Whose racism are you protesting exactly?

Posted on June 3, 2020 by Eric Verlo

SO “WOKE” America is protesting the racist brutality of capitalism’s hired thugs. What are the cops supposed to stop doing exactly? Are they supposed to let poor blacks breathe? Or stop killing poor blacks in such vivid disproportion? What an aimless message these riots bring! Of course the mainstream media is on board. Their theme is domestic unrest with an eye on regime change. It’s what they incite everywhere else. I’m surprised they haven’t labeled this a “color” revolution –except the color is already chosen and it’s their least favorite.

The only result of the visibility which the Black Lives Matter movement has brought to police lynchings is that now you hear regret that poor white criminals aren’t dished out the beatings reserved for blacks. Do we want more police brutality so long as it is equally distributed? Cops aren’t going to stop beating people. It’s their job. In an unequal, predatory economic system, cruelty is a cop’s function.

I also laugh at the celebrity blow-back at unfortunate white protesters who take up the chant “All Lives Matter” usually in earnest because their marches, reflecting their local populations, are mainly white. Their chants don’t negate “Black Lives Matter,” they broaden it. Face it, the BLM slogan is pedantic. Of course Black Lives Matter. The protesters are not illiterate and neither are the police, the supposed audience.

And BLM is such an inarticulate ask. Try “Drone Victims Matter!” Uh, agreed, but the US drone terror program is not going to stand down.

And “hands up” and “taking a knee” are demonstrations of submission. Ugh.

If the issue is in-the-line-of-duty lynchings, I’m sorry but there are unfortunates a rung below African Americans. Per capita, Native Americans die more often at the hand of law enforcement, and below them, the homeless. Constables have been “rolling” poor bums since antiquity. Vulnerable homeless are killed, white and black, in dark alleys, without witnesses sober enough to record it with charged cell phones and Youtube accounts at home. And without faith leaders to rouse their congregations, or order churchgoers to heel once the fundraising was done.

If the George Floyd protests are made to be about discrimination against African Americans in general, and not Floyd’s tragic death-by-cop, then who is co-opting the message really?

Fortunately these riots will prove a difficult genie to ride. Images of civil discord make Trump look bad, but the more violent they become, the more activated will be the middle Americans who cheer for order to be restored.

That same white middle class wants their landscapers and household help to be hispanic who won’t expect to be treated as equals. Immigrant labor is preferred for the same reason. The upper class don’t have to discriminate by skin color. If you are underclass, YOU Do Not Matter.

Supposedly all of America is expected to suppress its racism. That’ll happen when you cease showing deference to family members over strangers, or when you quit disabusing sports fans for rooting against your home team. Clans, schools, ethnicity, and nationality are natural constructs where people feel communal bonds. They are also the only instinctive means by which people find their strength in numbers. Strange we’re all being told to disavow those instincts.

Meanwhile ethnocentrism relating to religious affiliation, if you’ve got one, is still encouraged. Nationalism, when it comes to kicking other religious ass overseas is still applauded. What of that racism?

When cops start beating bank chairmen, when the international brotherhood of man includes the bosses who deploy the cops and not simply the dupes more easily oppressed with racist state terrorism, then we can consider integrating the role of police into our vision of a desirable community. In other words, it ain’t going to happen. Calls to disband or defund the police are great, but until people wield the political power to do it, the calls will be easily refused.

Focusing on race doesn’t unite people, and it doesn’t only divide black and white, it attempts to efface everyone’s chief means to draw individuals together in united fronts against their common foe. Once we’re all free we can talk about equality.

Now addressing the systemic repression of blacks is another matter. African Americans were not immigrants. They alone came to these shores without the promise of the American dream of making a better life for themselves. REPARATIONS and affirmative action, that’s the only recourse to attempt to redress such inequality of footing.

Join the protests if you want, but know they’re serving only the corporate agenda of international liberalism. If you’re all about that, do your best to pull the demonstrations toward the peaceful, lest our president benefit from the gesture of saving middle America from anarchy. But know that team .gov holds all the cards when it comes to inciting and even instigating the violence. They are both ANTI and FA.

Denver used protection orders to curb mobility of Occupy protesters in 2011

Posted on November 13, 2017 by Eric Verlo

DENVER, COLORADO- Activist Corey Donahue’s 11-11-2011 protest case is still outstanding. The recently surrendered fugitive is charged with inciting a riot in the first months of the Occupy Denver encampment, when supporters crowded a police cruiser and began to rock it in protest of Corey’s third arrest. Clouding this nostalgic look back at DPD’s mishandling of mass demonstrations are the quasi-legal steps the city took to constrain the protest.

It turns out Corey’s felony riot charges were used to convince a Denver court to grant protection orders to two state troopers who considered themselves personal victims of Occupy Denver’s assertive tactics. As a resut, Corey was prevented from leading demonstrations into areas when those officers were deployed, and he didn’t know which those officers were.

The measure was of dubious legality and so far remains shrouded in disinformation. Were two officers “seriously injured”, as news outlets reported, in the so-called riot of Nov 11? Except for their official statement, no evidence was ever provided by DPD. What were the injuries and who were the officers?

Can police invoke the protection of a blanket injunction to stop public demonstrations whenever they want? Can a police department enforce protection orders and pretend its subjects can remain anonymous? These are the questions which Denver police face as they push charges against one of their most outspoken antagonists.

Can law enforcement officers unknown to a defendant file for restraining orders against the public they serve and protect? Can police require that ordinary citizens maintain a prescribed distance from them in a public space?

Encamped on the grounds of the capitol, at the peak of an ongoing protest movement, Corey Donahue was in no position to push back with a legal challenge.

Denver has since used an even more abusive method, designating “area restrictions” to keep active protest leaders out of places like the state capitol, Civic Center Park, and 16th Street Mall. DPD cite the arrestees’ repeated arrests as justification. This probation stipulation may be applicable for criminal recidivists, in particular domestic violence abusers, but it is hardly constitutional when applied to free speech. Denver’s practice hasn’t been challenged yet, for want of sympathetic plaintiffs.

Giving police protection orders, to prevent specific demonstrators from assembling near police lines, would seem to fall in a similar category of judicial misconduct.

Not The People v. Stephen Nalty and Steven Byfield. Right to an Unfair Trial.

Posted on September 21, 2017 by Eric Verlo

DENVER, COLORADO– The trial of accused “Paper Terrorists” Stephen Nalty and Steve Byfield began Monday in courtroom 2H of Denver district court. The two face 28 odd charges, from conspiracy, criminal enterprise, to racketeering, brought by the Colorado Attorney General and the FBI.

And they’re defending themselves. In handcuffs.

Don’t worry, they’re holding their own. But already it’s day one and authorities are piling on every disadvantage. On Monday the defendants were cheated of being able to prevent the state from stacking the jury (and the defendants don’t even know it because they weren’t in the courtroom to see it done).

Watching the court clerks and lawyers prepare for the trial, you cannot but admire their civil spirit. In every hearing Nalty and Byfield have declined advisements and refused to recognize the authority of their adjudicators. The two sound like broken records about “oaths” and sovereign stuff, yet the judicial mechanism inches forward. It should of course, because the defendants have been jailed since MARCH.

For six months Nalty and Byfield have been held on $350,000 bonds. Neither of them can afford even the interest on those sums. Of course their indictment and prosecution is a travesty and a misappropriation of public resources, but how else could the state stop their criminal enterprise except to admit wrongdoing itself?

Nalty and Byfield are being railroaded and they’re sure a jury will conclude the same.

The People’s Grand Jury
For the last few years, among a team of eight “sovereign citizen” types, Nalty and Byfield have been serving judges and other public officials with legal papers and liens which achieved no response. Until Colorado’s attorney general enlisted the FBI to squash the “criminal enterprise.” The sovereigns face 28 charges of all the racketeering and conspiracy lingo, essentially for questioning why their local magistrates and officials had no oaths or bonds on file. When the sovereigns got no response, they formed a “People’s Grand Jury” to indict the violators with their ad hoc public courts. Then they’d file commercial liens against those accused for defrauding the public in violation of Article 6 of the US constitution.

When confronted from podiums, judges and lawmen dismiss the oath requirement out of hand, but it’s interesting that none spell out exactly what law supersedes the US Constitution. News articles about the Paper Terrorists list the litany of criminal charges the defendants face, but have yet to mention the asserted law-breaking which is the Paper Terrorists’ only complaint.

It is hard to get a handle on what the “People’s Grand Jury” really wants. In their dreams, they assert that the lack of filing of oaths should mean that all affected legal judgements should be overturned, and that all salaries drawn by government employees who did not file oaths or bonds should be returned to taxpayers, with interest. They calculate the total sum owed to the American people is in the multi trillions. So there’s that.

Some of the public officials targeted by the People’s Grand Jury began to suffer strikes against their credit records when they didn’t contest liens filed against them. You’d think the credit monitoring algorythms would flag multi billion dollar liens. You’d think someone could suggest a method to filter such paralegal filings.

Instead the state chose to hit back hard. Last March, the eight troublemakers were indicted for two dozen paper crimes. The state imposed bonds averaging a quarter million each. It hasn’t stopped the crew, as their wives and friends keep serving more notices and liens. So now the state intends to make them examples and imprison them for life.

Jury Selection, Only For the Prosecution
Here’s what happened Monday during jury selection, when both sides are meant to parse a jury pool to pick an impartial jury. You know, a defendant’s right to a jury of their peers?

Nalty and Byfield still don’t know what hit them. The prosecution was given the jurors’ details, the defendants learned none. They blindly accepted jurors whom the prosecutors had already carefully weeded. The defendants never knew it and the court was not “on the record” when this happened because it was before the judge entered the courtroom. But audience members saw the whole thing.

Actually, once he was presiding over the entrance of the jury pool, the judge was in a position to observe the prosecution desk already progressing well through the jury questionnaires while the defendants sat idle. Perhaps the judge didn’t know his court clerk had provided no instruction to the defendants. Ultimately whose responsibility would that be?

Monday for jury selection, the court decided it needed a jury pool of SIXTY from which to choose twelve jurors plus two alternates. To save time, the court had prospective jurors fill out 4-page questionnaires instead of having them deliver the customary recitation of their biographical details. The court assigned four digit non-sequential numbers to each candidate. Copies of these forms were made for all parties, stacked according to the seating order of the jury pool. They were put on the desks before sheriffs had brought in the defendants. The team of four prosecutors began pouring over the questionnaires and were warned by the court clerk not to get them out of order as it corresponded to how the jury pool would be admitted.

Team leader, Assistant AG Shapiro noticed that the forms bore the jurors’ signatures, which he instructed should be blacked out from the copies provided to the defendants. Two clerks set themselves to redacting the stacks for defendants Nalty and Byfield. Meanwhile the prosecution studied the forms, made their notes, and drew each other’s attention to details. This information included the applicants’ names and signatures. Trial lawyers do not discount surnames and autographs as irrelevant to evaluating a juror.

When the clerks finished their redactions there were still other courtroom delays and by the time the defendants were finally brought back from their holding cell, the prosecution had a full half hour head start studying the questionnaires, and of course twice the pairs of eyes.

The defendants were not told what the stacks were, nor that they were in any order. The defendants had barely been seated before the judge made his entrance and the jury pool was paraded into the courtroom. The defendants thus got no time to examine the questionnaires. They looked at the stacks dumbly, not knowing what they were supposed to do with them, or how, with their wrists in handcuffs. Defendant Byfield tried to shuffle through some of forms while the judge advised the jury pool. With shackles on he couldn’t manage the stack, much less keep it in order, even if he knew that would matter. Forget managing pen and paper, in addition to taking notes.

You’d hope that jurors will wonder why these “paper terrorists” are kept shackled. Who has ever asserted they pose a threat of violence to anyone?

On the other hand, if you doubt that the failure to file a public oath should earn a prosecutor the accusation of fraud, if you doubt it means they’re untrustworthy, the unfairness they eagerly exploited on the first day of trial would give you pause. They behaved every bit as corrupt and mendatious as Nalty and Byfield have been saying. How unfortunate the jury didn’t see it.

Denver magistrate separates mother from breastfeeding infant. Jail refuses pump, as they do common decency.

Posted on September 20, 2017 by Eric Verlo

DENVER, COLORADO- A heartbreaking scene unfolded yesterday when Denver Magistrate Kate Boland decided to impose a $10,000 bond on a domestic violence detainee, against the recommendations of the husband (victim), the public defender, and even the city prosecutor, who all wanted the 35-yr-old mother of five released on personal recognizance. Most critical, no consideration was paid to the family’s month-old infant who is breastfeeding. Neither by Boland, nor the downtown detention center, known for its systemic disrespect for the rights and needs of its inmates.

You might not care how poorly criminals or their children are treated, but the inmates of jails are suspects, not convicts. They are unconvicted detainees held on some officer’s probable cause. They’re suspected of a crime, but have a right to a fair trial (under the 6th Amendment) and a right not to be punished before conviction (under the 14th). Depending on who calls 911, they could be YOU.

For those reasons (and the Golden Rule and the social contract), jails have to show a semblance of concern for the still innocent lives disrupted in their care. Denver’s Van Cise-Simonet Detention Center has a famously outlandish record in that regard. Marvin Booker and Michael Marshall are two well known extremes to which Denver sheriffs deputies have disrespected inmates’ lives. A rare survivor, Jamal Hunter, was awarded $3.25 million for beatings he received there. Unfortunately his settlement was contingent on burying the evidence of broader misconduct, thanks Jamal.

Those cases have generated reviews and reforms, but abuses persist. Isn’t it amazing that after repeated court-ordered overhauls, the public could still be told “the detention cenver has no protocols for breastfeeding mothers.”

Magistrate Boland made no allowance for the accused mother to maintain her feedings. After the morning hearing, friends learned the jail didn’t care to accomodate the mother either. That afternoon Baby Thomas became ill and began vomiting, so the father brought the baby to the visitor’s lobby hoping emergency visits could be arranged. The jail said no, though after some persuading, a sergeant agreed to convey a breastpump to the mother if one was supplied. A device was purchased and submitted, but the jail recinded their offer. This time a charge nurse named “Monica” explained she was under no obligation to comply, that she’d called her boss at Denver General who confirmed it. Without a court order, she said, the jail had no further responsibility.

By now activists with Denver Court Support were agitating online about the plight of Baby Thomas. The jail was innundated with telephone calls. The sheriffs cleared the public lobby, cancelled visitations, and put the facility in lockdown in anticipation of a rally.

Nevermind feeding Baby Thomas, release his mother immediately. Activists had raised the monies needed to hire a bondsman to post the bond. The jail was urged to expedite the mother’s release once bond was posted.

Shouldn’t inmates be release when they’ve paid to have their freedom? This is where the Van Cise-Simonet’s disrespect is arbitrary, punitive, and universal. Time to process inmates, either intake or release, takes forever, or just feels like it. Denver’s Van Cise-Simonet Detention Center likes to take a MINIMUM of 11 HOURS for these proceedures.

The pretext for the first delay is “for fingerprints to clear”. Enough time for INTERPOL in Timbuktu to review your prints and give the all clear, because they can’t be expected to be standing at the fax machine at all hours of the day, the jailers explain.

That step is required before a bond can be posted. Once a bond is paid, an inmate’s release requires a second computer delay. Also commonly at least eleven hours. The jailers attribute that wait to “that’s how long the system takes.”

On occasion we’ve seen public pressure result in a shortening of the release time. The upshot is the the release time appears to be at the jail’s whim. In the case of our breastfeeding mother the jail wouldn’t budge.

Worse for Baby Thomas’ mother, someone new to the bonding desk re-initiated the print clearing process instead of terminating it. She had to wait another interminable cycle.

The mother was taken into custody on Monday, her prints cleared by Tuesday morning. After the hearing in Room 2300, where the $10,000 bond was set, the bondsman tried to pay but learned he had to wait. The aforementioned administrative error meant it wouldn’t be before WEDNESDAY morning when her bond could be posted. Everyone is awaiting her release STILL.

As it stands, the mother is supposed to be fitted with an ankle bracelet by 8pm today. That will make it more than 48 hours that she’ll have been in custody. Mothers under stress withheld from feeding infants can stop lactating in less than that time.

The specifics of this domestic violence case are few. A neighbor called the police because the mother was seen holding a knife. The police chose to charge the mother and take her into custody. Who knows what the whole story is. The Denver Court Support activists didn’t get involved to solve the couple’s problems. Because that’s beside the point.

A child shouldn’t have to be harmed while authorities sort this out. An infant deprived of breastmilk suffers a calculable detriment which this magistrate and this jail could minimize, if they cared.

It’s hard to imagine anyone cares at Van Cise-Simonet. The jail is notorious for inedible food and poor health standards. The 23-hour lockdown is standard in all pods. Right now we hear that inmates are sleeping three to four in a cell which has only bunks for two. The one or two extra sleep on the concrete floor. This of course in addition to the litigated sadism of the Denver jailers.

Last night, outside the door of the jail, the Denver sheriffs deputies eventually re-admitted visitors into the lobby at 8pm, but kept the activists outside. Then deputies lined up and started warning the father’s friends to “calm down”. That warning and the posture of the deputies was recognizable to activists –and to many African Americans– as the precursor to the use of tasers. The only option was to leave.

UPDATE: The mother wasn’t able to rejoin her children until 10PM Wednesday. The baby is okay, although no doubt impacted by the interrupted feedings. At a public meeting the next evening to address law enforcement accountability to the community, activists told officials about what happened. They were told by the Denver Sheriff Patrick Firman that the jail DOES HAVE A POLICY to handle breastfeeding and that he was very sorry his employees didn’t know to tell the complainant.

D’ya think ANTIFA might be a trap?

Posted on September 11, 2017 by Eric Verlo

By all means shout down the fascists. Shout down white supremicists. Bash the alt-right. Do it in black bloc, if you must (and yes we must). March on, against, and over, capitalism. Declare yourself anti-fascist. Express solidarity with ANTIFA protests and counterprotests across the country. I would rethink, however, opening an Antifa franchise without knowing who elsewhere can now act IN YOUR NAME.

No one owns the ANTIFA brand. Like “black bloc”, it’s a tactic, not a movement. Except as this moment’s zeitgeist, the brand has indeed become a movement. The imperative to repudiate emboldened Nazis lacks for neither urgency nor legitimacy.

Antifa is horizontal like Occupy, no leaders. Its membership is fully self-nominated. Except where Occupy Wall Street offshoots offered local casts of characters, Antifa participants remain undercover. The problem becomes whose undercovers.

I fully support confronting fascists. I might quibble about picking fights with inarticulate Nazi cosplayers. Our corporations, the media, and the police who protect both are the full grown, authoritarian fascists.

I likewise support black bloc as an essential strategy for effective protest actions. I encourage picking fights with dogmatic nonviolence passivists who continuously thwart the potential of public demonstrations.

I support Antifa as I do Earth First, as I do ELF, or ALF the Animal Liberation Front, or Hezbollah, Hamas, and the Intifada if you’re begining to catch my drift. I stand with them without wearing a mask because my expression of support is my political right. I do not act as them, wearing a mask.

Antifa may be serving the establishment just fine by diverting youthful rebellion from directing its energy at STATE fascism. It may be suiting populist urges just fine too by allowing discontents to vent our disgust against punchable twits instead of the impregnable powers that be. Ideally those inclined to resist fascism will catch on to who really needs the pounding.

When that begins to happen however, some Antifa chapter (the media will call it a “cell”) in Reseda or Des Moines or Stuyvesant is going to commit an outrage of domestic terrorism and the Antifa brand will be blown. It may be government black ops conducting a false flag, or three percenters shy of a full load hoping to ignite a race war, or misguided revolutionaries jumping the gun. It won’t matter. “Antifa” will be declared a terrorist organization. Pardon the pun, that will be trump.

And while we know Antifa is not an organization, intelligence records will have mapped out who were the ringleaders and daredevils of concern to national security. Authorities may or may not round up suspected co-conspirators and charge them with racketeering. That’s not even my worry. Once discredited and forced underground, Antifa enthousiasts will recede into the woodwork. All the organizing, educating and networking will have come to naught.

I anticipate that my thoughts here are not going to find favor with my many friends currently marching behind the Antifa banner. But I know a number of idiots among them too, and worse, suspected moles bent on disrupting productive insurgencies.

Though Antifa in its character employs security culture stratagems, by design it’s one big back door. I know some comrades see that as essential to escalating a revolutionary force. I see the absence of a binding ideology to be its undoing.

How about we think outside the box too calculatedly provided to us by our anti-fa social engineers? That box is pre-addresed and postage due.

If you are anti-fascism or anti-capitalism, WHAT ARE YOU FOR?

BE THAT.

You can fly the Antifa banner but do it as an allied organization you are meanwhile building.

You can punch the same Nazis and blockade the same racists, and you can sell the establishment killer app for which you control the code.

Police body cameras reveal Colorado Springs law enforcement used arrests to infiltrate a student socialist group.

Posted on July 18, 2017 by Eric Verlo

COLORADO SPRINGS, COLORADO- Police body worn camera footage accidentally discovered to defendants in the March 26, 2017, protest cases, has revealed a mysterious side story at the Colorado Springs Socialists’ “March Against Imperialism”. At that march, six participants were cited for marching in the street. Meanwhile, a curious seventh was detained, driven off, but not cited. CSPD Officer Krueger’s body-cam recorded what happened and more.

