City plan to snuff socialist infiltration hearing blows up in courtroom’s face

El Paso County undercovers
COLORADO SPRINGS, COLORADO– If you attended today’s evidentiary hearing about the police infiltration of a local student group, you are no doubt left wondering what happened. Where were the defendants and why was the judge so angry? The outcome was not what either side wanted, but still it was a huge false step for the city. The defense was not provided the police witnesses it requested, but the prosecution was prevented from quashing those subpoenas outright. As a truant co-defendant, I had a unique vantage point on today’s anticlimax and I apologize I was unable to explain it in person.

Today’s hearing, it turns out, was supposed to exclude the defendants. The review of evidence relating to the police infiltration operation was intended to happen outside of public view. The lawyers signed the setting slips, not the defendants, who were kept uninformed of the October 17 hearing. The judge had specified lawyers only, to keep the details and identities of the undercovers confidential.

Can courts exclude defendants from their own hearings? Not really, but anyway.

It turns out the judge wanted privacy because she had no intention of conducting the hearing at all. Without an audience to offend, this judge planned to summarily quash the defense motions to make police administrators testify and that would be the end of it. Objections be damned, let the lawyers take it up on appeal. Push this hot potato off a year or two.

However, through documents obtained directly from the courthouse, the defendants did learn about the hearing. So the defendants made plans to attend the hearing regardless of a judge’s preferences, and they publicized the event for what it promised to be, a scandalous exposé of CSPD intelligence overreach. Subpoenaed to testify were El Paso County Sheriff Bill Elder, Colorado Springs Police Chief Peter Carey, Lieutenant Mark Comte of the CSPD Intelligence Divison, and Sergeant Clayton Blackwell, among others.

Colorado Springs prosecutors did not inform the defense team that they had no intention of honoring those subpoenas. Instead they planned to motion to quash the subpoenas and truncate the hearing. The city attorneys did not file those motions beforehand nor give the defense any indication they were contesting the subpoenas.

I can only surmise that the city prosecutors began receiving calls from the media about the anticipated testimony of the sheriff and chief of police, because it wasn’t until late morning on the day of the hearing, after our press release went out, that the city emailed the defense team to say that “Sgt Blackwell is on vacation.” Blackwell wouldn’t be attending the hearing, they said, and by the way, his was the only subpoena delivered.

To which I imagine our legal team said: WTF?! Now we needed a hearing to learn why the city thought it could unilaterally decide to whom to deliver our subpoenas.

It’s one thing to disrespect the rights of defendants. Our municipal court does it ALL THE TIME. Everyday, sadly. In fact, it’s done it repeatedly to the very defendants in this case, before we got lawyers. But it’s quite another thing to trample on our rights when a civil rights attorney is involved.

If Blackwell was on vacation, the case needed a continuance. And if subpoenas were going to be quashed, we needed a motions hearing. Oddly, the judge was demanding our defense attorneys show up in person. To arrange a continuance?! Riiiiiight.

Our lawyers quickly let us know there was to be no hearing. Since the defendants weren’t supposed to attend today’s hearing anyway, we deemed it prudent not to attend the prosecution’s switcheroo. Without defendants, whatever the prosecution planned couldn’t proceed. Meanwhile the defense lawyers weren’t going to abide a Podunk Springs Judge Roy Bean throwing the law book out the window. If subpoenas aren’t going to be honored, you have to present the legal basis beforehand. Them’s the rules, Hayseeds.

So the courtroom audience, including journalists and media crews who had to leave their television cameras outside, were left to witness a Colorado Springs judge fuming at being out-thunk. The defense lawyers weren’t there to let her quash away with her gavel, without regard for the Colorado Rules of Proceedure, and the judge’s original scheme excluded the defendants so as a result there were no defendants present to accept her rulings. The judge could do nothing but seethe and lecture the audience about big lawyers disrespecting municipal courts. Nevermind that our courts are corrupt mechanisms that trample rights for breakfast. (The ACLU recently released a report damning Alamosa’s city courts: Justice Derailed. Believe me, the identical abuses of power occur in Colorado Springs.)

Nevermind too, what today’s court hearing was supposed to be about: Outrageous Conduct on the part of CSPD and EPCSO, and violations of the Code of Federal Conduct. Today’s defendants were arrested on March 26, 2017, but not for walking in the street. The socialists were arrested because the Intelligence Division wanted to “arrest” an undercover officer, maybe two, in order to give them deeper cover as they infiltrated a student-led group just formed in Colorado Springs. The CSPD body-cam video released to the defendants already proves this. We wanted the decision makers responsible to explain it.

Instead of a comedy of errors spotlighting local law enforcement ignoring the people’s Bill of Rights, the courtroom audience today saw another facet of our corrupt judicial system. They witnessed a judge prepared to ride roughshod over further rights that protect citizens from authoritarian zeal. You may not care how police abuse “socialists” but the whims of a municipal court despot affect everyone caught in their dragnet, be it a ticket or a zoning dispute. Even with an expensive lawyer, you are powerless to object when a judge pretends there are no rules.

What the judge saw today was a courtroom filled with supporters of the defendants and a media interested in their story. She saw that she and her gavel are not going to make this story go away.

White mass shooters are not terrorists. They present no pretext for retaliation. Remember, the Global War On Terror?

Stephen Paddock sniper nest in Mandalay Bay Hotel Las Vegas
Las Vegas mass shooter Stephen Paddock is not a terrorist. That’s not because you or anyone is a racist for thinking only darker-skinned Jihadists are terrorists. “Terrorism” is a bureaucratic contrivance, as in, The Global War On Terror. It means nothing, but apparently provides legal justification to enforce American global hegemony with military strikes on “supporters of terror”. Of course it doesn’t. It’s artifice. Naturally the public wants to see the charge of terrorism applied equitably to all mass murderers who terrorize the public. Like they want to see police brutality applied liberally to white crime suspects not just black. Like they want to see children charged as adults when the media is fomenting their anger.

Terrorism is a semantic contrivance. It’s how we denounce US adversaries and their desperate means to counter our asymetric military superiority. Our bombs don’t terrorize, their hand delivered bombs do. The Nazis accused resistance fighters of being terrorists.

“Hate Speech” is another contrivance. Priests used to be allowed to burn parishoners for it, priests called it blasphemy. Secular indignants avoid calling it heresy. The Enlightenment was supposed to mark the west’s transcendance of the fear of heretics. Hate Speech is how Americans dismiss unsavory opinion. Fortunately the courts have struck down hate speech laws for what they always were, violations of the First Amendment, but the concept is still a litmus test by which the public wants to pin the ears of irritating speakers.

Likewise the term “genocide”. THAT’S a crime only other nations commit. And only when retaliation suits our agenda. After Rwanda, the UN contrived that charges of genocide mandate international action. As a result, genocide doesn’t mean genocide unless somebody wants to invade. Oil interests are currently eyeing Burma.

Terrorism, hate speech, and genocide are real things, but they are real offenses of which our government is far more culpable than you, or the random deviant individual white male mass shooter.

Does it matter then, if individuals are accused of terrorism when the state is not? I’ll offer you two examples of other contrivances. Conspiracy and racketeering. Both are heavily trafficked by our corporations and government, but easily applied to people whose enterprise authorites want to deem criminal. I just witnessed the trial of two legal reform activists, charged and convicted of both counts. When the law applies to you and not to those enforcing the law, it’s time to stop cheerleading for the prosecution.

Stephen Paddock terrorized, but who do you really fear now that he’s dead –another random white man with too many guns? I’ll wager you’re afraid of the too many guns, their too wide availability, or the purveyors, who keep assault rifles legal in the US to obfuscate the mass manufacture of guns for international arms trafficking. The weapons industry terrorizes.

Judged by intent, the common wife beater is a terrorist. No question, but see? The distinction is unhelpful. How about we call Stephen Paddock a SNIPER. He was that. The Route 91 concert venue was his paramilitary free-fire zone. Paddock may now hold the world record for most American citizens sniped, but his feat pales as uniformed North American white male snipers go.

Why should you attend the Denver Nalty-Byfield ENTERPRISE TRIAL?

Why support the “We The People” public-oath sticklers who the state is prosecuting like a criminal enterprise? A few reasons: Solidarity. Because as hardheaded as they might be, defendants Stephen Nalty and Steve Byfield are still JUDICIAL REFORM ACTIVISTS. Sense of fair play. Half the courtroom gallery is filled with Colorado Attorney General staffers and FBI special agents chumming it up with jurors and briefing their THREE FBI UNDERCOVER WITNESSES while the defendant pariah side of the audience is warned by the judge that even a whisper will result in ejection. Thrills. Where else are you going to see this many federal agents pushing their weight around, barking at you in the hallways, swaggering gleefully about how much smarter they are than the defendants? Pathos. Come watch the Assistant Fucking Colorado Attorney General, Robert Shapiro himself, lead a team of prosecutors against the unrepresented defendants, watch Shapiro belittle them, lecture them, trivialize their difficulties defending themselves in jail, and pretend they can review “tens of thousands” of pages of evidence and “hours and hours” of undercover surveillance tapes in a single day. Because you can make a difference. Come push the FBI-guys’ buttons. Come witness and document the abuses of the overbearing prosecution team. Come lend public pressure on the judge, whose conscience is already bothering him about how unfair this sham trial has become.

Liens
You don’t have to agree with how Nalty and Byfield went about trying to reform the judicial system, but aren’t they mostly right? Judges ARE corrupt. Local officials ARE NOT accountable to the people. Law enforcement WON’T pursue charges of their own corruption and the media certainly won’t side with the reformers. When Nalty, Byfield and Co, served commercial liens valued at billions and trillions of dollar against officials who hadn’t filed oaths of office, it was an effort of last resort to get someone’s attention. No one was thinking, hey, maybe this eleven-figure dollar demand will slip through the cracks and the billions will be ours!

Each lien was calculated to represent the sum defrauded from and owed to the American People. Prosecutors can tap these defendants for conspiring and racketeering and extorting and attempting to influence public officials, but they can’t say the defendants aimed to obscond with one single penny. Throwing three undercover infiltrators at a twenty member judicial reform group, putting thousands of manpower hours into locking these defendants away, is gross abuse of authority and it’s hubris.

Authentic transgressions
As the sham trial goes on, the pieces are coming together on the cases of Nalty and crew. It turns out federal investigators labeled them “sovereigns” because they’ve held themselves not responsible for paying traffic tickets, property taxes, and the like. In the end I’ll grant you Nalty’s group may be guilty of those. I say “may” because such citations may have been retaliatory for their political beliefs.

