Radiolab episode on jury nullification is less bothered by state abuse of power than public desperation to fight back.

It should come as no surprise that public radio’s RADIOLAB would take government’s side against the growing grassroots effort to awaken citizens to the repressed potential of jury nullification. Any attention to the subject helps inform ordinary jurors of the power they have to stand up to the regular abuses of our judicial system. The benefit is tempered of course when liberal gatekeepers lean in with theatrics to fearmonger about anarchistic challenges to law and order and security. That’s exactly what Radiolab achieved though given plenty of material with which to have taken a more honest tack. Their program “Null and Void” aired May 12 and painted nullifiers as irrational extremists, giving a pass to the judges who purge juries and break the law by having nullifiers arrested.

I had high hopes when contacted by a producer for Radiolab in March. Our federal injunction protecting Denver jury nullification outreach efforts against an order by the Second Judicial District’s Chief Judge Michael Martinez was coming to trial in April. I imagined reporters would be sympathetic to our predicted success making our injunction permanent and the similar likeliness of our prevailing on contempt charges in a hearing which was to follow. I faciliated Radiolab’s access to Mark Iannicelli, who Denver arrested in violation of our injunction, and whose dismissed charges of felony tampering continue to be appealed by our legal adversaries. Thus far it’s a simple story of hoisting a chief justice on his own petard, using the justice system against itself, in defense of the people’s historical power as jurors.

Heicklen
But Radiolab had an alternate narrative in mind. Their story would center on a jury nullification champion who they could characterize as coming off the rails, the celebrated frequent arrestee Julian Heicklen. Septegenarian Heicklen became tired of judges warning him of arrest, despite his continued legal victories. By November 2016, Heicklen issued a manifesto of sorts, asking for armed backup to preempt a judge from making good on his renewed threat to arrest him. Heicklen posted this warning online and called it to everyone’s attention. Presumably it’s what drew Radiolab’s attention. Heicklen had put it out there, hoping to spark a John Brown-esque conflagration, I’d call it a bluff, meant to curtail the court’s continued abuse of power. It’s obvious from Heicklan’s hyperbole. I attach the significant excerpt in the notes below.

Radiolab didn’t reference this tract, nor mention their and the court’s foreknowledge of it. As they interviewed Heicklen, they asked him about his cause and even brought him to tears as he explained his distress about the injustice of the system, which continues to reinforce inequity and deny jurors their prerogative to step in its way. Then Radiolab prodded Heicklen to explain what he anticipated would happen when he showed up at the courthouse in defiance of the judge’s threat. On cue, Heicklen repeated his entreaty that supporters show up with guns to enforce his right to pass out fliers and avert the judge’s illegal threat to arrest him.

Many of us might share the elderly activist’s frustration with being habitually arrested then exhonerated, each time without apparent progress being made. Radiolab’s pretend reaction was to cue ominous silence, let the pin drop, cue indignant alarm, ostracize Heicklen, cue a spontaneous meting of Radiolab minds to elect to call the cops on Heicklen lest law enforcement personnel be shot.

Radiolab didn’t call the Chief Judge Frederick J. Lauten to question the irregularity of his repeating an illegal threat. How absolutely insane for a judge, already proven to be in the wrong, to keep asserting his authority to have a citizen falsely arrested?

When Heicklen showed up to the courthouse, with a friend, both without weapons of any kind, and without the backup support of “Tyranny Fighters” he’d hoped to mobilize, Heicklen was arrested for the more serious charges involving threats.

Radiolab may or may to have exacerbated Heicklen’s arrest. They certainly took credit for it, which is the least they could do for having exploited Heicklen as their straw man extremist.

Because Radiolab makes little effort to conceal their liberal bourgeois elitism. FIJA, the Fully Informed Jury Association was founded, according to Radiolab, in a Montana “bunghole”, which they qualify, they are entitled to call Helena, the capitol of Montana, because one of the show’s producers is from Montana.

Wolverine
You might ask, what’s Wolverine got to do with this? Anyone who’s read Ariel Dorfman knows better than to bring superheroes into political discourse. Radiolab didn’t know how better to distinguish between a citizen’s right, as proscribed by the Bill of Rights, and a power, something grown from common law. Whatever, they’re wrong. Juries are guaranteed by the sixth amendment, now commonly understood to be “a jury of your peers.”

Radiolab never uses that phrase, it’s too everyman. But they do riff ad nauseum on Wolverine, who’s a superhero with superpowers, namely CLAWS, which for Radiolab described this aberrant power that jury nullification advocates are promoting. The public as beast, and mutant power threatening elitists like a werewolf’s claws. Someone adds, as a further irrelevance, that Wolverine’s real superpower is regenerative, the power to heal but nevermind. They say that, and it’s the only trivia that actually does apply to jury nullification. Radiolab autistic savants.

They recorded Mark Iannicelli in front of the Denver courthouse, that was our single consolation!

It’s no surprise that Radiolab takes the government’s side against the public’s growing inclination to “burn it down.” Radiolab got great quotes from Mark, but chose to demonize other jury nullification pamphleteers who were so frustrated with being arrested that wanted to deter future arrests with guns.

By the show’s end, the white privileged NPR broadcasters feel more comfortable with the law in the hands of “unelected, white” judges over inexpert jurors described as “twelve random jerk-offs from the street.” They’re taking about your constitutionally protected jury of your peers.

Hopefully listeners will glean the great information offered by this piece and nullify Radiolabs’s privileged condescension.

NOTES:
1. Julian Heicklen’s post of November 24:

Hi Tyranny Fighters:

Orlando Courthouse: I plan to be at the Orange County Courthouse in Orlando, FL distributing Fully Informed Jury information from 10:30 am – 1:30 pm, unless arrested earlier, on Monday-Wednesday, December 5-8, 2016. All of you are invited (urged) to join me. Bring your guns. I have requested protection from the Florida Militia, the Department of Homeland Security, and the Governor of Florida. None of them responded to my requests. Copies of the letters to the Department of Homeland Security and the governor were sent to the Clerk of the Orange County Court and to you in my previous report.

I have not received replies from any of these people. However I have received a letter from Frederick J. Lauten, Chief Judge, Ninth Judicial Cicuit of Georgia. Here is his letter:

Dear Mr. Heicklen:

A copy of your letter to Rick Scott dated October 13, 2016, was given to me. In your letter, you stateit is your intent to “distribute flyers regarding the duties of jurors and witnesses at criminal trials” at the Orange County Courthouse during th first week of December.” This letter is a reminder that such conduct continues to be proscribed on courthouse grounds under Administrative Order 2011-03 which governs expressive conduct taward summoned jurors. Enclosed is a copy of Adminiustrative Order 2011-03 for your perusal.

As you know, this Administrative Order is constituional as the Fifth District Court of appeal had “no difficulry upholding Administrative Order No. 2011–03 as reasonable, viewpoint neutral regulation….” Schmidter & Heicklen v. State, 103 So. 3d 2663,270 (Fla. 5th DCA 2012)(a copy of which is enclosed). This Court, as well as the Orange Cpounty Sheriff, qill enforce the provisions of Admionistrative Order No. 2011-03 to ensure the fair and orderly conduct of jury trials and to prevent dissruptions or interference with that basic right.

Based on the Administrative Order’s continuing validity, you may wish to reconsider your intended course of action and find alternative means in which to disseminate your message. If you intend on distributing materials to jurors, you will be issued a trespass notice and if you then remain on courthouse grounds, you could be arrested for trespass.

Sincerely,

Frederick J. Lauten

Chief Judge

____________________________________

Unfortunately there seems to be a disagreement between the Florida court and the United States Federal Court. I was one of the appellants in the Florida case. The decision was based on lies and incorrect information introduced by the state attorneys. The judges should have know this, since I carefully pointed out the errors, but they did not care. They had made up their minds before hearing the case.

Previously I was arrested 5 times for distributing this literature at the the U. S. District Court in Manhattan, NY. I was arrested and charged with jury tampering. After 17 months of trial, Judge Kimba Wood declared that distributing this literature was not jury tampering because I did not discuss any case with a juror sitting on that trial. She dismissed my case. Her decision is at: http://constitution.org/jury/pj/10-cr-01154-KMW_order.pdf This decision was published in many journals. The NY Times publication is at: http://www.nytimes.com/2012/04/20/nyregion/indictment-against-julian-heicklen-jury-nullification-advocate-is-dismissed.html

Other publications can be found at: http://search.myway.com/search/GGmain.jhtml?p2=%5EC73%5Exdm007%5ETTAB02%5Eus&ptb=304CD70B-562C-491B-9E0F-EEEA96D81532&n=782b17fd&ind=&tpr=hpsb&trs=wtt&cn=us&ln=en&si=CJSjz-LK7s4CFdgQgQodEmkJvA&brwsid=343148da-648b-46c2-8171-a9e312ac5776&searchfor=Jury%20nullification%20case%20of%20Julian%20Heicklen&st=tab

I was invited to Harvard University Law School to give a lecture on my case. Also I have been informed that my case is being taught to all students at Yale Law School. Presumably it is being taught elsewhere as well.

Currently I distribute the same flyers at both state and federal courthouses around the country. None of them arrest me. Three of these courthouses are state courthouses. They are in Fort Lauderdale, Fl; Pittsburgh, PA (last week); and Newark, NJ. The federal courthouses this year have been in Fort Lauderdale, FL; Newark, NJ; Manhattan, NY; Palo Alto, CA; Pittsburgh, PA (last week) and San Jose, CA; The state courthouses do not approach me. The federal courthouse Homeland Security officers at federal courts all threatened to arrest me until I told them to check it with a judge. They did, and none of them made an arrest.

December 5, 2016 will be a critical day in the history of the United States. I will appear at the Orange County Courthouse, 425 N. Orange Avenue, Orlando, FL and distribute “Nullification by Jury” flyers on the public sidewalk leading from the parking lot to the courthouse. I am asking all Tyranny fighters and anyone else to join me armed with loaded guns to shoot any courthouse employee or officer of the court (i.e. guards, Orlando police, State police, Sheriffs, or lawyers) that approach within 15 feet of me. One of 4 things can happen:

Neither the court personnel, the Tyranny Fighters, nor the press will appear. That will be the smoothest, but dullest, situation.

The Court officers only will appear and arrest me.

The Tyranny Fighters only will appear and protect me.

Both the Court officers and the Tyranny Fighters will appear. The gun battle for the return of a free country with a democratic republic will occur.

I am irrelevant. The future of the United States will be determined by the others or by you. Either we will continue the route to the gas chambers as described in the attached document, or we shall backtrack to a democratic republic. In either case I will have died by then.

The choice is yours—Julian

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


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

Document 28 Filed 08/25/15 USDC Colorado

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

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

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

Plaintiffs, v.

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

Defendants.

______________________________

ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION
______________________________

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

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

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

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

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

I. LEGAL STANDARD

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

II. BACKGROUND

A. Facts Alleged in the Original Complaint

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

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

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

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

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

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

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

?(Id. at 4.)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

C. Evidence Received at the Preliminary Injunction Hearing

1. Commander Lopez

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

2. Mr. Steadman

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

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

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

III. ANALYSIS

A. Article III Standing

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

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

***

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

(ECF No. 23 ¶¶ 2, 4.)

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

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

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

?B. Likelihood of Success

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

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

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

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

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

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

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

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

2. Is the Courthouse Plaza a Public Forum?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I am being prevented from defending myself in Denver Municipal Court

What I filed today in Denver Municipal Court, as my jury trial is about to begin…

DEFENDANT’S ASSERTIONS, NOTICES, OBJECTIONS AND SUPPLEMENTAL RECORD
The Defendant, Eric Patrick Brandt – sui juris and pro se, having been ordered silenced by the judge from making any record of objections, arguments, or any other statement in retaliation for challenging the validity of the judges authority and needing to ensure sufficient record of defendant’s concerns and objections, do hereby enter into the record numerous documents anticipated will be essential should he need to appeal a conviction following trial.

Broadly, the Defendant broadly alleges the judicial bias is so intense that a fair trial is not just unlikely but in fact unintended. He has been treated to conditions and rulings uniquely applied where quick and inexpensive convictions with immediate long jail sentencing is the justice the City desires above the Defendant’s rights.

Besides vindictive actions of police, prosecution and the judge, the Defendant continues to suffer from counsel that is unresponsive, unzealous, and ineffective. The entire situation is a stream of apathy, incompetence, corruption and conspiracy bearing no resemblance to the liberty and justice of a free people protected by constitution.

This is, sadly, a concerted effort to silence a prominent, harsh, and very tenacious critic of government abuses against the people. The Defendant objects to the entire proceedings of the cases listed above and preserves for appellate review any issue, currently known or unknown, which might exist or be thought to exist whether raised specifically during the proceedings or not. The Defendant expressly preserves for appellate review the issues raised in this supplemental record.

[The 2015 Protest]
This case is one of about a dozen cases brought against this defendant and others stemming from a group of activists two-month long non-stop 24/7 protest against police brutality, unjust prosecutions and ordinances and practices abusive to the homeless as well as advocating for jury nullification and human rights. This action was in direct response to the felony arrests of the defendant and one Mark Iannicelli alleging the distribution of jury nullification literature constituted jury tampering which resulted in a federal civil rights lawsuit and the issuance by the federal court of an injunction barring Denver Police from arresting those who would share jury nullification messages and a finding that the courthouse plaza was a traditional free speech zone 24/7.

Denver Police responded in massive forces immediately within hours the first day activists returned to the plaza confiscating materials and property and issuing arrests for practically anything BUT jury nullification.

During the next 56 days, the City evolved ever novel tactics clearly attempting to drive the activists away from the courthouse. Responses with militarized riot police numbering sometimes near 100 regularly stormed the group any hour of the day or night.

[Arrests]
There were arrests for Obstructing Public Passageways for the existence of small tents, carts, and various other personal property and property was booked into evidence, taken for storage, or immediately discarded as trash almost every day.

DPD conspired with the City Attorney’s office and Public Works, at a minimum, first attempting to criminalize activists having any property, claiming obstruction of a public passage. Immediately the police misapplied codes regarding ENCUMBRANCES and issued almost daily unlawful orders, making arrests for failure to obey those unlawful orders. Specifically, the City asserted a criminal consequence under color of a complex civil question expressly under the authority of Public Works; Denver Police in fact have no authority regarding encumbrances.

The City Attorney’s office ordered signs be erected asserting 49-246 D.R.M.C. criminally applied to any thing what so ever on the plaza. This unlawfully legislated policy by the judicial and executive bodies defied the separation of powers and the activists defied their unlawful policy despite repeated arrests for nearly 30 days.

Then the City Attorney’s Office called Public Works and ordered 36 signs to be erected at various city building plazas instituting an overnight curfew subject to arrest for trespassing which was successful, immediately forcing the activists to move across the street at night instantly quashing the effectiveness of the activists speech to almost nothing; the group could not recover from this curfew action and dwindled over three weeks until the Police delivered a fatal blow confiscating everything the activists owned during a cold rain storm.

