we saw no reciprocal steps.

On the contrary, they have lied to us many times, made decisions behind our backs, placed us before an accomplished fact. This happened with NATO’s expansion to the East, as well as the deployment of military infrastructure at our borders. They kept telling us the same thing: “Well, this does not concern you.” That’s easy to say.

It happened with the deployment of a missile defence system. In spite of all our apprehensions, the project is working and moving forward. It happened with the endless foot-dragging in the talks on visa issues, promises of fair competition and free access to global markets.

Today, we are being threatened with sanctions, but we already experience many limitations, ones that are quite significant for us, our economy and our nation. For example, still during the times of the Cold War, the US and subsequently other nations restricted a large list of technologies and equipment from being sold to the USSR, creating the Coordinating Committee for Multilateral Export Controls list. Today, they have formally been eliminated, but only formally; and in reality, many limitations are still in effect.

In short, we have every reason to assume that the infamous policy of containment, led in the 18th, 19th and 20th centuries, continues today. They are constantly trying to sweep us into a corner because we have an independent position, because we maintain it and because we call things like they are and do not engage in hypocrisy. But there is a limit to everything. And with Ukraine, our western partners have crossed the line, playing the bear and acting irresponsibly and unprofessionally.

After all, they were fully aware that there are millions of Russians living in Ukraine and in Crimea. They must have really lacked political instinct and common sense not to foresee all the consequences of their actions. Russia found itself in a position it could not retreat from. If you compress the spring all the way to its limit, it will snap back hard. You must always remember this.

Today, it is imperative to end this hysteria, to refute the rhetoric of the cold war and to accept the obvious fact: Russia is an independent, active participant in international affairs; like other countries, it has its own national interests that need to be taken into account and respected.

At the same time, we are grateful to all those who understood our actions in Crimea; we are grateful to the people of China, whose leaders have always considered the situation in Ukraine and Crimea taking into account the full historical and political context, and greatly appreciate India’s reserve and objectivity.

Today, I would like to address the people of the United States of America, the people who, since the foundation of their nation and adoption of the Declaration of Independence, have been proud to hold freedom above all else. Isn’t the desire of Crimea’s residents to freely choose their fate such a value? Please understand us.

I believe that the Europeans, first and foremost, the Germans, will also understand me. Let me remind you that in the course of political consultations on the unification of East and West Germany, at the expert, though very high level, some nations that were then and are now Germany’s allies did not support the idea of unification. Our nation, however, unequivocally supported the sincere, unstoppable desire of the Germans for national unity. I am confident that you have not forgotten this, and I expect that the citizens of Germany will also support the aspiration of the Russians, of historical Russia, to restore unity.

I also want to address the people of Ukraine. I sincerely want you to understand us: we do not want to harm you in any way, or to hurt your national feelings. We have always respected the territorial integrity of the Ukrainian state, incidentally, unlike those who sacrificed Ukraine’s unity for their political ambitions. They flaunt slogans about Ukraine’s greatness, but they are the ones who did everything to divide the nation. Today’s civil standoff is entirely on their conscience. I want you to hear me, my dear friends. Do not believe those who want you to fear Russia, shouting that other regions will follow Crimea. We do not want to divide Ukraine; we do not need that. As for Crimea, it was and remains a Russian, Ukrainian, and Crimean-Tatar land.

I repeat, just as it has been for centuries, it will be a home to all the peoples living there. What it will never be and do is follow in Bandera’s footsteps!

Crimea is our common historical legacy and a very important factor in regional stability. And this strategic territory should be part of a strong and stable sovereignty, which today can only be Russian. Otherwise, dear friends (I am addressing both Ukraine and Russia), you and we – the Russians and the Ukrainians – could lose Crimea completely, and that could happen in the near historical perspective. Please think about it.

Let me note too that we have already heard declarations from Kiev about Ukraine soon joining NATO. What would this have meant for Crimea and Sevastopol in the future? It would have meant that NATO’s navy would be right there in this city of Russia’s military glory, and this would create not an illusory but a perfectly real threat to the whole of southern Russia. These are things that could have become reality were it not for the choice the Crimean people made, and I want to say thank you to them for this.

But let me say too that we are not opposed to cooperation with NATO, for this is certainly not the case. For all the internal processes within the organisation, NATO remains a military alliance, and we are against having a military alliance making itself at home right in our backyard or in our historic territory. I simply cannot imagine that we would travel to Sevastopol to visit NATO sailors. Of course, most of them are wonderful guys, but it would be better to have them come and visit us, be our guests, rather than the other way round.

Let me say quite frankly that it pains our hearts to see what is happening in Ukraine at the moment, see the people’s suffering and their uncertainty about how to get through today and what awaits them tomorrow. Our concerns are understandable because we are not simply close neighbours but, as I have said many times already, we are one people. Kiev is the mother of Russian cities. Ancient Rus is our common source and we cannot live without each other.

Let me say one other thing too. Millions of Russians and Russian-speaking people live in Ukraine and will continue to do so. Russia will always defend their interests using political, diplomatic and legal means. But it should be above all in Ukraine’s own interest to ensure that these people’s rights and interests are fully protected. This is the guarantee of Ukraine’s state stability and territorial integrity.

We want to be friends with Ukraine and we want Ukraine to be a strong, sovereign and self-sufficient country. Ukraine is one of our biggest partners after all. We have many joint projects and I believe in their success no matter what the current difficulties. Most importantly, we want peace and harmony to reign in Ukraine, and we are ready to work together with other countries to do everything possible to facilitate and support this. But as I said, only Ukraine’s own people can put their own house in order.

