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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Hi Tyranny Fighters:

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

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

Dear Mr. Heicklen:

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

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

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

Sincerely,

Frederick J. Lauten

Chief Judge

____________________________________

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

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

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

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

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

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

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

The Court officers only will appear and arrest me.

The Tyranny Fighters only will appear and protect me.

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

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

The choice is yours—Julian

Denver jury trial for offense of leaving your homeless little dog off the leash

Adrian Brown arrested June 21, 2016
DENVER, COLORADO- Adrian “Munk” Brown faces trial on Monday, charged his dog being at large on the Lindsey Flanigan Courthouse Plaza. This happened on June 21 of last year, when he was testifying at the trial of a fellow activist. Because Munk wouldn’t let the dog catcher seize his dog, he is charged with interference. Because more than a dozen officers responded to the scene, things escalated from there and Munk was taken to jail. But that’s the pretext. In truth– ADRIAN BROWN WAS TARGETTED, STALKED, TAUNTED & ARRESTED.

1. BRIEF STORY OF INCIDENT
2. PREDICTED SCHEDULE
3. CALL TO ACTION
4. LEGAL DISCLAIMER

1. WHAT HAPPENED?
Ridding the streets of substantive evils, three animal control officers, a dozen courthouse deputies, and half dozen Denver police ultimately arrest Munk for not having an ID card and animal at large. Of course they added obstructing animal control and interference with police.

Join me on the plaza tomorrow at 7am. My unleashed dog will be with me. Who else has a well behaved and appropriate in public canine buddy they can bring?

Am I the only one who finds it somewhat Orwellian that Munk was arrested when SGT A. A. Martinez shows up and asks Munk if he will give him his ID. Then Munk asks him who he is. To which Martinez responds: he will take that as a refusal (to identify) and cuffs and stuffs him. COPS ARE REQUIRED TO PRODUCE THEIR NAME AND BADGE ID NUMBER TO THE PUBLIC UPON DEMAND. Members of the public, whom cops serve, are not required to carry papers or ID card with them. So the Master shall be criminalized for refusing to produce a non-existent ID to a servant upon demand, by a servant who refused to identify himself as required? Did I miss something here?

SGT A. A. MARTINEZ IS A KNOWN DOMESTIC TERRORIST WHO HAS BEEN OBSERVED ACCOSTING A PREGNANT WOMAN FOR SIMPLY SITTING DOWN ON THE GROUND TO REST. (Yes, it is a crime in Denver to sit on the ground).

DEPUTY FOOS is a known terror leader who commands a group of violent terrorists known as the FOOShiban. FOOS and his lawless thugs have harassed, detained, obstructed, pestered, and kidnapped Munk many times in the past – in fact, when a bystander observing this event speaks out and tells Foos he knows who Munk is and to share – HE DOES! He pulls out his little book, flips a few pages, and points to a place on the page to which the animal control officer responds by writing information on the citation clearly implying that Foos knows Adrian Brown well enough to have his identifying information at his finger tips.

2. PREDICTED SCHEDULE OF MONDAY EVENTS:
Based on past trials, I predict the schedule will approximately be:

Day 1
0700 – CHALK-A-THON
0730 – JUROR RIGHTS OUTREACH
0830 – DOCKET BEGINS
1030 – JURY SELECTION
1300 – POLICE TESTIMONY

DAY 2
0900 – BYSTANDER TESTIMONY
1500 – JURY DELIBERATION
1530 – JURY VERDICT – NOT GUILTY

3. CALL TO ACTION
I am advocating not only for you to join us in perfectly legal and utterly appropriate activism educating the public using the courthouse about their rights and encouraging them to exercise them to the fullest.

I am also advocating for civil disobedience. I intend to break a handful of laws tomorrow morning. I have every intention to repeatedly violate the so-called JAYWALKING codes to start with. Then I intend going to graffiti the plaza with sidewalk chalk. All the while I intend to be accompanied by my unleashed wiener dog, Rusty. Then I intend to sit down on the ground – lie down on the ground even. I will be demanding my immediate incarceration for these wonton and deliberate acts in violation of numerous codes. AND I WILL REFUSE TO PRODUCE MY ID CARD. I might even burn a flag or two!

AND I ADVOCATE YOU TO DO THE SAME ILLEGAL ACTS!

4. DO REMEMBER
The above actions are prohibited and if you commit those acts you could be arrested, tried, convicted, AND INCARCERATED FOR YEARS. I’m just saying…

Oh yeah- and this is the same judge who was presented by the prosecutors in another sit and lie trial, PRINTOUTS OF MY FACEBBOOK PAGE, and asked to gag me.

And this is the same judge who put Munk in jail for 20 days contempt simply for stating the scientifical fact that Judge Adam Esponosa is in fact “A PUNK ASS BITCH”.

Occupy v. Martinez (Plaza Protest Ban) 2016 US 10th Circuit Court of Appeals Decision AFFIRMING Prelim Injunction


Yesterday I published the federal judge’s order to grant the 2015 preliminary injunction against the Lindsey Flanigan Courthouse. Since that time the city motioned to dismiss, there were show cause hearings, and depositions, and an appeal to the 10th Circuit Court of Appeals. On April 8, 2016 the appeals court AFFIRMED the preliminary injunction. As a result this legal action is on the road to becoming a permanent injunction, to be decided at trial this April. The prospects look promising, based on how the appelate judges schooled our First Amendment adversaries. I’m reprinting their full decision below.

In particular you might enjoy Judge McHugh’s citing of US Supreme Court Justice Owen Roberts, writing in 1939 for the majority, in a decision to uphold public first amendment rights in Hague v. [AFL-]CIO. Robert affirmed that streets were traditional free speech areas:

“Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.”

Here’s the full 2016 opinion rejecting Denver’s appeal of our federal injunction:

Document: 01019599889 Date Filed: 04/08/2016

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

_________________________________

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

Plaintiffs – Appellees,

v.

THE HONORABLE MICHAEL MARTINEZ, in his official capacity as Chief Judge of the Second Judicial District,

Defendant – Appellant,

v.

THE CITY AND COUNTY OF DENVER, COLORADO, a municipality; ROBERT C. WHITE, in his official capacity as Denver Chief of Police,
Defendants – Appellees.

_______________

FILED ?United States Court of Appeals Tenth Circuit

April 8, 2016

Elisabeth A. Shumaker Clerk of Court

No. 15-1319

_________________________________

Appeal from the United States District Court for the District of Colorado ?(D.C. No. 1:15-CV-01775-WJM-MJW)
_________________________________

Stephanie Lindquist Scoville, Senior Assistant Attorney General, Office of the Attorney General for the State of Colorado, Denver, Colorado (Cynthia H. Coffman, Attorney General; Frederick R. Yarger, Solicitor General; Matthew D. Grove, Assistant Solicitor General; Ralph L. Carr, Colorado Judicial Center, Denver, Colorado, with her on the briefs) for Defendant – Appellant.

David A. Lane, Killmer, Lane & Newman, LLP, Denver, Colorado, for Plaintiffs – Appellees.

Wendy J. Shea, Assistant City Attorney; Geoffrey C. Klingsporn, Assistant City Attorney; Evan P. Lee, Assistant City Attorney; Cristina Peña Helm, Assistant City Attorney, Denver City Attorney’s Office, Denver, Colorado, filed a brief on behalf of Defendants – Appellees.
_________________________________

Before BRISCOE, McKAY, and McHUGH, Circuit Judges.
_________________________________

McHUGH, Circuit Judge.
_________________________________

This is an interlocutory appeal challenging the district court’s grant of a preliminary injunction, enjoining in part the enforcement of an administrative order (Order) issued by Defendant-Appellant Judge Michael Martinez, acting in his official capacity as Chief Judge of the Second Judicial District of Colorado (Judicial District). The Order prohibits all expressive activities within an area immediately surrounding the Lindsey-Flanigan Courthouse in Denver (Courthouse). Plaintiffs-Appellees Eric Verlo, Janet Matzen, and the Fully Informed Jury Association (collectively, Plaintiffs) sought the preliminary injunction to stop enforcement of the Order against their expressive activities. Following an evidentiary hearing, the district court enjoined enforcement of a portion of the Order as against Plaintiffs. The Judicial District now appeals.

Based on the arguments made and evidence presented at the preliminary injunction hearing, we hold the district court did not abuse its discretion in granting Plaintiffs’ motion in part. Although we affirm the district court’s order granting a limited preliminary injunction, we express no opinion as to whether a permanent injunction should issue. Instead, we provide guidance to the district court and the parties regarding the factual inquiry and the applicable legal standard relevant to that question on remand.

I. BACKGROUND

The genesis of this case is an incident involving nonparties. On July 27, 2015, two men were distributing pamphlets on the plaza outside the Courthouse (Plaza). The pamphlets contained information about jury nullification, a practice in which a jury refuses to convict a defendant despite legal evidence of guilt because the jury members believe the law at issue is immoral. 1 Both men were arrested and charged with jury tampering in violation of Colorado law. See Colo. Rev. Stat. § 18-8-609(1) (“A person commits jury-tampering if, with intent to influence a jury’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.”).

———
1 Jury nullification has been defined as “[a] jury’s knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury’s sense of justice, morality, or fairness.” Jury Nullification, Black’s Law Dictionary (10th ed. 2014).
———

Plaintiffs, like the men who were arrested, wish to distribute literature relating to and advocating for jury nullification to individuals approaching the Courthouse who might be prospective jurors. Fearing they too would be subject to arrest, Plaintiffs brought suit against the City and County of Denver and Robert C. White, Denver’s police chief, in his official capacity (collectively, Denver) to establish their First Amendment right to engage in this activity. On the same day they filed suit, Plaintiffs also moved for a preliminary injunction, seeking to restrain Defendants from taking action to prevent Plaintiffs from distributing jury nullification literature on the Plaza. Two days later, Plaintiffs amended their complaint to also challenge the Order issued by the Judicial District.

That Order, entitled Chief Judge Order Regarding Expressive Activities at the Lindsey-Flanigan Courthouse, states in relevant part:

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, 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, but is not limited to, 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. ?

The Order was accompanied by an image depicting an aerial view of the Courthouse and its grounds, with the areas in which the Order prohibited expressive activity highlighted in yellow (Restricted Areas).

The Courthouse is bordered on its north side by Colfax Avenue and on its west side by Fox Street. Both Colfax Avenue and Fox Street have public sidewalks running along the perimeter of the Courthouse. Immediately to the east of the Courthouse lies the Plaza. The Plaza is bisected by Elati Street, which is closed to traffic other than police vehicles. Elati Street runs through a large circular area (Main Plaza) between the Courthouse and the Van Cise-Simonet Detention Center (Detention Center), which houses pretrial detainees. The Main Plaza contains planters, benches, public artwork, sidewalks, and gravel areas and is suitable for public gatherings.

Of relevance to this appeal are the Restricted Areas, which include an arc-shaped walkway and planter area immediately to the east of the Courthouse. The arced walkway runs from the corner of Elati Street and Colfax Avenue in a curved path across the front of the Courthouse and ends where it intersects with an open area in front of the Courthouse containing planters and benches (the Patio), which also forms part of the Restricted Areas. The Patio provides access to the main entrance on the east side of the Courthouse. Thus, the Restricted Areas encompass only the portions of the Plaza closest to the Courthouse.

The Judicial District opposed Plaintiffs’ motion for a preliminary injunction and, in doing so, defended the Order. In contrast, Denver entered into a joint stipulation (the Stipulation) with Plaintiffs. The Stipulation asserted that the entire Plaza between the Courthouse and the Detention Center—specifically including the Restricted Areas—was “a public forum and any content-based regulations must be narrowly drawn to effectuate a compelling state interest and reasonable time, place and manner regulations.” It further acknowledged that Plaintiffs were entitled to distribute jury nullification literature on the Plaza and pledged that Denver would 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 Stipulation specifically referenced the Judicial District’s Order, indicating Denver did not “intend to enforce [the 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.”

At the preliminary injunction hearing, the parties called only two witnesses. Plaintiffs called Commander Antonio Lopez of the Denver Police Department. Commander Lopez described the Plaza as a public “open space” much like the city’s various parks. He testified that in the five years since the Courthouse opened he has witnessed “more First Amendment activity take place in [the Plaza] than [he] can recall.” Specifically, Commander Lopez described a variety of protest activities “at one point . . . averaging about two or three a week” in the Plaza. He further testified that the Denver Police Department had never taken steps to stop protest activity in the Plaza, other than intervening if protesters became violent or otherwise broke the law. Relevant to this appeal, Commander Lopez testified that in his experience, the entire Plaza—including the Restricted Areas—has traditionally been used for First Amendment protest activities. On cross-examination, Commander Lopez acknowledged that the “majority” of the protests in the Plaza occurred closer to the Detention Center, but that he had also seen protests directed at the Courthouse.

The Judicial District called Steven Steadman, administrator of judicial security for Colorado. Mr. Steadman testified that the Order was motivated by concern about anticipated protests of a verdict in a death penalty case being tried at the Courthouse.?Mr. Steadman explained that he met with Chief Judge Martinez to discuss security concerns relating to that verdict and recommended the Judicial District adopt a policy similar to one recently implemented in Arapahoe County during another high-profile capital trial.

Mr. Steadman also testified about the design of the Plaza, including the Restricted Areas. He indicated that the planters, gravel areas, and sidewalks were intentionally designed to “signal to the average user how to find their way, and where you should go and what the main travel ways are.” Mr. Steadman explained that the Patio and arced walkway’s “sole purpose is to allow people, the public, to enter and exit the [Courthouse] without being interfered with.” But Mr. Steadman also stated that, prior to imposition of the Order, protestors—including pamphleteers—were allowed to protest immediately in front of the doors to the Courthouse, provided they did not interfere with ingress or egress from the Courthouse. He explained that the “general response” of protestors was to cease their activities when requested by Courthouse security not to interfere with public access to the Courthouse. Mr. Steadman further testified that no person had ever been arrested for blocking ingress or egress from the Courthouse since it opened in 2010. Important to this appeal, Mr. Steadman acknowledged that Plaintiffs’ activities of passing out jury nullification literature did not present “any security risk” beyond what had previously been tolerated without incident throughout the time the Courthouse had been open.

The district court also accepted a proffer of Plaintiffs’ testimony, indicating that their intent was to approach people entering the Courthouse to discuss quietly the concept of jury nullification and to distribute their literature. Plaintiffs asserted that proximity to the front door of the Courthouse was key to their message because otherwise their intended audience—“people who are going to serve or are in fact serving on juries”—will “very frequently just bypass them” in the designated free speech zone by “walking on one of the sidewalks that is part of the [Restricted Areas].” By contrast, positioning themselves near the front door would allow Plaintiffs “to pass out literature to anyone who wants it” and “if people want to stop and talk about [it], they can then explain to them what the concept of jury nullification is.” Thus, according to Plaintiffs, the Order effectively prevented them from reaching their target audience. Finally, the district court accepted the parties’ jointly stipulated exhibits, which consisted of a series of images of the Plaza and Restricted Areas, as well as a copy of the Order.

Following the evidentiary hearing, the district court granted Plaintiffs’ request for a preliminary injunction. In doing so, the district court relied on Denver’s Stipulation that the Plaza was a public forum and the Judicial District’s position that resolving the forum status was not necessary because the Order “would satisfy even the strictest test.” The district court concluded Plaintiffs had demonstrated a likelihood of success on the merits because, treating the Restricted Areas as public fora, the Order’s complete ban on expressive activity was not narrowly tailored to accomplish a significant government interest.

Accordingly, the district court entered a carefully circumscribed preliminary injunction in favor of Plaintiffs. Specifically, the district court enjoined enforcement of Paragraph 1 of the Order against Plaintiffs “to the extent he or she is otherwise lawfully seeking to distribute and/or orally advocate the message contained in [Plaintiffs’ pamphlets]” in the Restricted Areas. But the district court expressly left the remainder of the Order in place.

Following entry of the preliminary injunction, the Judicial District moved to stay the injunction pending appeal pursuant to Rule 62(c) of the Federal Rules of Civil Procedure. In its motion to stay, the Judicial District introduced evidence that— subsequent to entry of the preliminary injunction—protesters had “descended on the Courthouse Plaza” and engaged in a pattern of disruptive and inappropriate behavior, including erecting canopies, harassing citizens seeking to enter the Courthouse, damaging the Courthouse landscaping, yelling and taunting court personnel, and posting signs in the planters and on the flagpoles in the Plaza. The Judicial District argued that a stay of the injunction was appropriate because protesters had been “emboldened” by the injunction to violate even the portions of the Order not subject to the injunction, thereby irreparably harming the Judicial District. The district court declined to stay the injunction, finding the Judicial District had not demonstrated a likelihood of success on appeal because the harm identified was not caused by the injunction. The district court reasoned the Judicial District and Denver were free to enforce the Order against the parties engaging in the complained-of disruptive behavior because such behavior was unlawful and not protected by the narrow injunction issued by the court with respect to Plaintiffs’ activities only.

The Judicial District now appeals. Exercising jurisdiction pursuant to 28 U.S.C. § 1292(a)(1), we affirm.

II. DISCUSSION

On appeal, the Judicial District raises two arguments. First, it asserts the district court erred when it concluded the Plaintiffs had demonstrated a likelihood of success in establishing the Restricted Areas are public fora. Second, the Judicial District argues the district court incorrectly applied strict scrutiny when evaluating the Order. As a result, the Judicial District asks this court to reverse the district court’s entry of the preliminary injunction and remand for further proceedings.

We review the district court’s grant of a preliminary injunction for abuse of discretion. Planned Parenthood of Kan. & Mid-Mo. v. Moser, 747 F.3d 814, 822 (10th Cir. 2014). “A district court abuses its discretion when it commits an error of law or makes clearly erroneous factual findings.” Id.

A. Scope of Review

Before addressing the merits of the parties’ arguments, we pause to clarify the scope of our review. The district court granted a narrow preliminary injunction drafted to address Plaintiffs’ First Amendment concerns related to their specific expressive activities. Although Plaintiffs asked the district court to prohibit enforcement of the entire Order, the court enjoined only the first paragraph, which imposes a complete ban on First Amendment activities—picketing, pamphleteering, protesting—within the Restricted Areas. The district court left in place the rest of the Order, including the prohibitions against obstructing Courthouse entrances, erecting structures, and using sound amplification equipment in the Restricted Areas.

The district court further limited the scope of the preliminary injunction by enjoining the first paragraph of the Order only as to Plaintiffs’ specific pamphleteering activities. In fact, the court enjoined enforcement of the Order only as to Plaintiffs’ distribution and discussion of two specifically identified pamphlets. The Judicial District remains free to enforce the first paragraph of the Order—even against Plaintiffs—for all other First Amendment activities within the Restricted Areas.

Finally, the district court limited the geographic scope of the injunction. Although the Order prohibits First Amendment activity both inside and outside the Courthouse, the district court enjoined enforcement of Paragraph 1 as to Plaintiffs only outside the Courthouse, leaving the entirety of the Order intact within the Courthouse. And the district court did not enjoin enforcement of any part of the Order within those portions of the Restricted Areas dedicated to Courthouse landscaping and security features. Thus, the Order continues to prohibit all expressive activity in the planter boxes or other landscaping and in the gravel security areas. Accordingly, the features of the Restricted Area to which the preliminary injunction applies are limited to (1) the arced walkway running south from Colfax Avenue between the gravel security area (to the west of the walkway) and a raised planter (to the east of the walkway) and ending at the Patio area at the main entrance on the east side of the Courthouse; 2 and (2) the Patio area at the main entrance. 3

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2 As discussed, the Order’s prohibition on expressive activities in the planter and gravel security areas were not enjoined by the district court.

3 The evidence presented about the geographic layout and physical features of the Restricted Area consisted primarily of approximately fifteen photographs. Because the record contains little testimony about the photographs, we rely on our own review of them to describe the Restricted Areas. In particular, it is unclear whether and to what extent the Restricted Areas include the sidewalk running along Fox Street on the west side of the Courthouse. The exhibit appears to highlight some areas of the sidewalk, but counsel for the Judicial District conceded at oral argument that it would be “constitutionally questionable” to prevent speech on a public sidewalk, and then indicated “[t]hat is precisely why the order here does not extend that far.” Therefore, we do not treat the Fox Street sidewalk as part of the Restricted Areas for purposes of our analysis.
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Our task in this appeal is to determine whether the district court abused its discretion when, based on the record before it at the preliminary injunction hearing, it issued this narrow, targeted injunction. But the Judicial District asks us to consider events occurring after the preliminary injunction hearing to determine whether the district court abused its discretion in issuing the preliminary injunction. Specifically, the Judicial District points to evidence introduced during the Rule 62(c) hearing on the motion to stay the injunction pending appeal, which indicated that following the injunction, protestors had engaged in a series of inappropriate and disruptive behaviors. Some of these behaviors included harassing court personnel seeking to enter the Courthouse, erecting canopies and signs, and trampling Courthouse landscaping. According to the Judicial District, these post-injunction events demonstrate the “concrete concerns” motivating the creation of the Restricted Areas and therefore should have been considered by the district court.

Although we share the Judicial District’s concern about the disruptions created by some protestors following issuance of the injunction, these post-injunction events are not relevant to our resolution of this interlocutory appeal for two reasons. First, this evidence relates to events occurring after the preliminary injunction issued, and therefore none of it was presented to the district court at the hearing. We will not hold that the district court abused its discretion based on evidence not before it when it ruled. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998) (noting the general principle, in the context of de novo review of a summary judgment disposition, that we conduct our review “from the perspective of the district court at the time it made its ruling, ordinarily limiting our review to the materials adequately brought to the attention of the district court by the parties”); Theriot v. Par. of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999) (“An appellate court may not consider . . . facts which were not before the district court at the time of the challenged ruling.”). Cf. Ambus v. Granite Bd. of Educ., 975 F.2d 1555, 1569 (10th Cir. 1992) (“[W]e will not reverse the grant of summary judgment . . . based on evidence not before the district court.”). Accordingly, our review is limited to the evidence before the district court at the time of the preliminary injunction hearing, and we will not consider post-injunction events.

Second, even if we were to consider the post-decision evidence, it would not alter our analysis. The evidence the Judicial District relies on to demonstrate the negative effects of the preliminary injunction, in fact, does not implicate the injunction at all. As discussed, the preliminary injunction enjoins enforcement of Paragraph 1 of the Order specifically against Plaintiffs’ pamphleteering activities in certain parts of the Restricted Areas. The district court expressly allowed the Judicial District to continue enforcing the entire Order as to all other parties and all other First Amendment activities in the Restricted Areas. Importantly, the preliminary injunction does not affect the Judicial District’s ability to enforce the Order against any protestors, including the Plaintiffs, who engage in disruptive behaviors. For example, the injunction does not prohibit the Judicial District from taking action against protestors who obstruct Courthouse entrances, damage the Courthouse landscaping, or erect structures. All of this behavior remained prohibited by the Order after issuance of the injunction. In short, nothing in the preliminary injunction before us on appeal interferes with the Judicial District’s or Denver’s ability to enforce the Order against anyone, including Plaintiffs, engaging in such behavior.

