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Verlo v. Martinez

United States District Court, D. Colorado

July 27, 2017

ERIC VERLO, JANET MATZEN, and FULLY INFORMED JURY ASSOCIATION, Plaintiffs,
v.
CHIEF JUDGE MICHAEL MARTINEZ, in his official capacity as chief judge of the Second Judicial District, Defendant.

          FINAL FINDINGS OF FACT & CONCLUSIONS OF LAW

          William 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 on the exterior grounds of Denver's Lindsey-Flanigan Courthouse (“Courthouse”). (ECF Nos. 1, 13-1.) The Courthouse is where most criminal proceedings take place for Colorado's Second Judicial District (which is coterminous with the City and County of Denver).

         The only remaining defendant in this case is 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, ” unless the context requires otherwise.

         This Court previously granted a preliminary injunction requiring the Second Judicial District to refrain from interfering with Plaintiffs' peaceful distribution of their jury nullification pamphlets, or with advocacy of the message contained in those pamphlets (“Preliminary Injunction”). (ECF No. 28.) This case then proceeded through discovery, and the Court held a Bench Trial on April 17 & 18, 2017, to determine whether to convert the Preliminary Injunction into a permanent injunction.

         Under Federal Rule of Civil Procedure 52(a)(1), this Court is required to announce the result of the bench trial through written findings of fact and conclusions of law. This order provides those findings and conclusions. For the reasons explained below, the Court finds that the Preliminary Injunction should be dissolved and that judgment should enter in favor of the Second Judicial District.

         I. PUBLIC FORUM ANALYSIS, GENERALLY

         Understanding everything below turns on understanding the Supreme Court's doctrine of First Amendment “forum analysis, ” which is a set of inquiries intended to resolve the extent to which the government can limit expressive activities on public property. Much more will be said below about forum analysis, but at the outset it is helpful to understand the basic questions. Those questions are as follows:

1. Is the expression at issue protected by the First Amendment? If so-
2. 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).

         II. STANDING

         The Court must first address Plaintiffs' standing to pursue this lawsuit, which goes to this Court's subject matter jurisdiction. See Strich v. United States, 793 F.Supp.2d 1238, 1246 n.1 (D. Colo. 2011) (“The Court has an independent and continuing duty to determine whether subject matter jurisdiction exists.”). Framing the standing question requires a relatively lengthy account of how this case began and how it has transformed since then.

         A. Early Proceedings & the Preliminary Injunction

         Plaintiffs' original complaint was filed against the City and County of Denver and its police chief in his official capacity (together, “Denver”). (ECF No. 1.) The complaint was motivated by the pending prosecution of two activists, Eric Brandt and Mark Iannicelli, whom the State of Colorado had accused of jury tampering by handing out jury nullification literature in front of the Courthouse. (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. (See ECF No. 25-1.) The same document was admitted as Defendant's Exhibit A in the April 2017 bench trial whose outcome is currently under consideration, and the Court will refer to it as the “Plaza Order.” As discussed in detail below, the Plaza Order prohibits most expressive activities in a specified geographic area leading up to the Courthouse's two public entrances (the “Restricted Area”). Plaintiffs, in their Amended Complaint, alleged their belief that the Plaza Order was entered in response to Brandt's and Iannicelli's actions. (ECF No. 13-1 ¶ 2.)

         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 “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 on this matter.

         Determined to make lemonade out of this lemon, the Second Judicial District then contended that Plaintiffs lacked Article III standing to sue because no threat of enforcement was imminent. (ECF No. 24 at 6-8.) See also 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”).

         In its order following the preliminary injunction hearing, this Court rejected the standing argument, finding that there still remained a possibility that the Second Judicial District itself could attempt to enforce the Plaza Order:

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 . . . .

Verlo v. City & Cnty. of Denver, 124 F.Supp.3d 1083, 1090 (D. Colo. 2015) (“Verlo I”).

         The Court then went on to the question of “whether Denver or the Second Judicial District speaks for the First Amendment status of the Courthouse Plaza.” Id. at 1093. This was important because, as noted above (Part I), the degree of scrutiny to which this Court must subject First Amendment restrictions turns on whether public property is, on the one hand, a traditional or designated public forum (requiring strict scrutiny), or, on the other hand, a nonpublic forum (requiring a less-strict reasonableness evaluation).

