Category Archives: Activism

Urgent calls to action

Just when you’ve supposedly seen it all… yes, it’s Trump again.

This will make the Alt-White people scream like a monkey being sodomized with a shovel. It’s like constipation… ‘No Shit’ I’ve a feverish imagination but don’t inflict it on civilians. I couldn’t make this up if I dropped all my scruples. And took a bunch of drugs. He said it while looking around at the California Fires, the parts where he could stand without being incinerated. Which begs the question, why is this bastard not in a cell awaiting justice? The guy contracted AT GOVERNMENT EXPENSE (taxpayers, not tax and draft dodgers like You Know Who…) to build a ‘resort’ meaning ‘casino’ in Puerto Rico and couldn’t complete the task. Now, I know he didn’t ever put his tiny hands to shovel, hammer or military rifle but he was The Leader/Boss whatever excuses for himself getting more money from ‘his’ projects than all the people who DID work on ‘his’ projects… Come on, this guy went bankrupt on CASINOS which are infamous for getting the last laugh consistently. Does any sane person really believe he should be allowed to give his infamous s..t midas touch to all life on our increasingly fragile world? it ties in neatly with the following paragraph.

And in the past month he ordered the BLM to give federal lands to ‘energy’ meaning ONLY fossil fuels. What was quietly not discussed was and still is giving all the Tribal water rights, ordered by the Supreme Court when Roosevelt was president, as being the right and first consideration to the Tribes… 110 years ago and that’s Teddy Roosevelt. So the Natives and everybody in America gets to drink mining and oil company waste forever.

Trump has crossed a line I would never have thought possible. I could expect and explain it if what was tweeted had been said by somebody in the terminal stages of alcoholism.

Standing Rockstar Red Fawn is seduced by infiltrator, set up with his gun, then urged by lawyers to cop a plea. What?!

I had a lot of fun at Standing Rock. The spontaneous resistance in Cannonball, ND, and the environmental movement it spearheaded, was for me the most inspiring uprising of 2016. My favorite memories were watching the ever increasing flow of distant tribal delegations make their formal running entrances into the main camp. Indigenous peoples came from across the world to join the largest NDN resistance gathering since the Little Big Horn. I was encouraged to see the keen interest of the international press and documentary filmmakers even though local and national media stayed clear.
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Standing Rock was also not all that it was billed to be. It wasn’t going to be DAPL’s Last Stand. The scene was dominated by patriarchal religious elders who stymied initiative, unity, and best practice at every turn. If it wasn’t for the actions led by the Red Warrior Camp, maligned and disowned by tribal leadership, the gathered “Water Protectors” would not have protected or resisted a thing. Every media victory, every provoked outrage, and every setback for the DAPL was orchestrated against the orders of the official organizers, whose sabotage was abetted by the usual passivist NGO allies and their PC scolds. Reservation chairman Dave Archambault II turned out to be made of straw. When protest momentum threatened to become unstoppable, his agency-indian cronies capitulated to the USG. “DAPL Dave” as he came to be called, evicted the camp himself. (That’s not Archambault above. That’s FBI-informant Heath Harmon, who set up Denver activist Red Fawn. More on that below.)

DAPL-Dave’s true colors were known to Occupy Denver visitors to Standing Rock. Early on we stumbled into a secret meeting at the casino which Dave and his cronies held with the National Guard, the BIA, and state troopers. The forward North Camp, the only encampment which actually blocked the pipeline, was already being surrendered. Yes, back in September! We were ejected under the pretext of being non-native. Meanwhile real Native American activists were furiously searching the halls to attend or disrupt a falsely rumored press conference. Outside the secret meetings, the same cronies pretended to be the camp’s champions and wielded all the authority.

The counterproductive leadership edicts were laughable:
No photos. Wait, what?!
No ‘isms. Yes let’s throw education out with the bathwater.
No activists affiliated with “Anonymous”. Um, why?
Women must wear skirts at the sacred fire. Hahaha in subzero weather!
Camp needs: meat, wood. Unpalatable for environmentalists, also not sustainable.

Another self-defeating hierarchy was the legal branch. At face value it was great to see lawyers stepping forward to offer their services. Their pitch was standard: you’re on your own, use public defenders, but we’ll provide coordination and advice. In practice they’ve proven to be a fiasco. The difficulties are being blamed on the ferocity of federal prosecutors and the hostility of racist North Dakota juries. Yeah, no.

So basically, the narrative is still being written by defeatists. The hundreds of water protectors who face charges have had mixed results in the courts, because the legal team is selling defendants down the river. .

Red Fawn Fallis
At the protest confrontation of October 27, Red Fawn was jumped by two officers when she stepped back from the front line. The arrest was unprovoked, but as she was assaulted, a revolver fired beneath her. She claims she was trying to pull it from her coat. As a convicted felon she is not supposed to carry a firearm so she was trying to shed it. Why did she have the gun? Her lawyers won’t let her explain. The gun was entrusted to her by a new boyfriend at the camp, who turns out to have been . He had been infiltrating the protest camp for months, charting who was leading who, etc. As a result, activist leader Red Fawn Fallis, daughter of Denver indigenous activist Troy Lynn Yellow Wood, was snatched and grabbed, out of the blue, in the absence of protest escalation, because authorities knew Fallis had the gun.

Does that pass the smell test, even for a racist Fargo jury? Apparently the lawyers have polled Fargo.

Red Fawn is charged with many crimes, one that carries a 10-year minimum sentence, and the legal brain trust think she’s toast. Even though the disclosure of informant Harmon hints at other infiltrators scotching the works, authorities are denying motions for further discovery, even potential Brady Material. Can they do that? Yes, but obviously that’s a huge cause to overturn a verdict on appeal. But not for Fawn’s lawyers, they’re crying uncle. So instead of fighting to expose federal, state, Morton County, the Bureau of Indian Affairs, and private security industry overreach, the legal team has convinced Red Fawn to plead guilty. Hoping she won’t get more than seven years.

Fighting the charges, appealing a conviction, appealing again if it comes to that, could take years. Not seven years

Oh, and they’ve prevented Red Fawn from giving public interviews, to keep her from incriminating herself! WHILE they have her give up the right to defend herself! What? What! Make her plead guilty AND forbid her from going public?! Seven years AND a non disclosure clause, when disclosure most matters?!

Technically, the legal team may be representing Red Fawn by the numbers. Preventing her from speaking publicly about what happened is also sound legal advice. But requiring both rejects the very cause for which Red Fawn was fighting. Such cowardly attorneys have no business defending activists. They’re as bad as protest leaders who force demonstrators to stand down.

If the five remaining defendants facing felony charges or the hundreds more facing misdemeanors do not put up a fight, there will be no exposing “Heath Harmon” and his cohorts. Standing Rock was a peaceful assembly. Violence making was alleged but never proved true. Camp leadership was rife with collaborators and fake activists. Quashing the legal defenses is the last step necessary to keep the story from being told. You’re still going to be hearing fund raising requests for the legal expenses of the remaining accused. Attorneys Molly Armour, Jessie Cook and Bruce Ellison have some nerve to pretend they are serving the cause.

Israel blacklists activist groups which most threaten their colonial legitimacy

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–SAYS ISRAEL.
Israel released its of political orgs which pose the biggest threat to their Apartheid colonial project in Palestine. Except — WHO DOES THAT?! Who gives positive feedback to adversaries?! Rather, this is a list of the lesser effective pro-Palestinian campaigns which Zionists would like to see draw energy from the international BDS movement. BDS is universally acknowledged to be Apartheid’s existential nemesis. Hence the regular legislative attempts to make it illegal. BDS took down White South Africa. This BDS is the Boycott, Divestment, and Sanctions campaign against Israeli Apartheid in Palestine.
 
Below is the official “worst enemy” list, which avoids mention of BDS except where the omission would not seem credible. The list is divided by hemisphere. Europe is made to look like BDS there gets only a smattering of support. In the US there’s no BDS group at all, until you notice they’ve relegated to “other!” HAHA!

EUROPEAN ORGANIZATIONS:
France-Palestine Solidarity Association
BDS France
BDS Italy
European Coordination of Committees & Associations for Palestine
Friends of Al-Aqsa
Ireland Palestine Solidarity Campaign
The Palestine Committee of Norway
Palestine Solidarity Association of Sweden
Palestine Solidarity Campaign
War on Want
BDS Kampagne

AMERICAN ORGANIZATIONS:
American Friends Service Committee
American Muslims for Palestine
Code Pink
Jewish Voice for Peace
National Students for Justice in Palestine
US Campaign for Palestinian Rights

OTHER GROUPS:
BDS Chile
BDS South Africa
BDS National Committee

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

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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.

Sorry, I am not your white person

Self dispatched race relations ambassadors who want to guilt their privileged allies to de-escalate activism efforts to make space for passive centrist wankery so long as it’s led by spokepeople of color can stick their identity politics up their cap and gowns. Really. These academic arguments are socially engineered to divide the proletariat and deflect energies from converging on the racists with real power. It’s like the schoolyard bully saying, you got a problem with my violence and enforced inequity? Take it up with your friend who has the lunch money to pay me off. Systemic racism is not remedied by redistributing oppression equally. We’re already seeing cries of “white privilege” when non-black criminals are insufficiently brutalized. Targeting your fellow peons perpetuates the American misconception that progressive ideals eventually win over the power structure. If you must, scold the public at large, not your already activated comrades. Just because I have a sense of social responsibility doesn’t mean I’m going to be shamed into boosting attendance at your liberal reformist symposiums.

D’ya think ANTIFA might be a trap?

盈彩彩票Black Bloc
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.

盈彩彩票Black Bloc

Denver judge dismisses case against masked marcher who knew his rights

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DENVER, COLORADO – US veteran cryptologist Jordan McDuffie was detained after last year’s Million Mask March and charged with two counts, Obstruction and Pedestrian-in-the-roadway, for stepping unto Lincoln Avenue west of the capitol steps when DPD says the Anon- masked protester they believe to have been Jordan ought not have. Before his May 24 jury trial could begin and after offering increasingly favorable plea deals, the city motioned to dismiss the charges.

Jordan, age 26, is a recently discharged vet. He was arrested at the march held every year in Denver on Guy Fawkes Day, Nov5. On November 5, 2016, after meandering about Denver’s pedestrian mall, keeping to the sidewalk as small demonstrations are wont to do, about ten masked protesters stood on northbound Lincoln for less than a minute until cops arrived and the protesters left the street. One masked standee, not Jordan, was chased by officers up and down Capitol Hill but no contact or arrest was made. That marked the end of the otherwise uneventful, nonviolent 2016 march.

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An hour later, after a calm rally of speeches and singing, when everyone had left, Jordan and two vet friends were walking to their car and were jumped by Metro SWAT. Jordan and friends were pushed to the ground by approx twelve officers. One friend had his phone knocked out of his hands as he tried to video Jordan’s arrest. Jordan cried out that the officers were injuring his war wound for which he was discharged but the brutalization continued.

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Two blocks away another participant, African American Kris Randolph, 32, was similarly arrested, in front of his mom. Both he and Jordan were jailed overnight. Without being told he didn’t have to, Kris gave a videotaped interview while in detention. The two were released the next day on $100 PR bonds.

Kris and Jordan were given Colorado state case numbers (16M10457 & 16M10458) which were transferred sixty days later to municipal cases (17GS000146 & 17GS000195), no reason given, except their 90-day speedy trial clocks started only thereafter. Both were assigned to Division 3H with Judge Kerri Lombardi.

Kris, a roofer, father of four, with a minor criminal record, qualified for a public defender. Kris kept a number of court dates but eventually FTA’d at an April disposition hearing. Hopefully Kris can get back on track in view of how Jordan was able to resolve his case.

Jordan represented himself Pro Se through several hearings. Right from the start Jordan submitted multiple motions, one asserting his First Amendment right to assemble in the street etc, another demanding expanded discovery to include the DPD “After Action Report” (AAR) for Nov 5, 2016. An AAR erroneously disclosed in a previous case revealed that 27 undercover officers had been deployed at the 73-attendee 2015 Million Mask March. Judge Lombardi did not agree with Jordan’s assertion that he didn’t need a permit to be in the street, but granted his discovery request. She commanded the city lawyers to inquire about an AAR.

At a March hearing, prosecutors produced an AAR, but it was incomplete, missing the “Staffing detail” pages. The added pages were referenced because there were insufficient lines on the AAR form, but not provided. Jordan complained to the judge that he was seeking a list of all the officers who were on the scene of his alleged offense, including “Shadow Teams” if any, to know whose reports he was entitled to see. Jordan explained that he was not fishing for confidential information, he would be satisfied with the judge performing an In Camera review, so long as he could be assured that the city was discovering all the witness testimony evidence, ie. “Brady Material” relevant to his case. The prosecuting attorney assured the judge that there was no more information to provide.

At the May 8 trial date, the prosecutors declared ready, but pulling him aside in the hall they pushed hard for Jordan to take a plea. They offered Jordan one year probation with deferred sentence, then six months probation, then six months without even having to make a plea. Jordan refused.

After Jordan refused their offers, the city announced it was not ready. They motioned for a continuance because the HALO-cam operator they needed to call as their key witness was suddenly not available that day. Indeed all the probable cause statements cite HALO footage as being the evidence against Jordan and so the city explained they needed the camera operator to testify. A continuance was granted.

One day before his May 24 trial date, Jordan received a notice from the prosecution, seeking to endorse a new witness. Detective Michael Timmerman, badge # P00086, was supposed to be an eyewitness to Jordan’s alleged offense. Not knowing how to properly object, Jordan drafted three motions: 1) to exclude the witness based on the untimely endorsement; 2) to dismiss the charges based on the implication that the state might be withholding evidence of other witnesses whose testimonies could exhonorate him; and 3) to show cause why the city and DPD weren’t in contempt of the court’s order to produce exactly this kind of evidence when asked.

Of course the Timmerman development was a win/win. His being allowed to testify would create grounds to appeal, and his taking the stand would mean being able to ask him under oath about the other Shadow Teams present and what were they assigned to do. Were they, for example, walking into the street, trying to get authentic participants into trouble? Who knows what they were doing and how they planned to differentiate masked offenders from innocents.

Judge Lombardi avoided ruling on Jordan’s three motions by instead deciding not to allow the city to endorse witness Timmerman. Lombardi argued that her continuance had only been granted to allow the HALO operator a second trial date at which to appear.

The city argued that since the last trial date and after closer inspection, the HALO footage was deemed too grainy and inconclusive. The prosecutor even walked up and played it on his laptop for the judge. The city argued they no longer believed that their operator’s testimony would lead to a conviction. The city explained that after much back and forth communication with DPD in the interim, at the eleventh hour, the police agreed to reveal the identity of one of their shadow officers to testify against Jordan, such was the importance to the DPD of pursuing Jordan’s conviction. Without Detective Timmerman as a witness the city said it would not be able to proceed to trial.

Judge Lombardi declined the city’s endorsement, the city motioned to dismiss, and defendant McDuffie was thanked by the judge for his always polite and respectful decorum.

NOW when Kris proceeds with his case, there will be another chance to bring the elusive Detective Timmerman to the stand. What can a DPD shadow officer reveal to everyone under oath?

 

Forget Earth Day, apparently we have to save science, without which we wouldn’t have our environmental mess.

My sign read WE HAVE A POLITICAL SCIENCE PROBLEM because “science” is doing what it’s supposed to, serving its masters. By which I don’t mean politicians have coopted science. Repurposing science and technology to serve the people means an ideological challenge. Of course to anyone who’s attended a US college, “political science” means nothing. It’s a department that may as well be teaching underwater basket weaving to spiders. Absolutely useless and contrived. As neoclassical economics is to economics, which is all the US economics departments teach as well. To overcome capitalism will require a revolution first in US education, not genuflecting before the altar of science. Our “March For Science” felt like an evangelical revival, everyone sharing testimonies of how they’ve been saved by science, or the imperative to put our faith in science. As if it wasn’t science that delivered us into the dire circumstances that require the human community to mark Earth Day. Conservation, not science, is the only recourse we have for better stewardship of the environment. That went unsaid. Also left unsaid by everyone except the socialists: scientists need to spend less energy making weapons.

DIA issues protest permit under court order, but limits crowd size to, wait for it, FOUR! Then court stays injunction.