The evidence of post-injunction bad behavior of some protestors may be relevant on remand to a motion to modify the injunction4 or to the district court’s ultimate decision on whether to issue a permanent injunction. But for the purposes of this appeal, we limit our review to the evidence before the district court at the time it issued the preliminary injunction.

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4 As the district court noted, the Judicial District did not move to modify the preliminary injunction based on changed circumstances. See Fed. R. Civ. P. 60(b)(5) (allowing a party to obtain relief from a judgment or order when “applying [the judgment or order] prospectively is no longer equitable”); Horne v. Flores, 557 U.S. 433, 447 (2009) (noting that under Rule 60(b)(5) “[t]he party seeking relief bears the burden of establishing that changed circumstances warrant relief”).
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B. Abuse of Discretion

We now turn our attention to the question of whether the district court abused its discretion when it issued the preliminary injunction.

To obtain a preliminary injunction the moving party must demonstrate: (1) a likelihood of success on the merits; (2) a likelihood that the moving party will suffer irreparable harm if the injunction is not granted; (3) the balance of equities is in the moving party’s favor; and (4) the preliminary injunction is in the public interest.

Republican Party of N.M. v. King, 741 F.3d 1089, 1092 (10th Cir. 2013). In the First Amendment context, “the likelihood of success on the merits will often be the determinative factor” because of the seminal importance of the interests at stake. Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1145 (10th Cir. 2013) (internal quotation marks omitted); see also Heideman v. S. Salt Lake City, 348 F.3d 1182, 1190 (10th Cir. 2003) (“[T]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”).

1. The district court did not abuse its discretion in finding the second, third, and fourth factors weighed in Plaintiffs’ favor.

Here, the district court found the second (irreparable harm), third (balance of equities), and fourth (public interest) factors weighed in Plaintiffs’ favor in light of the important First Amendment interests at stake. As an initial matter, the Judicial District has not challenged the district court’s determination as to these factors beyond a single footnote in its opening brief stating it had challenged them before the district court. A party’s offhand reference to an issue in a footnote, without citation to legal authority or reasoned argument, is insufficient to present the issue for our consideration. See San Juan Citizens All. v. Stiles, 654 F.3d 1038, 1055–56 (10th Cir. 2011). Accordingly, the Judicial District has waived any challenge to the district court’s findings related to the elements of irreparable harm, the balance of equities, and the public interest. But even if the Judicial District had properly challenged these factors on appeal, we would nevertheless affirm the district court’s conclusion that they weigh in Plaintiffs’ favor.

The Supreme Court has instructed that “[t]he 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 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.”). There is no dispute that Plaintiffs’ pamphleteering constitutes First Amendment activity. See McCullen v. Coakley, 134 S. Ct. 2518, 2536 (2014) (recognizing that one-on-one communication and leafletting are First Amendment-protected activities). And the Judicial District does not dispute that the Order would bar Plaintiffs from engaging in their pamphleteering in the Restricted Areas. Accordingly, the district court did not abuse its discretion in finding that the factor of irreparable harm weighs in Plaintiffs’ favor.

The third factor—balance of equities—also tips in Plaintiffs’ favor. Before the district court, Plaintiffs proffered testimony that the Order would substantially impair their ability to convey their intended message to their target audience because it would prevent Plaintiffs from approaching potential jurors and engaging in a meaningful discussion of jury nullification. The district court also heard testimony from Mr. Steadman that Plaintiffs’ distribution of jury nullification literature and one-on-one discussions with potential jurors did not present a security risk. And the Judicial District presented no evidence that Plaintiffs’ activities otherwise interfered with Courthouse functions. On this record, the district court did not abuse its discretion in finding the balance of equities weighed in favor of Plaintiffs. See Awad, 670 F.3d at 1132 (“Delayed implementation of a [governmental] measure that does not appear to address any immediate problem will generally not cause material harm, even if the measure were eventually found to be constitutional and enforceable.”).

As to whether the preliminary injunction is in the public interest, we agree with the district court that “it is always in the public interest to prevent the violation of a party’s constitutional rights.” Id. (internal quotation marks omitted); Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221, 1237 (10th Cir. 2005) (“Vindicating First Amendment freedoms is clearly in the public interest.”). The district court did not abuse its discretion in finding the public interest was served by issuing the preliminary injunction to prevent the violation of Plaintiffs’ First Amendment rights.

Thus, we agree the second, third, and fourth factors weigh in Plaintiffs’ favor. The only remaining question, then, is whether the district court abused its discretion in finding Plaintiffs demonstrated a likelihood of success on the merits. 5 Specifically, we must determine whether the Order violated Plaintiffs’ First Amendment right to distribute jury nullification pamphlets and engage in one-on-one conversations with individuals entering and leaving the Courthouse.

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5 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). “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). But because we conclude the district court did not abuse its discretion in finding Plaintiffs demonstrated a likelihood of success on the merits, we need not decide whether this more lenient test applies.
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2. On this record, the district court did not abuse its discretion in finding Plaintiffs demonstrated a likelihood of success on the merits.

To demonstrate a violation of their First Amendment rights, Plaintiffs must first establish that their activities are protected by the First Amendment. See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797 (1985). If so, a court must identify whether the challenged restrictions impact a public or nonpublic forum, because that determination dictates the extent to which the government can restrict First Amendment activities within the forum. See id. Finally, courts must determine whether the proffered justifications for prohibiting speech in the forum satisfy the requisite standard of review. Id. We address each element in turn.

a. Plaintiffs’ activities are protected by the First Amendment

The Supreme Court recently reaffirmed that pamphleteering and one-on-one communications are First-Amendment-protected activities. See McCullen, 134 S. Ct. at 2536. The Court “observed that one-on-one communication is the most effective, fundamental, and perhaps economical avenue of political discourse” and that “no form of speech is entitled to greater constitutional protection” than leafletting. Id. (internal quotation marks and alteration omitted). The Court went on to state, “[w]hen the government makes it more difficult to engage in these modes of communication, it imposes an especially significant First Amendment burden.” Id. Thus, Plaintiffs’ activities are protected by the First Amendment.

b. The district court did not abuse its discretion by assuming for purposes of analysis that the Restricted Areas are public fora

To properly place the district court’s decision in context, we begin with a brief discussion of the significance of forum status to the protection afforded under the First Amendment to public speech on government property. We then review the argument presented by the Judicial District to the district court regarding the forum status of the Restricted Areas here. Because the Judicial District either made a strategic decision to forgo any argument that the Restricted Areas are nonpublic fora, or inadequately presented that argument to the district court, we conclude the argument is waived. As a result, the district court did not abuse its discretion by scrutinizing the Order under public forum analysis for purposes of the preliminary injunction motion.

Turning now to the constitutional restrictions on speech, our analysis is guided by Plaintiffs’ wish to engage in First Amendment-protected activity on government property. “Nothing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker’s activities.” Cornelius, 473 U.S. at 799–800. But in some instances, the public may have acquired by tradition or prior permission the right to use government property for expressive purposes. See id. at 802. To determine when and to what extent the Government may properly limit expressive activity on its property, the Supreme Court has adopted a range of constitutional protections that varies depending on the nature of the government property, or forum. Id. at 800.

The Court has identified three types of speech fora: the traditional public forum, the designated public forum, and the nonpublic forum. Id. at 802. Traditional public fora are places that by long tradition have been open to public assembly and debate. See id.; Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983) (“At one end of the spectrum are streets and parks which ‘have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.’” (quoting Hague v. Comm. for Indus. Org., 307 U.S. 496, 515 (1939))). In these traditional public fora, the government’s right to “limit expressive activity [is] sharply circumscribed.” Id. A designated public forum is public property, not constituting a traditional public forum, which the government has intentionally opened to the public for expressive activity. Id. The government is not required to retain the open character of the property indefinitely, but “as long as it does so, it is bound by the same standards as apply in a traditional public forum.” Id. at 46. If the property is not a traditional public forum and it has not been designated as a public forum, it is a nonpublic forum. “Access to a nonpublic forum . . . 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.’” 6 Cornelius, 473 U.S. at 800 (brackets omitted) (quoting Perry Educ., 460 U.S. at 46).

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6 Not relevant to this appeal, the Supreme Court has also recognized that the government can create a “limited public forum” by allowing “selective access to some speakers or some types of speech in a nonpublic forum,” while not opening “the property sufficiently to become a designated public forum.” Summum v. Callaghan, 130 F.3d 906, 916 (10th Cir. 1997) (citing Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829–30 (1995)).
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Because the nature of the forum dictates the standard of scrutiny with which restrictions on speech are reviewed, courts typically begin the analysis of a challenge to restrictions on speech involving government property by identifying the nature of the forum involved. See, e.g., Doe v. City of Albuquerque, 667 F.3d 1111, 1128 (10th Cir. 2012). But the procedural posture of this appeal restricts the scope of our inquiry. That is, we need not determine whether the Restricted Areas are, in fact, public or nonpublic fora to resolve this interlocutory appeal. Rather, our task is to determine whether the district court abused its discretion when it found, based on the evidence and arguments presented, that Plaintiffs had demonstrated a likelihood of success on the merits. See Atchison, Topeka & Santa Fe Ry. Co. v. Lennen, 640 F.2d 255, 261 (10th Cir. 1981) (“It is only necessary that plaintiffs establish a reasonable probability of success, and not an ‘overwhelming’ likelihood of success, in order for a preliminary injunction to issue.”). Because the Judicial District waived any argument that the Restricted Areas are nonpublic fora, we conclude the district court did not abuse its discretion by evaluating the Plaintiffs’ likelihood of success under the scrutiny applicable to public fora.

To explain our rationale for this conclusion, we track the evolution of the Judicial District’s arguments in the district court regarding the forum status of the Restricted Areas. Plaintiffs argued in their motion for preliminary injunction that the entire Plaza, including the Restricted Areas, constitutes a traditional public forum. Denver also stipulated with Plaintiffs that the Plaza is a public forum.

In response to the motion for preliminary injunction, the Judicial District claimed Plaintiffs were unlikely to prevail on the merits of their First Amendment claim because “[i]rrespective of Denver’s view of the courthouse plaza, it is not a traditional public forum. And even if it were, the [Order] comes nowhere near banning all expressive activity in that area. To the contrary, it is a reasonable time, place, and manner restriction.” But the Judicial District did not then provide any support for its assertion that the Plaza is not a public forum. Rather, it first claimed that Plaintiffs lacked standing to challenge the Order and then continued its argument under the heading, “This Court need not decide whether the plaza is a traditional public forum for the purposes of this proceeding.” Under that heading, the Judicial District asserted that the Stipulation between the Plaintiffs and Denver did not bind the Judicial District or the district court and that therefore “[t]he status of the plaza is an open question.” But, again, rather than present argument on the correct forum status of the Plaza or ask the district court to reach a contrary conclusion, the Judicial District stated the district court need not identify the precise forum status of the Restricted Areas “because [the Order] would satisfy even the strictest test.” That is, the Judicial District claimed that “[e]ven if Plaintiffs were correct that the entire plaza is a traditional public forum,” and thus subject to a higher standard of review, the Order was constitutional as a reasonable time, place, and manner restriction. The Judicial District maintained this tactical approach through oral argument on the motion for a preliminary injunction.

After the close of evidence at the hearing on Plaintiffs’ motion for a preliminary injunction, the district court attempted to clarify the Judicial District’s position:

THE COURT: In your briefing the Attorney General took the position that it doesn’t matter whether the area in question is a public forum or a non-public forum area, because the Attorney General believes that you can establish the grounds necessary under the standards to apply in either case.

JUDICIAL DIST.: To be clear, our position is that this is not a public forum. However, that is a factually intensive question that I don’t think the Court has been presented with sufficient evidence to decide today.

THE COURT: Well, I have a stipulation from the owner of the property that it is a public forum area.

JUDICIAL DIST.: I understand that. I don’t think that binds either [the Judicial District] or this Court.

THE COURT: Well, that’s something I need to decide, right?

JUDICIAL DIST.: Not necessarily.

THE COURT: Okay. But here’s what I am getting at. Your position is, whether it’s public or non-public, you believe that the . . . Plaza Order . . . is sufficiently narrowly tailored to meet the concerns of ingress and egress to the courthouse and threat to the public safety. Is that your position?

JUDICIAL DIST.: Yes. Our position is that the order satisfies time, place, and manner requirements. . . .

The discussion then proceeded under the assumption that the Order impacted a public forum and therefore had to be narrowly tailored. Recall that the government has broad discretion to restrict expressive activity in a nonpublic forum, irrespective of whether the restrictions are narrowly tailored. Perry Educ., 460 U.S. at 46. But, as will be discussed in more detail below, even content-neutral restrictions on speech in a public forum—whether a traditional public forum or a designated public forum—must be narrowly tailored to advance a significant government interest. See id. at 45–46.

Consistent with its acquiescence to the district court’s application of a public forum analysis at the preliminary injunction stage, the Judicial District limited its oral argument on the motion for preliminary injunction to the proper definition of “narrowly- tailored.” Tellingly, the Judicial District provided no argument relevant to whether the Restricted Area was, in fact, a public forum, or that the restrictions did not have to be narrowly tailored at all because they impacted only nonpublic fora. Instead, the Judicial District conceded that the evidence was insufficient to allow the district court to determine the forum status of the Restricted Areas. But it claimed the district court could proceed to the merits under a public forum analysis nevertheless, because the result would be the same whether the Restricted Areas were public or nonpublic fora. That is, the Judicial District argued the district court could assume for purposes of analysis that the Restricted Areas are public fora. And the district court did as suggested in its Order Granting Motion for Preliminary Injunction.

In the Preliminary Injunction Order’s discussion of the likelihood that Plaintiffs will succeed on the merits, the district court discussed forum in a section titled, “Is the Courthouse Plaza a Public Forum?” In this section, the district court considered the significance of the nature of the forum, the disagreement between Denver and the Judicial District on that issue, and the Stipulation between Denver and Plaintiffs that the Restricted Areas are public fora. Relying in part on the Stipulation, the district court concluded Plaintiffs are “likely to prevail in their claim that the Courthouse Plaza is at least a designated public forum, if not a traditional public forum.” But the district court also notes “the Second Judicial District has not specifically 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.’”

Our review of the record is consistent with the district court’s assessment of the Judicial District’s argument. During the briefing and argument to the district court in opposition to Plaintiffs’ motion for preliminary injunction, the Judicial District never provided legal argument supporting its conclusory statement that the Restricted Areas are nonpublic fora. As noted, it instead indicated the forum status of the Plaza was an open question the district court need not decide, and further conceded it was a question the district court could not decide based on the evidence presented. In sum, the Judicial District made the strategic decision to accept Plaintiffs’ characterization of the Restricted Areas as a public forum for purposes of analysis and to present only an argument that the Order is constitutional under the scrutiny applicable to restrictions of speech in public fora. And the Judicial District maintained that position throughout the district court proceedings.

The Judicial District filed a motion in the district court to stay the injunction pending appeal, in which it stated “courthouse plazas are not traditional public fora,” and cited, without further analysis, Hodge v. Talkin, 799 F.3d 1145 (D.C. Cir. 2015), a new decision at the time holding the plaza of the Supreme Court building is not a public forum. But again, the Judicial District did not seek a ruling that the Restricted Areas are nonpublic fora or provide reasoned analysis to support such a claim. Consistent with its earlier strategy, the Judicial District argued that “even if the [Courthouse Plaza] were a traditional public forum,” the district court applied the wrong level of scrutiny. Significantly, the Judicial District never claimed it could bar or reasonably restrict speech in the Restricted Areas because they were nonpublic fora; it argued the district court had erred because “[s]trict scrutiny applies only to content-based restrictions on speech in a public forum.”

For the first time on appeal, the Judicial District provides substantive argument for the claim that the Restricted Areas are nonpublic fora and, therefore, the district court should have considered only whether the content-neutral restrictions contained in the Order were reasonable. When a party pursues a new legal theory for the first time on appeal, we usually refuse to consider it. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127–28 (10th Cir. 2011); Lone Star Steel Co. v. United Mine Workers of Am., 851 F.2d 1239, 1243 (10th Cir. 1988) (“Ordinarily, a party may not lose in the district court on one theory of the case, and then prevail on appeal on a different theory.”).

As noted, the Judicial District was aware of the “open question” with respect to the forum status of the Restricted Areas but made the strategic decision to forgo presenting meaningful argument on this point. In its response brief to Plaintiffs’ motion for preliminary injunction filed with the district court, the Judicial District cited three cases in support of its statement that the forum question remains open. But it provided no argument incorporating those decisions into a cogent legal analysis of the Restricted Areas as nonpublic fora. See United States v. Wooten, 377 F.3d 1134, 1145 (10th Cir. 2004) (“The court will not consider such issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation.” (internal quotation marks omitted)). And although forum status is a fact-intensive inquiry, the Judicial District failed to explain how the particular facts here color that analysis. Cf. Fed. R. App. P. 28(a)(8)(A) (providing that appellant’s opening brief must contain an argument section that includes “appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies”).

Thus, the Judicial District has waived this issue, at least for purposes of our review of the preliminary injunction order. Richison, 634 F.3d at 1127 (explaining that if a party intentionally chooses not to pursue an argument before the district court, “we usually deem it waived and refuse to consider it”). 7 And the forum status issue is not properly before us even if we generously conclude the Judicial District presented alternative arguments to the district court that (1) the Restricted Areas are not public fora; or (2) even if the Restricted Areas are public fora, the Order can survive the applicable level of scrutiny. Although the Judicial District presented cogent legal argument on the second issue, it failed to present reasoned argument on the first to the district court. See Ark Initiative v. U.S. Forest Serv., 660 F.3d 1256, 1263 (10th Cir. 2011) (holding that the “scant discussion” of an issue in the district court “appear[ed] as an afterthought, and [did] not meet the standard for preserving an issue for review”).

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7 Even if this argument had been merely forfeited, it would nevertheless be an inappropriate basis for reversal because the Judicial District has not argued plain error. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011) (“And the failure to do so —the failure to argue for plain error and its application on appeal— surely marks the end of the road for an argument for reversal not first presented to the district court.”). Nor are we inclined to exercise our discretion to consider the forum status issue despite the failure to raise it to the district court because we agree with the Judicial District that the preliminary injunction record is inadequate for that purpose. Cf. Cox v. Glanz, 800 F.3d 1231, 1244–45 (10th Cir. 2015) (exercising discretion to consider forfeited argument on “clearly established” prong of qualified immunity).
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Our conclusion that the Judicial District failed to adequately present this issue to the district court is further supported by the district court’s view that “the Second Judicial District ha[d] not specifically argued for a finding that the Courthouse Plaza is a nonpublic forum.” Id. (“Not surprisingly, the district court never addressed” the issue.). Accordingly, the argument that the Restricted Areas are nonpublic fora was waived either by the Judicial District’s strategic decision not to present it, or by the Judicial District’s failure to adequately brief the issue. As such, the district court’s application of a public forum analysis is not a legitimate ground on which to reverse the preliminary injunction order.

We now address the only other challenge the Judicial District makes to the preliminary injunction: that the district court abused its discretion by applying the wrong test, even if the Restricted Areas are public fora.

c. The district court did not apply the wrong standard to the content-neutral restrictions imposed by the Order

Having determined the district court did not abuse its discretion by treating the Restricted Areas as public fora for purposes of analysis, we next consider whether the district court abused its discretion when it found Plaintiffs had demonstrated a likelihood of success on the question of whether the Order violated their constitutional rights under the relevant First Amendment standards. 8 In a public forum, the government cannot ban all expressive activity. Perry Educ., 460 U.S. at 45. But even in a public forum, the government can restrict speech through “content-neutral time, place, and manner restrictions that: (a) serve a significant government interest; (b) are narrowly tailored to advance that interest; and (c) leave open ample alternative channels of communication.” Doe, 667 F.3d at 1130–31. Content-based restrictions, however, “must satisfy strict scrutiny, that is, the restriction must be narrowly tailored to serve a compelling government interest.” Summum, 555 U.S. at 469.

The Judicial District argues the district court abused its discretion by applying an incorrect legal standard. Specifically, the Judicial District contends the district court applied the stringent strict scrutiny analysis reserved for content-based restrictions. And because the Order imposes only content-neutral restrictions, the Judicial District claims this was an abuse of discretion. Although we agree the restrictions are content-neutral, we are not convinced the district court applied the more stringent standard applicable to content-based restrictions.

The district court explained that under the relevant standard, “[t]he state may . . . 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.” On its face, then, the district court appears to have invoked the correct legal standard. Cf. Doe, 667 F.3d at 1130–31 (same). Nevertheless, the Judicial District argues that in considering whether the restrictions are “narrowly tailored,” the district court inappropriately applied the more demanding standard applicable to content-based regulations.

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8 “Government restrictions on speech in a designated public forum are subject to the same strict scrutiny as restrictions in a traditional public forum.” Pleasant Grove City v. Summum, 555 U.S. 460, 470 (2009). Thus, our analysis does not turn on whether the Restricted Areas are considered traditional or designated public fora.
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The term “narrowly tailored” appears in the tests for both content-based and content-neutral regulations on speech. See Doe, 667 F.3d at 1130–31 (indicating a content-neutral regulation must be “narrowly tailored” to advance a significant government interest); Pleasant Grove, 555 U.S. at 469 (stating that content-based restrictions “must be narrowly tailored to serve a compelling government interest”) (emphasis added)). And, as the Judicial District correctly notes, there are subtle differences in the way courts apply the concept of narrow tailoring in the two contexts. For the purposes of a content-neutral regulation, “the requirement of narrow tailoring is satisfied so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation, and does not burden substantially more speech than is necessary to further the government’s legitimate interests.” Wells v. City & Cty. of Denver, 257 F.3d 1132, 1148 (10th Cir. 2001) (ellipsis and internal quotation marks omitted). In contrast, a content-based restriction is narrowly tailored only if it is the least restrictive means of achieving the government’s compelling objective. See Ashcroft v. ACLU, 542 U.S. 656, 666 (2004); United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (2000).

According to the Judicial District, the district court considered alternatives to the Order that might have been employed to achieve the Judicial District’s objectives, and such consideration proves the district court applied the “least restrictive means” standard. In the Judicial District’s view, any inquiry into alternative means of achieving the government objective is inappropriate where, like here, the restrictions are content-neutral, rather than content-based, and thus not subject to the least restrictive alternative form of narrow tailoring. We disagree.

The Supreme Court has not discouraged courts from considering alternative approaches to achieving the government’s goals when determining whether a content- neutral regulation is narrowly tailored to advance a significant government interest. Although the Court has held that a content-neutral regulation “need not be the least restrictive or least intrusive means of serving the government’s interests,” it has also explained that “the government still may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.” McCullen, 134 S. Ct. at 2535 (internal quotation marks omitted). And when considering content-neutral regulations, the Court itself has examined possible alternative approaches to achieving the government’s objective to determine whether the government’s chosen approach burdens substantially more speech than necessary. Id. at 2537–39. That is, the government may not “forgo[] options that could serve its interests just as well,” if those options would avoid “substantially burdening the kind of speech in which [Plaintiffs’] wish to engage.” Id. at 2537; id. at 2539 (“The point is not that [the government] must enact all or even any of the proposed [alternative approaches]. The point is instead that the [government] has available to it a variety of approaches that appear capable of serving its interests, without excluding individuals from areas historically open for speech and debate.”). Thus, “[t]o meet the requirement of narrow tailoring [in the context of content-neutral regulations], the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier.” Id. at 2540.