What happened at the March 26 rally, beside the police dispersing a fully legal assembly? This video documents that the CSPD tried to give deeper cover to a team of El Paso County Sheriff’s plainclothes operatives, by giving one of them the credibility of an arrest. In truth, it worked for three weeks and several socialist actions, until the undercover team spooked everyone with their excessively sketchy zeal. As the March 26 evidence was released to defendants, the contradictory police reports began to accrue. Then a file labeled KRUEGER BODY-CAM emerged.

1. Krueger-cam
The first thing you see is the twenty or so protesters, clad in black, waving red flags, rallying on the steps of Colorado Springs City Hall. Speakers are railing against capitalism and imperialism. CSPD Officer Krueger comes upon this scene, among the reinforcements called, because fourteen of the protesters, mostly masked, were observed to have marched on the street.

(Marchers had followed Nevada to Bijou to Tejon to Colorado back to Nevada, trailed by the cruisers of CSPD Officers Mark Keller and Roberto Williamson. Returning to City Hall, participants were told by CSPD Sergeant Clayton Blackwell that they could protest on the sidewalk but would be ticketed if they stepped back into the street.)

As the rally goes on, the officers hear that orders have changed and everyone is going to be ticketed. On camera, Officer Keller relates a possible motive: “LT wants everyone identified.”

(Most of the protesters are masked. Arrests will give police the pretext to register everyone’s identity, whether the person walked in the street or not. By “LT”, Keller may be refering to Lieutenant Webber, who dispatched officers to the scene, or Lieutenant Mark Comte, in charge of CSPD intelligence.)

As officers discuss whether to rush the group or detain two or three protesters at a time, CSPD Sergeant Blackwell discloses to his men: “There’s two UCs in there, and they’ll just take a ticket like everybody else.” Blackwell adds, jokingly: “So hopefully we don’t have to start spraying ‘cause I don’t know which ones they are.”

Officer Keller tells Krueger and Canaan he thinks one of the protesters is concealing a knife. He fingers a masked protester wearing a Carhartt jacket.

Though Krueger and his partner, CSPD Officer Dustin Canaan, were informed about undercovers, they don’t know that they are being tasked with arresting one.

Officers Krueger and Canaan are formally instructed that when the move is made to issue citations to the protesters, they are to apprehend “Carhartt”.

In fact, the first planned arrestee of March 26 is “Carhartt”. Aka the sheriff’s undercover.

Officers encircle the rally as Sergeants Ingram and Blackwell tell the socialists that “Everyone is getting a ticket!”

When the officers confront “Carhartt” he loudly abuses them with expletives proclaiming his innocence. He does this to incite fellow protesters to resist the police effort to detain him. Everybody else however is either walking swiftly away or calmly accepting their citations for Pedestrian-in-the-Roadway and Failure-to-Disperse.

Officers Krueger and Canaan ask “Carhartt” whether he has a weapon. The suspect responds with a strange command, voiced between clenched teeth: “Pat me down at the car.”

They don’t hear his response and so repeat their question. “Carhartt” sticks to his odd refrain: “Pat me down at the car!”

Krueger and Canaan walk “Carhartt” to their cruiser where he admits he has a weapon, a “M&P Shield 9mm”. He alerts the officers that his gun is tucked into his front waistline, with the safety off. In his pocket the officers find an additional magazine clip.

(Let us reflect for a moment, that only Officer Keller knew about this undercover. Imagine if events had escalated and any of the other dozens of police officers had caught a glimpse of the undercover’s gun. What kind of trigger-happy confrontation could have resulted with the socialist marchers caught in the middle? We might also wonder what Carhartt intended to do with two magazines full of bullets.)

Officer Canaan unloads the 9mm, removes the bullet from the chamber, and places everything on the front seat.

The officers ask “Carhartt” whether he wants to be cited and released on the spot, or taken to be booked at the station? The detainee responds he wants to go wherever the other arrestees are being processed.

Asked whether he has a concealed carry permit “Carhartt” replies no.

It occurs to the officers that they can’t catch and release someone, however cooperative, if they’ve apprehended you carrying a concealed weapon without a permit.

Officer Krueger leaves to consult his supervisor Sergeant Blackwell about this arrestee who is carrying a gun without a permit.

Blackwell asks Krueger: “Is he one of our UCs?” He explains again: “We have two UCs. Do you recognize him?”

Krueger says no.

Blackwell comes to the cruiser to see for himself.

Blackwell doesn’t recognize the detainee either.

As Sergeant Blackwell walks away from the cruiser, he tells Krueger the suspect is not one of their UCs, then he ponders: “…unless he’s with the sheriff’s office?”

The suspect gives his name as Mark Jackson, d.o.b. 7/20/75, last digits of SS# 1033, phone number (281) 606-0532. All of which is probably phony.

His partner “Amy Walter” has been sitting nearby on the curb. She didn’t flee like the other participants, but oddly, was neither cited nor unmasked like all those who remained.

(“Amy Walter” kept her cover for months after the arrests. She claimed to drive up from Pueblo and only appeared fully bloc’d up. She’s gregarious and eager, and speaks with an Eastern European accent.)

Jackson remains detained in the back seat. After a few minutes CSPD Officer Mark Keller comes to the window to look at the suspect. He walks off camera, probably to tell Sergeant Blackwell that he can confirm the detainee is indeed an undercover.

Blackwell returns shortly to the cruiser to tell Krueger “We’re good.” Lowering his voice, he adds: “He’s UC.”

After some thought, Krueger turns to Jackson and asks in a whisper: ”Are you with the Sheriffs?” The undercover answers in the affirmative.

Krueger turns off his body-cam.

2. Canaan-cam
The body-cam worn by Krueger’s partner, Officer Canaan, has all the while recorded the same sequence of events, but he wasn’t paying attention to the whispers, so his camera continues to record.

Officer Keller walks back to the cruiser, this time to tease the undercover. Keller leans in and jokes about the arrest he arranged by pretending to suspect that Jackson had a knife.

Keller begins: “You really should hang out with a better crowd.”

Mocks Jackson: “I know. ‘Fuck the Police’. Ha ha.”

Keller goes on: “Hey, youse in the street, I figured you should get a ticket like everybody else.”

The undercover then says: “That’s why I yelled ‘COME FUCKING ARREST ME!’”

The two then discuss whether the undercover’s female partner should also be ticketed. Jackson theorizes that one ticket is enough.

Meanwhile an unspoken decision is made not to carry through with Jackson’s citation. This disturbs the undercover. He asks “How will it look when I don’t get a ticket?”

As Officer Mark Keller leaves the conversation at the cruiser, he looks directly at Canaan’s body-cam.

Undercover Jackson then notices that Officer Canaan did not grasp the development. He tells Krueger “You better tell your partner what’s going on.” Canaan turns off the audio on his body-cam.

ANALYSIS
To recap. Sergeant Blackwell revealed that the city had two UCs planted in the Socialist march. Officer Keller knew of the undercover Sheriff’s deputies “Jackson” and “Walter”. An effort was orchestrated to give a citation to “Jackson” but that plan was aborted. Wouldn’t it be interesting to know why?

Jackson’s detainment did not generate officer reports from either Krueger or Canaan, but the alias “Mark Jackson” was listed in three places. 1) on the March 26 police blotter, 2) in the radio log as “Mark Jackson in custody”, and 3) mentioned in passing in the report filed by Officer Roberto Williamson.

For three weeks “Mark Jackson” continued to infiltrate the socialist group, participating in several counterprotests, until everyone gave him the cold shoulder. His partner “Amy Walter” continues to contact group members.

The infiltration operation is extraordinary when you consider that the “Colorado Springs Socialists” essentially comprises the UCCS Socialist Discussion Group, a year-old student club chartered at the school. Though the students sometimes conceal themselves bandanas and hoodies when they attend social justice protests, they’ve committed zero acts of rioting, violence, or property destruction.

Once the video files had been released to the March 26 defendants, city prosecutors fought tooth and nail to quash the defendants’ subpoenas to the officers involved. The judge refused to review the body-cam footage, explaining that the El Paso Sheriffs Office had the discretion to refuse to provide further information.

Defendants insisted the prosecution was obligated to produce all the witnesses it knew to be on the scene of the alleged offenses, whether the witnesses were uniformed police or undercover. But the court won’t concede that the undercover operation merits looking into. The city stresses the importance of detectives being able to remain undercover to monitor ongoing crimes, in this case, jaywalking. The defendants are charged with obstruction and failure to disperse. If those are the crimes worth embedding undercovers, then the officers ought to be summoned to the trial to testify and secure convictions.

The defendants risked just that by insisting that the undercovers come forward as witnesses, but that risk was worth what the defendants were really after. What were those undercovers doing at the rally and at the march? Were they leading marchers into the street? Were undercovers taunting the cops as a demonstration that the protesters heard police orders to get off the street. Most marchers did not hear any orders, nor see police do much other than block traffic for their procession, contrary to the tone set by undercover Mark Jackson’s “COME FUCKING ARREST ME”. To prove the charge of Failure to Disperse” the prosecution has to prove that the accused wilfully defied the police. Jackson’s words seem meant to stand in for that proof.

Likewise, was Jackson’s belligerant response to police trying to arrest him meant to spark more resistance? Very often, riot cops target their own infiltrators who know to act outraged and resistive so that the crowd responds protectively. Jackson was clearly trying to do that.

Most of all, defendants wanted to get to the bottom of CSPD’s complicated operation to set their undercovers up to “take a ticket like everybody else.” How many officer were involved, and why didn’t officers recognize each other? Are the undercovers in fact with the El Paso Sheriffs Office or are they intelligence contractors or government agents? Who was coordinating this infiltration operation and who decided to call off issuing the ticket?

Who above all, thought they needed to insert an armed undercover, or two, possibly four, in the midst of a peaceful anti-imperialism march? Could a socialist group’s reckless co-opting of city streets warrant an undercover team’s reckless endangerment of unsuspecting activists surounded by very likley PTSD-addled police officers?

Jackson’s jittery behavior while detained in the back of the police cruiser hardly gives you confidence that even he should be trusted to wield a gun.

APPENDIX
The Krueger and Canaan body cam videos are circulating online. We’ll link to them as we locate stable copies. Below is an index of the events described above.

On the KRUEGER body-cam:

[0:45] Officer Mark Keller: “L.T. wants everyone identified.”

[3:05] Sergeant Clayton Blackwell: “There’s two UCs in there, and they’ll just take a ticket like everybody else. So hopefully we don’t have to start spraying ‘cause I don’t know which ones they are.”

[3:50] Off-camera officer: “Guy in the Carhartt [jacket] has a knife in his pocket.”

[9:00] Officers Krueger and Canaan discuss orders to arrest “Carhartt” suspected of carrying a knife.

[14:02] Sergeant John Ingram shouts: “Everyone is going to get a ticket!”

[15:20] Krueger and Canaan contact “Carhartt” who responds in a hostile and provocative manner. Unlike the other arrestees who are fully cooperative, he objects with loud profanity and derision.

[18:05] Krueger and Canaan discover “Carhartt” is armed with a 9mm handgun, tucked in his front waistband, and no concealed carry permit.

[20:04] Suspect gives his name as “Mark Jackson, d.o.b. 7/20/75”, and asks: “How do you know I was in the street?” Officer Canaan replies “An officer pointed you out. He’s been watching you the whole time.”

[23:38] Krueger consults Sgt. Blackwell who determines that “Jackson” is not one of their two UCs embedded in the march.

[28:56] Off camera Sgt. Blackwell tells Krueger “He’s U.C.”

[29:20] “Mark Jackson” admits he is with Sheriff’s Office.

[29:50] Krueger turns off body-cam.

On the CANAAN body-cam:

[16:41] Officer Dustin Canaan unloads the detainee’s “M&P Shield 9mm” and places gun, magazines, and extra bullet on front seat.

[22:02] Officer Mark Keller approaches cruiser to take a look at the detainee’s face.

[24:52] Sergeant Blackwell taps on cruiser window, says “We’re good.” Whispers to Krueger (inaudible, but it’s on the Krueger cam where we hear: “He’s UC”)

[25:03] Officer Keller returns to cruiser to joke with “Mark Jackson” about having arranged his fake arrest. Says Keller: “Hey, you’se in the street, I figured you should get a ticket like everybody else.” To which Jackson replies: “That’s why I said ‘Come fucking arrest me!’”

[25:25] Keller discusses with Jackson whether or not to ticket his female partner.

[26:27] Canaan turns off the audio of his body-cam.

Occupy v. Martinez (Plaza Protest Ban) 2015 Order Granting Prelim Injunction

Posted on February 8, 2017 by Eric Verlo

While we await a judge’s response to the complaint and motion for a preliminary injunction against DIA’s free speech permit, I was drawn to reminisce about an earlier federal injunction GRANTED against Denver’s 2nd Judicial District. It was/is (!) also a preliminary injunction curbing police intimidation. This one prevents arrests of Jury Nullification pamphleteers at the Lindsey Flanigan Courthouse in Denver. More broadly, it halts the enforcement of the despotic “Chief Justice Order 1” which attempted to curb free speech in Tully Plaza, between the courthouse and the jail, site of innumerable protest rallies since the facility was erected in 2010. After a protracted legal battle, the case will finally come to trial in April 2017. This case also started with police overreach, then a complaint, a motion, and a hearing. In August 2015, US District Judge William Martinez issued the below court order granting the preliminary injunction.

Document 28 Filed 08/25/15 USDC Colorado

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez

Civil Action No. 15-cv-1775-WJM-MJW

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.

______________________________

ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION
______________________________

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 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.

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1 No relation to the undersigned.?
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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:

• “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.) ?

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

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2 Lewis was charged with murdering five individuals at a Denver bar in 2012. See, e.g., Jordan Steffen & Matthew Nussbaum, “Denver jury hears opening arguments in five Fero’s bar killings,” Denver Post (July 20, 2015), at http://www.denverpost.com/news/ci_28513519/denver-jury-hears-opening-arguments-five-feros-bar (last accessed Aug. 24, 2015).

3 September 5, 2015, is a Saturday —an unlikely day for a jury nullification advocate to reach his or her target audience at a courthouse. When this was pointed out at the preliminary injunction hearing, counsel for Plaintiffs qualified the date with an “on or about.”
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?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:

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:

(Id. at 3.) This map shows an aerial view of the Courthouse. The top of the map is north. The Courthouse itself is the irregularly shaped, white-roofed building occupying the left half of the map. Immediately to the left (west) of the Courthouse is Fox Street. Immediately to the north is Colfax Avenue. Immediately to the right (east) of the Courthouse grounds is Elati Street, which is closed to traffic other than police vehicles as it runs past the Courthouse. Elati bisects a circular area paved in a tan color. Just to the right (east) of Elati, and not depicted in the map, is Denver’s Van Cise-Simonet Detention Center (“Detention Center”), which houses pretrial detainees. Thus, the area between the Courthouse and Detention Center is a fairly spacious place suitable for public gatherings.

Immediately to the east and west of the Courthouse are areas that the Second Judicial District highlighted in yellow to indicate where expressive activity is restricted (“Restricted Area”). This matter principally concerns the arc-shaped portion of the Restricted Area to the east of the Courthouse (“East Restricted Area”). The East Restricted Area comprises the following:

• planter boxes and public art (collectively, “Landscaping”); ?

• sidewalks, including a narrow sidewalk beginning at the north of the map ?(just below the blue bus stop icon) and following the arc of the planter boxes until it reaches a much wider sidewalk that completes the arc, which itself connects with the awning-covered steps leading to the Courthouse front doors depicted in approximately the center of the map (collectively, “Sidewalks”); and ?

• a gravel passive security feature between the narrow sidewalk and the Courthouse itself (“Gravel Area”). ?

C. Evidence Received at the Preliminary Injunction Hearing

1. Commander Lopez

?Plaintiffs called as a witness Commander Antonio Lopez of the Denver Police Department. Lopez oversees the Denver Police district that encompasses the Courthouse and the Detention Center. Lopez testified that the Courthouse opened in 2010 or 2011. During that time, he has seen “more protests [in the area between the Courthouse and the Detention Center] than [he can] recall. At one point w e were averaging about two or three a week, in that area.” On cross-examination, Lopez clarified that most of those protests were nearer to the Detention Center than the Courthouse. Nonetheless, to Lopez’s knowledge, the Denver Police Department has never restricted or interfered with any peaceful First Amendment activity taking place between the Courthouse and the Detention Center.

2. Mr. Steadman

The Second Judicial District called Steven Steadman, who is the Colorado judicial branch’s security administrator. Steadman was closely involved in the discussions leading up to the Plaza Order. Steadman testified that, during those discussions, he was unaware of Brandt and Iannicelli or the distribution of jury nullification literature, and that the Plaza Order actually arose from very different concerns.

According to Steadman, discussions began with Chief Judge Martinez in early July 2015 because the Dexter Lewis trial was scheduled to overlap with another death penalty trial in Arapahoe County, i.e., the trial of Aurora theater shooter James Holmes. Steadman and Chief Judge Martinez specifically worried about potentially violent protests that might break out if Lewis (who is black) eventually received the death penalty but Holmes (who is white) did not. Proactively seeking to avoid such a problem, Steadman gave Chief Judge Martinez a copy of an order entered by the Hon. Carlos A. Samour, Jr., who presided over the Holmes trial in Arapahoe County. Judge Samour’s order apparently was a model for what the Second Judicial District eventually issued as the Plaza Order.

On cross-examination, Steadman confirmed that the Plaza Order was intended specifically to address the protests that might erupt if Holmes and Lewis were treated differently with respect to the death penalty. Steadman admitted, however, that his office could require several hours’ notice between the announcement that the jury had reached a verdict and the actual reading of the verdict, which would permit a police presence to assemble in anticipation of protests. Steadman also admitted that nothing like the Plaza Order had been in place or enforced prior to August 14, 2015, and that passing out jury nullification literature did not present any security risk beyond what the Second Judicial District has tolerated, without incident, since the Courthouse opened.

III. ANALYSIS

A. Article III Standing

As mentioned previously, Denver has stipulated with Plaintiffs that it will not enforce any prohibition on distributing jury nullification literature on the Courthouse Plaza. Specifically, Denver has stipulated that

Plaintiffs who wish to engage in peacefully passing out jury nullification literature to passersby on the Plaza are entitled to do so and that Denver, through its police or sheriff department, will not arrest or otherwise charge Plaintiffs for handing out literature regarding jury nullification so long as Plaintiffs do not violate Colorado law or Denver’s Revised Municipal Code when they are handing out their literature. The parties stipulate 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. . .

***

. . . Denver stipulates that it does not intend to enforce the [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.

(ECF No. 23 ¶¶ 2, 4.)

?Given this stipulation, the Second Judicial District argues that Plaintiffs lack Article III standing to bring this lawsuit because no threat of enforcement is imminent. (ECF No. 24 at 6–8.) See 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”). As stated at the preliminary injunction hearing, however, the Court rejects this contention.

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, and the Court will move on to the elements Plaintiffs must establish to secure a preliminary injunction. To repeat, those elements are: (1) likelihood of success on the merits; (2) irreparable injury if the injunction is denied; (3) the 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. Westar Energy, 552 F.3d at 1224.

?B. Likelihood of Success

Evaluating the likelihood of success requires evaluating the substantive merit of Plaintiffs’ claim that the First Amendment grants them a right to discuss and distribute pamphlets about jury nullification with individuals entering and leaving the Courthouse. To answer this question, the Supreme Court prescribes the following analysis:

1. Is the expression at issue protected by the First Amendment? ?

2. If so, 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). The Court will address these inquiries in turn.

1. Does the First Amendment Protect Plaintiffs’ Pamphlets and Oral Advocacy of the Message Contained in the Pamphlets?

The Court “must first decide whether [the speech at issue] is speech protected by the First Amendment, for, if it is not, we need go no further.” Id. at 797. There appears to be no contest on this point. The Second Judicial District has raised no argument that any part of the message conveyed by the pamphlets is unprotected by the First Amendment. Accordingly, the Court deems it conceded for preliminary injunction purposes that Plaintiffs are likely to succeed on the question of whether the First Amendment protects their message.

2. Is the Courthouse Plaza a Public Forum?

The Court must next decide whether the Courthouse Plaza—and the Restricted Area specifically—is a public or nonpublic forum:

. . . the extent to which the Government can control access [to government property for expressive purposes] depends on the nature of the relevant forum. Because a principal purpose of traditional public fora is the free exchange of ideas, speakers can be excluded from a public forum only when the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest. Similarly, when the Government has intentionally designated a place or means of communication as a public forum speakers cannot be excluded without a compelling governmental interest. Access to a nonpublic forum, however, can be restricted as long as the restrictions are reasonable and are not an effort to suppress expression merely because public officials oppose the speaker’s view.

Id. at 800 (citations and internal quotation marks omitted; alterations incorporated).

?The public/nonpublic inquiry presents a unique dilemma in this case. On the one hand, Denver’s stipulation with Plaintiffs includes the following: “The Lindsey-Flanigan plaza . . . which is located between the Van Cise-Simonet Detention Center and the Lindsey-Flanigan courthouse is a public forum and any content-based regulations must be narrowly drawn to effectuate a compelling state interest . . . .” (ECF No. 23 ¶ 1 (emphasis added).) On the other hand, the Second Judicial District strong ly disagrees:

. . . Plaintiffs assert that the courthouse plaza is a traditional public forum, and therefore maintain that Chief Judge Martinez’s administrative order must be strictly scrutinized. As a matter of state law, however, Chief Judge Martinez— and not Denver—is responsible for the oversight of the courthouse and the adjoining grounds. Thus, any concession on this point by Denver binds neither the parties nor this Court.