As to the punishment, I believe adjudicators should take into account that the defendants acted not to enrich themselves, nor to flaunt the law per se, but to assert political rights about which they may have been misguided. Again I say may because the defendants are being tried, after all, according to a set of laws, which enforce a social contract, the terms of which the parties do not agree.

I use the word misguided as a nod to those who think the Nalty gang have acted like idiots. That’s easy to say, and easy to laugh, but no one’s yet figured out how to emancipate labor from the yoke of capital. You may regard interest and rent as your inherent debts. These sovereigns don’t and they’re trying to say so.

Economic slavery
Ours is a system of peonage to which this crew feels they never indentured themselves. The ersatz writs and liens they spammed to every official they encountered were the legal loopholes they thought could break the bank and liberate everyone from financial tyranny. While Nalty’s scheme intended insurrection, it wasn’t against democracy or the republic, it was against taxation without representation, the same beast Americans pretend to have overthrown with the Declaration of Independance.

Instead of tea into Boston Harbor, this crew dumped a bunch of junk paper unto the reception counters of Colorado public offices. Charge Nalty’s crew with littering maybe, at most, vandalism, though it’s hard to say these vandals caused even a scratch. Every public official who testified as a victim said they didn’t take the ersatz documents seriously.

The writs and liens looked officious, but weren’t attributed to known government or banking institutions. Likewise signatures were signed in red. Red was chosen to represent the signer’s blood, even though red is a color which automated banking systems reject as unreadable, therefore invalid.

Not one witness expressed confusion about the validity of the papers. They mentioned too the rambling diatribes in the text block.

To call the defendants “paper terrorists” wildly overstates the effect they achieved. They didn’t terrorize anyone. Governments like to accuse rebellious insurgents of “terrorism”, but that’s another paralegal threshold with which most common citizens, and certainly these “sovereigns”, disagree.

Real funny money
These guys did the equivalent of feed Monopoly Money into ATMs. No bank balances were changed and no real money came out. Counterfeit currency is one thing, but denominations of your own handywork pretending to be only that does not qualify as funny money in the illegal sense. I’m guessing forms submitted in a language foreign to bank clerks would be rejected out of hand. How are these any different? Irregular submissions, as one witness called them, need not generate calls to the FBI or the Colorado Joint Terrorism Task Force. I’ll bet that ATMs know to reject Monopoly Money. If they don’t, whose problem is that?

The trial of defendants Stephen Nalty and Steve Byfield is due to wrap up Friday. The prosecution will have taken seven days to present its case and Assistant Attorney General Robert Shapiro intends to object if the defense rebuttal takes more than a half day, maybe a whole. This trial is meant to intimidate the other defendants to convince them to take pleas.

Next in the pipeline is Bruce Doucette whose trial starts October 16. Defendants Harlan Smith and Dave Coffelt have hearings on October 18. If they do not take deals, Shapiro intends to enjoin their cases, to save time and money. He’s already convinced defendant Brian Baylog to take a deal and turn state’s evidence. Baylog is scheduled to testify against Nalty and Byfield shortly.

By now the condemnation of Nalty’s commercial lien scheme will have cost Colorado millions in man hours and legal expenses. You can fine a graffiti artist for having to restore an edifice to its original lustre, but you can’t expect him to bear the full cost if you chose a cleanup crew that wears Gucci loafers, most of whose jobs is to pat the other on the back.

Colorado’s overkill with federal agents and counter-terrorism experts is a problem of its own making.

The Nalty-Byfield trial continues through this week 8:30am – 5pm, at Denver’s Lindsey Flanigan Courthouse, in Division 2H, ironically, “Juvenile Court”.

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Paper Terrorists Tried in Juvenile CourtDENVER, COLORADO– The trial of accused “Paper Terrorists” Stephen Nalty and Steve Byfield began Monday in courtroom 2H of Denver district court. The two face 28 odd charges, from conspiracy, criminal enterprise, to racketeering, brought by the Colorado Attorney General and the FBI.

And they’re defending themselves. In handcuffs.

Don’t worry, they’re holding their own. But already it’s day one and authorities are piling on every disadvantage. On Monday the defendants were cheated of being able to prevent the state from stacking the jury (and the defendants don’t even know it because they weren’t in the courtroom to see it done).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

CSPD Officer Dustin Canaan knew nothing about the undercover scheme.Though Krueger and his partner, CSPD Officer Dustin Canaan, were informed about undercovers, they don’t know that they are being tasked with arresting one.

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

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

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

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

City police unknowingly encircle sheriffs undercovers

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

CSPD Office Krueger escorts detainee Mark JacksonThey don’t hear his response and so repeat their question. “Carhartt” sticks to his odd refrain: “Pat me down at the car!”

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

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

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

Sheriffs undercover Mark Jackson concealed a loaded 9mm

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

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

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

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

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

Krueger says no.

Blackwell comes to the cruiser to see for himself.

Sergeant Clayton Blackwell and Officer Dustin Canaan look at their unfamiliar detainee.

Blackwell doesn’t recognize the detainee either.

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

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

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

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

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

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

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

Krueger turns off his body-cam.

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

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

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

On the KRUEGER body-cam:

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

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

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

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

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

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

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

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

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

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

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

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

On the CANAAN body-cam:

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

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

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

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

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

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

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

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

DHOL’s 2/17 press release:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

Document 28 Filed 08/25/15 USDC Colorado

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

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

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

Plaintiffs, v.

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

Defendants.

______________________________

ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION
______________________________

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

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

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

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

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

I. LEGAL STANDARD

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

II. BACKGROUND

A. Facts Alleged in the Original Complaint

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

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

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

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

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

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

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

?(Id. at 4.)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

C. Evidence Received at the Preliminary Injunction Hearing

1. Commander Lopez

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

2. Mr. Steadman

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

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

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

III. ANALYSIS

A. Article III Standing

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

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

***

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

(ECF No. 23 ¶¶ 2, 4.)

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

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

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

?B. Likelihood of Success

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

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

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

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

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

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

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

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

2. Is the Courthouse Plaza a Public Forum?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

a. “Content-Neutral”?

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

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

The Plaza Order itself asserts several interests:

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

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

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

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

c. “Leave Open Ample Alternative Channels of Communication”

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

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

?C. Irreparable Injury

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

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

E. Public Interest

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

?F. Scope of Injunctive Relief

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

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

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

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

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

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

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

IV. CONCLUSION

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

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

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

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

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

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

Dated this 25th day of August, 2015.

BY THE COURT:

William J. Martínez?
United States District Judge

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


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

1. Full text of complaint:

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

Civil Action No.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

NAZLI MCDONNELL,
ERIC VERLO,

Plaintiffs, vs.

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

Defendants.

______________________________________________________________________________

COMPLAINT

______________________________________________________________________________

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

INTRODUCTION

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

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

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

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

5. Regulation 50 states: “No person or organization shall leaflet, conduct surveys, display signs, gather signatures, solicit funds, or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes, or in connection with a labor dispute, except pursuant to, and in compliance with, a permit for such activity issued by the CEO or his or her designee.” DENVER INTERNATIONAL AIRPORT REGULATION 50.03. In order to obtain a permit, an individual must “complete a permit application and submit it during regular business hours, at least seven (7) days prior to the commencement of the activity for which the permit is sought[.]” DENVER INTERNATIONAL AIRPORT REGULATION 50.04-1.

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

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

PARTIES

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

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

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

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

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

JURISDICTION AND VENUE

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

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

FACTS

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

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

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

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

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

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

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

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

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

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

25. Regulation 50 states (in pertinent part): “No person or organization shall leaflet, conduct surveys, display signs, gather signatures, solicit funds, or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes, or in connection with a labor dispute, except pursuant to, and in compliance with, a permit for such activity issued by the CEO or his or her designee.” DENVER INTERNATIONAL AIRPORT REGULATION 50.03. In order to obtain a permit, an individual must “complete a permit application and submit it during regular business hours, at least seven (7) days prior to the commencement of the activity for which the permit is sought[.]” DENVER INTERNATIONAL AIRPORT REGULATION 50.04-1.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

56. Regulation 50 is overbroad.?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

PRAYER FOR RELIEF

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

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

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

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

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

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

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

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

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

Dated this 6th day of February 2017.

KILLMER, LANE & NEWMAN, LLP
s/ Andy McNulty

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

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

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

Civil Action No.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

NAZLI MCDONNELL,
ERIC VERLO,

Plaintiffs, vs.

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

Defendants.

______________________________________________________________________________

MOTION FOR PRELIMINARY INJUNCTION

______________________________________________________________________________

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

1. Introduction

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

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

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

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

The Denver International Airport regulation that both Sergeant Quinones and Commander Lopez relied upon in instructing Plaintiffs, and others, that Denver International Airport bans all “First Amendment expression” without a permit is DENVER INTERNATIONAL AIRPORT REGULATION 50 (hereinafter “Regulation 50”). Regulation 50 states that “no person or organization shall leaflet, conduct surveys, display signs, gather signatures, solicit funds, or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes, or in connection with a labor dispute, except pursuant to, and in compliance with, a permit for such activity issued by the CEO or his or her designee.” DENVER INTERNATIONAL AIRPORT REGULATION 50.03. In order to obtain a permit, an individual must “complete a permit application and submit it during regular business hours, at least seven (7) days prior to the commencement of the activity for which the permit is sought[.]” DENVER INTERNATIONAL AIRPORT REGULATION 50.04-1.

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

Plaintiffs ask that this Court enter an injunction prohibiting their arrest for standing in peaceful protest within Jeppesen Terminal and invalidating Regulation 50 as violative of the First and Fourteenth Amendments to the United States Constitution.

2. Factual Background

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

3. Argument

3.1 The standard for issuance of a preliminary injunction.

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

The Tenth Circuit has modified the preliminary injunction test when the moving party demonstrates that the second, third, and fourth factors “tip strongly” in its favor. See Oklahoma ex rel. Okla. Tax Comm’n v. Int’l Registration Plan, Inc., 455 F.3d 1107, 1113 (10th Cir. 2006); see also 820 F.3d 1113, n.5 (10th Cir. 2016). “In such situations, the moving party may meet the requirement for showing success on the merits by showing that questions going to the merits are so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation.” Id. (internal quotation marks omitted). Moreover, this “fair chance of prevailing” test is appropriate in this case because Plaintiffs are challenging a policy, not a statue or ordinance. See Planned Parenthood Minn, N.D., & S.D. v. Rounds, 530 F.3d 724, 732 (9th Cir. 2008) (“[C]ourts should… apply the familiar ‘fair chance of prevailing’ test where a preliminary injunction is sought to enjoin something other than government action based on presumptively reasoned democratic processes.”).