As a result, we cannot conclude the district court applied the wrong legal standard merely because it considered whether the Judicial District had options other than the complete ban on speech contained in Paragraph 1 of the Order that would equally serve its interests. We now turn our attention to whether, under the standard applicable to content-neutral regulations in a public forum, the district court abused its discretion when it found Plaintiffs had demonstrated a likelihood of success on the question of whether the Order survives constitutional scrutiny.

d. The district court did not abuse its discretion by concluding that Plaintiffs were likely to succeed on the merits

As discussed, for purposes of the preliminary injunction analysis, the Judicial District acquiesced in the district court’s acceptance of Plaintiffs’ characterization, and Denver’s Stipulation, that the Restricted Areas are public fora. Under that assumption, we can easily conclude the district court did not abuse its discretion in finding Plaintiffs were likely to succeed on their claim that a complete ban of their expressive activities violates the First Amendment. Our resolution of this issue is informed by the Supreme Court’s recent decision in McCullen, which is highly analogous.

In McCullen, the Supreme Court considered the constitutionality of a state law creating thirty-five-foot buffer zones around the entrances of facilities where abortions are performed. Id. at 2525. The McCullen plaintiffs wished to approach and talk to women outside such facilities —to engage in “sidewalk counseling”— in an attempt to dissuade the women from obtaining abortions. Id. at 2527. The buffer zones forced the McCullen plaintiffs away from their preferred positions outside the clinics’ entrances, thereby hampering their sidewalk counseling efforts. Id. at 2527–28. The McCullen plaintiffs brought suit, arguing the buffer zones restricted their First Amendment rights and seeking to enjoin enforcement of the statute creating the buffer zones. Id. at 2528. After the First Circuit upheld the statute as a reasonable content-neutral time, place, and manner restriction, the Supreme Court granted certiorari. Id.

The Court began its analysis by recognizing that the buffer-zone statute operated to restrict speech in traditional public fora: streets and sidewalks. Id. at 2529. It then held the buffer-zone statute was a content-neutral restriction because violations of the act depended not on what the plaintiffs said, but on where they said it. Id. at 2531 (“Indeed, petitioners can violate the Act merely by standing in a buffer zone, without displaying a sign or uttering a word.”). The Court then proceeded to apply the test for content-neutral restrictions in a public forum, assessing whether the buffer-zone statute was “narrowly tailored to serve a significant governmental interest.” Id. at 2534. Because the plaintiffs had not challenged the significance of the government’s asserted interests, the Court’s analysis largely focused on the question of whether the statute was narrowly tailored to serve that interest.

The Court noted the buffer zones placed serious burdens on the plaintiffs’ speech activities. Id. at 2535. Specifically, by preventing the plaintiffs from engaging in quiet, one-on-one conversations about abortion and distributing literature, the buffer zones “operate[d] to deprive petitioners of their two primary methods of communicating with patients.” Id. at 2536. Although the First Amendment does not guarantee a right to any particular form of speech, the Supreme Court explained that some forms of speech -one-on-one conversation and leafletting on public sidewalks— “have historically been more closely associated with the transmission of ideas than others.” Id. The Court held that “[w]hen the government makes it more difficult to engage in [one-on-one communication and leafletting], it imposes an especially significant First Amendment burden.” Id.

The Court also rejected the idea that the buffer zones were constitutional because they left ample alternative channels for communication. Id. at 2536–37. In McCullen, the size of the buffer zone made it difficult to distinguish persons headed to the clinic from passersby “in time to initiate a conversation before they enter[ed] the buffer zone.” Id. at 2535. As a result, the plaintiffs were often forced to raise their voices from outside the buffer zone once they identified the clinic patients, thereby forcing a mode of communication contrary to their compassionate message and preventing them from distributing pamphlets. Id. at 2535-36. Where the plaintiffs wished to engage in quiet conversations with women seeking abortions and not in noisy protest speech, the Court held it was “no answer to say that petitioners can still be ‘seen and heard’ by women within the buffer zones.” Id. at 2537. Instead, the Supreme Court concluded the thirty-five foot buffer zones had “effectively stifled petitioners’ message” by prohibiting the plaintiffs’ chosen means of communication. Id.

Finally, the Court held the buffer zones burdened substantially more speech than necessary to achieve the state’s asserted interests in public safety, preventing harassment of women and clinic staff seeking entrance to clinics, and preventing deliberate obstruction of clinic entrances. Id. Although the Court acknowledged the importance of these interests, it determined the state’s chosen method of achieving them —categorically excluding most individuals from the buffer zones— was not narrowly tailored. Id. at 2537–41. That is, the Court held the government had not demonstrated “that alternative measures that burden substantially less speech would fail to achieve the government’s interests.” Id. at 2540. In so doing, the Court expressly rejected the argument that the government could choose a particular means of achieving its interests merely because that method was easier to administer. Id.

Here, the Order imposes substantially similar restrictions on Plaintiffs’ First Amendment activities as the buffer-zone statute did in McCullen. Specifically, the Order imposes a categorical ban on First Amendment activity within the Restricted Areas. This ban effectively destroys Plaintiffs’ ability to engage in one-on-one communication and leafletting within the Restricted Areas. And the record is silent on whether Plaintiff could adequately identify and thereby engage in their preferred method of communication before the public entered the Restricted Areas. Where the district court’s preliminary injunction analysis was based on a public forum analysis and the record does not contain facts to distinguish McCullen, we cannot conclude that the district court abused its discretion in finding that the Plaintiffs are likely to succeed on the merits of their First Amendment claim.

Moreover, the Judicial District’s asserted interests in banning First Amendment activity in the Restricted Areas are largely identical to the government interests asserted in McCullen: unhindered ingress and egress and public safety. See id. We agree these interests are legitimate. But on this record at least, the district court did not abuse its discretion in concluding the means chosen to achieve those interests —a total ban on expressive activity— is not narrowly tailored, as even content-neutral regulations in a public forum must be. 9

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9 This is not to say that the Judicial District cannot impose content-neutral time, place, and manner restrictions that are narrowly-tailored to advance the significant interests it identifies. Indeed, several of the provisions contained in the Order were not enjoined by the district court. As one example, paragraph 4 of the Order prohibits the use of sound amplification equipment. This type of content-neutral restriction has long been upheld. See Ward v. Rock Against Racism, 491 U.S. 781, 796–97 (1989).
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In summary, the district court did not abuse its discretion by analyzing the issues at the preliminary injunction stage as if the Restricted Areas were public fora, or by considering alternative means of achieving the governmental interests in determining whether the Order is narrowly tailored to serve a significant government interest. Similarly, the district court did not abuse its discretion by finding Plaintiffs were likely to prevail on their claim that the complete prohibition of Plaintiffs’ plans to distribute pamphlets to people in a public forum is unconstitutional. See United States v. Apel, __ U.S. __, 134 S. Ct. 1144, 1154–55 (2014) (Ginsburg, J., concurring) (“When the Government permits the public onto part of its property, in either a traditional or designated public forum, its ‘ability to permissibly restrict expressive conduct is very limited.’” (quoting United States v. Grace, 461 U.S. 171, 177 (1983)).

Nevertheless, because the question of the forum status of the Restricted Areas will remain central to the district court’s permanent injunction analysis on remand, we now address principles relevant to the resolution of this issue. See Cook v. Rockwell Int’l Corp., 618 F.3d 1127, 1142 n.15 (10th Cir. 2010) (“[I]t is proper to . . . decide questions of law raised in this appeal that are certain to arise again . . . in order to guide the district court on remand.”). In doing so, we express no opinion as to the merits of that question.

C. Issues on Remand

To determine whether a permanent injunction should be granted, the district court must reach a final decision on the First Amendment issues in this case. Because the relevant First Amendment test varies according to the nature of the forum involved and because the Judicial District will presumably contest Plaintiffs’ characterization of the Restricted Areas as public fora, the district court is required to first determine the forum status of the Restricted Areas. In resolving this question, the parties must present evidence, and the district court must enter factual findings supporting its conclusion, that each of the Restricted Areas constitutes a traditional public forum, a designated public forum, or a nonpublic forum. See, e.g., Huminski v. Corsones, 396 F.3d 53, 90–92 (2d Cir. 2004) (separately considering the forum status of state courthouses, court lands/grounds, and parking lots); Sammartano v. First Judicial Dist. Ct., 303 F.3d 959, 966–68 (9th Cir. 2002) (concluding plaintiffs were likely to succeed on First Amendment challenge to rule restricting expressive clothing in municipal complex, including courtrooms, because the rule “does not differentiate between courtrooms and other public areas”), abrogated on other grounds by Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008); United States v. Gilbert, 920 F.2d 878, 884 (11th Cir. 1991) (Gilbert I) (holding portions of courthouse grounds were designated public fora, while other parts of the grounds were nonpublic fora). We summarize the relevant precedent on these issues now in an attempt to aid the district court and the parties in this task on remand. In addition, we provide some limited guidance to the district court and the parties on the tension between the Judicial District and Denver over the appropriate use of the Restricted Areas.

1. Traditional Public Fora

The Supreme Court has long recognized “that public places historically associated with the free exercise of expressive activities, such as streets, sidewalks, and parks, are considered, without more, to be public forums.” United States v. Grace, 461 U.S. 171, 177 (1983) (internal quotation marks omitted); see also Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983) (identifying as “quintessential” public fora those spaces that “time out of mind[] have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions”). Here, the Restricted Areas include the arced walkway that runs from the corner of Elati Street and Colfax Avenue in a curved path across the front of the Courthouse to the Patio in front of the main entrance to the Courthouse. The inclusion of this area raises at least a question concerning its status as traditional a public forum.

The Supreme Court has also cautioned, however, that not all streets and sidewalks are traditional public fora. See United States v. Kokinda, 497 U.S. 720, 727 (1990) (discussing a postal sidewalk “constructed solely to provide for the passage of individuals engaged in postal business” from the parking area to the post office door); Greer v. Spock, 424 U.S. 828, 835–37 (1976) (speech restrictions on a military reservation that contained streets and sidewalks). Instead, the particular characteristics of a sidewalk are highly relevant to the inquiry. See Grace, 461 U.S. at 179–80. “The mere physical characteristics of the property cannot dictate” the outcome of the forum analysis. Kokinda, 497 U.S. at 727. Rather, “the location and purpose of a publicly owned sidewalk is critical to determining whether such a sidewalk constitutes a public forum.” Id. at 728–29.

The Supreme Court’s discussion in Grace is likely to be of particular relevance on remand. In Grace, the Court considered whether a federal statute prohibiting expressive activities on the Supreme Court’s grounds could be constitutionally applied to the adjacent public sidewalks. 461 U.S. at 172–73. The Court found the public sidewalks along the perimeter of the grounds were physically indistinguishable from other public sidewalks in Washington, D.C. Id. at 179. “There is no separation, no fence, and no indication whatever to persons stepping from the street to the curb and sidewalks that serve as the perimeter of the Court grounds that they have entered some special type of enclave.” Id. at 180. See also Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 680 (1992) (“[W]e have recognized that the location of property also has a bearing [on whether it is a traditional public forum] because separation from acknowledged public areas may serve to indicate that the separated property is a special enclave, subject to greater restriction.”). In the absence of some physical distinction between typical public sidewalks and the sidewalks making up the perimeter of the Court grounds, the Court in Grace held the perimeter sidewalks were traditional public fora, subject only to those restrictions normally allowed in such spaces. 461 U.S. at 180. Thus, on remand here, the district court must determine whether the evidence supports a finding that the arced walkway is physically distinguishable from other public sidewalks.

But the physical similarity to public sidewalks is not alone determinative of these sidewalks’ forum status. In Kokinda, the Supreme Court held that a sidewalk owned by and in front of a United States Post Office was not a traditional public forum, despite the fact that it was physically identical to a public sidewalk across the parking lot from the post office entrance. 497 U.S. at 727. The Court reasoned the post office sidewalk did not share the characteristics of a sidewalk open to the public at large. Although the public sidewalk formed a public passageway that served as a general thoroughfare, in contrast, “the postal sidewalk was constructed solely to provide for the passage of individuals engaged in postal business.” Id. As a result, the Court held the postal sidewalk was not a traditional public forum. Id. at 729–30. Accordingly, the evidence and findings of fact on remand should be focused on the physical characteristics and the intended and actual use of any sidewalks included in the Restricted Areas.

Importantly, the mere fact a sidewalk abuts a courthouse or its grounds is not determinative of the forum status of the sidewalk. 10 The Grace Court expressly rejected the idea that a traditional public forum could be transformed into a nonpublic forum merely because of its physical proximity to government property. 461 U.S. at 180. The Court stated

[t]raditional public forum property occupies a special position in terms of First Amendment protection and will not lose its historically recognized character for the reason that it abuts government property that has been dedicated to a use other than as a forum for public expression. Nor may the government transform the character of the property by the expedient of including it within the statutory definition of what might be considered a non-public forum parcel of property.

Id.; see also Rodney A. Smolla, 1 Smolla & Nimmer on Freedom of Speech § 8:32 (“With the development of modern public forum doctrine, courts increasingly have come to recognize that they are not immune from the rules set down for other public property.”). In Grace, the Supreme Court concluded, “[w]e are convinced . . . that the [statute], which totally bans the specified communicative activity on the public sidewalks around the Court grounds, cannot be justified as a reasonable place restriction primarily because it has an insufficient nexus with any of the public interests [asserted].” 461 U.S. at 181. Similarly, the fact that the arced walkway abuts the Courthouse here is not determinative alone of its forum status.

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10 The cases relied on by the Judicial District do not support the blanket proposition that all courthouse grounds are automatically nonpublic fora merely because they physically abut a courthouse. Rather, these cases first conclude the grounds are not a traditional public forum and then carefully consider the physical characteristics of the government property, as well as the prior use of that property for expressive activities, to determine its forum status. See Huminski v. Corsones, 396 F.3d 53, 90–92 (2d Cir. 2004) (holding courthouses were nonpublic fora where buildings housing the courts had not been traditionally open to the public for expressive activities and such activities inside the courthouse would likely be incompatible with the purposes the courthouse serves); Sammartano v. First Judicial Dist. Ct., 303 F.3d 959, 966 (9th Cir. 2002) (holding civil complex, including courts and public offices had not “by long tradition or by government fiat” been open to public expression and agreeing with parties that it was a nonpublic forum), abrogated on other grounds by Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008). See also United States v. Gilbert (Gilbert I), 920 F.2d 878, 884–85 (11th Cir. 1991) (considering prior expressive activities on different areas of court grounds and holding some portions had been designated as public fora, while other parts of the grounds were nonpublic fora).
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The district court will also be required to decide the forum status of the Patio before it can apply the proper standard to restrictions on expressive activity in that Restricted Area. The D.C. Circuit recently applied the Court’s forum analysis in Grace to the question of whether the plaza in front of the Supreme Court was a traditional public forum. See Hodge v. Talkin, 799 F.3d 1145, 1158 (D.C. Cir. 2015), petition for cert. filed, 84 U.S.L.W. 3388 (U.S. Jan. 4, 2016) (No. 15-863). The court’s analysis focused on the plaza’s physical characteristics, emphasizing the architectural integration of the plaza with the Supreme Court building itself, as well as the physical separation between the plaza and the perimeter sidewalks. Id. at 1158–59. In particular, the D.C. Circuit relied on evidence that the Supreme Court plaza is elevated from the public sidewalk by a set of marble steps that contrast with the public sidewalk, but match the steps leading to the entrance of the Supreme Court building. It also relied on evidence that the plaza is surrounded by a low wall that matches the wall surrounding the Supreme Court building. Id. at 1158. According to the court, a visitor would be on notice that the pathway to the Supreme Court begins on the plaza. Id. Because the physical characteristics of the plaza indicated an intentional separation from the surrounding sidewalks and because the plaza had not traditionally been a space open for expressive activities, the D.C. Circuit held the Supreme Court plaza was a nonpublic forum. Id. at 1159–60.

Here, the parties should present evidence and the district court should make findings about the physical characteristics of the arced walkway and Patio, with attention to the ways in which each is distinguished from public sidewalks and the public areas of the Plaza. Specifically, the district court should consider whether it would be apparent to a visitor that by entering the Patio he is entering an enclave connected with the Courthouse and whether the use of the arced walkway is limited to courthouse ingress and egress.

?2. Designated Public Fora

If the district court finds that one or more of the Restricted Areas is not a traditional public forum, it must next consider whether the Restricted Area has been nevertheless designated as public fora. The Supreme Court has explained that “a government entity may create ‘a designated public forum’ if government property that has not traditionally been regarded as a public forum is intentionally opened up for that purpose.” Pleasant Grove City v. Summum, 555 U.S. 460, 469 (2009) (holding that placement of certain privately donated permanent monuments in public park while rejecting others constituted government, not public, speech). To create a designated public forum, “the government must make an affirmative choice to open up its property for use as a public forum.” United States v. Am. Library Ass’n, Inc., 539 U.S. 194, 206 (2003) (holding that library’s provision of internet access did not open a designated public forum, but was offered as a technological extension of its book collection). The Court has further cautioned that “[t]he government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse.” Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 802 (1985). See also Walker v. Tex. Div., Sons of Confederate Veterans, Inc., ___ U.S. ___, 135 S. Ct. 2239, 2249–50 (2015) (holding that Texas did not intentionally open its license plates to public discourse). Thus, the government’s intent is the focus of this inquiry. See Cornelius, 473 U.S. at 802; see also Gen. Media Commc’ns, Inc. v. Cohen, 131 F.3d 273, 279 (2d Cir. 1997) (“Governmental intent is said to be the ‘touchstone’ of forum analysis.”), as corrected and reported at 1997 U.S. App. LEXIS 40571, *15 (March 25, 1998).

The Supreme Court has further instructed that it “will not find that a public forum has been created in the face of clear evidence of a contrary intent, nor will [it] infer that the government intended to create a public forum when the nature of the property is inconsistent with expressive activity.” Cornelius, 473 U.S. at 803. If the “principal function of the property would be disrupted by expressive activity,” the Supreme Court is “particularly reluctant” to conclude the government designated it as a public forum. Id. at 804. Consequently, prohibitions on speech within a courthouse have been routinely upheld. 11 See, e.g., Hodge, 799 F.3d at 1158 (upholding statute banning expressive activities within Supreme Court building); Mezibov v. Allen, 411 F.3d 712, 718 (6th Cir. 2005) (“The courtroom is a nonpublic forum.”); Huminski, 396 F.3d at 91 (collecting cases and holding that the interior of a courthouse is not a public forum); Sefick v. Gardner, 164 F.3d 370, 372 (7th Cir. 1998) (“The lobby of the courthouse is not a traditional public forum or a designated public forum, not a place open to the public for the presentation of views. No one can hold a political rally in the lobby of a federal courthouse.”); Berner v. Delahanty, 129 F.3d 20, 26 (1st Cir. 1997) (holding that courtroom is a nonpublic forum).

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11 The preliminary injunction here does not enjoin the Order’s restrictions on speech within the Courthouse.
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Under facts similar to those here, the Seventh Circuit held the plaintiffs had no First Amendment right to distribute jury nullification pamphlets in the lobby of the county courthouse. Braun v. Baldwin, 346 F.3d 761, 764 (7th Cir. 2003) (“[Plaintiffs] have no greater right than a criminal defendant’s lawyer to tell jurors in the courthouse to disobey the judge’s instructions.” (emphasis added)). See also United States v. Ogle, 613 F.2d 233 (10th Cir. 1979) (upholding conviction for jury tampering where the defendant, who did not raise a First Amendment defense, attempted to have jury nullification literature delivered to a juror in a pending case).

Although there is little doubt the interior of a courthouse is a nonpublic forum, the forum status of a courthouse’s exterior is dependent upon the unique facts involved. Compare Grace, 461 U.S. at 182 (acknowledging “necessity to protect persons and property or to maintain proper order and decorum within the Supreme Court grounds,” but striking as unconstitutional a ban on expressive activities on abutting sidewalks), with Cox v. Louisiana, 379 U.S. 559, 562–64, 572–74 (1965) (upholding statute prohibiting demonstration outside a courthouse intended to affect the outcome of pending criminal charges, but reversing defendant’s conviction pursuant to the statute under the circumstances). In determining whether the government “intended to designate a place not traditionally open to assembly and debate as a public forum,” the Supreme Court “has looked to the policy and practice of the government and to the nature of the property and its compatibility with expressive activity.” Walker, 135 S. Ct. at 2250 (internal quotation marks omitted).

Applying these principles, the Eleventh Circuit reached contrary conclusions regarding different portions of the grounds of a federal building housing a federal district court and federal agencies. Gilbert I, 902 F.2d at 884. In Gilbert I, the plaintiff challenged an injunction prohibiting him from using the federal building as his home and from engaging in certain expressive activities in and around the building. The ground level of the federal building included an interior lobby and, outside the lobby doors, a covered portico leading to an uncovered plaza. Id. at 880–81. Because demonstrations had occurred frequently on the uncovered plaza, the Eleventh Circuit held the uncovered plaza had been designated as a public forum. In contrast, it determined the covered portico area was not a public forum. In reaching that conclusion, the court relied in part on the district court’s finding that the Government Services Agency (GSA) had an unwritten policy of excluding demonstrators from the covered portico. Although there was evidence demonstrators had occasionally used the portico during protest activities, the Eleventh Circuit relied on the district court’s finding that these were “isolated instances of undiscovered violations” of the GSA policy and not the intentional “opening of a nontraditional forum for public discourse.” 12 Id. at 884–85.