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DENVER, COLORADO- Abiding by the injunction in McDonnell v Denver, DIA administrators granted us a free speech permit within 24-hours on Thursday, but they insisted that the terminal location desired could only accommodate FOUR PEOPLE. You heard right. Four. There’s irony here too because there were FIVE people named on the permit application! Thus the permit was actually 20% denied, and in reality 92% denied given that we sought a permit for 50 people, a number easily lower than the DIA International Arrivals area can handle.
 
MEANWHILE, in the 10th Circuit Court, the city of Denver appealed the DIA injunction and asked for a stay. This is not usually granted in First Amendment cases, but on Thursday it was. The 10th Circuit stayed the injunction and wants to hear arguments on March 17. So at DIA for now we’re back to the impermissive permit process that precludes accomodating public expression at the Denver airport. And the signing of President Trump’s new improved Muslim Ban looms…

THAT’S the more significant development in the case for free speech at DIA. But let’s get back to our story, to how poorly DIA administrators complied during the small window when our court injunction was in force and DIA was enjoined to be accomodating to the public’s right to expression.

Getting the permit process started was not easy. There are instructions on the DIA website but no application. A call to DIA was routed to a person who insisted we read instructions online. We said we did. She replied that if we had, we’d know what to do. We reiterated that there was no application there, and that we needed an application. She took our names and vowed to have someone call us back. This was at 11:30am.

After an hour we called back, explaining that time was of the essence, as was for them as well in responding to our request. We were given the same instruction, to consult the rules online. We explained that we’d READ the rules, STUDIED THEM in fact, and had them reviewed by a FEDERAL COURT. We exlained there was now a federal injunction to which DIA was bound and we required our permit request to be considered promptly, the first step of which, we presumed to be, the submission of an application! Our call was forwarded to a person who eventually emailed an application blank at approximately 4pm.

We filed the application immediately and here’s the correspondence that resulted:

Mr. Dalton
Please find attached a request for permit to protest at DIA at outside of international arrivals. We are requesting this in an expedited fashion  pursuant to judge Martinez’s decision of a preliminary injunction re: Civil Action No 17-cv-0332-W JM-MJW. A new executive order is anticipated to be announced regarding the “Muslim ban” in the next day or two and we are requesting that the permit be processed within 24 hours to allow for a timely protest. We do not intend to obstruct airport operations. I will send you a copy of the judge’s order in a separate email.

Please note that I contacted the airport to request this permit by telephone at 11:35 am today.
Thank you
Nazli McDonnell

The attached application detailed our request to accomodate up to 50 protesters in the area where people await international arrivals. We received this response at 10:40am the next day:

Nazli McDonnell,

Your request for a permit to protest has been received, and it will be processed as quickly as possible.  Some additional information will help us best respond to your request and will help ensure the safe and efficient flow of passengers while allowing your organization to communicate your message.

.    What times do you expect individuals associated with your organization to be at the airport protesting?  

.    Due to the very limited space for meeters and greeters between the international arrivals exit and the entrance to the north screening checkpoint, we will not be able to approve more than four (4) people with your organization at that location.  All additional protestors, up to 50, would need to assemble on the Plaza between the Terminal and the Westin Hotel.  How does this affect the intent of your protest?

Please respond at your earliest convenience, and feel free to call at the office number list below if you have any questions.

Sincerely,
DAVE DALTON, C.M.
ASSISTANT DIRECTOR – TERMINAL OPERATIONS
Denver International Airport
Airport Operations

To which we replied:

Mr Dalton
We expect to be present at the airport during times that international flights would be arriving and expect to be there a few hours at a time. We do not intend a day long presence at the airport.

If only 4 of us can be accommodated at international arrivals (which seems VERY unreasonable since there are no limit as to how many friends or family members can greet a single passenger) why would the rest of us have to be located outside of the terminal building as opposed to the great hall area which can accommodate many more people and we can reach more people with our message? The intended audience for our message are the travelling public not the hotel guests. This restriction you intend to impose does not seem consistent with Judge Martinez’s recent federal injunction. I am copying our legal counsel to this email. We do not plan to cause congestion, obstruction or disruption at international arrivals or great hall and we can make sure safe passage space is available for travelers and employees at all times.

I hope that a reasonable permit that will allow the intended protest can be processed promptly in accordance with the court ruling.

A permit was issued at end of day Feb 23:

February 23, 2017

TO: ATN — Nazli McDonnell, Citizen

FROM: Department of Aviation, City and County of Denver

RE: Permit Request – 2/22/2017

In accordance with Part 50 Rule 50.04 of the Denver Municipal Airport System’s Rules and Regulations (DEN Rules), the City and County of Denver, by and through its Department of Aviation (City), grants the multiple citizens associated with organization representative, Nazli McDonnell, to hold signs and protest the Executive Orders restricting refugees and Muslim visitors entering the U.S. (Speech Related Activities) at Denver International Airport (DEN). The City grants permission based on the following:

— Unless otherwise exempted herein, Speech Related Activities are conducted in accordance with Rule 50; and

— No more than four (4) people conduct Speech Related Activities at the approved location “A” (see attachment, Terminal map); and

— No more than fifty (50) people conduct Speech Related Activity at the approved location “B” (see attachment, Terminal map); and

— Speech Related Activities at the approved location “A” are conducted outside of the Federal Inspection 盈彩彩票 (FIS) facility on level 5 of the DEN Terminal, as depicted on the attached Terminal map; and

— Speech Related Activities are conducted during flight banks with international passenger arrivals.

— Speech Related Activities are conducted from February 23, 2017, thru March 23, 2017.

An on-site representative from your organization must have a copy of this letter, the attached permit application, and attached Terminal map showing approved locations at all times. The City grants an exemption to Part 50, Rule 50.10, requiring all participants to wear and display the permit. Please ensure that the approved activities do not interfere with the safe and efficient movement of persons to and from the FIS facility and throughout Denver International Airport.

Very respectfully,

Dave Dalton
Assistant Director — Terminal Operations

cc. DEN Terminal Operations file

Denver jury trial for offense of leaving your 盈彩彩票less little dog off the leash

盈彩彩票Adrian Brown arrested June 21, 2016
DENVER, COLORADO- Adrian “Munk” Brown faces trial on Monday, charged his dog being at large on the Lindsey Flanigan Courthouse Plaza. This happened on June 21 of last year, when he was testifying at the trial of a fellow activist. Because Munk wouldn’t let the dog catcher seize his dog, he is charged with interference. Because more than a dozen officers responded to the scene, things escalated from there and Munk was taken to jail. But that’s the pretext. In truth– ADRIAN BROWN WAS TARGETTED, STALKED, TAUNTED & ARRESTED.

1. BRIEF STORY OF INCIDENT
2. PREDICTED SCHEDULE
3. CALL TO ACTION
4. LEGAL DISCLAIMER

1. WHAT HAPPENED?
Ridding the streets of substantive evils, three animal control officers, a dozen courthouse deputies, and half dozen Denver police ultimately arrest Munk for not having an ID card and animal at large. Of course they added obstructing animal control and interference with police.

Join me on the plaza tomorrow at 7am. My unleashed dog will be with me. Who else has a well behaved and appropriate in public canine buddy they can bring?

Am I the only one who finds it somewhat Orwellian that Munk was arrested when SGT A. A. Martinez shows up and asks Munk if he will give him his ID. Then Munk asks him who he is. To which Martinez responds: he will take that as a refusal (to identify) and cuffs and stuffs him. COPS ARE REQUIRED TO PRODUCE THEIR NAME AND BADGE ID NUMBER TO THE PUBLIC UPON DEMAND. Members of the public, whom cops serve, are not required to carry papers or ID card with them. So the Master shall be criminalized for refusing to produce a non-existent ID to a servant upon demand, by a servant who refused to identify himself as required? Did I miss something here?

SGT A. A. MARTINEZ IS A KNOWN DOMESTIC TERRORIST WHO HAS BEEN OBSERVED ACCOSTING A PREGNANT WOMAN FOR SIMPLY SITTING DOWN ON THE GROUND TO REST. (Yes, it is a crime in Denver to sit on the ground).

DEPUTY FOOS is a known terror leader who commands a group of violent terrorists known as the FOOShiban. FOOS and his lawless thugs have harassed, detained, obstructed, pestered, and kidnapped Munk many times in the past – in fact, when a bystander observing this event speaks out and tells Foos he knows who Munk is and to share – HE DOES! He pulls out his little book, flips a few pages, and points to a place on the page to which the animal control officer responds by writing information on the citation clearly implying that Foos knows Adrian Brown well enough to have his identifying information at his finger tips.

2. PREDICTED SCHEDULE OF MONDAY EVENTS:
Based on past trials, I predict the schedule will approximately be:

Day 1
0700 – CHALK-A-THON
0730 – JUROR RIGHTS OUTREACH
0830 – DOCKET BEGINS
1030 – JURY SELECTION
1300 – POLICE TESTIMONY

DAY 2
0900 – BYSTANDER TESTIMONY
1500 – JURY DELIBERATION
1530 – JURY VERDICT – NOT GUILTY

3. CALL TO ACTION
I am advocating not only for you to join us in perfectly legal and utterly appropriate activism educating the public using the courthouse about their rights and encouraging them to exercise them to the fullest.

I am also advocating for civil disobedience. I intend to break a handful of laws tomorrow morning. I have every intention to repeatedly violate the so-called JAYWALKING codes to start with. Then I intend going to graffiti the plaza with sidewalk chalk. All the while I intend to be accompanied by my unleashed wiener dog, Rusty. Then I intend to sit down on the ground – lie down on the ground even. I will be demanding my immediate incarceration for these wonton and deliberate acts in violation of numerous codes. AND I WILL REFUSE TO PRODUCE MY ID CARD. I might even burn a flag or two!

AND I ADVOCATE YOU TO DO THE SAME ILLEGAL ACTS!

4. DO REMEMBER
The above actions are prohibited and if you commit those acts you could be arrested, tried, convicted, AND INCARCERATED FOR YEARS. I’m just saying…

Oh yeah- and this is the same judge who was presented by the prosecutors in another sit and lie trial, PRINTOUTS OF MY FACEBBOOK PAGE, and asked to gag me.

And this is the same judge who put Munk in jail for 20 days contempt simply for stating the scientifical fact that Judge Adam Esponosa is in fact “A PUNK ASS BITCH”.

Occupy allstar Caryn Sodaro breaches bank doors, allows water protectors to ask Denver Wells Fargo to defund DAPL

盈彩彩票Glenn Morris, Caryn Sodaro
DENVER, COLORADO- At the behest of the beseiged Standing Rock encampment currently blocking the Dakota Access Pipeline, Denver water protectors held an unannounced rally on the capitol steps Friday morning and marched prompty to the Wells Fargo building several blocks north. Led by the American Indian Movement, and joined by allies, the predominantly Native American assembly intended to deliver a message to the major banking entity underwriting the Energy Transfer pipeline project. The action Friday was prompted by President Trump’s recent executive order to bypass legal restrictions holding up the drilling. Arriving at the bank, the hundred fifty marchers found all doors locked.

After a few minutes of rallying outside, a door suddenly opened and everyone rushed inside the atrium. That everyone included drummers, dancers, leaders, and television crews.

After a long rally and a round dance were held in the Wells Fargo atrium, another door leading to the bankteller counters miraculously opened and the group was able to rush in to the bank. Behind these miracles was veteran Occupy Denver activist Caryn Sodaro.

The security guards and police were unable to reach the open door in time, so within a minute the lobby was filled with water protectors making loud their demands. Eventually all the banners were gathered inside and multiple television cameras and reporters covered it all.

Occupy Denver has breached the Wells Fargo Building before, in 2011, for an allied action against the predatory bank. The original feat resulted in an arrest.

In the bank lobby, the water protectors chanted and walked in circles as leaders asked to speak to bank representatives. None appeared, and eventually DPD took to a megaphone and gave the gathering three minutes to leave. That was the cue for AIM leader Glenn Morris to spend well over three minutes telling the bank and the police that the water protectors would be back.

盈彩彩票Caryn Sodaro
Caryn Sodaro urges water protectors to raise their voices so that bank officials can hear them from the upper floors.

Caryn’s feat on Friday was unheralded even as participants celebrated their victory. But that’s par for the course for the unsung agitator. Maybe it’s unwise to brag about it here. Nonesense. Activists deserve mythbuilding all the more when the adversarial media and moderate reformists refuse to credit radical actions. I’ve purposefully obfuscated the details of Caryn’s breach so that they remain Occupy Denver trade secrets. But let’s here give Caryn Sodaro her due. If the DPD can glean one lesson from their unsuccessful blockaid of marchers on Friday, it can be this: next time keep better eyes on Caryn!

Occupy v. Martinez (Plaza Protest Ban) 2016 US 10th Circuit Court of Appeals Decision AFFIRMING Prelim Injunction

盈彩彩票
Yesterday I published the federal judge’s order to grant the 2015 preliminary injunction against the Lindsey Flanigan Courthouse. Since that time the city motioned to dismiss, there were show cause hearings, and depositions, and an appeal to the 10th Circuit Court of Appeals. On April 8, 2016 the appeals court AFFIRMED the preliminary injunction. As a result this legal action is on the road to becoming a permanent injunction, to be decided at trial this April. The prospects look promising, based on how the appelate judges schooled our First Amendment adversaries. I’m reprinting their full decision below.

In particular you might enjoy Judge McHugh’s citing of US Supreme Court Justice Owen Roberts, writing in 1939 for the majority, in a decision to uphold public first amendment rights in Hague v. [AFL-]CIO. Robert affirmed that streets were traditional free speech areas:

“Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.”

Here’s the full 2016 opinion rejecting Denver’s appeal of our federal injunction:

Document: 01019599889 Date Filed: 04/08/2016

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

_________________________________

ERIC VERLO; JANET MATZEN; and FULLY INFORMED JURY ASSOCIATION,

Plaintiffs – Appellees,

v.

THE HONORABLE MICHAEL MARTINEZ, in his official capacity as Chief Judge of the Second Judicial District,

Defendant – Appellant,

v.

THE CITY AND COUNTY OF DENVER, COLORADO, a municipality; ROBERT C. WHITE, in his official capacity as Denver Chief of Police,
Defendants – Appellees.

_______________

FILED ?United States Court of Appeals Tenth Circuit

April 8, 2016

Elisabeth A. Shumaker Clerk of Court

No. 15-1319

_________________________________

Appeal from the United States District Court for the District of Colorado ?(D.C. No. 1:15-CV-01775-WJM-MJW)
_________________________________

Stephanie Lindquist Scoville, Senior Assistant Attorney General, Office of the Attorney General for the State of Colorado, Denver, Colorado (Cynthia H. Coffman, Attorney General; Frederick R. Yarger, Solicitor General; Matthew D. Grove, Assistant Solicitor General; Ralph L. Carr, Colorado Judicial Center, Denver, Colorado, with her on the briefs) for Defendant – Appellant.

David A. Lane, Killmer, Lane & Newman, LLP, Denver, Colorado, for Plaintiffs – Appellees.

Wendy J. Shea, Assistant City Attorney; Geoffrey C. Klingsporn, Assistant City Attorney; Evan P. Lee, Assistant City Attorney; Cristina Peña Helm, Assistant City Attorney, Denver City Attorney’s Office, Denver, Colorado, filed a brief on behalf of Defendants – Appellees.
_________________________________

Before BRISCOE, McKAY, and McHUGH, Circuit Judges.
_________________________________

McHUGH, Circuit Judge.
_________________________________

This is an interlocutory appeal challenging the district court’s grant of a preliminary injunction, enjoining in part the enforcement of an administrative order (Order) issued by Defendant-Appellant Judge Michael Martinez, acting in his official capacity as Chief Judge of the Second Judicial District of Colorado (Judicial District). The Order prohibits all expressive activities within an area immediately surrounding the Lindsey-Flanigan Courthouse in Denver (Courthouse). Plaintiffs-Appellees Eric Verlo, Janet Matzen, and the Fully Informed Jury Association (collectively, Plaintiffs) sought the preliminary injunction to stop enforcement of the Order against their expressive activities. Following an evidentiary hearing, the district court enjoined enforcement of a portion of the Order as against Plaintiffs. The Judicial District now appeals.