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

3.3 Regulation 50 implicates Plaintiffs’ First Amendment rights. 1

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

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

3.4 Plaintiffs are likely to succeed on the merits.

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

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

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

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

The restriction at issue in this matter is a prior restraint. “The term prior restraint is used ‘to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.’” Alexander v. United States, 509 U.S. 544, 550 (1993) (quoting M. Nimmer, Nimmer on Freedom of Speech § 4.03, p. 4–14 (1984)). Regulation 50 is in an administrative order that forbids future communication and bases the ability to communicate in the future on the discretion of an administrative official. See DENVER INTERNATIONAL AIRPORT REGULATION 50.03 (“no person or organization shall leaflet, conduct surveys, display signs, gather signatures, solicit funds, or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes, or in connection with a labor dispute, except pursuant to, and in compliance with, a permit for such activity issued by the CEO or his or her designee.” (emphasis added)). It is a prior restraint.

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

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

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

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

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

3.4(d) Regulation 50 is content-based.

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

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

Regulation 50 is content-based on its face. It distinguishes between content and requires that an official determine the content of the speaker’s message when enforcing its proscriptions. Reed, 135 S. Ct. at 2227; see DENVER INTERNATIONAL AIRPORT REGULATION 50.03 (“No person or organization shall leaflet, conduct surveys, display signs, gather signatures, solicit funds, or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes, or in connection with a labor dispute[.]” (emphasis added)). The distinctions drawn by Regulation 50 make it a facially content-based restriction on expression that must elicit “the most exacting scrutiny.” Johnson, 491 U.S. at 412; Reed, 135 S. Ct. at 2227.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Even if Jeppesen Terminal is a nonpublic forum, “this does not mean the government has unbridled control over speech, . . . for it is axiomatic that ‘the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others.” Summum v. Callaghan, 130 F.3d 906, 916 (10th Cir. 1997) (quoting Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 394, (1993)). “Restrictions on speech in nonpublic fora must be viewpoint neutral[.]” Warren v. Fairfax Cty., 196 F.3d 186, 193 (4th Cir. 1999) (citing Cornelius, 473 at 809). Defendants’ restriction of Plaintiffs’ speech, under the guise of Regulation 50, discriminates on the basis of viewpoint. Individuals walk through Denver International Airport with political messages and slogans on their shirts and luggage and discuss politics on a daily basis. Counsel for Plaintiffs has worn political shirts while traveling through Denver International Airport and discussed modern politics with fellow passengers on many occasions. However, no other individual, to Plaintiffs or Plaintiffs’ counsel’s knowledge, has been threatened with arrest for engaging in this political speech. Nor has any individual been arrested for displaying pro-President Trump messages, for example a red hat that reads “Make America Great Again.” Only Plaintiffs’ expressive activity against the President’s Executive Order, and others advocating similarly, has been threatened with arrest. Regulation 50 is being enforced as a clearly view-point based restriction. Defendants’ application of Regulation 50 to Plaintiffs speech is view-point based and violates the First Amendment.

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

Notice periods restrict spontaneous free expression and assembly rights safeguarded in the First Amendment. Plaintiffs, like many others throughout history, wish to engage in First Amendment expression in quick response to topical events. While even in such time-sensitive situations, a municipality may require some short period of advance notice so as to allow it time to take measures to provide for necessary traffic control and other aspects of public safety, the period can be no longer than necessary to meet the City’s urgent and essential needs of this type. See American-Arab Anti-Discrimination Comm. v. City of Dearborn, 418 F.3d 600, 605 (6th Cir. 2005) (“Any notice period is a substantial inhibition on speech.”).

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

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

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

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

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

Regulation 50 provides that “no person or organization shall leaflet, conduct surveys, display signs, gather signatures, solicit funds, or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes, or in connection with a labor dispute, except pursuant to, and in compliance with, a permit for such activity issued by the CEO or his or her designee.” Those tasked with enforcing Regulation 50, have stated that it bans all “First Amendment expression.” See Exhibit 1, January 28, 2017, Video 1; Exhibit 2, January 28, 2017, Video 2.

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

3.4(i) Regulation 50 is unconstitutionally vague.

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

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

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

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

3.5 Absent an injunction, Plaintiffs will suffer irreparable harm.

“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976); see also Verlo v. Martinez, 820 F.3d 1113, 1127 (10th Cir. 2016); Awad v. Ziriax, 670 F.3d 1111, 1131 (10th Cir. 2012) (“[W]hen an alleged constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.”); Verlo v. Martinez, 820 F.3d 1113, 1127 (10th Cir. 2016).

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

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

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

3.7 A preliminary injunction is in the public interest.

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

4. Conclusion

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

Dated this 6th day of February, 2017

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

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

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.

DIY legal strategies for defendants to give their lawyers a running start

If you’ve been arrested at a protest action you’ve got more legal options than paying the fine or taking a plea deal. Whether or not your act was constitutionally protected, or should be, or whether it was civil disobedience and was meant not to be, there are a couple good reasons to fight your charges in court. First, to draw further attention to your issue, and second, to give your prosecutors more incentive to offer a better plea deal. They might even drop your charges altogether.

Let’s assume you have the time to attend multiple court dates and that your low income means you qualify for a public defender.

Don’t have the time?
If you don’t have the time, make it. Every court appearance is a chance for a press release. Example: City Prosecutes Activists Instead of Indicting Killer Cops. Not only are you forfeiting the opportunity for more publicity, you are resigning yourself to a stiffer plea offer. Probation, or deferred judgement, or deferred prosecution for a probationary period, will take a larger chunk of your time from activism than a few court dates.

If you are eventually planing to hire a private lawyer, the same initial strategy applies. Your inconvenience is nothing compared to the wrench you’re throwing into the city’s injustice machine, by merely fighting your case.

Let’s assume also that you have bonded out of jail. Your first court appearance will be a BOND RETURN DATE. If you did not bond out and remain in custody, your first court appearance will usually be the morning after your booking and will be called an ARRAIGNMENT. Both are supervised by a magistrate before whom you will be expected to plead guilty or not guilty.

You are going to do neither.

That said, if you are still in custody, your first objective would be to hasten your release, hopefully on a PR bond. In such case, the following steps need not be uncompromising.

City Attorneys
If your event is a bond return date, you will first be called out of the courtroom by a city attorney to discuss a plea deal. Here’s where most people think they can candidly argue their case in hope that the prosecutors will decide to drop the charges. Those defendants are only giving the city more cards to deal against them. Your first move will be to DECLINE TO SPEAK TO CITY ATTORNEYS. You can ask what deal they are offering, but you say nothing about your case and admit to nothing. You are better off not even sitting down. Tell them from the hall that you have nothing to discuss, have them please bring your case before the magistrate.

The Magistrate
When the magistrate calls you up, tell him or her that you DO NOT CONSENT TO A MAGISTRATE adjudicating your case, you want the judge to which you are entitled. The magistrate will have to reschedule your court date before a judge, in the division to which your case was assigned. This might be one or two weeks later.

Bond Return Date, Round Two
Your second date, this time titled an “Arraignment” will be another chance for the city attorneys to pretend they have a right to interview you. Again you brush them off. When you’re finally called before the judge, he or she will ask you what you plead. Say that you CANNOT PLEAD BEFORE CONSULTING AN ATTORNEY. Asked if you have an attorney, say no, you require a public defender.

The judge will tell you a public defender will only be assigned after you’ve entered a not-guilty plea. Stand your ground, ask how are you supposed to make a legal decision without the advice of the public defender? The judge will decide to enter a not-guilty plea on your behalf, to which you will OBJECT.

A plea made over your objection will be a potential element of a future appeal. Likewise was the attempt by city attorneys to pretend they had authority to discuss your case without your having an attorney present. These will be two factors that will give you leverage in negotiating a better plea offer.

The judge will ask if you want a jury trial, to which you will answer YES. You’ll be assigned a pretrial conference date, or reset date, and a trial date. Your next task will be to apply for a public defender.

Representation
If you make too much money to qualify for a public defender, you might want to hire a lawyer, or find one who is sympathetic to your cause who can represent you Pro Bono. If you are smart enough on your feet, you can represent yourself PRO SE.

One possible advantage to proceeding Pro Se is that the city might eventually drop the charges, calculating that if you couldn’t find an attorney to defend your criminal case, you are unlikely to find one to bring a civil suit against the city for false arrest. They risk little to drop your case instead of spending an awkward day in court trouncing a DIY defendant in front of a sympathetic jury of his peers.

If your application for a public defender is accepted, they’ll also waive the $25 jury fee. If you can’t apply for the public defender within 30 days of your forced not-guilty plea, you should file the jury trial request yourself and pay for it.

No not under any circumstance elect a trial by judge. Denfense lawyers call that a “slow motion guilty plea.” You’ll soon learn that judges work for the same side as the prosecutors. So do the public defenders, but they can serve your purpose for the time being.

In a future article I’ll discuss what to do with public defenders.

UPDATE: Deaf blind judge gives Shadoe Garner 75 DAYS JAIL for possession of Wicca ritual athame and for littering.


DENVER, COLORADO- Shadoe Garner was found guilty today by a judge who didn’t blink at the public defender having no time to prepare, at discovery evidence not being provided to defense, at prosecutors withholding half their witnesses and videos (depriving the defense of knowing what might have be exculpable evidence), at being forwarned that a 35C Appeal was virtually guaranteed, and despite two police videos making very clear that Shadoe’s rights were violated, if only the judge had ears and eyes to see it.

The courtroom staff should have seen trouble brewing earlier in the morning when an attorney announced “the court will call Emanuel Wilson” and the old judge replied “I’m sorry, did you say Javier Lopez?” Uh, no.

Judge Frederick Rogers is a dead ringer for filmmaker John Huston, with none of the latter’s sense of humor. He tried a case before Shadoe’s, a young black vet with PTSD who was awarded a large settlement for a traumatic brain injury and who went off on his lawyers for witholding the award in a conservatorship. The judge found him guilty of making threats, however exaggerated, giving no allowances for his mental disability.