         The Court found that Plaintiffs were likely to succeed in proving that Denver controls the First Amendment status of the Courthouse Plaza; and in turn likely to succeed in proving, based on the Stipulation, that the Courthouse Plaza was “at least a designated public forum, ” making any First Amendment restrictions subject to strict scrutiny. Id. at 1092-93. Moreover, the Second Judicial District had not argued for application of the reasonableness test applicable to nonpublic fora, instead resting on the position that the Plaza Order could survive strict scrutiny regardless of the Courthouse Plaza's proper forum designation. See id. at 1093 (citing ECF No. 24 at 9). The Court therefore applied strict scrutiny and found that the portion of the Plaza Order limiting expressive activity failed that test, and therefore violated the First Amendment. Id. at 1094-95. The Court further found that the remaining preliminary injunction factors favored the Plaintiffs, and therefore enjoined the offending portion of the Plaza Order as it related specifically to Plaintiffs' intended jury nullification advocacy. Id. at 1095-96. The Court did not enjoin portions of the Plaza Order regarding obstructing entryways, erecting tents or other structures, or using sound amplification equipment. Id. at 1096.

         B. The Appeal

         The Second Judicial District appealed the Preliminary Injunction to the Tenth Circuit. In a published opinion, the Tenth Circuit affirmed, finding that the Second Judicial District had waived (for purposes of that appeal) any argument that the Restricted Area was a nonpublic forum, and that this Court had correctly found that Plaintiffs were likely to succeed in proving that the Plaza Order was unconstitutional. See Verlo v. Martinez, 820 F.3d 1113, 1130-38 (10th Cir. 2016) (“Verlo II”). Although the Tenth Circuit acknowledged in passing that Plaintiffs' Article III standing had been challenged below, see id. at 1130, the same standing argument apparently was never raised during the appeal. The Tenth Circuit concluded its opinion with some guidance regarding ways to handle, on remand, Denver's and the Second Judicial District's competing claims to the Courthouse Plaza, assuming the Plaza remained at least a designated public forum by virtue of Denver's Stipulation. Id. at 1138-47.

         C. Denver's Dismissal

         Shortly before the Tenth Circuit issued its Verlo II opinion, 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.)

         D. Denver's About-Face

         A couple of months before trial, Denver and the Second Judicial District mended fences-at least on paper. In a February 2017 status report, the Second Judicial District announced that “Denver and the Judicial Branch ha[d] negotiated and reached an agreement that they have collaborative authority under state law to regulate the courthouse grounds.” (ECF No. 134 at 4.) Attached to this status report was an unsigned “Memorandum of Understanding” (“MOU”) between Denver and the Second Judicial District, apparently intended to formalize the new collaborative security relationship. (ECF No. 134-1.)

         The Second Judicial District further announced that “the decision ha[d] been made”-apparently by itself and Denver-“to de-designate the Reserved Area of the plaza [as a public forum].” (ECF No. 134 at 5.) Cf. Summum v. Callaghan, 130 F.3d 906, 914 (10th Cir. 1997) (“Unlike a traditional public forum, the government is not required to indefinitely retain the open character of a designated public forum.” (internal quotation marks omitted)). But, said the Second Judicial District, “[t]he decision to de-designate is prospective only and is not intended to alter the Stipulation Denver entered into prior to the entry of the Preliminary Injunction in this case.” (ECF No. 134 at 5.) Rather, Denver and the Second Judicial District preferred to wait for this Court's eventual ruling on the forum status of the Courthouse Plaza:

Once that legal question is resolved, Denver and the Judicial Branch have agreed that they will collaborate to issue a new joint order [governing the Courthouse Plaza]. The new joint order will reflect the collaborative authority over the courthouse grounds, will supersede [the Plaza Order], and may alter the scope of some of the parameters of the [Plaza Order], although Denver and the Judicial Branch anticipate that the [restrictions on expressive activity] will remain substantially the same.

(Id.)

         Given this status report and Denver's apparent intention eventually to withdraw its Stipulation, the Court ordered Denver to show cause why the Court should not reinstate Denver as a party. (ECF No. 136.) Denver responded, somewhat surprisingly, by first denying any intent to withdraw from the Stipulation (ECF No. 137 at 3) but then affirming that it had de-designated the Courthouse Plaza as a public forum “going forward” (id. at 5) and agreeing with the Second Judicial District that the Plaza Order “will be superseded by a substantially similar joint order after this Court has determined the forum status of the [Courthouse Plaza]” (id. at 6-7). Denver additionally reasoned, in essence, that its own actions were currently immaterial because Plaintiffs were arguing that the Courthouse Plaza was a traditional public forum-an argument which, if accepted by this Court, would mean that neither Denver nor the Second Judicial District could change the Plaza's forum status. (Id. at 3-4.) Thus, Denver resisted reinstatement in the case.