Residents of Crimea and the city of Sevastopol, the whole of Russia admired your courage, dignity and bravery. It was you who decided Crimea’s future. We were closer than ever over these days, supporting each other. These were sincere feelings of solidarity. It is at historic turning points such as these that a nation demonstrates its maturity and strength of spirit. The Russian people showed this maturity and strength through their united support for their compatriots.

Russia’s foreign policy position on this matter drew its firmness from the will of millions of our people, our national unity and the support of our country’s main political and public forces. I want to thank everyone for this patriotic spirit, everyone without exception. Now, we need to continue and maintain this kind of consolidation so as to resolve the tasks our country faces on its road ahead.

Obviously, we will encounter external opposition, but this is a decision that we need to make for ourselves. Are we ready to consistently defend our national interests, or will we forever give in, retreat to who knows where? Some Western politicians are already threatening us with not just sanctions but also the prospect of increasingly serious problems on the domestic front. I would like to know what it is they have in mind exactly: action by a fifth column, this disparate bunch of ‘national traitors’, or are they hoping to put us in a worsening social and economic situation so as to provoke public discontent? We consider such statements irresponsible and clearly aggressive in tone, and we will respond to them accordingly. At the same time, we will never seek confrontation with our partners, whether in the East or the West, but on the contrary, will do everything we can to build civilised and good-neighbourly relations as one is supposed to in the modern world.

Colleagues,

I understand the people of Crimea, who put the question in the clearest possible terms in the referendum: should Crimea be with Ukraine or with Russia? We can be sure in saying that the authorities in Crimea and Sevastopol, the legislative authorities, when they formulated the question, set aside group and political interests and made the people’s fundamental interests alone the cornerstone of their work. The particular historic, population, political and economic circumstances of Crimea would have made any other proposed option – however tempting it could be at the first glance – only temporary and fragile and would have inevitably led to further worsening of the situation there, which would have had disastrous effects on people’s lives. The people of Crimea thus decided to put the question in firm and uncompromising form, with no grey areas. The referendum was fair and transparent, and the people of Crimea clearly and convincingly expressed their will and stated that they want to be with Russia.

Russia will also have to make a difficult decision now, taking into account the various domestic and external considerations. What do people here in Russia think? Here, like in any democratic country, people have different points of view, but I want to make the point that the absolute majority of our people clearly do support what is happening.

The most recent public opinion surveys conducted here in Russia show that 95 percent of people think that Russia should protect the interests of Russians and members of other ethnic groups living in Crimea – 95 percent of our citizens. More than 83 percent think that Russia should do this even if it will complicate our relations with some other countries. A total of 86 percent of our people see Crimea as still being Russian territory and part of our country’s lands. And one particularly important figure, which corresponds exactly with the result in Crimea’s referendum: almost 92 percent of our people support Crimea’s reunification with Russia.

Thus we see that the overwhelming majority of people in Crimea and the absolute majority of the Russian Federation’s people support the reunification of the Republic of Crimea and the city of Sevastopol with Russia.

Now this is a matter for Russia’s own political decision, and any decision here can be based only on the people’s will, because the people is the ultimate source of all authority.

Members of the Federation Council, deputies of the State Duma, citizens of Russia, residents of Crimea and Sevastopol, today, in accordance with the people’s will, I submit to the Federal Assembly a request to consider a Constitutional Law on the creation of two new constituent entities within the Russian Federation: the Republic of Crimea and the city of Sevastopol, and to ratify the treaty on admitting to the Russian Federation Crimea and Sevastopol, which is already ready for signing. I stand assured of your support.

WWII air veterans of Doolittle Raiders celebrate 71 years of bombing civilians

Posted on November 10, 2013 by Eric Verlo

Doolittle nose-art
I read 30 Seconds Over Tokyo when I was still a war-playing kid, before I would understand the mischievous consequences of the Doolittle Raiders B-25 bombers deploying without their bombsights. This was to prevent US war-making advantages falling into enemy hands but it also precluded dropping bombs with accuracy. I’m pretty certain the account for young readers also didn’t explain why over a quarter of the squadron’s bombs were of the incidiary cluster variety. Readers today know what those are for. Doolittle claimed to be targeting military sites in Japan’s capitol, but “invariably” hit civilian areas including four schools and a hospital. Of the American fliers captured, three were tried and executed by the despicable “Japs”, who considered the straffing of civilians to be war crimes. After the war, the US judged the Japanese officers responsible, as if their verdict was a greater injustice against our aviators’ “honest errors”. Today we rationalize our systemic overshoot policy as “collateral damage”.

Every year since WWII, Doolittle’s commandos are feted for their milestone bombing mission. This Veterans Day is to be the last due to their advanced ages. But it is fitting, because isn’t it time Americans faced what we’re celebrating? There’s no denying it took suicidal daring, but the Doolittle Raid inaugurated what became a staple of US warfare, the wholesale terrorizing of civilians from on high, with impunity and indifference. To be fair, the American public has always been kept in the dark. American aircraft have fire-bombed civilians at every diplomatic opportunity since 1942, and a Private Manning sits in the brig for trying to give us a chance to object.

We now know that the Doolittle Raid didn’t turn the tide, nor shake Japanese resolve. It was a retalliation for the attack on Pearl Harbor, intended to boost US morale as if to say, America wasn’t defeated. Kinda like why and how we struck back at Afghanistan after 9/11, just as indiscriminately.

