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Verlo v. City and County of Denver

United States District Court, D. Colorado

August 25, 2015

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

          For Eric Verlo, Janet Matzen, Fully Informed Jury Association, Plaintiffs: David Arthur Lane, Killmer, Lane & Newman, LLP, Denver, CO.

         For The 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.

         For 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.

         For Michael A Martinez, Defendant: Corelle M. Spettigue, Matthew David Grove, Stephanie Lindquist Scoville, W. Eric Kuhn, Colorado Attorney General's Office, Denver, CO.

Page 1084

         ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION

         William J. Martínez, United States District Judge.

         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

Page 1085

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.

         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:

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.

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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 fear that they too might be arrested and prosecuted. ( Id. ¶ 22.)

         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:

Page 1087

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:

(Image Omitted)


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