Again circumventing the safeguards of the separation of powers, the very entities being most directly impacted by the activists message – the city attorneys for unjust prosecutions and jury nullification and the police for abuses, beatings, killings, and other misconduct – took deliberate actions and conspired to establish a city-wide curfew policy without the approval of the legislative body, lacking any significant and legitimate government interest, and in direct retaliation for protected speech with the intent and indeed result of silencing that voice.

[The Prosecutions]
In excess of 20 criminal prosecutions followed in the wake of that intense 56 days. The vast majority of defendants either prevailed, appealed, or received sentences much lighter than prosecution desired. This defendant was subjected to the most cases filed and prosecutors were not achieving their goals with him either.

Furthermore, defendants enjoyed large numbers of activists showing court support which effectively brought anti-police and anti-prosecution messages directly into the courthouse. Discovery issues, overloaded ADC, witness issues, and unexpected family death with ADC lead to the Defendant’s cases being repeatedly continued out for over a year.

During this time the Defendant aggressively investigated the conspiracy between the various departments and the unlawful institution of the encumbrance and curfew policies. The City was tight-lipped about the subjects and concrete evidence eluded discovery. Scant pieces of evidence painted a circumstantial picture but the evidence was insufficient to compel the Courts to grant subpoenas or permit use at trial to show motive and attack credibility. Despite nexus of this concerted plan through almost every case, each case was handled as it’s own unique package.

[A Special Judge]
Ultimately this defendant was assigned a hand-picked judge – Frederick Rodgers – and assigned entirely to his own courtroom – the unused 4B. The details of the assignment are unclear except that it appears Judge Teresa Spahn likely requested the special treatment, and Rodgers has made comments on the record indicating he was assigned to move the defendant’s cases along and that it was desired to get these cases out of the general sessions dockets. The Defendant alleges this was a deliberate act to further isolate the activists from the people in the general sessions corridor and to a courtroom that was essentially vacant.

Rodgers issued a very bizarre order concerning conduct on August 24th, 2016 which was unknown to the Defendant until the night before his September 7th trial setting. Attached with this filing – because oddly enough the clerks cannot find the order filed in any of the defendant’s case files but furnished a copy from an email they found – the strange order, which published the Defendant’s other acts as well as his associates acts along with a claim these associates create serious disruptions, was published loud and clear to the prospective jurors waiting to enter the courtroom and to the actual jurors during breaks.

It is undoubtedly this 3-page document directed against alleged disruptions coupled with the constant presence of up to a dozen armed sheriff’s deputies throughout the proceedings that caused the jurors in that trial to ask the court to assign extra law enforcement to escort them to their vehicles. It was this first Rodgers trial where the Defense council withdrew for ineffectiveness after being unable to meet with the Defendant on the case or go over discovery, then the Defendant was denied new council, forced to proceed pro se, denied discovery, and even denied the right to subpoena witnesses essential to his defense. Withdrawn Council was ordered under his express objections to remain as assistance of council – a claim the judge denied in another strange order entered after the trial.

The Court then denied the entry of evidence clearly defining the terms ENCUMBRANCE and OBSTRUCTION which was essential to the police were unlawfully applying a criminal penalty to a civil code.

The inevitable conclusion of course was a conviction rendered by six terrified jurors followed by immediate sentencing and remand to custody. The remand was thwarted when a very clearly irritated judge was forced to research and agree with the Defendant that a stay of execution was MANDATORY under Rule 37f and a very clearly irritated judge.

[The Missing Oath]
From the very beginning, the Defendant objected to Rodger’s authority and has repeatedly challenged his jurisdiction and demanded a showing in the record he was lawfully empowered to preside over his cases. The defendant was already aware of issues Rodgers had with his qualification. Rodgers was already on a watch list of bad judges. As such, the Defendant had already attempted to obtain a copy of his Oath of Office from the Clerk and Recorder’s office.

Constitution, statute and code obligate a Denver Municipal Court Judge SUBSCRIBE AND FILE WITH THE CLERK AND RECORDER’S OFFICE AN OATH OF OFFICE BEFORE ACTING AS A JUDGE. The consequences for neglecting to accomplish this requirement is that the person has no authority, their office is IPSO FACTO VACANT and all findings, Judgments, orders etc are NULL AND VOID.

Frederick Barker Rodgers did not file an oath of office as required and there have been numerous attempts by the defendant and others in the past year to obtain it. The De Jure Peoples Grand Jury indicted Rodgers for oath problems while he was in Gilpin County and complete copies of that indictment were entered into the record on all three of my then pending cases. I advised Rodgers in court to put his house in order before peering into mine.

I then demanded records showing his appointment as a retired judge. The presiding judge’s clerk responded with a letter stating there are no such records and she offered a copy of his oath of office – signatures redacted for privacy. That oath of office was dated July 27, 2011! I demanded a non-redacted oath and demanded it to be the one filed with the clerk and recorder’s office as required by law. She responded with a redacted signature copy of a copy copy showing a received stamp dated 2015DEC02!