The “Mark Twain” ersatz bombsight
substitute bombsight The Norden bombsight was a closely guarded US secret weapon. An airstrike without it would today be like lobotomizing so-called smart bombs, and deciding to opt for imprecision bombing. The official army record recounts that a subsitute sighting mechanism was improvised for the raid, dubbed the “Mark Twain” and judged to be effective enough. Now a bad joke. Indochina and Wikileaks-wisened, we know the mendacity of that assessment. The vehemently anti-imperialist, anti-racist Twain would not have been honored.

Twain satirized Western so-called Enlightenment thus: “good to fire villages with, upon occasion”.

Post-postwar hagiographies of the raid have suggested the improvised bombsight was better suited to low-altitude missions than the Norden model. That conclusion is easily dismissed because the device was used only for the Doolittle run and never after. The sight’s designer, mission aviator C. Ross Greening, offered a explanation for why he named the device after Mark Twain in his pothumously published memoir Not As Briefed. He didn’t.

The bombsight is named the “Mark Twain” in reference to the “lead line” depth finder used on the Mississippi River paddle wheelers in bygone days.

Because its design was so simple, we’re left to suppose. Greening’s bombsight was named for the same “mark” which Samuel Langhorne Clemens adopted as his celebrated pen name. I find it disingeneous to pretend to repurpose an archaic expression whose meaning was already eclipsed by the household name of America’s most outspoken anti-imperialist. Who would believe you named your dog “Napoleon” after a French pastry?

We are given another glimpse into Greening’s sense of humor by how he named his plane, the “Hari-Kari-er” ready to deal death by bomb-induced suicide. Greening’s B-25 is the one pictured above, with the angelic tart holding a bomb aloft. Greening’s plane was another that carried only incendiary ordnance.

Much was made of the sight’s two-piece aluminum construction, reportedly costing 20 cents at the time compared to the $10,000 Norden. This provided the jingoist homefront the smug satisfaction perhaps, combining a frugality born of the Depression with the American tradition of racism, that only pennies were expensed and or risked on Japanese lives.

War Crimes
Targeting civilians, taking insufficient care to avoid civilian casualties, using disproportunate force, acts of wanton retaliation, and the use of collective punishment are all prohibited by international convention. They are war crimes for which the US prosecutes adversaries but with which our own military refuses to abide. Americans make much of terrorism, yet remain blind to state terrorism. Doolittle’s historic raid, judged by the objective against which it is celebrated as a success, was an act of deliberate terrorism.

Forcing the Japanese to deploy more of their military assets to protect the mainland sounds like a legitimate strategy, except not by targeting civilians to illustrate the vulnerability, nor by terrorizing the population, one of Doolittle’s stated aims. He called it a “fear complex”.

It was hoped that the damage done would be both material and psychological. Material damage was to be the destruction of specific targets with ensuing confusion and retardation of production. The psychological results, it was hoped, would be the recalling of combat equipment from other theaters for home defense, the development of a fear complex in Japan, improved relationships with our Allies, and a favorable reaction in the American people.

There is no defending Japan’s imperialist expansion in the Pacific, and certainly not its own inhumanity. The Japanese treated fellow Asians with the same racist disregard with which we dispatched Filipinos. While Americans point in horror at how the Japanese retalliated against the Chinese population for the Doolittle Raid, we ignore that Doolittle purposely obscured from where our bombers were launched, leaving China’s coast as the only probably suspect.

To be fair, most of Doolittle’s team was kept in the dark about the mission until they were already deployed. I hardly want to detract from the courage they showed to undertake a project that seemed virtually suicidal. But how long should all of us remain in the dark about the true character of the Doolittle Raid?

Out of deference for the earlier generation of WWII veterans, those in leadership, certain intelligence secrets were kept until thirty years after the war. Unveiled, they paint a very different picture of what transpired. The fact that the US knew the German and Japanese codes from early on revealed an imbalance not previously admitted, as an example.

About the Doolittle Raid, much is already openly documented, if not widely known. The impetus for the raid was public knowledge, the evidence of its intent in full view.

BY DESIGN
In the aftermath of Pearl Harbor, American newspapers were already touting offers of cash rewards for whoever would be the first to strike back at Japan. President Roosevelt expressed a deliberate interest in hitting the Japanese mainland, in particular Tokyo, to retaliate for the Japanese strike against Pearl Harbor, never mind it had been a solely military target.

Plans were made to exploit the Japanese homeland’s vulnerability to fire, as ninety percent of urban structures were made of paper and wood. Writes historian William Bruce Jenson:

In his “confidential” meeting with reporters back in November, Marshall had declared that the US would have no cavil about burning Japan’s paper cities.

For the Doolittle Raid, a bombing strategy was developed to overwhelm the fire department of his target, the Shiba ward.

A former naval attache in Tokyo told Doolittle: “I know that Tokyp fire department very well. Seven big scattered fires would be too much for it to cope with.”

As lead plane, Doolittle’s role was to literally blaze the way. Fellow pilot Richard Joyce told Nebraska History Magazine in 1995:

The lead airplane, which was going to have Doolittle on board as the airplane commander, was going to be loaded with nothing but incendiaries -2.2 pound thermite incendiaries- in clusters. They drop these big clusters and then the straps break and they spray, so they set a whole bunch of fires. He was to be the pathfinder and set a whole bunch of fires in Tokyo for pathfinding purposes.

Doolittle’s report outlined his objective more formally:

one plane was to take off ahead of the others, arrive over Tokyo at dusk and fire the most inflammable part of the city with incendiary bombs. This minimized the overall hazard and assured that the target would be lighted up for following airplanes.