         The Court gave both Plaintiffs and the Second Judicial District an opportunity to respond to Denver's position. (See ECF No. 136.) Plaintiffs filed nothing. The Second Judicial District, for its part, agreed with Denver that Denver's presence in this lawsuit was unnecessary: “However Plaintiffs choose to prove their case, neither the de-designation nor the Defendants' Memorandum of Understanding requires Denver's reinstatement as a party to resolve the continuing controversy between Plaintiffs and the Judicial Branch [over the Plaza Order].” (ECF No. 138 at 2.) The Court therefore discharged its order to show cause. (ECF No. 139.)

         E. Denver's Current Status

         Ever since Denver realigned itself with the Second Judicial District, the Court has been somewhat confused about Denver's actual position in this litigation. Denver denies any intent to withdraw from the Stipulation-yet, assuming this Court finds the Courthouse Plaza to be other than a traditional public forum, Denver states that it and the Second Judicial District will jointly issue a new order substantially similar to the Plaza Order. One might wonder if Denver has somehow failed to realize that this new joint order alone would likely place it in contempt of this Court, and any attempt to enforce the new order would certainly place it in contempt.

         The Court suspects, however, that Denver understands this and is currently attempting both to have and eat its cake. Denver managed to get itself dismissed from this lawsuit via the Stipulation and thereby avoid future liability for attorneys' fees, assuming Plaintiffs prevail. See 42 U.S.C. § 1988. Denver knows that if it withdraws the Stipulation before final judgment, it remains open to such liability. Denver therefore likely wants to stay on the sidelines looking in until this Court rules one way or the other.

         This order, of course, is that ruling, and the Court rules in favor of the Second Judicial District. The Court therefore looks forward to whatever verbal gymnastics Denver will present when it either attempts to withdraw from the Stipulation (having denied any intent to withdraw from it) or to justify its conduct in contempt proceedings. But that is a matter for the future. Right now, what is clear is that all of the parties remain in functionally the same position as they were during the preliminary injunction proceedings: Denver is on the sidelines, and the dispute remains solely between Plaintiffs and the Second Judicial District.

         F. “Separate Sovereigns”

         Thus the standing question returns, and the bench trial and subsequent research has re-confirmed this Court's prior conclusion that the Second Judicial District retains contempt authority to enforce the Plaza Order.

         As to subsequent research, the Court is satisfied that a Colorado chief judge's administrative order may be enforced through contempt. See, e.g., Bd. of Cnty. Comm'rs of Weld Cnty. v. Nineteenth Judicial Dist., 895 P.2d 545, 549 (Colo. 1995) (“The Chief Judge ordered security to maintain the court's existence. If the Sheriff failed to provide security, the Chief Judge had his contempt power, another facet of a court's inherent authority, to enforce his order . . . .”) (“Weld Cnty.”).

         As to evidence at the bench trial, there was some testimony from Chief Judge Martinez regarding why he has never taken any action to enforce the Plaza Order against non-enjoined behavior, such as use of sound amplification equipment. (See Trial Transcript (“Tr.”) (ECF Nos. 164, 172) at 550-51.) Although the possibility of contempt was never mentioned, Chief Judge Martinez at times seemed to deny that he had ability to take action. (See, e.g., Tr. at 551 (“I'm not a law enforcement officer. I don't have police power. I don't have a law enforcement or police force . . . .”); id. at 556 (“. . . I don't have a law enforcement body that operates under my direction and control. I don't have a police force.”).) Elsewhere, however, the Chief Judge made clear that his inaction was also motivated simply by a desire to avoid contempt proceedings in this Court. (See, e.g., Tr. at 539 (“Q. Have you considered whether you could issue an order that permits jury nullification activists to distribute their literature but prohibits other types of expressive activities? A. I can't do that and it's got to be [a] content neutral circumstance. I mean, if I did that, then the next thing I would get is a challenge saying, You know, well, I want to be able to put my notice out, you know. You know, you're choosing them because you like them more.”); id. at 575 (“. . . I have done my best over the-since the order was issued to comport with it, to follow it, and I respect this Court and the Court's authority and ability to issue the order.”); id. at 578- 79 (“I don't want to put our court in the position where we're disregarding this Court's order. I don't want to put my employees or my staff in that position.”); cf. id. at 399 (testimony of the Hon. Lee Sinclair (ret.), expert witness in courthouse security for the Second Judicial District: “And I am-and I am going to be very, very leery of doing anything to in any way side-step or walk around that [preliminary injunction] order. This is a federal judge telling me something, I'm going to be extremely careful. And I just don't want to maybe buy more litigation at this point in time until I could have my whole matter heard.”).) Thus, Chief Judge Martinez's testimony does not undermine this Court's conclusion that he possesses contempt authority, even if he has chosen not to use it.