Based on the arguments made and evidence presented at the preliminary injunction hearing, we hold the district court did not abuse its discretion in granting Plaintiffs’ motion in part. Although we affirm the district court’s order granting a limited preliminary injunction, we express no opinion as to whether a permanent injunction should issue. Instead, we provide guidance to the district court and the parties regarding the factual inquiry and the applicable legal standard relevant to that question on remand.

I. BACKGROUND

The genesis of this case is an incident involving nonparties. On July 27, 2015, two men were distributing pamphlets on the plaza outside the Courthouse (Plaza). The pamphlets contained information about jury nullification, a practice in which a jury refuses to convict a defendant despite legal evidence of guilt because the jury members believe the law at issue is immoral. 1 Both men were arrested and charged with jury tampering in violation of Colorado law. See Colo. Rev. Stat. § 18-8-609(1) (“A person commits jury-tampering if, with intent to influence a jury’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.”).

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1 Jury nullification has been defined as “[a] jury’s knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury’s sense of justice, morality, or fairness.” Jury Nullification, Black’s Law Dictionary (10th ed. 2014).
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Plaintiffs, like the men who were arrested, wish to distribute literature relating to and advocating for jury nullification to individuals approaching the Courthouse who might be prospective jurors. Fearing they too would be subject to arrest, Plaintiffs brought suit against the City and County of Denver and Robert C. White, Denver’s police chief, in his official capacity (collectively, Denver) to establish their First Amendment right to engage in this activity. On the same day they filed suit, Plaintiffs also moved for a preliminary injunction, seeking to restrain Defendants from taking action to prevent Plaintiffs from distributing jury nullification literature on the Plaza. Two days later, Plaintiffs amended their complaint to also challenge the Order issued by the Judicial District.

That Order, entitled Chief Judge Order Regarding Expressive Activities at the Lindsey-Flanigan Courthouse, states in relevant part:

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, 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, but is not limited to, 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. ?

The Order was accompanied by an image depicting an aerial view of the Courthouse and its grounds, with the areas in which the Order prohibited expressive activity highlighted in yellow (Restricted Areas).

盈彩彩票

The Courthouse is bordered on its north side by Colfax Avenue and on its west side by Fox Street. Both Colfax Avenue and Fox Street have public sidewalks running along the perimeter of the Courthouse. Immediately to the east of the Courthouse lies the Plaza. The Plaza is bisected by Elati Street, which is closed to traffic other than police vehicles. Elati Street runs through a large circular area (Main Plaza) between the Courthouse and the Van Cise-Simonet Detention Center (Detention Center), which houses pretrial detainees. The Main Plaza contains planters, benches, public artwork, sidewalks, and gravel areas and is suitable for public gatherings.

Of relevance to this appeal are the Restricted Areas, which include an arc-shaped walkway and planter area immediately to the east of the Courthouse. The arced walkway runs from the corner of Elati Street and Colfax Avenue in a curved path across the front of the Courthouse and ends where it intersects with an open area in front of the Courthouse containing planters and benches (the Patio), which also forms part of the Restricted Areas. The Patio provides access to the main entrance on the east side of the Courthouse. Thus, the Restricted Areas encompass only the portions of the Plaza closest to the Courthouse.

The Judicial District opposed Plaintiffs’ motion for a preliminary injunction and, in doing so, defended the Order. In contrast, Denver entered into a joint stipulation (the Stipulation) with Plaintiffs. The Stipulation asserted that the entire Plaza between the Courthouse and the Detention Center—specifically including the Restricted Areas—was “a public forum and any content-based regulations must be narrowly drawn to effectuate a compelling state interest and reasonable time, place and manner regulations.” It further acknowledged that Plaintiffs were entitled to distribute jury nullification literature on the Plaza and pledged that Denver would 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 Stipulation specifically referenced the Judicial District’s Order, indicating Denver did not “intend to enforce [the 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.”

At the preliminary injunction hearing, the parties called only two witnesses. Plaintiffs called Commander Antonio Lopez of the Denver Police Department. Commander Lopez described the Plaza as a public “open space” much like the city’s various parks. He testified that in the five years since the Courthouse opened he has witnessed “more First Amendment activity take place in [the Plaza] than [he] can recall.” Specifically, Commander Lopez described a variety of protest activities “at one point . . . averaging about two or three a week” in the Plaza. He further testified that the Denver Police Department had never taken steps to stop protest activity in the Plaza, other than intervening if protesters became violent or otherwise broke the law. Relevant to this appeal, Commander Lopez testified that in his experience, the entire Plaza—including the Restricted Areas—has traditionally been used for First Amendment protest activities. On cross-examination, Commander Lopez acknowledged that the “majority” of the protests in the Plaza occurred closer to the Detention Center, but that he had also seen protests directed at the Courthouse.

The Judicial District called Steven Steadman, administrator of judicial security for Colorado. Mr. Steadman testified that the Order was motivated by concern about anticipated protests of a verdict in a death penalty case being tried at the Courthouse.?Mr. Steadman explained that he met with Chief Judge Martinez to discuss security concerns relating to that verdict and recommended the Judicial District adopt a policy similar to one recently implemented in Arapahoe County during another high-profile capital trial.

Mr. Steadman also testified about the design of the Plaza, including the Restricted Areas. He indicated that the planters, gravel areas, and sidewalks were intentionally designed to “signal to the average user how to find their way, and where you should go and what the main travel ways are.” Mr. Steadman explained that the Patio and arced walkway’s “sole purpose is to allow people, the public, to enter and exit the [Courthouse] without being interfered with.” But Mr. Steadman also stated that, prior to imposition of the Order, protestors—including pamphleteers—were allowed to protest immediately in front of the doors to the Courthouse, provided they did not interfere with ingress or egress from the Courthouse. He explained that the “general response” of protestors was to cease their activities when requested by Courthouse security not to interfere with public access to the Courthouse. Mr. Steadman further testified that no person had ever been arrested for blocking ingress or egress from the Courthouse since it opened in 2010. Important to this appeal, Mr. Steadman acknowledged that Plaintiffs’ activities of passing out jury nullification literature did not present “any security risk” beyond what had previously been tolerated without incident throughout the time the Courthouse had been open.

The district court also accepted a proffer of Plaintiffs’ testimony, indicating that their intent was to approach people entering the Courthouse to discuss quietly the concept of jury nullification and to distribute their literature. Plaintiffs asserted that proximity to the front door of the Courthouse was key to their message because otherwise their intended audience—“people who are going to serve or are in fact serving on juries”—will “very frequently just bypass them” in the designated free speech zone by “walking on one of the sidewalks that is part of the [Restricted Areas].” By contrast, positioning themselves near the front door would allow Plaintiffs “to pass out literature to anyone who wants it” and “if people want to stop and talk about [it], they can then explain to them what the concept of jury nullification is.” Thus, according to Plaintiffs, the Order effectively prevented them from reaching their target audience. Finally, the district court accepted the parties’ jointly stipulated exhibits, which consisted of a series of images of the Plaza and Restricted Areas, as well as a copy of the Order.

Following the evidentiary hearing, the district court granted Plaintiffs’ request for a preliminary injunction. In doing so, the district court relied on Denver’s Stipulation that the Plaza was a public forum and the Judicial District’s position that resolving the forum status was not necessary because the Order “would satisfy even the strictest test.” The district court concluded Plaintiffs had demonstrated a likelihood of success on the merits because, treating the Restricted Areas as public fora, the Order’s complete ban on expressive activity was not narrowly tailored to accomplish a significant government interest.

Accordingly, the district court entered a carefully circumscribed preliminary injunction in favor of Plaintiffs. Specifically, the district court enjoined enforcement of Paragraph 1 of the Order against Plaintiffs “to the extent he or she is otherwise lawfully seeking to distribute and/or orally advocate the message contained in [Plaintiffs’ pamphlets]” in the Restricted Areas. But the district court expressly left the remainder of the Order in place.

Following entry of the preliminary injunction, the Judicial District moved to stay the injunction pending appeal pursuant to Rule 62(c) of the Federal Rules of Civil Procedure. In its motion to stay, the Judicial District introduced evidence that— subsequent to entry of the preliminary injunction—protesters had “descended on the Courthouse Plaza” and engaged in a pattern of disruptive and inappropriate behavior, including erecting canopies, harassing citizens seeking to enter the Courthouse, damaging the Courthouse landscaping, yelling and taunting court personnel, and posting signs in the planters and on the flagpoles in the Plaza. The Judicial District argued that a stay of the injunction was appropriate because protesters had been “emboldened” by the injunction to violate even the portions of the Order not subject to the injunction, thereby irreparably harming the Judicial District. The district court declined to stay the injunction, finding the Judicial District had not demonstrated a likelihood of success on appeal because the harm identified was not caused by the injunction. The district court reasoned the Judicial District and Denver were free to enforce the Order against the parties engaging in the complained-of disruptive behavior because such behavior was unlawful and not protected by the narrow injunction issued by the court with respect to Plaintiffs’ activities only.

The Judicial District now appeals. Exercising jurisdiction pursuant to 28 U.S.C. § 1292(a)(1), we affirm.

II. DISCUSSION

On appeal, the Judicial District raises two arguments. First, it asserts the district court erred when it concluded the Plaintiffs had demonstrated a likelihood of success in establishing the Restricted Areas are public fora. Second, the Judicial District argues the district court incorrectly applied strict scrutiny when evaluating the Order. As a result, the Judicial District asks this court to reverse the district court’s entry of the preliminary injunction and remand for further proceedings.

We review the district court’s grant of a preliminary injunction for abuse of discretion. Planned Parenthood of Kan. & Mid-Mo. v. Moser, 747 F.3d 814, 822 (10th Cir. 2014). “A district court abuses its discretion when it commits an error of law or makes clearly erroneous factual findings.” Id.

A. Scope of Review

Before addressing the merits of the parties’ arguments, we pause to clarify the scope of our review. The district court granted a narrow preliminary injunction drafted to address Plaintiffs’ First Amendment concerns related to their specific expressive activities. Although Plaintiffs asked the district court to prohibit enforcement of the entire Order, the court enjoined only the first paragraph, which imposes a complete ban on First Amendment activities—picketing, pamphleteering, protesting—within the Restricted Areas. The district court left in place the rest of the Order, including the prohibitions against obstructing Courthouse entrances, erecting structures, and using sound amplification equipment in the Restricted Areas.

The district court further limited the scope of the preliminary injunction by enjoining the first paragraph of the Order only as to Plaintiffs’ specific pamphleteering activities. In fact, the court enjoined enforcement of the Order only as to Plaintiffs’ distribution and discussion of two specifically identified pamphlets. The Judicial District remains free to enforce the first paragraph of the Order—even against Plaintiffs—for all other First Amendment activities within the Restricted Areas.

Finally, the district court limited the geographic scope of the injunction. Although the Order prohibits First Amendment activity both inside and outside the Courthouse, the district court enjoined enforcement of Paragraph 1 as to Plaintiffs only outside the Courthouse, leaving the entirety of the Order intact within the Courthouse. And the district court did not enjoin enforcement of any part of the Order within those portions of the Restricted Areas dedicated to Courthouse landscaping and security features. Thus, the Order continues to prohibit all expressive activity in the planter boxes or other landscaping and in the gravel security areas. Accordingly, the features of the Restricted Area to which the preliminary injunction applies are limited to (1) the arced walkway running south from Colfax Avenue between the gravel security area (to the west of the walkway) and a raised planter (to the east of the walkway) and ending at the Patio area at the main entrance on the east side of the Courthouse; 2 and (2) the Patio area at the main entrance. 3

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2 As discussed, the Order’s prohibition on expressive activities in the planter and gravel security areas were not enjoined by the district court.

3 The evidence presented about the geographic layout and physical features of the Restricted Area consisted primarily of approximately fifteen photographs. Because the record contains little testimony about the photographs, we rely on our own review of them to describe the Restricted Areas. In particular, it is unclear whether and to what extent the Restricted Areas include the sidewalk running along Fox Street on the west side of the Courthouse. The exhibit appears to highlight some areas of the sidewalk, but counsel for the Judicial District conceded at oral argument that it would be “constitutionally questionable” to prevent speech on a public sidewalk, and then indicated “[t]hat is precisely why the order here does not extend that far.” Therefore, we do not treat the Fox Street sidewalk as part of the Restricted Areas for purposes of our analysis.
——————

Our task in this appeal is to determine whether the district court abused its discretion when, based on the record before it at the preliminary injunction hearing, it issued this narrow, targeted injunction. But the Judicial District asks us to consider events occurring after the preliminary injunction hearing to determine whether the district court abused its discretion in issuing the preliminary injunction. Specifically, the Judicial District points to evidence introduced during the Rule 62(c) hearing on the motion to stay the injunction pending appeal, which indicated that following the injunction, protestors had engaged in a series of inappropriate and disruptive behaviors. Some of these behaviors included harassing court personnel seeking to enter the Courthouse, erecting canopies and signs, and trampling Courthouse landscaping. According to the Judicial District, these post-injunction events demonstrate the “concrete concerns” motivating the creation of the Restricted Areas and therefore should have been considered by the district court.

Although we share the Judicial District’s concern about the disruptions created by some protestors following issuance of the injunction, these post-injunction events are not relevant to our resolution of this interlocutory appeal for two reasons. First, this evidence relates to events occurring after the preliminary injunction issued, and therefore none of it was presented to the district court at the hearing. We will not hold that the district court abused its discretion based on evidence not before it when it ruled. See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998) (noting the general principle, in the context of de novo review of a summary judgment disposition, that we conduct our review “from the perspective of the district court at the time it made its ruling, ordinarily limiting our review to the materials adequately brought to the attention of the district court by the parties”); Theriot v. Par. of Jefferson, 185 F.3d 477, 491 n.26 (5th Cir. 1999) (“An appellate court may not consider . . . facts which were not before the district court at the time of the challenged ruling.”). Cf. Ambus v. Granite Bd. of Educ., 975 F.2d 1555, 1569 (10th Cir. 1992) (“[W]e will not reverse the grant of summary judgment . . . based on evidence not before the district court.”). Accordingly, our review is limited to the evidence before the district court at the time of the preliminary injunction hearing, and we will not consider post-injunction events.

Second, even if we were to consider the post-decision evidence, it would not alter our analysis. The evidence the Judicial District relies on to demonstrate the negative effects of the preliminary injunction, in fact, does not implicate the injunction at all. As discussed, the preliminary injunction enjoins enforcement of Paragraph 1 of the Order specifically against Plaintiffs’ pamphleteering activities in certain parts of the Restricted Areas. The district court expressly allowed the Judicial District to continue enforcing the entire Order as to all other parties and all other First Amendment activities in the Restricted Areas. Importantly, the preliminary injunction does not affect the Judicial District’s ability to enforce the Order against any protestors, including the Plaintiffs, who engage in disruptive behaviors. For example, the injunction does not prohibit the Judicial District from taking action against protestors who obstruct Courthouse entrances, damage the Courthouse landscaping, or erect structures. All of this behavior remained prohibited by the Order after issuance of the injunction. In short, nothing in the preliminary injunction before us on appeal interferes with the Judicial District’s or Denver’s ability to enforce the Order against anyone, including Plaintiffs, engaging in such behavior.

The evidence of post-injunction bad behavior of some protestors may be relevant on remand to a motion to modify the injunction4 or to the district court’s ultimate decision on whether to issue a permanent injunction. But for the purposes of this appeal, we limit our review to the evidence before the district court at the time it issued the preliminary injunction.

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4 As the district court noted, the Judicial District did not move to modify the preliminary injunction based on changed circumstances. See Fed. R. Civ. P. 60(b)(5) (allowing a party to obtain relief from a judgment or order when “applying [the judgment or order] prospectively is no longer equitable”); Horne v. Flores, 557 U.S. 433, 447 (2009) (noting that under Rule 60(b)(5) “[t]he party seeking relief bears the burden of establishing that changed circumstances warrant relief”).
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B. Abuse of Discretion

We now turn our attention to the question of whether the district court abused its discretion when it issued the preliminary injunction.

To obtain a preliminary injunction the moving party must demonstrate: (1) a likelihood of success on the merits; (2) a likelihood that the moving party will suffer irreparable harm if the injunction is not granted; (3) the balance of equities is in the moving party’s favor; and (4) the preliminary injunction is in the public interest.