Greening paints the most vivid picture, of burning the Japanese paper houses to light the way:

Doolittle planned to leave a couple of hours early, and in the dark set fire to Tokyo’s Shiba ward … the mission’s basic tactic had been that Doolittle would proceed alone and bomb a flammable section of Tokyo, creating a beacon in the night to help guide following planes to their targets.

Doolittle’s copilot Lt Richard Cole, told this to interviews in 1957:

Since we had a load of incendiaries, our target was the populated areas of the west and northwest parts of Tokyo.

After the bombers had left on their raid, and before news got back about whether or not they accomplished it, the Navy crew on the carrier USS Hornet already sang this song, which went in part:

Little did Hiro think that night
The skies above Tokyo would be alight
With the fires that Jimmy started in Tokyo’s dives
To guide to their targets the B-25s.
When all of a sudden from out of the skies
Came a basket of eggs for the little slant eyes

Incendiaries

Most of the bombers were loaded with three demolition bombs and an incendiary cluster bomb. Some of the planes carried only incendiaries. According to Doolittle’s official report of the raid, here were some of their stated objectives:

Plane no. 40-2270, piloted by Lt. Robert Gray:
thickly populated small factories district. … Fourth scattered incendiary over the correct area

Plane No. 40-2250, Lt. Richard Joyce:
Incendiary cluster dropped over thickly populated and dense industrial residential sector immediately inshore from primary target. (Shiba Ward)

“The third dem. bomb and the incendiary were dropped in the heavy industrial and residential section in the Shiba Ward 1/4 of a mile in shore from the bay and my tat.”

Aircraft 40-2303, Lt Harold Watson:
the congested industrial districts near the railroad station south of the Imperial Palace

AC 40-2283, David Jones:
the congested area Southeast of the Imperial Palace

Even though the planned night raid became a daytime mission, Doolittle did not alter his original role, intended to light the way for the following planes. His target remained the Shiba District of Tokyo. His own plane: “changed course to the southwest and incendiary-bombed highly inflammable section.”

Doolittle’s report included a description of the incendiary bombs:

The Chemical Warfare Service provided special 500 incendiary clusters each containing 128 incendiary bombs. These clusters were developed at the Edgewood Arsenal and test dropped by the Air Corps test group at Aberdeen. Several tests were carried on to assure their proper functioning and to determine the dropping angle and dispersion. Experimental work on and production of these clusters was carried on most efficiently.

As has become an aerial bombardment tradition, crews were let to inscribe messages on the bombs about to be dropped. Accounts made the most of these chestnuts: “You’ll get a BANG out of this.” And “I don’t want to set the world on fire –only Tokyo.”

These details, which reveal the intentions of the raid, were not made known to the public immediately. The Doolittle Raid was planned and executed in secret, with US government and military spokesmen denying knowledge of the operation even in its aftermath. The first word to reach the American public came from the New York Times, citing Japanese sources:

Enemy bombers appeared over Tokyo for the first time in the current war, inflicting damage on schools and hospitals. Invading planes failed to cause and damage on military establishments, although casualties in the schools and hospitals were as yet unknown. This inhuman attack on these cultural establishments and on residential districts is causing widespread indignation among the populace.

This report was dismissed as propaganda. When Japan declared its intention to charge the airman it had taken captive with war crimes, the US protestations redoubled. The accusations were belittled even as our own reports conceded to the possibilities.

Lieutenant Dawson’s Thirty Seconds Over Tokyo was the first published account of the raid. Printed less than a year after the event, wartime-sensitive details such as the phony guns made of broomstick handles poking out the back were left out. Targets were also not specified, but a candor remained, probably intended to be threatening. Lawson described the 500-pound incendiaries as “something like the old Russian Molotov Breadbasket”, and related US naval attache Jurika’s advice:

“If you can start seven good fires in Tokyo, they’ll never put them out,” Jurika promised us. … “I wouldn’t worry too much about setting fires in flimsy-looking sections of Tokyo,” he said. “The Japanese have done an amazing job of spreading out some of their industries, instead of concentrating them in large buildings. There’s probably a small machine shop under half of these fragile-looking roofs.”

“Flimsy” became Lawson’s keyword for the residential areas. Here Lawson described dropping his third and fourth bombs, when he saw their corresponding red light indicators:

The third red light flickered, and, since we were now over a flimsy area in the southern part of the city, the fourth light blinked. That was the incendiary, which I knew would separate as soon as it hit the wind and that dozens of small fire bombs would molt from it.

I was satisfied about the steel-smelter and hoped the other bombs had done as well. There was no way of telling, but I was positive that Tokyo could have been damaged that day with a rock.

Our actual bombing operation, from the time the first one went until the dive, consumed not more than thirty seconds.

Thus: Chance of hitting civilian homes: 50/50.
Charges of Excessive Force could be expected, because
blame the victim for being weaker than: a rock.
Care taken to avoid innocent casualties: 30 seconds.

In a later afterword, Lawson blamed Tokyo for having insufficient bomb shelters.

After the war, US occupation forces recovered Japanese records which documented the losses attributed to the Doolittle Raid: fifty dead, 252 wounded, ninety buildings. Besides military or strategic targets, that number included nine electric power buildings, a garment factory, a food storage warehouse, a gas company, two misc factories, six wards of Nagoya 2nd Temporary Army Hospital, six elementary or secondary schools, and “innumerable nonmilitary residences”.