In Shadow’s case, Judge Rogers denied all motions to wave speedy trial, and declared he wouldn’t suppress the prosecution’s evidence based on the defense not having seen it. The judge wanted to see it presented first so he could assess its worth to the charges before considering suppression. Essentially, motion quashed.

The evidence wound up supporting Shadoe’s claims, that he identified himself, that he had served papers on Commander Tony Lopez, not littered, and that the “weapon” he carried was a religious talisman, if also a knife.

“My name is Shadoe Garner”
Three times on the video Shadoe Garner told officers his name when asked, both first name and last. He even provided his date of birth. From that the officers could have run a check on his identity without having to take him into custody for not having an ID. The officers even testified that they heard Shadoe say all that. But the judge only heard the defendant say “Shadows” and so felt the defendant was being evasive. Officers can even be heard on the video using Shadoe’s name as they talked to him!

Instead of cross-checking his info in their system, the officers took Shadoe from the crowd and that operation required a pat down. Before doing that, Officer Montathong asked Shadoe, “do you have a weapon or anything that could poke me?”

Weapon vs. Athame
“Yes” Shadoe replied, I have an Athame” and he gestured to his left thigh. The officers retrieved what they alerted each other was a knife. Shadow countered “It’s not a knife, it’s an athame, a ceremonial object.” He repeated that explanation several times on the video.

It might be relevant to point out that Shadoe was wearing his robe, a distinct purple garment which officers would recognize over and over on the 16th Street Mall or at Stoner Hill, where the Dirty Kids live.

Shadow thinks of himself as a Wiccan druid, and the ceremonial dagger he refers to as an athame is as ritualistic as his robe. Shadoe told me he had ground-scored the robe weeks before. It’s a hooded cape that can only be described as a theatrical vestment.

The “knife” too was theatrical. The prosecutor constantly pointed out that its length was longer twelve inches, much too long for a pocket knife. It’s length was more like a kitchen knife or, more obviously, a SWORD.

The weapon pulled from a sheath strapped to Shadoe’s leg was a 12″ bowie knife manufactured by “Force Recon”. Sargent Martinez recognized it from his Marine days as a military combat weapon.

The First Amendment isn’t a pass to COSPLAY in urban environments, but a homeless person doesn’t have much choice about what possessions they can leave at home and which they have to carry.

Both Sargent Martinez and Officer Montathong said Shadoe was wearing a trench coat, even though the videos depicted the robe clearly. What trench coat has a hood? The officers stuck to their story because it’s regulation they say to suspect protesters wearing trench coats. Officer Montathong said protesters “always hide pee containers under their trench coats to throw at police.”

I’ll note here the officers removed Shadoe from the protest because they felt unsafe in the crowd. Sargent Martinez was calling the shots that day and testified the crowd numbered “five to six” peaceful, seated, protesters. Though the police numbered twenty, Martinez didn’t feel safe. For backup Commander Lopez called in Metro SWAT too.

“I am a process server”
Shadow repeated multiple times that he was a “process server”. No one questioned the officers whether it was customary to charge process servers with littering.

Shadow was arrested for littering because he served Commander Tony Lopez with an 11-page notice of a federal lawsuit. Lopez refused to take the document so Shadoe thrust it at his chest and it bounced to the sidewalk. “Cite him for littering” barked Lopez. Officers gave Shadoe a chance to pick up his “trash” or be ticketed for littering. Shadoe replied that he couldn’t retreive the papers, they now belonged to Lopez. Lopez had been officially served, documented by a witness video. If Shadoe took back the papers the transaction would be undone. As he explained this, Shadoe cast aside a cigarette butt. “Pick that up” ordered the officers, “or you’ll be cited for littering.” Shadoe dutifully bent and retrieved the cigarette butt. He wasn’t about to be given a ticket for littering.

He didn’t have an ID. Like many homeless, he’d lost it in a previous interaction with DPD. The police confiscate IDs from Denver homeless, probably as a deterrant to further contact. But Shadoe gave his name when asked, even though the police inquiry was unwarranted.

Appeal
The next step will be for Shadoe to appeal, but he’s got to do it from jail. The public defender’s office has to meet with Shadoe before the deadline expires and that’s not a likely priority for them. His next hearing is August 22 in District Court, division 5G. Shadoe is charged with felony weapons possession on account of a second offense, his persisting in carrying a ceremonial athame.

Shadoe’s single request to Judge Rogers, as the judge considered his sentencing, was to ask that the weapon not be destroyed, as called for by Denver ordinance. The city objected but the judge ruled that the evidence was required for Shadoe’s appeal. By his plea, Shadoe demonstrated that the evidence means more to him than a mere knife.

Shadoe has a very good case. The DPD abused his Fourth Amendment protection against illegal search and seizure. There’s the First Amendment right to his religion practices. And there’s the right to effective counsel which Shadoe was denied.

Judge Rogers has made a lot of work for the courts above him. Who knows how many other defendants are going to be jailed before judicial superiors figure out that Rogers has got to go.

HOW TO GET OUT OF JURY DUTY

[Disclaimer: Jury duty is a service we owe our fellow citizens. It is a critical community responsibility. That said. If you really absolutely can’t. This instructional allows you to make an alternative civic contribution.]

Here’s how to get out of jury duty. GUARANTEED to work. I just did it and you can too, without getting into trouble, without feeling like you’re not being a responsible member of society, and while providing a laudable service to other prospective jurors in the courtroom, not least of all to the defendant.

Please note: This doesn’t work for civil trials. To get yourself out of adjudicating a civil dispute you need a pressing previous engagement. For criminal cases, this single spoken line will make defense attorneys love you but more to the point, city prosecutors will immediately wipe you from the list and hope you never show up to pee in their jury pool again.

I’m talking about being an apostle for “jury nullification”. That’s two words, and they’re fully legal. But please, please, do explain them or you really will be copping out. You have a constitutionally guaranteed right to talk about jury nullification. And where better than in front of prospective jurors about to take responsibility for a defendant’s fate?

Here’s how it works. Every jury selection involves “voir dire”, where attorneys question potential jurors to weed out difficult ones. During every voir dire the prosecution will ask “Is there anyone here who cannot follow what the judge instructs you to do?”

Take a deep breath, raise your hand, that’s your cue.

The prosecutor will likely elaborate, to pretend you may have misheard. “Does anyone think they don’t have to reach a verdict based on the judge’s expert instructions?”

The prosecutor may have already explained that jurors are often surprised to find their own interpretation of the law at odds with that of the judge. Regardless of personal feelings, the prosecutor will insist, jurors must weigh the evidence according to the law AS INSTRUCTED.

Your hand is still raised. You answer:

“Not really. The legal principle of jury nullification holds that it’s a citizen’s responsibility to consider their conscience in whether or not a law is applied or how it is applied.”

A foolish prosecutor will ask you to explain, and you can.

“Jury Nullification is the only way that people have changed repressive laws in this country. The decision to discard unfair or abusive laws is made by juries who refuse to enforce them. Jurors, for example, who came to feel that maybe it shouldn’t be illegal for slaves to run away from slave owners.”

At this point you are essentially contaminating the jury with a very subversive idea. Though you’ll be eliminated, the concept will hang in the back of the other jurors’ heads. If the prosecutor wants to hear more, or wants to debate, let them have it.

“The constitution guarantees us all the right to a trial by a jury of our peers. Not a jury composed of judges. Of peers. That’s us. Common citizens, like the defendant. A jury of peers are meant to provide parity against an abusive justice system or government.”

Very likely the jury orientation video or presentation in the jury assembly room will have mentioned that Thomas Jefferson considered the right to be a juror more valuable than the right to vote. You can invoke their own propaganda.

“If Thomas Jefferson valued the individual power of a juror over the power to vote in elections, you can bet he was talking about more than just walking into a jury box, doing what the judge told you, and walking out.”

At this point a prosecuting attorney might try to ostracize you by asking “does anyone else agree with this person?” Most will submissively shake their heads and frown, but quick thinking prospects will raise their hands too. If they do, and if they have grasped what you are saying, they too will be excused. You have essentially offered everyone the chance to escape this jury if they want to.

At worse, the slower thinkers will revisit your words as they spend the next hours and days getting to know the defendant. Very likely the prosecutor will be up at the bench, motioning for a fresh pool of jurors.

There is of course more you can say. You need only respond to what is asked, so as not to look like you’re being deliberate. Relax, the defense team will have their turn and they are CERTAIN to revisit the subject you’ve raised. The judge might prevent them from letting you ramble on, but make the most of it until that happens.

“Pot laws had to be relaxed when juries stopped convicting smokers of what they considered to be victimless crimes. Judges didn’t do that. Juries did.”

“And think about it: should poor people really be prosecuted if they have to shoplift food to feed themselves? Shouldn’t that be for a jury of poor people to decide?”

“And what if you realize that our prisons and jails are too full, and certainly too full of a disproportionate number of people of color? If police and judges are going to keep targeting certain people for convictions, how will we ever empty the jails? Thoughtful jurors can do it!”

“And the joy if it is, it only takes one juror on the jury to stand up for the defendant. Guilty verdicts require a unanimous vote. Just one juror can deprive the state of a conviction. That one juror who saves the defendant’s neck can be YOU!”

Don’t feel bad if the defense attorney doesn’t exploit you as much as you’d like. Keep in mind the defense attorney is incurring the wrath of the judge the longer you go on.

All US lawyers are forbidden to talk about jury nullification unless the subject comes up. Of course a defense attorney cannot ask a jury to disregard the law, but once you’ve brought up the legal concept, it’s their golden opportunity to kick the idea around.

Hastert being a pedophile is not the story! Where did a former wrestling coach get millions to bribe his victims?!

If Dennis Hastert was being treated like a convicted serial pedophile, he’d never see the light of day, you’d think. Instead the judge was asked to take into account his years of public service. Which is almost not missing the point of the whole scandal. Dennis Hastert being a pedophile pales next to the number of victims of his white collar crime. Paying hush money to the former victims of his predatory sexual abuse was the petty crime for which he was sentenced to 15-months in prison. Hastert’s biggest crime was his corruption as the longest serving Speaker Of The House. Dennis Hastert was a high school wrestling coach before running for office and becoming a multimillionare land speculator. Could Hastert’s record stint in Congress mean he didn’t break records for stealing from his constituents and their interests? It’s obvious where Hastert got the millions in cash with which to pay off his many underage victims. THAT’S the crime for which Dennis Hastert isn’t serving enough time. BY ALL MEANS, DO TAKE INTO ACCOUNT HIS PUBLIC SERVICE. Award his millions to his abused victims, put Dennis Hastert in jail forever, then, for betraying the public trust, hang him.