Republican Party of N.M. v. King, 741 F.3d 1089, 1092 (10th Cir. 2013). In the First Amendment context, “the likelihood of success on the merits will often be the determinative factor” because of the seminal importance of the interests at stake. Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1145 (10th Cir. 2013) (internal quotation marks omitted); see also Heideman v. S. Salt Lake City, 348 F.3d 1182, 1190 (10th Cir. 2003) (“[T]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”).

1. The district court did not abuse its discretion in finding the second, third, and fourth factors weighed in Plaintiffs’ favor.

Here, the district court found the second (irreparable harm), third (balance of equities), and fourth (public interest) factors weighed in Plaintiffs’ favor in light of the important First Amendment interests at stake. As an initial matter, the Judicial District has not challenged the district court’s determination as to these factors beyond a single footnote in its opening brief stating it had challenged them before the district court. A party’s offhand reference to an issue in a footnote, without citation to legal authority or reasoned argument, is insufficient to present the issue for our consideration. See San Juan Citizens All. v. Stiles, 654 F.3d 1038, 1055–56 (10th Cir. 2011). Accordingly, the Judicial District has waived any challenge to the district court’s findings related to the elements of irreparable harm, the balance of equities, and the public interest. But even if the Judicial District had properly challenged these factors on appeal, we would nevertheless affirm the district court’s conclusion that they weigh in Plaintiffs’ favor.

The Supreme Court has instructed that “[t]he 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 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.”). There is no dispute that Plaintiffs’ pamphleteering constitutes First Amendment activity. See McCullen v. Coakley, 134 S. Ct. 2518, 2536 (2014) (recognizing that one-on-one communication and leafletting are First Amendment-protected activities). And the Judicial District does not dispute that the Order would bar Plaintiffs from engaging in their pamphleteering in the Restricted Areas. Accordingly, the district court did not abuse its discretion in finding that the factor of irreparable harm weighs in Plaintiffs’ favor.

The third factor—balance of equities—also tips in Plaintiffs’ favor. Before the district court, Plaintiffs proffered testimony that the Order would substantially impair their ability to convey their intended message to their target audience because it would prevent Plaintiffs from approaching potential jurors and engaging in a meaningful discussion of jury nullification. The district court also heard testimony from Mr. Steadman that Plaintiffs’ distribution of jury nullification literature and one-on-one discussions with potential jurors did not present a security risk. And the Judicial District presented no evidence that Plaintiffs’ activities otherwise interfered with Courthouse functions. On this record, the district court did not abuse its discretion in finding the balance of equities weighed in favor of Plaintiffs. See Awad, 670 F.3d at 1132 (“Delayed implementation of a [governmental] measure that does not appear to address any immediate problem will generally not cause material harm, even if the measure were eventually found to be constitutional and enforceable.”).

As to whether the preliminary injunction is in the public interest, we agree with the district court that “it is always in the public interest to prevent the violation of a party’s constitutional rights.” Id. (internal quotation marks omitted); Pac. Frontier v. Pleasant Grove City, 414 F.3d 1221, 1237 (10th Cir. 2005) (“Vindicating First Amendment freedoms is clearly in the public interest.”). The district court did not abuse its discretion in finding the public interest was served by issuing the preliminary injunction to prevent the violation of Plaintiffs’ First Amendment rights.

Thus, we agree the second, third, and fourth factors weigh in Plaintiffs’ favor. The only remaining question, then, is whether the district court abused its discretion in finding Plaintiffs demonstrated a likelihood of success on the merits. 5 Specifically, we must determine whether the Order violated Plaintiffs’ First Amendment right to distribute jury nullification pamphlets and engage in one-on-one conversations with individuals entering and leaving the Courthouse.

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5 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). “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). But because we conclude the district court did not abuse its discretion in finding Plaintiffs demonstrated a likelihood of success on the merits, we need not decide whether this more lenient test applies.
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2. On this record, the district court did not abuse its discretion in finding Plaintiffs demonstrated a likelihood of success on the merits.

To demonstrate a violation of their First Amendment rights, Plaintiffs must first establish that their activities are protected by the First Amendment. See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797 (1985). If so, a court must identify whether the challenged restrictions impact a public or nonpublic forum, because that determination dictates the extent to which the government can restrict First Amendment activities within the forum. See id. Finally, courts must determine whether the proffered justifications for prohibiting speech in the forum satisfy the requisite standard of review. Id. We address each element in turn.

a. Plaintiffs’ activities are protected by the First Amendment

The Supreme Court recently reaffirmed that pamphleteering and one-on-one communications are First-Amendment-protected activities. See McCullen, 134 S. Ct. at 2536. The Court “observed that one-on-one communication is the most effective, fundamental, and perhaps economical avenue of political discourse” and that “no form of speech is entitled to greater constitutional protection” than leafletting. Id. (internal quotation marks and alteration omitted). The Court went on to state, “[w]hen the government makes it more difficult to engage in these modes of communication, it imposes an especially significant First Amendment burden.” Id. Thus, Plaintiffs’ activities are protected by the First Amendment.

b. The district court did not abuse its discretion by assuming for purposes of analysis that the Restricted Areas are public fora

To properly place the district court’s decision in context, we begin with a brief discussion of the significance of forum status to the protection afforded under the First Amendment to public speech on government property. We then review the argument presented by the Judicial District to the district court regarding the forum status of the Restricted Areas here. Because the Judicial District either made a strategic decision to forgo any argument that the Restricted Areas are nonpublic fora, or inadequately presented that argument to the district court, we conclude the argument is waived. As a result, the district court did not abuse its discretion by scrutinizing the Order under public forum analysis for purposes of the preliminary injunction motion.

Turning now to the constitutional restrictions on speech, our analysis is guided by Plaintiffs’ wish to engage in First Amendment-protected activity on government property. “Nothing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker’s activities.” Cornelius, 473 U.S. at 799–800. But in some instances, the public may have acquired by tradition or prior permission the right to use government property for expressive purposes. See id. at 802. To determine when and to what extent the Government may properly limit expressive activity on its property, the Supreme Court has adopted a range of constitutional protections that varies depending on the nature of the government property, or forum. Id. at 800.

The Court has identified three types of speech fora: the traditional public forum, the designated public forum, and the nonpublic forum. Id. at 802. Traditional public fora are places that by long tradition have been open to public assembly and debate. See id.; Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983) (“At one end of the spectrum are streets and parks which ‘have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.’” (quoting Hague v. Comm. for Indus. Org., 307 U.S. 496, 515 (1939))). In these traditional public fora, the government’s right to “limit expressive activity [is] sharply circumscribed.” Id. A designated public forum is public property, not constituting a traditional public forum, which the government has intentionally opened to the public for expressive activity. Id. The government is not required to retain the open character of the property indefinitely, but “as long as it does so, it is bound by the same standards as apply in a traditional public forum.” Id. at 46. If the property is not a traditional public forum and it has not been designated as a public forum, it is a nonpublic forum. “Access to a nonpublic forum . . . 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.’” 6 Cornelius, 473 U.S. at 800 (brackets omitted) (quoting Perry Educ., 460 U.S. at 46).

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6 Not relevant to this appeal, the Supreme Court has also recognized that the government can create a “limited public forum” by allowing “selective access to some speakers or some types of speech in a nonpublic forum,” while not opening “the property sufficiently to become a designated public forum.” Summum v. Callaghan, 130 F.3d 906, 916 (10th Cir. 1997) (citing Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829–30 (1995)).
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Because the nature of the forum dictates the standard of scrutiny with which restrictions on speech are reviewed, courts typically begin the analysis of a challenge to restrictions on speech involving government property by identifying the nature of the forum involved. See, e.g., Doe v. City of Albuquerque, 667 F.3d 1111, 1128 (10th Cir. 2012). But the procedural posture of this appeal restricts the scope of our inquiry. That is, we need not determine whether the Restricted Areas are, in fact, public or nonpublic fora to resolve this interlocutory appeal. Rather, our task is to determine whether the district court abused its discretion when it found, based on the evidence and arguments presented, that Plaintiffs had demonstrated a likelihood of success on the merits. See Atchison, Topeka & Santa Fe Ry. Co. v. Lennen, 640 F.2d 255, 261 (10th Cir. 1981) (“It is only necessary that plaintiffs establish a reasonable probability of success, and not an ‘overwhelming’ likelihood of success, in order for a preliminary injunction to issue.”). Because the Judicial District waived any argument that the Restricted Areas are nonpublic fora, we conclude the district court did not abuse its discretion by evaluating the Plaintiffs’ likelihood of success under the scrutiny applicable to public fora.

To explain our rationale for this conclusion, we track the evolution of the Judicial District’s arguments in the district court regarding the forum status of the Restricted Areas. Plaintiffs argued in their motion for preliminary injunction that the entire Plaza, including the Restricted Areas, constitutes a traditional public forum. Denver also stipulated with Plaintiffs that the Plaza is a public forum.

In response to the motion for preliminary injunction, the Judicial District claimed Plaintiffs were unlikely to prevail on the merits of their First Amendment claim because “[i]rrespective of Denver’s view of the courthouse plaza, it is not a traditional public forum. And even if it were, the [Order] comes nowhere near banning all expressive activity in that area. To the contrary, it is a reasonable time, place, and manner restriction.” But the Judicial District did not then provide any support for its assertion that the Plaza is not a public forum. Rather, it first claimed that Plaintiffs lacked standing to challenge the Order and then continued its argument under the heading, “This Court need not decide whether the plaza is a traditional public forum for the purposes of this proceeding.” Under that heading, the Judicial District asserted that the Stipulation between the Plaintiffs and Denver did not bind the Judicial District or the district court and that therefore “[t]he status of the plaza is an open question.” But, again, rather than present argument on the correct forum status of the Plaza or ask the district court to reach a contrary conclusion, the Judicial District stated the district court need not identify the precise forum status of the Restricted Areas “because [the Order] would satisfy even the strictest test.” That is, the Judicial District claimed that “[e]ven if Plaintiffs were correct that the entire plaza is a traditional public forum,” and thus subject to a higher standard of review, the Order was constitutional as a reasonable time, place, and manner restriction. The Judicial District maintained this tactical approach through oral argument on the motion for a preliminary injunction.

After the close of evidence at the hearing on Plaintiffs’ motion for a preliminary injunction, the district court attempted to clarify the Judicial District’s position:

THE COURT: In your briefing the Attorney General took the position that it doesn’t matter whether the area in question is a public forum or a non-public forum area, because the Attorney General believes that you can establish the grounds necessary under the standards to apply in either case.

JUDICIAL DIST.: To be clear, our position is that this is not a public forum. However, that is a factually intensive question that I don’t think the Court has been presented with sufficient evidence to decide today.

THE COURT: Well, I have a stipulation from the owner of the property that it is a public forum area.

JUDICIAL DIST.: I understand that. I don’t think that binds either [the Judicial District] or this Court.

THE COURT: Well, that’s something I need to decide, right?

JUDICIAL DIST.: Not necessarily.

THE COURT: Okay. But here’s what I am getting at. Your position is, whether it’s public or non-public, you believe that the . . . Plaza Order . . . is sufficiently narrowly tailored to meet the concerns of ingress and egress to the courthouse and threat to the public safety. Is that your position?

JUDICIAL DIST.: Yes. Our position is that the order satisfies time, place, and manner requirements. . . .

The discussion then proceeded under the assumption that the Order impacted a public forum and therefore had to be narrowly tailored. Recall that the government has broad discretion to restrict expressive activity in a nonpublic forum, irrespective of whether the restrictions are narrowly tailored. Perry Educ., 460 U.S. at 46. But, as will be discussed in more detail below, even content-neutral restrictions on speech in a public forum—whether a traditional public forum or a designated public forum—must be narrowly tailored to advance a significant government interest. See id. at 45–46.

Consistent with its acquiescence to the district court’s application of a public forum analysis at the preliminary injunction stage, the Judicial District limited its oral argument on the motion for preliminary injunction to the proper definition of “narrowly- tailored.” Tellingly, the Judicial District provided no argument relevant to whether the Restricted Area was, in fact, a public forum, or that the restrictions did not have to be narrowly tailored at all because they impacted only nonpublic fora. Instead, the Judicial District conceded that the evidence was insufficient to allow the district court to determine the forum status of the Restricted Areas. But it claimed the district court could proceed to the merits under a public forum analysis nevertheless, because the result would be the same whether the Restricted Areas were public or nonpublic fora. That is, the Judicial District argued the district court could assume for purposes of analysis that the Restricted Areas are public fora. And the district court did as suggested in its Order Granting Motion for Preliminary Injunction.

In the Preliminary Injunction Order’s discussion of the likelihood that Plaintiffs will succeed on the merits, the district court discussed forum in a section titled, “Is the Courthouse Plaza a Public Forum?” In this section, the district court considered the significance of the nature of the forum, the disagreement between Denver and the Judicial District on that issue, and the Stipulation between Denver and Plaintiffs that the Restricted Areas are public fora. Relying in part on the Stipulation, the district court concluded Plaintiffs are “likely to prevail in their claim that the Courthouse Plaza is at least a designated public forum, if not a traditional public forum.” But the district court also notes “the Second Judicial District has not specifically 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.’”

Our review of the record is consistent with the district court’s assessment of the Judicial District’s argument. During the briefing and argument to the district court in opposition to Plaintiffs’ motion for preliminary injunction, the Judicial District never provided legal argument supporting its conclusory statement that the Restricted Areas are nonpublic fora. As noted, it instead indicated the forum status of the Plaza was an open question the district court need not decide, and further conceded it was a question the district court could not decide based on the evidence presented. In sum, the Judicial District made the strategic decision to accept Plaintiffs’ characterization of the Restricted Areas as a public forum for purposes of analysis and to present only an argument that the Order is constitutional under the scrutiny applicable to restrictions of speech in public fora. And the Judicial District maintained that position throughout the district court proceedings.

The Judicial District filed a motion in the district court to stay the injunction pending appeal, in which it stated “courthouse plazas are not traditional public fora,” and cited, without further analysis, Hodge v. Talkin, 799 F.3d 1145 (D.C. Cir. 2015), a new decision at the time holding the plaza of the Supreme Court building is not a public forum. But again, the Judicial District did not seek a ruling that the Restricted Areas are nonpublic fora or provide reasoned analysis to support such a claim. Consistent with its earlier strategy, the Judicial District argued that “even if the [Courthouse Plaza] were a traditional public forum,” the district court applied the wrong level of scrutiny. Significantly, the Judicial District never claimed it could bar or reasonably restrict speech in the Restricted Areas because they were nonpublic fora; it argued the district court had erred because “[s]trict scrutiny applies only to content-based restrictions on speech in a public forum.”

For the first time on appeal, the Judicial District provides substantive argument for the claim that the Restricted Areas are nonpublic fora and, therefore, the district court should have considered only whether the content-neutral restrictions contained in the Order were reasonable. When a party pursues a new legal theory for the first time on appeal, we usually refuse to consider it. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127–28 (10th Cir. 2011); Lone Star Steel Co. v. United Mine Workers of Am., 851 F.2d 1239, 1243 (10th Cir. 1988) (“Ordinarily, a party may not lose in the district court on one theory of the case, and then prevail on appeal on a different theory.”).

As noted, the Judicial District was aware of the “open question” with respect to the forum status of the Restricted Areas but made the strategic decision to forgo presenting meaningful argument on this point. In its response brief to Plaintiffs’ motion for preliminary injunction filed with the district court, the Judicial District cited three cases in support of its statement that the forum question remains open. But it provided no argument incorporating those decisions into a cogent legal analysis of the Restricted Areas as nonpublic fora. See United States v. Wooten, 377 F.3d 1134, 1145 (10th Cir. 2004) (“The court will not consider such issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation.” (internal quotation marks omitted)). And although forum status is a fact-intensive inquiry, the Judicial District failed to explain how the particular facts here color that analysis. Cf. Fed. R. App. P. 28(a)(8)(A) (providing that appellant’s opening brief must contain an argument section that includes “appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies”).