In court next, Rodgers proudly displayed that original oath of office in a gold frame on the bench. It bears no received stamp. At the same time Stephen Nalty obtained a certified copy of the oath from the clerk and recorders office. This time the oath existed where it had not several times before. This oath copy was not redacted and most disturbingly did not bear the received stamp which was passed off to me on the copy claimed to have been filed. Clearly hanky panky is going on.

To date the City has failed to show Rodgers has any lawful appointment. He is 76 years old, has no contract, has no valid oath of office, has no official bond, and he was assigned to my cases “to move things along” which I allege means get me convicted and in jail.

OBJECTION TO ORDER OF SILENCE
After filing his indictment into the record, Rodgers issued an order of silence and removed me to a secret room when I objected. This is in retaliation for the indictment and oath demand as I have never created a disruption before in his court. He also beefed up security and has me under armed guard of 4 to 6 deputies all the time. I object to not being allowed to address the court and I object to being treated like a criminal under guard.

NOTICE OF INEFFECTIVE LEGAL COUNCIL
My attorney has had a constant history of not responding to me and not doing the research I require in my case. The email record is repeat with my objections to her lack of commitment to my cases.

OBJECTION TO UNIQUE / UNEQUAL ENVIRONMENT
I was removed from the 3rd floor and given my own special courtroom with my own special (imposter) judge because Judge Theresa Spahn was mad at me for my free speech critical of her performance WHILE OUTSIDE ANY CASES SHE WAS CONDUCTING. She was mad because our group is helpful to other defendants and our assistance to them has resulted in them achieving success in their cases. The city is upset they are losing our cases left and right and they want to separate us from the masses and get us convicted. Ho better than Rodgers – who doesn’t let good law and reason stand in the way of lousy rulings and judgments.

NOTICE OF PRESERVATION OF APPEAL ISSUES
Because I have been silenced and my lawyer is ineffective I hereby reserve the right to raise ANY issue on appeal regardless of it having been preserved on the record.

OBJECTION TO DENIAL OF NEW EVIDENCE
There is new evidence revealed which demonstrates without a doubt there was conspiracy to silence our protest through the misapplication of a civil code. That evidence is being denied despite clearly speaking to prosecutorial motives and credibility of officer’s statements.

CHALLENGE TO ORDINANCE CONSTITUTIONALITY
My lawyer failed to challenge the pedestrian in a roadway ordinance as overbroad as I demanded. I object and preserve for appeal.

ASSERTION CONDUCT PROTECTED FIRST AMENDMENT EXPRESSION
My lawyer failed to file a motion to dismiss as protected expression my actions leading to these charges. I object and preserve for appeal.

CHALLENGE TO JUDICIAL AUTHORITY OF FREDERICK BARKER RODGERS
Rodgers has REFUSED to enter into the record any authority he has to preside over my cases. He is essentially an unauthorized permanent judge with no contract, a 6-year old expired oath of office (which was never properly filed anyway) who is apparently exempt from the 72 year mandatory retirement age and exempt from the people having opportunity to vote him out of office. He has absolutely no authority and apparently perfect immunity to do what ever the city wants him to do. I REJECT FREDERICK RODGERS AND EVERY THIING HE HAS DONE OR WILL DO IS NULL AND VOID. HE IS OPERATING IN AN IPSO FACTO VACANT OFFICE. I OBJECT AND PRESERVE FOR APPEAL.

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


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.

plaza-handcuffs-timothy-campbell-nmt

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

Mark Iannicelli Denver Revolutionary

Mark Iannicelli
The heart and soul of any revolution is found in the people who find the courage to stand up to the power of the state and cry out for justice. Such a man is Mark Iannicelli. Mark’s crime is to quietly and consistently inform the citizens of their rights. For this the state have brought the full force and power of their kangaroo courts with the aid of the Denver puppet police. Mark must be silenced, the status quo must be maintained.

Mark has been at the center of this revolution, a genteel giant who has faced the wrath of the courts and police with courage. Now comes May 31, 2016 when once again the state with all of the taxpayers resources will prosecute in their efforts to silence him with jail. The trial will be held in the Lindsay-Flanigan Courthouse.
Mark’s champion, a 90 pound woman, with the heart and courage of a lion, defense attorney, Katayoun Donnelly, will face off with the state in his defense.

I can think of no greater gesture to Mark, then for each of us to attend Mark’s trial and stand in solitary to say; We will not be silenced.

Judges need to see we are watching

Today 5/9/16, a small defense attorney, Katayoun Donnelly, with a powerful voice, stood up for Mark Iannicelli, an activist. She faced off against Judge Theresa Spahn in courtroom 3F of Denver’s municipal court.

Many of us have been crushed by the power and weight of the State when we become a defendant in their Kangaroo Kourts, and often we have faced that power with a attorney who we at times thought was working for the other side.

Today was much different, as I sat watching this little woman with a booming voice defend Mark. She was forceful and courageous with a strong spirit for justice. She was not intimidated. And I don’t believe the words “Back down” is in her vocabulary.