Strafing
Japan accused the fliers of indescriminate strafing civilians. The US countered that defending fighters were responsible for stray bullets when their gunfire missed the bombers. That’s very likely, except the raiders were candid about their strafing too. Lawson:

I nosed down a railroad track on the outskirts of the city and passed a locomotive close enough to see the surprised face of the engineer. As I went by I could have kicked myself for not giving the locomotive’s boiler a burst of our forward 30-calibre guns, then I remembered that we might have better use for the ammunition.

A big yacht loomed up ahead of us and, figuring it must be armed, I told Thatcher to give it a burst. We went over it, lifted our nose to put the tail down and Thatcher sprayed its deck with our 50-calibre stingers.

Greening’s account of firing on a sailor, raises the moral ambiguity of air warfare with which few airmen grapple. By virtue that technology allows it, combatants become slave to a predetermined outcome:

When we attacked the next patrol boat, a Japanese sailor threw his hands up as if to surrender. I guess he expected us to stop and take him prisoner. We shot him and left this boat smoking too.

The Medals
Friendship Medals exchanged between Japan and the US found themselves requisitioned for Doolittle’s Raid:

Several years prior to the war, medals of friendship and good relationship were awarded to several people of the United States by the Japanese government. In substance these medals were symbolic of the friendship and cooperation between the nations and were to represent the duration of this attitude. It was decided by the Secretary of the Navy, Mr. Frank Knox, that the time was appropriate to have these medals returned. They had been awarded to Mr. Daniel J. Quigley, Mr. John D. Laurey, Mr. H. Vormstein and Lt. Stephen Jurkis.

After arrangements had been made and the medals secured, a ceremony was held on the deck of the Hornet during which the medals were wired to a 500 lb. bomb to be carried by Lt. Ted Lawson and returned to the Japanese government in an appropriate fashion.

Lawson’s plane no 40-2261 dropped that bomb on an “industrial section of Tokyo” omitting to mention that Japan’s industry was still a post-feudal cottage industry.

“The medals were subsequently delivered in small pieces to their donors in Tokyo by Lt. Ted Lawson at about noon, Saturday, April 18, 1942.”

–Mitscher, M.A. Letter Report to Commander Pacific Fleet.

“Through the courtesy of the War Department your Japanese medal and similar medals, turned in for shipment, were returned to His Royal Highness, The Emperor of Japan on April 18, 1942.”

–Knox, F. Letter Report to Mr. H. Vormstein

El Paso County Clerk Wayne Williams wants voter registration fraud evidence pulled from net

Posted on September 27, 2012 by Eric Verlo

Romney supporter, 20-year-old Mormon Victoria Bautista, registering only Republican voters COLORADO SPRINGS– A young voter registration activist, by admission soliciting only Mitt Romney supporters, was caught on video saying she worked for the El Paso County Clerk, mistakenly as it turns out. Local Dems have run with the story while Clerk & Recorder Wayne Williams and the Colorado Springs Gazette, both notorious GOP bullies, insist the viral video be taken down because it misrepresents the truth, missing the point about WHO was misrepresenting the truth. Whether the young woman spoke in error, she and perhaps others are representing themselves as county representatives, and the clerk’s damage control is revealing. After clarifying that his office does not employ partisan foot soldiers (although examples abound of Democrats being purged from his staff), Williams scolds only the video taker for “spreading disinformation”. He does not warn citizens to question volunteers who pretend official status, nor does he offer evidence of reprimands or special retraining. Of course all sides are protecting the identity of the 20-year-old Victoria Bautista. Why? At 20 she’s not getting any smarter, or educated obviously. I hardly think it serves our society to coddle anyone screwing with civic participation. Many of our current officials are evidence of what happens when you nurture mediocrity in politics. Are we so hard up we want idiots in authority? I think that’s a characteristic best pruned aggressively like you would rot.

Randy Newman dreams of a White President and a sarcasm-enabled internet

Posted on September 19, 2012 by Eric Verlo

“He won’t be the brightest, but he’ll be the whitest, and I’ll vote for that!” sings Randy Newman of his dream president, drawing the reaction he got when he penned “I’m a Redneck” or “Short People.” America needs a laugh track to know what’s funny. In real life we look at each other when we don’t get something, but online, those slow on the uptake know only to be “first” with an indignant response, as usual, humorless.

Newman’s youtube vid even includes his lyrics:

I’M DREAMING

George Washington was a white man
Adams and Jefferson too
Abe Lincoln was a white man, probably
And William McKinley the whitest of them all
Shot down by an immigrant in Buffalo
And a star fell out of heaven

I’m dreaming of a white President
Just like the ones we’ve always had
A real live white man
Who knows the score
How to handle money or start a war
Wouldn’t even have to tell me what we were fighting for
He’d be the right man
If he were a (everybody!)

I’m dreaming of a white President
Someone whom we can understand
Someone who knows where we’re coming from
And that the law of the jungle is not the law of this land

In deepest darkest Africa nineteen three
A little boy says, “Daddy, I just discovered relativity.
A big eclipse is coming
And I’ll prove it. Wait and see!”

“You better eclipse yourself outta here, son
And find yourself a tree
There’s a lion in the front yard
And he knows he won’t catch me.”

How many little Albert Einsteins
Cut down while in their prime?
How many little Ronald Reagans
Gobbled up before their time?

I don’t believe in evolution
But it does occur to me,
What if little William Howard Taft had to face a lion
Or God forbid, climb a tree?
Where would this country be?