Thus, the Judicial District has waived this issue, at least for purposes of our review of the preliminary injunction order. Richison, 634 F.3d at 1127 (explaining that if a party intentionally chooses not to pursue an argument before the district court, “we usually deem it waived and refuse to consider it”). 7 And the forum status issue is not properly before us even if we generously conclude the Judicial District presented alternative arguments to the district court that (1) the Restricted Areas are not public fora; or (2) even if the Restricted Areas are public fora, the Order can survive the applicable level of scrutiny. Although the Judicial District presented cogent legal argument on the second issue, it failed to present reasoned argument on the first to the district court. See Ark Initiative v. U.S. Forest Serv., 660 F.3d 1256, 1263 (10th Cir. 2011) (holding that the “scant discussion” of an issue in the district court “appear[ed] as an afterthought, and [did] not meet the standard for preserving an issue for review”).

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7 Even if this argument had been merely forfeited, it would nevertheless be an inappropriate basis for reversal because the Judicial District has not argued plain error. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir. 2011) (“And the failure to do so —the failure to argue for plain error and its application on appeal— surely marks the end of the road for an argument for reversal not first presented to the district court.”). Nor are we inclined to exercise our discretion to consider the forum status issue despite the failure to raise it to the district court because we agree with the Judicial District that the preliminary injunction record is inadequate for that purpose. Cf. Cox v. Glanz, 800 F.3d 1231, 1244–45 (10th Cir. 2015) (exercising discretion to consider forfeited argument on “clearly established” prong of qualified immunity).
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Our conclusion that the Judicial District failed to adequately present this issue to the district court is further supported by the district court’s view that “the Second Judicial District ha[d] not specifically argued for a finding that the Courthouse Plaza is a nonpublic forum.” Id. (“Not surprisingly, the district court never addressed” the issue.). Accordingly, the argument that the Restricted Areas are nonpublic fora was waived either by the Judicial District’s strategic decision not to present it, or by the Judicial District’s failure to adequately brief the issue. As such, the district court’s application of a public forum analysis is not a legitimate ground on which to reverse the preliminary injunction order.

We now address the only other challenge the Judicial District makes to the preliminary injunction: that the district court abused its discretion by applying the wrong test, even if the Restricted Areas are public fora.

c. The district court did not apply the wrong standard to the content-neutral restrictions imposed by the Order

Having determined the district court did not abuse its discretion by treating the Restricted Areas as public fora for purposes of analysis, we next consider whether the district court abused its discretion when it found Plaintiffs had demonstrated a likelihood of success on the question of whether the Order violated their constitutional rights under the relevant First Amendment standards. 8 In a public forum, the government cannot ban all expressive activity. Perry Educ., 460 U.S. at 45. But even in a public forum, the government can restrict speech through “content-neutral time, place, and manner restrictions that: (a) serve a significant government interest; (b) are narrowly tailored to advance that interest; and (c) leave open ample alternative channels of communication.” Doe, 667 F.3d at 1130–31. Content-based restrictions, however, “must satisfy strict scrutiny, that is, the restriction must be narrowly tailored to serve a compelling government interest.” Summum, 555 U.S. at 469.

The Judicial District argues the district court abused its discretion by applying an incorrect legal standard. Specifically, the Judicial District contends the district court applied the stringent strict scrutiny analysis reserved for content-based restrictions. And because the Order imposes only content-neutral restrictions, the Judicial District claims this was an abuse of discretion. Although we agree the restrictions are content-neutral, we are not convinced the district court applied the more stringent standard applicable to content-based restrictions.

The district court explained that under the relevant standard, “[t]he state may . . . 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.” On its face, then, the district court appears to have invoked the correct legal standard. Cf. Doe, 667 F.3d at 1130–31 (same). Nevertheless, the Judicial District argues that in considering whether the restrictions are “narrowly tailored,” the district court inappropriately applied the more demanding standard applicable to content-based regulations.

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8 “Government restrictions on speech in a designated public forum are subject to the same strict scrutiny as restrictions in a traditional public forum.” Pleasant Grove City v. Summum, 555 U.S. 460, 470 (2009). Thus, our analysis does not turn on whether the Restricted Areas are considered traditional or designated public fora.
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The term “narrowly tailored” appears in the tests for both content-based and content-neutral regulations on speech. See Doe, 667 F.3d at 1130–31 (indicating a content-neutral regulation must be “narrowly tailored” to advance a significant government interest); Pleasant Grove, 555 U.S. at 469 (stating that content-based restrictions “must be narrowly tailored to serve a compelling government interest”) (emphasis added)). And, as the Judicial District correctly notes, there are subtle differences in the way courts apply the concept of narrow tailoring in the two contexts. For the purposes of a content-neutral regulation, “the requirement of narrow tailoring is satisfied so long as the regulation promotes a substantial government interest that would be achieved less effectively absent the regulation, and does not burden substantially more speech than is necessary to further the government’s legitimate interests.” Wells v. City & Cty. of Denver, 257 F.3d 1132, 1148 (10th Cir. 2001) (ellipsis and internal quotation marks omitted). In contrast, a content-based restriction is narrowly tailored only if it is the least restrictive means of achieving the government’s compelling objective. See Ashcroft v. ACLU, 542 U.S. 656, 666 (2004); United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813 (2000).

According to the Judicial District, the district court considered alternatives to the Order that might have been employed to achieve the Judicial District’s objectives, and such consideration proves the district court applied the “least restrictive means” standard. In the Judicial District’s view, any inquiry into alternative means of achieving the government objective is inappropriate where, like here, the restrictions are content-neutral, rather than content-based, and thus not subject to the least restrictive alternative form of narrow tailoring. We disagree.

The Supreme Court has not discouraged courts from considering alternative approaches to achieving the government’s goals when determining whether a content- neutral regulation is narrowly tailored to advance a significant government interest. Although the Court has held that a content-neutral regulation “need not be the least restrictive or least intrusive means of serving the government’s interests,” it has also explained that “the government still may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.” McCullen, 134 S. Ct. at 2535 (internal quotation marks omitted). And when considering content-neutral regulations, the Court itself has examined possible alternative approaches to achieving the government’s objective to determine whether the government’s chosen approach burdens substantially more speech than necessary. Id. at 2537–39. That is, the government may not “forgo[] options that could serve its interests just as well,” if those options would avoid “substantially burdening the kind of speech in which [Plaintiffs’] wish to engage.” Id. at 2537; id. at 2539 (“The point is not that [the government] must enact all or even any of the proposed [alternative approaches]. The point is instead that the [government] has available to it a variety of approaches that appear capable of serving its interests, without excluding individuals from areas historically open for speech and debate.”). Thus, “[t]o meet the requirement of narrow tailoring [in the context of content-neutral regulations], the government must demonstrate that alternative measures that burden substantially less speech would fail to achieve the government’s interests, not simply that the chosen route is easier.” Id. at 2540.

As a result, we cannot conclude the district court applied the wrong legal standard merely because it considered whether the Judicial District had options other than the complete ban on speech contained in Paragraph 1 of the Order that would equally serve its interests. We now turn our attention to whether, under the standard applicable to content-neutral regulations in a public forum, the district court abused its discretion when it found Plaintiffs had demonstrated a likelihood of success on the question of whether the Order survives constitutional scrutiny.

d. The district court did not abuse its discretion by concluding that Plaintiffs were likely to succeed on the merits

As discussed, for purposes of the preliminary injunction analysis, the Judicial District acquiesced in the district court’s acceptance of Plaintiffs’ characterization, and Denver’s Stipulation, that the Restricted Areas are public fora. Under that assumption, we can easily conclude the district court did not abuse its discretion in finding Plaintiffs were likely to succeed on their claim that a complete ban of their expressive activities violates the First Amendment. Our resolution of this issue is informed by the Supreme Court’s recent decision in McCullen, which is highly analogous.

In McCullen, the Supreme Court considered the constitutionality of a state law creating thirty-five-foot buffer zones around the entrances of facilities where abortions are performed. Id. at 2525. The McCullen plaintiffs wished to approach and talk to women outside such facilities —to engage in “sidewalk counseling”— in an attempt to dissuade the women from obtaining abortions. Id. at 2527. The buffer zones forced the McCullen plaintiffs away from their preferred positions outside the clinics’ entrances, thereby hampering their sidewalk counseling efforts. Id. at 2527–28. The McCullen plaintiffs brought suit, arguing the buffer zones restricted their First Amendment rights and seeking to enjoin enforcement of the statute creating the buffer zones. Id. at 2528. After the First Circuit upheld the statute as a reasonable content-neutral time, place, and manner restriction, the Supreme Court granted certiorari. Id.

The Court began its analysis by recognizing that the buffer-zone statute operated to restrict speech in traditional public fora: streets and sidewalks. Id. at 2529. It then held the buffer-zone statute was a content-neutral restriction because violations of the act depended not on what the plaintiffs said, but on where they said it. Id. at 2531 (“Indeed, petitioners can violate the Act merely by standing in a buffer zone, without displaying a sign or uttering a word.”). The Court then proceeded to apply the test for content-neutral restrictions in a public forum, assessing whether the buffer-zone statute was “narrowly tailored to serve a significant governmental interest.” Id. at 2534. Because the plaintiffs had not challenged the significance of the government’s asserted interests, the Court’s analysis largely focused on the question of whether the statute was narrowly tailored to serve that interest.

The Court noted the buffer zones placed serious burdens on the plaintiffs’ speech activities. Id. at 2535. Specifically, by preventing the plaintiffs from engaging in quiet, one-on-one conversations about abortion and distributing literature, the buffer zones “operate[d] to deprive petitioners of their two primary methods of communicating with patients.” Id. at 2536. Although the First Amendment does not guarantee a right to any particular form of speech, the Supreme Court explained that some forms of speech -one-on-one conversation and leafletting on public sidewalks— “have historically been more closely associated with the transmission of ideas than others.” Id. The Court held that “[w]hen the government makes it more difficult to engage in [one-on-one communication and leafletting], it imposes an especially significant First Amendment burden.” Id.

The Court also rejected the idea that the buffer zones were constitutional because they left ample alternative channels for communication. Id. at 2536–37. In McCullen, the size of the buffer zone made it difficult to distinguish persons headed to the clinic from passersby “in time to initiate a conversation before they enter[ed] the buffer zone.” Id. at 2535. As a result, the plaintiffs were often forced to raise their voices from outside the buffer zone once they identified the clinic patients, thereby forcing a mode of communication contrary to their compassionate message and preventing them from distributing pamphlets. Id. at 2535-36. Where the plaintiffs wished to engage in quiet conversations with women seeking abortions and not in noisy protest speech, the Court held it was “no answer to say that petitioners can still be ‘seen and heard’ by women within the buffer zones.” Id. at 2537. Instead, the Supreme Court concluded the thirty-five foot buffer zones had “effectively stifled petitioners’ message” by prohibiting the plaintiffs’ chosen means of communication. Id.

Finally, the Court held the buffer zones burdened substantially more speech than necessary to achieve the state’s asserted interests in public safety, preventing harassment of women and clinic staff seeking entrance to clinics, and preventing deliberate obstruction of clinic entrances. Id. Although the Court acknowledged the importance of these interests, it determined the state’s chosen method of achieving them —categorically excluding most individuals from the buffer zones— was not narrowly tailored. Id. at 2537–41. That is, the Court held the government had not demonstrated “that alternative measures that burden substantially less speech would fail to achieve the government’s interests.” Id. at 2540. In so doing, the Court expressly rejected the argument that the government could choose a particular means of achieving its interests merely because that method was easier to administer. Id.

Here, the Order imposes substantially similar restrictions on Plaintiffs’ First Amendment activities as the buffer-zone statute did in McCullen. Specifically, the Order imposes a categorical ban on First Amendment activity within the Restricted Areas. This ban effectively destroys Plaintiffs’ ability to engage in one-on-one communication and leafletting within the Restricted Areas. And the record is silent on whether Plaintiff could adequately identify and thereby engage in their preferred method of communication before the public entered the Restricted Areas. Where the district court’s preliminary injunction analysis was based on a public forum analysis and the record does not contain facts to distinguish McCullen, we cannot conclude that the district court abused its discretion in finding that the Plaintiffs are likely to succeed on the merits of their First Amendment claim.

Moreover, the Judicial District’s asserted interests in banning First Amendment activity in the Restricted Areas are largely identical to the government interests asserted in McCullen: unhindered ingress and egress and public safety. See id. We agree these interests are legitimate. But on this record at least, the district court did not abuse its discretion in concluding the means chosen to achieve those interests —a total ban on expressive activity— is not narrowly tailored, as even content-neutral regulations in a public forum must be. 9

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9 This is not to say that the Judicial District cannot impose content-neutral time, place, and manner restrictions that are narrowly-tailored to advance the significant interests it identifies. Indeed, several of the provisions contained in the Order were not enjoined by the district court. As one example, paragraph 4 of the Order prohibits the use of sound amplification equipment. This type of content-neutral restriction has long been upheld. See Ward v. Rock Against Racism, 491 U.S. 781, 796–97 (1989).
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In summary, the district court did not abuse its discretion by analyzing the issues at the preliminary injunction stage as if the Restricted Areas were public fora, or by considering alternative means of achieving the governmental interests in determining whether the Order is narrowly tailored to serve a significant government interest. Similarly, the district court did not abuse its discretion by finding Plaintiffs were likely to prevail on their claim that the complete prohibition of Plaintiffs’ plans to distribute pamphlets to people in a public forum is unconstitutional. See United States v. Apel, __ U.S. __, 134 S. Ct. 1144, 1154–55 (2014) (Ginsburg, J., concurring) (“When the Government permits the public onto part of its property, in either a traditional or designated public forum, its ‘ability to permissibly restrict expressive conduct is very limited.’” (quoting United States v. Grace, 461 U.S. 171, 177 (1983)).

Nevertheless, because the question of the forum status of the Restricted Areas will remain central to the district court’s permanent injunction analysis on remand, we now address principles relevant to the resolution of this issue. See Cook v. Rockwell Int’l Corp., 618 F.3d 1127, 1142 n.15 (10th Cir. 2010) (“[I]t is proper to . . . decide questions of law raised in this appeal that are certain to arise again . . . in order to guide the district court on remand.”). In doing so, we express no opinion as to the merits of that question.

C. Issues on Remand

To determine whether a permanent injunction should be granted, the district court must reach a final decision on the First Amendment issues in this case. Because the relevant First Amendment test varies according to the nature of the forum involved and because the Judicial District will presumably contest Plaintiffs’ characterization of the Restricted Areas as public fora, the district court is required to first determine the forum status of the Restricted Areas. In resolving this question, the parties must present evidence, and the district court must enter factual findings supporting its conclusion, that each of the Restricted Areas constitutes a traditional public forum, a designated public forum, or a nonpublic forum. See, e.g., Huminski v. Corsones, 396 F.3d 53, 90–92 (2d Cir. 2004) (separately considering the forum status of state courthouses, court lands/grounds, and parking lots); Sammartano v. First Judicial Dist. Ct., 303 F.3d 959, 966–68 (9th Cir. 2002) (concluding plaintiffs were likely to succeed on First Amendment challenge to rule restricting expressive clothing in municipal complex, including courtrooms, because the rule “does not differentiate between courtrooms and other public areas”), abrogated on other grounds by Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008); United States v. Gilbert, 920 F.2d 878, 884 (11th Cir. 1991) (Gilbert I) (holding portions of courthouse grounds were designated public fora, while other parts of the grounds were nonpublic fora). We summarize the relevant precedent on these issues now in an attempt to aid the district court and the parties in this task on remand. In addition, we provide some limited guidance to the district court and the parties on the tension between the Judicial District and Denver over the appropriate use of the Restricted Areas.

1. Traditional Public Fora

The Supreme Court has long recognized “that public places historically associated with the free exercise of expressive activities, such as streets, sidewalks, and parks, are considered, without more, to be public forums.” United States v. Grace, 461 U.S. 171, 177 (1983) (internal quotation marks omitted); see also Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983) (identifying as “quintessential” public fora those spaces that “time out of mind[] have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions”). Here, the Restricted Areas include the arced walkway that runs from the corner of Elati Street and Colfax Avenue in a curved path across the front of the Courthouse to the Patio in front of the main entrance to the Courthouse. The inclusion of this area raises at least a question concerning its status as traditional a public forum.

