United States District Court, D. Colorado
ERIC VERLO, JANET MATZEN, and FULLY INFORMED JURY ASSOCIATION, Plaintiffs,
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
Eric Verlo, Janet Matzen, Fully Informed Jury Association,
Plaintiffs: David Arthur Lane, Killmer, Lane & Newman, LLP,
City and County of Denver, Colorado, a municipality,
Defendant: Cristina Pena Helm, Evan P. Lee, Wendy J. Shea,
Denver City and County Attorney's Office, Denver, CO.
Robert C. White, in his official capacity as chief of police
for Denver, Defendant: Corelle M. Spettigue, Matthew David
Grove, Stephanie Lindquist Scoville, W. Eric Kuhn, Colorado
Attorney General's Office, Denver, CO; Cristina Pena
Helm, Evan P. Lee, Wendy J. Shea, Denver City and County
Attorney's Office, Denver, CO.
Michael A Martinez, Defendant: Corelle M. Spettigue, Matthew
David Grove, Stephanie Lindquist Scoville, W. Eric Kuhn,
Colorado Attorney General's Office, Denver, CO.
GRANTING MOTION FOR PRELIMINARY INJUNCTION
J. Martínez, United States District Judge.
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
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 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."
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
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.
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).
Facts Alleged in the Original Complaint
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
o " 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.)
o " 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
( Id. at 4.)
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.)
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.)
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.) Plaintiffs say that the arrests of
Brandt and Iannicelli have caused them to fear that they too
might be arrested and prosecuted. ( Id. ¶ 22.)
Facts Alleged in the Amended Complaint & Supplemental
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
( 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.)
" attached map" referenced in the Plaza Order is
reproduced on the following page: