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Verlo v. Martinez

United States District Court, D. Colorado

July 27, 2017

CHIEF JUDGE MICHAEL MARTINEZ, in his official capacity as chief judge of the Second Judicial District, Defendant.


          William J. Martinez, United States District Judge

         Plaintiffs Eric Verlo, Janet Matzen, and the Fully Informed Jury Association (“FIJA”) (collectively, “Plaintiffs”) ask this Court to hold former Defendants City and County of Denver and Denver Police Chief Robert C. White in his official capacity (together, “Denver”) in contempt for certain actions taken by Denver law enforcement officers on March 16, 2016, allegedly in violation of the Preliminary Injunction (ECF No. 28) that was then in place.[1] The Court held an evidentiary hearing on April 19, 2017. (See ECF No. 162.) For the reasons explained below, the Court finds that the individual law enforcement officers involved in the March 16, 2016 incident did not behave contemptuously. Denver itself, however, failed to educate its police force regarding the Preliminary Injunction and, as a result, caused its police officers to unknowingly violate the Injunction. Denver will therefore be held in contempt and will be required to pay Plaintiffs' attorneys' fees. In the present circumstances, the Court may not award any greater sanction than that.


         Plaintiffs' original complaint was filed against Denver alone. (ECF No. 1.) The complaint was motivated by the pending prosecution of two activists, Eric Brandt (“Brandt”) and Mark Iannicelli (“Iannicelli”), whom the State of Colorado had accused of jury tampering by handing out jury nullification literature in front of Denver's Lindsey-Flanigan Courthouse (“Courthouse”), where Colorado's Second Judicial District holds most of its criminal proceedings. (Id. ¶¶ 14-19.) Plaintiffs wished to engage in similar jury nullification advocacy in front of the Courthouse, but feared prosecution, given Brandt's and Iannicelli's experience. (Id. ¶¶ 20-22.) On the same day they filed their complaint, Plaintiffs also moved for a preliminary injunction. (ECF No. 2.)

         Two days later, Plaintiffs amended their complaint (“Amended Complaint”) to add the Second Judicial District as a defendant and to set forth allegations regarding a Second Judicial District administrative order recently posted on the Courthouse doors. (ECF No. 13-1 ¶ 2.) The order, designated “CJO 15-01” 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 amended on August 21, 2015, hours before the preliminary injunction hearing in this Court, and was admitted as an exhibit in the preliminary injunction hearing (“Plaza Order”). (See ECF No. 25-1.) The Plaza Order prohibits most expressive activities in a specified geographic area leading up to the Courthouse's two public entrances (“Restricted Area”).

         One day before the preliminary injunction hearing, Plaintiffs and Denver submitted a joint stipulation (“Stipulation”) that the Courthouse Plaza (comprising the Restricted Area and certain additional surroundings) “is 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.” (ECF No. 23 ¶ 1.) Plaintiffs and Denver further stipulated “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.” (Id. ¶ 2.) And finally, as relevant here, Denver stipulated that “it does not intend to enforce the [Second Judicial District's 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.” (Id. ¶ 4.) In other words, Denver had essentially taken sides with Plaintiffs against the Second Judicial District.

         Following a preliminary injunction hearing between Plaintiffs and the Second Judicial District, the Court entered the Preliminary Injunction against the Second Judicial District and against Denver, enjoining any efforts to enforce the portion of the Plaza Order against Plaintiffs' intended jury nullification advocacy:

. . . Defendants shall not enforce [the speech restrictions contained in] 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?”

(ECF No. 28 at 25.) The Court did not enjoin portions of the Plaza Order regarding, e.g., obstructing entryways, erecting tents, or using sound amplification equipment. The Second Judicial District subsequently re-posted the Plaza Order at the Courthouse's main entrance, but with the enjoined portions redacted. (See Defendant's Exhibit (“DX”) F.)

         Several months later, this Court granted Denver's motion to dismiss for lack of jurisdiction. (ECF No. 97.) The Court reasoned that the Stipulation rendered Plaintiffs' claims against Denver moot, and that any possibility that Denver might still somehow enforce the Plaza Order was too speculative to sustain standing. (Id. at 4-10.) The Court also adopted the Stipulation as an order. (ECF No. 98.)