(ECF No. 24 at 8.) Apparently a minor turf war has erupted between Denver and the Second Judicial District over control of the Courthouse grounds.

When asked at the preliminary injunction hearing regarding the “state law” that gives Chief Judge Martinez “responsib[ility] for the oversight of the courthouse and the adjoining grounds,” counsel for the Second Judicial District directed the Court to Colorado Revised Statutes § 13-3-108(1). That subsection reads: “The board of county commissioners in each county shall continue to have the responsibility of providing and maintaining adequate courtrooms and other court facilities including janitorial service, except as otherwise provided in this section.” Neither this language, nor anything else in § 13-3-108, appears to relate to a chief judge’s authority over courthouse policies or courthouse grounds.

?Counsel for the Second Judicial District also pointed this Court to State ex rel. Norton v. Board of County Commissioners of Mesa County, 897 P.2d 788 (Colo. 1995) (“Mesa County”). In Mesa County, the county commissioners defied an order from the Twenty-First Judicial District’s chief judge requiring additional security measures at the county courthouse. See Mesa County, 897 P.2d at 789. The county commissioners further announced their intent to stop providing support of any kind to the Twenty-First Judicial District, arguably in violation of § 13-3-108(1) (quoted above), Colorado Revised Statutes § 13-1-114(2) (requiring county sheriffs to assist the judiciary when the judiciary perceives a “risk of violence in the court”), and Colorado Revised Statutes § 30-11-104(1) (requiring each county to “provide a suitable courthouse”). See id. The county commissioners believed that Colorado’s constitutional Taxpayers’ Bill of Rights allowed the county to disregard the foregoing statutes because they created an impermissible “subsidy” to the court system. Id. at 789–90. The Colorado Supreme Court rejected the county commissioners’ position and held that counties’ statutory duties toward the court system are not “subsidies” under the Taxpayers’ Bill of Rights. Id. at 791.

The Mesa County decision highlights the relationship between counties and the state courts that sit within them. It emphasizes county sheriffs’ duties to assist judges in preventing “violence in the court.” Colo. Rev. Stat. § 13-1-114(2). It does not support the Second Judicial District’s notion that it controls and can speak for the status of the Courthouse grounds.

Finally, counsel for the Second Judicial District cited this Court to In re Court Facilities for Routt County, 107 P.3d 981 (Colo. App. 2004) (“Routt County”). Routt County held that, under certain circumstances, a state judicial district’s chief judge has inherent authority to order the board of county commissioners to design and pay for a new courthouse. Id. at 984. Quoting Peña v. District Court, 681 P.2d 953, 956 (Colo. 1984), Routt County relied on the notion that “courts necessarily possess certain inherent powers, which . . . 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.’” Routt County, 107 P.3d at 984.

Both Routt County and Peña specifically address the Colorado judiciary’s inherent authority to order another state or municipal entity to spend money on the judiciary’s behalf. That power is not at issue here. Nonetheless, the inherent authority described in Routt County and Peña could conceivably also extend to entering orders such as the Plaza Order. The ultimate question, however, is whether Denver or the Second Judicial District speaks for the First Amendment status of the Courthouse Plaza. For at least three reasons, the Court concludes that Plaintiffs are likely to prevail against the Second Judicial District on that question.

First, counsel for the Second Judicial District agrees that Denver owns the Courthouse itself and all of its grounds.

Second, counsel for the Second Judicial District further stated that there was no lease agreement of which he was aware between Denver and the Second Judicial District. Rather, the Second Judicial District occupies the Courthouse “as provided by law.”

?Third, it is undisputed that the Second Judicial District is not the Courthouse’s sole occupant. Denver County Court also sits in the Courthouse. Denver County Court is unique among county courts in Colorado because the Colorado Constitution grants Denver the authority to set the “number, manner of selection, qualifications, term of office, tenure, and removal of [its] judges.” Colo. Const. art. VI, § 26. Moreover, a Chief Justice Directive from the chief justice of the Colorado Supreme Court states that “[t]he chief judge of the Second Judicial District shall not have administrative authority over the Denver County Court.” CJD 95-01, Preamble (amended Aug. 17, 2012), available at https://www.courts.state.co.us/Courts/Supreme_Court/Directives/95-01amended8-17-12.pdf. Thus, there are two distinct judicial bodies operating in the Courthouse, and the Second Judicial District apparently cannot speak for both.

For all these reasons, the Court finds that Plaintiffs are likely to prevail in their contention that Denver controls and speaks for the Courthouse Plaza. 4 Because Denver has stipulated that the Courthouse Plaza is a public forum, Plaintiffs are likewise likely to prevail in their claim that the Courthouse Plaza is at least a designated public forum, if not a traditional public forum. See Cornelius, 473 U.S. at 800. 5

Moreover, the Court notes that the Second Judicial District has not specif ically argued for a finding that the Courthouse Plaza is a nonpublic forum. Rather, it says that “resolving [the type of forum at issue] is not necessary for the purposes of this proceeding because [the Plaza Order] would satisfy even the strictest test.” (ECF No. 24 at 9.) Thus, the Court turns to the question of whether the Plaza Order can survive a strict scrutiny analysis. 6

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4 Ultimately, a Colorado state court may need to resolve this question. See, e.g., CJD 95-01 ¶ 15 (“Any disputes arising from the exercise of the authority described in this directive shall be resolved by the Chief Justice.”). In this posture, however, the Court need only conclude that Plaintiffs are likely to succeed.

5 If the Courthouse Plaza is indeed a public forum, it would be unique in that respect. The parties have not cited, nor could the Court find, a single case in which courthouse grounds were deemed a public forum. Cf. Huminski v. Corsones, 396 F.3d 53, 90–91 (2d Cir. 2005) (courthouse grounds not a public forum); Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 966 (9th Cir. 2002) (same), abrogated on other grounds by Winter v. NRDC, 555 U.S. 7 (2008); Comfort v. MacLaughlin, 473 F. Supp. 2d 1026, 1028 (C.D. Cal. 2006) (same); Schmidter, 103 So. 3d at 270 (same).

6 The ensuing analysis assumes, of course, that the Second Judicial District may attempt to enforce the Plaza Order through its own contempt power. If such power did not exist, there would likely be no reason to scrutinize the Plaza Order under any constitutional standard given Denver’s control over the Plaza and its stipulation not to interfere with Plaintiffs’ intended activities. (See Part III.A, supra.)
—————

3. Is the Plaza Order Narrowly Tailored to Serve a Significant Government Interest, and Does it Leave Open Ample Alternative Means of Communication?

“In [a] quintessential public forum[], the government may not prohibit all communicative activity.” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983); see also id. at 46 (holding that the government may un-designate a designated public forum, but until it does so, “it is bound by the same standards as apply in a traditional public forum”). The state may, however, “enforce regulations of the time, place, and manner of expression which [1] are content-neutral, [2] are narrowly tailored to serve a significant government interest, and [3] leave open ample alternative channels of communication.” Id. The Court will address each element in turn as it applies to the Plaza Order.

a. “Content-Neutral”?

The Plaza Order applies “without regard to the content of any particular message, idea, or form of speech.” (ECF No. 25-1 at 1.) On its face, then, it appears content-neutral. Plaintiffs have not argued otherwise.

b. “Narrowly Tailored to Serve a Significant Government Interest”

The Plaza Order itself asserts several interests:

. . . 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 . . . .

(Id.) However, in response to Plaintiffs’ Motion, the Second Judicial District has only defended the Plaza Order on the bases of preserving “the efficient functioning of the court” (e.g., unhindered ingress and egress to the Courthouse) and “maintain[ing] public safety.” (ECF No. 24 at 12.)

These are potentially “significant” government interests. Legitimate time-place- manner restrictions in a public forum can be motivated by “objectives [such as] public safety, accommodating competing uses of the easement, controlling the level and times of noise, and similar interests.” First Unitarian Church of Salt Lake City v. Salt Lake City Corp., 308 F.3d 1114, 1132 (10th Cir. 2002). But the Court finds on this record that Plaintiffs are likely to succeed in proving that the Plaza Order is not narrowly tailored to these stated objectives. Paragraph 1 of the Plaza Order bans essentially all expressive activity regardless of whether it would affect “the efficient functioning of the court” or threaten “public safety.” Courts look dimly on such “First Amendment Free Zones.” See Bd. of Airport Comm’rs of City of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987); First Unitarian, 308 F.3d at 1132.

Moreover, in the Second Judicial District’s briefing (see ECF No. 24 at 12) and at the preliminary injunction hearing, it became clear that the sole motivating concern behind the Plaza Order was potentially violent protests that could follow if Dexter Lewis receives the death penalty. Steadman, the Second Judicial District’s witness, agreed that other measures could address that concern, e.g., he could arrange for additional security well in advance of any verdict announcement. He also agreed that Plaintiffs’ activities posed no greater threat to the Courthouse than it has faced in the last five years, when expressive activities have been unrestricted. Thus, the Court finds that Plaintiffs will likely demonstrate that at least Paragraph 1 of the Plaza Order is not narrowly tailored to serve the interests of maintaining public safety and the efficient functioning of the court.

c. “Leave Open Ample Alternative Channels of Communication”

Given the foregoing finding, inquiry into the alternative channels of communication is unnecessary. 7 The Court accordingly holds that Plaintiffs are likely to succeed in defeating at least Paragraph 1 of the Plaza Order under the strict scrutiny test applied to public forums.

————
7 The Court nonetheless notes Plaintiffs’ argument at the preliminary injunction hearing that their advocacy requires person-to-person contact because the concept of jury nullification is obscure and does not lend itself well to pithy slogans that can easily be chanted or placed on a placard (and therefore understood from a distance). Plaintiffs’ counsel could not cite this Court to any authority holding that those wishing to advocate complicated or lesser understood concepts receive more solicitude than others when it comes to available channels of communication. To the contrary, the case law suggests that the government can more easily restrict person-to-person interaction because of its potential for harassment. See, e.g., Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 773–74 (1994). The Court need not resolve the issue at this time, but only raises it as a matter of potential concern as this case progresses.
————

?C. Irreparable Injury

“[T]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1190 (10th Cir. 2003) (internal quotation marks omitted). Moreover, the Second Judicial District offers no response to Plaintiffs’ irreparable injury argument. Accordingly, the Court finds that Plaintiffs will be irreparably injured absent a preliminary injunction.
?
D. Balancing of Interests

The injury to a plaintiff deprived of his or her First Amendment rights almost always outweighs potential harm to the government if the injunction is granted. See Awad v. Ziriax, 670 F.3d 1111, 1131 (10th Cir. 2012); ACLU v. Johnson, 194 F.3d 1149, 1163 (10th Cir. 1999). And again, the Second Judicial District offers no response to Plaintiffs’ argument that the balance of interests tips in their favor. Accordingly, the Court finds that the balance indeed tips in Plaintiffs’ favor, although the Court will issue the narrowest injunction possible so that the Second Judicial District is not unduly restrained in its ability to maintain safety and proper judicial functioning. (See Part III.F, infra.)?

E. Public Interest

Finally, as with irreparable injury and balancing of interests, it is almost always in the public interest to prevent a First Amendment violation. See Awad, 670 F.3d at 1132; Johnson, 194 F.3d at 1163. The Second Judicial District does not argue otherwise. The Court therefore finds that a narrowly drawn injunction would be in the public interest.

?F. Scope of Injunctive Relief

The Court will enter a preliminary injunction in favor of Plaintiffs. However, the Court will not grant an injunction as broad as Plaintiffs’ counsel requested at the preliminary injunction hearing. Plaintiffs’ counsel requested an injunction stating that their message and form of advocacy is protected speech, supposedly to protect against any other government agency that might try to silence them. But the Court cannot say (on this record at least) that Plaintiffs’ message and form of advocacy is always protected speech under all circumstances. In addition, an injunction must run against a party—this Court cannot enter an injunction against the world at large. See, e.g., Fed. R. Civ. P. 65(d)(2) (describing persons bound by an injunction). If Plaintiffs believe that a particular government agency is likely to attempt to silence them, they need to join that agency as a party and satisfy the preliminary injunction as against that agency. 8

Further, although Plaintiffs apparently seek to strike down the entire Plaza Order as unconstitutional, the Court will limit its injunction only to certain portions of the Plaza Order. As counsel for the Second Judicial District pointed out at the preliminary injunction hearing, the Plaza Order applies both inside and outside the Courthouse, but Plaintiffs have only challenged its restrictions outside the Courthouse. Accordingly, the Court will not disturb the Plaza Order as it operates inside the Courthouse.

In addition, the Court notes the Landscaping and Gravel Area in the East Restricted Area. Although no party discussed the scope of a potential injunction in these specific areas, the Court assumes for present purposes that Denver did not intend its public forum stipulation to authorize Plaintiffs to tramp through the Landscaping or the Gravel Area, both of which are ultimately designed for the Courthouse’s security. The Court therefore will not enjoin the operation of the Plaza Order as it applies to the Landscaping and Gravel Area.

The Court also notes that Plaintiffs have specifically alleged their intent to distribute and discuss the two pamphlets attached to their original complaint, “Fresh Air for Justice” (ECF No. 1-3) and “Your Jury Rights: True or False?” (ECF No. 1-4). At the preliminary injunction hearing, counsel for Plaintiffs reemphasized that these two pamphlets form the basis of what they wish to discuss. The Court will therefore limit its injunction to distribution of those specific pamphlets and oral advocacy of the message contained in those pamphlets.

Finally, only Paragraph 1 of the Plaza Order is truly at issue here. Plaintiffs have not challenged the Second Judicial District’s authority to prevent obstruction of the entryways (Paragraph 2), to prohibit the erection of structures (Paragraph 3), or to restrict sound amplification equipment (Paragraph 4). Thus, the Court will limit the injunction to Paragraph 1 of the Plaza Order. 9

————
8 Plaintiffs’ counsel expressed some concern that the Denver District Attorney’s office had been involved in the arrest of Brandt and Iannicelli and that the DA’s office might continue to pursue similar prosecutions. But Plaintiffs have not joined the DA’s office as a party, and in any event, in light of Denver’s stipulation with Plaintiffs, it is questionable whether the Denver Police Department would execute any arrest warrant based on Plaintiffs’ activities.

9 A party awarded a preliminary injunction normally must “give[] security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c). The Tenth Circuit has held that “a trial court may, in the exercise of discretion, determine a bond is unnecessary to secure a preliminary injunction if there is an absence of proof showing a likelihood of harm.” Coquina Oil Corp. v. Transwestern Pipeline Co., 825 F.2d 1461, 1462 (10th Cir. 1987) (internal quotation marks omitted). The Second Judicial District has not put forth any evidence of a likelihood of harm, nor has it argued that Plaintiffs should be required to post a bond. Having considered the issue sua sponte, the Court determines that a bond is unnecessary in light of the lack of likely harm to the Second Judicial District, and in light of the nature of the case. Cf. 11A Charles Alan Wright et al., Federal Practice & Procedure § 2954 n.29 (3d ed., Apr. 2015 update) (citing public rights cases where the bond was excused or significantly reduced).
————

IV. CONCLUSION

For the reasons set forth above, the Court ORDERS as follows:

1. Plaintiffs’ and Denver’s Stipulation (ECF No. 23) is ACCEPTED and shall be treated as if an order from this Court; ?

2. Plaintiffs’ Motion for Preliminary Injunction (ECF No. 2) is GRANTED; and ?

3. The City and County of Denver, its police chief, Robert C. White, in his official capacity, and the Second Judicial District (including their respective officers, agents, servants, employees, attorneys, and other persons who are in active concert or participation with any of them) (collectively, “Defendants”) are PRELIMINARILY ENJOINED as follows (all capitalized terms bear the respective meanings assigned above): ?

a. Save for any Plaintiff physically located on the Landscaping or Gravel Area, Defendants shall not enforce Paragraph 1 of 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?”

b. To the extent consistent with the foregoing prohibition, Defendants remain free to enforce Paragraphs 2–4 of the Plaza Order.

Dated this 25th day of August, 2015.

BY THE COURT:

William J. Martínez?
United States District Judge

Pro-immigrant activists with Occupy Denver file suit against DIA and DPD, challenge airport free speech “permit”

Posted on February 6, 2017 by Eric Verlo

DENVER, COLORADO- Civil liberties champion David Lane has filed a complaint in US district court challenging Denver’s office of the city attorney for instituting a permit process at DIA to prevent public protest. Holding signs has become impermissible at the airport, without the issuance of a permit seven days in advnace, although police are not bothering themselves about signs welcoming homecomers or seeking to connect business visitors with their limo service. That selective enforcement is unconstitutional of course, and the lawfirm powerhouse of Kilmer Lane & Newman is filing suit on behalf of two Occupy Denver plaintiffs. last Sunday, January 29, both were threatened with arrest by DIA police. While two earlier attempts to assemble had capitulated to DPD intimidation, the Occupy Denver activists stood their ground. Why did you file your lawsuit? “We know our rights. We want the POLICE to know our rights.”

1. Full text of complaint:

Case 1:17-cv-00332 Document 1
Filed 02/06/17 USDC Colorado Page 1 of 14

Civil Action No.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

NAZLI MCDONNELL,
ERIC VERLO,

Plaintiffs, vs.

CITY AND COUNTY OF DENVER,?
DENVER POLICE COMMANDER ANTONIO LOPEZ, in his individual and official capacity,
DENVER POLICE SERGEANT VIRGINIA QUINONES, in her individual and official capacity,

Defendants.

______________________________________________________________________________

COMPLAINT

______________________________________________________________________________

Plaintiffs, by and through their attorneys David A. Lane and Andy McNulty of KILLMER, LANE & NEWMAN, LLP, allege as follows:

INTRODUCTION

1. Plaintiffs Eric Verlo and Nazli McDonnell challenge a regulation of alarming breadth that bans all First Amendment expression at Denver International Airport without a permit.

2. Plaintiffs are concerned citizens who believe that President Donald Trump has overstepped his executive authority by signing the January 27, 2017, Executive Order (hereinafter “Muslim Ban”), which permanently bans Syrian refugees from emigrating to the United States, temporarily bans nationals of seven countries (including permanent legal residents and visa-holders), and suspends all applications to the United States refugee program (even as to vetted entrants currently in transit).

3. Plaintiffs wish to express their disgust with President Trump’s (likely unconstitutional) Muslim Ban. They wish to do so in the same place that hundreds of thousands of Americans across the country have done: standing directly outside of the secure Customs and Border Protection (hereinafter “CBP”) screening area within an airport where immigrants to America enter into the main terminal after clearing customs. Plaintiffs, unlike many citizens across this great nation who have exercised their opposition to the Muslim Ban in airports by chanting, singing, dancing, and praying, simply wish to stand in silent protest, holding signs that express their solidarity with immigrants and the Muslim community.

4. Plaintiffs are banned from doing so by DENVER INTERNATIONAL AIRPORT REGULATION 50 (hereinafter “Regulation 50”).

5. Regulation 50 states: “No person or organization shall leaflet, conduct surveys, display signs, gather signatures, solicit funds, or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes, or in connection with a labor dispute, except pursuant to, and in compliance with, a permit for such activity issued by the CEO or his or her designee.” DENVER INTERNATIONAL AIRPORT REGULATION 50.03. In order to obtain a permit, an individual must “complete a permit application and submit it during regular business hours, at least seven (7) days prior to the commencement of the activity for which the permit is sought[.]” DENVER INTERNATIONAL AIRPORT REGULATION 50.04-1.

6. Plaintiffs ask that this Court enjoin the enforcement of Regulation 50 and prohibit Defendants from arresting them for their First Amendment-protected activity of standing in peaceful protest within Jeppesen Terminal. Regulation 50 is overbroad in violation of the First Amendment and vague in violation of the Fourteenth Amendment’s Due Process Clause.

7. This is a civil rights action for declaratory and injunctive relief as well as fees and costs arising under 42 U.S.C. §§ 1983, 1988 and 28 U.S.C. Section 2201 et seq. due to Defendants’ current and imminent violations of Plaintiffs’ rights guaranteed by the First and Fourteenth Amendments to the Constitution of the United States.

PARTIES

8. Plaintiff Eric Verlo is a citizen of the United States of America. Mr. Verlo wishes to show his resistance to President Trump’s Muslim Ban, so that others will be inspired to join in the resistance.

9. Plaintiff Nazli McDonnell is a citizen of the United States of America. Ms. McDonnell wishes to show her resistance to President Trump’s Muslim Ban, so that others will be inspired to join in the resistance.

10. Defendant City and County of Denver is a municipal corporation and political subdivision of the State of Colorado. Thus, it is an entity subject to the provisions of § 1983.

11. Defendant Antonio Lopez is a Commander with the Denver Police Department. Commander Lopez is responsible for security at Denver International Airport’s Jeppesen Terminal.

12. Defendant Virginia Quinones is a Sergeant with the Denver Police Department. Sergeant Quinones is responsible for security at Denver International Airport’s Jeppesen Terminal.

JURISDICTION AND VENUE

13. Plaintiffs bring this claim pursuant to 42 U.S.C. § 1983; the First Amendment to the United States Constitution, incorporated as against States and their municipal divisions through the Fourteenth Amendment to the United States Constitution; and the Due Process Clause of the Fourteenth Amendment.