The Supreme Court has also cautioned, however, that not all streets and sidewalks are traditional public fora. See United States v. Kokinda, 497 U.S. 720, 727 (1990) (discussing a postal sidewalk “constructed solely to provide for the passage of individuals engaged in postal business” from the parking area to the post office door); Greer v. Spock, 424 U.S. 828, 835–37 (1976) (speech restrictions on a military reservation that contained streets and sidewalks). Instead, the particular characteristics of a sidewalk are highly relevant to the inquiry. See Grace, 461 U.S. at 179–80. “The mere physical characteristics of the property cannot dictate” the outcome of the forum analysis. Kokinda, 497 U.S. at 727. Rather, “the location and purpose of a publicly owned sidewalk is critical to determining whether such a sidewalk constitutes a public forum.” Id. at 728–29.

The Supreme Court’s discussion in Grace is likely to be of particular relevance on remand. In Grace, the Court considered whether a federal statute prohibiting expressive activities on the Supreme Court’s grounds could be constitutionally applied to the adjacent public sidewalks. 461 U.S. at 172–73. The Court found the public sidewalks along the perimeter of the grounds were physically indistinguishable from other public sidewalks in Washington, D.C. Id. at 179. “There is no separation, no fence, and no indication whatever to persons stepping from the street to the curb and sidewalks that serve as the perimeter of the Court grounds that they have entered some special type of enclave.” Id. at 180. See also Int’l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 680 (1992) (“[W]e have recognized that the location of property also has a bearing [on whether it is a traditional public forum] because separation from acknowledged public areas may serve to indicate that the separated property is a special enclave, subject to greater restriction.”). In the absence of some physical distinction between typical public sidewalks and the sidewalks making up the perimeter of the Court grounds, the Court in Grace held the perimeter sidewalks were traditional public fora, subject only to those restrictions normally allowed in such spaces. 461 U.S. at 180. Thus, on remand here, the district court must determine whether the evidence supports a finding that the arced walkway is physically distinguishable from other public sidewalks.

But the physical similarity to public sidewalks is not alone determinative of these sidewalks’ forum status. In Kokinda, the Supreme Court held that a sidewalk owned by and in front of a United States Post Office was not a traditional public forum, despite the fact that it was physically identical to a public sidewalk across the parking lot from the post office entrance. 497 U.S. at 727. The Court reasoned the post office sidewalk did not share the characteristics of a sidewalk open to the public at large. Although the public sidewalk formed a public passageway that served as a general thoroughfare, in contrast, “the postal sidewalk was constructed solely to provide for the passage of individuals engaged in postal business.” Id. As a result, the Court held the postal sidewalk was not a traditional public forum. Id. at 729–30. Accordingly, the evidence and findings of fact on remand should be focused on the physical characteristics and the intended and actual use of any sidewalks included in the Restricted Areas.

Importantly, the mere fact a sidewalk abuts a courthouse or its grounds is not determinative of the forum status of the sidewalk. 10 The Grace Court expressly rejected the idea that a traditional public forum could be transformed into a nonpublic forum merely because of its physical proximity to government property. 461 U.S. at 180. The Court stated

[t]raditional public forum property occupies a special position in terms of First Amendment protection and will not lose its historically recognized character for the reason that it abuts government property that has been dedicated to a use other than as a forum for public expression. Nor may the government transform the character of the property by the expedient of including it within the statutory definition of what might be considered a non-public forum parcel of property.

Id.; see also Rodney A. Smolla, 1 Smolla & Nimmer on Freedom of Speech § 8:32 (“With the development of modern public forum doctrine, courts increasingly have come to recognize that they are not immune from the rules set down for other public property.”). In Grace, the Supreme Court concluded, “[w]e are convinced . . . that the [statute], which totally bans the specified communicative activity on the public sidewalks around the Court grounds, cannot be justified as a reasonable place restriction primarily because it has an insufficient nexus with any of the public interests [asserted].” 461 U.S. at 181. Similarly, the fact that the arced walkway abuts the Courthouse here is not determinative alone of its forum status.

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10 The cases relied on by the Judicial District do not support the blanket proposition that all courthouse grounds are automatically nonpublic fora merely because they physically abut a courthouse. Rather, these cases first conclude the grounds are not a traditional public forum and then carefully consider the physical characteristics of the government property, as well as the prior use of that property for expressive activities, to determine its forum status. See Huminski v. Corsones, 396 F.3d 53, 90–92 (2d Cir. 2004) (holding courthouses were nonpublic fora where buildings housing the courts had not been traditionally open to the public for expressive activities and such activities inside the courthouse would likely be incompatible with the purposes the courthouse serves); Sammartano v. First Judicial Dist. Ct., 303 F.3d 959, 966 (9th Cir. 2002) (holding civil complex, including courts and public offices had not “by long tradition or by government fiat” been open to public expression and agreeing with parties that it was a nonpublic forum), abrogated on other grounds by Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008). See also United States v. Gilbert (Gilbert I), 920 F.2d 878, 884–85 (11th Cir. 1991) (considering prior expressive activities on different areas of court grounds and holding some portions had been designated as public fora, while other parts of the grounds were nonpublic fora).
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The district court will also be required to decide the forum status of the Patio before it can apply the proper standard to restrictions on expressive activity in that Restricted Area. The D.C. Circuit recently applied the Court’s forum analysis in Grace to the question of whether the plaza in front of the Supreme Court was a traditional public forum. See Hodge v. Talkin, 799 F.3d 1145, 1158 (D.C. Cir. 2015), petition for cert. filed, 84 U.S.L.W. 3388 (U.S. Jan. 4, 2016) (No. 15-863). The court’s analysis focused on the plaza’s physical characteristics, emphasizing the architectural integration of the plaza with the Supreme Court building itself, as well as the physical separation between the plaza and the perimeter sidewalks. Id. at 1158–59. In particular, the D.C. Circuit relied on evidence that the Supreme Court plaza is elevated from the public sidewalk by a set of marble steps that contrast with the public sidewalk, but match the steps leading to the entrance of the Supreme Court building. It also relied on evidence that the plaza is surrounded by a low wall that matches the wall surrounding the Supreme Court building. Id. at 1158. According to the court, a visitor would be on notice that the pathway to the Supreme Court begins on the plaza. Id. Because the physical characteristics of the plaza indicated an intentional separation from the surrounding sidewalks and because the plaza had not traditionally been a space open for expressive activities, the D.C. Circuit held the Supreme Court plaza was a nonpublic forum. Id. at 1159–60.

Here, the parties should present evidence and the district court should make findings about the physical characteristics of the arced walkway and Patio, with attention to the ways in which each is distinguished from public sidewalks and the public areas of the Plaza. Specifically, the district court should consider whether it would be apparent to a visitor that by entering the Patio he is entering an enclave connected with the Courthouse and whether the use of the arced walkway is limited to courthouse ingress and egress.

?2. Designated Public Fora

If the district court finds that one or more of the Restricted Areas is not a traditional public forum, it must next consider whether the Restricted Area has been nevertheless designated as public fora. The Supreme Court has explained that “a government entity may create ‘a designated public forum’ if government property that has not traditionally been regarded as a public forum is intentionally opened up for that purpose.” Pleasant Grove City v. Summum, 555 U.S. 460, 469 (2009) (holding that placement of certain privately donated permanent monuments in public park while rejecting others constituted government, not public, speech). To create a designated public forum, “the government must make an affirmative choice to open up its property for use as a public forum.” United States v. Am. Library Ass’n, Inc., 539 U.S. 194, 206 (2003) (holding that library’s provision of internet access did not open a designated public forum, but was offered as a technological extension of its book collection). The Court has further cautioned that “[t]he government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse.” Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 802 (1985). See also Walker v. Tex. Div., Sons of Confederate Veterans, Inc., ___ U.S. ___, 135 S. Ct. 2239, 2249–50 (2015) (holding that Texas did not intentionally open its license plates to public discourse). Thus, the government’s intent is the focus of this inquiry. See Cornelius, 473 U.S. at 802; see also Gen. Media Commc’ns, Inc. v. Cohen, 131 F.3d 273, 279 (2d Cir. 1997) (“Governmental intent is said to be the ‘touchstone’ of forum analysis.”), as corrected and reported at 1997 U.S. App. LEXIS 40571, *15 (March 25, 1998).

The Supreme Court has further instructed that it “will not find that a public forum has been created in the face of clear evidence of a contrary intent, nor will [it] infer that the government intended to create a public forum when the nature of the property is inconsistent with expressive activity.” Cornelius, 473 U.S. at 803. If the “principal function of the property would be disrupted by expressive activity,” the Supreme Court is “particularly reluctant” to conclude the government designated it as a public forum. Id. at 804. Consequently, prohibitions on speech within a courthouse have been routinely upheld. 11 See, e.g., Hodge, 799 F.3d at 1158 (upholding statute banning expressive activities within Supreme Court building); Mezibov v. Allen, 411 F.3d 712, 718 (6th Cir. 2005) (“The courtroom is a nonpublic forum.”); Huminski, 396 F.3d at 91 (collecting cases and holding that the interior of a courthouse is not a public forum); Sefick v. Gardner, 164 F.3d 370, 372 (7th Cir. 1998) (“The lobby of the courthouse is not a traditional public forum or a designated public forum, not a place open to the public for the presentation of views. No one can hold a political rally in the lobby of a federal courthouse.”); Berner v. Delahanty, 129 F.3d 20, 26 (1st Cir. 1997) (holding that courtroom is a nonpublic forum).

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11 The preliminary injunction here does not enjoin the Order’s restrictions on speech within the Courthouse.
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Under facts similar to those here, the Seventh Circuit held the plaintiffs had no First Amendment right to distribute jury nullification pamphlets in the lobby of the county courthouse. Braun v. Baldwin, 346 F.3d 761, 764 (7th Cir. 2003) (“[Plaintiffs] have no greater right than a criminal defendant’s lawyer to tell jurors in the courthouse to disobey the judge’s instructions.” (emphasis added)). See also United States v. Ogle, 613 F.2d 233 (10th Cir. 1979) (upholding conviction for jury tampering where the defendant, who did not raise a First Amendment defense, attempted to have jury nullification literature delivered to a juror in a pending case).

Although there is little doubt the interior of a courthouse is a nonpublic forum, the forum status of a courthouse’s exterior is dependent upon the unique facts involved. Compare Grace, 461 U.S. at 182 (acknowledging “necessity to protect persons and property or to maintain proper order and decorum within the Supreme Court grounds,” but striking as unconstitutional a ban on expressive activities on abutting sidewalks), with Cox v. Louisiana, 379 U.S. 559, 562–64, 572–74 (1965) (upholding statute prohibiting demonstration outside a courthouse intended to affect the outcome of pending criminal charges, but reversing defendant’s conviction pursuant to the statute under the circumstances). In determining whether the government “intended to designate a place not traditionally open to assembly and debate as a public forum,” the Supreme Court “has looked to the policy and practice of the government and to the nature of the property and its compatibility with expressive activity.” Walker, 135 S. Ct. at 2250 (internal quotation marks omitted).

Applying these principles, the Eleventh Circuit reached contrary conclusions regarding different portions of the grounds of a federal building housing a federal district court and federal agencies. Gilbert I, 902 F.2d at 884. In Gilbert I, the plaintiff challenged an injunction prohibiting him from using the federal building as his 盈彩彩票 and from engaging in certain expressive activities in and around the building. The ground level of the federal building included an interior lobby and, outside the lobby doors, a covered portico leading to an uncovered plaza. Id. at 880–81. Because demonstrations had occurred frequently on the uncovered plaza, the Eleventh Circuit held the uncovered plaza had been designated as a public forum. In contrast, it determined the covered portico area was not a public forum. In reaching that conclusion, the court relied in part on the district court’s finding that the Government 盈彩彩票 Agency (GSA) had an unwritten policy of excluding demonstrators from the covered portico. Although there was evidence demonstrators had occasionally used the portico during protest activities, the Eleventh Circuit relied on the district court’s finding that these were “isolated instances of undiscovered violations” of the GSA policy and not the intentional “opening of a nontraditional forum for public discourse.” 12 Id. at 884–85.

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12 After the Eleventh Circuit issued this decision, an unrelated security issue caused the GSA to place a row of planters across the uncovered plaza and to issue a statement limiting the public forum to the area between the planters and the public street. Mr. Gilbert again sued and the circuit court upheld the district court’s ruling that the GSA had effectively withdrawn the area between the planters and the building previously designated as a public forum. See United States v. Gilbert (Gilbert III), 130 F.3d 1458, 1461 (11th Cir. 1997) (“The government is not required to retain indefinitely the open character of a facility.”). Between Gilbert I and Gilbert III, the Eleventh Circuit upheld Mr. Gilbert’s conviction for obstructing the entrance to the federal building. United States v. Gilbert (Gilbert II), 47 F.3d 1116, 1117 (11th Cir. 1995).
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As the decision in Gilbert I demonstrates, the issue of whether an area associated with a courthouse has been designated as a public or nonpublic forum is highly dependent on the evidence of the government’s intent to open the area to public speech. That intent can be established by the government’s policy statements, 13 affirmative actions by the government to designate the area as a public forum, 14 stipulation, 15 the compatibility of expressive activity with the principal function of the property, 16 and whether and the frequency with which public speech has been permitted in the forum. 17 To avoid post hoc justification for a desire to suppress a particular message, courts have considered the government’s statement of policy in light of the government’s actual practice. Air Line Pilots Ass’n, Int’l v. Dep’t of Aviation of City of Chi., 45 F.3d 1144, 1153–54 (7th Cir. 1995) (“[A] court must examine the actual policy —as gleaned from the consistent practice with regard to various speakers— to determine whether a state intended to create a designated public forum.”); Hays Cty. Guardian v. Supple, 969 F.2d 111, 117–18 (5th Cir. 1992) (“[T]he government’s policy is indicated by its consistent practice, not each exceptional regulation that departs from the consistent practice.”). Accordingly, forum status is an inherently factual inquiry about the government’s intent and the surrounding circumstances that requires the district court to make detailed factual findings. See Stewart v. D. C. Armory Bd., 863 F.2d 1013, 1018 (D.C. Cir. 1988) (holding that “identifying the government’s intent . . . raises inherently factual issues that cannot be resolved on a Rule 12(b)(6) motion”); Air Line Pilots, 45 F.3d at 1154 (same). And the ultimate question is whether the facts indicate the government intended to open a nontraditional forum to expressive activity. See Cornelius, 473 U.S. at 802 (“The government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse.”).

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13 Church on the Rock v. City of Albuquerque, 84 F.3d 1273, 1276-77 (10th Cir. 1996) (relying on senior citizen center policies to determine forum status of senior centers); Paulsen v. County of Nassau, 925 F.2d 65, 69 (2d Cir. 1991) (relying on county charter and local law as indicia of county’s intent to dedicate coliseum to a broad array of public and expressive purposes); Gilbert I, 920 F.2d at 884 (relying on unwritten GSA policy banning demonstrations from the covered portico).

14 Church on the Rock, 84 F.3d at 1278 (holding that senior centers were designated as public fora because the city had “permitted lectures and classes on a broad range of subjects by both members and non-members”); Huminski, 396 F.3d at 91 (holding courthouse parking lot is not a public forum because there was no evidence the government did anything to designate it as such).

15 Grider v. Abramson, 180 F.3d 739, 748 n.11 (6th Cir. 1999) (relying on stipulation of the parties that courthouse steps are a public forum).

16 Paulsen, 925 F.3d at 70 (holding that coliseum grounds are a public forum, in part, because the property can accommodate a wide variety of expressive activity without threatening the government function of the facility); Greer v. Spock, 424 U.S. 828, 835– 37 (1976) (holding military reservation is not a public forum); Adderley v. Florida, 385 U.S. 39, 47 (1966) (same as to jailhouse).

17 Widmar v. Vincent, 454 U.S. 263, 267-68 (1981) (holding university’s policy of accommodating student meetings created a forum generally open for student use); Paulsen, 925 F.3d at 70 (“The grounds of the Coliseum have been used for parades, political rallies and speeches, religious weddings and circuses. . . . Routinely, banners have been displayed by patrons . . . . Significantly, . . . many groups, including war veterans, the Christian Joy Fellowship and the Salvation Army, were regularly permitted to solicit contributions or distribute literature.”); Gilbert I, 920 F.2d at 884 (holding that unenclosed plaza of a federal building that houses courtrooms has been opened by the government as a public forum because “[d]emonstrations occur there on a frequent basis,” but holding covered portico was not opened as a public forum because occasional demonstrations there were undetected violations of GSA policy).
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3. Disagreement Over Opening the Restricted Areas as Public Fora

Here, the issue of the government’s intent is complicated by the disagreement between Denver and the Judicial District about the forum status of the Restricted Areas.