         Having listened attentively to each witness; having carefully judged each witness's credibility; and having reviewed the hearing transcript and the exhibits admitted into evidence, the Court finds as follows:

         The incident that precipitated this contempt proceeding took place on March 16, 2016, at 8:28 a.m., according to the timestamp on the audio-less security video that captured the incident. (See Plaintiffs' Exhibit (“PX”) 4.) At that moment, Iannicelli and an unidentified man were standing outside the Courthouse's main entrance (roughly 10 feet from the door itself), and Iannicelli was offering pamphlets to a succession of three individuals entering the Courthouse, each about three or four seconds apart.

         The last of these three individuals turned out to be Madison Wilkins (“Wilkins”), a 73-year-old African-American woman. As with the previous two individuals, Iannicelli casually held out a jury nullification pamphlet. Her attention grabbed, Wilkins slowed down for perhaps half-a-second and turned slightly toward Iannicelli, but she then turned toward the Courthouse door and entered. Iannicelli's pamphlet may have brushed Wilkins's sleeve as she turned toward the door, although nothing in the video shows this clearly, nor does the video show that Iannicelli made any intentional motion in this regard. The entire interaction between Iannicelli and Wilkins, from the time that Iannicelli noticed Wilkins to the time she turned and headed for the door, lasted about five seconds.

         Roughly an hour later, Brandt joined Iannicelli on the Courthouse Plaza. Brandt was there to gather signatures for a petition.

         At 9:50 a.m., a succession of three women (but not Wilkins) approached Sheriff's Deputy Jason Foos (“Foos”), who works at the Courthouse and was at that time assigned to “hall patrol” inside the building. These women reported that a man outside the Courthouse was directing vulgarities at passersby and otherwise harassing them. Apparently Foos was located in a place where he could see out onto the Courthouse Plaza. As he scanned the Courthouse Plaza, he noticed Brandt and Iannicelli, whom he knew from previous interactions. Foos also knew that Brandt had previously been accused of the sort of harassment the women were reporting that day, so Foos and a few other deputies went outside to investigate.

         Brandt and Foos have interacted many times previously, and do not have a friendly relationship. As Foos approached and announced his purpose, Brandt immediately began shouting and cursing at him. Apparently by coincidence, Wilkins was exiting the Courthouse at about the same time and approached Foos of her own accord. Wilkins reported that she too had been harassed earlier that day. Wilkins did not specifically say that Brandt had harassed her, but Foos inferred from Brandt's immediate and vocal defensiveness that he had been Wilkins's harasser.

         Foos directed another Sheriff's Deputy, whom the parties have never named, to escort Wilkins inside the Courthouse and to confirm whether she wanted to press charges. The other Deputy did so, and radioed Foos a few minutes later to report that Wilkins indeed wanted to press charges. Foos then handcuffed Brandt and brought him to a holding cell in the Courthouse basement.

         About this time, another Sheriff's Department employee stationed at the Courthouse, Captain Derek Wynn (“Wynn”), was informed by radio that someone was pressing charges against Brandt. Wynn was asked to come to the “security room” of the Courthouse. When he arrived at the security room, Wynn encountered Wilkins and learned that she was the complainant. Wynn asked Wilkins to describe what happened. Wilkins reported that someone had three times tried to force her to take literature, and had actually “somehow struck [her] in the stomach area” on the third occasion. Wynn then asked a nearby security guard to pull up the video of the event (the same video later introduced at the contempt hearing as PX 4). Wynn, who had seen Brandt several times before, and had also seen Iannicelli on a few occasions, immediately recognized that the person in the video offering literature to Wilkins was not Brandt. Wynn claims that he only watched the video long enough to recognize the potential mistaken identity, and that he did not watch the entire five-second interaction between Wilkins and her alleged assailant.

         Apparently Wilkins had not been watching the video along with Wynn. Wynn therefore returned to Wilkins and asked her to describe the clothing worn by the man who had been allegedly forcing literature at her. Her answers confirmed to Wynn that the relevant suspect was Iannicelli, not Brandt. Wynn went to the Courthouse basement, explained the mistake to Brandt, and released him. Wynn also went out onto the Courthouse Plaza, found Iannicelli, handcuffed him, and brought him to the Courthouse basement.[2]

         Soon after, Corporal Paul Waldock (“Waldock”) of the Denver Police Department, along with his trainee, Officer Chase Magalis (“Magalis”), arrived at the Courthouse's security room. The Sheriff's Department had summoned the police to the Courthouse because it is the Police Department's responsibility to decide whether to institute formal criminal proceedings.

         Waldock and Magalis obtained a written statement from Wilkins that Iannicelli had offered her a pamphlet and Wilkins had responded, I don't want it. This ...

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