14. This Court has jurisdiction under 28 U.S.C. § 1331 over Plaintiffs’ claims that “arise[] under the Constitution of the United States.”

FACTS

15. On January 27, 2017, President Donald Trump signed an Executive Order, which permanently banned Syrian refugees from emigrating to the United States, temporarily banned nationals of seven countries (including permanent legal residents and visa-holders), and suspended all applications to the United States refugee program (even as to vetted entrants currently in transit). President Trump’s Executive Order has been subsequently referred to as a “Muslim Ban,” because it both mirrors President Trump’s racist, anti-Islam statements made on December 7, 2015, that he was planning to ban all Muslims from entering the United States until our representatives can “figure out what’s going on” and the ban targets countries whose population is predominantly Muslim and seemingly bears little rational relation to each country’s security threat to the United States.

16. Immediately upon the enactment of President Trump’s Muslim Ban there was an outpouring of outrage from a large proportion of the American population and across the spectrum of political affiliation. This outrage led to resistance in the form of protests.

17. On January 28, 2017, and January 29, 2017, protests erupted in nearly every major city in the United States. The protests organically formed in our nation’s airports. Protesters chose to express their disgust with President Trump’s Muslim Ban in airports (and specifically outside of the secure CBP screening area) because individuals affected by the ban who were in transit to the United States were being held and questioned by CBP agents there. Many of these travelers, including lawful United States residents, were forced to sign documents revoking their lawful status within the United States and deported. Still others were simply deported with no explanation. Others still were held for hours as teams of lawyers rushed to prepare habeas petitions for their release.

18. News reports about the protests make clear that they have been peaceful and non- disruptive despite the gathering of, in some cases, thousands of people.

19. Airport staff have told protesters, and would-be protesters, at numerous airports across the nation, including Kansas City International Airport, that there are no restrictions on their speech and that all protesters who wish to participate in actions against the Muslim Ban are allowed. Protests have continued in other cities to this day.

20. On January 28, 2017, there was one such protest at Denver International Airport, within the Jeppesen Terminal. At approximately 5:00 p.m. hundreds gathered in the Jeppesen Terminal’s atrium, near arrivals, to protest and many others gathered to bear witness.

21. Prior to the protest, leaders had applied for a permit. It was denied. The reason for its denial was that the permit was not requested with seven days advance notice of the protest occurring. Regulation 50 requires seven days advance notice.

22. The January 28, 2017, protest began with speeches, chants, songs, and prayers. It was a peaceful gathering of solidarity for immigrants and Muslims. Every person at the January 28, 2017, protest was contained in an area of the Jeppesen Terminal atrium that is designed as a gathering space for people to sit, relax, and converse. No one was standing in the walkways or passageways of the terminal.

23. Soon after the January 28, 2017, protest began, members of the Denver Police Department arrived on-scene. Commander Antonio Lopez engaged the leader of the protest, Amal Kassir, along with State Representative Joe Salazar and representatives from the ACLU of Colorado, and informed them that the protest was unlawful. Commander Lopez told Ms. Kassir that anything that “could be construed as Free Speech” was prohibited at the Denver International Airport, including within the Jeppesen Terminal, without a permit. See Exhibit 1, January 28, 2017 Video.

24. Commander Lopez also stated that all “First Amendment expression” was prohibited at the Denver International Airport, including within the Jeppesen Terminal, without a permit on Regulation 50. Commander Lopez handed Regulation 50 to multiple protesters, including Ms. Kassir. See Exhibit 2, January 28, 2017 Video 2.

25. Regulation 50 states (in pertinent part): “No person or organization shall leaflet, conduct surveys, display signs, gather signatures, solicit funds, or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes, or in connection with a labor dispute, except pursuant to, and in compliance with, a permit for such activity issued by the CEO or his or her designee.” DENVER INTERNATIONAL AIRPORT REGULATION 50.03. In order to obtain a permit, an individual must “complete a permit application and submit it during regular business hours, at least seven (7) days prior to the commencement of the activity for which the permit is sought[.]” DENVER INTERNATIONAL AIRPORT REGULATION 50.04-1.

26. Commander Lopez, along with members of Denver International Security, told Ms. Kassir that every portion of Denver International Airport property, which has an approximately fifty square mile footprint, is off-limits for First Amendment expression. They suggested that Ms. Kassir move her protest to Tower Road, which is approximately six miles from the Jeppesen Terminal and, like most of the land surrounding Denver International Airport, adjacent to open prairie land with no inhabitants.

27. Commander Lopez threatened Ms. Kassir and numerous other demonstrators with arrest if they didn’t immediately cease any “First Amendment expression.” According to Commander Lopez’s directives, the individuals gathered in the Jeppesen Terminal could not stand holding signs, sing, speak to others about matters of public concern, hold the United States Constitution above their shoulders, or stand silently with their arms interlocked.

28. Ultimately, to avoid arrest, Ms. Kassir and the demonstrators moved outside of the Jeppesen Terminal to the large area on its south side, adjacent to the escalators leading to the commuter rail and under the Westin Hotel. The protest continued peacefully for a little while longer, then disbursed without issue.

29. The next day, January 29, 2017, Plaintiffs Eric Verlo and Nazli McDonnell traveled to Denver International Airport’s Jeppesen Terminal to express their opposition to President Trump’s Muslim Ban.

30. Mr. Verlo and Ms. McDonnell brought with them signs expressing support for immigrants and expressing concern that history was repeating itself with disastrous potential consequences.

31. Mr. Verlo and Ms. McDonnell positioned themselves adjacent to the secure CBP screening area within the Jeppesen Terminal at approximately 1:15 p.m.

32. Adjacent the secure CBP screening area at the Jeppesen Terminal is the only place where Mr. Verlo and Ms. McDonnell can reach their intended audience. Mr. Verlo and Ms. McDonnell wish to communicate with those who could be swayed by their message and, particularly, with immigrants. International travelers are often immigrants and/or lawful United States residents, including green card and other visa holders, other than citizens. Mr. Verlo and Ms. McDonnell wish to express their solidarity with immigrants directly to these individuals. Further, United States citizens who arrive from international locations are also individuals with whom Mr. Verlo and Ms. McDonnell wish to communicate. International travelers have experienced other cultures and are likely to be sympathetic to Mr. Verlo and Ms. McDonell’s message.

33. The secure CBP screening area is also the location where the Muslim Ban has been enforced by DHS, both at Denver International Airport and across the nation. Neither Plaintiff attempted to enter any restricted areas of Denver International Airport.

34. While silently displaying their signs, Mr. Verlo and Ms. McDonnell were in the open plaza near the secure CBP screening area within the Jeppesen Terminal and positioned significantly behind the railing, which demarcates where those waiting for loved ones are permitted to stand. Mr. Verlo and Ms. McDonnell did not impede the right of way of any passengers hustling to catch flights at the last moment. They simply stood with placards showing their distaste for the Executive Order and the man who executed it.

35. Mr. Verlo and Mr. McDonnell also observed another man in the terminal, named Gene Wells, who was expressing views similar to theirs.

36. Mr. Wells was wearing a sign taped to the back of his shirt.

37. Mr. Wells left the Jeppesen Terminal, but subsequently returned to protest. When he did, he was stopped by Denver Police Department officers who told him that he could not walk around the terminal with the slogan he had affixed to his back. Mr. Wells eventually rejoined Mr. Verlo and Mr. McDonnell at the international arrivals doors, but not without trepidation. He feared he might be arrested.

38. While Mr. Verlo and Ms. McDonnell were displaying their signs, Defendant Sergeant Virginia Quinones approached Mr. Verlo and Ms. McDonnell and threatened them with arrest if they did not leave Jeppesen Terminal. See Exhibit 3, January 29, 2017, Video.

39. Sergeant Quinones handed Mr. Verlo and Ms. McDonnell Regulation 50 and cited it as the reason they would be arrested if they did not leave Jeppesen Terminal. Id. Sergeant Quinones told Mr. Verlo and Ms. McDonnell that they would need a permit in order to stand silently, holding signs in opposition of the Muslim Ban and be in compliance with Regulation 50.

40. Had Mr. Verlo and Ms. McDonnell applied for a permit the second President Trump signed the Executive Order implementing the Muslim Ban, they still would have been unable to engage in protest within the Jeppesen Terminal under the terms and conditions of Regulation 50 on January 29, 2017.

41. Mr. Verlo and Ms. McDonnell did not immediately leave the Jeppesen Terminal after being threatened with arrest. However, they were startled by Sergeant Quiones’ threat and feared arrest for the duration of the time they were there.

42. Throughout the time Mr. Verlo and Ms. McDonnell were expressing their views within the Jeppesen Terminal they received numerous shows of support from passersby. Multiple self- proclaimed Muslims expressed heart-felt statements of appreciation to Mr. Verlo, Ms. McDonnell, and others holding signs.

43. Mr. Verlo and Ms. McDonnell ultimately left Jeppesen Terminal.

44. Mr. Verlo and Ms. McDonnell wish to return to Jeppesen Terminal to express solidarity with Muslims and opposition to the Muslim Ban, but are reticent to do so for fear of being arrested.

45. Upon information and belief, no individual has been arrested, or threatened with arrest, for wearing a “Make America Great Again” campaign hat without a permit within the Jeppesen Terminal at Denver International Airport.

46. Upon information and belief, no individual has been arrested, or threatened with arrest, for holding a sign welcoming home a member of our military without a permit within the Jeppesen Terminal at Denver International Airport.

47. Upon information and belief, no individual has been arrested, or threatened with arrest, for holding a sign and soliciting passengers for a limousine without a permit within the Jeppesen Terminal at Denver International Airport.

48. Upon information and belief, no individual has been arrested, or threatened with arrest, for discussing current affairs with another person without a permit within the Jeppesen Terminal at Denver International Airport.

49. At all times relevant to this Complaint, Defendants acted under color of law.

CLAIM I: FIRST AMENDMENT
(§ 1983 violation – all Defendants)

50. Plaintiffs repeat, re-allege, and incorporate by reference the allegations in the foregoing paragraphs of this Complaint as fully set forth herein.

51. Regulation 50 violates the Free Speech Clause of the First Amendment to the Constitution, on its face and as applied, because it impermissibly curtails Plaintiffs’ free-speech rights.

52. Plaintiffs wish to speak on a matter of public concern. 11

53. Denver International Airport’s Jeppesen Terminal is a public forum.

54. Regulation 50 directly infringes upon and chills reasonable persons from engaging in activity that is protected by the First Amendment.

55. Regulation 50 acts as an unconstitutional prior restraint on speech because it (1) requires a permit before allowing individuals to engage in speech, (2) allows for arbitrary and/or discriminatory permit denials, and (3) requires advance notice that is unconstitutionally excessive.

56. Regulation 50 is overbroad.?

57. Regulation 50 is not narrowly tailored to serve a compelling government interest.?

58. Regulation 50 does not further a substantial government interest.?

59. Regulation 50’s restriction on expressive conduct is greater than necessary to further any
government interest.?

60. Defendants’ actions and/or omissions enforcing Regulation 50 caused, directly or
proximately, Plaintiffs to suffer damages.

CLAIM II: FIRST AMENDMENT RETALIATION
(§ 1983 violation – all Defendants)

1. All statements of fact set forth previously are hereby incorporated into this claim as though set forth fully herein. ?

2. Plaintiffs engaged in First Amendment protected speech on a matter of public concern ?while displaying signs opposing President Trump’s Muslim Ban on January 29, 2017.

3. Defendants jointly and on their own accord responded to Plaintiffs’ First Amendment protected speech with retaliation, including but not limited to threatening Plaintiffs with arrest.

4. Defendants retaliatory actions were substantially motivated by Plaintiffs’ exercise of their First Amendment rights.

5. By unlawfully threatening Plaintiffs with arrest, Defendants sought to punish Plaintiffs for exercising their First Amendment rights and to silence their future speech. Defendants’ retaliatory actions would chill a person of ordinary firmness from engaging in such First Amendment protected activity.

6. Defendants’ actions and/or omissions enforcing Regulation 50 caused, directly and proximately, Plaintiffs to suffer damages.

CLAIM III: FOURTEENTH AMENDMENT DUE PROCESS
(§ 1983 violation – all Defendants)

7. All statements of fact set forth previously are hereby incorporated into this claim as though set forth fully herein.

8. The prohibitions of Regulation 50 are vague and not clearly defined. ?

9. Regulation 50 offers no clear and measurable standard by which Plaintiffs and others can ?act lawfully.

10. Regulation 50 does not provide explicit standards for application by law enforcement officers.

11. Regulation 50 fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits, and authorizes or encourages arbitrary and discriminatory enforcement, or both.

12. Defendants’ actions and/or omissions enforcing Regulation 50 caused, directly and proximately, Plaintiffs to suffer damages.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs respectfully request that this Court enter judgment in their favor and against Defendants, and grant:

(a) Appropriate declaratory and other injunctive and/or equitable relief; 13

(b) Enter a declaration that Regulation 50 is unconstitutional on its face and enjoin its enforcement; ?

(c) Compensatory and consequential damages, including damages for emotional distress, loss of reputation, humiliation, loss of enjoyment of life, and other pain and suffering on all claims allowed by law in an amount to be determined at trial; ?

(d) All economic losses on all claims allowed by law; ?

(e) Punitive damages on all claims allowed by law and in an amount to be determined ?at trial; ?

(f) Attorney’s fees and the costs associated with this action, pursuant to 42 U.S.C. § ?1988; ?

(g) Pre and post-judgment interest at the lawful rate; and ?

(h) Any further relief that this court deems just and proper, and any other relief as ?allowed by law. ?

Dated this 6th day of February 2017.

KILLMER, LANE & NEWMAN, LLP
s/ Andy McNulty

___________________________________
David A. Lane
?Andy McNulty?
Killmer, Lane & Newman, LLC
1543 Champa Street, Suite 400 Denver, Colorado 80202?
Attorneys for Plaintiff

2. Full text of Feb 6 motion for preliminary injunction:

Case 1:17-cv-00332 Document 2
Filed 02/06/17 USDC Colorado Page 1 of 23

Civil Action No.

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

NAZLI MCDONNELL,
ERIC VERLO,

Plaintiffs, vs.

CITY AND COUNTY OF DENVER,
DENVER POLICE COMMANDER ANTONIO LOPEZ, in his individual and official capacity,
DENVER POLICE SERGEANT VIRGINIA QUINONES, in her individual and official capacity,

Defendants.

______________________________________________________________________________

MOTION FOR PRELIMINARY INJUNCTION

______________________________________________________________________________

Plaintiffs, by and through their attorneys David A. Lane and Andy McNulty of KILLMER, LANE & NEWMAN, LLP, hereby submit the following Motion for Preliminary Injunction, and in support thereof, states as follows:

1. Introduction

Over the last four days, many Americans have expressed public disapproval of President Donald Trump’s January 27, 2017, Executive Order, which permanently bans Syrian refugees from emigrating to the United States, temporarily bans nationals of seven countries (including permanent legal residents and visa-holders), and suspends all applications to the United States refugee program (even as to vetted entrants currently in transit). Plaintiffs are concerned and alarmed United States citizens who wish to join the growing chorus of voices expressing opposition to the Executive Order. To do so, they wish to stand in silent protest at the Jeppesen Terminal within Denver International Airport.

Plaintiffs did just this on January 29, 2017, standing in silent protest of the Executive Order outside of the secure Customs and Border Protection (hereinafter “CBP”) screening area within Jeppesen Terminal. Almost immediately, Plaintiffs were threatened with arrest by Denver Police Department Sergeant Virginia Quinones for standing silently and holding signs opposing the Executive Order, despite that fact that the Jeppesen Terminal has previously been used for expressive activity (and that protesters at more than ten major airports nationwide have protested peacefully without major disruption or legal restriction). While silently displaying their signs, Plaintiffs were in the plaza within the Jeppesen Terminal and positioned significantly behind the railing, which demarcates where those waiting for loved ones are permitted to stand, in the open plaza outside of the secure CBP screening area at the Jeppesen Terminal. Plaintiffs did not impede the right of way of any passengers hustling to catch flights at the last moment. They simply stood with placards showing their distaste for the Executive Order and the man who executed it.

Even though Plaintiffs were simply engaged in peaceful First Amendment protected expression, they were threatened with arrest. Sergeant Quinones informed Plaintiffs that, in order to stand silently with political signs, they would need a permit. Without a permit, Sergeant Quinones stated, all “First Amendment expression” at the Denver International Airport was banned.

This was not the first time since the enactment of the Executive Order that the Denver Police Department threatened individuals with arrest for engaging in First Amendment protected activity in Jeppesen Terminal. On January 28, 2016, a protest was held in the plaza of Jeppesen Terminal. During the protest, Denver Police Commander Antonio Lopez instructed multiple individuals, including State Representative Joseph Salazar and representatives from the ACLU of Colorado, that all “First Amendment expression” was banned at Denver International Airport without a permit. See Exhibit 1, January 28, 2017, Video 1; Exhibit 2, January 28, 2017, Video 2. The protesters had, in fact, applied for a permit earlier that day. However, it had not been granted because they had not done so seven days in advance of the protest in compliance with Denver International Airport regulations. Although no arrests were ultimately made, protesters were threatened numerous times by Commander Lopez, and other officers, with arrest.

The Denver International Airport regulation that both Sergeant Quinones and Commander Lopez relied upon in instructing Plaintiffs, and others, that Denver International Airport bans all “First Amendment expression” without a permit is DENVER INTERNATIONAL AIRPORT REGULATION 50 (hereinafter “Regulation 50”). Regulation 50 states that “no person or organization shall leaflet, conduct surveys, display signs, gather signatures, solicit funds, or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes, or in connection with a labor dispute, except pursuant to, and in compliance with, a permit for such activity issued by the CEO or his or her designee.” DENVER INTERNATIONAL AIRPORT REGULATION 50.03. In order to obtain a permit, an individual must “complete a permit application and submit it during regular business hours, at least seven (7) days prior to the commencement of the activity for which the permit is sought[.]” DENVER INTERNATIONAL AIRPORT REGULATION 50.04-1.

Plaintiffs wish to return to Denver International Airport to protest the Executive Order, but are reasonably frightened of arrest and, absent action by this Court, must choose between lawfully exercising their First Amendment right and being subject to arrest and/or prosecution.

Plaintiffs ask that this Court enter an injunction prohibiting their arrest for standing in peaceful protest within Jeppesen Terminal and invalidating Regulation 50 as violative of the First and Fourteenth Amendments to the United States Constitution.

2. Factual Background

All statements of fact set forth in the simultaneously filed Complaint are hereby incorporated into this Brief as though set forth fully herein.

3. Argument

3.1 The standard for issuance of a preliminary injunction.

When seeking a preliminary injunction, a plaintiff must establish that (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm; (3) the balance of equities tips in his favor; and (4) that an injunction is in the public interest. Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008); see also ACLU v. Johnson, 194 F.3d 1149, 1155 (10th Cir. 1999).

The Tenth Circuit has modified the preliminary injunction test when the moving party demonstrates that the second, third, and fourth factors “tip strongly” in its favor. See Oklahoma ex rel. Okla. Tax Comm’n v. Int’l Registration Plan, Inc., 455 F.3d 1107, 1113 (10th Cir. 2006); see also 820 F.3d 1113, n.5 (10th Cir. 2016). “In such situations, the moving party may meet the requirement for showing success on the merits by showing that questions going to the merits are so serious, substantial, difficult, and doubtful as to make the issue ripe for litigation and deserving of more deliberate investigation.” Id. (internal quotation marks omitted). Moreover, this “fair chance of prevailing” test is appropriate in this case because Plaintiffs are challenging a policy, not a statue or ordinance. See Planned Parenthood Minn, N.D., & S.D. v. Rounds, 530 F.3d 724, 732 (9th Cir. 2008) (“[C]ourts should… apply the familiar ‘fair chance of prevailing’ test where a preliminary injunction is sought to enjoin something other than government action based on presumptively reasoned democratic processes.”).

Under either standard, Plaintiffs are able to demonstrate that the issuance of a preliminary injunction is appropriate in this matter.

3.3 Regulation 50 implicates Plaintiffs’ First Amendment rights. 1

When the government regulates the exercise of First Amendment rights, the burden is on the proponent of the restriction to establish its constitutionality. Phelps-Roper v. Koster, 713 F.3d 942, 949 (8th Cir. 2013). Moreover, when assessing the preliminary injunction factors in First Amendment cases, “the likelihood of success will often be the determinative factor.” Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1145 (10th Cir. 2013). This is because “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably, constitutes irreparable injury,” Heideman v. Salt Lake City, 348 F.3d 1182, 1190 (10th Cir. 2003), and it is invariably in the public interest to protect an individual’s First Amendment rights. See Homans v. City of Albuquerque, 264 F.3d 1240, 1244 (10th Cir. 2001) (noting that “the public interest is better served” by protecting First Amendment rights).

[NOTE 1. It is important to note that facial challenges to government policies and statutes, when based on First and Fourteenth Amendment grounds, are not disfavored. See United States v. Stevens, 559 U.S. 460, 473 (2010); City of Chicago v. Morales, 527 U.S. 41 (1999).]

3.4 Plaintiffs are likely to succeed on the merits.

Plaintiffs are likely to succeed on the merits because Regulation 50 violates the Free Speech Clause of the First Amendment and the Due Process Clause of the Fourteenth Amendment.

3.4(a) Plaintiffs engaged, and wish to engage, in speech on a matter of public concern.