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12 After the Eleventh Circuit issued this decision, an unrelated security issue caused the GSA to place a row of planters across the uncovered plaza and to issue a statement limiting the public forum to the area between the planters and the public street. Mr. Gilbert again sued and the circuit court upheld the district court’s ruling that the GSA had effectively withdrawn the area between the planters and the building previously designated as a public forum. See United States v. Gilbert (Gilbert III), 130 F.3d 1458, 1461 (11th Cir. 1997) (“The government is not required to retain indefinitely the open character of a facility.”). Between Gilbert I and Gilbert III, the Eleventh Circuit upheld Mr. Gilbert’s conviction for obstructing the entrance to the federal building. United States v. Gilbert (Gilbert II), 47 F.3d 1116, 1117 (11th Cir. 1995).
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As the decision in Gilbert I demonstrates, the issue of whether an area associated with a courthouse has been designated as a public or nonpublic forum is highly dependent on the evidence of the government’s intent to open the area to public speech. That intent can be established by the government’s policy statements, 13 affirmative actions by the government to designate the area as a public forum, 14 stipulation, 15 the compatibility of expressive activity with the principal function of the property, 16 and whether and the frequency with which public speech has been permitted in the forum. 17 To avoid post hoc justification for a desire to suppress a particular message, courts have considered the government’s statement of policy in light of the government’s actual practice. Air Line Pilots Ass’n, Int’l v. Dep’t of Aviation of City of Chi., 45 F.3d 1144, 1153–54 (7th Cir. 1995) (“[A] court must examine the actual policy —as gleaned from the consistent practice with regard to various speakers— to determine whether a state intended to create a designated public forum.”); Hays Cty. Guardian v. Supple, 969 F.2d 111, 117–18 (5th Cir. 1992) (“[T]he government’s policy is indicated by its consistent practice, not each exceptional regulation that departs from the consistent practice.”). Accordingly, forum status is an inherently factual inquiry about the government’s intent and the surrounding circumstances that requires the district court to make detailed factual findings. See Stewart v. D. C. Armory Bd., 863 F.2d 1013, 1018 (D.C. Cir. 1988) (holding that “identifying the government’s intent . . . raises inherently factual issues that cannot be resolved on a Rule 12(b)(6) motion”); Air Line Pilots, 45 F.3d at 1154 (same). And the ultimate question is whether the facts indicate the government intended to open a nontraditional forum to expressive activity. See Cornelius, 473 U.S. at 802 (“The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse.”).

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13 Church on the Rock v. City of Albuquerque, 84 F.3d 1273, 1276-77 (10th Cir. 1996) (relying on senior citizen center policies to determine forum status of senior centers); Paulsen v. County of Nassau, 925 F.2d 65, 69 (2d Cir. 1991) (relying on county charter and local law as indicia of county’s intent to dedicate coliseum to a broad array of public and expressive purposes); Gilbert I, 920 F.2d at 884 (relying on unwritten GSA policy banning demonstrations from the covered portico).

14 Church on the Rock, 84 F.3d at 1278 (holding that senior centers were designated as public fora because the city had “permitted lectures and classes on a broad range of subjects by both members and non-members”); Huminski, 396 F.3d at 91 (holding courthouse parking lot is not a public forum because there was no evidence the government did anything to designate it as such).

15 Grider v. Abramson, 180 F.3d 739, 748 n.11 (6th Cir. 1999) (relying on stipulation of the parties that courthouse steps are a public forum).

16 Paulsen, 925 F.3d at 70 (holding that coliseum grounds are a public forum, in part, because the property can accommodate a wide variety of expressive activity without threatening the government function of the facility); Greer v. Spock, 424 U.S. 828, 835– 37 (1976) (holding military reservation is not a public forum); Adderley v. Florida, 385 U.S. 39, 47 (1966) (same as to jailhouse).

17 Widmar v. Vincent, 454 U.S. 263, 267-68 (1981) (holding university’s policy of accommodating student meetings created a forum generally open for student use); Paulsen, 925 F.3d at 70 (“The grounds of the Coliseum have been used for parades, political rallies and speeches, religious weddings and circuses. . . . Routinely, banners have been displayed by patrons . . . . Significantly, . . . many groups, including war veterans, the Christian Joy Fellowship and the Salvation Army, were regularly permitted to solicit contributions or distribute literature.”); Gilbert I, 920 F.2d at 884 (holding that unenclosed plaza of a federal building that houses courtrooms has been opened by the government as a public forum because “[d]emonstrations occur there on a frequent basis,” but holding covered portico was not opened as a public forum because occasional demonstrations there were undetected violations of GSA policy).
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3. Disagreement Over Opening the Restricted Areas as Public Fora

Here, the issue of the government’s intent is complicated by the disagreement between Denver and the Judicial District about the forum status of the Restricted Areas.

According to Denver, it intended to and did open all areas of the Plaza, including those within the Restricted Areas, to the public for expressive activity. In fact, Denver (one of the Defendants) entered into a Stipulation to this effect with Plaintiffs. Cf. Grider v. Abramson, 180 F.3d 739, 748 n.11 (6th Cir. 1999) (noting that parties had stipulated that courthouse steps are a public forum). In contrast, the Judicial District argues Denver’s Stipulation that the entire Plaza is a public forum cannot control the status of the Restricted Areas because Colorado law vests the judicial branch with inherent authority to regulate state courthouses. As such, the Judicial District asserts that its intent —not Denver’s— should control the forum status of the Restricted Areas.

This argument between Defendants raises difficult and novel questions about the intersection between a government property owner’s power to designate its property as a public forum and the rights of the occupant of the government property —in this case another governmental entity— to use that property without interference. The parties have not directed us to any authority addressing the question of whose intent controls when two governmental entities disagree about the status of the same forum, and our own research has not revealed any decision precisely on point. But a review of the evolution of the Supreme Court’s doctrine on speech forums reveals some fundamental principles that may guide resolution of this difficult question.

The Supreme Court has not always recognized a First Amendment right of the public to use publicly owned property for expressive purposes. Indeed, the Court’s early jurisprudence recognized the absolute right of the government to exclude the public from using its property. See Davis v. Massachusetts, 167 U.S. 43, 46–47 (1897); see also Geoffrey R. Stone, Fora Americana: Speech in Public Places, 1974 Sup. Ct. Rev. 233, 236–37 (discussing the Supreme Court’s early forum jurisprudence). In Davis, the Court considered a First Amendment challenge to a Boston city ordinance forbidding “any public address” on public property “except in accordance with a permit from the mayor.” 167 U.S. at 44. The Supreme Judicial Court of Massachusetts had affirmed a preacher’s conviction for violating the ordinance by preaching on Boston Common without first obtaining a permit from the mayor, stating “[f]or the Legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house.” Id. at 47 (quoting Commonwealth v. Davis, 39 N.E. 113, 113 (Mass. 1895) (Holmes, J.)). The Supreme Court unanimously affirmed, concluding that “[t]he right to absolutely exclude all right to use necessarily includes the authority to determine under what circumstances such use may be availed of, as the greater power contains the lesser.” Id. at 48. Under the Supreme Court’s jurisprudence at the time, the government —as the owner of public property— retained an absolute right to exclude the public from that property, just as any private property owner would have the right to exclude others. See Stone, supra, at 237 (“[T]he state possessed the power absolutely to prohibit the exercise of First Amendment rights of speech on public property simply by asserting the prerogatives traditionally associated with the private ownership of land. The complex and difficult problem of the public forum had been ‘solved’ by resort to common law concepts of private property.”).

Later, the Supreme Court revisited the question of the public’s use of government property for expressive purposes and again relied on traditional notions of private property ownership. See Hague v. Comm. for Indus. Org., 307 U.S. 496 (1939). In Hague, the Court considered the constitutionality of city ordinances prohibiting all public meetings and leafletting in streets and other public places without a permit. Id. at 501–03. Departing from its analysis in Davis, Justice Roberts, writing for a plurality of the Court, stated:

Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.

Id. at 515–16. Justice Roberts’s position accepted the underlying premise of Davis —that the owner of government property enjoyed the same prerogatives as any private property owner— but then extended that premise to predicate a “public forum right upon established common law notions of adverse possession and public trust.” Stone, supra, at 238. See also Harry Kalven, Jr., The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup. Ct. Rev. 1, 13 (describing Justice Roberts’s analysis in Hague as establishing “a kind of First-Amendment easement” in which the public, through long use and tradition, has acquired a right to use certain types of public property for First Amendment purposes).

Although Justice Roberts spoke only for a plurality of the Hague Court, his formulation has since been accepted by the Supreme Court as the prevailing rationale underlying the concept of traditional public fora. See, e.g., Perry Educ., 460 U.S. at 45 (defining traditional public fora by adopting Justice Roberts’s “time out of mind” description). Even in the context of a traditional public forum in which the government property owner’s power to exclude and curtail use is sharply circumscribed, the underlying rationale is premised on traditional notions of private property ownership. Indeed, the government’s power to control speech in a traditional public forum is circumscribed precisely because the public has, through the extent and nature of its use of these types of government property, acquired, in effect, a “speech easement” that the government property owner must now honor.

The Supreme Court has continued to rely on traditional notions of property ownership to describe the government’s ability to control the use of its property. For example, the Supreme Court has recognized that the government, “no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.” Greer, 424 U.S. at 836 (emphasis added). This includes the ability to designate portions of government property for expressive purposes. See Perry Educ., 460 U.S. at 45. But the underlying rationale of a designated public forum is that the governmental entity with control over the property can decide whether and to what extent to open nontraditional fora to public speech. See Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of Law v. Martinez, 561 U.S. 661, 679 (2010) (“[I]n a progression of cases, this Court has employed forum analysis to determine when a governmental entity, in regulating property in its charge, may place limitations on speech.”) (emphasis added)).

In this case, the record before the district court at the preliminary injunction hearing indicated that Denver is the owner of the Courthouse and its surrounding grounds. It was also undisputed that there is no lease agreement between Denver and the Judicial District that could have transferred some of Denver’s property interests to the Judicial District. And the Judicial District is not the only occupant of the building; the county also has courtrooms in the building. As a result, Denver’s intent will be particularly relevant to a determination of whether the Restricted Areas were designated as a public forum.

Nevertheless, the Judicial District argues Denver may not unilaterally designate the Restricted Areas as public fora because, under Colorado law, the state judicial branch is endowed with inherent authority as an independent and co-equal branch of government to regulate state courthouses. The first problem with this argument is that it ignores the limits of that inherent authority. Although Colorado permits its courts to do all that is “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,” the Colorado Supreme Court has recognized that this inherent authority is not without its limitations. Bd. of Cty. Comm’rs of Weld Cty. v. Nineteenth Judicial Dist., 895 P.2d 545, 547–48 (Colo. 1995) (quoting Pena v. District Ct., 681 P.2d 953, 956 (Colo.1984)). Specifically, the “court’s inherent authority terminates when its ability to carry out its constitutional duty to administer justice is no longer threatened.” Id. at 549.

On the existing record, the Judicial District has not demonstrated that Plaintiffs’ First Amendment activities interfered with the ability of the Judicial District to carry out its essential functions. Mr. Steadman testified that Plaintiffs’ pamphleteering presented no security risk to the Courthouse. And the Judicial District presented no evidence indicating that the narrow preliminary injunction issued by the district court would interfere with its judicial functions. On the record before us, therefore, the Judicial District has not demonstrated that the preliminary injunction issued by the district court implicates the court’s inherent authority.

But it is also true that Denver’s statement of its intent is only one factor to be considered by the district court in determining whether a permanent injunction should issue. Recall that the government’s statement of policy should be weighed against the evidence of its actual practice to avoid post hoc justifications. See Air Line Pilots, 45 F.3d at 1153; Hays Cty. Guardian, 969 F.2d at 117–18. Denver’s concession in the Stipulation and its expressions of past intent could be motivated by fiscal or other considerations that are inconsistent with its actual practice.

For example, although the evidence indicated that some expressive activity has occurred in the Restricted Areas, those occasions may have been “isolated incidents of undiscovered violations,” rather than evidence of affirmative acts to open the Restricted Areas as public fora. Gilbert I, 920 F.2d at 885. And a contrary intent might be gleaned from the design of the Restricted Areas and the extent to which public and private areas are clearly separated. See Grace, 461 U.S. at 179–80. Also of importance in assessing whether the Restricted Areas have been designated as public fora is the extent to which doing so is incompatible with the primary use of the Courthouse. See Cornelius, 473 U.S. at 803. That is, it would be strong evidence that Denver did not intend to designate all of the Restricted Areas as public fora if to do so would destroy the primary function of the Courthouse. Or in different terms, the district court must assess whether it is credible that a governmental owner would construct a courthouse and install state and county judicial operations within it, only to designate public fora so intrusively that the essential function of the courthouse is thwarted. Thus, although the Stipulation provides some evidence on the question of whether the Restricted Areas have been designated as public fora, it is not alone determinative of that question.

III. CONCLUSION

Based on the record before it, the district court did not abuse its discretion in granting Plaintiffs’ request for a preliminary injunction. We therefore AFFIRM the order entering a limited preliminary injunction in favor of Plaintiffs, and REMAND for further proceedings consistent with this decision.

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


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

Document 28 Filed 08/25/15 USDC Colorado

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

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

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

Plaintiffs, v.

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

Defendants.

______________________________

ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION
______________________________

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

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

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

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

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

I. LEGAL STANDARD

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

II. BACKGROUND

A. Facts Alleged in the Original Complaint

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

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

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

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

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

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

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

?(Id. at 4.)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

C. Evidence Received at the Preliminary Injunction Hearing

1. Commander Lopez

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

2. Mr. Steadman

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

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

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

III. ANALYSIS

A. Article III Standing

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

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

***

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

(ECF No. 23 ¶¶ 2, 4.)

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

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

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

?B. Likelihood of Success

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

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

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

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

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

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

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

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

2. Is the Courthouse Plaza a Public Forum?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

a. “Content-Neutral”?

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

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

The Plaza Order itself asserts several interests:

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

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

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

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

c. “Leave Open Ample Alternative Channels of Communication”

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

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

?C. Irreparable Injury

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

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

E. Public Interest

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

?F. Scope of Injunctive Relief

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

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

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

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

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

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

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

IV. CONCLUSION

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

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

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

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

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

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

Dated this 25th day of August, 2015.

BY THE COURT:

William J. Martínez?
United States District Judge

Unresolved 2015 protest case reveals Denver police have been concealing evidence from all activist trials

Eric Brandt on the hoof
DENVER, COLORADO- A seemingly ordinary protester-in-the-roadway case has exploded in the face of Denver city lawyers from the prosecutor’s office to the department of civil liabilities. The case against activist Eric Brandt, for chasing a police motorcade which had falsely arrested a fellow demonstrator, today revealed that in arrests made at political protests, Denver police have been withholding key reports from the evidence disclosed to those defendants.

Denver police file what’s called an “After Action Report” for public protests that prompt a mobilized law enforcement response. But the department doesn’t release the report to arrestees who face charges stemming from those actions. Ostensibly the reports are kept secret to avoid public scrutiny of crowd control strategies, but the reports also document the attendance of officers who witness the purported crimes. Those –otherwise undocumented– personnel write reports which are then not included in the discovery evidence. That is what defense lawyers call “Brady Material”, witnesses who are not consulted about what they saw, possibly exculpatory evidence which is being denied to the accused. What role those officers might play in the circumstances leading to the arrests is also kept a mystery.

Last week just before Eric Brandt’s trial, a DPD After Action Report for the protest arrests of August 28, 2015 was accidentally brought to the court’s attention the morning of trial. DPD Commander Tony Lopez brought the AAR report with him as a crib sheet to help his officers corroborate their witness testimonies. The prosecuting attorney coaching the witnesses was offered the report as an aid and as a consequence she was obligated to reveal it to the defense. At first Judge Frederick Rogers gave the defense one hour to study the new document. An hour later, after everyone had pondered the implications, the jury pool was excused for good and Rogers conceded that more time was needed for further subpoenas.

At a pretrial conference today Judge Rogers tried to limit the extent of additional evidence needed before the case could proceed. He rejected a subpoena which he deemed too broad, and limited requests for further AARs to those filed August 26 and 28th. While a prosecuting attorney described such reports as so rare she’s never encountered one before, another city attorney sheepishly admitted that a paralegal in his office had unearthed three AARs that may meet the criteria. So much for rare, that’s three in as many days. Another city attorney insisted that she needed to vet those beforehand, but a peeved Judge Rogers volunteered to assess their applicability himself. If they weren’t in his in-box by 4pm, he’d assume they were forwarded to the defense as ordered.

In question in this particular case was a mention that the head of Denver’s Dept of Public Works had ordered the police action on August 28. This is at odds with all previous police testimony which denied communication with Public Works. It goes toward impeachment of those officers as well as establishing whether Denver police have been abusing the city’s “encumbrance” ordinance. The encumbrance code is what Denver has used to squash sustained protests beginning with the original 2011 Occupy Denver encampments.

This is not the first time After Action Reports have come to light. A lieutenant testifying against an activist last November mentioned in his testimony that the reason he was fully confident in answering how many officers had responded to the protest in question was that he’s just reviewed the AAR. Unfortunately the lawyer defending that case didn’t bite.

And the public learned about AARs when one was accidentally included in the discovery evidence of an Anonymous protester arrested at MMM2015. That report famously revealed that the police outnumbered the protesters, 27% of whom were undercover “Shadow Teams”. Unfortunately the furthest defense attorneys got to more evidence were reports sent for in-camera review by the judge, in that case municipal Judge Espinosa, who ruled there was nothing relevant to the case. The case by the way is under appeal.

Now it remains for someone to file a CORA Colorado Open Records Act request for the missing AARs. There’s one for every public protest countered by police. Anyone who has been convicted of an infraction at a protest, or was coerced into taking a plea deal on the face of one-sided evidence, was denied the full story they needed to defend themselves.

For Eric Brandt’s current case, his being the last of charges filed against activists who occupied the Lindsey Flanigan Courthouse plaza in Fall months of 2015, the defense is seeking the AARs for the 26 police raids made against the protest, from its start on August 26 to its terminal extraction on October 22. Were the police acting within their authority? Were their orders legal? Did Denver abuse an ordinance to curtail free speech in the plaza? Ultimately authorities curbed the protest by imposing a curfew. Was that a flagrant work-around to circumvent a federal injunction meant to prevent their harassment of protected activity in not only a traditional free speech area but a designated free speech zone. That battle is already scheduled in April 2017 in federal court.

NOTES:
Those dates, if you’re interested, were Aug 26, 10am & 11pm; Aug 28, 6pm & 7:30pm; Sep 2, 6pm; Sep 8, 4:30pm; Sep 12, 1am; Sep 13, 3am & 11pm; Sep 14, 11am & 1:30pm; Sep 15, 3am; Sep 16, 12am; Sep 17, 1:20am; Sep 18, 1:20am & 5pm; Sep 19, 2:40am; Sep 22, 12:30am; Sep 24, 3am; Sep 25, 8:30pm & 9:30pm; Sep 26, 2:15am; Oct 9, 1pm; Oct 10, 10:20am; Oct 21, 2pm; and Oct 22, 10am. There may have been more.

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Denver ordinance cited above reads:

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

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

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

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

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

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

plaza-handcuffs-timothy-campbell-nmt

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

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

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

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

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

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

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

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

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

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

City challenges temporary injunction with US Court of Appeals.

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

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

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

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

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

Sep 30
City of Denver files motion to dismiss injunction.

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

Oct 9
Plaintiff files response to motion to dismiss.

Oct 16
Reply brief by plaintiffs

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

Oct 26
Reply from plaintiffs.

Nov 12
Reply in support of defense

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

Nov 17
Oral arguments to court of appeals, courtroom III

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

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

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

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

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

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

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

May 11
Deposition of Chief Justice Michael Martinez

May 31
Order received from Federal Judge William Martinez:

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

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

June 3
City responds to motion to show cause.

June 13
Fred Henrich 8/26 tent case dismissed.

June 20
Federal judge William Martinez responds:

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

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

—-

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

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

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

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

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.

Denver jury convicts homeless man of trespassing on their yuppy lifestyle. DJ Razee’s tiny house idea was too big.

Delbert J. Razee
DENVER, COLORADO- In the witness stand Delbert “DJ” Razee spoke eloquently about the Tiny House movement and Resurrection Village, a local experiment sponsored by advocates Denver Homeless Out Loud to suggest one remedy for the house-less of Colorado. Razee’s lawyer Frank Ingham made fools of the Denver Housing Authority stooge and four police officers who testified against the chronically homeless English Lit grad. Razee was charged with trespass on public land, on an empty city block which was supposed to have been used for affordable housing. Razee was among ten homeless activists arrested one night in November for refusing to vacate several very small structures they’d erected on property which the DHA was converting from a community garden to gentrified condos. After two days of trial, a jury of well-housed peers found Razee guilty, lest others of his untouchable caste darken their doorsteps or the vacant lots near them. On Thursday March 3rd at 8:30am DJ Razee reports to Judge Beth Faragher for sentencing.

It was an amazing trial. While his compatriots sought continuances or plea deals, DJ held his ground and never waived speedy trial. DJ was impatient to put the Denver Housing Authority on the stand. Their representative Ryan Tobin blew off a February 3rd subpoena, but when DJ’s lawyer Frank Ingham cross-examined Tobin on the 22nd, Tobin incriminated himself more than Razee. Ryan Tobin was the DHA goon who pressed charges against the activists for trespassing on the public lot opposite his $650K home. Tobin also sought a protection order against one of the activists, which restrained that person from approaching not just Tobin but the entire public lot. Can one do that? The protection order didn’t come up at DJ’s trial.

DHA
The DHA is a quasi-municipal entity which handles city property meant to accomodate lower income residents. The DHA is Denver’s second largest property owner. The city blocks at 26th and Lawrence used to be low income housing but have been razed for years. More recently a portion was used for a community garden but the DHA was evicting the urban farmers to sell the block to a high rise developer.

The logic offered was that DHA could use the proceeds of land speculation to build more affordable housing elsewhere. That strategy might impress business people but it’s clearly absurd. Instead of being a counterbalance to gentrification, this housing authority thinks its role is to be a tool for displacement.

Tobin’s testimony will benefit all the Tiny House defendants, depending on their juries. DJ is only the first of the arrestees to be brought to trial. Tobin admitted he had never clearly expressed who had the authority to issue a trespass order. Tobin also couldn’t say who precisely was present when he made his initial announcement to the group, although he claimed it was “everyone”. This was a chief contention of the city attorneys.

How about an sidebar for activists, as a sort of debrief:

On Tobin’s first visit, someone among the activists called EVERYONE together to listen to his announcement, austensibly to have a dialog. As a matter of practice this was regretable. First, because the action was already underway and there was no expectation that dialog could or should redirect the action. Second, it presented exactly what an authority issuing a formal notice needed: everyone in one place to BE GIVEN NOTICE.

Two, the city prosecutors used a video recording of the event, made by the activists themselves, to prove that the trespassers had received notice. While the taped discussion was not so clear, and the many subsequent announcements over police bullhorns were garbled, it didn’t help that the videographer offered narration to make what was being said explicit to viewers and bystanders. Offering, for example: “so basically we’ve been given notice that if we don’t leave the cops will come to arrest us.” Which alas is the confirmation prosecutors need that lawful orders were understood.

Although the city sought to incriminate Razee with the video, the footage provided wonderful context for the larger issue, the paradox faced by the homeless, had the jury been receptive. It also captured Ryan Tobin’s cavalier attitude about housing inequities. When he was asked by the group “Move along to where?” Tobin made this thoughtless suggestion: “Where did you come from?” Boos from his audience at the scene were echoed by the viewers in the courtroom.

Ryan Tobin couldn’t identify DJ at all, neither that he’d given DJ notice to leave, nor that he’d ever seen DJ before in his life. DJ described Tobin’s failure to recognize him in a FB post:

For six weeks, from October 23rd until December 9th, I shoveled the walks, carted away the trash, and resided at Resurrection Village at the same location as Sustainability Park, and Ryan Tobin who lives directly across the street from the property, testified that he has never seen my face. Of course, he hadn’t- I am one of the invisible people who is a criminal in the eyes of the housed, and the law.

DPD
The testimony of four DPD officers was also self-damning. Neither commander, nor lieutenants, nor arresting officer could fully justify why they deployed in combat gear. Even the jurors were set back by the militarized atmosphere, the helicopter overhead, and the overabundance of cops for a TRESPASS INFRACTION. About the helicopter, a lieutenant claimed she called in a mere “fly-by” but police video proved it hovered for nearly an hour.

One amusing aspect for many of us in the audience, was how the DPD witnesses would always refer to the offending activists as “Occupiers”. Denver Homeless Out Loud, in its need to gain cooperation with civic and law enforcement entities, takes great pains to distance itself from its roots in Occupy Denver. At any demonstration in Denver, an “Occupy” presence, usually merely the familiar OD faces, always means an escalated police escort and unseen armored-up reserves. While it may have been inaccurate to label the Tiny House trespassers as occupiers, it’s true that when protesters are holding their ground in Denver, refusing police orders, they are occupying. Like the Black Bloc, it’s not a who, it’s a tactic.

Attending the trials of activists is worth it if only to hear the testimony of the police. You learn what they’re trained to do, what their objectives are, and what they think you’re doing. Most officers, even commanders, think we need a permit to demonstrate. HA!

The first four witnesses could not place DJ at the scene, but the arresting officer finally fingered the accused. Asked if he could identify DJ, he pointed to the defendant’s table and described DJ’s courtroom attire for the record. You have to wonder if police witnesses look to the defendant’s chair by default, without regard to what they remember. How could they remember so many arrestees, months after the incident? I’m guessing that anyone sitting in DJ’s seat would have been ID’d as DJ.

I pose this question because of how DJ’s arresting officer was allowed to identify DJ on the crime scene video. Instead of letting the video play through and asking the officer if DJ appeared on the video and where, DJ’s prosecutors froze the video when the camera lingered on DJ and then asked the officer to ID him. The defense counsel objected vehemently and when overruled he motioned for a mistrial. So the judge reconsidered and granted Ingham’s motion. She then asked the jury to disregard the officer’s response and she made the prosecutor play the video again without prompting the officer, even though of course now he knew at which frame DJ appeared.

The jury
The entire trial was so farcical and so mercenary considering the inconsequence of the charge, that audience members were certain the jury was empathic to DJ and the victimization of Denver’s homeless. Nope. We knew from Voir Dire that the jury included an entrepreneur, a trader, and an inheritance consultant. All but one of the NPR listeners had been eliminated but we hoped she’d be a holdout. It was not to be. When the jury emerged with its verdict, the foreman carrying the written decision was the fratboy day trader.

Fratboy had been the juror submitting written questions to supplement what neither attorney had asked. We knew from the bent of his inquiries that he was playing a role that defense attorneys fear, a self-deputized investigator for the prosecutor, filling in the gaps of the testimony, seeking, if even unconsciously, to eliminate the “reasonable doubt” which is supposed to remain as a reason to aquit. That’s why defense attorneys generally object to Colorado’s rule allowing jurors to interject with their own questions to witnesses. On the plus side, such questions do offer both sides a hint of where those jurors are leaning.

As Denver gentrifies, it should be no surprise that juries will represent the affluent more than the demographics being displaced. DJ’s jury had absolutely zero concern for punishing a homeless man for his elegant protest gesture or for his unresolved circumstance. They laughed and made no eye contact with the audience as they turned their backs to return to their homes and leave a homeless man in greater jeopardy with the penal system.

DJ was not tried by a jury of his peers. Can the homeless get justice in the US court system? American juries are racist and classist, but you’re unlikely to find someone more untouchable to jurors than someone who is dispossessed.

As activists, we’ve got to do something about these Denver juries. Advocating for jury nullification is not enough. Denver’s urban social climbers need a welcome-to-the-community brochure, or swift kicks in the ass until they acknowledge there’s a brotherhood of man.

Clarence Darrow and Jury Nullification

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

Darrow continued:

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

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

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

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

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

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

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

Eric Brandt found not guilty of petty complaints of Westminster Colorado. He’s being denied a jury at next trial.

Eric Brandt aka Fuck Cops
WESTMINSTER, COLORADO- Homeless veteran Eric Brandt has been arrested 36 times by police officers angry about his “fuck cops” sign, often the arrests are violent. So far Eric has beat the charges but the City of Westminster is gunning for him. Though Eric is now represented by civil liberty specialist David Lane, city officials, DAs, cops, and prosecutors converge on Eric’s court appearances determined to slip their fuck-cops problem into a jail cell. They may yet succeed, but Eric’s chances improve when the judges see he has public support. Though Eric’s message is characterized as repugnant in a court of law, in reality people honk and wave and ask to have their picture taken with Eric. To no-one else’s surprise, “fuck cops” resonates, especially as Denver cops keep killing unarmed arrestees. Eric won his July 23 jury trial, but he has upcoming court dates August 3, August 6, and August 13, to name just the next three. If Westminster can jail Eric for just one of these cases, they can keep him off the ballot where he’s running for city council looking to represent the homeless constituency. Come see the spectacle that is the usually incomparable David Lane sharing the spotlight with scene-stealing Eric Brandt, running hilarious circles around his dimwitted accusers. A guaranteed laugh-fest at the expense of the much-embarrassed Westminster grumps.

The next three trials will be held at the Westminster Municipal Court, at 72nd & Federal, just south of Highway-36. All start at 8:30am. At the August 3rd trial the judge is denying Eric the right to a jury…

Five Rag-Tag Protestors Beat On Plastic Buckets and the Rich Shit Their Pants


As Chris Hedges observed below, you can’t have a revolution while sitting at home in front of the TV watching the next installment of Kim Kardashian.
 
If you can find the courage to skip just one show, go to the streets; what you find, might surprise you, Likeminded people, just like yourself. That is what the people of Baltimore discovered. Some people saw only rioting, but that was the corporate media spoon feeding the citizens. What really happen was the citizen got really pissed off at the system and went to the streets demanding change; it made the rich panic to the point that they indict some of the policemen. I remind you, they were only charged not convicted. This was a tactic used to defuse and distract the organized citizens.

If you think the rich did not panic over the citizens in the streets of Baltimore, you need to read about the federal surveillance.

This week in Denver; Tattered Cover 5 Receive Mixed Verdicts, One Courtroom Observer Arrested.

Of all the courtrooms and trials I have set through, I don’t believe I ever saw a grander puppet show. The rich used all of their power in the system to stop a few protesters from beating on a plastic buckets. The long and short of it; these 5 rag-tag protestors, beating on their plastic buckets, scared the shit out of the rich.

The rich used their puppet policemen and prosecutor, all at the expense of the taxpayer.

At this mockery of justice, I observed something I had never seen before, the policeman, who was the prosecutors star witness, and supposed to be impartial (you know; only doing his duty) sat between the two prosecutors for the entire trial as though he were a back up prosecutor.

In those famous word of Martin Luther; “How Long?” and the people responded, “Not Long”.

Many cities in America watched as the sleeping giant in Baltimore awoke from a slumber and this is what made the “Rich Panic”. There is more of us then there is of them and they know it.

Time to turn the corporate TV off and organize.

Make the Rich Panic
Posted on May 3, 2015
By Chris Hedges

“This is called revolution. It is about ripping power away from a cabal of corporate oligarchs and returning it to the citizenry. This will happen not by appealing to corporate power but by terrifying it. And power, as we saw in Baltimore, will be terrified only when we take to the streets. There is no other way.”

“The fundamental law of revolution, which has been confirmed by all revolutions, and particularly by all three Russian revolutions in the twentieth century, is as follows: it is not enough for revolution that the exploited and oppressed masses should understand the impossibility of living in the old way and demand changes, what is required for revolution is that the exploiters should not be able to live and rule in the old way. Only when the “lower classes” do not want the old way, and when the “upper classes” cannot carry on in the old way —only then can revolution win”

Nonviolence is the refuge of cowards

I say this with the full authority of my own personal experience: nonviolence is for cowards. When push has come to shove, I stepped to the sidewalk but I am so full of admiration for those who stayed in the line of fire. Today much of the world commemorates Bastille Day, France’s unique independence day, because it launched the French Revolution. Not just a revolution for the masses of humanity, but their Enlightenment. Storming the Bastilles was no small transformative event, and the sans-culottes were not led by urgings to keep it nonviolent. The monarchy took heed, as it had for every historic concession, because the citizenry had it scared to death.

Have you changed social inequity by voting in the polls? Have you found justice via protest? Sought, beseeched, was as far as you got. Violent uprising has not lately looking too effective either. But it’s got the track record.

I’m not saying I’m up to the task, but I assure you I have the courage to be nonviolent in spades.

It is a most self-aggrandizing dishonesty that holds nonviolence to be brave. There is nothing easier than to take the path of least resistance. I don’t mean to downplay the audacity to protest, as opposed to conforming, although isn’t sticking to your principles squarly self-indulgent? I claim no credit for failing to bend on matters of principle. In fact, sometimes I feel positively anti-social.

But taken the next step, what’s easier than subjecting yourself to the authority of the sword? Again it’s the principle of not becoming like your abuser, another no-brainer, but no-bravery required.

Standing up for what you believe? Easy-peasy. To the death? Positively cowardly lion.

This is you inner dialog, be honest: I defy your authority, but only so far. I reject your physical oppression, but just kidding. I call for the total destruction of your hierarchy, but only in words, I’m entitled, and you can’t lay a finger on me because I’m playing by the rules.

Hope of getting anywhere: dismal. Modern social movements have only Gandhi and Mandela as purported success stories. But I’ll not insult the elders. The Gandhi and Mandela of our textbooks bear no resemblance to the reality, they are false role-models put forth by fascists who want to blunt every effort to rise against power.

Oh, nonviolence is the higher ideal, sure. Lovely. Browny points for the afterlife. Trickle-up transcendence has as much potential for success as awaiting extraterrestrials or building playing fields for disgraced baseball reincarnates.

Unless power wants to transcend the human experience, and lift all of us with it, mankind is not going anywhere. The only way you’re going to levitate powerful heads is with a guillotine. Dreadfully eighteenth century, but check out the horrific bygone days from which they’re reconstituting torture and feudalism.

You can probably contrive a litany of rationalizations for why it would be beneath you, but imagine picking up a gun and having a go against the overwhelming power of the state. Now that’s terrifying.

NY trial no threat for Guantanamo 5

BUSH REGIME ENGINEERED 9-11Whatsa matter Mayor Giuliani? Are you afraid if the 9/11 suspects come to trial in NYC, that these 9/11 TRUTH fellows might turn up? It was your Ground Zero hero’s launchpad, this time it may be theirs.

You and the media paint the Guantanamo 5 as guilty, without a trial. Sarah Palin would like to see them executed before a trial, allegedly. We can grant her the benefit of the doubt to not have said something so callous, but there’s no charity left for ragheads. Maybe a drone outfit could target Guantanamo, and we’d be spared having to incarcerate its inmates elsewhere. The detainees have already served eight years of inhumane detention and torture. I’m very enthused to see them get a day in court. They’re what, innocent until proven guilty, so that makes them suspects, at best alleged terrorists. You call them terrorists, but at worst they are terror conspirators. Neither are, after all, the nineteen hijackers.

Speaking of which, if you could get your hands on the hijackers who were mistakenly identified to have been on the plane, who are taunting you from their homes in the Middle East, if you could extradite them, what charges would you bring? Conspiracy to impersonate phantom bogeymen?

Normally high profile defendants plead to be tried away from the population center of their victims. For NINE ELEVEN there may be a case to make either way. The “9/11 terrorists” may face a tough crowd sourced from NY’s bitterly racist civil servants. On the other hand, the aftermath of Ground Zero has ruined a whole lot more people than were killed in the twin towers and were bought off handsomely to ask no questions.

Speaking of the 9/11 victim families, when are we going to quit asking the families about this, that, and how to proceed in Afghanistan?! We’re ALL OF US VICTIMS OF 9/11 NOW! None more than the Iraqis and Afghans, and poor people everywhere the US is prosecuting its War On Terror. They’re offered a pittance for their loses, Americans are losing sons and daughters, husbands and wives, and sometimes the survivors get a favorable insurance payout, but the rest of us get zilch, that much credit, and a broken economy. The 9/11 family survivors were compensated for the lost expected income of their darling WTC financiers, plus a little extra to stay away from the 9/11 Widows, the true patriots. Of course the war industry and its corporate media look to the 9/11 families when the public needs a booster shot of embittered venom, but why are the rest of us not laughing in derision? Come on, you fathers and mothers of bitches. You took your silver, now beat it to Cancun. No more innocents need to die because you can’t come to terms with the fact that your Little Eichmanns got their due.

The GOP culpables are wondering aloud if NYC trials for the terror suspects would in reality put America on trial. You betcha!

Usually when the posses returns with the wanted men, the deputes have to protect them from the angry mob trying to break into the jail to have a lynching. Rudy Giuliani and his GOP can see the mob already converging for the trials, and they know it’s not the Guantanamo Five they’re after.

Senators Cornyn, Smith, Lieberman, Webb, McCain, not common criminals

They want war crimes trials, then book ’em. Senators John Cornyn, Lamar Smith, Joe Lieberman, Jim Webb and John McCain have mouthed off against bringing accused 9/11 mastermind Khalid Sheikh Mohammed to trial in US civilian courts. They want Mohammed and his fellow detainees tried by military tribunals, which have already been condemned as violations of international law. So has voting to support the attack on Iraq, Afghanistan, Guantanamo, secret prisons, etc.

Forget the presumption of innocence. Said Cornyn:

“These terrorists planned and executed the mass murder of thousands of innocent Americans. Treating them like common criminals is unconscionable.”

Added Lieberman, they–

“are war criminals, not common criminals … not American citizens entitled to all the constitutional rights American citizens have in our federal courts.”

Nope, sorry it doesn’t work that way. Our constitution protects the rights of everyone under US jurisdiction. Not to mention the detainees are “alleged” criminals as well.

The senators are perhaps influenced by Khalid Sheikh Mohammed’s media monicker: the self proclaimed mastermind of the 9/11 attacks. That’s a rather inflated attribution based on a confession extracted after an apparently record setting series of water boarding torture sessions.

Unless Attorney General Eric Holder plans to conduct the 9/11 trials under wraps, with the sound off like the kangaroo court lynching of Saddam Hussein, this news could be the most significant development the 9/11 Truth Movement will ever get.

Next step, join the ACLU in urging Holder to try all War on Terror detainees in US civilian courts. This isn’t about keeping American citizens safe. As the Senators rightly miserly point out, this is about according the detainees sufficient rights that they might win an inconveniently fair trial.

Swine flu pandemic, my ass

1976 swine flu epidemic mandated vaccinationDo you have an uneasy sense that someone’s trying to pull the wool over your eyes? Does the hullabaloo over a looming swine flu pandemic seem a bit overblown? The World Health Organization (WHO) has raised the pandemic alert level (a 6-point scale) to 4 and is considering moving it to 5 today, with only 7 confirmed deaths worldwide! Keep in mind that seasonal flu kills 40,000 every year in the US alone, so why the sudden grave concern?

I don’t claim to understand all the factors at play here, but one thing I do know: I am FAR more concerned that my government will use manufactured fear somehow to my detriment — likely another lost civil liberty or two and large profits or other benefits to a chosen few — than I am about contracting the demon swine flu.

A few facts to bolster your immune-to-bullshit system:

–Thus far, only 97 cases of so-called swine flu have been definitively identified worldwide, mostly in Mexico (26 confirmed, 7 deaths) and the U.S. (64 confirmed, no deaths). About 1600 suspected cases, including 159 deaths, are reported in Mexico. Sad as this is, it does not add up to a pandemic swine flu outbreak. We love to make this shit up for some reason. Remember the one million Americans who were supposed to die of swine flu in 1976? WHO has forgotten about them, I suppose, because they refused to become cooperative statistics.

–The virus at issue has nothing to do with swine. In fact, it hasn’t been seen in a single animal. And you can’t possibly get it from eating pork which I see as an unfortunate truth, because a good reason to stop eating pork would be a welcome silver lining to this “worldwide health crisis.”

–No existing vaccines can prevent this new flu strain. So no matter what you hear – even if it comes from your doctor – don’t get a regular flu shot. They rarely work against seasonal flu and certainly can’t offer protection from a never-before-seen strain.

–Speaking of this strain, it doesn’t seem to have come on naturally. According to the World Health Organization, this particular strain has never before been seen in pigs or people. And according to Reuters, the strain is a ‘genetic mix’ of swine, avian and human flu. Was it created in a lab? We don’t know yet, and I doubt we’ll find out anytime soon.

–The drug companies are getting excited, and that’s never a good thing. According to the Associated Press at least one financial analyst estimates up to $388 million worth of Tamiflu sales in the near future – and that’s without a pandemic outbreak. Imagine the payday when everyone begins to flip out!

–Let’s not forget that Tamiflu comes with its own problems, including side effects like nausea, vomiting, diarrhea, headache, dizziness, fatigue, cough — the very symptoms it purports to relieve! But, oh well, at least the drug company benefits financially from Tamiflu sales. No one benefits if we don’t take it, which makes the whole pandemic thing seem like a wasted opportunity.

–Vaccines for this flu strain won’t have to jump through all those annoying hurdles like clinical trials for safety and effectiveness (which, if you know anything about the FDA, are usually a waste of time anyway). That won’t, however, stop the government from mandating the vaccine for all of us – a very likely scenario. And if the vaccines are actually harmful — killing people, for example, which they certainly will be — the vaccine makers will be immune from lawsuits. D’ya suppose they could bottle up some of that fail-safe immunity for the rest of us?

“Swine flu” is endemic to a sick system created by pigs. Your best defense against swine flu – your only real defense in any manufactured health crisis situation – is a bullshit-proof immune system.

Ward Churchill: Some People Push Back

British edition titled Reflections on the Justice of Roosting ChickensHere is Ward Churchill’s notorious 9/11 “Little Eichmanns” essay, published online September 12, 2001, presented here for archival purposes lest critics think they can silence one of our nation’s strongest dissenting voices. Churchill later expanded this piece into a book entitled On the Justice of Roosting Chickens: reflections on the consequences of U.S. imperial arrogance and criminality published by AK Press in 2003.

Some People Push Back: On the Justice of Roosting Chickens
by Ward Churchill

When queried by reporters concerning his views on the assassination of John F. Kennedy in November 1963, Malcolm X famously – and quite charitably, all things considered – replied that it was merely a case of “chickens coming home to roost.”

On the morning of September 11, 2001, a few more chickens – along with some half-million dead Iraqi children – came home to roost in a very big way at the twin towers of New York’s World Trade Center. Well, actually, a few of them seem to have nestled in at the Pentagon as well.

The Iraqi youngsters, all of them under 12, died as a predictable – in fact, widely predicted – result of the 1991 US “surgical” bombing of their country’s water purification and sewage facilities, as well as other “infrastructural” targets upon which Iraq’s civilian population depends for its very survival.

If the nature of the bombing were not already bad enough – and it should be noted that this sort of “aerial warfare” constitutes a Class I Crime Against humanity, entailing myriad gross violations of international law, as well as every conceivable standard of “civilized” behavior – the death toll has been steadily ratcheted up by US-imposed sanctions for a full decade now. Enforced all the while by a massive military presence and periodic bombing raids, the embargo has greatly impaired the victims’ ability to import the nutrients, medicines and other materials necessary to saving the lives of even their toddlers.

All told, Iraq has a population of about 18 million. The 500,000 kids lost to date thus represent something on the order of 25 percent of their age group. Indisputably, the rest have suffered – are still suffering – a combination of physical debilitation and psychological trauma severe enough to prevent their ever fully recovering. In effect, an entire generation has been obliterated.

The reason for this holocaust was/is rather simple, and stated quite straightforwardly by President George Bush, the 41st “freedom-loving” father of the freedom-lover currently filling the Oval Office, George the 43rd: “The world must learn that what we say, goes,” intoned George the Elder to the enthusiastic applause of freedom-loving Americans everywhere. How Old George conveyed his message was certainly no mystery to the US public. One need only recall the 24-hour-per-day dissemination of bombardment videos on every available TV channel, and the exceedingly high ratings of these telecasts, to gain a sense of how much they knew.

In trying to affix a meaning to such things, we would do well to remember the wave of elation that swept America at reports of what was happening along the so-called Highway of Death: perhaps 100,000 “towel-heads” and “camel jockeys” – or was it “sand niggers” that week? – in full retreat, routed and effectively defenseless, many of them conscripted civilian laborers, slaughtered in a single day by jets firing the most hyper-lethal types of ordnance. It was a performance worthy of the nazis during the early months of their drive into Russia. And it should be borne in mind that Good Germans gleefully cheered that butchery, too. Indeed, support for Hitler suffered no serious erosion among Germany’s “innocent civilians” until the defeat at Stalingrad in 1943.

There may be a real utility to reflecting further, this time upon the fact that it was pious Americans who led the way in assigning the onus of collective guilt to the German people as a whole, not for things they as individuals had done, but for what they had allowed – nay, empowered – their leaders and their soldiers to do in their name.

If the principle was valid then, it remains so now, as applicable to Good Americans as it was the Good Germans. And the price exacted from the Germans for the faultiness of their moral fiber was truly ghastly. Returning now to the children, and to the effects of the post-Gulf War embargo – continued bull force by Bush the Elder’s successors in the Clinton administration as a gesture of its “resolve” to finalize what George himself had dubbed the “New World Order” of American military/economic domination – it should be noted that not one but two high United Nations officials attempting to coordinate delivery of humanitarian aid to Iraq resigned in succession as protests against US policy.

One of them, former U.N. Assistant Secretary General Denis Halladay, repeatedly denounced what was happening as “a systematic program . . . of deliberate genocide.” His statements appeared in the New York Times and other papers during the fall of 1998, so it can hardly be contended that the American public was “unaware” of them. Shortly thereafter, Secretary of State Madeline Albright openly confirmed Halladay’s assessment. Asked during the widely-viewed TV program Meet the Press to respond to his “allegations,” she calmly announced that she’d decided it was “worth the price” to see that U.S. objectives were achieved.

The Politics of a Perpetrator Population
As a whole, the American public greeted these revelations with yawns.. There were, after all, far more pressing things than the unrelenting misery/death of a few hundred thousand Iraqi tikes to be concerned with. Getting “Jeremy” and “Ellington” to their weekly soccer game, for instance, or seeing to it that little “Tiffany” and “Ashley” had just the right roll-neck sweaters to go with their new cords. And, to be sure, there was the yuppie holy war against ashtrays – for “our kids,” no less – as an all-absorbing point of political focus.

In fairness, it must be admitted that there was an infinitesimally small segment of the body politic who expressed opposition to what was/is being done to the children of Iraq. It must also be conceded, however, that those involved by-and-large contented themselves with signing petitions and conducting candle-lit prayer vigils, bearing “moral witness” as vast legions of brown-skinned five-year-olds sat shivering in the dark, wide-eyed in horror, whimpering as they expired in the most agonizing ways imaginable.