         A closely related aspect of the standing inquiry also requires discussion. The Court's rulings up to this point, and particularly the Preliminary Injunction ruling (Verlo I), have assumed that if Denver designated the Courthouse Plaza as a public forum, then the Courthouse Plaza was a designated public forum for all purposes and from all perspectives. See 124 F.Supp.3d at 1093 (“The ultimate question, however, is whether Denver or the Second Judicial District speaks for the First Amendment status of the Courthouse Plaza.”). Upon reflection and review of the entire record, the Court concludes that this assumption is too narrow in the present circumstances.

         The Courthouse Plaza is actually governed by what may be deemed “separate sovereigns.”[1] Denver is the landowner, but the Second Judicial District is a tenant with inherent authority to issue orders for preservation of security and decorum:

The inherent powers which courts possess 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. These powers are inherent in the sense that they exist because the court exists; the court is, therefore it has the powers reasonably required to act as an efficient court.

Peña v. District Court, 681 P.2d 953, 956 (Colo. 1984) (internal quotation marks omitted; alterations incorporated; emphasis in original); see also Weld Cnty., 895 P.2d at 548-49 (“. . . the Chief Judge properly ordered security to ensure the continuing viability of the courts. Without security the public's confidence in the integrity of the judicial system is threatened. The proper administration of justice requires that courts operate in a safe and secure environment. When society views the security of the court system with skepticism, the authority of the judicial branch is diminished. A weak judicial branch prevents a proper functioning of the tripartite scheme of government. The Chief Judge properly ordered security so the courts may continue to fulfill their constitutional mandate and administer justice in an orderly and dignified atmosphere.”).

         Thus, Denver's choice not to withdraw from the Stipulation means that the Courthouse Plaza remains a designated public forum as it relates to Denver's ability to impose restrictions on the property. But it is manifest that Denver's Stipulation does not bind the Second Judicial District. And if the preliminary injunction hearing had been framed in these terms, the result might have been different-for, as the Court noted then, courthouse grounds are routinely deemed to be nonpublic fora. See Verlo I, 124 F.Supp.3d at 1093 n.5. However, no party (nor the Court) raised the question of whether “separate sovereigns” could each designate the forum status of the same piece of property for their own purposes, likely because it is a truly novel circumstance that none of us had considered possible.[2] Moreover, the Second Judicial District argued solely under the strict scrutiny test. Thus, the Court had no occasion to consider seriously the possibility that the Courthouse Plaza was a nonpublic forum as it relates to the Second Judicial District's separate enforcement authority.

         After further consideration, this Court concludes that it may appropriately determine the forum status of the Courthouse Plaza as it relates to the Second Judicial District's ability to impose restrictions on the property. That is the framework and purpose of the following Findings and Conclusions.

         III. FINDINGS OF FACT

         Having listened attentively to each witness; having carefully judged each witness's credibility; and having reviewed the trial transcript, the exhibits admitted into evidence, and the parties' proposed findings and conclusions (ECF Nos. 170 & 171), the Court finds as follows:

         A. The Courthouse Grounds Generally

         1. The Courthouse opened for operations in 2010. (Plaintiffs' Trial Exhibit (“PX”) 4 at 58.)[3]

         2. From above, the Courthouse and its grounds appear as follows, save for yellow highlighting which was added to this aerial photograph by the Second Judicial District and which will be discussed further below:

         (Image Omitted)

         (Defendant's Trial Exhibit (“DX”) A at 3.) The Court has annotated this photograph with borders and labels, for ease of reference:

         (Image Omitted)

         3. It is generally known within this Court's territorial jurisdiction that: the top of the photograph is north; the Courthouse itself is the irregularly shaped, white-roofed building occupying the left half of the photograph; immediately to the left (west) of the Courthouse is Fox Street; immediately to the north is Colfax Avenue; and immediately to the south (not depicted) is Fourteenth Avenue. See Fed. R. Evid. 201(b)(1), (c)(1).

