Verlo v. City & County of Denver

124 F. Supp. 3d 1083, 2015 U.S. Dist. LEXIS 112330, 2015 WL 5012919
CourtDistrict Court, D. Colorado
DecidedAugust 25, 2015
DocketCivil Action No. 15-cv-1775-WJM-MJW
StatusPublished
Cited by3 cases

This text of 124 F. Supp. 3d 1083 (Verlo v. City & County of Denver) is published on Counsel Stack Legal Research, covering District Court, D. Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Verlo v. City & County of Denver, 124 F. Supp. 3d 1083, 2015 U.S. Dist. LEXIS 112330, 2015 WL 5012919 (D. Colo. 2015).

Opinion

ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION

William J. Martinez, United States District Judge

Plaintiffs Eric Verio, 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 literatee 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. Martinez1 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 prelimi[1085]*1085nary 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 diseuss 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.

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). “[BJecause 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 rhust get on the jury. During the jury selection, prosecutors and judges often work together to remove honest, thinking people from juries.
[1086]*1086When 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 ease, 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 ax-rest xhentions 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 Vex-lo “wishes to pass out the same literatux-e 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 ah 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

Free access — add to your briefcase to read the full text and ask questions with AI

Related

VoteAmerica v. Schwab
D. Kansas, 2021
Verlo v. Martinez
262 F. Supp. 3d 1113 (D. Colorado, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
124 F. Supp. 3d 1083, 2015 U.S. Dist. LEXIS 112330, 2015 WL 5012919, Counsel Stack Legal Research, https://law.counselstack.com/opinion/verlo-v-city-county-of-denver-cod-2015.