Be it said as well, and this is really the crux of it, that the “resistance” expended the bulk of its time and energy harnessed to the systemically-useful task of trying to ensure, as “a principle of moral virtue” that nobody went further than waving signs as a means of “challenging” the patently exterminatory pursuit of Pax Americana. So pure of principle were these “dissidents,” in fact, that they began literally to supplant the police in protecting corporations profiting by the carnage against suffering such retaliatory “violence” as having their windows broken by persons less “enlightened” – or perhaps more outraged – than the self-anointed “peacekeepers.”

Property before people, it seems – or at least the equation of property to people – is a value by no means restricted to America’s boardrooms. And the sanctimony with which such putrid sentiments are enunciated turns out to be nauseatingly similar, whether mouthed by the CEO of Standard Oil or any of the swarm of comfort zone “pacifists” queuing up to condemn the black block after it ever so slightly disturbed the functioning of business-as-usual in Seattle.

Small wonder, all-in-all, that people elsewhere in the world – the Mideast, for instance – began to wonder where, exactly, aside from the streets of the US itself, one was to find the peace America’s purportedly oppositional peacekeepers claimed they were keeping.

The answer, surely, was plain enough to anyone unblinded by the kind of delusions engendered by sheer vanity and self-absorption. So, too, were the implications in terms of anything changing, out there, in America’s free-fire zones.

Tellingly, it was at precisely this point – with the genocide in Iraq officially admitted and a public response demonstrating beyond a shadow of a doubt that there were virtually no Americans, including most of those professing otherwise, doing anything tangible to stop it – that the combat teams which eventually commandeered the aircraft used on September 11 began to infiltrate the United States.

Meet the “Terrorists”
Of the men who came, there are a few things demanding to be said in the face of the unending torrent of disinformational drivel unleashed by George Junior and the corporate “news” media immediately following their successful operation on September 11.

They did not, for starters, “initiate” a war with the US, much less commit “the first acts of war of the new millennium.”

A good case could be made that the war in which they were combatants has been waged more-or-less continuously by the “Christian West” – now proudly emblematized by the United States – against the “Islamic East” since the time of the First Crusade, about 1,000 years ago. More recently, one could argue that the war began when Lyndon Johnson first lent significant support to Israel’s dispossession/displacement of Palestinians during the 1960s, or when George the Elder ordered “Desert Shield” in 1990, or at any of several points in between. Any way you slice it, however, if what the combat teams did to the WTC and the Pentagon can be understood as acts of war – and they can – then the same is true of every US “overflight’ of Iraqi territory since day one. The first acts of war during the current millennium thus occurred on its very first day, and were carried out by U.S. aviators acting under orders from their then-commander-in-chief, Bill Clinton. The most that can honestly be said of those involved on September 11 is that they finally responded in kind to some of what this country has dispensed to their people as a matter of course.

That they waited so long to do so is, notwithstanding the 1993 action at the WTC, more than anything a testament to their patience and restraint.

They did not license themselves to “target innocent civilians.”

There is simply no argument to be made that the Pentagon personnel killed on September 11 fill that bill. The building and those inside comprised military targets, pure and simple. As to those in the World Trade Center . . .

Well, really. Let’s get a grip here, shall we? True enough, they were civilians of a sort. But innocent? Gimme a break. They formed a technocratic corps at the very heart of America’s global financial empire – the “mighty engine of profit” to which the military dimension of U.S. policy has always been enslaved – and they did so both willingly and knowingly. Recourse to “ignorance” – a derivative, after all, of the word “ignore” – counts as less than an excuse among this relatively well-educated elite. To the extent that any of them were unaware of the costs and consequences to others of what they were involved in – and in many cases excelling at – it was because of their absolute refusal to see. More likely, it was because they were too busy braying, incessantly and self-importantly, into their cell phones, arranging power lunches and stock transactions, each of which translated, conveniently out of sight, mind and smelling distance, into the starved and rotting flesh of infants. If there was a better, more effective, or in fact any other way of visiting some penalty befitting their participation upon the little Eichmanns inhabiting the sterile sanctuary of the twin towers, I’d really be interested in hearing about it.

The men who flew the missions against the WTC and Pentagon were not “cowards.” That distinction properly belongs to the “firm-jawed lads” who delighted in flying stealth aircraft through the undefended airspace of Baghdad, dropping payload after payload of bombs on anyone unfortunate enough to be below – including tens of thousands of genuinely innocent civilians – while themselves incurring all the risk one might expect during a visit to the local video arcade. Still more, the word describes all those “fighting men and women” who sat at computer consoles aboard ships in the Persian Gulf, enjoying air-conditioned comfort while launching cruise missiles into neighborhoods filled with random human beings. Whatever else can be said of them, the men who struck on September 11 manifested the courage of their convictions, willingly expending their own lives in attaining their objectives.

Nor were they “fanatics” devoted to “Islamic fundamentalism.”

One might rightly describe their actions as “desperate.” Feelings of desperation, however, are a perfectly reasonable – one is tempted to say “normal” – emotional response among persons confronted by the mass murder of their children, particularly when it appears that nobody else really gives a damn (ask a Jewish survivor about this one, or, even more poignantly, for all the attention paid them, a Gypsy).

That desperate circumstances generate desperate responses is no mysterious or irrational principle, of the sort motivating fanatics. Less is it one peculiar to Islam. Indeed, even the FBI’s investigative reports on the combat teams’ activities during the months leading up to September 11 make it clear that the members were not fundamentalist Muslims. Rather, it’s pretty obvious at this point that they were secular activists – soldiers, really – who, while undoubtedly enjoying cordial relations with the clerics of their countries, were motivated far more by the grisly realities of the U.S. war against them than by a set of religious beliefs.

And still less were they/their acts “insane.”

Insanity is a condition readily associable with the very American idea that one – or one’s country – holds what amounts to a “divine right” to commit genocide, and thus to forever do so with impunity. The term might also be reasonably applied to anyone suffering genocide without attempting in some material way to bring the process to a halt. Sanity itself, in this frame of reference, might be defined by a willingness to try and destroy the perpetrators and/or the sources of their ability to commit their crimes. (Shall we now discuss the US “strategic bombing campaign” against Germany during World War II, and the mental health of those involved in it?)

Which takes us to official characterizations of the combat teams as an embodiment of “evil.”

Evil – for those inclined to embrace the banality of such a concept – was perfectly incarnated in that malignant toad known as Madeline Albright, squatting in her studio chair like Jaba the Hutt, blandly spewing the news that she’d imposed a collective death sentence upon the unoffending youth of Iraq. Evil was to be heard in that great American hero “Stormin’ Norman” Schwartzkopf’s utterly dehumanizing dismissal of their systematic torture and annihilation as mere “collateral damage.” Evil, moreover, is a term appropriate to describing the mentality of a public that finds such perspectives and the policies attending them acceptable, or even momentarily tolerable.

Had it not been for these evils, the counterattacks of September 11 would never have occurred. And unless “the world is rid of such evil,” to lift a line from George Junior, September 11 may well end up looking like a lark.

There is no reason, after all, to believe that the teams deployed in the assaults on the WTC and the Pentagon were the only such, that the others are composed of “Arabic-looking individuals” – America’s indiscriminately lethal arrogance and psychotic sense of self-entitlement have long since given the great majority of the world’s peoples ample cause to be at war with it – or that they are in any way dependent upon the seizure of civilian airliners to complete their missions.

To the contrary, there is every reason to expect that there are many other teams in place, tasked to employ altogether different tactics in executing operational plans at least as well-crafted as those evident on September 11, and very well equipped for their jobs. This is to say that, since the assaults on the WTC and Pentagon were act of war – not “terrorist incidents” – they must be understood as components in a much broader strategy designed to achieve specific results. From this, it can only be adduced that there are plenty of other components ready to go, and that they will be used, should this become necessary in the eyes of the strategists. It also seems a safe bet that each component is calibrated to inflict damage at a level incrementally higher than the one before (during the 1960s, the Johnson administration employed a similar policy against Vietnam, referred to as “escalation”).

Since implementation of the overall plan began with the WTC/Pentagon assaults, it takes no rocket scientist to decipher what is likely to happen next, should the U.S. attempt a response of the inexcusable variety to which it has long entitled itself.

About Those Boys (and Girls) in the Bureau
There’s another matter begging for comment at this point. The idea that the FBI’s “counterterrorism task forces” can do a thing to prevent what will happen is yet another dimension of America’s delusional pathology.. The fact is that, for all its publicly-financed “image-building” exercises, the Bureau has never shown the least aptitude for anything of the sort.

Oh, yeah, FBI counterintelligence personnel have proven quite adept at framing anarchists, communists and Black Panthers, sometimes murdering them in their beds or the electric chair. The Bureau’s SWAT units have displayed their ability to combat child abuse in Waco by burning babies alive, and its vaunted Crime Lab has been shown to pad its “crime-fighting’ statistics by fabricating evidence against many an alleged car thief. But actual “heavy-duty bad guys” of the sort at issue now? This isn’t a Bruce Willis/Chuck Norris/Sly Stallone movie, after all.. And J. Edgar Hoover doesn’t get to approve either the script or the casting.

The number of spies, saboteurs and bona fide terrorists apprehended, or even detected by the FBI in the course of its long and slimy history could be counted on one’s fingers and toes. On occasion, its agents have even turned out to be the spies, and, in many instances, the terrorists as well.

To be fair once again, if the Bureau functions as at best a carnival of clowns where its “domestic security responsibilities” are concerned, this is because – regardless of official hype – it has none. It is now, as it’s always been, the national political police force, an instrument created and perfected to ensure that all Americans, not just the consenting mass, are “free” to do exactly as they’re told.

The FBI and “cooperating agencies” can be thus relied upon to set about “protecting freedom” by destroying whatever rights and liberties were left to U.S. citizens before September 11 (in fact, they’ve already received authorization to begin). Sheeplike, the great majority of Americans can also be counted upon to bleat their approval, at least in the short run, believing as they always do that the nasty implications of what they’re doing will pertain only to others.

Oh Yeah, and “The Company,” Too

A possibly even sicker joke is the notion, suddenly in vogue, that the CIA will be able to pinpoint “terrorist threats,” “rooting out their infrastructure” where it exists and/or “terminating” it before it can materialize, if only it’s allowed to beef up its “human intelligence gathering capacity” in an unrestrained manner (including full-bore operations inside the US, of course).

Yeah. Right.

Since America has a collective attention-span of about 15 minutes, a little refresher seems in order: “The Company” had something like a quarter-million people serving as “intelligence assets” by feeding it information in Vietnam in 1968, and it couldn’t even predict the Tet Offensive. God knows how many spies it was fielding against the USSR at the height of Ronald Reagan’s version of the Cold War, and it was still caught flatfooted by the collapse of the Soviet Union. As to destroying “terrorist infrastructures,” one would do well to remember Operation Phoenix, another product of its open season in Vietnam. In that one, the CIA enlisted elite US units like the Navy Seals and Army Special Forces, as well as those of friendly countries – the south Vietnamese Rangers, for example, and Australian SAS – to run around “neutralizing” folks targeted by The Company’s legion of snitches as “guerrillas” (as those now known as “terrorists” were then called).

Sound familiar?

Upwards of 40,000 people – mostly bystanders, as it turns out – were murdered by Phoenix hit teams before the guerrillas, stronger than ever, ran the US and its collaborators out of their country altogether. And these are the guys who are gonna save the day, if unleashed to do their thing in North America?

The net impact of all this “counterterrorism” activity upon the combat teams’ ability to do what they came to do, of course, will be nil.

Instead, it’s likely to make it easier for them to operate (it’s worked that way in places like Northern Ireland). And, since denying Americans the luxury of reaping the benefits of genocide in comfort was self-evidently a key objective of the WTC/Pentagon assaults, it can be stated unequivocally that a more overt display of the police state mentality already pervading this country simply confirms the magnitude of their victory.

On Matters of Proportion and Intent
As things stand, including the 1993 detonation at the WTC, “Arab terrorists” have responded to the massive and sustained American terror bombing of Iraq with a total of four assaults by explosives inside the US. That’s about 1% of the 50,000 bombs the Pentagon announced were rained on Baghdad alone during the Gulf War (add in Oklahoma City and you’ll get something nearer an actual 1%).

They’ve managed in the process to kill about 5,000 Americans, or roughly 1% of the dead Iraqi children (the percentage is far smaller if you factor in the killing of adult Iraqi civilians, not to mention troops butchered as/after they’d surrendered and/or after the “war-ending” ceasefire had been announced).

In terms undoubtedly more meaningful to the property/profit-minded American mainstream, they’ve knocked down a half-dozen buildings – albeit some very well-chosen ones – as opposed to the “strategic devastation” visited upon the whole of Iraq, and punched a $100 billion hole in the earnings outlook of major corporate shareholders, as opposed to the U.S. obliteration of Iraq’s entire economy.

With that, they’ve given Americans a tiny dose of their own medicine.. This might be seen as merely a matter of “vengeance” or “retribution,” and, unquestionably, America has earned it, even if it were to add up only to something so ultimately petty.

The problem is that vengeance is usually framed in terms of “getting even,” a concept which is plainly inapplicable in this instance. As the above data indicate, it would require another 49,996 detonations killing 495,000 more Americans, for the “terrorists” to “break even” for the bombing of Baghdad/extermination of Iraqi children alone. And that’s to achieve “real number” parity. To attain an actual proportional parity of damage – the US is about 15 times as large as Iraq in terms of population, even more in terms of territory – they would, at a minimum, have to blow up about 300,000 more buildings and kill something on the order of 7.5 million people.

Were this the intent of those who’ve entered the US to wage war against it, it would remain no less true that America and Americans were only receiving the bill for what they’d already done. Payback, as they say, can be a real motherfucker (ask the Germans). There is, however, no reason to believe that retributive parity is necessarily an item on the agenda of those who planned the WTC/Pentagon operation. If it were, given the virtual certainty that they possessed the capacity to have inflicted far more damage than they did, there would be a lot more American bodies lying about right now.

Hence, it can be concluded that ravings carried by the “news” media since September 11 have contained at least one grain of truth: The peoples of the Mideast “aren’t like” Americans, not least because they don’t “value life’ in the same way. By this, it should be understood that Middle-Easterners, unlike Americans, have no history of exterminating others purely for profit, or on the basis of racial animus. Thus, we can appreciate the fact that they value life – all lives, not just their own – far more highly than do their U.S. counterparts.

The Makings of a Humanitarian Strategy
In sum one can discern a certain optimism – it might even be call humanitarianism – imbedded in the thinking of those who presided over the very limited actions conducted on September 11.

Their logic seems to have devolved upon the notion that the American people have condoned what has been/is being done in their name – indeed, are to a significant extent actively complicit in it – mainly because they have no idea what it feels like to be on the receiving end.

Now they do.

That was the “medicinal” aspect of the attacks.

To all appearances, the idea is now to give the tonic a little time to take effect, jolting Americans into the realization that the sort of pain they’re now experiencing first-hand is no different from – or the least bit more excruciating than – that which they’ve been so cavalier in causing others, and thus to respond appropriately.

More bluntly, the hope was – and maybe still is – that Americans, stripped of their presumed immunity from incurring any real consequences for their behavior, would comprehend and act upon a formulation as uncomplicated as “stop killing our kids, if you want your own to be safe.”

Either way, it’s a kind of “reality therapy” approach, designed to afford the American people a chance to finally “do the right thing” on their own, without further coaxing.

Were the opportunity acted upon in some reasonably good faith fashion – a sufficiently large number of Americans rising up and doing whatever is necessary to force an immediate lifting of the sanctions on Iraq, for instance, or maybe hanging a few of America’s abundant supply of major war criminals (Henry Kissinger comes quickly to mind, as do Madeline Albright, Colin Powell, Bill Clinton and George the Elder) – there is every reason to expect that military operations against the US on its domestic front would be immediately suspended.

Whether they would remain so would of course be contingent upon follow-up. By that, it may be assumed that American acceptance of onsite inspections by international observers to verify destruction of its weapons of mass destruction (as well as dismantlement of all facilities in which more might be manufactured), Nuremberg-style trials in which a few thousand US military/corporate personnel could be properly adjudicated and punished for their Crimes Against humanity, and payment of reparations to the array of nations/peoples whose assets the US has plundered over the years, would suffice.

Since they’ve shown no sign of being unreasonable or vindictive, it may even be anticipated that, after a suitable period of adjustment and reeducation (mainly to allow them to acquire the skills necessary to living within their means), those restored to control over their own destinies by the gallant sacrifices of the combat teams the WTC and Pentagon will eventually (re)admit Americans to the global circle of civilized societies. Stranger things have happened.

In the Alternative
Unfortunately, noble as they may have been, such humanitarian aspirations were always doomed to remain unfulfilled. For it to have been otherwise, a far higher quality of character and intellect would have to prevail among average Americans than is actually the case. Perhaps the strategists underestimated the impact a couple of generations-worth of media indoctrination can produce in terms of demolishing the capacity of human beings to form coherent thoughts. Maybe they forgot to factor in the mind-numbing effects of the indoctrination passed off as education in the US. Then, again, it’s entirely possible they were aware that a decisive majority of American adults have been reduced by this point to a level much closer to the kind of immediate self-gratification entailed in Pavlovian stimulus/response patterns than anything accessible by appeals to higher logic, and still felt morally obliged to offer the dolts an option to quit while they were ahead.

What the hell? It was worth a try.

But it’s becoming increasingly apparent that the dosage of medicine administered was entirely insufficient to accomplish its purpose.

Although there are undoubtedly exceptions, Americans for the most part still don’t get it.

Already, they’ve desecrated the temporary tomb of those killed in the WTC, staging a veritable pep rally atop the mangled remains of those they profess to honor, treating the whole affair as if it were some bizarre breed of contact sport. And, of course, there are the inevitable pom-poms shaped like American flags, the school colors worn as little red-white-and-blue ribbons affixed to labels, sportscasters in the form of “counterterrorism experts” drooling mindless color commentary during the pregame warm-up.

Refusing the realization that the world has suddenly shifted its axis, and that they are therefore no longer “in charge,” they have by-and-large reverted instantly to type, working themselves into their usual bloodlust on the now obsolete premise that the bloodletting will “naturally” occur elsewhere and to someone else.

“Patriotism,” a wise man once observed, “is the last refuge of scoundrels.”

And the braided, he might of added.

Braided Scoundrel-in-Chief, George Junior, lacking even the sense to be careful what he wished for, has teamed up with a gaggle of fundamentalist Christian clerics like Billy Graham to proclaim a “New Crusade” called “Infinite Justice” aimed at “ridding the world of evil.”

One could easily make light of such rhetoric, remarking upon how unseemly it is for a son to threaten his father in such fashion – or a president to so publicly contemplate the murder/suicide of himself and his cabinet – but the matter is deadly serious.

They are preparing once again to sally forth for the purpose of roasting brown-skinned children by the scores of thousands. Already, the B-1 bombers and the aircraft carriers and the missile frigates are en route, the airborne divisions are gearing up to go.

To where? Afghanistan?

The Sudan?

Iraq, again (or still)?

How about Grenada (that was fun)?

Any of them or all. It doesn’t matter.

The desire to pummel the helpless runs rabid as ever.

Only, this time it’s different.

The time the helpless aren’t, or at least are not so helpless as they were.

This time, somewhere, perhaps in an Afghani mountain cave, possibly in a Brooklyn basement, maybe another local altogether – but somewhere, all the same – there’s a grim-visaged (wo)man wearing a Clint Eastwood smile.

“Go ahead, punks,” s/he’s saying, “Make my day.”

And when they do, when they launch these airstrikes abroad – or may a little later; it will be at a time conforming to the “terrorists”‘ own schedule, and at a place of their choosing – the next more intensive dose of medicine administered here “at home.”

Of what will it consist this time? Anthrax? Mustard gas? Sarin? A tactical nuclear device?

That, too, is their choice to make.

Looking back, it will seem to future generations inexplicable why Americans were unable on their own, and in time to save themselves, to accept a rule of nature so basic that it could be mouthed by an actor, Lawrence Fishburn, in a movie, The Cotton Club.

“You’ve got to learn, ” the line went, “that when you push people around, some people push back.”

As they should.

As they must.

And as they undoubtedly will.

There is justice in such symmetry.

ADDENDUM
The preceding was a “first take” reading, more a stream-of-consciousness interpretive reaction to the September 11 counterattack than a finished piece on the topic. Hence, I’ll readily admit that I’ve been far less than thorough, and quite likely wrong about a number of things.

For instance, it may not have been (only) the ghosts of Iraqi children who made their appearance that day. It could as easily have been some or all of their butchered Palestinian cousins.

Or maybe it was some or all of the at least 3.2 million Indochinese who perished as a result of America’s sustained and genocidal assault on Southeast Asia (1959-1975), not to mention the millions more who’ve died because of the sanctions imposed thereafter.

Perhaps there were a few of the Korean civilians massacred by US troops at places like No Gun Ri during the early ‘50s, or the hundreds of thousands of Japanese civilians ruthlessly incinerated in the ghastly fire raids of World War II (only at Dresden did America bomb Germany in a similar manner).

And, of course, it could have been those vaporized in the militarily pointless nuclear bombings of Hiroshima and Nagasaki.

There are others, as well, a vast and silent queue of faceless victims, stretching from the million-odd Filipinos slaughtered during America’s “Indian War” in their islands at the beginning of the twentieth century, through the real Indians, America’s own, massacred wholesale at places like Horseshoe Bend and the Bad Axe, Sand Creek and Wounded Knee, the Washita, Bear River, and the Marias.

Was it those who expired along the Cherokee Trial of Tears of the Long Walk of the Navajo?

Those murdered by smallpox at Fort Clark in 1836?

Starved to death in the concentration camp at Bosque Redondo during the 1860s?

Maybe those native people claimed for scalp bounty in all 48 of the continental US states? Or the Raritans whose severed heads were kicked for sport along the streets of what was then called New Amsterdam, at the very site where the WTC once stood?

One hears, too, the whispers of those lost on the Middle Passage, and of those whose very flesh was sold in the slave market outside the human kennel from whence Wall Street takes its name. And of coolie laborers, imported by the gross-dozen to lay the tracks of empire across scorching desert sands, none of them allotted “a Chinaman’s chance” of surviving.

The list is too long, too awful to go on.

No matter what its eventual fate, America will have gotten off very, very cheap.

The full measure of its guilt can never be fully balanced or atoned for.

In response to criticism, Churchill issued this press release January 31, 2005:

PRESS RELEASE

In the last few days there has been widespread and grossly inaccurate media coverage concerning my analysis of the September 11, 2001 attacks on the World Trade Center and the Pentagon, coverage that has resulted in defamation of my character and threats against my life. What I actually said has been lost, indeed turned into the opposite of itself, and I hope the following facts will be reported at least to the same extent that the fabrications have been.