         B. The West Side of the Courthouse Grounds

         4. The west (Fox Street) side of the Courthouse features the West Sidewalk (a public sidewalk), which is crossed by driveways leading to two sally ports for entry of official vehicles into the Courthouse. (Tr. at 561, 563, 580-81.)

         5. The west side also features the West Entrance, which is a public entrance but is very lightly used, and usually only by employees. (Tr. at 340-41, 419, 561, 565.)

         C. The East Side of the Courthouse Grounds

         6. On the opposite (east) side of the Courthouse grounds is Elati Street, which is closed to traffic other than official vehicles as it runs past the Courthouse. (Tr. at 52-53.)

         7. Another helpful photograph of the east side of the Courthouse grounds, this one from the north looking generally south, is reproduced below (again, with labels and arrows inserted by the Court for ease of reference):

         (Image Omitted)

         (Excerpt from DX H.)

         8. Elati Street bisects the Circular Plaza, an area paved in a salmon color. (Id.)

         9. The west half of the Circular Plaza is mostly framed by two areas of Landscaping, one larger and one smaller. (DX A.)

         10. Running along the west side of the larger Landscaping area is the Arced Walkway, which comprises a series of shallow steps leading from the Colfax Avenue side of the Courthouse grounds up to the Patio. (PX 2; DX A, E, H.)

         11. The Arced Walkway is often closed during the colder months of the year due to slip-and-fall concerns. When closed, it is sometimes used for snow storage. (Tr. at 54, 212-13, 465.)

         12. Even when the Arced Walkway is open, few passersby notice its existence, and so it is rarely used. (Tr. at 82, 166-67, 337.)

         13. Running west from the Arced Walkway to the outer wall of the Courthouse itself is the Gravel Area, which is a passive security feature. (Tr. at 361; PX 4 at 48- 49.)

         D. The Patio

         14. The southern end of the Arced Walkway and Gravel Area forms the northern end of the Patio, which is also framed by the two Landscaping areas, the Main Entrance, the Glass Wall (the outer wall of the Jury Assembly Room), the Lunch Area (a gravel area with picnic tables), and the East Sidewalk. (Tr. at 162-63; DX A, G, H.)

         15. The Patio is separated from the East Sidewalk by a line of low metal bollards, followed by three steps down to the East Sidewalk itself. (Tr. at 164-65; DX H.)

         16. The Patio is separated from the Circular Plaza by the Landscaping and by what the parties have described as “concrete bollards.” (Tr. at 431.) These are not traditional bollards, but are instead long rectangular blocks through which a pedestrian must navigate, like “staggered walls.” (Tr. at 447, 449-50.) These blocks are about 40 feet from the Main Entrance. (Tr. at 359.)

         17. The Patio is at a slightly higher elevation than the neighborhood's surrounding sidewalks; hence the steps up from the East Sidewalk and the shallow steps that form the Arced Walkway. The Circular Plaza also gradually slopes upward from Elati Street to the Patio. (Tr. at 426-27, 451.)

         18. The Patio contains the Area of Repose, a set of three circular planters surrounded by curved benches, which David Tryba (the master urban design architect for the Courthouse) intended to be an area “to accommodate private conversations between family members who need to be consoled or who are getting prepared to go into a process that most people are unfamiliar with.” (Tr. at 427.)

         19. Pedestrians intending to walk from Fourteenth Street to Colfax Avenue, or vice versa, almost never do so by crossing through the Patio and Arced Walkway. Rather, they walk along Elati Street and through the Circular Plaza. Nearly every person who enters the Patio or Arced Walkway, by contrast, does so to reach the Courthouse's Main Entrance. (Tr. at 342-43, 467.)

         E. Architectural Intent

         20. Tryba designed the Patio to be architecturally integrated with the Courthouse itself, and to function as an extension of the Courthouse's lobby. (Tr. at 432, 433.)

         21. Tryba's further intent for the Patio was to create “a key transitional and arrival space . . . so that people can get prepared, as they enter a building with such consequences, ” thus “maintaining the dignity of the process.” (Tr. at 426, 427.)

         22. The architectural elements signaling the intended sense of transition include the raised grade of the Patio and the shallow upward motion needed to reach it (a substitute for a monumental staircase that was not feasible on the particular plot of land); the bollards; the increased quality of the building materials and landscaping; and the difference in the color and texture of the Patio's concrete as compared the surrounding walkways. (Tr. at 426-27, 432-33, 444, 445, 446-47, 449-50, 451-52.)

         F. The ...


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