According to Denver, it intended to and did open all areas of the Plaza, including those within the Restricted Areas, to the public for expressive activity. In fact, Denver (one of the Defendants) entered into a Stipulation to this effect with Plaintiffs. Cf. Grider v. Abramson, 180 F.3d 739, 748 n.11 (6th Cir. 1999) (noting that parties had stipulated that courthouse steps are a public forum). In contrast, the Judicial District argues Denver’s Stipulation that the entire Plaza is a public forum cannot control the status of the Restricted Areas because Colorado law vests the judicial branch with inherent authority to regulate state courthouses. As such, the Judicial District asserts that its intent —not Denver’s— should control the forum status of the Restricted Areas.

This argument between Defendants raises difficult and novel questions about the intersection between a government property owner’s power to designate its property as a public forum and the rights of the occupant of the government property —in this case another governmental entity— to use that property without interference. The parties have not directed us to any authority addressing the question of whose intent controls when two governmental entities disagree about the status of the same forum, and our own research has not revealed any decision precisely on point. But a review of the evolution of the Supreme Court’s doctrine on speech forums reveals some fundamental principles that may guide resolution of this difficult question.

The Supreme Court has not always recognized a First Amendment right of the public to use publicly owned property for expressive purposes. Indeed, the Court’s early jurisprudence recognized the absolute right of the government to exclude the public from using its property. See Davis v. Massachusetts, 167 U.S. 43, 46–47 (1897); see also Geoffrey R. Stone, Fora Americana: Speech in Public Places, 1974 Sup. Ct. Rev. 233, 236–37 (discussing the Supreme Court’s early forum jurisprudence). In Davis, the Court considered a First Amendment challenge to a Boston city ordinance forbidding “any public address” on public property “except in accordance with a permit from the mayor.” 167 U.S. at 44. The Supreme Judicial Court of Massachusetts had affirmed a preacher’s conviction for violating the ordinance by preaching on Boston Common without first obtaining a permit from the mayor, stating “[f]or the Legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house.” Id. at 47 (quoting Commonwealth v. Davis, 39 N.E. 113, 113 (Mass. 1895) (Holmes, J.)). The Supreme Court unanimously affirmed, concluding that “[t]he right to absolutely exclude all right to use necessarily includes the authority to determine under what circumstances such use may be availed of, as the greater power contains the lesser.” Id. at 48. Under the Supreme Court’s jurisprudence at the time, the government —as the owner of public property— retained an absolute right to exclude the public from that property, just as any private property owner would have the right to exclude others. See Stone, supra, at 237 (“[T]he state possessed the power absolutely to prohibit the exercise of First Amendment rights of speech on public property simply by asserting the prerogatives traditionally associated with the private ownership of land. The complex and difficult problem of the public forum had been ‘solved’ by resort to common law concepts of private property.”).

Later, the Supreme Court revisited the question of the public’s use of government property for expressive purposes and again relied on traditional notions of private property ownership. See Hague v. Comm. for Indus. Org., 307 U.S. 496 (1939). In Hague, the Court considered the constitutionality of city ordinances prohibiting all public meetings and leafletting in streets and other public places without a permit. Id. at 501–03. Departing from its analysis in Davis, Justice Roberts, writing for a plurality of the Court, stated:

Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.

Id. at 515–16. Justice Roberts’s position accepted the underlying premise of Davis —that the owner of government property enjoyed the same prerogatives as any private property owner— but then extended that premise to predicate a “public forum right upon established common law notions of adverse possession and public trust.” Stone, supra, at 238. See also Harry Kalven, Jr., The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup. Ct. Rev. 1, 13 (describing Justice Roberts’s analysis in Hague as establishing “a kind of First-Amendment easement” in which the public, through long use and tradition, has acquired a right to use certain types of public property for First Amendment purposes).

Although Justice Roberts spoke only for a plurality of the Hague Court, his formulation has since been accepted by the Supreme Court as the prevailing rationale underlying the concept of traditional public fora. See, e.g., Perry Educ., 460 U.S. at 45 (defining traditional public fora by adopting Justice Roberts’s “time out of mind” description). Even in the context of a traditional public forum in which the government property owner’s power to exclude and curtail use is sharply circumscribed, the underlying rationale is premised on traditional notions of private property ownership. Indeed, the government’s power to control speech in a traditional public forum is circumscribed precisely because the public has, through the extent and nature of its use of these types of government property, acquired, in effect, a “speech easement” that the government property owner must now honor.

The Supreme Court has continued to rely on traditional notions of property ownership to describe the government’s ability to control the use of its property. For example, the Supreme Court has recognized that the government, “no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.” Greer, 424 U.S. at 836 (emphasis added). This includes the ability to designate portions of government property for expressive purposes. See Perry Educ., 460 U.S. at 45. But the underlying rationale of a designated public forum is that the governmental entity with control over the property can decide whether and to what extent to open nontraditional fora to public speech. See Christian Legal Soc’y Chapter of the Univ. of Cal., Hastings Coll. of Law v. Martinez, 561 U.S. 661, 679 (2010) (“[I]n a progression of cases, this Court has employed forum analysis to determine when a governmental entity, in regulating property in its charge, may place limitations on speech.”) (emphasis added)).

In this case, the record before the district court at the preliminary injunction hearing indicated that Denver is the owner of the Courthouse and its surrounding grounds. It was also undisputed that there is no lease agreement between Denver and the Judicial District that could have transferred some of Denver’s property interests to the Judicial District. And the Judicial District is not the only occupant of the building; the county also has courtrooms in the building. As a result, Denver’s intent will be particularly relevant to a determination of whether the Restricted Areas were designated as a public forum.

Nevertheless, the Judicial District argues Denver may not unilaterally designate the Restricted Areas as public fora because, under Colorado law, the state judicial branch is endowed with inherent authority as an independent and co-equal branch of government to regulate state courthouses. The first problem with this argument is that it ignores the limits of that inherent authority. Although Colorado permits its courts to do all that is “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,” the Colorado Supreme Court has recognized that this inherent authority is not without its limitations. Bd. of Cty. Comm’rs of Weld Cty. v. Nineteenth Judicial Dist., 895 P.2d 545, 547–48 (Colo. 1995) (quoting Pena v. District Ct., 681 P.2d 953, 956 (Colo.1984)). Specifically, the “court’s inherent authority terminates when its ability to carry out its constitutional duty to administer justice is no longer threatened.” Id. at 549.

On the existing record, the Judicial District has not demonstrated that Plaintiffs’ First Amendment activities interfered with the ability of the Judicial District to carry out its essential functions. Mr. Steadman testified that Plaintiffs’ pamphleteering presented no security risk to the Courthouse. And the Judicial District presented no evidence indicating that the narrow preliminary injunction issued by the district court would interfere with its judicial functions. On the record before us, therefore, the Judicial District has not demonstrated that the preliminary injunction issued by the district court implicates the court’s inherent authority.

But it is also true that Denver’s statement of its intent is only one factor to be considered by the district court in determining whether a permanent injunction should issue. Recall that the government’s statement of policy should be weighed against the evidence of its actual practice to avoid post hoc justifications. See Air Line Pilots, 45 F.3d at 1153; Hays Cty. Guardian, 969 F.2d at 117–18. Denver’s concession in the Stipulation and its expressions of past intent could be motivated by fiscal or other considerations that are inconsistent with its actual practice.

For example, although the evidence indicated that some expressive activity has occurred in the Restricted Areas, those occasions may have been “isolated incidents of undiscovered violations,” rather than evidence of affirmative acts to open the Restricted Areas as public fora. Gilbert I, 920 F.2d at 885. And a contrary intent might be gleaned from the design of the Restricted Areas and the extent to which public and private areas are clearly separated. See Grace, 461 U.S. at 179–80. Also of importance in assessing whether the Restricted Areas have been designated as public fora is the extent to which doing so is incompatible with the primary use of the Courthouse. See Cornelius, 473 U.S. at 803. That is, it would be strong evidence that Denver did not intend to designate all of the Restricted Areas as public fora if to do so would destroy the primary function of the Courthouse. Or in different terms, the district court must assess whether it is credible that a governmental owner would construct a courthouse and install state and county judicial operations within it, only to designate public fora so intrusively that the essential function of the courthouse is thwarted. Thus, although the Stipulation provides some evidence on the question of whether the Restricted Areas have been designated as public fora, it is not alone determinative of that question.

III. CONCLUSION

Based on the record before it, the district court did not abuse its discretion in granting Plaintiffs’ request for a preliminary injunction. We therefore AFFIRM the order entering a limited preliminary injunction in favor of Plaintiffs, and REMAND for further proceedings consistent with this decision.

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

盈彩彩票
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 (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:

盈彩彩票

(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 . 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.)
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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.

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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

Fukishima aka Japan’s Chenyobl… and what does it mean for Colorado?

Well, it’s heating up. With the easiest way to measure and describe “radiation” : Heat. Temperature. Caloric Index. Right now it’s at the level to actually light concrete on fire. I was going to subtitle The Japan Syndrome but that whole China盈彩彩票 Syndrome schtick is outdated by several decades. Melt a hole through to China盈彩彩票, yeah. So I restrained myself from including it. There’s amerikkka’s very own ticking time bomb right outside of Dallas. At Glen Rose. You might say, as I sometimes do when I forget to use quantum logic, you know, the core of any unit of mass, time, space and energy being at the same place at the same time (it just seems redundant) and to mangle a line from Huxley, everything belongs to everything else. But I digress. The fastest shorcut not involving quantum theory is there are no significant mountains between here and there. The Rolling Hills, the exact name thereof, is where the reactor is, at Comanche Peak. If you go southwest you have Ranger Peak, the highest geologic feature in Texas east of the Pecos and named after the Texas Rangers, cops not baseball, had an incident with the Comanches in which for a change didn’t involve getting the Rangers slaughtered. They’re not as bad-ass as they portray themselves. And that’s not in the way. The Llano Estacado, “Staked Plains” but they’re no barrier. Maybe for riding a horse or walking, but for airborne fallout, nah. And Comanche Peak has started experiencing seismic events. This was discussed when several events happened, Haiti, Fukishima, Deepwater Horizon,and the Upper Big Branch Corporate Mass Murder of 29 miners. All of which, including the Comanche Peak reactor, have ties to Halliburton, Bush and Donald Trump, the Koch family and the Corporate Big Pigs are talking much smack about releasing all of these bastards from the fetters of “unwarranted safety regulations” including and especially for the Fracking companies… who apparently broke the substrate in North Central Texas to the point there is measurable and sometimes palpable (no need to get out your dictionary it’s “able to be felt by the human body”) earthquake activity all over North Texas. Which the Frackers say is impossible. They simply have to lie.

And their Big Pig comrades like Trump and Don Blankenship and Bush and Cheney and Perry and Doug Lamborn and basically their entire rat-bastard families tell us that it’s none of our business and included in the proposed destruction of all regulatory measures, they’ll have police and courts prosecuting and imprisoning citizens who dare ask for details of what is done to our water, air, basic ability to walk outside without getting radiation poisoning… Just like they’ve been doing, essentially, only now it’s on the way to being official. We’ll be prosecuted for exposing or trying to expose THEIR crimes. They all try to act all “tough” and “macho” about it but they’re essentially coward bitches who hide behind the Peasant Army and the fascist police and courts.

The richest bitches in America are poised to make it illegal to even ask for information on the pollution they’re spreading into our air soil and water. Deregulation, it’s called. While Fukeshima burns, and everywhere between Comanche Peak to Cheyenne Mountain is about to become an uninhabitable desert for millions of years. All to make a profit for them.

Their deep bunkers won’t do them a bit of good either. They’ll get their Roentgens rationed and die more slowly and in a lot more pain.

That isn’t a good thing, because we’ll be subjected to it too.

While I’m in a corrective mood, you might have noticed that I have different spellings for the Russian (Ukrainian)  and Japanese reactors because they’re not english words and you get to read it as phonetics, you lucky persons you. The alternative option is to learn Japanese and Russian. Which I haven’t.

How I nearly got arrested for holding a sign at Denver International Airport

盈彩彩票
DIA, COLORADO- Last weekend I joined thousands across the country protesting Trump’s executive order restricting entry visas from seven predominantly Muslim countries. Spontaneous demonstrations had erupted at international airports nationwide on Saturday January 27. Denver’s airport was no exception but the lively gathering of sign holders was ultimately persuaded by police to leave the premises. Supposedly a permit was required to hold signs. Demonstrators the next day were quickly ushered outside, to rally instead between the terminal and adjacent lightrail station, where only a tiny fraction of travelers would see them. This much we knew as we monitored events online while we reconnoitered DIA from the short-term parking garage. We made our way swiftly to the International Arrivals doors at the north end of the main terminal WITH OUR SIGNS.

International Arrivals
The point was to reach immigrants, right? We walked to our intended protest spot unhindered and inconspicuous, because of course signs are not an unusual sight at an airport. Travelers who’ve been a long time away, in particular soldiers returning from deployment, are frequently greeted by family members holding signs. Often limo drivers have to page their corporate clients. We carried our placards with their message facing inward hoping they’d be mistaken for everyday signs. When we raised them above our heads we attracted immediate attention. They read “#NO MUSLIM BAN #NO REGISTRY, END WHITE PATRIARCHY” and “FIRST THEY CAME FOR THE MUSLIMS AND WE SAID: NOT TODAY MOTHERFUCKER.” Immediately a man with a “DIA Operations” cap informed us that we weren’t allowed to hold signs. We assured him the opposite was true. He called for backup.

We weren’t alone in front of International Arrivals. In addition to the families awaiting loved ones, there were a couple dozen law firm employees holding signs which read “Pro Bono Immigration Legal 盈彩彩票”. We surmised that their presence might have already been negotiated with DIA. Soon a couple of those lawyers approached us to announce loudly that the public protest was outside the building and that we could continue there unmolested. We thanked them for their assistance but urged that they also clarify publicly that we were within our rights to stay inside as well. I was upset that their gravitas, as lawyers, was seen as supportive of the authorities telling us to stop.

Police officers arrived in short order, a first one filming us with a digital point-and-shoot, then a second filming with a cell phone, both surely streaming to a command center. After six officers assembled, a sergeant approached us flanked by two DIA employees. She gave us our formal warnings. We were given instructions to “cease and desist” while we countered that we knew our rights. After a second warning we were assured that a third would mean our immediate arrest. We held our signs higher, all the while asserting their order was unlawful. The immigration lawyers huddled as far away from us as they could. Sgt. Virginia Quinones then got on her phone to consult somebody.

盈彩彩票

I recount this scene like it was a nail-biter, but of course we’ve held this standoff many, many times before. For activists with Occupy Denver, it’s become the routine. I was wearing an OD hoodie on this visit to DIA and I suspected whoever was on the line with Sgt Quinones had likely dealt with OD before. To be honest, this standoff too often does lead to arrest, so we were not proceeding without trepidation. Denver jail is an excreble experience. But it’s an unlawful arrest and that’s where we have to push back. As the sergeant kept talking, she and her entourage retreated. We stood our ground smiling and winked to each other. For onlookers however, the tension lingered. Several lawyers approached us to offer their cards, in case of arrest.

Intimidation
Though we were confident about asserting our rights, the six officers standing at the ready made it near impossible to entice other sign holders to join us. Our encourgements would be followed by the DIA operatives offering their advice to the newcomers. Nearly every newcomer opted to go outside. Only after hours of detente, with officers projecting a more relaxed inattentiveness, did we succeed in building a consensus of demonstrators.

In the meantime DIA operatives installed queue barriers to keep us from intermingling with the lawyers and family members waiting for international travelers. 盈彩彩票 This strategy might also have meant to force us into the flow of passengers entering the nearby security check. We stood clear and even as our numbers grew, no obstruction occured.