* The piece circulating on the internet was developed into a book, On the Justice of Roosting Chickens. Most of the book is a detailed chronology of U.S. military interventions since 1776 and U.S. violations of international law since World War II. My point is that we cannot allow the U.S. government, acting in our name, to engage in massive violations of international law and fundamental human rights and not expect to reap the consequences.

* I am not a “defender”of the September 11 attacks, but simply pointing out that if U.S. foreign policy results in massive death and destruction abroad, we cannot feign innocence when some of that destruction is returned. I have never said that people “should” engage in armed attacks on the United States, but that such attacks are a natural and unavoidable consequence of unlawful U.S. policy. As Martin Luther King, quoting Robert F. Kennedy, said, “Those who make peaceful change impossible make violent change inevitable.”

* This is not to say that I advocate violence; as a U.S. soldier in Vietnam I witnessed and participated in more violence than I ever wish to see. What I am saying is that if we want an end to violence, especially that perpetrated against civilians, we must take the responsibility for halting the slaughter perpetrated by the United States around the world. My feelings are reflected in Dr. King’s April 1967 Riverside speech, where, when asked about the wave of urban rebellions in U.S. cities, he said, “I could never again raise my voice against the violence of the oppressed . . . without having first spoken clearly to the greatest purveyor of violence in the world today — my own government.”

* In 1996 Madeleine Albright, then Ambassador to the UN and soon to be U.S. Secretary of State, did not dispute that 500,000 Iraqi children had died as a result of economic sanctions, but stated on national television that “we” had decided it was “worth the cost.” I mourn the victims of the September 11 attacks, just as I mourn the deaths of those Iraqi children, the more than 3 million people killed in the war in Indochina, those who died in the U.S. invasions of Grenada, Panama and elsewhere in Central America, the victims of the transatlantic slave trade, and the indigenous peoples still subjected to genocidal policies. If we respond with callous disregard to the deaths of others, we can only expect equal callousness to American deaths.

* Finally, I have never characterized all the September 11 victims as “Nazis.” What I said was that the “technocrats of empire” working in the World Trade Center were the equivalent of “little Eichmanns.” Adolf Eichmann was not charged with direct killing but with ensuring the smooth running of the infrastructure that enabled the Nazi genocide. Similarly, German industrialists were legitimately targeted by the Allies.

* It is not disputed that the Pentagon was a military target, or that a CIA office was situated in the World Trade Center. Following the logic by which U.S. Defense Department spokespersons have consistently sought to justify target selection in places like Baghdad, this placement of an element of the American “command and control infrastructure” in an ostensibly civilian facility converted the Trade Center itself into a “legitimate” target. Again following U.S. military doctrine, as announced in briefing after briefing, those who did not work for the CIA but were nonetheless killed in the attack amounted to no more than “collateral damage.” If the U.S. public is prepared to accept these “standards” when the are routinely applied to other people, they should be not be surprised when the same standards are applied to them.

* It should be emphasized that I applied the “little Eichmanns” characterization only to those described as “technicians.” Thus, it was obviously not directed to the children, janitors, food service workers, firemen and random passers-by killed in the 9-1-1 attack. According to Pentagon logic, were simply part of the collateral damage. Ugly? Yes. Hurtful? Yes. And that’s my point. It’s no less ugly, painful or dehumanizing a description when applied to Iraqis, Palestinians, or anyone else. If we ourselves do not want to be treated in this fashion, we must refuse to allow others to be similarly devalued and dehumanized in our name.

* The bottom line of my argument is that the best and perhaps only way to prevent 9-1-1-style attacks on the U.S. is for American citizens to compel their government to comply with the rule of law. The lesson of Nuremberg is that this is not only our right, but our obligation. To the extent we shirk this responsibility, we, like the “Good Germans” of the 1930s and ’40s, are complicit in its actions and have no legitimate basis for complaint when we suffer the consequences. This, of course, includes me, personally, as well as my family, no less than anyone else.

* These points are clearly stated and documented in my book, On the Justice of Roosting Chickens, which recently won Honorary Mention for the Gustavus Myer Human Rights Award. for best writing on human rights. Some people will, of course, disagree with my analysis, but it presents questions that must be addressed in academic and public debate if we are to find a real solution to the violence that pervades today’s world. The gross distortions of what I actually said can only be viewed as an attempt to distract the public from the real issues at hand and to further stifle freedom of speech and academic debate in this country.

Ward Churchill
Boulder, Colorado
January 31, 2005

Bishop Williamson and Auschwitz 1.0

Arbeit Macht Frei
I am curious as to why a Roman Catholic bishop would risk a second excommunication over the historic particulars of the Holocaust. Bishop Richard Williamson is being labeled a “Holocaust Denier” because he questions the extent, and mechanism, of the official version of the Holocaust. Because Williamson is also criticized for his skepticism about the official 9/11 narrative, and for his praise for the Unabomber’s manifesto, I want to take a closer look, and wonder what is he reading?

Bishop Richard WilliamsonHere’s what the outspoken Williamson told Swedish SVT in a November 2008 interview, as transcribed by the BBC:

“I believe that the historical evidence is strongly against, is hugely against, six million Jews having been deliberately gassed in gas chambers as a deliberate policy of Adolf Hitler… I believe there were no gas chambers [during World War II]”

First, I’m compelled to pose a naive question: If we can all agree that Jews died in huge numbers by incomparable horrors at the hands of the Nazis, would it matter what the exact death toll was, or which killing method predominated? Why? What is the need for laws to restrict historians who are trying to reconstruct the record from emerging facts? Must preemptive “anti-defamation” laws mandate that historians stick to the official “untold” number and “indescribable” evil?

Even if we postulate, albeit cynically, that Holocaust reverence is critical to upholding American public support for Israel‘s “right to exist” in the Middle East, how could a revision of the casualties, in any case a horrific magnitude, make an difference?

Millions of Jews fell victim to the Third Reich. No one is denying it, and historical revision is not trying to bring the Holocaust victims back to life. Holocaust Remembrance of the Jewish victims has remained a political priority around the world, advocating commemoration in education, literature, civic life, and pop culture. Why then, an aversion to scrutiny?

Last week a fellow Society of St. Pius X member, Rev. Floriano Abrahamowicz was ejected from SSPX for coming to Williamson’s and the Pope’s defense.

While the usual politicians and Jewish community leaders are voicing their indignation, can we ask, are the Bishop’s beliefs really at odds with accepted orthodoxy? The media will reiterate that the Six Million figure has always been beyond dispute. All the while, official scholarship has been recording otherwise. In Germany, revisionist historians are jailed for Holocaust Denial. Yet bit by bit, mainstream historians have been able to publish divergent theses which withstand legal refutation.

For the sake of argument, let’s dismiss all the “deniers” as kooks, and look only at the traditionally vetted voices.

On the subject of Auschwitz, where four million of the total six million Jews were believed to have perished, Der Spiegel managing editor Fritjof Meyer a continued critic of revisionism, summarized in Osteuropa 52, 5/2002, p. 631:

“In 1945, the Soviet Investigatory Commission numbered four million victims in the National Socialist work and extermination camp of Auschwitz-Birkenau, a product of war propaganda. Under coercion, camp Commandant Höß named three million and recanted. Up until now, how many people actually fell victim to this singular mass murder could only be estimated. The first Holocaust historian, Gerald Reitlinger, assumed one million, while the latest state of research estimated it to be several hundred thousand fewer.”

Naturally even Meyer touched off a firestorm by integrating the sum of official scholarship into the big picture. The difficulties which historians face in reaching variant findings are explained by another mainstream scholar, noted Hitler historian Dr. Werner Maser, Professor for History and International Law, Munich University, Falsification, Legend, and Truth about Hitler and Stalin, Olzog, Munich 2004, on p.332

“To be sure, […] the extermination of the Jews is considered to be one of the best researched aspects of contemporary history […], but that is not the case. […] Indeed, whole regions remain as much terra incognita as ever, […] German historians exhibit timidity about taking on the horrible issue and possibly bringing to light details that do not agree with the accounts which have multiplied for a very long time.”

And about the deterrence of the Holocaust Denial laws:

“The sword of Damocles hovers over historians (not only in Germany) who portray the controversial phases of history as they ‘actually were’ – and identify the frequently even officially codified ideological specifications as falsifications of history.”

The question of the gas chambers is raised by the absence of evidence. According to major Holocaust authority Dr. Arno J. Mayer, Professor of Modern Jewish History at Princeton University, in Why Did the Heavens Not Darken? The “Final Solution” in History, Pantheon, New York 1990, p. 362:

“Sources for the study of the gas chambers are at once rare and unreliable. Even though Hitler and the Nazis made no secret of their war on the Jews, the SS operatives dutifully eliminated all traces of their murderous activities and instruments. No written orders for gassing have turned up thus far. The SS not only destroyed most camp records, which were in any case incomplete, but also razed nearly all killing and crematory installations well before the arrival of Soviet troops. Likewise, care was taken to dispose of the bones and ashes of the victims.”

Justifiably, scholars are skeptical that the complete absence of evidence should be taken as proof of its existence and total suppression. Some camps were overrun before the Germans could destroy any part of them. Mayer continues, p. 163:

“In the meantime, there is no denying the many contradictions, ambiguities, and errors in the existing sources. […] Much the same is true of for the conflicting estimates and extrapolations of the number of victims, since there are no reliable statistics to work with. […] Both radical skepticism and rigid dogmatism about the exact processes of extermination and the exact number of victims are the bane of sound historical interpretation”

In light of the before-sited Wannsee Conference documents now being considered post-war forgeries, Mayer explains, p 163:

“To date there is no certainty about who gave the order, and when, to install the gas chambers used for the murder of Jews at Auschwitz. As no written command has been located, there is a strong presumption that the order was issued and received orally”

With no written record of a “Final Solution,” and the implausibility of a completely vaporized paper trail, mainstream scholars have had to improvise an explanation for how an extermination directive was disseminated. University of Vermont Professor Raul Hilberg, member of US Holocaust Memorial Council, author of The Destruction of the European Jews, (Holmes & Meyer, New York 1985), was quoted in Newsday, Feb. 23, 1983:

“But what began in 1941 was a process of destruction [of the Jews] not planned in advance, not organized centrally by any agency. There was no blueprint and there was no budget for destructive measures. They [these measures] were taken step by step, one step at a time. Thus came about not so much a plan being carried out, but an incredible meeting of minds, a consensus mind reading by a far-flung [German] bureaucracy.”

Hilberg himself ran into trouble with the authorized version, because he refused to corroborate tales of Jewish rebellion against their Nazi jailers. His group-think theory extended to the Jews themselves, putting emphasis on their acceptance of being exploited as war industry slave labor.

“I had to examine the Jewish tradition of trusting God, princes, laws and contracts […] Ultimately I had to ponder the Jewish calculation that the persecutor would not destroy what he could economically exploit. It was precisely this Jewish strategy that dictated accommodation and precluded resistance.”

That’s where the extermination camp thesis becomes less probable than the work camp. Perhaps the Jews didn’t resist because they were being worked, not gassed. Worked to death, of course, but dying as more a consequence of wartime Germany’s depleting resources, than from a deliberate eradication effort. Evidence is plentiful of the work camps and dead bodies.

And isn’t that the answer to my innocent question? To doubt whether the murder weapon was a pistol or a knife, means calling into question the crime entirely. That’s why revisionists are decried for being “deniers.” While we presume the distinction makes little difference, because clearly a murder was committed regardless, the prosecutor constructing the accusations wants to prove his motive and not another.

There are many details about which historians have begun to disagree. Many of the witness accounts have been proven to be unreliable. Even Elie Wiesel was compelled to reclassified his memoir as a novel. The Holocaust as later generations have come to know it was not as the WWII generation saw it. Even those soldiers who encountered the atrocities themselves.

Professor Hilberg recounts studying at Brooklyn College under Hans Rosenberg, a fellow Jew. Even in the wake of the haunting newsreels of the concentration camps, Hilberg records that Rosenberg remarked in a 1948 lecture:

“The most wicked atrocities perpetrated on a civilian population in modern times occurred during the Napoleonic occupation of Spain.”

I don’t really subscribe to the idea that the Holocaust is diminished by learning that the WWII concentration camp victims died from systemic and despotic abuse, starvation and exhaustion. But those holding the secrets believe that the concept of the Holocaust being the greatest evil perpetrated upon mankind falls apart if cracks are allowed to form in the accepted narrative.

Perhaps the German population, and for that matter, the Catholic Church, did not intercede more vigorously because there was no premeditated extermination program. We can say now that German reinforcements being sent to the Russian Front knew they were being sent to their deaths, but this is only with hindsight.

Is this Bishop Williamson’s interest in revisiting the Holocaust, to rehabilitate the church’s role? I doubt it. The Catholic church cannot escape culpability for its instrumental role in support of the Nazis, guilty of ware crimes and crimes against humanity, initiating a war of aggression being the chief charge at the Nuremberg Trials for example, before even taking into account the concentration camps.

Perhaps the American industrialists and bankers who knew about the camps did not interfere because they understood the camps were for the supply of slave labor. Isn’t this a key enigma of the Holocaust, as we grapple with it? How could we have not known? How could this have been allowed to happen?

Perhaps the signs above the camp gates which read ARBEIT MACHT FREI, work earns freedom, meant what they said. They might have been inescapable ironies, but not the cruel mockery of which we accuse the Germans.

Why would factories like IG Farben and Krupp want to liquidate their valuable cheap workforce? Why would camps meant to exterminate have infirmaries? Why would the wardens treat inmates for illness while simultaneously sending incoming transports to directly to ovens?

Today the popular conscience has been saturated with the ghostly images of the concentration camp victims. How to explain the emaciated inmates discovered by the liberating troops, many of whom could not be saved from dying, even under the administration of the liberators? Dr. Arno J. Mayer concedes this explanation, p. 365

“[…] the whole of Auschwitz was intermittently in the grip of a devastating typhus epidemic. The result was an unspeakable death rate. […] There is a distinction between dying from ‘natural’ or ‘normal’ causes and being killed by shooting, hanging, phenol injection, or gassing. […] from 1942 to 1945, certainly at Auschwitz, but probably overall, more Jews were killed by so-called ‘natural’ causes than by ‘unnatural’ ones.”

This is not to diminish the crime of the Holocaust one iota. The German people, the industrialists, the church, the anti-Semites, are far more guilty because the crime against the Jews was banal and common. It was not devised by agents of unspeakable evil.

Other aspiring genocidal nations and peoples cannot excuse their acts because their methods fall demonstrably below the mythic proportions of the Holocaust.

ig-farben-auschwitz

AIPAC equals treason!

“If I were an Arab leader, I would never sign an agreement with Israel. It is normal; we have taken their country. It is true God promised it to us, but how could that interest them? Our God is not theirs. There has been anti-semitism, the Nazis, Hitler, Auschwitz, but was that their fault? They see but one thing: we have come and we have stolen their country. Why would they accept that?”
–David Ben Gurion, first Israeli Prime Minister

Nazis executed parents in front of children in Gaza.

UN investigator Richard Falk (a Jew) says Israel committed war crimes in Gaza, compares it to Warsaw Ghetto.

Visualize Nuremberg. Israel already budgeting lawyers for war crime trials. PM Olmert even appointed a Justice Minister who’s only job will be to defend Israel from War Crime charges.

Just one of hundreds of accounts of NAZI war crimes in Gaza.

State Dept. celebrates departure of “Wicked Witch of the West.”

Hey Gazans: Come meet the new boss, same as the old boss.

Obama stops pretending, and reveals he’s just Bush in blackface. He agrees that the President can spy on anyone he wants, without a warrant. Allthose silly people, who assumed “change” meant change for the better.

NSA analyst reveals what we all suspected: Dictator Bush wasn’t just spying on suspected terrorists, but on all Americans.

Excerpts from Thomas McCullock’s Jan 24 notes, thomasmc.com.

NEVER FORGET: Israel was STOLEN from the Palestinians!

ZioNazis still blockading food and medicine from Gaza,
a war crime.

Israel blocking cash from entering Gaza.

Nuremburg tribunals are too good for the Zionist Nazis who did this.

Israeli Nazis are a threat to the whole world.

The black cloud over America begins to lift. Obama drafting executive order to close Guantanamo, and stop all trials of prisoners.

Obama calls Palestinian president and vows to work towards a peaceful settlement. We shall soon see whether he is for real, or just another AIPAC puppet.

LA Times editorial: On the heels of Pastor Rick Warren’s invocation, Obama should drop the semantics and acknowledge that denying same-sex marriage is discriminatory.

comic

Excerpts from Thomas McCullock’s Jan 21 notes, thomasmc.com.

Pentagon tortures 15 y/o POW, loses ‘confession’ tape, but still wants to enter it into ‘trial’!

Former Gitmo prosecutor rips military trials, calling interrogators’ practices ‘despicable’ The 15 y/o taken as POW in Afghanistan was tortured, his torture obtained ‘confession’ video taped by his interrogators, and yet now ‘the confession’ is being entered in by the US government-military as supposed evidence against the juvenile POW at their military procedures. All this taking place at its own illegal US government sponsored Kangaroo Court trial for the young man, though the US military claims that they have actually lost the taped confession!

Even Kafka couldn’t have come up with this totalitarian scenario and yet this is the standard of ‘Military Justice’ that will be used to try yet more US soldiers being brought into Fort Carson for ‘trials’. They don’t seem to be planning to charge anybody for crimes of torturing POWs, Barack or no Barack? How is that the case in our alleged democracy?

Free the US GIs that have resisted taking part in these wars waged in such illegal manner. Mohamed was tortured repeatedly at Gitmo, post his Afghanistan taped ‘confession’ obtained from torture. What were they hoping to find from this kid POW? Some Americans that mistakenly entered into the US military don’t want to take part in this sort of illegalities. That’s a crime? They should be honored for helping chip away at this Pentagon torture machine.

American liberal intellectualism in crisis

The IntellectualsAmerican liberal intellectualism is in a state of crisis today. The intellectuals that guide liberalism keep shouting to the Democratic Party to stop collaborating with the Republican Party and to be a true opposition as today’s liberals have thought they always were.

The post World War II outlook of American liberal intellectuals is beginning to crumble and Barack Obama marks the line for a new transformation in American liberal politics. Obama simply is not going to do as the liberal intellectuals demand he act. Liberals can scream and wail and shout and it will all be for naught. The Democrats and Republicans are merely two branches of the same entity, which is that of being the American Corporate Party. And Barack Obama and thee Democratic Party leadership will continue to act as Republican collaborationists.

Barack Obama comes to the forefront precisely at the beginning of the great breakup in the appearance of American Empire. For the last six decades, the American Empire has posed itself as a benign world enforcer, a cop for the public good. Today, that image is all in shreds, and Barack will not be able to put it back together again. Certainly not with his plans to attack Iran, continue to oppress Afghanistan with a USA occupation, and continue to lie and fudge about US occupation and genocide in Iraq. And not with the coming global capitalist economic meltdown.

Yes, American liberalism is in crisis and it bears to take a look at how it has reacted to such crisis in the past.

‘…the record is plain that from the twenties to the forties the majority of anti-capitalist intellectuals passed through three phases which were marked out by the mighty national and world events of the time. From the stock market crash to Hitler’s victory and Roosevelt’s, assumption of office they were torn loose from their previous moorings and swung sharply to the left. From 1933 to the Spanish civil war and the Moscow trials they deepened their commitments and produced the initial differentiations. From 1937 through the crushing of the Spanish revolution, the Stalin-Hitler pact and the Second World War they began the flight from radicalism which was consummated in the wholesale recanting characteristic of the cold war.’

The author, George Novack, is talking about how American liberal intellectuals of his time went from being much like they are today, to becoming radicalized and anti-capitalist, and then beaten back and conservatized once again. The entire history as told by him can be read at Radical Intellectuals in the 1930s

What we get over a period of time, is that America’s liberal leaning intellectuals most resemble a giant bowl of Jello not quite congealed in the refrigerator. They are not the most steadfast citizens amongst the general population. They like to go with the flow more than anything else, so they will be torn asunder when the times change once again.

Look for many of the liberal intellectuals to walk around in circles acting stunned in the next coming years. They just don’t have too many intellectual (or societal) resources to do much anything of else. Despite being the foremost world authorities on everything, they don’t have the real power in their hands, and as such, like servants everywhere, most will do as the Patron dictates while griping about it in the shadows.

AIDS research has failed to find cause

“AIDS research has not failed because it never found a cure … AIDS research has failed because it never found a cause”
 
Twenty four years and no cure, no cause, no answers. But billions of tax dollars to an established AID$ industry who refuse to look at the facts. More money has been spent on AIDS research than any other disease in the history of medicine, all with no results! Giving a weakened or compromised immune system a name, “AIDS”, is trickery. Telling us it is caused by an old and harmless retrovirus is dishonest. But treating immunodeficiency, whatever is causing it, with toxic chemo ARV drugs, that destroy DNA and bone marrow, is criminal! It’s time to get mad and get the word out and demand a reappraisal. Or accountability for the terror, stress, damage and destruction to many lives.

FACTS:
1. HIv has never been isolated as a pure virus, direct from human blood or tissue nor have control groups been used who are HIv “positive” and HIv “negative”. One must understand that HIv is a harmless passenger retrovirus, not a disease causing virus like HPV or HSV. (see 3 and 8.)

2. Isolation experiments, as recommended by the Perth Group and others, in the Presidential AIDS Advisory Panel Report of 2000, have never been done on control groups both with or without HIv. This is especially important since it is well known that thousands who test positive for antibodies for HIv remain healthy and thousands who have “AIDS” (by CDC definition) are not infected with HIv.

3. Kochs Postulates is and has been the widely accepted, time tested screen for determining whether an infectious germ or virus is causing disease. HIv fails all 4 (or 3 depending how you consider #4), of the postulates. A large effort must be undertaken to produce HIv in any quantities that are similar to disease causing virus. This is done by co-culturing HIv with leukemia cells in the lab (petri dish) or by adding growth stimulants. (See point 7 under “AIDS – Fact or Fraud”.)

4. HIv was first studied/discovered by Luc Montagnier as LAV around 1979. Montagnier admitted in 1990 that his LAV was probably benign. Robert Gallo stole Luc Montagniers work in approx. 1983 when Montagnier shared it with him. Gallo then claimed it as his own. He and the NIH were sued by the French government. Montagnier worked for the Pasteur Institute of Science. He also shared in the royalties. (see 13) Luc Montagniers LAV stood for Lymphademopathy Associated Virus. Part of the Pasteur Inst. charges in the initial lawsuit against Gallo were for Gallos claim that HIv was infectious. Regardless virus as causation of any kind of cancer, including lymphoma, is long proved false in the 70’s “Cancer Virus Program” through the Natl. Inst. of Cancer which is part of the NIH.