I have to ask: if Dennis Hastert was a perv as a wrestling coach, what predilections do you suppose he indulged as America’s second most powerful office-holder and corrupt multimillionaire? Are we to imagine Speaker Hastert kicked his pedophilia habit for graft? Those are two distinct abberations. One’s a mental disorder, the other is calculated greed.

At today’s sentencing the judge called Dennis Hastert a “serial pedophile” and expressed it was shocking to say serial pedophile and House Speaker in the same sentence. I doubt that. Mostly because we only learn these things after the fact. I think it would be more accurate in the future to wonder which if any of our speakers are not pedophiles.

If fellow congressmen and staffers knew anything of Hastert activities –and how couldn’t they not?– they should face prosecution as well.

Denver Homeless Out Loudest Ray Lyall


Here’s a better picture of Denver Homeless Out Loud activist Ray Lyall and colleague, with the usual Denver protest entourage. Ray Lyall was found guilty of trespass last week, like his cohort DJ Razee before him. The two were among nine DHOL members arrested defending Tiny Houses on October 25, ten if you include a follow-up action, but Ray and DJ are the only cases to come to trial. Four more are scheduled soon: April 20, May 9 & 10, and June 1.

You might well ask, what of the remaining four? They PLED GUILTY.

It is customary not to condemn another’s self-preservation needs, but let’s be honest, taking the plea deal does hurt everybody. Pleading guilty implicates your co-defendants, validates the police probable cause, and sacrifices the opportunity for which arrest and detainment were the ante.

Ray Lyall took his case to trial, compelled five police officers and a Denver Housing Authority to take the stand, opportuned an eloquent lawyer to speak about homelessness and the bigger picture, tied up a municipal courtroom profit center for two days, and was sentenced to peanuts: one year probation plus community service. Probation is essentially what’s been on offer for plea deals, so Ray risked only being found not guilty.

DJ’s sentence admittedly was not peanuts, it included jail time. The judge declared she would rather have imposed probation, but DJ knew probation would hinder his options as a street activist. DJ stipulated jail so that afterward he’d be free to protest without the spector of a deferred sentence weighing upon him.

Plea deals have shaped a lamentable pattern for Denver activists. Owing to inadequate legal representation or financial hardship, many political arrestees have been tempted by offers of deferred prosecution or deferred sentencing which have necessitated their abstention from further protest. Some who have continued to participate in demonstrations have been in the awkward position of encouraging others to do what they could no longer risk, perpetuating the cycle of arrests and plea deal emasculation.

The Denver activist community has some serial plea dealers, who always take pleas and ensnare newbies with them every cycle. As a result, fresh activists become burned out and regular police oppression is emboldened.

The irony of course is that the vast majority of Denver protest arrests have been violations of civil liberties. It will only stop when the police are challenged and sued. Obstruction, interference, failure to obey, resisting, trespass, disturbing the peace etc, are the habitual pretexts which Denver police have been using to curb street protest. Even the felony charge of assault of a police officer has been succesfully used to scare activists into taking pleas. Usually such “assaults” were simply collisions or confrontations where police officers were the actual assailants.

Not everyone is in a position to fight their charges to the bitter end, but asserting the illegitimacy of political arrests is critical to bringing Denver police to heel.

If you are going to plead guilty because you don’t think you have the right to march in the street or to ignore unconstitutional orders or to defy unjust laws, DON’T DO IT. Spare the rest of us the bad example of capitulating to wrongful authority.

Motion hearing for 4/29 protest arrest brings out affinity of cops and judges.

DENVER, COLORADO- A local activist flipped off a municipal court judge. Yes, it’s not done, but the consequence was more severe than even the judge intended. She was attending a motions hearing of a fellow protester accused of disobeying a cop. During DPD testimony an officer was narrating a surveillance video which the audience was unabe to see. She tried to shift seats but was told to sit down. After two admonishments, she complied in silence but made a disrespectful gesture where she sat behind the flat screen monitor, where she thought the judge wouldn’t see. But a clerk did see the gesture and told the judge. Judge Nicole Rodarte, no friend of political activists and facing a roomful of them, immediately had her held in contempt of court for the remainder of the hearing. Contrary to instructions, the unnamed activist was taken across to the jail to serve a sentence of ten days. We’re not sure yet who was complicit with the mixup. Here’s what happened:

It was a hearing no Denver street activist wanted to miss. Habitual free-speech offender Jesse Benn is accused of disobeying a lawful order, being on the street, failure to disperse, etc, etc, at the April 29 march solidarity march for the people of Baltimore upset about the in-custody murder of Freddy Gray. Jesse’s jury trial will follow shortly.

At this motions hearing, the unpopular motorcycle cop Michael Rispoli was testifying as to the evidence against Jesse. Officer Rispoli is uniformly reviled for his tendency to ram his motorcycle into peaceful marchers. At the April 29 march, Rispoli dropped his motorcycle, feigning having been pushed by bicyclist Michael Moore. A SWAT crew piled on Moore, protesters rushed to his defense, this precipitated more arrests and prompted the police to pepperspray the crowd which included a number of small children. Justified by the attack on Officer Rispoli. Jesse Benn recorded the video which proved Rispoli’s lie. All charges were dropped against Moore, but the rest of the arrestees are being prosecuted, including Benn.

Rispoli by the way has been reassigned to DIA. After six years on the downtown motorcycle crew, monitoring and herding political demonstrations, he’s been demoted to the airport.

So at this hearing Bad Cop Rispoli was proudly testifying about the crowd-control techniques of the motorcycle unit. Very, very informative. At one point the prosecution played a police surveilance video so that Rispoli could give the play by play, point out offenders, and share his strategy. Except the audience couldn’t see the video screen. The content wasn’t forbidden, the judge just saw no need to make a screen available to the public. This being a public hearing.

It was frustrating, and said audience member rose to move about to catch a glimpse of the video. Judge Rodarte told her to sit down. She explained the problem, the judge only repeated her warning. She returned to her seat and apparently formed a finger with her left hand, thrown down behind the large screen monitor, where we couldn’t see, nor even the judge. The courtroom clerk spotted it however and told the judge.

Judge Rodarte promptly asked the deputees to remove the activist to an adjacent room used for in-custody defendants. She informed us that the activist was being held in contempt and her case would be handled at the close of the hearing, hopefully before the lunch break. The hearing resumed without further incident, except more lies from Rispoli. One lie prompted defendant Benn to hold a notepad aloft, for the audience’s eyes only, on which he’d scribbled “perjury!”

The hearing ended before lunch. Judge Rodarte excused herself to review the activist’s criminal record. Rodarte emerged from her chambers to announce that the matter would be addressed after lunch.

When court resumed at 1:30pm, Offender X was brought back in from the side door. Judge Rodarte gave a brief lecture about how X’s act had insulted the integrity of her courtroom and the justice system, etc. She asked if X had anything to say in anticipation of sentencing.

X gave a similarly brief speech about what she’d witnessed in Rodarte’s courtroom and the affront it represented to the public. X closed by declaring she welcomed whatever consequence the judge wanted to throw at her.

“I sentence you to two hours, time served” said Judge Rodarte. She ordered the sheriffs to release X, when they were done with her, or words to that effect.

We went to the jail to await X’s release, anticipating the usual booking delay. We eventually learned that X was supposed to serve a ten day sentence for contempt of court. It took us 35 hours before the error was sorted out. The detention center staff had admitted X with absolutely no authority to do so, certainly no documents remain on file. There is no paper trail and the Office of the Independent Monitor and Internal Affairs are trying to sort it out. Stay tuned.

The case against activist Jesse Benn raises the penultimate question about the right to march in protest. Jesse Benn is charged with being in the street. Traffic laws favor cars over people in the use of public roads, but does a vehicle’s right of way always abridge the people’s right to assemble? Hundreds of demonstrators marching to seek redress of grievances need the road too. Very often authorities tolerate protesters taking the streets for that very reason. Or because authorities have already blocked the streets. It’s complicated, and Jesse Benn might be being punished here because he took the video that implicated a bad cop. The system wants to use Jesse Benn as an example. Activist need to use Benn as their example, to teach the city a lesson about wrongful arrest and our civil liberties.

Denver jury finds camp protester NOT GUILTY of tent erection (obstruction).


DENVER, COLORADO- Andrian “Monk” Brown was observed on HALO camera “erecting a tent” on the spot he’d been arrested two days before inside a similar tent. He was arrested escaping the scene of the crime and or walking his dog around the block. This week Monk was tried for obstruction, the deputy city attorney prosecuted the case herself but was unable to overcome the jury’s inclinations that the charges were “silly”. Monk’s defense attorney rested her case without presenting a thing. Essentially the closing argument was this: did a three-man tent obstruct anyone in a large public plaza? NOT GUILTY.

The jury had many questions of their own for the prosecution’s witness, District Two Commander Anthony Lopez. The judge allowed none of them. One of the questions asked “what was written on the tent?” In fact the tent was decorated with many slogans and constitued part of the political protest in front of Denver’s municipal courthouse.

The protest had been going for three days, twentyfour-seven. The protesters had won a federal injunction preventing the city from arresting them for the pretext of “jury tampering”. The protest was pushing up against the “urban camping ban” ordinance although the city refused to cite that infraction, instead confiscating the “encumbrances” of activists and charging them with obstruction.

Many “evictions” later, several activists are now burdened with cases of “obstruction” and Monk’s verdict offers hope that Denver juries will see through the city’s pretext.

An important lesson learned during Monk’s trial was the opportunity offered by the police arrest video. While issues of “jury nullification” or the camping ban or the right to assemble or the police state would be impossible to sneak past a city attorney’s objections, talking about them calmly over a megaphone during the police raid will give the jury a full uninterrupted twenty minutes of background context with which to reveal what “encumbrance” the city is really worried about.

The History of the Denver Police Department

Before the Denver Police Department began murdering the men, women and children of Denver, they were burglarizing Denver homes and businesses.
 