I’m dreaming –Buh buh buh buh
‘Cause things have never been this bad
So he won’t run the hundred in ten seconds flat
So he won’t have a pretty jump shot
Or be an Olympic acrobat
So he won’t know much about global warming
Is that really where you’re at?
He won’t be the brightest, perhaps
But he’ll be the whitest
And I’ll vote for that

Whiter than this?
Yes
Whiter than this?
Yes
Whiter than this?
Yes
Whiter than this?
Oh yeah

Julian Assange and Bradley Manning put lie to Western pretense of freedom and rule of law

Posted on August 20, 2012 by Eric Verlo

The UK wouldn’t extradite Pinochet, but they’re threatening to storm the Ecuadorian embassy in London to see that Wikileaks impresario Julian Assange is extradited to Sweden where a prosecutor wants to decide whether to charge him for sexual violations, more likely so that the Australian can then be rendered to the US to be imprisoned like Bradley Manning and face the death penalty for espionage. The US denies this intention, though it voted against Ecuador’s allies to hold a meeting about the continuing US-UK assault on journalism and whistleblowers. Can the Western empire let Assange and Manning escape severe reprimand? The two are only the mastermind and the alleged-source who’ve ignited the global uprising behind the anti- austerity movements, Arab Spring, and Occupy. President Obama cannot leave either off the hook without encouraging a deluge of more insider defections. Bradley Manning is already under torture in military custody, but Assange continues to evade US clutches. Should he escape to asylum in Ecuador where Obama’s exterminator drones can deal “American Justice”? The US has yet to condemn a white man to targeted assassination, but in the Global South, in darker-skinned populations, who will know? I favor Ecuador expanding its embassy to more than the first floor office, to offer Wikileaks an entire center of operations for as long as Julian Assange is confined under virtual house arrest. In Assange’s speech from the embassy balcony he repeated three times: “Bradley Manning must be released.” Journalists must be free to expose the crimes of the rich. Citing prison sentences for a Bahrain dissident and Russia’s Pussy Riot, Assange concluded: “There is unity in the oppression. There must be absolute unity and determination in the response.”

Here’s the full text of Assange’s statement:

“I am here today because I cannot be there with you today. But thank you for coming. Thank you for your resolve and your generosity of spirit.

“On Wednesday night, after a threat was sent to this embassy and the police descended on this building, you came out in the middle of the night to watch over it and you brought the world’s eyes with you.

“Inside this embassy, after dark, I could hear teams of police swarming up into the building through its internal fire escape. But I knew there would be witnesses. And that is because of you.

“If the UK did not throw away the Vienna conventions the other night, it is because the world was watching. And the world was watching because you were watching.

“So, the next time somebody tells you that it is pointless to defend those rights that we hold dear, remind them of your vigil in the dark before the Embassy of Ecuador.

“Remind them how, in the morning, the sun came up on a different world and a courageous Latin America nation took a stand for justice.

And so, to those brave people. I thank President Correa for the courage he has shown in considering and in granting me political asylum.

“And I also thank the government, and in particular Foreign Minister Ricardo Patino, who upheld the Ecuadorian constitution and its notion of universal rights in their consideration of my asylum. And to the Ecuadorian people for supporting and defending this constitution.

“And I also have a debt of gratitude to the staff of this embassy, whose families live in London and who have shown me the hospitality and kindness despite the threats we all received.

“This Friday, there will be an emergency meeting of the foreign ministers of Latin America in Washington DC to address this very situation.

“And so, I am grateful to those people and governments of Argentina, Bolivia, Brazil, Chile, Columbia, El Salvador, Honduras, Mexico, Nicaragua, Argentina, Peru, Venezuela, and to all other Latin American countries who have come out to defend the right to asylum.

“And to the people of the United States, United Kingdom, Sweden and Australia who have supported me in strength, even when their governments have not. And to those wiser heads in government who are still fighting for justice. Your day will come.

“To the staff, supporters and sources of Wikileaks, whose courage and commitment and loyalty has seen no equal.

“To my family and to my children who have been denied their father. Forgive me, we will be reunited soon.

“As Wikileaks stands under threat, so does the freedom of expression and the health of all our societies. We must use this moment to articulate the choice that is before the government of the United States of America.

“Will it return to and reaffirm the values, the revolutionary values it was founded on, or will it lurch off the precipice dragging us all into a dangerous and oppressive world, in which journalists fall silent under the fear of prosecution and citizens must whisper in the dark?

“I say it must turn back. I ask President Obama to do the right thing. The United States must renounce its witch-hunts against Wikileaks. The United States must dissolve its FBI investigation.

“The United States must vow that it will not seek to prosecute our staff or our supporters. The United States must pledge before the world that it will not pursue journalists for shining a light on the secret crimes of the powerful.

“There must be no more foolish talk about prosecuting any media organisation; be it Wikileaks, or be it the New York Times.

“The US administration’s war on whistleblowers must end.

“Thomas Drake, William Binney and John Kirakou and the other heroic whistleblowers must – they must – be pardoned or compensated for the hardships they have endured as servants of the public record.

“And to the Army Private who remains in a military prison in Fort Leavenworth, Kansas, who was found by the United Nations to have endured months of torturous detention in Quantico, Virginia and who has yet – after two years in prison – to see a trial: he must be released.

“Bradley Manning must be released.

“And if Bradley Manning did as he is accused, he is a hero and an example to us all and one of the world’s foremost political prisoners.

“Bradley Manning must be released.

“On Wednesday, Bradley Manning spent his 815th day of detention without trial. The legal maximum is 120 days.