5. AIDS is nothing more than an acronym created by the CDC to create the categories of known diseases hypothesized as being “caused” by HIv. Suppression of the immune system however is not a disease and is caused by many things, which has led to much (purposeful?) confusion of the public. With a “positive” HIv antibodies test,(see 11,) or low T-cell count, or if in a risk group, and if showing symptoms of any one of 29 AIDS diseases as classified by CDC, any observation of those symptoms (see 19 for Africa) are now “AIDS-HIv” related and somehow deadly when most are not, all have other known causation and can be treated without antiretroviral drugs. All of this convoluted testing and categorizing adds to the numbers of HIv “positives” and then “AIDS” patient cases. Useful data for keeping the ARV drugs on the front line of treatment even though they are useless having been designed for cancer tumor therapy, and thus very harmful.

6. AZT, an ARV(antiretroviral), and other AIDS cocktails like HAART, are very toxic chemo CANCER drugs and destroy cells and terminate DNA chains. The initial trials of AZT based drugs showed wide evidence of harsh side affects, i.e. muscle wasting, organ failure, vomiting, diarrhea, destruction of bone marrow, yet FDA approved them on a fast track mandate in 1987. Many involved in the trials say these side effects were hidden. When AZT was created in 1964 it was deemed too toxic for use and was shelved. It is no “theory” that these drugs cause the very kinds of immune system destruction and breakdown that is deceitfully blamed on HIv. Admitted by the drug manufacturers themselves in their printed warnings. Why was this drug even thought to be useful for a “virus” when chemo therapy had never been used for virus treatment?

7. People who refuse AZT or the chemo drug cocktails after a “positive” HIv antibody test, remain healthy in most cases. (see risk groups #18) AIDS activists and counselors who are unaware of what HIv actually is, consistently fail to inform the “at risk” population that often call or visit them, that the HIv test is not a test for the virus. Or that the tests have disclaimers that say: “there is no recognized standard for establishing the presence or absence of antibodies to HIV-1 or HIV-2 in human blood”. And the viral load tests have the same disclaimers for what they are testing for. Besides, there is no proof of different specific HIv-1 or HIv-2 because HIv is a benign indistinguishable retrovirus.

8. The PCR (polymerase chain reaction) test is a desperate misleading attempt to detect DNA-RNA fragments of HIv retrovirus, in order to prove it is causing disease. Its inventor, Kary Mullis, rejects HIv as the cause of AIDS or anything else and says his test only amplifies and copies these fragments for study. No real disease causing cytotoxic virus needs this kind of help in it’s detection and purification.

9. HIv is non-cytotoxic.Therefore HIv cannot destroy the cells it infects. Nor can any retrovirus. In fact HIv is well known to virologists to be compatible with T-cells. Or most cells for that matter. This and transcriptease (the ability of retrovirus to insert themselves into cells RNA first, the reverse of cytotoxic virus) is the reason for their specific classification as retroviruses.

10. Real disease causing viruses can be vaccinated against in 95% of cases. But viruses are not always the cause of disease. As often in the case of scurvy, pellagra and weak immune system, it is a dietary and lack of proper exercise or nutrient problem/issue. The case of SMON in Japan was a similar search for a “virus” causation when finally the culprit was found to be a toxin. A toxin in the very drug that doctors were prescribing to SMON patients. This is what happens when “virus hunters” get carried away and take over research for professional recognition and monetary reasons. Or just plain stubbornness. Legionairres disease was a prime example of how the CDC/NIH missed a toxin causation completely and birthed a vaccine that did more harm than good. (Duesbergs “Inventing the AIDS Virus”)

11. The Western Blot HIv test is well known to give many false positives as many antibodies already in the body or other medical conditions (up to 70) can set off the non-specific protein strips in the test. All HIv diagnostic tests carry a disclaimer that the test is NOT to be used to determine the presence or absence of HIv antibodies. Regardless, presence of antibodies to HIv would mean the immune system has done it’s work and the body is protected. In reality based science anyway. In other words, it is impossible to be positive for HIv with these tests because a positive test really means you’re positive for the antibodies and negative for HIv! Thus the PCR tests and viral load(T-cell counts) became the new hope to detect fragments of HIv DNA/RNA or low immune response. (see 8, 16)

12. There are different standards of HIv positive in different states and countries! Why? If it’s a virus it’s a virus! One standard needed. But there is no “gold” standard test. Other than Kochs Postulates for virus and microbes which the CDC and NIH refuse to acknowledge or talk about or if they do they claim that Kochs method is outdated! That’s like saying the 2nd law of thermodynamics is useless.

13. Gallo/NIH received the patent on the HIv tests in the exact same week he announced the “probable” cause of AIDS in 1984. It made the NIH-CDC, Montagnier and Gallo, millions. He had no peer review and had not isolated pure HIv directly from any “infected” persons blood or tissue, at the time of announcement. He could only claim 40% of his “AIDS” patients had detectable HIv. Not anywhere close to claim HIv was infectious or the cause of AIDS by recognized science standards. But how did he determine his “AIDS” patients had HIv? By co-culturing HIv in the lab or with a growth additive. Why? Because retrovirus are weak non-cytotoxic passenger virus that do not multiply or destroy cells.

14. Gallo was involved in the Nixon “War on Cancer” program in the 70’s and helped the Natl. Inst. of Cancer to pressure Congress to fund the program with great promises of success to find retrovirus or any virus as the cause of cancer. But it failed. Luckily, the emerging AIDS “epidemic” helped to find NIH/CDC and the virus hunters a new program to keep and increase their funding and a disease for Gallos HTLV-3. At a time when Reagan needed a political solution, and as gay men were demanding an answer, HIv was acceptable because it erased blame from the gay community for the disease being a “lifestyle” or behavioral disease. But early in it’s announcements, the CDC claimed it was behavioral and called it GRID. Gay Related Immune Deficiency. This was a correct diagnosis as the first 5 cases were all same extreme sexual behavior, heavy drug use related causation. For the CDC, there was no money in a program for only gays. Thus heterosexuals had to be at risk as well. (see 18)

15. Testing people for HIv because they show “AIDS” related disease symptoms, with or without immune suppression, has become the standard line of reasoning though it is preposterous due to the falsity of the tests and absurdity of using other diseases as markers. (11) But the AIDS hysteria has swept through every corner of our medical professions, without a widely publicized critical analysis of testing procedures or reassessment allowed.

16. Low T-cell counts are misleading. A variety of illness, drug abuse, poor health/diet, colds, flu, disease are also responsible. Many athletic people have low T-cell counts and they can vary almost hourly. In people with detectable HIv (by PCR test), it has only been found to infect 1 in approx. 1000 T-cells, hardly enough to destroy immune response. Regardless monitoring the immune response is no way to detect specific disease. Laying in the sun will lower your T-cell count to under 200.
http://www.aliveandwell.org/html/viral_load_tcell/viral_load.html

17. Gallo claims his electron micrograph pictures are of an HIv virus, but nothing can be found by other virologists that resembles a true concentrated virus titer. It is now known that Gallo forged these pictures and was investigated for it by the NIH.

18. “AIDS” has stayed within it’s risk groups, Gay and straight male intravenous drug users, heavy drug abusers, popper users (which causes Karposis Sarcoma), hemophiliacs, and the poor malnourished living in unsanitary conditions…. instead of spreading widely across the population as we’re led to believe. It is not sexually transmittable as claimed by the CDC and NIH, but this edict spread the risk to heterosexuals. With this false claim, and Americans ignorance of virology or HIv testing, funding for research and the following prescriptions for ARV’s was increased 1000 fold. HIv is an old retro-virus that has likely been with us for 100’s of years. Farrs law for dating virus proves this as HIv models exactly to Farrs test. The body’s DNA-RNA discards many cells and retro-virus everyday. Repeat: HIv is not sexually transmittable. It is a parinatally transmitted retrovirus.

19. AIDS related disease in South Africa was and still is occurring markedly in the overcrowded poor populations where malnutrition, common persistent parasitical diseases long vanquished from western populations, lack of health care, std’s infections and unsanitary environments persist. And this is true for the new countries AIDS is supposedly invading. To make matters worse, give them toxic chemo drugs on top of their persistent diseases and already compromised immune systems, and they will die. Many die of the common regional diseases regardless due to lack of health care services, known curative drugs, and of malnutrition. For instance, researchers who have examined the supposed massive deaths reported in Tanzania, find no such evidence. (Questioning AIDs in South Africa) And the CDC has now allowed themselves to categorize many common diseases in these areas as AIDS related, WITHOUT HIv testing, due largely to the expense of the HIv tests. (see Duesberg paper below) Of course they know the the testing is a hoax regardless. As a result, AIDS cases increase lending to the deception of a pandemic. All numbers the CDC and UNAIDS uses for HIv infection and AIDS cases are false and/or completely made up estimations and projections.

20. In fact now the NIH and CDC have admitted that they do not know how HIv causes destruction to the immune system (it doesn’t but the ARV drugs, immune suppressive behaviors, poverty, malnutrition do), and they are now factoring in a co-virus as a way out of their deception. A vaccine was promised in 2 years after the announcement of the “probable” cause HIv in 1984. No cure has ever been produced because no cure is needed or possible for a retro-virus (or passenger virus) that cannot cause disease. No vaccine because HIv isn’t a real disease causing virus.

21. Scurvy (citric acid deficiency), Pellagra (niacin deficiency), Beriberi (thiamine deficiency) , SMON (toxin in drug treatment), Zantac,Tagamet-Ulcers (bacteria, Tagamet, Zantac useless), Clioquinol-Diarrhea (toxin in Clioquinol treatment), Influenza (virus) , DES – Synthetic hormone( caused cervical cancer and sterility)…………all cases that were misdiagnosed or causations ignored by the medical/scientific profession at their specific occurrences in history to the detriment of the public. And in the cases where a drug was given and was causation, it was always to the profit of the pharmaceutical industry. In some cases the misdiagnoses, sickness and death went on for years.

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From the website www.questionaids.com

Why isn’t an antibody test that’s verified by another antibody test good enough to say someone is infected with HIV?

The rationale for the use of antibody tests is that the immune system has the ability to detect foreign agents or viruses and to respond by producing antibodies that react with those agents or viruses. However, this rationale does not work in reverse. That is, the observation of an antibody reaction with a particular agent or virus does not prove that the antibody was produced in response to that particular agent or virus.

The problem with using antibodies alone to indicate infection with a particular agent or virus is twofold:

1. Antibodies can only be associated with a disease after it is shown that they are consistently generated after exposure to the pure virus. We are unaware that this has ever been accomplished with HIV.
2. Antibodies engage in indiscriminate relationships with a variety of agents or viruses. One could say that antibodies are “promiscuous,” that is, antibodies meant for one agent or virus may react with another agent or virus that is a perfect stranger. Or, to put it technically, there is ample evidence that antibody molecules, even the most pure (monoclonal antibodies) are not mono-specific, and that they cross-react with other, non-immunizing antigens.

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FROM THE DVD “AIDS – FACT OR FRAUD?” Ten reasons why HIv cannot be the cause of AIDS:

“Classifying suppression or deficiency of the immune system, that long has had causation in many things, as a specific “syndrome” caused by a harmless retrovirus, is beyond comprehension and an insult to good medicine and science…unless you’re up to no good. But then treating an immune deficiency with poison chemo antiretroviral drugs, that destroy same immune system (bone marrow) and terminate DNA chains is criminal and insane! AIDS is an immune issue and should be treated as such. In fact, the acronym AIDS should be thrown away and banished from our vocabulary.”

1. HIv, like other viruses is harmless after antibody immunity. There is no known disease or virus that has re-emerged after a mature, healthy immune system created antibodies to it.(1) Testing positive for HIv means you have the antibodies and don’t have HIv. Unfortunately many different antigens are documented to set off the protein strips in the HIv tests which makes it difficult to lend any credibility to the tests. Thus the PCR test was invented.

2. HIv does not kill the T-cells it infects. In fact T-cells are compatible with HIv. Virologists know this for a fact. Abbot Labs used T-cells to grow HIv to make the protein strips for the Western Blot test.

3. HIv does not infect enough T-cells to cause AIDS. T-cells reproduce at the rate of 5% a day. HIv, after being destroyed mostly by antibodies produced, can only infect 1 in every 500 to one thousand T-cells. There is no virus in AIDS patients, only antibodies against virus. Gallo could never find any cytotoxic virus in T-cells.

4. HIv has no AIDS causing gene. HIv is no different in gene make up than other retrovirus. There are many retroviruses in the body all the time. If HIv can cause destruction of the immune system ( thus AIDS) then why don’t the other retrovirus? Or if the other retroviruses don’t cause AIDS, why does HIv? There is no genetic reason to explain why HIv causes AIDS.

5. There is no such thing as a slow virus. Gallo and Gajdusek gave HIv magical properties. Real virus cause specific disease and do so within days or a few weeks at most. (1) Herpes is not the exception as viremially it reproduces exponentially when active and passes Kochs Postulates. HIv does not. (Page 74 Duesbergs book IAV) And Herpes when first transmitted almost immediately shows its trademark sores. Gajdusek (NIH) had a history of claiming slow and dormant virus, but never in humans. Always in the lab. Also in his early work he gave retroviruses the ability to create more than one disease. All by correlation but never through proof. In fact he and Gallo and a few other retrovirologists seemed to always discover a retrovirus in the lab, then went looking for a disease.

6. HIv is not a new virus so HIv would not suddenly cause a new epidemic. New epidemics explode across populations. HIv has remained constant in populations and has been infecting every generation likely for centuries without causing AIDS. Farrs law is used for dating virus or microbe age and HIv models exactly to Farrs law. HIv then, is not sexually transmittable nor an epidemic. It is parinatally passed.

7. HIv fails all 4 Kochs postulates. A real disease causing virus or microbe must pass every one. The postulates are:1.) A virus or bacteria must be found in all cases of the disease, actively growing in large amounts call virus titer. HIv FAILS. 2.) Virus or germ must be isolated from the host and grown in pure culture. HIv FAILS HIv has only been grown substantially in the lab using a co-culture of leukemia cells and stimulated with chemicals, never directly from an HIv infected person in large quantities. 3.) The virus or bacteria must cause the same disease when injected into a new healthy host. HIv FAILS. 4.) The virus or bacteria must be isolated and found growing again in large amounts in the newly diseased host. HIv FAILS (failing 3 it cannot pass 4.)

8. AIDS has remained in its original risk groups for over 23 years. 97% AIDS patients made up of same risk groups. 3% risk group isn’t growing.

9. The CDC, WHO international profile of AIDS is inconsistent. U.S. and Europe = 90% male. Africa = 50/50 male female. U.S. and Europe fall 97% into risk groups. Africa = no risk groups.(the official UNAIDS line) The truth is the poor, malnourished living in crowded slums and shanty towns with no sanitation or clean water, or access to health care and continually fighting old parasitical diseases, are the most susceptible to immune deficiency disease, not HIv. They are the risk groups in poor overcrowded areas of developing countries. And CDC and UNAIDS have categorized all the old African diseases now as AIDS, whether HIv infection is present of not.

10. AIDS related disease occurs without HIv infection, and, most people with HIv antibodies, never develop AIDS related disease. What we see in this statement is evidence of no retrovirus in the first case or of a harmless retrovirus in the second case, that does nothing and has been cleared by immune response. Of course what is evident is that no one has HIv who has the antibodies present. If we can even verify that these antibodies are or have reacted to HIv proteins!!! And if it takes a polymerase chain reaction test to confirm that we can only find fragments of the DNA/RNA of HIv, not the HIv itself, then why is anyone worried about HIv??? Because we’ve been terribly misled by, as Duesberg calls them, the “virus hunters”.

Conclusion: HIv is not infectious nor sexually transmittable. With this information and finding of fact we should question any and all claims of disease that are supposedly caused by virus. Immediately what comes to mind are HPV, Hep B and HepC. These may be as harmless as HIv and treatment has been hyped to push people toward vaccinations that are untested and whose efficacy is not totally known.

Dubya’s Show Trials

The more elderly generation might well remember Stalin’s Show Trials, or the Moscow Show Trials of 1936-37. These show trials brought by the Soviet Communist Party leader of the time, Joseph Stalin, weakened the country right before Hitler’s onslaught. As a result, millions upon millions more of Soviet citizens died that didn’t have to. These show trials of Stalin destroyed patriotic unity when it was most needed.

The supposed reason Stalin gave for the trials was to protect Soviet communism and Soviet citizens, though, and today we have the preparation under way for Dubya’s Show Trials to supposedly protect Americans from ‘terrorism’. Unfortunately for us Americans, George W. Bush seems to be just as big a dunderhead as Stalin once was. Out of these show trials from Guantanamo will only come misery, so why doesn’t the US population begin to speak up?

Why didn’t the Soviet citizenry oppose the Moscow show trials? The answer is similar to why Americans have remained so quiet post 9/11. The Moscow show trials followed a huge national tragedy caused by Stalin’s attack on the peasantry, which became a 1932 famine that killed around 5,000,000+ people. The Moscow show trials then were actually Stalin’s attempt to deflect blame from himself for this previous catastrophe just a few years before.

Similarly, trying 6 men tortured illegally at Guantanamo to then put at least some of them to death, is Bush’s effort to deflect attention away from his foreign policies which are destroying the financial and social stability of the US Empire and the US population itself. And like the Moscow show trials before, these modern day show trials by the US government will lead to greater strife in the immediate years ahead. There will be new ‘terrorist’ attacks, precisely because the Bush Administration and their Democratic Party enablers have done so damn much, most if it idiotically not well thought out at all.

Dubya’s show trials might well be the preparatory event for a coming world holocaust that might well dwarf what the world went through in WW2. Time will tell. But certainly none of our nation feels any safer now than they did in the immediate days following 9/11/2001, and murdering POWs after torturing them at the Guantanamo Concentration Camp will change none of that.

D.C. Capitol police versus Colorado Springs police

Charges Dismissed Against African-American Minister Targeted and Tackled by Capitol Police

Meanwhile, here in Colorado Springs the city continues to go after a woman with multiple medical problems needing multiple hospitalizations since the day they roughed her up at the annual city’s Saint Patrick’s Day Parade, even though she was not found guilty of any wrong doing at her first trial! Why?

The amazing thing about this effort to get Elizabeth Fineron convicted of something (this will be the third set of different charges the city has accused her of) is that the Colorado Springs police didn’t want to arrest her in the first place, they just wanted to rough her up, which they did by hauling her fast across the pavement. When she finally managed to struggle back up she was outraged and wanted to know if she was under arrest? The answer from the police was NO.

However, Elizabeth had just been deliberately humiliated by this police brutality in front of a large public crowd, and like the Reverend Yearwood Jr. in Washington D.C. had gotten upset by his rough treatment, Ms. Fineron was also upset, as any normal person would have been at that point. She did not feel that the police should just be allowed to treat her as if she was nothing more than a big bundle of trash to haul around at their free will, and demanded ‘to have her day in court’.

Still, the police refused to arrest her, at that time perhaps feeling some shame at what they had done to her? Elizabeth though, went from policeman to policeman stating that they had manhandled her for no cause at all, and that she wanted to be arrested alongside the other people being roughed up. They kept saying that she was not under arrest at all.

At last, one cop reluctantly told Elizabeth that if she tapped them with a finger they would call it assault and arrest her, though they wished she would just go away. Elizabeth’s response was simply to say NO… You guys beat me up, an elderly lady in poor health for no real reason at all, and now you want to act as if that was all right????… and she touched a cop with her finger tip… softly. Some arrest, huh? A real dangerous lady that the cops are now wasting our city tax money on for the umpteenth time to get her in the press… It is all very sad.

The city has decided not to retry 5 of the others their police roughed up, but goes after Elizabeth still, and Eric Verlo? As amazing as that seems?! Who can begin to try to understand their reasoning there? And all this time the Colorado Springs head cop, Richard Myers, has been playing with the Justice and Peace people as if the police is out to protect everybody? It just is not convincing at all, Police Chief.

At this point, not even the pro-war, Far-Out Right Wing Gazette editorial staff wants this idiotic attempt at prosecution to go on. Today, they came out with an opinion piece asking that no retrial of either Verlo or Fineron be launched. It was couched in their usual vile rhetoric, but still they thought it insanity to go through a trail again. They had the courage to take a position.

But where is the city council and mayor on this one? They like to talk nice, but have refused to speak out against city prosecution of the folk that police under their managerial direction roughed up. They are mum.

Shortly after St. Pat’s Day, the police had a riot in Los Angeles and beat up on people there, and even that notorious city not known for having their police under control disciplined some police for their actions. And now, the Capitol police admitted that they had gone wild taking down the Reverend Lennox Yearwood, Jr. as they did. What’s wrong with the city government and its officials here in Colorado Springs? It’s certainly not for lack of other municipal areas’ more positive examples that they act as they do.

The sad thing about this, is that the city council and mayor have expressed a desire that the city not be put in a bad light but they are completely unwilling to do the things necessary so that the city does not stand out and be seen as being a more intolerant and disrespectful place nationally than is the norm. They want to have their cake and eat it, too. That’s certainly the message they are giving out by wasting tax monies on yet another trial. Or, actually it will be two trials this time, as both the prosecution of Eric Verlo and Elizabeth Fineron will have two separate trials. It’s all very crazy…

Stop wasting our city tax monies on this nonsense, and come up with some legislation that would demilitarize the annual city St Pat’s Day Parade. By continuing this prosecution with yet another trial, you are using tax money to promote the idea that marching soldiers, Hooter girls, and politicians downtown is A-OK And city monies are to be allowed to promote such, yet city monies will stamp down hard on any counter social message trying to come out alongside the business as usual stuff.

Not all this city is made up of intolerant people who want liberal ideas censored using city tax monies. Not all this city wants its police to be used to rough people up and then to harass them using the judicial system afterwards. Get with the times, for they have changed since you in the city council used our tax monies to pay John O’Donnell to organize your march of squads of soldiers in a supposed Iraqi War ‘victory’ parade through downtown from the same spot your police assaulted Elizabeth Fineron for expressing a counter social message.

‘Doctor’s Plot’ hysteria spreads to Australia

Three weeks after 9/11, I called back to make a follow-up appointment with my dermatologist, an Arab doctor working in a Border community in Texas. It turns out that the local hospital had fired him, though they said that a family emergency had been the reason he was no longer available.

Perhaps, that’s why these ‘doctor’s plots’ seem like such old hat from my own personal perspective. One minute my doctor was there, and the next minute he was just disappeared. Nobody asked any questions.

Cut to the recent hysteria whipped up in Britain, where the anti-immigrant/anti-terrorist witch hunt now centers around Muslim doctors, and their supposed underground network to kill people. At best, the attempted bombings of 2 airports seem to hinge only on the actions of 2 doctors, one from Iraq and the other from Lebanon. The rest that were arrested are not even closely involved with these 2 events, though they are being held never the less. But how much confidence can be placed that even the 2 doctors mentioned above did anything illegal? Do we trusty the Military/ Homeland Security apparatus that much to believe that they are incapable of fabricating the whole event? After all, these are the people that think it their right to hold people without lawyers and trials, and torture them in secret prisons around the globe.

Now, this ‘doctor’s plot’ hysteria has spread to Australia, and it is only a short matter of time ’till it comes our way here in the USA. How gullible will our population be? I’m afraid that it is not a very reassuring scenario.