In 1960, the largest police corruption scandal in the U.S. to date began to unfold. More than 50 area law-enforcement personnel – almost entirely Denver Police Officers were caught in a burglary ring. Cops had stolen over a quarter of a million dollars from businesses they were supposed to be protecting on their beats over a ten-year period. Police cars would close down a few blocks of a major business avenue, such as University or Broadway, then burglarized and stole the safes from the businesses along the closed down portion of the street. Alarms would be going off all up and down the street, they would take their loot, then respond to the alarms and take the reports. It all came to a crashing halt when an officer named Art Winstanley literally had a safe fall out of the back of his police cruiser. He testified against his fellow officers and then by the end of 1961, 47 police officers had lost their badges. The DPD called it “Back Friday”.

Art was sent to the prison in Canon City along with over 40 of his cop buddies. When the prison door swung shut on Art, he complained to the warden that no one liked or respected him, he said the other convicts were being mean to him and spitting on his food tray; these were the convicts that Art had arrested and sent to prison for crimes that he had committed.

Many of these crimes by the Denver Police Department were known and whispered about at the time by other policemen, citizens and politicians, but for fear of retaliation from the cops, they remained silent.

It was only when one rat with his foot in the trap, trying to save himself, exposed the true extent of the crimes of the Denver Police Department. Sixty five years have now passed and the DPD have moved on from burglary to murder.

There are many who speak out for respect for the policeman, they see his blue uniform and badge, read his propaganda of “Protect & Serve” and then slovenly give them a free pass in all matter, they mistakenly think they are incapable of a lie.

These people are the product of police propaganda and a media who quietly sweeps police crimes and brutality under the rug, never to see the eyes of the public.

One of the best examples I can give is of a recent event; A policeman who was called for a disturbance at a Target store, helped a young boy repair his bike.

It seemed the boys bike chain had come off and the policeman helped him put it back on, the incident was reported by another policeman who was also there. It was said the this incident went viral; So what would my complaint be?

Had You or I, ordinary citizens stopped to help this boy, you would never had heard of the incident and it certainly wouldn’t have went viral.

I didn’t see a cop helping the boy, I saw only a man helping the boy. A blue uniform and badge does not make him a saint.
Truth be known; most of the general public have little or no contact with their police department outside of traffic stops. They have little knowledge of how brutal the unchecked police powers have become. And while these brutal crimes go on unchecked by some policemen, the others remain silent; that in itself is a crime. To be a good cop, he must stand up and bear witness to the crimes he has knowledge of, especially when it is wearing a blue uniform and badge. To do less, is to become a partner in crime.

Would that same cop who helped this boy with his bike, if put in the situation where he saw one of his fellow officers commit a crime, speak out and make an arrest of his fellow officer? History has taught us that he would not.
Where the general public see’s a badge, a blue uniform and give’s their respect, I see a human being that is capable of both good and bad deeds, and should be treated as such just as any citizen would be treated.

A question we might ask: How is it that the DA has not filed one criminal case against the police and yet the juries in civil court have awarded million of dollars to victims of police abuse.

Mitchell R. Morrissey was elected District Attorney of Denver in November 2004 and was sworn into office on January 11, 2005. He is responsible for the prosecution of more than 6,000 felony and 18,000 misdemeanor criminal cases every year.

Argonaut Liquor helped city of Denver jail Caryn Sodaro, the DPD’s most vocal critic of police brutality.


DENVER, COLORADO- On Thursday July 30 in Denver Municipal Court, Argonaut Liquor succeeded with what the City of Denver and its violent policemen have been trying to do for years: take down Occupy Denver activist Caryn Sodaro. Earlier this year, Caryn was attempting to film the DPD as they brutalized a handcuffed detainee in the parking lot of the liquor store on Colfax Ave. When store managers couldn’t block her camera phone with their hands, they authorized officers to arrest Caryn for trespassing. Of course they had to pretend she’d been warned once before.

Yesterday a jury found Caryn Sodaro guilty of trespass, though they heard scant mention of the crime she was trying to document and prevent. It didn’t come up and video evidence was snipped to exclude it. Videos from multiple vantage points were excluded and witnesses were not questioned about the brutality they saw. Protesters were characterized as protesting the police, not police VIOLENCE and not protesting to PREVENT IT.

In one of the trial’s most surreal moments, the city attorneys were trying to admit officer body cam evidence taken of Caryn after her arrest, angrily describing the brutality she witnessed. The prosecutors hoped her coarse language would displease the jury. The defense attorney objected for that reason, even though it would have been the only evidence to explain why Caryn risked arrest, if indeed she knew she was not allowed on the Argonaut lot. The judge disallowed that video in the only ruling she made in favor of the defense.

Caryn’s protesting activity has been given area restrictions before and friends know how strictly she adhered to them, unconstitutional as they were. Drivers giving her rides had to take detours to keep Caryn geographically safe. When a defense witness tried to add this detail, or that he’d returned often to the Argonaut even while the managers had testified that he too had been “trespassed”, the defense attorney cut him off, stopping his own friendly witness with “I ask the questions here.”

I’ve seen valiant public defenders, but this free public servant was determined to give Caryn her money’s worth. No character witnesses, no context of Caryn’s activism, nor even sympathy for her altruism. The argument was restricted to: did Caryn trespass or not, and Argonaut employees perjured themselves claiming that Caryn had been instructed twenty days before that she was “trespassed” from Argonaut’s property. That incident was provoked by Caryn being harassed and humiliated by an in-store Argonaut rent-a-cop who followed her to the checkout stand and told her she was “too drunk” to purchase a bottle of wine. He initiated a shouting match, not she, and that’s another detail the PD declined to exploit.

Did I mention Caryn’s public defender opted to forgo his opening statement! The jury was let to assume the case was about a retailer’s property rights versus a group of protesters’ whim for trespassing.

Even when public defenders are brighter than you expect, it’s important to remember they don’t work for you. Public defenders serve the judicial system, this one determined to preserve law and order even when it is demonstrably racist and violent. Mr. DiPetro, the Judge and the city attorneys colluded to frame Caryn’s prosecution as independent of the DPD’s agenda to target her and bring her down. At moments of the two day trial, the audience was equal parts fellow activists, armed sheriff deputes, and DA attorneys gathered to oversee the exploitation of charges pressed by Argonaut Liquor. The only laugh the audience was allowed was when officer descended on Caryn, eager to put her in handcuffs, before she even had time to sign the paperwork required to imprison her.

City of Denver wins court battle to ignore the homeless, one arrest made


DENVER, COLORADO- The trial of the Tattered Cover Five concluded this week. For three days a municipal court considered whether a complaint made against protesters drumming in front of the downtown Tattered Cover Bookstore should or should not curb the protesters’ freedom of speech. And the jury really didn’t get it. Not only did their verdict uphold the police’s discretion to decide whose speech can be considered to be disturbing the peace, but the jury introduced their own arbitrary enforcement, judging some drummers guilty and some not, even though the complaint which prompted the charges was based on the “loud and unusual noise” generated by the ensemble.

The jury had even heard testimony that defendants were threatened with arrest if we “so much as touched a drum.” How then could this case be about disturbing the peace via loud noise? Defense attorney David Lane knew our acts of defiance were more accurately “disturbing the police.”

More obtuse than the Denver jury was the presiding judge, who resisted every rational objection and motion to insure that blunt authoritarianism always received the benefit of the doubt. I’ll admit our supporters in the audience were glib throughout the trial as our lawyer David Lane could hardly sidestep using the dumb and dumber city attorneys for mops. But the judge always ruled in dumb’s favor. It was as if courtroom 3H was an Affirmative Action program for logical fallacies, and the judge was a rubber-stamp for the rule of bad law.

This was never more clear than in the trial’s final moments, when extra deputies ringed the courtroom and then arrested an audience member.

Just before the jury was to emerge with its verdict, the judge reminded everyone that filming or recording the jury was prohibited. David Lane voiced his objection at the buildup of officers in the courtroom without cause. As usual the judge was dismissive.

Lane emphasized that in all his years this was an uncharacteristic show of force. The judge didn’t care: “Objection noted.” It was her usual refrain.

As the officers moved closer to the audience to make their oppressive presence felt, the activism instinct to raise cell phones at the ready gave the officers their cause. This escalated into a standoff, with the deputies ordering an activist to leave the courtroom. His protestations of innocence were interpreted as resisting so he was led off in handcuffs, prompting of course more impulses to film the arrest.

When more officers began targeting more cellphones, a voice of authority rang out. It wasn’t the judge calling for order in the court. No, she was satisfied to let the deputes maraud through the audience and extract people with physical force without even looking up from her monitor. It was the sonorous voice of David Lane that brought the officers to heel. He said “Nobody can take anyone’s phone.” Lane’s gravitas had never given the judge pause but it stopped the deputes in their tracks.

“The most an officer can ask you to do is to put your phone in your pocket” Lane continued. One activist was holding his phone aloft in a game of keep-away with two deputes. Hesitantly he and the other audience members pocketed their phones.

When the jury members made their entrance they were greeted by a militarized courtroom and an audience numb with shock over the justice system’s indifference to abuse of power. We were in for a worse surprise.

It could be the jury did step up to David Lane’s challenge. He’d told them they would never in their lives wield as much power as they did on this jury, their chance to fashion how First Amendment protections are upheld. Except they didn’t share Lane’s or our concern for holding off a police state. Instead they sided with the prosecution, who urged they preserve “the right to ignore someone else’s opinion.”

Honest to God, our weekly protest at the Tattered Cover was presented to have been about the Urban Camping Ban. The jury understood we were urging people not to ignore the plight of the homeless. The city prosecutor’s words could not have been more ill chosen if one is embarassed by irony.

I was one of the defendants in the Trial of the Tattered Cover Five. One of us escaped charges due to a clerical error, two others were found not guilty for lack of self-incrimination. Tim Calahan and I were convicted of Disturbing the Peace, specifically for having created a loud and unusual noise in violation of a City of Denver ordinance. I got two convictions, community service, court fees, one year’s unsupervised probation, and supervision fees (yes that is a non sequitur), but all of it stayed pending appeal.

David Hughes arrested
So what happened to the courtroom arrestee? I’m free now to say that his name is David Hughes, Denver Occupier and IWW organizer. David wasn’t released until the next day, mostly because neither the city nor county was sure with what to charge him. David was kept in an underground cell between the courthouse and the county jail while the trial went on.

