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Verlo v. City & County of Denver

United States District Court, D. Colorado

April 6, 2016

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.


William J. Martinez 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.) Plaintiffs have sued the City and County of Denver and its police chief, Robert White, in his official capacity (collectively, “Denver”), as well as Second Judicial District Chief Judge Michael Martinez.

Currently before the Court is Denver’s Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1) and Fed.R.Civ.P. 12(b)(6). (ECF No. 64.) For the reasons explained below, the Court grants Denver’s Motion under Rule 12(b)(1), and therefore does not reach Denver’s arguments under Rule 12(b)(6).


A motion under Rule 12(b)(1) is a request upon the court to dismiss a claim for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). A plaintiff bears the burden of establishing that the court has jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). Dismissal of a complaint under Rule 12(b)(1) is proper when the Court lacks subject matter jurisdiction over a claim for relief. See SBM Site Servs., LLC v. Garrett, 2012 WL 628619, at *1 (D. Colo. Feb. 27, 2012).

When a court’s subject matter jurisdiction is challenged, the court may review materials outside the pleadings without converting the Rule 12(b)(1) motion to dismiss into a motion for summary judgment. Davis ex rel. Davis v. United States, 342 F.3d 1282, 1296 (10th Cir. 2003) (stating that “when a party challenges the allegations supporting subject-matter jurisdiction, the ‘court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts’” (quoting Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995)); Pringle v. United States, 208 F.3d 1220, 1222 (10th Cir. 2000); see also Holt, 46 F.3d at 1003.

Only where the jurisdictional question is intertwined with the merits (not present here) is conversion of a Rule 12(b)(1) motion into a motion for summary judgment under Rule 56 appropriate. Id.; WJM Revised Practice Standards III.D.3.


The Court has already recounted in detail the events leading up to this case in its previous order granting Plaintiffs’ request for a preliminary injunction. (See ECF No. 28.) The following summary is adequate for present purposes.

On July 27, 2015, two non-parties, Mark Iannicelli and Eric Brandt, were peacefully distributing literature regarding jury nullification to passersby on the Courthouse Plaza. (Id. ¶¶ 15-17.) Iannicelli was arrested that day, and Brandt was arrested a week later, for alleged violation of Colorado’s jury-tampering statute, Colo. Rev. Stat. § 18-8-609. (Id. ¶ 19.)

Plaintiffs wish to distribute jury nullification literature, and discuss the subject of jury nullification, on the Courthouse Plaza. (Id. ¶¶ 21-22.) Fearing that they would likewise be prosecuted, Plaintiffs filed this lawsuit on Monday, August 17, 2015, naming Denver and Chief White as defendants (“Original Complaint”). (ECF No. 1.) Plaintiffs requested, among other things, “a[] [permanent] injunction against Defendants barring them from in any way applying the jury tampering statute in an unconstitutional attempt to silence free speech.” (Id. at 8.)

Simultaneous with their Original Complaint, Plaintiffs filed a Motion for Preliminary Injunction. (ECF No. 2.) This Court promptly set a hearing on that motion for Friday, August 21, 2015. (ECF No. 8.)

On Wednesday, August 19, 2015, Plaintiffs filed their Amended Complaint.[1] The Amended Complaint states that on August 14, 2015 (the Friday before Plaintiffs filed their Original Complaint), Chief Judge Michael Martinez of Colorado’s Second Judicial District (which is coterminous with the City and County of Denver) had issued an order (“Plaza Order”) essentially prohibiting all expressive activities on the Courthouse Plaza. (ECF No. 57 ¶ 2.) Plaintiffs accordingly added Chief Judge Martinez as a defendant in his official capacity, and attacked the Plaza Order as unconstitutional. (Id. ¶¶ 14, 24-25.) Plaintiffs also supplemented their Motion for Preliminary Injunction to encompass the Plaza Order. (ECF No. 14.)

On Thursday, August 20, 2015, Denver filed, on behalf of itself and Plaintiffs, a stipulation (“Stipulation”) that Denver would not interfere with Plaintiffs’ intention to peacefully pass out jury nullification literature on the Courthouse Plaza, regardless of ...

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