“On Thursday, my friend Nabeel Rajab, President of the Bahrain Human Rights Centre, was sentenced to three years in prison for a tweet. On Friday, a Russian band were sentenced to two years in jail for a political performance.

“There is unity in the oppression. There must be absolute unity and determination in the response.

“Thank you.”

Steve Bass found guilty of camping not occupying, but could jury have ruled otherwise without hearing his defense?

Posted on August 10, 2012 by Eric Verlo

COLORADO SPRINGS, Colo.– You may have underestimated the importance of today’s Camping Ban trial. The local media, social justice community and rights watchdogs missed it. But judging from the police force on hand and the elaborate lock-downs placed on the jury pools, it was evident the City of Colorado Springs thought a lot was at stake. I’ve written already about the draconian motions to prevent defendant Steve Bass from explaining his motives, including a ban of the word “Occupy.” Today the court made audience members remove their “Occupy Colorado Springs” t-shirts, but let the cat out of the bag by the palpable gravitas with which the court officials and police handled jury selection. Except for the absence of TV crews outside, you’d have thought Steve Bass was Hannibal Lector tripped up by an urban camping ordinance at “what happened last year in October at a park downtown.”

Yeah, even mention of “Acacia Park” was giving away too much, the prosecuting attorney preferred to call it “115 W. Platte Ave.” Every so often a prospective juror would stand up and say “I presume you’re referring to OCCUPY WALL STREET?” like he was solving a riddle, but instead of the door prize that volunteer would be dismissed from the pool for knowing too much.

After a trial that lasted one third the length of the jury selection, Steve Bass was found guilty. He offered no testimony, his lawyer, the very capable Patty Perelo, made no closing statement, because what defense could be made? Steve and his council elected not to have him testify, because to begin with, he’d have to swear to tell the whole truth, and if he explained he could only tell part of the truth, he’d be slapped with Contempt of Court.

We thought the jurors might have been curious, after seeing the city’s 8×10 glossy pictures with the circles and arrows telling what each one was and hearing not a peep from Bass, but they didn’t express it, and left after giving their verdict. This is Colorado Springs.

One of the prosecution’s witnesses, the arresting officer, nearly spilled the beans when he identified the defendant as someone he couldn’t have confused for someone else, because he’d said he’d encountered Bass many times in the park and shared many conversations.

“Oh?” the defense attorney Perelo perked her ears and asked, “and WHAT did you talk about?”

“Um… homeless policy, mostly.” That’s all HE could say. He couldn’t explain why he’d encountered the defendant so many times, or what the defendant was doing. Attorney Perelo couldn’t push it, because that would be leading him into forbidden territory. His testimony for the prosecutor was delivered straight from his notes.

There were two police witnesses, a map and several photographs, showing the tent and another showing just the poles. Was this necessary for a conviction? Because it necessitated explaining to the jury that said poles were in their “unerected state”. Not to be confused with the tent which was “fully erected”, which the judge pronounced like expressions which tripped off the tongue in cases of serious crime.

A photo of two sleeping bags required the officer to say he found the defendant sleeping “in the bags in the tent in the park” to prove all the elements of a violation of the camping ban.

The prosecuting attorney summarized it thus: “there was a tent, there was a sleeping bag, looks like camping to me.”

Not according to a dictionary definition of course. But that too had been motioned inadmissible. If you look it up, camping is variously defined as to “Live for a time in a camp, tent, or camper, as when on vacation.” Or as when destitute? Dictionaries don’t go there. That’s more like sheltering.

A couple of other examples: Soldiers sleep in tents. They’re not camping. Mountaineers overnighting on the side of a mountain aren’t camping. Refugees of war and natural disasters stay in refuge camps, but aren’t said to be camping. Anyway.

Steve Bass didn’t get his day in court. Everything he wanted to say he couldn’t. His attorney’s strategy today was to prepare for an appeal, on the grounds that the judge deprived Bass of the ability to defend himself.

Did Bass violate the camping ban as the jury decided? The prosecutor explained that nobody, not the judge, nor police officers or herself or the jury was in the position to decide the law. So Steve Bass has to take his case to someone who can.

Jury Selection
Over four hours were spent on choosing a jury, by far the most interesting part of the day. It took three sets of 25 potential jurors to pick six and one alternate. As the process approached lunch hour, the court was eager to buy pizza for seven instead of twenty five, but they didn’t make it.

As I mentioned, usually a juror familiar with “Occupy Wall Street” was dismissed, whether their opinions were favorable or unfavorable. I saw one juror dismissed because delving further would have meant discussing Occupy too much and would expose the other jurors to more occupy talk than the judge or prosecutor wanted.

On the other hand, many jurors had direct relatives in law enforcement, one juror considered a CSPD officer her “knight in shining armor,” so that was another cause for eliminations.

During the second batch, another juror stood up to say he was a former corrections officer, who wasn’t sure if he might have met Steve Bass “in the course of his duties” which poisoned the entire group by suggesting Steve had spent time in prison. That batch was dismissed. In actuality, Steve recognized him, because they both frequented the Dulcimer Shop.

Though Judge Williams maintained a convivial air of impartiality, he betrayed an awful prejudice. Whenever a juror expressed knowing something of what was in the news in October 2011, the judge would asked them if they could refrain from judging Bass based on the misbehavior of others. If jurors who knew about the protests were let to remain in the running, the assumption the judge offered was that “Occupy” was a taint that the defendant hoped they would overcome.