Stunned by our defeat in court, our now un-merry band’s attention was diverted to our imprisoned comrade. David had refused to be excluded from the courtroom and next we learned that, like any good Wobbly, David was refusing to reveal his identity. By chance his wife held his wallet and phone so David was free to complicate his abduction as anyone innocent of charges might. We continued to shout “Free John Doe” outside the courthouse in solidarity late into the night.

Was David guilty of using his phone camera? It’s generally understood that recording devices are not to be used in courtrooms, to respect the privacy of witnesses, the jury, and the accused. In this case the judge had specified not recording the jury which had not yet entered. What had interested David was the disproportionate buildup of sheriffs deputees. How many law enforcement officers can you have in a courtroom before the public feels threatened enough that they need to film the officers for the public’s own protection? What doesn’t get filmed, the cops get away with. The judge certainly wasn’t concerned for our protection.

Reflection
I really can’t understate the disappointment we all felt about the verdict. It was predictable yes, but unsettling to see it happen. We had the best lawyer that money can’t even buy, undone by the steady creep of Fascism. I associate it with our society’s declining education and public engagement, abetted by oppressive law.

For three days, attendees who were not readily recognized as being with the defendants could circulate the halls of the Linsey-Flanigan courthouse and overhear deputees talk about the case. All the deputees were greatly chagrined that The David Lane was representing us. Apparently they all know his reputation. There was no press interest except by KGNU, but lawyers who saw David Lane walk through the hall made a point to stop by our courtroom when they had the chance to watch him work.

And so it was really a blow to the ego to meet with failure. I’ve written before about how police intervention at our Tattered Cover protests ceased entirely after the first arraignment date when David Lane showed up in our stead. We’d been surveilled by a half dozen cruisers every Friday for a half year. After David Lane officially filed our papers that number went to zero. No more visits from officers, no more drivebys with videocameras, for almost a solid year now. It should be interesting to see what happens this Friday. Will the cruisers be back? They still have no cause. No disruptions, no conflicts, no threat of lawbreaking whatsoever.

Before Lane the officers regularly interrupted our assemblies to recite their warnings in spite of our objections. When Tim and I were arrested, we had to sit in a holding cell, shackled to a bench, while Sergeant Stiggler berated us for looking like fools. We were wrong about the camping ban, we were wrong about our rights, bla bla bla bla. We kept our mouths shut to shorten his lecture. After enduring our bullhorn for three months, he’d composed quite a rebuttal. His diatribe contradicted the suggestion that our arrests were about the noise and not our message.

For now unfortunately the sergeant turns out to have been correct about our rights. And looking like fools I guess.

For now Denver’s Disturbing the Peace ordinance does dismantle the First Amendment. For now it does allow what’s called a “heckler’s veto.” That’s a marker of unconstitutionality where one person’s complaint could be used to silence political speech to which they object. It does allow police officers to decide what “time place and manner” limits to place on free speech. Nevermind “Congress shall make no law to abridge” –that’s up to the police. It’s their call!

At our earlier motions hearing David Lane spent two days arguing that Denver’s ordinance was unconstitutional, to deaf ears obviously. At that hearing, DPD officer after officer testified that what qualified as a disturbance was entirely theirs to decide. Lane laid the groundwork to show that Denver police officers aren’t given a clue how to respect free speech. This judge was already satisfied I guess to pass the buck to a higher court.

In the meantime activists can no longer brey with confidence about free speech rights in Denver. We’ll have to engage with police submiting their proposed abridgements. We’ll have to bite our tongues, as they do I’m sure, feeling our hands tied more than we’d like, they longing to beat us. It’s going to be more difficult to recruit newcomers, uneasy with what confidence we can responsibly instill in them. “Am I going to get in trouble” is the first question they ask. Now the more probable answer is not maybe.

BIDDER 70 doc reduces super-activist Tim DeChristopher to a number, lonely

BUMMER. I was thrilled a documentary would tell the world about Tim DeChristopher. You might think his achievement would be more widely know. It’s a testament of the power he’s up against, added to the meager support he has received, that even here I have to explain who he is and what he did. Tired of the futility of outdoor protests to prevent BLM land sales to the extraction industry, Tim DeChristopher attended an auction of particularly dubious legitimacy and successfully thwarted it by posing as a bidder and buying many of the lots. This happened at the close of Bush’s presidency, but Obama’s administration pursued a successful prosecution. DeChristopher has just been released after serving two years in federal prison. The documentary “Bidder 70” recounts the ordeal in a manner that provides neither encouragement nor inspiration, and leaves me to question how DeChristopher might have been better represented in court, publicized in actions, and celebrated in film. To say Bidder 70 reduces Tim DeChristopher to a number distorts the idiom. No mere number, DeChristopher is the important but solitary number one, among a casualty count always rising. In the sea of ineffectual activism that prompted his improvisational escalation, DeChristopher emerges more singular than when he started, but that’s to judge based on a flawed documentary. Hardly an surprising result.

It’s certainly armchair quarterbacking to suggest Tim DeChristopher’s legal team failed him miserably, likewise his publicity crew, but I can unequivocally conclude that DeChristopher would have served the environmental movement much more successfully had he been free to apply his imagination and energies, literally. Jail time helped Mandela, MLK and Thoreau, but that’s because you heard about it. The makers of “Bidder 70” can’t be faulted for their subject’s obscurity, but they are applying themselves to sealing his fate with coffin nails.

“Bidder 70” has major shortcomings: you are left with an informed impression that one, there is nothing to be done, two, you don’t want to do it in prison, and three, our collective impotence is inescapable. What’s the point then of attending the movie?

Of all the questions left for a post-screening Q&A, probably one should not be whether the subject is other than he appears. Explain this, how does a protagonist gain inspiration from being told there’s nothing to be done, by a Nobel Prize winner, whom he believes and holds as his mentor? Everyone loves a good challenge, but DeChristopher comes off as a poor listener. Nothing? I’ll see your nothing and raise you nothing. Futile? Count me in! Everyone loves an underdog, but he gathers no recruits.

Never mind his in-denial heroics, the audience takeaway is that his cause is lost. This is swiftly reinforced with the story of Tim DeChristopher’s road less traveled to prison. Offered encouragement by other activists who’ve served time, who we’ve also not heard of, it’s painted to be a fate of unimaginable awfulness and given an ominous soundtrack.

Who could not to admire Tim DeChristopher and respect his dedication and courage? The filmmakers painted in super-heroic light, notwithstanding his irrational adjustments, and so their thematic choice look awfully suspect. Are we likely to learn that they’re new to activism and have no idea what does or doesn’t motivate?

Filmed between 2009 and 2011 and released last year, “Bidder 70” makes no mention of “fracking.” The environmental movement has been literally bursting with opposition to hydraulic fracturing and these filmmakers were at the forefront of the national rallies. This omission is juxtaposed with a clip of 350’s Bill McKibbon praising the consumption of natural gas over coal.

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“Bradley Manning must be released.

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

“Bradley Manning must be released.

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

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

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

“Thank you.”

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Steve Bass to get his day in court, but he can’t say what he was doing or why, & above all he can’t mention “Occupy”


COLORADO SPRINGS, Colo.– Municipal Court Judge Spottswood W. F. Williams heard a final motion today before the AUGUST 10 trial of Occupier Steve Bass, charged with violating the city’s camping ban. The prosecution motioned to forbid from trial, “discussion of political, economic, or religious beliefs or ideology as a purported justification for the alleged acts”, and even “arguments related to the belief that the defendant’s conduct was constitutionally protected”, and in true Colorado Springs fashion, the judge GRANTED the city’s motion! YES THAT’S RIGHT, now if Bass wanted to say he wasn’t “camping,” he can’t say what else you would call it! In effect, Defendant Bass is prevented from explaining WHY he was occupying, or even THAT he was occupying, because saying “OCCUPY” is expressly forbidden. The judge will play it by ear whether to make an exception for himself during “voir dire” if selecting impartial jurors might require asking their opinion of “Occupy”. That’s IF BASS GETS A JURY AT ALL, because next, Judge Williams prompted the city prosecutor to research whether Bass was entitled to a jury of his peers for the infraction of camping…

The issue had already been resolved in an earlier hearing. Unable to find definitive wording on whether a camping ban violation invoked the right to a jury trial, the court ruled to proceed as if it did. But at today’s hearing Judge Williams related that in the interim over a casual dinner conversation, another judge informed him that the law read otherwise. So he put the question again to the prosecution. And again the citations came up inconclusive. This time however, with the clerk advised to continue the search, the decision stands at “pending”.

If Judge Williams opts to eliminate the jury, the forbidding of political or constitutional discussion is a moot point, actually two. There won’t be a jury to confuse, nor a judge either, because Judge Williams decided, by allowing the city’s motion, that the defendant has no arguments to make. Case closed. If the judge gets his way.

The point of today’s hearing was to hear not a judge’s motion but the city’s, a “motion in limine” used to reach agreement about what arguments can be excluded from the trial, often a defendant’s prior convictions which might prejudice a jury.

The core of the city’s motion was this:

…that the Defendant be ordered to refrain from raising the following issues at the Jury Trial…

1. Discussion of political, economic, or religious beliefs or ideology as a purported justification for the alleged acts, or as an issue to be evaluated by the jury;

2. Presentation of facts or arguments related to the belief that the defendant’s conduct was constitutionally protected expressive conduct;

3. Presentation of facts or arguments with the primary purpose or effect of proselytizing for the occupy movement, or otherwise using the Courtroom as a public forum;

4. Any reference to settlement negotiations with the Defendant prior to trial;

The city is guessing that because defendant Bass has passed on all opportunities to dismiss his case on technicalities, or plead for a deferred sentence, that he’s hanging on to get “his day in court.” Whatever that’s going to look like, the city doesn’t like it.

Points three and four were conceded by the defendant. No proselytizing was intended, and of course plea deals are confidential. But the discussion of #3 was amusing, because the city expanded it to mean absolutely NO MENTION of “Occupy.” Even though the defendant was cited in ACACIA PARK, in OCTOBER, under 24/7 media coverage, the prosecutor argued that mentioning OCCUPY “would be unfairly prejudicial to the City.” Further:

To admit evidence related to any political, economic, and religious debate concerning the “Occupy Movement” at trial in this matter would result in prejudice, confusion, and a waste of Court time. By allowing such testimony, the jury would be misled as to the elements of the charged offense which would result in confusion during jury deliberations. Furthermore, the prosecution would suffer unfair prejudice if the jury were allowed to consider the defendant’s private ideology…

Not only did the city fear it would lose a popularity contest with “Occupy”, it worried that the courtroom would be abused by public debate. The point was ceded by the defense because the “primary purpose” would always have been to present defending arguments, not proselytize.