Plaintiffs’ speech is at the core of the First Amendment’s protection because it deals with a matter of public concern. “Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.” Snyder v. Phelps, 562 U.S. 443, 453 (2011) (internal quotation marks and citation omitted). “Speech on matters of public concern is at the heart of the First Amendment’s protection.” Id. at 451-52 (alterations and quotation marks omitted). “The First Amendment reflects ‘a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.’” Id. at 452 (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)). Plaintiffs wish to engage in expression about President Donald Trump’s January 27, 2017, Executive Order, a topic that has generated nearly unprecedented debate and dissent. See Adrienne Mahsa Varkiani, Here’s Your List of All the Protests Happening Against the Muslim Ban, THINK PROGRESS (Jan. 28, 2017), https://thinkprogress.org/muslim-ban-protests-344f6e66022e#.ft1oznfv4 (compiling list of direct actions planned in response to President Trump’s January 27, 2017, Executive Order). Thus, Plaintiffs’ speech “‘occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.’” Snyder, 562 U.S. at 452 (quoting Connick v. Myers, 461 U.S. 138, 145 (1983)).

3.4(b) Regulation 50 acts as a prior restraint.

The restriction at issue in this matter is a prior restraint. “The term prior restraint is used ‘to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.’” Alexander v. United States, 509 U.S. 544, 550 (1993) (quoting M. Nimmer, Nimmer on Freedom of Speech § 4.03, p. 4–14 (1984)). Regulation 50 is in an administrative order that forbids future communication and bases the ability to communicate in the future on the discretion of an administrative official. See DENVER INTERNATIONAL AIRPORT REGULATION 50.03 (“no person or organization shall leaflet, conduct surveys, display signs, gather signatures, solicit funds, or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes, or in connection with a labor dispute, except pursuant to, and in compliance with, a permit for such activity issued by the CEO or his or her designee.” (emphasis added)). It is a prior restraint.

The burden of proving a prior restraint is permissible is particularly steep. The Supreme Court has repeatedly held that “[a]ny system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963). For the reasons outlined infra, Defendants cannot meet this especially significant burden.

3.4(c) Jeppesen Terminal, outside of the passenger security zones, is a traditional public forum.

The Supreme Court has not definitively decided whether airport terminals, including Jeppesen Terminal, are public forums. In Lee v. International Society for Krishna Consciousness, Inc., 505 U.S. 830 (1992) (hereinafter “Lee I”), issued the same day as International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992) (hereinafter “Lee II”), the Supreme Court struck down a total ban on distribution of literature in airports. In Lee I, the Court issued a one sentence per curiam opinion, which affirmed the Second Circuit for the reasons expressed by Justice O’Connor, Justice Kennedy, and Justice Souter in Lee II. See Lee I, 505 U.S. at 831. Justice Kennedy and Justice Souter’s opinions in Lee II found that “airport corridors and shopping areas outside of the passenger security zones… are public forums, and speech in those places is entitled to protection against all government regulation inconsistent with public forum principles.” Lee II, 505 U.S. at 693 (Kennedy, J., concurring in the judgment); but see Lee II, 505 U.S. at 683 (“”[W]e think that neither by tradition nor purpose can the terminals be described as satisfying the standards we have previously set out for identifying a public forum.”).

Therefore, Plaintiffs ask this Court to find the area of Jeppesen Terminal outside of the passenger security zones to be a public forum. The historical use of the Jeppesen Terminal’s plazas and other areas outside of the passenger security zones (including the area outside of the secure CBP screening area) for political speech (particularly, the history of welcoming of American military personnel home from service, discussion between passengers of matters of public concern, and display of clothing advocating for political views and ideals) indicates that it is a public forum. See First Unitarian Church of Salt Lake City v. Salt Lake City Corp., 308 F.3d 1114, 1130 (10th Cir. 2002) (“Where courts have considered the traditional use of publicly accessible property for speech, they have refused to attribute legal significance to an historical absence of speech activities where that non-speech history was created by the very restrictions at issue in the case.”). Further, that the Jeppesen Terminal is free and open to the public (outside of the passenger security zones), illustrates that it is a public forum. See, e.g., Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 676 (1998); Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 800, 805, 809 (1985). Finally, Jeppesen Terminal retains characteristics similar to parks: it has large plazas lined with benches, it is surrounded by businesses which are open to the public, and it has dedicated walkways, similar to sidewalks, indicating that it is a public forum. See e.g., Frisby v. Schultz, 487 U.S. 474, 480-481 (1988); United States v. Grace, 461 U.S. 171, 177 (1983). Further, the Supreme Court has not strictly limited the public forum category to streets, sidewalks, and parks. See, e.g., Se. Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975) (finding leased municipal theater is a public forum); Heffron v. Int’l Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981) (finding state fair is a public forum); Edwards v. South Carolina, 372 U.S. 229 (1963) (finding grounds of state capitol are a traditional public forum). Even if the City claims that it has never intended for Jeppesen Terminal to be a public forum, this is not dispositive. See Lee, 505 U.S. at 830 (government policy prohibiting distribution of literature at airport on property struck down); Cornelius, 473 U.S. at 805 (government’s decision to limit access is not itself dispositive). Plaintiffs’ ask that this Court find Jeppesen Terminal, outside of the passenger security zones, a traditional public forum.

Since Jeppesen Terminal is a traditional public forum, any restriction on Plaintiffs’ speech must be content-neutral and narrowly tailored to a compelling government interest. Regulation 50 fails at both.

3.4(d) Regulation 50 is content-based.

Regulation 50 is a content-based restriction of expression. Although the Supreme Court has long held that content-based restrictions elicit strict scrutiny, see, e.g., Carey v. Brown, 447 U.S. 455 (1980), lower courts diverged on the meaning of “content-based” until Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015). 2 Reed clarified that a restriction is content based simply if it draws distinctions “based on the message a speaker conveys.” 135 S. Ct. at 2227. Reed is clear that even “subtle” distinctions that define regulated expression “by its function or purpose . . . are distinctions based on the message a speaker conveys, and therefore, are subject to strict scrutiny.” Id. This accords with Texas v. Johnson, which held that “the emotive impact of speech on its audience is not a secondary effect unrelated to the content of the expression itself.” 491 U.S. 491 U.S. 297, 412 (1989) (internal quotations omitted).

[NOTE 2. Reed involved a municipal “sign code” that regulated signs differently based on the kind of message they conveyed (such as “ideological,” “political,” or “temporary directional”). 135 S. Ct. at 2224-25. The Court rejected the city’s argument that a law had to discriminate against certain viewpoints in order to be a content-based restriction. Id. at 2229.]

Regulation 50 is content-based on its face. It distinguishes between content and requires that an official determine the content of the speaker’s message when enforcing its proscriptions. Reed, 135 S. Ct. at 2227; see DENVER INTERNATIONAL AIRPORT REGULATION 50.03 (“No person or organization shall leaflet, conduct surveys, display signs, gather signatures, solicit funds, or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes, or in connection with a labor dispute[.]” (emphasis added)). The distinctions drawn by Regulation 50 make it a facially content-based restriction on expression that must elicit “the most exacting scrutiny.” Johnson, 491 U.S. at 412; Reed, 135 S. Ct. at 2227.

3.4(e) Regulation 50 is not narrowly tailored to serve a compelling government interest.

As a facially content-based restriction of expression at traditional public fora, Regulation 50 is presumptively unconstitutional unless Defendant “prove[s] that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.” Reed, 135 St. Ct. at 2231; accord Johnson, 491 U.S. at 412.

“A statute is narrowly tailored if it targets and eliminates no more than the exact source of the ‘evil’ it seeks to remedy.” Frisby v. Schultz, 487 U.S. 474, 485 (1988) (citation omitted). Regulation 50 reaches more speech than that which would impair the security of the airport or ensure that passengers are not unduly encumbered. In fact, it completely bans all “First Amendment expression.” “A complete ban can be narrowly tailored, but only if each activity within the proscription’s scope is an appropriately targeted evil.” Id.. Regulation 50 is not such a ban. For instance, Plaintiffs’ expression does nothing to jeopardize security at Denver International Airport or to inhibit the free flow of passengers through the airport.

Further, any argument that Plaintiffs can engage in expressive activity in another location lacks merit, as the Supreme Court has held that the First Amendment is violated when one specific location or audience, when important to the speaker, is foreclosed. See McCullen v. Coakley, 134 S. Ct. 2518, 2536 (2014); Schenck v. Pro-Choice Network, 519 U.S. 357, 377 (1997) (invalidating a “floating” buffer zone around people entering an abortion clinic partly on the ground that it prevented protestors “from communicating a message from a normal conversational distance or handing leaflets to people entering or leaving the clinics who are walking on the public sidewalks”); Schneider v. New Jersey, 308 U.S. 147, 163 (1939) (invalidating anti-handbilling ordinances even though “their operation is limited to streets and alleys and leaves persons free to distribute printed matter in other public places”). Regulation 50 lacks the narrow tailoring necessary to survive First Amendment strict scrutiny analysis.

3.4(f) Regulation 50 violates the First Amendment even if this Court determines Jeppesen Terminal is a nonpublic forum.

Regulation 50 bans all “First Amendment expression” absent a permit; it is unconstitutional even when analyzed under the lower standard of scrutiny applied by courts to First Amendment political speech in a nonpublic forum. In Board of Airport Commissioners of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569 (1987), the Supreme Court considered whether a resolution restricting free speech in the airport was constitutional. The resolution at issue stated that the airport “is not open for First Amendment activities by any individual and/or entity.” Id. at 574. Although the Court did not explicitly find that the airport was a nonpublic forum, it did hold that the resolution restricting speech in the airport was facially unreasonable, even if the airport was a nonpublic forum. Id. at 573. The Court noted that enforcing the resolution would prohibit “talking and reading, or the wearing of campaign buttons or symbolic clothing.” Id. at 574. The Court also noted, “[m]uch nondisruptive speech–such as the wearing of a T-shirt or button that contains a political message–may not be ‘airport related’ but is still protected speech even in a nonpublic forum.” Id. at 575 (citing Cohen v. California, 403 U.S. 15 (1971) (holding that wearing of jacket with offensive language in a courthouse was a form of nondisruptive expression that was protected by the First Amendment)). Thus, although specific conduct was not at issue in the Jews for Jesus decision, the Court nonetheless implicitly held that non-disruptive speech is protected by the First Amendment in nonpublic fora and that restrictions that encumber non-disruptive expression are unreasonable.

In Lee II, Justice O’Connor set forth the test for determining reasonableness in the context of nonpublic fora. 505 U.S. at 687 (O’Connor, J., concurring). 3 She stated, ”[t]he reasonableness of the Government’s restriction [on speech in a nonpublic forum] must be assessed in light of the purpose of the forum and all the surrounding circumstances.” Id. (O’Connor, J., concurring) (quoting Cornelius, 473 U.S. at 809). However, Justice O’Connor noted that while “[o]rdinarily . . . we have . . . been confronted with cases where the fora at issue were discrete, single-purpose facilities,” airports present a different analysis because they are multipurpose facilities. Id. at 688 (O’Connor, J., concurring) (citations omitted). She determined airports to be multipurpose facilities because

the Port Authority [has] chosen not to limit access to the airports under its control, [and] has created a huge complex open to travelers and nontravelers alike. The airports house restaurants, cafeterias, snack bars, coffee shops, cocktail lounges, post offices, banks, telegraph offices, clothing shops, drug stores, food stores, nurseries, barber shops, currency exchanges, art exhibits, commercial advertising displays, bookstores, newsstands, dental offices and private clubs.

Id. This led to the finding that “[t]he reasonableness inquiry, therefore, is not whether the restrictions on speech are consistent with preserving the property for air travel, but whether they are reasonably related to maintaining the multipurpose environment that the Port Authority has deliberately created.” Id. at 689. A complete ban on First Amendment activity at the Jeppesen Terminal, absent a permit that must be obtained by providing seven days advance notice, is not a reasonable restriction. Regulation 50 does not comport with Justice O’Connor’s conclusion that airports are more than simply places where air travel occurs.

[NOTE 3. It is important to note that Lee involved a plurality opinion, joined by Justice O’Connor. Therefore, Justice O’Connor’s concurrence is the “narrowest grounds” that justify the Court’s result and her concurrence holds substantial precedential weight.]

Moreover, Justice O’Connor distinguished between solicitations (which the Supreme Court found could be reasonably restricted) and distributing leaflets (which the Supreme Court found could not be reasonably restricted) in the airport:

[L]eafleting does not entail the same kinds of problems presented by face-to-face solicitation. Specifically, “one need not ponder the contents of a leaflet or pamphlet in order mechanically to take it out of someone’s hand . . . . The distribution of literature does not require that the recipient stop in order to receive the message the speaker wishes to convey; instead the recipient is free to read the message at a later time.”

Id. at 690 (quoting United States v. Kokinda, 497 U.S. 720, 734 (1990)).

Thus, the Court held in Lee II that prohibiting solicitation in a nonpublic forum is not unreasonable, but that prohibiting the distribution of leaflets and other literature at a nonpublic forum is unreasonable. See also Lee, 505 U.S. at 830 (decided the same day as Lee II and striking down a prohibition on the distribution of leaflets and other literature at La Guardia, John F. Kennedy, and Newark International airports) (per curiam). Circuit courts have also recognized the inherent right to distribute paper and other information in nonpublic fora. Following Lee I and Lee II, two circuit courts have held that airports, as nonpublic fora, could not preclude newspaper publishers from placing newsracks in airport terminals. See Jacobsen v. City of Rapid City, South Dakota, 128 F.3d 660 (8th Cir. 1997); Multimedia Publishing Co. of South Carolina, Inc. v. Greenville-Spartanburg Airport Dist., 991 F.2d 154 (4th Cir. 1993). To the extent that the airports were concerned about safety or the impediment of traffic flow, the courts held that the airport may impose reasonable restrictions, but they could not enforce an outright ban on the newspaper racks. See Jacobsen, 128 F.3d at 660; Multimedia Publishing Co. of South Carolina, Inc., 991 F.2d at 154.

Denver, through Regulation 50, has banned all “First Amendment expression” including leafleting and protests. In fact, Plaintiffs expression is arguably less intrusive and disruptive to air travel than the form of expression, namely leafletting, that the Court held could not be reasonably restricted in the areas of an airport that precede the security screening area. It is clear from Lee I, Lee II, and Jews for Jesus that Denver cannot ban all “First Amendment expression” at the Jeppesen Terminal.

3.4(f)(1) Independently, the viewpoint-based prohibition of Plaintiffs’ speech, based on Regulation 50, violates the First Amendment.

Even if Jeppesen Terminal is a nonpublic forum, “this does not mean the government has unbridled control over speech, . . . for it is axiomatic that ‘the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others.” Summum v. Callaghan, 130 F.3d 906, 916 (10th Cir. 1997) (quoting Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 394, (1993)). “Restrictions on speech in nonpublic fora must be viewpoint neutral[.]” Warren v. Fairfax Cty., 196 F.3d 186, 193 (4th Cir. 1999) (citing Cornelius, 473 at 809). Defendants’ restriction of Plaintiffs’ speech, under the guise of Regulation 50, discriminates on the basis of viewpoint. Individuals walk through Denver International Airport with political messages and slogans on their shirts and luggage and discuss politics on a daily basis. Counsel for Plaintiffs has worn political shirts while traveling through Denver International Airport and discussed modern politics with fellow passengers on many occasions. However, no other individual, to Plaintiffs or Plaintiffs’ counsel’s knowledge, has been threatened with arrest for engaging in this political speech. Nor has any individual been arrested for displaying pro-President Trump messages, for example a red hat that reads “Make America Great Again.” Only Plaintiffs’ expressive activity against the President’s Executive Order, and others advocating similarly, has been threatened with arrest. Regulation 50 is being enforced as a clearly view-point based restriction. Defendants’ application of Regulation 50 to Plaintiffs speech is view-point based and violates the First Amendment.

3.4(g) The seven day advance notice requirement for obtaining a permit is not a reasonable restriction.

Notice periods restrict spontaneous free expression and assembly rights safeguarded in the First Amendment. Plaintiffs, like many others throughout history, wish to engage in First Amendment expression in quick response to topical events. While even in such time-sensitive situations, a municipality may require some short period of advance notice so as to allow it time to take measures to provide for necessary traffic control and other aspects of public safety, the period can be no longer than necessary to meet the City’s urgent and essential needs of this type. See American-Arab Anti-Discrimination Comm. v. City of Dearborn, 418 F.3d 600, 605 (6th Cir. 2005) (“Any notice period is a substantial inhibition on speech.”).

Advance notice requirements that have been upheld by courts have most generally been less than a week. See, e.g., A Quaker Action Group v. Morton, 516 F.2d 717, 735 (D.C. Cir. 1975) (two-day advance notice requirement is reasonable for use of National Park areas in District of Columbia for public gatherings); Powe v. Miles, 407 F.2d 73, 84 (2d Cir. 1968) (two-day advance notice requirement for parade is reasonable); Progressive Labor Party v. Lloyd, 487 F. Supp. 1054, 1059 (D. Mass. 1980) (three-day advance filing requirement for parade permit approved in context of broader challenge); Jackson v. Dobbs, 329 F. Supp. 287, 292 (N.D. Ga. 1970) (marchers must obtain permit by 4 p.m. on day before the march), aff’d, 442 F.2d 928 (5th Cir. 1971). Lengthy advance filing requirements for parade permits, such as the seven day advance notice requirement imposed by Regulation 50, have been struck down as violating the First Amendment. See American-Arab Anti-Discrimination Comm., 418 F.3d at 605-07 (holding that provision requiring thirty days’ notice is overbroad and is not saved by an unwritten policy of waiving the provision); NAACP, W. Region v. City of Richmond, 743 F.2d 1346, 1357 (9th Cir. 1984) (“[A]ll available precedent suggests that a 20-day advance notice requirement is overbroad.”). Even an advance filing requirement of five days has been held too long to comport with the First Amendment. See Douglas v. Brownell, 88 F.3d 1511, 1523-24 (8th Cir. 1996) (city’s asserted goals of protecting pedestrian and vehicular traffic and minimizing inconvenience to the public does not justify five-day advance filing requirement for any parade, defined as ten or more persons).

It is clear that, in the case at bar, a permit requirement of seven days advance notice is not a reasonable restriction of Plaintiffs’ First Amendment rights. Plaintiffs wish to engage in timely, direct action against, what they perceive as, a tyrannical and unconstitutional exercise of the executive power. If Plaintiffs were to have applied for a permit at the exact moment President Trump signed the Executive Order, they would still have been prevented from engaging in First Amendment activity on January 29, 2017. In direct action, like in most things, timing is everything. As evidenced by myriad protests that occurred across the nation’s airports, which were accompanied by no violence or destruction of property and did not otherwise jeopardize security, accommodation of protest at the Jeppesen Terminal is reasonable. Such a lengthy approval period, with no exceptions for spontaneous, peaceful protests, violates the First Amendment. See Church of the American Knights of the Ku Klux Klan v. City of Gary, 334 F.3d 676, 682 (7th Cir. 2003) (noting that “the length of the required period of advance notice is critical to its reasonableness; and given … that political demonstrations are often engendered by topical events, a very long period of advance notice with no exception for spontaneous demonstrations unreasonably limits free speech” (emphasis added)).

3.4(h) Regulation 50 is overbroad in violation of the First Amendment.

“[A] law may be invalidated as overbroad if ‘a substantial number of its applications are unconstitutional, judged in relation to the [ordinance]’s plainly legitimate sweep.’” United States v. Stevens, 559 U.S. 460, 473 (2010) (quoting Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 n.6 (2008)). An overbroad statute may be challenged on its face even though a more narrowly drawn statute would be valid as applied to the party in the case before it. City Council of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 798 (1984) (“[B]roadly written statutes may have such a deterrent effect on free expression that they should be subject to challenge even by a party whose own conduct may be unprotected.”). The Supreme Court “has repeatedly held that a government purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.” NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 307 (1964); see also Grayned v. City of Rockford, 408 U.S. 109, 114-15 (1972) (“The crucial question, then, is whether the ordinance sweeps within its prohibitions what may not be punished under the First and Fourteenth Amendments.”). Courts have “provided this expansive remedy out of concern that the threat of enforcement of an overbroad law may deter or ‘chill’ constitutionally protected speech—especially when the overbroad statute imposes criminal sanctions.” Virginia v. Hicks, 539 U.S. 113, 119 (2003).

Determining whether a law is substantially overbroad requires a two-step analysis. First, a court must “construe the challenged [law]; it is impossible to determine whether a [law] reaches too far without first knowing what the [law] covers.” United States v. Williams, 553 U.S. 285, 293 (2008). Second, based on the first step, a court must determine whether the law “criminalizes a substantial amount of protected expressive activity.” Id. at 297.

Regulation 50 provides that “no person or organization shall leaflet, conduct surveys, display signs, gather signatures, solicit funds, or engage in other speech related activity at Denver International Airport for religious, charitable, or political purposes, or in connection with a labor dispute, except pursuant to, and in compliance with, a permit for such activity issued by the CEO or his or her designee.” Those tasked with enforcing Regulation 50, have stated that it bans all “First Amendment expression.” See Exhibit 1, January 28, 2017, Video 1; Exhibit 2, January 28, 2017, Video 2.