One interesting fellow, a Mr. Gene Wells, wore a jacket with a message taped on its back. It read:

“D. TRUMP
IS A SMALL MAN
WHO CONTINUES
TO SHRINK
AS A PERSON”

with the letters diminishing in size every line. He was warned by DIA personnel that he could only wear his jacket outside. DIA operatives wouldn’t leave his side as he walked through the terminal, but abandoned their effort to intimidate him as he rejoined us at the arrivals door.

盈彩彩票

A couple of travelers joined in before they had to catch a flight, they held signs they’d printed that morning at their AirBnB. We were joined by Quakers and even a former Denver Occupier. At most we numbered eight, compared to the hundred outside.

The protest outside
The protest outside was seen only by those travelers arriving or leaving by light-rail. And potentially by only half of those departing DIA through the B and C terminals, whose security check queue necessitated passing the windows facing the south. Perhaps. Most travelers approaching security aren’t lingering to take in the sights. The other half of passengers departing DIA go through the north security check, or over the walkway to Terminal A.

All arriving passengers, on the other hand, enter the main terminal from the north or using the underground train. They pass through the center of the main terminal before exiting at the baggage claims to the east and west. International arrivals enter the terminal from the north and proceed directly to parking or ground transport. If they are met by family they are very UNlikely to be riding the light-rail to downtown Denver.

盈彩彩票

盈彩彩票

盈彩彩票

While the protest outside did garner local television coverage, it was prevented from reaching immigrants or those awaiting arrivals, to convey the solidarity which those who opposed the Muslim Ban wished to express.

Inside our signs prompted a constant stream of public support. Passing travelers gave us thumbs up, high fives and thank yous. Muslims shook our hands and offered their heartfelt thanks. A couple gentlemen made speeches expressing their pubic appreciation of what we and the lawyers were doing.

Permits
The DIA operatives kept explaining that protesters need only apply for permits. The catch was that they required seven days advance notice. And of course activist do not expect permits to be granted.

One of the Quakers who joined us expressed confidence that her group would be granted a permit to protest at DIA. She explained to me that she was personal friends with the new Denver DA.

I told her applying for permits set a bad precedent. Asking for permission implies those rights are not already protected by the First Amendment. Permits also restrict others to the code of conduct agreed by those who signed permit agreements. Often permits are used to exclude public participation on public grounds temporarily reserved for the use of the permit holder.

Worse, the police can intervene when “others” aren’t abiding by the permit agreement, when they aren’t complying with police intrusion, or aren’t acquiescing to the authority of the permit holder.

Never the less, this Quaker wanted to inform me that as the anticipated holder of the permit at DIA, she wished to invite me to participate with her group. However, she anticipated that her church colleagues would be made most uncomfortable by my sign (which ended with the word “motherfucker”). So if I did choose to join, she was expressing her preference that I not bring my sign.

The Jihad in Mumbai

Some are more familiar with the way the British occupiers pronounced it “Bombay”. It’s got a huge Muslim presence, so does India in general. Under the British “protectorate” because it’s not polite to call them Imperialists anymore. Even though the Queen does still hold the title of Empress. That’s beside the point. Under the protectorate Britain called the following “India”; Iran, Pakistan, Burma, Thailand, Cambodia, Afghanistan, Sri Lanka which used to be Ceylon, there’s been a lot of name changes, Thailand was Siam until I was 11 years old, you know, and knowing the younger readers think I’m ancient… but no, these changes were pretty much around my lifetime. But there’s a Church in Mumbai. No big deal, right? Before the English took possession of the entire region after the Napoleonic wars, we are taught in Merka are used to calling it the War of 1812, which “our” participation was mainly getting stomped by the British a few times and calling it a draw, and Andrew Jackson simply taking Tennessee, Alabama, Mississippi, Missouri, the Mega-Rez called Indiana, Minnesota, Iowa, Kansas, in case you’re not paying attention you notice that there’s a lot of native names, and Indiana was ceded to the Tribes “for as long as grass grows” you know the lying spiel…

The British and their allies took a lot more than that. Like India. The “French and Indian War” was referred to as the 7 Years War and still is called that everywhere except to our bumpkin backwater podunk pseudo-democracy ‘merka. Even Canada refers to the proper name.

Churchill called it the “REAL” first world war. It was that big. So were the Napoleonic Wars. /history lesson, for now.

Anyhoo…  this church surrounded by a huge Muslim majority, and a lot of Hindu and Buddhist populations, is the Church of St Thomas.

The Thomas who refused to recognize Jesus resurrected. Doubting Thomas. That St Thomas, yeah. He founded the church in Mumbai. It’s first century CE or AD whichever floats you boat. There’s a lot of hoo-haw about Muslims burning churches and the people of those churches. Like the Church in Antioch which was pretty much destroyed by U.S. bombing raids. There’s a big lie making the scene, has been since the Crusades, that all Arabians and Turks and Persians (Iran, Afghanistan…) are forced to be Muslim. Which is Bullshit.

The Abyssinian Catholic Church in Iraq, you remember Iraq, right? “Our” country tore the place apart and are forcing the people of Iraq to pay for the damages. For Real. Ten percent of the pre-ameriklan conquest population were Christian, AND there are synagogues in most of the countries especially the Big 7 that are banned from immigration, the ones where Donald Trump and his asshole Wall Street Comrades don’t own the entire country, And Churches. The Church of St Thomas has been in operation for 2000 years and likewise in Syria (Antioch) and this puts the lie to the lips of those who claim a huge persecution against Christians and Jews.

How many churches in America have been torched by Muslim Jihadi? Well, there’s the two which were torched in Texas just in the past three weeks, oh, wait, Those Were Two Mosques Torched By People Who Call Themselves CHRISTIAN.

The KKK and other right wing extremists have been burning Black churches since the end of the civil war. They’ve attacked Catholic Churches HERE. So who are the REAL American Jihadim? Our punk-ass representative Doug Lamborn is a member of the Heritage Foundation, a Klan front group. Quite a few “christian” Terrorist Bitches, including the New Fuhrer Trump. Right Wing Talk Radio and FOX News spend a whole lot of time praising these Murderous Coward Punks as “heroes of the faith”

Not done calling out names. Bill O’Reilly, Douche Limbaugh, Ollie North, The Bush Family of seriously inbred congenital liars and thieves, round up the usual suspects. I would puke just thinking of it but it would be a waste of a good breakfast. Bottom Line, we has met the enemy and they is U.S.

The United States is the foremost purveyor of Terrorism and Totalitarian philosophy and actions in the entire world. The cowardly punk assholes who believe they have a right to own the entire country think they have a right to own the entire world and they blasphemously say it in the name of Christ. As an American and as a Christian I’m deeply offended.

Just how much do you “christian” coward ass pukes, disciples of Trump, how much do you think Jesus must be offended? I pity you.

The stench of your evil reaches to heaven.

Dear Trump: the arc of moral history does not bend toward your man-cave

Donald Trump’s inauguration presents a timely opportunity to hammer at his crass misogyny. Slogan-wise, THE ARC OF HISTORY BENDS TOWARD EQUALITY gets my vote for spot-on feminist rejoinder. I also like HELL HATH NO FURY, YOU SORRY ILLITERATE! The latter has a better chance of becoming true. The women’s march planned on Day One of Trump’s presidency already confirms Shakespeare’s adage. So what about MLK’s truism, about the arc of the moral universe being long but bending towards justice? That’s the consolation that keeps liberals from despairing as they encounter endless setbacks. Is it true? The inevitability of progress is inexcusibly Western-centric. If you measure your arc with indigenous cultures at the baseline, the moral universe trips at monotheism and never recovers. Measured from the customary Dawn of Civ, Trump’s election as mankind’s exemplar ideal, now leader of the free world, is surely the most abrupt signpost to the contrary. We’re tracing the arc of a handbasket.

March on DC with your own protest message, not one dictated by NGOs. Yes, you’ll need a banner and poles.

, or even knapsacks. Ha ha ha. As you travel across the country to march, remember who’s making the real sacrifice. The march coordinators are paid. You are spending the time and expense because you have something to express. Bring it. The only reason organizers want you unequipped is so your [rogue] message won’t stray from theirs. Does that sound democratic? They also have a different goal than you. Their mission is to pull off a smooth event. Yours is to make history.

As a veteran of countless protest marches, national, regional and international, I encourage newcomers to stick to their nonconformist inclinations. Independent critical thinking is what led you to take action in the first place.

To begin, THIS IS YOUR MARCH.
Washington DC belongs to you. Inauguration Day and its aftermath belong to you. Just because someone squats a Facebook event on a day conducive to public gathering doesn’t give them dibs to call the shots. A stand-alone call to arms, such as MLK’s Million Man March or CodePink’s A Billion Rising, is another matter. Spontaneous uprisings against historic events are no one organization’s to control or temper. Especially if they begin with capitulations to the state.

Here’s the usual pattern. After a FB event goes viral, nonprofit activist groups jump in to offer their expertise, resources and manpower. The nonprofits thus dominate the details and the event originators have little ground to object. Thrilled to see “their” event succeed, these new-to-the-spotlight activists don’t know that street protest is anathema to nonprofits whose existential foundation is not to disrupt politics as usual. Falling into the trap of coordinating ineffective demonstrations is often blamed on newbie error, but in Washington DC, newbies making the newbie mistakes are employees of nonprofits seeded to pretend the event had a grassroots origin. What the NGOs are really doing is setting a prescribed burn, or backfire.

Backfire: a fire set intentionally to arrest the progress of an approaching fire by creating a burned area in its path, thus depriving the fire of fuel.

Bastards! Fortunately backfire has a further meaning, probably not unrelated to the sketchy forestry strategem.

Backfire: rebound adversely on the originator; have the opposite effect to what was intended.

Just as DC lobbyists monopolize your representatives, professional activists have staked out the capitol and squatted on what is the public’s only access to speak to power. Accept their invitation to come to DC. Thank them for their legal support, their logistics and water bottles, but you’ll handle your messaging thank you.

NOTES FOR NEXT TIME
(If you’d prefer not to dwell on criticism, please skip to the section on RULES. For me, these counterproductive “mistakes” set us back every time we give them a pass.)

1. Telling participants they can’t bring stuff like food or chairs! The event’s duration is being throttled to what can be endured between meals, without a pause for rest. Do you go to meetings without chairs? In the cold outdoors one can’t even sit on the ground.

2. Hiring private security contractors, “some identifiable, some undercover”. WTF? DC’s cops, National Guard, Secret Service, and “Shadow Teams” aren’t enough?

3. Coordinating with police. What? What?! To whom Black Lives Can’t Even Matter? Sorry no.

4. Stifling expression with limits on how to carry signs. Without sticks. “Flags but without poles.” Restricting marchers to signs reinforced with only cardboard tubing. Viewed from a perspective to show the numbers, the march will bear no legible message at all.

5. Telling marchers they must handcarry small bags. You’d think they don’t want marchers’ hands free to carry signs at all.

6. Stooping to a permit, as an excuse to self-police and make participants feel honor bound to unecessary concessions (the permit terms). You don’t need a permit for First Amendment activities. NGOs use permits to effectively reserve public areas and restrict their concurrent use by others. It’s a means to control public space.

7. Scheduling the march on the day after the main event, in time to disrupt nothing. Diluting the inherent outcry, expending from everyone’s discretionary resources to converge on DC. As a result we’ll have two mobilizations. Both massive, hopefully, intead of one which could have TIPPED THE SCALE.

RULES ARE
Meant to be broken. Permit holders can enforce rules within the confines of their event area, with the assistance of authorities if needed, but not outside it. Organizer “rules” can’t be enforced on Metro, or on public streets, or along march route. DC police may pretend they have that authority but they don’t. Cops lie. Know your rights.

To hold a sign where it’s visible in a march, and big enough to where it can be seen among multitudes, you need poles.

BRING POLES.
There is no safety reason whatsoever, in Washington DC, for forbidding the use of sign poles. We’ve seen pole restrictions attempted at national conventions, in close-in urban areas with vulnerable storefront windows, but Washington’s boulevards and setbacked facades evolved with political marches. Demonstrations, parades and motorcades are everyday for DC. Your sign poles pose zero threat and you don’t have to relinquish them. Not Post-911, nor in the Age of Trump. If an NGO-deputized cop won’t allow your entry to their rally, their privatized-park, have someone wait with the contraband outside its bounds. Banners are best seen on the edges of rallies anyway. When attendance numbers reach overload, you’re golden. Move with the numbers. Otherwise wait and join in as the march departs from the rally.

What’s best for poles? Lengths of bamboo from garden nurseries. Bamboo is stiff, light, and utterly non-threatening. Eight footers will hold a banner above marchers’ heads while still allowing you to rest the poles on the ground when the march lags. Six foot lengths give you adequate leverage to keep the banner taut but are more work. Either are cheap and expendable. Bring extra. Bamboo are thin enough to hold reserve pieces bundled. You can grasp a bundle of three as readily as a single pole. Those extra poles can be allocated as you see other marchers in need.

Let’s rule out pipe, lumber and dowels for being too heavy. Broom handles are expensive. Wooden stakes are uncomfortable and too short, and apparently, too “pointy”.

Various widths of PVC are rigid enough to about eight feet. Steel electrical conduit can give you ten feet. Both are cheaply available at neighborhood hardware stores. The baggage holds of charter buses can’t accommodate pieces over eight feet.

Alternatives to fixed lengths poles would be telescoping poles such as hiking sticks or monopods. Usually these do not extend beyond five feet. Longer telescoping tool handles used for painting for example extend but won’t contract to shorter than five feet or so.

Sectional poles such as geodesic tent poles can be folded to different length permutations. Depending on the weight of your banner material, multiple tent poles may be required to provide sufficient stiffness.

The benefit of collapsible poles is that you can conceal them until you are ready. Provided you have a BAG.

BRING A BAG
There are plenty of ordinary reasons to need a bag. Lunch. Extra layers of clothing. Hat, sunglasses, bandana. Extra gloves, hand warmers, snacks, literature to share, stuff handed you at the rally.

As a banner holder you’ll need supplies like duct tape, markers and string to fix signs, and those aforementioned extra tent poles. Maybe a backup banner or gag props for an alternative photo op.

We bring bags to work, school and play. Who expects that a day traversing DC doesn’t call for a bag?

Don’t be fooled into believing that for safety reasons all bags must be clear plastic. DC surveillance can spot the excess heft of dangerous materials such as explosives or weapons, without having to see them. What they’re really looking for are items like ropes, carabiners, harnesses, goggles, which activists can use for nonviolent fun, to mix things up and entertain, provide media moments and get attention.

Besides which, clear bags will make for unsightly messy photos. Neither does your bag need to be restricted in size. Bring a backpack or knapsack. Leave your hands free to carry that sign!

The best reason for you to shoulder an ordinary opaque knapsack is to give cover for others to bring bags with necessities you overlooked. Cameras, accessories, extra socks, bullhorns, batteries, umbrellas etc.

There’s nothing so heartbreaking as a mass of people who’ve come from across the country to participate in a march that goes nowhere. An uneventful demonstration garners no press, wins no recruits, and only burns out those who thought they came to DC to effect change.

I watched half a million hispanic Americans assemble on the National Mall for Immigrant Rights. Many of those half million took a great risk marching in DC. It’s possible many as a result were deported. They could only follow the rules of course, received no media coverage, and accomplished fuck-all.

BRING CHAIRS
Come to DC with a demand, but bring more than the leverage of numbers. Carry with you the potential that you might LINGER. That’s the pressure the media can’t ignore.

Chairs, umbrellas, canopies, tents, enhance your stamina and protect you from the elements. The longer your protest runs, the more time there will be for latecomers to join in. That’s the momentum the state is worried about. Project that.

“Power concedes nothing without a demand. It never did and it never will.” – Frederick Douglass

Douglass also said: “If there is no struggle, there is no progress.” Your march organizers have promised their DC colleagues a toothless beast. It’s not what they tell their donors, nor how they phrased their invitation to you. You brought your physical body to DC to support the cause. Is it theirs to squander?

I am being prevented from defending myself in Denver Municipal Court

盈彩彩票What I filed today in Denver Municipal Court, as my jury trial is about to begin…
 
DEFENDANT’S ASSERTIONS, NOTICES, OBJECTIONS AND SUPPLEMENTAL RECORD
The Defendant, