Den­ver in con­tempt of court

City per­suaded judge to have it and its chief of po­lice dis­missed as de­fen­dants in law­suit

The Denver Post - - NEWS - By Noelle Phillips

Two years ago, Den­ver’s city at­tor­ney per­suaded a fed­eral judge to dis­miss the city and its po­lice chief as de­fen­dants in a civil rights law­suit. This week, they were de­clared in con­tempt of court and or­dered to pay at­tor­neys’ fees in the case.

In a rul­ing is­sued Thurs­day, U.S. Dis­trict Court Judge Wil­liam J. Mar­tinez found the city had failed to ed­u­cate its po­lice of­fi­cers about a fed­eral court in­junc­tion that al­lowed protests, pam­phle­teer­ing and other pub­lic demon­stra­tions in front of the Lind­sey-Flani­gan Court­house on West Col­fax Av­enue.

Mar­tinez also dis­solved the in­junc­tion that had banned the city or court sys­tem from en­forc­ing rules that limit protests and dis­missed the law­suit. That de­ci­sion al­lows the 2nd Ju­di­cial Dis­trict to im­pose re­stric­tions on where peo­ple can stand to hold signs, march and pass out brochures.

As a re­sult of the de­ci­sion, the city may again owe money to David Lane, a Den­ver civil rights at­tor­ney who fre­quently sues the city. Lane must file a mo­tion to claim his fees, the judge’s or­der said, so the po­ten­tial amount owed is un­known.

City at­tor­neys were not avail­able for com­ment Fri­day. They can ap­peal the con­tempt or­der.

The city and Po­lice Chief Robert White were dis­missed as de­fen­dants in 2015 when the city at­tor­ney sided with the plain­tiffs, declar­ing the court­house plaza as a free-speech zone.

Court ob­servers said Mar­tinez’s Thurs­day rul­ing was an un­usual twist.

“I don’t know if I’ve ever seen any­thing like this,” said Christopher Jack­son, a for­mer as­sis­tant at­tor­ney gen­eral in Colorado who now works at Sher­man & Howard law firm.

The judge’s state­ments in­di­cate he was not pleased with the way Den­ver han­dled the is­sue, said Jack­son, who was not in­volved with either case. “They def­i­nitely didn’t come out ahead, and the court nailed them for it,” he said.

The le­gal bat­tle started in sum­mer 2015 when ac­tivists were hand­ing out brochures about jury nul­li­fi­ca­tion in front of the court­house. It es­ca­lated into a turf war be­tween the ac­tivists and the city and the 2nd Ju­di­cial Dis­trict.

Then-Dis­trict At­tor­ney Mitch Mor­ris­sey charged two peo­ple with jury tam­per­ing, charges later dis­missed. The ar­rests led Eric Verlo, Janet Matzen and the Fully In­formed Jury As­so­ci­a­tion to file a law­suit against the city and White. The 2nd Ju­di­cial Dis­trict chief judge was added as a de­fen­dant af­ter he is­sued an or­der to ban protests out­side the court­house in an­tic­i­pa­tion of a ver­dict

in a death penalty case.

But Mar­tinez or­dered an in­junc­tion, bar­ring the city or the courts from en­forc­ing the protest ban, af­ter the city ar­gued on be­half of Verlo, Matzen and the jury as­so­ci­a­tion

How­ever, the city re­versed its stance in Fe­bru­ary, un­der the lead­er­ship of City At­tor­ney Kristin Bron­son, who was ap­pointed last year. In a sta­tus re­port to the court, the city and the 2nd Ju­di­cial Dis­trict an­nounced that they in­tended to sign a mem­o­ran­dum of un­der­stand­ing to cre­ate a joint se­cu­rity pol­icy for the court­house grounds. The Lind­sey-Flani­gan prop­erty is owned by the city but man­aged by the court sys­tem.

In his or­der, Mar­tinez scolded Den­ver for chang­ing its po­si­tion, say­ing the city was “at­tempt­ing both to have and eat its cake.” He ac­cused the city of be­ing more con­cerned about sav­ing money by avoid­ing a long le­gal bat­tle than de­fend­ing First Amend­ment rights. He also wrote that the court “looks for­ward to what­ever ver­bal gym­nas­tics” the city will present when it at­tempts to ex­plain it­self.

“Ever since Den­ver re­aligned it­self with the 2nd Ju­di­cial Dis­trict, the Court has been some­what con­fused about Den­ver’s ac­tual po­si­tion in this lit­i­ga­tion,” Mar­tinez wrote.

The city wasn’t the only tar­get of Mar­tinez’s scorn. He also took the pro­test­ers to task for abus­ing the free­dom of ex­pres­sion granted in his orig­i­nal in­junc­tion.

“This prob­lem­atic be­hav­ior on the part of plain­tiffs and their al­lies was fre­quently need­lessly com­bat­ive, ag­gres­sively in­tim­i­dat­ing, gra­tu­itously vul­gar and in­ten­tion­ally dis­rup­tive — of­ten with no ap­par­ent pur­pose or point other than to flaunt the sup­posed right to be com­bat­ive, in­tim­i­dat­ing, vul­gar and dis­rup­tive,” the or­der said.

Lane took of­fense to that char­ac­ter­i­za­tion of his clients. There was no ev­i­dence they acted in­ap­pro­pri­ately, he said; rather, it was oth­ers who showed up as the turf war es­ca­lated who acted out.

“The judge owes them an apol­ogy, frankly,” Lane said.

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