A complete prohibition on First Amendment expression and related activity proscripts a substantial amount of protected expressive activity. See Jews for Jesus, 482 U.S. at 569; Lee, 505 U.S. at 830. It prohibits face-to-face conversations and wearing clothing intended to convey a message, along with leafleting and other traditional First Amendment activity, all of which protected expression. Regulation 50’s overbreadth is stark and violates the guarantees of the First Amendment.

3.4(i) Regulation 50 is unconstitutionally vague.

“A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required.” F.C.C. v. Fox Television Stations, Inc., 132 S. Ct. 2307, 2317 (2012). “A law’s failure to provide fair notice of what constitutes a violation is a special concern where laws ‘abut[ ] upon sensitive areas of basic First Amendment freedoms’ because it ‘inhibit[s] the exercise’ of freedom of expression and ‘inevitably lead[s] citizens to steer far wider of the unlawful zone … than if the boundaries of the forbidden areas were clearly marked.’” Stahl v. City of St. Louis, 687 F.3d 1038, 1041 (8th Cir. 2012) (quoting Grayned, 408 U.S. at 109). For this reason, a stringent vagueness test applies to a law that interferes with the right of free speech. Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982). “Where a statute’s literal scope, unaided by a narrowing state court interpretation, is capable of reaching expression sheltered by the First Amendment, the doctrine demands a greater degree of specificity than in other contexts.” Smith v. Goguen, 415 U.S. 566, 573 (1974).

Regulation 50 is vague, and therefore unconstitutional, for two separate reasons. First, Regulation 50 fails “to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits.” City of Chicago v. Morales, 527 U.S. 41, 56 (1999). A law is unconstitutionally vague where it “does not provide people with fair notice of when their actions are likely to become unlawful.” Stahl, 687 F.3d at 1041. Because violators of Regulation 50 are subject to criminal sanction, the strictest vagueness test applies. See Reno v. ACLU, 521 U.S. 844, 872 (1997) (recognizing criminal sanctions might “cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images” which, together with the “‘risk of discriminatory enforcement’ of vague regulations, poses greater First Amendment concerns than those implicated by [a] civil regulation[.]”). Whether expressive activity will be deemed “First Amendment expression” in the Jeppesen Terminal is not predictable. Plaintiffs have reasonably refrained from protected speech for fear that someone might consider their expression to be in violation of the regulation. However, officials have failed to enforce the regulation against many others who are seemingly in violation, including those discussing politics with other passengers, wearing clothing meant to make some social or political statement, limo drivers soliciting passengers, and those welcoming home military veterans. Although there might be times when a speaker knows, or should know, that certain speech will violate the statute, in many situations such an effect is difficult or impossible to predict. See Stahl, 687 F.3d at 1041 (finding vagueness because even “[t]hough there are certainly times when a speaker knows or should know that certain speech or activities likely will cause a traffic problem, in many situations such an effect is difficult or impossible to predict.”). Regulation 50 fails to give fair notice and therefore violates the mandates of the Fourteenth Amendment.

Regulation 50 is also unconstitutionally broad because it “authorize[s] and even encourage[s] arbitrary and discriminatory enforcement.” Morales, 527 U.S. at 56. Regulation 50’s terms allow law enforcement officials wide discretion to decide whether any given speech is prohibited and arrest the speaker. “Such a statute does not provide for government by clearly defined laws, but rather for government by the moment-to-moment opinions of a policeman on his beat.” Cox v. Louisiana, 379 U.S. 536, 579 (1965); see Norton v. Discipline Comm. of E. Tenn. State Univ., 399 U.S. 906, 909 (1970) (“Officials of public universities . . . are no more free than policemen or prosecutors to punish speech because it is rude or disrespectful, or because it causes in them vague apprehensions, or because for any other reason they do not like its content.”).

Officers have been observed enforcing Regulation 50 against those protesting President Trump’s Executive Order, but not against those wearing other political shirts or buttons. Officers have not enforced the regulation against other political expression, including those standing in support of military veterans returning home from combat. Seemingly, the only ones who have been subject to this regulation are those who are specifically speaking against President Trump’s Executive Order. “The most meaningful aspect of the vagueness doctrine is . . . the requirement that a legislature establish minimal guidelines to govern law enforcement.” Smith, 415 U.S. at 574. Because the terms allow a police officer leeway to determine that expressive conduct is lawful, or not, they are vague. Regulation 50 permits “a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.” Kolender v. Lawson, 461 U.S. 352, 358 (1983) (internal citations omitted). It is unconstitutional.

3.5 Absent an injunction, Plaintiffs will suffer irreparable harm.

“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976); see also Verlo v. Martinez, 820 F.3d 1113, 1127 (10th Cir. 2016); Awad v. Ziriax, 670 F.3d 1111, 1131 (10th Cir. 2012) (“[W]hen an alleged constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.”); Verlo v. Martinez, 820 F.3d 1113, 1127 (10th Cir. 2016).

Moreover, Plaintiffs’ expression is a time-sensitive response to a nearly unprecedented action by our federal government. But see C. Norwood, A Twitter Tribute to Holocaust Victims, THE ATLANTIC (January 27, 2017), https://www.theatlantic.com/politics/archive/2017/01/jewish-refugees-in-the-us/514742/ (describing the rebuff of refugees fleeing Nazi Germany in 1939, many of whom would be murdered during the Holocaust); Korematsu v. United States, 323 U.S. 214 (1944). Delaying Plaintiffs’ protest, and discouraging Plaintiffs and others from demonstrating, detracts from its importance and provides a false appearance that Denver is not like other cities of all sizes across the country that have mustered sizeable protests at their airports. Denver has held itself out as a “sanctuary city.” Jon Murray, Mayor Hancock says he welcomes “sanctuary city” title if it means Denver supports immigrants and refugees, The DENVER POST (January 30, 2017), http://www.denverpost.com/2017/01/30/mayor-hancock-welcomes-sanctuary-city-title-denver-supports-immigrants-refugees/. For Colorado’s citizens to seemingly show lackluster support in this time of trial would not only irreparable harm Plaintiffs, and others, but it would go against the public interest.

3.6 The balance of the equities weighs in favor of granting a preliminary injunction.

“The balance of equities… generally favors the constitutionally-protected freedom of expression.” Phelps-Roper v. Nixon, 545 F.3d 685, 690 (8th Cir. 2008) overruled on other grounds by Phelps-Roper v. City of Manchester, Mo., 697 F.3d 678 (8th Cir. 2012). Courts have consistently held that when First Amendment freedoms are threatened, the balance of the equities weighs in the Plaintiffs’ favor. See Verlo, 820 F.3d at 1127; Awad, 670 F.3d at 1132. There is no harm to Defendant, who has no significant interest in the enforcement of Regulation 50 since it is likely unconstitutional.

3.7 A preliminary injunction is in the public interest.

“[I]t is always in the public interest to prevent the violation of a party’s constitutional rights.” Awad, 670 F.3d at 1133 (internal quotation marks omitted); accord Verlo, 820 F.3d at 1127; Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221, 1237 (10th Cir. 2005) (“Vindicating First Amendment freedoms is clearly in the public interest.”); Cate v. Oldham, 707 F.2d 1176, 1190 (10th Cir. 1983) (noting “[t]he strong public interest in protecting First Amendment values”).

4. Conclusion

For the reasons stated, Plaintiffs respectfully request that this Court grant their Motion for a Preliminary Injunction, enjoin enforcement of Regulation 50, and prohibit Defendants from arresting Plaintiffs and all others similarly situated when they engage in First Amendment protected activity within Jeppesen Terminal.

Dated this 6th day of February, 2017

KILLMER, LANE & NEWMAN, LLP
s/ Andy McNulty
__________________________

David Lane
Andy McNulty
1543 Champa Street, Suite 400 Denver, CO 80202
Counsel for Plaintiffs

Crowdsourcing vigilante justice against mass-shooter Dylann Roof? Not for me.

Posted on August 4, 2016 by Eric Verlo

White supremacist mass-shooter Dylann Roof was brutalized by a fellow inmate of the Charleston County Jail and social media is applauding the news. Some are even trying to raise money for his attacker, Dwayne Stafford, who breached Roof’s protective custody area, unquestionably with inside help. Do you see nothing wrong with encouraging extrajudicial retribution when the justice system fails to give you blood? This is the essence of what drove lynch mobs to storm jails and courthouses. Dylann Roof, like George Zimmerman, and fellow murderous racists, are products of systemic racism, they’re not driving it. They should bear the full brunt of legal remedies, no more. The people’s fight against racism and violence is against the system. If we are wishing for equitable treatment of white and black suspects under the law, let’s cheerlead for more humane treatment for all, not equitable brutality. Let’s propose that all suspects detained by police be served burgers instead of lead bullets. We don’t have to like Dylann Roof, very likely schitzophrenic, but while Roof is in the custody and at the mercy of our court system he is entrusted to our care, to be treated as we would wish to be treated. I believe violence is a prerogative of individual human beings, a right measured by social contract. But where the machinery of law enforcement is concerned, I favor it be held to strict adherence. Someone punched George Zimmerman in the face for bragging about killing Trayvon Martin? I’m okay with that.

Modern Nat Turner insures Dallas cops cannot assail Black lives with impunity

Posted on July 9, 2016 by Eric Verlo

Was ANYBODY going to stop the unfettered lynching of people of color in America? Did President Obama ever deliver anything more than a eulogy? Few police officers are being convicted or even indicted. Videotaped killings of black men by lawmen have become so common, those disseminating the videos are being accused of harboring fetishes. People expressing offense online are being shamed for being clicktivists, though clearly the only fuels firing public outrage are the videos. Meanwhile Black Lives Matter spokespeople have become so jaded they ridicule the efficacy of street protests. And now everyone is condemning the lone direct action taker.

The killing of any human being is terrible, but the retaliatory killings of police in Dallas could have been prevented. Not by expecting minority communities to stomach further and unending extrajudicial assassinations, but by having police curb their racism and use of lethal force. Or of course by disbanding militarized police departments. Public officials can’t even broach that conversation. Do we expect the police state to dismantle itself?

Self-styled black revolutionary Micah Xavier Johnson, a typical PTSD-hardened Afghan vet, put “suicide by cop” to the service of his embattled community and avenged the deaths of Alton Sterling and Philando Castile. He didn’t shoot their actual killers, but he didn’t hit innocents either. Johnson targeted America’s systemic enforcers of inequity, hitting twelve police officers, five of whom have now died.

Let’s note those cops weren’t “protecting the first amendment rights” of a spontaneous protest of the Sterling and Castile murders, but were harassing and detering demonstrations. The officers could have chosen not to, and hopefully, their comrades in other cities, molesting other legal assemblies, may now choose to stand down, because now authoritarian bullying has come in the line of fire.

There is poetic justice for those who would decry “Blue Lives Matter”. If they’re going to pretend it, let them feel the oppressive threat of violence which black lives bear. For one evening, in a small corner of Dallas, Texas, police brutality faced a comeuppance.

For now Johnson’s act is being condemned as an atrocity, as a massacre even, though obviously his victims 1) met every standard of belligerent adversary, 2) were armed, and 3) outnumbered him. Let’s concede that Johnson is a credit to his military training. He confirms how our soldiers could so murderously rapage through our war zones against lesser equipped combatants. Johnson’s motive echoes that which provoked US atrocities overseas, seeking revenge against civilians, exacting collective punishment for deadly IEDs.

If we acknowledge the violence with which African Americans are oppressed, and the mendacity of its apologists and enablers, can we condemn violent resistance? International law accords oppressed peoples the human right to resist.

Slave rebellion leader Nat Turner is recognized today as a hero, but was exhaustively vilified in his day because he killed slave owners, indescriminate of old or young. Whites retaliated and killed many more blacks. More violence follwed from abolitionsists and Jayhawkers, all of it lamentable. But slavery didn’t end because we willed it.

Because this era’s history is written with erasers, our victors’ primary tool, Micah Johnson will probably never be praised for heroism.

Johnson will join fellow effaced cop-killer Christopher Dorner. A previous African American reservist vet who was immolated alive, killed instead of being apprehended, lest an investigation benefit from his testimony about why he could no longer bear LAPD corruption in 2013.

From Dorner’s “manifesto”, before Michael Brown, Ferguson and Baltimore:

“Those Caucasian officers who join South Bureau divisions (77th,SW,SE, an Harbor) with the sole intent to victimize minorities who are uneducated, and unaware of criminal law, civil law, and civil rights. You prefer the South bureau because a use of force/deadly force is likely and the individual you use UOF on will likely not report it. You are a high value target.

“Those Black officers in supervisory ranks and pay grades who stay in south bureau (even though you live in the valley or OC) for the sole intent of getting retribution toward subordinate caucasian officers for the pain and hostile work environment their elders inflicted on you as probationers (P-1?s) and novice P-2’s. You are a high value target.

You perpetuated the cycle of racism in the department as well. You breed a new generation of bigoted caucasian officer when you belittle them and treat them unfairly.

Mikah Johnson’s last words we only know through the spin of Dallas police, the same people who decided not to wait him out, nor to smoke him or gas him out from hiding in a public parking garage, but instead to send a robot with a bomb and M.O.V.E. his ass like every other black nationalist revolutionary.

No, you murdurous assholes, Johnson didn’t “want to kill all white people.” He wanted to kill white cops. Just like Dorner, he wasn’t a threat to the public, he was a threat to the police state. You cops ensured Mikah Johnson didn’t live to dictate “confessions” and you even obliterated his body like Osama bin Laden. Drawn and quartered essentially, to preclude memorializers being able to center on an idol to build a resistance.

You and I may grapple with what to think of Johnson’s personal rampage, but the state knew immediately his was the selfless heroism they fear most. As with bin Laden, they knew his apprehension must be terminal.

Lest I be misunderstood, I do not promote armed insurrection, sedition or murder. I cannot. But I will not condemn Micah Johnson.

I need not agrandize him either. Taken without his revolutionary ideology, Johnson was an ordinary mentally wounded veteran like many others. Homicidal vets with PTSD are at the core of our epidemic of police brutality. Our law enforcement teams are full of OIF and OEF soldiers who got their start shooting up cars at checkpoints and acting out racist genocide to their heart’s content.

It’s not a new problem, the US has always had active warzones feeding veterans into homelessness for those who couldn’t cope and filling government jobs for those who thrived. Beside policemanship, a very common job for discharged soldiers has always been the post office. Rembember the rampaging gunman problem we used to call “going postal?”

America’s racism problem may be transcended by a succession of church services, but class struggle is not a hearts and minds operation. Fascist rule and its army of the rich are not going to be wished away by militant nonviolence. That’s as likely as counting on the tooth fairy.

Worrying that acts like Johnson’s will provoke increased authoritarian repression is an expression of privilege provided by someone aclimated to a tolerable status quo, clearly a white perspective for whom black lives matter not enough.

Until all of us share the plight of the average Syrian refugee, trapped in our capitalist frontier war zones, none of us are shouldering an equitable burden of the police state.

That’s why it is more than black lives that matter. The middle class greivances of Occupy Wall Street are only a class removed from Black America’s suffering. We’re still talking about privileged Americans who support a grander racism that drives our global exploitation of all peoples.

I don’t have any faith that an arc of history bends toward justice in this corporate dark age. For my own sense of what’s right, it’s important to recognize Micah Johnson and Christopher Dorner for who they were, flawed, maybe very minor, aspiring Nat Turners, who wanted to strike against today’s slave masters and their brutal blue foremen.

The NAFTA Three Amigos are about as funny as their Hollywood namesakes

Posted on June 29, 2016 by Eric Verlo

Barack Obama, Justin Trudeau and Enrique Pena Nieto telling their despairing citizens not to fear free trade –Martin Short couldn’t get a bigger laugh! And I think we’ve got a litmus test for professional integrity. The free trade isn’t cut and dry, principly because it’s too big a lie. The TPP is today’s turbocharged shakedown model and up until just recently the media refused to talk about, and never critically. Trumpish isolationism is a buggaboo by which conservative supporters are being labeled racists protectionist xenophobes. The media can harp on these things and be half right, but the real litmus test for unmasking patronizing condescention is the BREXIT. When amigo leaders, pundits and now counter-culture gadflies on the Comedy Channel are mocking the movement that broke the EU, you can be certain their moral character is being laid bare for you, and it’s rubbish. Now Donald Trump is making statements that the facist media can only pretend are extreme. He wants to withdraw from the TPP and he wants to renegotiate NAFTA. The media have buried Trump’s seven point plan with the spin that he’s likened the TPP to “rape”. Apparently that’s hyperbole, though exactly how unlike rape is it? Don’t say it trivializes sexual violence if you won’t honestly report how free trade, debt, “austerity”, and corporate hegemony ravage democratic economies.

Denver charges against plaza occupier so bogus even court recorder objected.

Posted on June 21, 2016 by Eric Verlo

DENVER, COLORADO- Denver County Court Judge Beth Faragher says she’s never seen such a thing happen. Her courtroom audio recording device STOPPED RECORDING, at mid day, but it didn’t let on, and it was hours before somebody noticed. It was the defendant who noticed the machine’s erratic digital readout. An emergency IT specialist was sent to the courtroom. He confirmed that none of the trial had been recorded. The options were to repeat the testimony or declare a mistrial.

Eric Brandt is accused of interfering with the arrest of two fellow protesters who were being apprehended for felony menacy and assault on September 24, during the occupy encampment of the Lindsey Flanigan Courthouse Plaza last year. Judge Faragher has never seen such an electronic malfunction, but she probably can’t say the same for prosecutorial frame-ups. Denver’s machinations are so obvious and they’re not backing down from an arrest they engineered. Will the Denver goons be smart enough to pull it off? They can’t even fool their own RECORDING DEVICE. Unfortunately the human components of Denver’s injustice team are yet showing no embarassment for being party to this sham. Here’s how the city schemers are failing so far:

The trial today began with a defense motion to declare a mistrial, based on a DPD officer testifying that the plaza occupiers had a history of necessitating large police turnouts, implying protesters were violent where there was no record to support the inference. With the recording mishap, Judge Faragher has indicated she cannot but grant a mistrial if the defense motions for it. However Brandt and his attorney Sherry Deatch may not. Why? Because the prosecutors have not even finished with their first witness and he’s already destroyed the city’s case. Why start from scratch when the cat’s already out of the bag?

The city asserts that police were already on the scene, behind it actually, investigating a potential drug violation in progress on the plaza when they witnessed an altercation which necessitated their intervention. A lone visitor woke the sleeping protesters and they in turn ganged up on him. Though the police were outnumbered, they struggled to arrest two assailants and Eric “Fuck Cops” Brandt got in their way, vilating a Denver ordinance that forbids interfering with police.

The trouble is, the city’s first witness, arresting officer Sgt. Connover, testified to much more, and his cross-examination is not even complete. Already Connover described how officers were visiting the courthouse “control room” in the middle of the night, 2:30am, to study video evidence of illegal narcotics use. Lo and behold, a rukus errupts as campers wake to expel an intruder caught pilfering from people’s bags. Officer Conniver reported that officers eavesdropped on the live audio of the plaza being monitored by the security staff. They heard the activists confront the intruder about the thefts, ask for the return of their things and insist that the intruder leave. He would not leave and several attempts were made to drag him away, or to dissuade him from staying. Officers understood what was going on but watched until the expulsion efforts escalated.

According to Connover there were too few officers to act immediately, his team of six plus that many courthouse deputies were not enough for 15 sleepyhead activists. Connover relied on HALO cam footage to show the midnight’s events. It was an ackward angle unlike the camera feed he’d monitored that night, which showed much more. Connover admitted that DPD had collected the tape but couldn’t explain why it wasn’t produced in evidence, nor revealed to the defense under the rules of discovery. Because that angle would have showed the details of the scene, how many more officers there were in reality and how little violence the officers pretended to be apprehending. So little evidence in fact that the charges were dropped against the two original arrestees. Eric Brandt it turns out was right to berate the officers for arresting the wrong parties.

Brandt witnesses arrest of Matthew Lentz

Brandt protests the arrest of Matthew Lentz

Brandt informs officers they are arresting the wrong party

Brandt arrested, charged with interference

Lentz, Brandt and Brown arrested, provocateur released

Hillary may be the presumptive head of the US empire but Trump is its asshole

Posted on June 15, 2016 by Eric Verlo

Billionaire reality TV villain Donald Trump is bringing his presidential candidacy roadshow to Denver JULY 1ST. Like the rhetoric of the Westboro Baptist Church, Trump’s utterances don’t warrant rebuttal. But unlike the lone Fred Phelps family espousing their gutteral homophobia, The Donald has followers. Some see Trump as an underdog challenging the empire’s vetted candidate. Some may be provocateurs staining his campaign with violence. What is certain however is that popular enthusiasm for Trump echoes his hate speech and dumbfuckery. If zenophobic bigotry congeals into a white power movement, that’s the specter of fascism that begs a swift preemptive beatdown. Trump can tramp his celebration of brute ignorance wherever he wants, it’s a free country, but local communities need not welcome his fan base aping the white thug’s antisocial behavior.

Friday July 1. Western Conservative Summit, Colorado Conventional Center, Denver. Be there!

The History of Violent Protest in Colorado Springs, in a Nutshell.

Posted on March 14, 2016 by Eric Verlo

GET THIS. I heard a reverend-person yesterday lecturing newish activists about their need for nonviolence training, which she was volunteering to lead. She was also offering rubber wristbands for her graduates to wear at demonstrations, so that police could differentiate between protesters. She told us she’d ask officers to scrutinize those not wearing bands as being the potential troublemakers. This, she assured everyone, would make it more difficult for outside groups to waylay the action. I kid you not. And she’s a church leader praised locally as something of an activist! HA! That’s a RAT!

I recognized the Springs “outsider” buggaboo so I thought I’d relate where it came from in a little piece I’ll call The History of Violent Protest in Colorado Springs. Ready? It won’t take long.

So what violence have I seen in my fairly full-time participation over a dozen years, multiple wars and as many elections? ZERO. That’s right. I’ve seen a lot of brutal handling by police, but by the hands of protesters? Nothing.

Yep. The History of Violent Protest in Colorado Springs. The End.

For as much as local church leaders harp on nonviolence training, which includes, by the way, nonviolence bounderies that forbid even confrontational speech, you’d think they’d seen a need for it. They haven’t. For EVERY preacher and or disciple regurgitating nonviolence edicts, I’ve never seen ONE counterpart advocate for, nor commit, violence. It’s almost a laugh, if the practice wasn’t so damaging to public demonstrations. Colorado Springs street protests have been defanged to nothing, police needn’t bother to show up and they don’t. As a result, neither do protesters.

And it isn’t just that nonviolence dogma declaws the public beast. Religifying activism alienates intellectuals and atheists who woud prefer not to suffer the foolish god-justified claptrap. Monotheism is the engine which has always perpetuated privilege, enslavement, colonization and capitalism. Wtf.

Not satisfied to deputize citizens with the equivalent of TSA pre-boarding approval, clergy want to deprive their charges of the element of surprise. The Springs antiwar community keeps direct contact with law enforcement. I’m guessing protestations, if any, are now simply phoned in.

I JUST WANT TO PUNCH these nonviolence religion freaks for mutilating the impetus of budding activists. A newcomer’s anger is what drew them to protest in the first place. Of course as ministers that is their function. Social injustice is job security to church employees. They are about as likely to remedy inequity as the Pope. Sermons aim to temper their sheep’s natural anger at injustice. But enough about those assholes.

No matter the issue, antiwar, the environment, racism, homelessness, in Colorado Springs I’ve seen absolutely no public demonstration escalate to violence. Why then the ready queue of spiritual nuts so eager to innoculate every next wave of concerned citizen before they can even take to the street? It goes back to something that happened at an antiwar demonstration in 2003, although the lesson being drawn is not based on what really happened. That’s the bugaboo.

Palmer Park, 2003
In 2003 George W. Bush was about to initiate an illegal war against Iraq and public demonstrations were coordinated across the globe. In Colorado Springs nearly 2,000 people assembled in Palmer Park along Academy Boulevard. The Springs rally looked to eclipse the antiwar events planned in Denver, so some people came from Denver, or so it’s believed. In reality, the Springs antiwar community had an average age of 75 and hadn’t seen new faces for decades. The sight of younger participants led many to believe they were from elsewhere. Plus some of the younger protesters wore black, so word spread they were Anarchists. Scary.

For the usual reasons, the CSPD decided to close Academy Boulevard. When rally-goers realized their protest wasn’t being seen because motorists were no longer driving by, some decided to lead the crowds southward toward an intersection where traffic was still passing. Being that Academy Boulevard was cleared of cars, the most obvious route was on the street. There was no sidewalk and the park was congested with the parked cars of the attendees. No matter. The police formed a line and ordered the marchers back.

The police began to spray tear gas as the protesters retreated. Clouds of gas enveloped the crowds as they dispersed and struggled to get in their cars. The cars were gased with families and small children inside them, unable to drive away.

Across the globe that day, only two cities used tear gas against their antiwar protests: Athens and Colorado Springs. That’s how old timers like to tell the story. They’ll add that the police crackdown was prompted by unruly outsiders being violent with police. By which they mean, refusing to get off the street. Being assertive of one’s rights somehow became translated to mean impermissively violent.

Had these Emily Posts ever seen the footage of Selma?! These nonviolence sticklers are MLK idolators, yet just like Selma’s whites, they blame the victim.

Palmer Park, 2003

Protests in Colorado Springs immediately diminished in popularity and never again drew large numbers. Apparently when organizers called their members the apprehension was always “will it be safe?”

And so from that day, nuns and other clergy met regularly with Colorado Springs police to talk to them about protest plans, lest CSPD be surprised and overreact. That hasn’t stopped police from dragging us across streets or assaulting us in parking lots or on sidewalks. Oh to have merited it even once!

NOTE: I have omitted a couple of insider details about the 2003 rally because I wanted to relate the experience of the average participant. Yes, the event was advertized statewide and drew opponents of Bush’s war from along the Front Range. And yes, there was a strategy among frontline protesters to try to block an intersection. Most attendees didn’t know either of these facts. The local peace community was so insular that all new faces were looked upon as interlopers. But my point remains, there was no violence. Our freedom to assemble, wherever two thousand people need to go, is not abriged by congress nor by traffic laws. Rebuffing law enforcement’s attempt to disrespect civil liberties by standing, walking, sitting, or shouting, is not violence.

St Patricks Day, 2007

Nonviolently submitting to state violence is supposed to move onlookers to empathy. In 2007, was the Colorado Springs public moved by the police brutalization of nonviolent 70-yr-old Elizabeth Fineron, who later died of complications of her injuries? No, they cheered the police.

Sacrificing yourself may work in democracies with an empowered populace, but against fascism, as against the Mongols or Manifest Destiny, it’s abrogation of responsibility and suicide.

Nonviolence
Incorporating the dogma of “nonviolence” into what would otherwise be straightforward protest becomes problematic when nonviolence folks want to differentiate themselves. Those who are “othered” are then presumed to be planning violence. That’s a very serious charge. Inciting a riot is a crime. Plotting to overthrow a democracy is sedition.

Non-nonviolence does not equal intending-violence. For example, I do not advocate violence, I advocate solidarity.

I do not oppose people asking for NV training, or undertaking it, though I would prefer that nonviolence wasn’t marketed to newcomers who wouldn’t have thought to have needed it.

Why should “nonviolence” even have to come up, for example, at a discussion about a SIT-IN? Agreeing to sit is already a gesture which has capitulated the option to resist. A crowd can’t charge from the seated position. You can’t even defend yourself. The nonviolence is inherent.

Religious NV training is really about nonviolent communication, a whole other can of rotten worms. There is no evidence that Gandhi, MLK or the Flint factory sit-ins practiced that aberration.

If the challenge is to show public opposition to the sit-lie ordinance because it further oppresses the homeless, public energies need not be exhausted by habitually passive religious leaders and their idea of what direct action needs to be.

Yes, the anticipation of the supremacy of nonviolence over state violence is a religious expectation. Against fascism you’re asking for a miracle.

If preachers were activists they would lead their flocks into the street. Circulating among activists, those church leaders are opportunistic missionaries, looking for recruits among the disenchanted.

To be earnestly inclusive of faiths and non-faiths, leave you diety at home. Show respect for the “others” who don’t need the voodoo rationalizations you require to muster moral courage.

You want to protest a pro-rape rally? Try Veterans Day. Don’t feed the trolls.

Posted on February 4, 2016 by Eric Verlo

saddam-hussein-palace-us-soldiers-iraq
DENVER, COLORADO- So-called men’s rights advocates slash pick-up culture misogynists are making publicity for themseves by calling for rallies across the US to legalize rape. They suggest rape should be legal –in the home at least– a sort of Stand Your Ground haven for wife-beaters. To indemnify domestic abuse. These liberated emasculates are nostalgic apparently for when most sexual assault stigmatized the victim and stayed in the closet unreported. These freaks are trolling, obviously, but prompting indignant cries to mobilize counterprotests. So much so that the reassert-your-male-privilege meet-ups have been cancelled. Reportedly. See that’s the problem. It’s Phelps Bundyism NAMBLAism enabling the corporate media to paint “activists” in sordid stripes. DO YOU WANT TO PROTEST AGAINST RAPE? Protest systemic rape by occupation forces, whoever’s. Protest militarism. Protest American troops who try to rape 70% of their female soldiers and succeed with 40%, although who doubts that is underreported. Protest professional rapism to address the injustice of sexual violence. Let’s be fair. Rapists are also victims of rape culture. Protest rape culture.

350.ORG disowns Paris sans-culottes, opts for boot-counting passivist shtick, figures to storm the Bastille shoeless.

Posted on December 2, 2015 by Eric Verlo

HOLY CRAP, Bill McKibben sells out the activists again, agreeing not only to cancel planned protests at the Paris Climate Conference, but distancing 350.ORG and its collaborator NGOs from real demonstrators upset at the protest ban. After leading hundreds of thousands in New York City on the World’s Largest Climate March TO NOWHERE, Bill McKibben flushes the Paris demonstrations and the climate they hoped to save with them. Nothing says silence like a streetful of shoes. Antiwar activists resorted to staging shoe die-ins at every surge of the Iraq War. The result? Crickets. We used army boots to represent mounting American war casualties. As pacifism lost popular traction, the disparing passivists cobbled larger and larger “demonstrations”. Activists came to call them exercises in BOOT-COUNTING. It’s a well-trod path, and as you might expect of shoes without wearers, they march nowhere.

WORSE BUT AS USUAL, the permit-carrying protest groups at the Paris summit immediately disowned demonstrators who threw bottles or in any manner protested the government’s edict to ban public protest in the wake of the November terrorist attacks. Activists who habitually support 350.ORG leadership were thrown under the bus as “not part of our movement”. Specifically they had violated a supposed pact which self-respecting nonprofits had signed to reject anything but impotent rule-following. While the media will continue to hand Bill McKibben a microphone, it’s time for street activists to raise their pitchforks against false grassroots leadership. There wouldn’t have been an Earth First if environmental nonprofits had put resistance before staged activism. The climate message doesn’t require their nuanced strategists. The struggle certainly doesn’t benefit from participants who think they can conscript shoes to take the streets for them.

AS TO A NONVIOLENCE PACT. Organizers of the Paris protests apparently swore an oath not to let protests escalate to resistance to police repression. It’s the same malarky nonviolence advocates demand of their adherants. AS IF Gandhi and MLK won their laurels without resorting to active resistance. Demonstrations against US national conventions have been hamstrung by simlar nonviolence pacts.

HOW ABOUT activists get a jump on the upcoming election year and propose an alternate oath for wannabe protesters, an elaboration on the St Paul Principles so to speak. At the DNC and RNC we swear to do WHATEVER IT TAKES to shut it down. Whoever can’t commit to WHATEVER IT TAKES can’t call themselves comrades. They have no business filling streets only to capitulate. They are the words of Malcolm X: “whatever it takes”. Whatever does not exclude nonviolent methods but it excludes expulsions, or you’re disowned.

Black Lives Matter 5280 hold Denver march in memory of Michael Brown

Posted on August 10, 2015 by Eric Verlo

DENVER, COLORADO- A coalition of Colorado activists led by Black Lives Matter 5280 marched through the state capitol on Sunday to mark the one-year anniversary of the killing of Michael Brown by Ferguson police. Over two hundred marchers gathered at Lawson Park and marched to the courthouse where a memorial ceremony was held for all recent victims of police violence.

Photos by David Lee Anderson

Argonaut Liquor helped city of Denver jail Caryn Sodaro, the DPD’s most vocal critic of police brutality.

Posted on July 31, 2015 by Eric Verlo

DENVER, COLORADO- On Thursday July 30 in Denver Municipal Court, Argonaut Liquor succeeded with what the City of Denver and its violent policemen have been trying to do for years: take down Occupy Denver activist Caryn Sodaro. Earlier this year, Caryn was attempting to film the DPD as they brutalized a handcuffed detainee in the parking lot of the liquor store on Colfax Ave. When store managers couldn’t block her camera phone with their hands, they authorized officers to arrest Caryn for trespassing. Of course they had to pretend she’d been warned once before.

Yesterday a jury found Caryn Sodaro guilty of trespass, though they heard scant mention of the crime she was trying to document and prevent. It didn’t come up and video evidence was snipped to exclude it. Videos from multiple vantage points were excluded and witnesses were not questioned about the brutality they saw. Protesters were characterized as protesting the police, not police VIOLENCE and not protesting to PREVENT IT.

In one of the trial’s most surreal moments, the city attorneys were trying to admit officer body cam evidence taken of Caryn after her arrest, angrily describing the brutality she witnessed. The prosecutors hoped her coarse language would displease the jury. The defense attorney objected for that reason, even though it would have been the only evidence to explain why Caryn risked arrest, if indeed she knew she was not allowed on the Argonaut lot. The judge disallowed that video in the only ruling she made in favor of the defense.

Caryn’s protesting activity has been given area restrictions before and friends know how strictly she adhered to them, unconstitutional as they were. Drivers giving her rides had to take detours to keep Caryn geographically safe. When a defense witness tried to add this detail, or that he’d returned often to the Argonaut even while the managers had testified that he too had been “trespassed”, the defense attorney cut him off, stopping his own friendly witness with “I ask the questions here.”

I’ve seen valiant public defenders, but this free public servant was determined to give Caryn her money’s worth. No character witnesses, no context of Caryn’s activism, nor even sympathy for her altruism. The argument was restricted to: did Caryn trespass or not, and Argonaut employees perjured themselves claiming that Caryn had been instructed twenty days before that she was “trespassed” from Argonaut’s property. That incident was provoked by Caryn being harassed and humiliated by an in-store Argonaut rent-a-cop who followed her to the checkout stand and told her she was “too drunk” to purchase a bottle of wine. He initiated a shouting match, not she, and that’s another detail the PD declined to exploit.

Did I mention Caryn’s public defender opted to forgo his opening statement! The jury was let to assume the case was about a retailer’s property rights versus a group of protesters’ whim for trespassing.

Even when public defenders are brighter than you expect, it’s important to remember they don’t work for you. Public defenders serve the judicial system, this one determined to preserve law and order even when it is demonstrably racist and violent. Mr. DiPetro, the Judge and the city attorneys colluded to frame Caryn’s prosecution as independent of the DPD’s agenda to target her and bring her down. At moments of the two day trial, the audience was equal parts fellow activists, armed sheriff deputes, and DA attorneys gathered to oversee the exploitation of charges pressed by Argonaut Liquor. The only laugh the audience was allowed was when officer descended on Caryn, eager to put her in handcuffs, before she even had time to sign the paperwork required to imprison her.

The New Slave Ships Have Arrived

Posted on June 30, 2015 by David Lee Anderson

The year was 1960, and there was only one men’s prison in Colorado at that time, located at Canon City. There was a women’s prison that sat next to the men’s prison. There were three small satellites off the main prison: the ranch, dairy farm and garden. And there was the young men’s reformatory at Buena Vista, for a total of three prisons. In 1960 the population figures for Colorado was nearly two million people, in 2010 it was a little over five million; In a span of fifty years Colorado gained three million people. In 1960, it took 3 prisons to confine the convicts of two million people living in Colorado. By 2006 there were 30 prisons in Colorado, while adding only three million people to the population. Hold on here a minute; something doesn’t add up: 2 million people needed 3 prisons, now 5 million people need 30 prisons?!

It would be safe to assume that this growth in population were of people about to commit a crime, judging from the growth of new prisons compared to the population growth.

That’s quite a growth from 3 prisons to 30 prisons in 26 years; but then we didn’t have the “Prison Industrial Complex” in those years; Corporation private prisons. Their motto should read “If there are no prisoners; there is no profit”

If you and your family were out on a Sunday drive in 1960 and happen to drive by “Old Max” on Hi-way 50, you would have noticed a sign in front of the prison that advertised “Visitors Welcome” the sign went on to tell you that you could enter the prison for fifty cents on a guided tour at certain hours. This fifty cents was to go into a prisoner burial fund, for indigent convicts who died while imprisoned. They would then be buried in a pauper grave yard and sentence was complete due to death.

A few years later these tours were discontinued for fear that the prisoners might take the tourist hostage, also the Prison Administration had decided that it was better not to let the taxpayer see the condition of the prison they were paying for.

My wife and I decided to take the tour.

I had the feeling of a rat in the trap when the large steel door slammed shut behind us. After taking only a few steps, we left behind a warm sunny day and stepped into a dark gray world. The doom and gloom seemed to lurk at every corner, the guards in their towers, stared down at the tour, rifles at ready. We had the feeling that this tour, was a bad idea.

There was a guard about 70 years old who served as our tour guide, he wore a guard’s uniform and walked backwards as he pointed out the finer attractions of the prison; like the hole or the gas chamber. We were not allowed to go into these building as the old guard explained; we could be taken hostage.
However we were taken to the curio shop where the convicts were allowed to sell their hobby work, and it was here that the old guard gave us some stories on the history of Roy Best an ex-warden who was discovered with state cattle on his personal ranch and convicts were used as ranch hands. The old guard told how Warden Best would tell all newly arrived convicts: “While serving your sentence, you are allowed to make a dollar any way you can, Just make sure it’s not my dollar.” He also told a story of what happen when two convicts were caught in a homosexual act; they would be taken to the curio shop and handcuffed to a steel rail, they both would be made to wear a woman’s dress, for all the tours to see. It didn’t matter who was pitcher and who was catcher, they both had to wear a dress.

There were two yellow lines painted on the concrete about six feet apart, we were warned as tourists of all the harm and mayhem that could befall us if we stepped outside of the yellow lines and it was here that some of the tourist began thinking about what a mistake this was and could they get their fifty cents back. And of course the convicts were well aware of the rule of crossing the yellow line while a tour was in the prison or of talking to any of the tourists; it meant a certain trip to the hole. As the tour progressed through the prison, I noticed that many of the tourist heads kept bobbing down, making sure their feet didn’t touch the yellow line.

As we neared the end of the tour we came to where three convicts were waiting for the tour to pass before crossing the yellow line; There was an older lady with white hair near the front of the tour, when she saw those three convicts, (who were all dressed in white pants and shirts) she whispered to the old guard.

“Who are those men?”

The guard turned to look and then began to name the convicts.

The old woman stopped him and said ” No! I mean are they convicts or are they civilian employees?”

“They are convicts,” the guard replied, “they are allowed to wear white because they all work in the hospital.”

The gray haired lady then exclaimed with the most bewildering look on her face “my goodness! They look like anybody else”.

It’s been over fifty years since that white haired lady spoke those words, but her words are burned into my memory as if she had only spoken them yesterday.
What the white haired lady never realized is those convicts were sons, with mothers and fathers.

As all convicts are; they are the sons and daughters, the brothers and sisters, mother and fathers of us all.

Like that old white haired lady’s words “They looked like anybody else,” society looks at prisoners and sees them all the same, maybe that’s because they are all dressed the same or their mailing address is the same. They eat the same food and spend the long boring days together. It’s true that while you are a prisoner, the rules of a prison or jail apply to all, a sort of “One size fits all.” Yet the crime that sent these men and women to prison are as different as day and night.

Willie “The Actor” Sutton, a bank robber from back in the 40s use to dress up as a policeman when robbing a bank. Willie would never put any bullets in his gun; he wanted to make sure that no one was injured while robbing the banks, you might say Willie was a little different kind of criminal, but when he was in prison, he dressed like all the other convicts.

Back in the 50s the prison at Canon City had a rule: all prisoners shoes must have a “V” shaped notch cut into the heel. This was intended to make it easier for the guards to track escaped convicts. In theory the rule seemed pretty “air tight.” The drawback was that the convicts all knew about the notch, and would simply fill the notch or remove the heel. It took a few year for the guards to figure out why they weren’t finding any tracks of escaped convicts with a “V” notch in the heel.

The old white haired lady was right about one thing; they do look like everyone else. But the underlying problem that sent them to prison are very different.

From the New York Times: U.S. prison population dwarfs that of other nations.

“The United States has less than 5 percent of the world’s population. But it has almost a quarter of the world’s prisoners. Indeed, the United States leads the world in producing prisoners, a reflection of a relatively recent and now entirely distinctive American approach to crime and punishment. Americans are locked up for crimes — from writing bad checks to using drugs — that would rarely produce prison sentences in other countries. And in particular they are kept incarcerated far longer than prisoners in other nations. Criminologists and legal scholars in other industrialized nations say they are mystified and appalled by the number and length of American prison sentences. The United States has, for instance, 2.3 million criminals behind bars, more than any other nation, according to data maintained by the International Center for Prison Studies at King’s College London.”

In reading the above and the complete 1700 word article you will not find the word ‘Corrections” used once.

Webster’s Dictionary: Correction; 1 a correction or being corrected, 2 a change that corrects a mistake; change from wrong to right or from abnormal to normal.

As you are reading this story you may have noticed that I do not use today’s language to describe prisons, convicts, guards and wardens, as “Correctional Facility”, “Correctional Officer”, “Superintendent” or “Inmate”. To call them “Correctional Facility’s or Correctional Officer” is the height of hypocrisy. The truth is the guards can’t correct the problems in their own lives let alone solve the many complex problems of the men and women they guard.

The word correction was introduced by the prison industrial complex to fool the public into thinking they were solving the problems of the people they were warehousing and collecting all of those tax dollars for.

Again! hold on here a minute; If they are correcting all the problems of these errant people? Then why are we building so many new prisons and filling them with men, women and children?

You might be asking yourself “How did America, end up with so many criminals? The truth is “We didn’t.” The American Prison Corporations quite simply found it very profitable to imprison citizens.

The Corrections Corporation of America (CCA) simple minded solution to the problem is to build more prisons and pass new laws which will produce more criminals for their prisons.

Looking to the CCA and their lobbyist is equivalent to hiring the fox to guard the hen house.

This all leads to a greater bottom line profit for the CCA but does little to solve the crime rate, the recidivism rate or help those prisoners who truly need help. And it certainly does not slow the growth of new prisons. “The breeding grounds of crime”.

Confronting Confinement, a June 2006 U.S. prison study by the bipartisan Commission on Safety and Abuse in America’s Prisons, reports than on any given day more than 2 million people are incarcerated in the United States, and that over the course of a year, 13.5 million spend time in prison or jail. African Americans are imprisoned at a rate roughly seven times higher than Whites, and Hispanics at a rate three times higher than Whites. Within three years of their release, 67% of former prisoners are rearrested and 52% are re-incarcerated, a recidivism rate that calls into question the effectiveness of America’s corrections system, which costs taxpayers $60 billion a year. Violence, overcrowding, poor medical and mental health care, and numerous other failings plague America’s 5,000 prisons and jails. The study indicates that even small improvements in medical care could significantly reduce recidivism. “What happens inside jails and prisons does not stay inside jails and prisons,” the commission concludes, since 95% of inmates are eventually released back into society, ill-equipped to lead productive lives. Given the dramatic rise in incarceration over the past decade, public safety is threatened unless the corrections system does in fact “correct” rather than simply punish. For a copy of the complete report and the commission’s recommendations for reform, see

From: U.S. Prisons Overcrowded and Violent, Recidivism High — Infoplease.com

In the words of George Carlin; we add syllables to soften the meaning of words; From the Colorado Central Magazine; (The polite modern terms are inmate, not prisoner or convict as in historical years, and corrections officer instead of guard.)

The Huffington Post published an excellent piece yesterday by reporter Chris Kirkham describing how the Corrections Corporation of America (CCA) wants to buy up state prisons, all under the guise of helping state governments deal with their budget shortfalls.

Called the Corrections Investment Initiative (sounds so positive, right?), it’s a sickening display of exploitive behavior — perhaps best underscored by the fact that the CCA stipulates in its “investment” overture that, as part of the deal, the states need to keep the prisons packed. Their language for it:

“An assurance by the agency partner [the state] that the agency has sufficient inmate population to maintain a minimum 90 percent occupancy rate over the term of the contract.”

In reading the above article I did not notice anything pertaining to correcting the prisoner’s problems that sent them to prison. I did read the words “Helping state governments deal with their budget shortfalls” Whenever someone comes to me and tells me they can save me money… But I have to spend money in order to save money, it’s right here I become suspicious of their motive, “Thank You, but, No Thanks'”

“The Corrections Corporation of America” and that white haired lady have something in common with one big difference; the white haired lady saw us all the same looking like anybody else but she had no motive for profit when she looked at us, she can be forgiven for her mistake.

“The Corrections Corporation of America” sees the prisoners also all the same; as a free labor force to manufacture goods in their prison industrial program. For the CCA it’s a win-win proposition, the taxpayer pays for housing their captive work force and then they again made a profit off the manufactured goods. It appears “The Corrections Corporation of America” has found a new way to reconstitute slavery. The only thing missing are the slave ships from Africa; we are already here so there is no need of the ships. However they will need to lobby the congress for new laws to insure the prisons are full of able bodied workers. And of course the lobbyists don’t work cheap; they have a large overhead in the moneys they must contribute to our elected legislator campaign fund.

The money travels from the taxpayer’s pocket to the government coffers, from the government coffers to “The Corrections Corporation of America” and then from their checking account back to the Colorado Legislator reelection fund, a vicious cycle that never ends. They are all so busy stuffing their pockets with the taxpayer’s money they have little left to correct the problems of the prisoners that got them the money in the first place.

In conclusion, with solutions; The unsuspecting, hardworking taxpayers have been taken for a ride for too long. It’s time we told the Prison Industrial Complex; “The Jig is Up.” It’s time for a revolution.

There is an old saying among the convicts; All the convicts in prison combined, never stole more money than one banker or corporation stole with one swipe of their pen. “While the poor man was out stealing a loaf of bread to feed his family, the banker was stealing the poor man’s house”.

One of the very best and clear examples I can give, happened right here in Colorado. For years and years the prisons have been filled with “Pot” smokers, the public was told; These are criminals, depraved drug addicts that will rob, steal and rape your daughter.

When the opposite was more true; ‘Pot” smokers are very relaxed, looking only for some Twinkies to munch on while watching cartoons.

And now that Colorado has de-criminalized marijuana, we are left with a bunch of taxpaying ‘Pot “smokers living normal lives, working and contributing to society. I’m sure that it’s not much consolation to all the men and women who suffered for years in prison, classified as a criminal, not to mention the families that were destroyed. Men and women who were filled with hate in this prison system, then released to commit a real crime.

Back in 1960, I was not taken as a hostage while touring the prison, but in 2015 we are all being held as hostage by the CCA (Private Prison Corp.) for our tax dollars.

You can help change that by contacting one of the local or national groups to end mass incarceration.

————–
About the author: David Anderson is an ex-convict, who had escaped from “Old Max” twice. He was serving three life sentences for crimes of which he was innocent. It took seven years for these convictions to be reversed. He walked out of the prison on April 29th 1983.

Denver’s Argonaut Wine and Liquor reserves the right to roll their derelict customers without you videotaping it

Posted on June 17, 2015 by Eric Verlo

DENVER, COLORADO- Occupy Denver activist Caryn Sodaro was arrested in April for filming Denver police officers physically tormenting a drunken itinerant behind the Argonant liquor store on 760 East Colfax. Appearing in municipal court yesterday Caryn learned her accusers aren’t the DPD but Argonaut itself, whose employees charge Caryn with trespass for not removing herself from their parking lot with sufficient deference. Caryn was among a group of onlookers who were hoping to curb the police abuse by recording it. Of course documenting police brutality is not illegal, so the City of Denver is relying on private interests to complain to take the heat from law enforcement’s decision to make an arrest. You might well ask, what interest does the Argonaut have to keep customers or passersby from witnessing police officers kicking homeless men behind its store?

Caryn was retreating as ordered. In fact she was four spectators removed from the crime scene when DPD reinforcements lunged toward her to nab her.

Now the DPD want to hang Caryn’s arrest on a technicality, that she was trespassing, ignoring whether witnessing the potential commission of a crime wouldn’t be sufficient excuse to bend the Argonaut’s property rights. No one otherwise pretends that crimes like domestic violence are protected by claims to the privacy afforded by private property. Why does the DPD think its officers can indulge sadistic tendencies behind a veil of private security guards?

On Tuesday Argonant dispatched staffers Chris Crowley and William Dehl to bear witness against Caryn Sodaro. I wouldn’t bother to highlight the pair’s personal identities here were it not for a colorful twist in the courtroom which in retrospect is unsurprising from blond thick-necked goons who may delight in watching inebriates get the jack-boot. Waiting their turn to receive instruction from the judge, Crowley and Dehl amused themselves through the long morning docket by making disparaging and racist remarks to each other about the mainly Hispanic and black defendants in the clutches of Denver’s judicial quagmire, many of whom were in-custody and could not post bond.

The Argonaut has been a Capitol Hill favorite for a half-century, and no doubt it has finessed the art of dealing with the regular drunks. No doubt letting local officers vent their anger against bums in back alley is a tradition in the liquor biz. Fortunately cell phone cameras mean those days are waning. The Colorado legislature recently reinforced the public’s right to film the police. It can hardly be in the Argonaut’s best interest to shield police brutality from citizens who want to intervene. The Argonaut doesn’t want to highlight the consequence of alcoholism. Hopefully despite Argonaut’s efforts, getting rolled by the cops will prove to be less inevitable.

The Every Cinco de Mayo Piñata Bash

Posted on May 14, 2015 by Eric Verlo

DENVER, COLORADO- Anonymous dedicated May’s Every5th to victims of Denver police violence. For Cinco de Mayo, Anons brought PINATAS in the likeness of the DPD! Many “Every Cinco” attendees were victims of the pepper spray incident of April 29, when DPD riot cops tried to exterminate its infestation of stubborn marchers by fumigating them with cayenne pepper. In response, Anons considered macing the piñatas, but aerosol wasn’t going to bust these piggies open and guests were eager to get to the chocolates and FTP pins inside. Participants took turns whacking the pigs with UMBRELLAS, Occupy Hong Kong’s answer to pepper spray. After an interminable beating the pigsters gave up.

The EVERY CINCO bash on the west steps of the capitol

Three little piggies

Blindfolded Anons

Preparing to spike

Going

Gone

Because you supported the troops, today we have to f-ck the police

Posted on May 13, 2015 by Eric Verlo

If there’s a chant that unites protesters across America it is “FTP!” No matter the issue, from BLM to GMOs, excessive use of force by police against dissenting citizens is the common grievance. The UN has even condemned US human rights abuses, this time police violence and racial discrimination. Our emergant police state may be the business end of the New World Order, but its troubling conduct is directly traceable to US military rules of engagement. These violent cops are our vets!

Stuck with PTSD, no marketable skills, and a taste for blood, American soldiers are transitioning to law enforcement jobs where they’re already familiar with the militarized equipment and the shoot-to-kill MO. The irony of course is that many of America’s homeless are veterans who could not live with the acts they were made to do in Afghansitan and Iraq and elsewhere. Those that could are the cops beating them!

When American soldiers shot first and asked questions never, overseas, at vehicles or at civilians whose needs they did not understand, you shouted SUPPORT THE TROOPS. Now they’ve brought the war home with lethal force and indescriminate brutality. You asked for it, you got it.

PHOTOS: DPD riot cops deploy pepper spray like it was Youtube repellent

Posted on May 11, 2015 by Eric Verlo

DENVER, COLORADO- It started with a cop falling off his motorcycle, being pushed it’s alleged, by a bicyclist. Paramilitary officers piled on the cyclist while playing Orkin Man to Civic Center Park’s infestation of free speech. Photos from Denver’s April 29 march against police violence reveal that pepper spray was used less to disperse the hundred or so marchers than to repel Youtube bites. Photos by Patrick Jay and Jason Metter.

Although the marchers had already been herded back unto the sidewalk, militarized state troopers laid down a smokescreen of spray to create a no man’s land around their arrestee.

The march was 2% black, but the DPD chose from the 2% minority for the first arrests. Here activist Al Nesby has been pulled from the crowd while tablet-bearing witness David Long records the irony.

An officer assists in Al’s arrest by directing pepper spray at David whose perspective was apparently too up close and personal.

The officer also arcs his spray toward photojournalist Tanner Spendley.

Here officers spray an activist who was only mouthing off.

When the DPD aimed their pepper spray at individuals, it was because they bore cameras. Otherwise the spray seemed intended to fumigate. At no time were police officers under attack or trying to break apart a stubborn crowd. The pepper spray was dispensed like backwoods insect repellent toward an unseen foe whose sting the officers feared.

Wrote activist Jason Metter:

I believe the cops intended to attack us from the moment the march began. The cop who dropped his motorcycle, unprovoked, started a mini cop-riot by pretending to have been pushed. I did not see any protestors take aggressive actions against the cops. It seems the cops pepper sprayed us to prevent us from photographing and filming them and to punish us for not being meekly obedient to their unreasonable orders.

Even as the clouds of cayenne aerosol appear distant in these photos, each debilitated the nearby subjects and required rinsing of clothes, hands and faces.

Production note: all photographers were harmed in the taking of these pictures.

Mother Teresa was the Janet Matzen of Calcutta

Posted on May 5, 2015 by David Lee Anderson

(The above photo is of Janet on May Day 20015 feeding a group of 50 people in front of the state capital, still wearing that warm smile for all the homeless and hungry.)

Janet Matezen was a 54 year old working mom. She had recently lost her job at a local market where she worked as a meat cutter. Like many of the middle class, Janet was also struggling to make ends meet. It was October 2011, Occupy of Denver made camp in Denver’s Civic Center Park. Their number began to grow daily as word of the movement spread via the media. Janet had never been a protester or even been to a rally such as Occupy, but she was curious. She decided one day that she would drive to the park to see what it was all about.

When I first saw Janet in the park, she looked like any other mother from any city in America. She was average with one difference, she always had a warm smile. She began to talk with the others there in the park, and the more she heard their stories the more shocked she became at the conditions many there were living under. She never spoke of her own problems. Janet’s struggles seemed to fade as she listen to their stories. After all, she had a home and food for her table.

I believe the old adage “I use to feel sorry for myself because I had no shoes, and then I met a man who had no feet” best describes Janet’s experience there with Occupy in Denver’s Civic Center Park.

In the past four years, Janet has transformed herself into an advocate and champion of the homeless and hungry of Denver. Whenever the city council is considering new legislation such as the Anti Camping Ban, Janet is always there to lend her voice in defense of the poor and homeless.

When the Colorado House of Representatives were recently considering a bill of rights for the homeless, Janet was present at every stage of the hearings.

When the homeless are arrested for falling asleep in the park, she is always there to help, even if it’s only to be with them in court.

One spring day in 2012, I interviewed Janet in the city park; one of the questions I ask her was; “Did she have any fears of the people there in the park” her reply surprised me, she said “Oh no! I know they would protect me, it’s the police that I’m afraid of.” I did not miss the irony of her answer; to think that a 54 year old mother in the park would be more afraid of the police than the homeless.

I could only conclude, that Janet, after witnessing so much of the violence by the police against the homeless knew who in truth would serve and protect her.

Janet has also had her small victories, besides feeding the homeless, as reported in the “Popular Resistance”

**STAFF NOTE: Planned protests at Palm Restaurants are cancelled today.**

DENVER, CO. (October 18, 2013) – The Boycott the Urban Camping Ban Coalition is pleased to announce that The Palm Restaurant has officially withdrawn support for Denver’s Urban Camping Ban Ordinance passed in May 2012.

On May 6, 2012, Occupy Denver held their first Boycott in protest of the Urban Camping Ban at Snooze A.M. Eatery.1 It was attended by not just members of Occupy Denver, but activists from Denver and surrounding areas who were concerned about the treatment of their fellow human beings, the homeless. The “Urban Camping” Ban Ordinance was passed by the Denver City Council on May 14, 2012, at which time an ongoing weekly protest lead by Janet Matzen and Occupy Denver began at Snooze A.M. Eatery and later attracted coalition partners. On April 5, 2013, Snooze issued a statement reversing their position in support of the Ban.

On April 26, 2013, the Boycott was moved to The Palm Restaurant Denver and a weekly Friday night boycott began. Despite concerted efforts by the Denver City Council through the Denver Police Department to quash Boycotters’ Constitutional rights to free speech and protest, the protest continued strongly and garnered International support.

Today, we are pleased to announce that The Palm Restaurant, who we truly believe cares for the plight of the homeless, announced they no longer support the “Urban Camping” Ban Ordinance. We thank The Palm Restaurant for standing with the homeless and calling for the repeal of the “Urban Camping” Ban in Denver.
Once again, we urge all businesses and organizations in Denver to review the Denver Homeless Out Loud Report on the implementation and impacts the Ban has had and call for its repeal.

I’ve often been amazed that Janet can be in so many places doing so many different things and all for the benefit of the homeless and poor. Most recently you will find Janet, every Friday in front of the Tattered Cover book store where she continues to protest the anti camping while at the same time feeding the hungry and homeless of Denver.

We often hear the word “Grassroots” but I never saw in action as I’ve seen it with Janet. She gives real meaning to the phrase “Grassroots Activist” with her compassion for others.

Suzanna Arundhati Roy spoke so eloquently when she said: “And so it is, in the quiet breathing of Janet, I see that possible world.”

The frequently cited St Paul Principles had their time and place: ST PAUL

Posted on May 3, 2015 by Eric Verlo

In my circle they’re called “Saint Paul’s Principles” because my colleagues think the edicts are Catholic I guess. The St Paul Principles came from St Paul Minnesota, circa 2008, and were formally adopted by the varied groups organizing to disrupt the Republican National Convention of 2008. They’ve lived on as guiding principles for activists of all ilk. In 2011 many Occupy encampments ratified the StPP as their own code of conduct, indifferent to whether they were applicable or even beneficial. Let’s examine the well intended dogma. Do they apply universally? Are they constructive? And how did they work out for St Paul? The last one is easy. As you may remember, disruption of the 2008 RNC failed spectacularly.

The St. Paul Principles

1. Our solidarity will be based on respect for a diversity of tactics and the plans of other groups.

2. The actions and tactics used will be organized to maintain a separation of time or space.

3. Any debates or criticisms will stay internal to the movement, avoiding any public or media denunciations of fellow activists and events.

4. We oppose any state repression of dissent, including surveillance, infiltration, disruption and violence. We agree not to assist law enforcement actions against activists and others.

It’s hard to argue against this elegant expression of solidarity. With the SPPs, the protest organizers aimed at preempting COINTELPRO style disruption from generating conflict within the movement. The implicit condemnation of violence was of state sponsored violence, not authentic barricade defense. And no snitching. The SPPs addressed the problems which were already scuttling Denver’s 2008 DNC protests. In Denver, “Recreate ’68” planners let the press infer they meant to revive the Chicago riots of 1968, prompting almost every traditional social justice group to circulate a contract which everyone was expected to sign. It was a vow of nonviolence. Organizations who refused to sign were ostracized and could expect the violent police clobbering they invited.

Essentially the SPPs aimed to unite the nonviolent and non-nonviolent activists, to ensure neither denounced the other, and that physically neither wound up caught in each other’s fights or sit-ins. Probably the chief concession was being asked of the nonviolent crowd: Please, as long as we promise not to shroud your family atmosphere and your baby strollers in tear gas, please let the Black Blocs do their thing without your repudiation. Please. We share the same goals.

Can you begin to see where such a strategy might fail to lead?

But the St Paul organizers did share the same goals. Their aim was to disrupt the RNC via a strategy they called “3S” actions. SWARM, SEIZE. STAY. It’s easy to see why three years later Occupy Wall Street was attracted to these directives. “3S” defines Occupy and another three years on, OWS activist followed the 2014 Climate March with an action called “Flood Wall Street” the instructions for which rephrased 3S aquatically.

The “movement” to which the SPPs refer shared a goal, to disrupt the RNC, by means of swarming, seizing, and staying, by whatever tactic each member group wanted. They shared a further agreement, that the city of St Paul was to be partitioned in sectors allowing groups to conduct their actions in isolation, united in time, but separated geographically so that red zone, yellow zone and green zone participants needn’t mix and find themselves out of their respective confort zones.

The groups organizing against the 2008 RNC shared one more thing in common, bound as they were to the St Paul Principles, they were all signatories to the principles.

Do the St Paul Principles apply universally?
It’s easy to see that the 2011 OWS occupations in major cities across the country shared a similar goal. It was, if perhaps more vague than to prevent a party convention, to disrupt the wheels of commerce by means of encampments; the “3S” tactic now reduced to a single verb “Occupy”. Allies such as unions and antiwar organizations, while sympathetic, cannot be said to have shared the same determinaton to disrupt. Even MoveOn with their “99% Spring”, FireDogLake with their merchandizing, and Adbusters had to relent with the revolutionary rhetoric. Eventually OWS spinoffs like Occupy Sandy Relief began to serve functions diametrically opposed to disruption. Did they expand the “movement”? Of course. But did the more inclusive “movement” outgrown the capacity for St Paul Principles to maintain its unity? Are activists bent on disruption expected to respect and support activists determined to prevent disruption?

I know it’s lovely to imagine every social justice effort as anti-authoritarian, and whether nonviolent or indulgent, each comprises a unique wing of a broad anti-government movement. If you are prepared to pretend that everyone’s aims are progressive, we share similar enough goals and we are reformists. But if some aims are revolutionary, explicitely anti-Capitalist for example like Occupy Wall Street, then reformists are counterrevolutionary. If you think reformists aren’t Capitalism’s first line of defense, even as they consider themselves activists, then you don’t know your adversaries from your allies. To imagine that activists shouldn’t address such chasms of understanding in favor of upholding popular delusion is going to get a movement nowhere.

At last year’s Climate March in NYC, the prevailing sentiment was against Capitalism. The organizers didn’t want to mouth it, but a vast number of marchers began to grasp instinctively that Capitalism has no solution for Climate Change. The anti-Capitalist movement can become “the movement” but reformists will have to understand they are obstructionists before they as individuals can be said to share the common goal.

The St Paul RNC Welcoming Committee aimed to disrupt the Republican National Convention for a WEEK. Can activist groups as they grow and transform over years and compete for membership and community resources expect that they shouldn’t be critical of one another’s missteps or aggressions even as their goals diverge?

How scalable are the St Paul Principles? Do they apply to no matter who considers themselves part of a greater “movement”. Do they apply to signatories and non-signatories alike?

Are the St Paul Principles constructive?
I would argue: Hardly. While it seems safer to segregate the Black Bloc from the civil disobedients from the family picnic crowd, you’re not going to reach critical mass with each on its own. With public dischord still in its infancy and while we have nowhere near the numbers to defend against or deter violent repression, perhaps it is only reasonable to program our street protests according to color zones, as if marches were amusement rides for protest tourism.

If you’re satisfied to lead combatants to jail and probation for mere symbolic shows of defiance, and you’re prepared to let nonviolent activists subject themselves to brutality which even when filmed will not awaken the conscience of the sociopathic oligarchs, and you’re resigned to let the masses burn themselves out with boredom given nothing to challenge their apathy, then the St Paul Principles are for you.

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