I don’t doubt that this slant extends well beyond Occupy, because municipal courts are notorious for being rubber stamps of a city’s citation process.

For example, in Judge Williams’ instructions to the jury, he read the sample guilty verdict first, in all its solemnity. When he read the not-guilty sample, he broke character to explain that he was not going to repeat the redundant stuff, etc, etc, and then he told the jury they shouldn’t be swayed by the order in which the two samples were read. The dramatic guilty versus the blah blah not-guilty.

Occupy harassment
Knowing about the prohibition against Steve mentioning Occupy, we thought we’d exercise our right not to be gagged. Could it matter? Should it? How preposterous that Steve was being tried and not permitted to say what he was doing. As if some precedent would be set that a defendant might convince a jury that forbidding a person shelter was a bad law.

So we came to court with t-shirts that read OCCUPY COLORADO SPRINGS. Immediately when we sat down, the judge called the lawyers up and decided we’d have to remove our shirts. We were given a chance to explain who we were, but the choice was invert the shirts, put on new ones, or leave. So we walked out.

I had an extra shirt outside with a peace symbol on it. Admittedly a politically-charged shirt, somewhat iconic locally, because it recalled an event in 2007 when peaceful protesters were forcibly removed from a city parade, one of them dragged across the pavement, an elderly woman who subsequently died of complications. So I knew I might be pushing it.

The point being to give Defendant Bass some context. He’s an activist. Alone without a voice he was a perp. With an audience of protestors he becomes a man of mystery. Every accused person in court is sized up in part based on his relations sitting behind him. Why shouldn’t Steve be allowed to show who his friends are?

As I reemerged from my car, already a police supervisor was yelling across the street to tell me I wouldn’t be allowed to wear that shirt. “Are you kidding?” I asked. I had a bag full of them, prepared for this eventuality if other spectators wanted to show solidarity. He was crossing the street to preempt my bringing the confrontation to the steps of the courthouse.

“Eric, you know the judge won’t let you wear that shirt.”

“I know no such thing. He only forbid things that say Occupy.” I knew this to be true, technically.

But they weren’t budging, they claimed a jury pool was already in the courtroom and they didn’t want to take any chances. Oddly, the officer blocking my way, beside the supervisor, was Good Old Officer Paladino who’d brutalized my friends and me in 2007. So he knew the t-shirt too well. Actually Officer Irwin Paladino’s history of abusing protesters goes back to 2003. I decided to dispense with plan B and invert my black t-shirt so I could go back in.

Did the CSPD make the smart call forbidding my t-shirt? I’ll be the first to admit the CSPD have outwitted the local social justice movement at every turn in Colorado Springs. They’re clever and competent, but they’re in the wrong. The CSPD are stepping on our rights, and overstepping their authority to do it. While it may have been superior gamesmanship, it was wrong.

Have I mentioned that they followed us everywhere? As if we were the accused in need of escort. On the officers’ radios we could hear them narrating our movements throughout the building. When Patrick went to the bathroom, an officer followed him inside and made small talk as Patrick peed. Did they think we were going to Mike Check the men’s room?

At one point we were able to see from a window on the second floor hall that CSPD were conferring with a parking enforcement officer around our cars. She was examining the license plates, getting on her phone, standing by the cars, as if waiting for something. The cars were legally parked, the meters fed, and well within the four hour limit. But who wants to argue with an impound lot? I assure you this intimidation tactic worked very well to send us out of the courthouse to rescue our vehicles.

Meanwhile, another friend came into the courthouse and overheard officers discussing whether to deny us entry again, and by what pretext, but I’m getting ahead of myself.

While watching the jury selection, it was the batch that was being dismissed in full, the court bailiff suddenly bolted from behind where we were sitting and told the judge she’d overheard us whispering about inappropriate subjects, specifically using profanity. This accusation was based on a dear Occupier’s habit of muttering colorful asides. Okay this was true, but in his defense, it was after the jury being spoiled, about the jury being spoiled, but inappropriate none-the-less and he apologized. But to tie all together in the misbehavior was a fabrication. The prosecutor tried to have us evicted, and Officer Paladino chimed in about the confrontation I instigated at the door. That’s when my friend told the judge she’d overheard CSPD officers discussing plans to keep us out, so the bailiff’s actions began to appear a little contrived.

This complaint was finally settled with the judge’s warning that one peep out of us would get us 90 days in jail for Contempt of Court. At this point we knew the pieces of duct tape we’d brought in to use to protest Steve’s gagging were definitely OUT.

Just before lunch recess I was able to clarify with Judge Williams whether the peace t-shirt I had wanted to wear was acceptable to the court. Receiving no objection from the prosecutor, the judge told me it would be okay, and then assured me he’d inform CSPD.

Returning from lunch, once again with the peace shirt, the security screeners nearly didn’t let me pass, but I barreled past with the confidence of someone who knows his rights. This time Officer Paladino came upon me at the courtroom door, swaggering right into my face assuring me he was not going to let me pass. FORTUNATELY before he could wrestle my arms behind my back, another supervisor arrived who’d heard the judge, and I was allowed to proceed. Boring story I know. But the pattern was unsettling.

Then Steve was found guilty, you could feel the city’s giddiness as they discussed sentencing. We’re only talking community service, but Colorado Springs has only one contractor for that, the odious Keep Colorado Springs Beautiful, whose hi profile task is to clean up after the CSPD Homeless Outreach Team scoops up the homeless and puts them in shelters very much in the model of correctional facilities. Steve was able to negotiate a less anti-homeless agency, and that’s the story so far.

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