When May 31, 2016 at 10:00 AM rolls around, I’ll be there in courtroom 3F.

As I sat there watching it unfold, I was reminded of a time when 43 people filled a courtroom on my behalf, and the difference it made in my case.

I believe that it is inherent of us who have sat there as a defendant, to give back to someone like Mark, who has given so much of his time on social issues, and support such a worthy attorney that is rare and hard to find.

It is my hope that you will be there with us as this small woman with the powerful voice for justice cries out on Mark’s behalf. It would be wonderful to fill every seat in that courtroom and send a message to this judge “We Are Watching.”

There will be fireworks, you don’t want to miss it.

Third Guy Fawkes Day case dismissed as Denver continues to arrest marchers

DENVER, COLO.- Last night Denver police mobbed a demonstration protesting the officer-involved execution of unarmed suspect Dion Avila Damon in front of his wife and child. At the end of Tuesday’s march, Robin Hamm and Nathan Stickel were arrested for obstruction, failure to obey, and destruction of private property. They were still in custody when fellow activist, Joaquin dela Torre-McNeil, arrested at an identically uneventful march last November, showed up for his court date today only to hear the city motion to dismiss his case. Joaquin was charged with interference and resisting arrest, both accusations without merit. This morning the city admitted as much.

This marks the third of nine arrests made November 5, 2015 which have been dismissed. Peter Lewis, 31, was snagged as an obstructee, then detained on a possessions charge until all charges were dropped November 20. Brandon Deaton, 24, was charged with obstruction. He was represented by attorney Frank Ingham and his case was dismissed March 23.

Joaquin’s dismissal bodes well for the remaining six cases, which are equally unfounded.

Four are charged with interference and obstruction, plus the odd sundry misdemeanor: David Croisant, 29, is represented by attorney Birk Baumgardner; Selayna Bechtold, 19, is represented by Venkatesh Iyer; Mark Iannicelli, 58, is represented by Katayoun Donnelly; and Justin Berding, 25, is represented by Cheri Deatsch.

Two are charged with felonies: Damian Stasek, 25, represented by attorney Lon Heymann; and Jake Pauly, 25. Both are charged with assault of a peace officer, which happens whenever physical contact is not initiated by the police, although in both cases this was a technicality.

Bumping into police officers is going to happen if they get in your way, especially when they have no right to get in your way, given that your first amendment right was the reason they were supposed to stay out of your way. If there’s no obstruction, there’s no interference, and your collision with their obstruction of your civil liberties is not assault.

The November 5th march was uneventful except for the arrests. There was neither property damaged, traffic impeded, nor lives endangered. The police acted purely to intimidate and squelch protest. They succeeded but now the courts are not supporting their actions. As charges fall, the accusations lose veracity. Certainly the crowd’s anger at their demonstration being curtailed with such heavy-handedness is being shown to having been legitimate. You can’t arrest people for objecting to your unlawful conduct.

But DPD hasn’t been taught that lesson yet. Last night’s march for DPD victim Dion Avila Damon was equally harmless. Arrests were made for the usual show of force. Two activists remain in custody. The bureaucratic delay is now excused as a 24-hour processing requirement for fingerprints to clear the system. Only then will bonds be calculated and allowed to be posted. Detainees will then wait a minimum of five further hours to be released. When last night’s charges are dismissed, Denver will have to account for two more wrongful imprisonment cases.

Denver courthouse arrest violated both Chief Justice Order and CJO injunction!


DENVER, COLORADO- The good news is that Denver has dropped the recent charges against Mark Iannicelli for disturbing the peace and violating a court order. The even better news is that the city had to release the probable cause statement which warranted Mark’s arrest. It turns out Mark was arrested for “distributing literature which is a prohibited activity on any walkway to the Courthouse.” Further, “The court order was posted at all public entrances to the Lindsey-Flanigan Courthouse which was where the incident took place.” While order CJO-15-1 is indeed posted at the door, it doesn’t ban the distribution of literature. Beside which, there’s a federal injunction stopping Denver from continuing to make these arrests. True, the city’s appeal is on appeal, but the injunction stands. Hold on to your hat because there’s a fair amount of attention being paid to this matter, helicopter fly-bys and all. Failure to know the law, or as they say, not getting the memo, is no excuse, as we all know, especially for cops.

Mark Iannicelli: Denver’s Gentle Giant

Mark Iannicelli and the Fully Informed Jury Association
Who Doesn’t Love a Good Fairytale? The Story of Mark Iannicelli Denver’s Gentle Giant. Activist Mark Iannicelli was arrested in front of the Lindsey Flanigan Courthouse for distributing jury nullification literature. The nature of his crime was simply to inform citizens of their rights as a juror. Mark is a soft spoken gentle giant, always respectful. He can often be found in front of the courthouse or the Tattered Cover book store where he helps with feeding the homeless on Fridays.

Why was Mark targeted for arrest by the Sheriffs deputies ? Was Mark such a threat to society that arrest was warranted?

A non violent soft-spoken man passing out information concerning a citizens’ rights is considered such a danger that the waste of taxpayers’ money and police resources is the only solution?

And so the Fairytale begins, a man peacefully passing out small folders with innocent words, is seen as a threat to a system that operates in secrete behind closed doors, a system that would prefer the citizens remain ignorant of their rights.

Can a government that never miss’s an opportunity to tell the people they are “the land of the free and the home of the brave.” Be truly free when they tremble in such fear of information.

And the very sad part of this fairytale is that Mark was granted a federal injunction against arrest by the Federal Court in Denver for the act of giving information to the public at the courthouse.

BREAKING: Denver jury nullification advocate Mark Iannicelli arrested again


DENVER, COLORADO- Activists distributing jury nullification literature in front of the Lindsey Flanigan Courthouse were once again arrested this morning. Sheriffs deputies arrested Mark Iannicelli and Eric Brandt, the pair originally charged last year with jury tampering, based this time on an accusation of harassing people entering the courthouse. Brandt was detained and eventually let go, but Iannicelli was taken into custody after a complainant fingered him for harassment. Once Iannicelli’s lawyer was reached, a timely call to the office of the city attorney freed Iannicelli within the hour.

Mark Iannicelli emerged from the Van Cise Simonet Dentention Facility just before noon with a citation charging him with Disturbing the Peace and “Violation of Court Orders” whatever they think that means. The court order, a federal injunction to be precise, orders the city and county of Denver NOT TO ARREST Iannicelli, Brandt, or anyone, for distributing JN literature in the Lindsey Flanigan plaza.

Last August, Iannicelli and Brandt were charged with seven counts of jury tampering for exactly this activity. In January the charges were dismissed but DA Mitch Morrissey is appealing. Meanwhile the federal injunction will be proceding to trial next month.

Iannicelli and fellow activists with Occupy Denver have been handing out JN fliers every weekday since his arrest last year. The stint begins before 7:30am, while the public is kept waiting at the locked courthouse doors. Then defendents, jurors, lawyers and whatnot arrive in waves until 9:30am. Between those times, activists stand near the front doors quietly passing out fliers and engaging in conversation with whoever inquires.

Mark is the friendliest of all the “lonely pamphleteers” and his being accused of being anything other than friendly will be easily disproved by the security cameras and security personel keeping a close watch on the disputed activity outside.

Mark’s arrest is the twentieth since OD’s jury nullification campaign began, not counting two citations for having an OD leader caught off leash.

Even as Denver loses in court battles the city doubles down. It’s a bitch for civil liberties but the ultimate outcome will be all the more funny.

Monk Brown set up a tent on the plaza. It took a SWAT team to take it down. Now a Denver jury took them down.

Adrian Monk Brown
DENVER, COLORADO- Homeless Adrian “Monk” Brown was accused of “obstruction” for sitting in a protest tent last August 26th on the plaza of the Lindsey Flanigan Courthouse. Monk was also charged with “interference” with the riot police sent to evict him. A subsequent charge of “failure to obey” was added by prosecutors pressuring Monk to take a plea. After a two day trial which ended Wednesday, a Denver County jury found Monk Brown NOT GUILTY of either obstruction or failure to obey. Owing maybe to a crime scene video that highlighted the brutal irreverance shown by protesters toward DPD officers, the jury did convict Monk of interference. Except now it wasn’t a crime scene. Monk’s attorney Melissa Trollinger Annis is challenging the inconsistent verdict because it’s unlikely interference will stick without the police having a cause for arrest. Monk wasn’t obstructing.

This verdict marks the second time Monk has beaten the obstruction charge. The first was November 17 when Monk was acquitted of erecting a tent in the plaza on August 28, two days after the recent case. Monk put up that tent the moment he got out of jail for his August 26 arrest. He was fully acquitted in that case. Monk’s subsequent arrests in the plaza on September 18 and September 24 were dismissed and dropped, respectively.

Monk’s arrests numbered among the 19 arrests and two citations issued against the plaza demonstrators during a full time Occupy Denver protest which ran from August 26 to October 21, 2015, when DPD effected a final eviction and activist resources became terminally waterlogged. Just as the activists have now become tied up in court, Denver police headquarters are now overburdened with a hoard of tents, tarps, chairs, umbrellas, banners, and drums which must be kept in evidence.

The plaza protest was launched after the arrest of Mark Iannicelli and Eric Brandt for distributing jury nullification fliers at the Lindsey Flanigan Courthouse. Activists with Occupy Denver won a federal court injunction to prevent such further arrests. With an ongoing legal battle stipulating the plaza as not just a traditional free speech zone, but a designated free speech zone, the city’s backdoor methods of restricting First Amendment Rights could be isolated and exposed.

For too long, the city of Denver has been able to curb free speech through backdoor charges: Obstruction, disturbing the peace, jaywalking, and TRESPASS. Activists are even charged with resisting arrest, when subjects are actively objecting to their unlawful arrest. The days of halting political demonstrations by having riot cops enforce city ordinances such as obstruction may be drawing to a close.

Denver activists seek court injunction to stop jury nullification arrests


DENVER, COLORADO- Civil rights attorney David Lane will address Federal District Court on Monday seeking an injunction to stop the City of Denver from arresting activists distributing fliers to inform fellow citizens about the legal concept of Jury Nullification. UPDATE: An injunction hearing has been scheduled for 2PM FRIDAY, August 21, at the Araaj Federal Courthouse.

BREAKING: Denver DA Mitch Morrissey to be subpoenaed in jury tampering case of Mark Iannicelli and Eric Brandt!


DENVER, COLORADO- Denver Judge Johnny C. Barajas wouldn’t produce Eric Brandt, who’s still being held in county jail without bond, he wouldn’t commit to joining Brandt’s case with that of Mark Iannicelli, he wouldn’t commit to granting a preliminary hearing, but he has allowed Attorneys David Lane and Lonn Heymann to subpoena all complainants, including Denver District Attorney Mitchell R. Morrissey!
 
The target of a recent recall effort, the Denver DA won’t indict killer cops or sheriff’s deputies, but Morrissey and his cronies in the DPD will have to show up August 31 at 8:30am to account for the abridged First Amendment rights of Messrs Brandt and Ianicelli.

Denver’s 2015 Punch and Judy Show

Come One, Come All!
Admission: FREE FREE FREE!
Where: Denver Municipal Court
When: Tues, Aug 11, 2015, 1PM.
Featuring MARK IANNICELLI in his premiere performance and David Lane as his big stick.
 
As the drama unfolds, Mark will be charge with seven felony counts of jury tampering for passing free information to the citizen of Denver. David Lane, a seasoned defender of human rights, will protect Mark from the Judge and District Attorney, played by two Kangaroos. You won’t want to miss the final outcome of this grand performance by the city of Denver.

Clarence Darrow and Jury Nullification

Clarence Darrow’s closing arguments in Leopold & Loeb resonates today in the Denver Urban Camping Ban and Jury Nullification Trials.
 
“You can trace it all down through the history of man. You can trace the burnings, the boilings, the drawings and quarterings, the hangings of people in England at the crossroads, carving them up and hanging them, as examples for all to see.”

Darrow continued:

“We can come down to the last century when nearly two hundred crimes were punishable by death, and by death in every form; not only hanging that was too humane, but burning, boiling, cutting into pieces, torturing in all conceivable forms.

I know that every step in the progress of humanity has been met and opposed by prosecutors, and many times by courts. I know that when poaching and petty larceny was punishable by death in England, juries refused to convict. They were too humane to obey the law; and judges refused to sentence. I know that when the delusion of witchcraft was spreading over Europe, claiming its victims by the millions, many a judge so shaped his cases that no crime of witchcraft could be punished in his court. I know that these trials were stopped in America because juries would no longer convict.

Gradually the laws have been changed and modified, and men look back with horror at the hangings and the killings of the past. What did they find in England? That as they got rid of these barbarous statutes, crimes decreased instead of increased; as the criminal law was modified and humanized, there was less crime instead of more. I will undertake to say, Your Honor, that you can scarcely find a single book written by a student, and I will include all the works on criminology of the past, that has not made the statement over and over again that as the penal code was made less terrible, crimes grew less frequent”.

Now in the year 2015, in Denver, Colorado we arrest a man for doing nothing more than informing the citizen of their rights, committing the crime of passing out a pamphlet explaining their rights as a juror. Mark Lanicelli was arrested and jailed for this crime.

The police arrest a man, woman or child, that have already suffered the humiliation of being homeless for the crime of falling asleep in public, something that every human must do. They call this law the “Camping Ban”. Along with being homeless, they are thrown into jail and given a criminal record.

The above two examples are crimes committed by the city of Denver against the citizens.

These crimes will end only when the people of Denver find their voice and say no to the prosecutors with Jury Nullification.

Occupier Mark Iannicelli charged with jury tampering for distributing fliers about jury nullification at courthouse

Mark Iannicelli of Occupy DenverDENVER, COLORADO- Soft-spoken activist Mark Iannicelli sits in the Denver County Detention Center tonight, wrongfully arrested for passing out fliers in front of the Lindsey-Flanigan Courthouse on Monday. Though he and an accomplice had no personal interest in any trial at the municipal courthouse, Mark was charged with JURY TAMPERING, a felony with a minimum bond of $5,000. Mark was disseminating information about JURY NULLIFICATION, technically “know your rights” material, to people entering the courthouse. Jury nullification is an unpopular legal concept with a judicial system meant to crank out fines and jail sentences, but the US Supreme Court has affirmed the right of juries to think beyond their allotted jury instructions and the right of citizens to spread the word about that super-judicial discretion. As Mark was being handcuffed, a passing attorney tried to intervene. Asked if he was Mark’s counsel, the lawyer volunteered that he very well might be. Video of the arrest has already been filed with appropriate law offices and as a result Mark has representation. Though he was arrested before noon, as of 11:30pm Mark’s fingerprints have not yet “cleared”, until which time a bond cannot be posted. Meanwhile Mark’s inmate status has changed to “no bond allowed.” If these capricious abuses of authority persist beyond 7am, Mark will appear before a judge at 10am Tuesday.