The City’s request is that the Court be treated as a forum for resolving criminal disputes and not as a public forum for debate. Political, economic and religious debate should be restricted to appropriate public forums.

The prosecutor raises an incongruous irony: Steve Bass is on trial because the city doesn’t consider Acacia Park to be an appropriate forum either.

Naturally the defense objected to points one and two, though on the three particular defense strategies the city wanted to preempt, “Choice of Evils Defense”, “Defense of Others”, and “Duress”, the defense ceded as irrelevant. Judge Williams then granted points one and two with the proviso that Steve Bass be permitted to draft his own defense argument, to be presented to the court no later than the Wednesday before trial. Did you know that a defendant must have his arguments approved by his accusers before he’s allowed to make them in court?

I’m not sure it’s accurate to say that Steve Bass is going to get his day in court if he’s going to spend it gagged.

Was Steve Bass arrested for “camping” or was the city trying to curtail “Occupy”? Let’s remember that Jack Semple and Amber Hagan were arrested for taping themselves to a tent, and Nic Galetka was arrested for setting his things on the ground.

But Steve Bass won’t be allowed to mention those details.

———-
FOR REFERENCE: The city’s full motion is reprinted below:

MUNICIPAL COURT, CITY OF COLORADO SPRINGS, COLORADO

PEOPLE OF THE CITY OF COLORADO SPRINGS, Plaintiff
v.
Steven Bass, Defendant

Case Number: 11M32022

MOTION IN LIMINE

COMES NOW the Office of the City Attorney, by and through Jamie V. Smith, Prosecuting Attorney, and submits this “Motion in Limine,” moving that the Defendant be ordered to refrain from raising the following issues at the Jury Trial in the above-captioned matter:

1. Discussion of political, economic, or religious beliefs or ideology as a purported justification for the alleged acts, or as an issue to be evaluated by the jury;

2. Presentation of facts or arguments related to the belief that the defendant’s conduct was constitutionally protected expressive conduct;

3. Presentation of facts or arguments with the primary purpose or effect of proselytizing for the occupy movement, or otherwise using the Courtroom as a public forum;

4. Any reference to settlement negotiations with the Defendant prior to trial;

ARGUMENTS IN SUPPORT OF MOTION

1. Discussion of political, economic, or religious beliefs or ideology as a purported justification for the alleged acts, or as an issue to be evaluated by the jury.

The Defendant is charges with violating Section 9.6.110 of the Code of the City of Colorado Springs, 2001, as amended (“the City Code”), entitled “Camping on Public Property.” Political, economic, or religious beliefs or ideology are not relevant to any of the elements of an alleged violation of City Code Section 9.6.110, nor are they relevant to any potential defense to that City Code Section.

City Code Section 9.6.110 makes it “unlawful for any person to camp on public property, except as may be specifically authorized by the appropriate governmental authority.” Testimony or arguments irrelevant to the elements contained in that language should be exclude from trial. C.R.E. Rule 401 defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probably than it would be without the evidence.” Evidence and argument regarding political, economic or religious beliefs of ideology have no bearing on the offense charged and do not meet the definition of relevant evidence.

Even if some discussion of these issues could be found to be of limited relevance, such discussion would only serve to confuse the issues and waste the court’s and jurors’ time, and would be unfairly prejudicial to the City. C.R.E. Rule 403 allows relevant evidence to be excluded when its admission would cause prejudice, confusion, or waste of time. To admit evidence related to any political, economic, and religious debate concerning the “Occupy Movement” at trial in this matter would result in prejudice, confusion, and a waste of Court time. By allowing such testimony, the jury would be misled as to the elements of the charged offense which would result in confusion during jury deliberations. Furthermore, the prosecution would suffer unfair prejudice if the jury were allowed to consider the defendant’s private ideology, as it is not an element that the prosecution must prove. Time and resources of the Court would also be wasted by allowing such testimony.

Furthermore, this Court denied the defendant’s “Motion to Dismiss-First Amendment,” on June 7, 2012, holding that City Code Section 9.6.110 is content-neutral, and that the defendant did not have a Constitutionally protected right to express his views in the manner that he chose on the date of the violation. Therefore, the sole issue before the jury is whether or not Mr. bass was camping on public property without appropriate governmental authority. Any evidence concerning political, economic or religious views that he was attempting to express through his conduct has no relevance whatsoever to any of the elements of the offense.

Discussion of the “Occupy Movement” as a political, economic or religious issue is also irrelevant to any potential defense which could be raised in this matter. Economic, political and religious beliefs or ideology are irrelevant to the following defenses that the Defendant might attempt to raise:

a. Choice of Evils Defense. C.R.S. Section 18-1-702(1) provides, in pertinent part, that “conduct which would otherwise constitute an offense is justifiable and not criminal when it is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur… .” The statute goes on the state in subsection (2) that “the necessity and justifiability of conduct under subsection (1) of this section shall not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder.” (Emphasis added.) Subsection (2) also states that:

[w]hen evidence relating to the defense of justification under this section is offered by the defendant, before it is submitted for the consideration of the jury, the court shall first rule as a matter of law whether the claimed facts and circumstances would, if established, constitute a justification.

The choose of evils defense “does not arise from a ‘choice’ of several courses of action, but rather is based on a real emergency involving specific and imminent grave injury that presents the defendant with no alternatives other that the one take.” People v. Strock, 623 P.2d 42, 44 (Colo.1981). in order to invoke the “choice of evils” defense, the Defendant must show that his conduct was necessitated by a specific and imminent threat of public or private injury under circumstances which left him no reasonable and viable alternative other than the violation of law for which he stand charged. Andrews v. People, 800 P.2d 607 (Colo. 1990).

There has been no allegation by the defense, and no facts in the police reports previously submitted to this Court, that allege a specific and imminent public or private injury would occur if Mr. Bass had not erected a tent on public property. Furthermore, reasonable and potentially viable alternatives were available to Mr. Bass to achieve his goal, such as picketing and handing out literature, on the date of violation. This was accepted as true and ruled upon by this Court at the motions hearing on June 7, 2012. it should also be noted that no state “has enacted legislation that makes the choice of evils defense available as a justification for behavior that attempts to bring about social and political change outside the democratic governmental process.” Id. at 609; see also United States v. Dorrell, 758 F.2d 427, 431 (9th Cir. 1985) (mere impatience with the political process does not constitute necessity).

b. Defense of Others. C.R.S. Section 18-1-704 describes the circumstance under which the use of physical force in defense of a person constitutes a justification for a criminal offense. Subsection (1) of that statute states, in part, that “a person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person…”. The defense does not apply considering the allegation in this case. There is no allegation that the Defendant was using physical force to protect himself from unlawful force by another at any time during the violation. Furthermore, no unlawful force was used or imminently threatened against any third party that would allow the Defendant to raise the defense.

c. Duress. C.R.S. Section 18-1-708 defines duress as conduct in which a defendant engages in at the direction of another person because use or threatened use of unlawful force upon him or another person. Duress does not apply in this case. There is no evidence that anyone was using or threatening to use unlawful force against Defendant or any third party to cause the Defendant to commit a violation.

2. Presentation of facts or arguments related to the belief that the defendant’s conduct was constitutionally protected expressive conduct.

Any claim by the Defendant that his conduct was protected by the First Amendment of the United States Constitution is not a proper issue to be raised before the jury in this case. This is a constitutional defense that was already raised by the Defendant in his “motion to Dismiss-First Amendment,” and which was denied by this Court on June 7, 2012. The Court ruled as a matter of law that the Defendant’s alleged conduct was not a constitutionally protected form of expression.

3. Presentation of facts or arguments with the primary purpose or effect of proselytizing for the occupy movement, or otherwise using the Courtroom as a public forum.

It is anticipated that the Defendant will attempt to use this trial as a public forum to assert his political, economic, and religious views on the “Occupy Movement.” Courtrooms are not public forums. People v. Aleem, 149 P.3d 765 (Colo. 2007). This Court has the authority to restrict political speech within the courtroom and preserve its purpose as a forum for adjudication of criminal disputes,m so long as the restriction is reasonable and viewpoint neutral. Id. The restriction requested by the City is both reasonable and viewpoint neutral. The purpose of this Motion is to limit the evidence presented in this matter to the offense charged and potential defenses thereto. The Motion is also viewpoint neutral as the City is not taking a stance on political, economic, or religious issues and would not request that the Court do so either. The City’s request is that the Court be treated as a forum for resolving criminal disputes and not as a public forum for debate. Political, economic and religious debate should be restricted to appropriate public forums. To allow Defendant to raise thee issues would be contrary to legal precedent and the rules of evidence.

4. Any reference to settlement negotiations with the Defendant prior to trial.

C.R.E. 408 excludes from permissible evidence compromise or offers to compromise. Plea negotiations fall under this rule and may not be discussed in the presence of the Judge or Jury.

Do the 2012 London Olympics need extra security forces to protect Israeli athletes or to arrest them?

Organizers are worried about inadequate security for the Olympic Games set to begin next month in London. What security threat are they anticipating exactly? It’s true the Olympics have become a bullseye for globalization critics. More and more, both athletes and groupies represent the jet set. But other than past indigenous protests in the Commonwealth territories, which amounted to no more than nonviolent blockades, what does the UK need paramilitary forces to defend against this time? Another 1972 Munich massacre? At the summer Olympics in Munich, the Israeli wrestling team was murdered by PLO terrorists called the “Black September Brigade”, but the official narrative leaves off that the Israeli athletes were targeted because they were IDF soldiers who’d participated in the counter-insurgent near-complete rout of the PLO, known as Black September. So that raises an interesting question. Is London expecting to host Israeli athletes who were veterans of Operation Cast Lead or the attack on the Mavi Marmara, whose assassinations someone might want to avenge? British authorities could address that most handily with preemption, because this time the IDF campaign against Gaza was widely regarded to have violated international law. Warn Team Israel that any such veteran setting foot in England would face prosecution for war crimes. While London is at it, issue the same warning to Team USA. Yeah, and Team UK, and Team Germany, et cetera, for Afghanistan, Libya, now Syria. It’s become the 2012 NATO War Criminals Olympics, gone professional, no amateur status terrorists need apply.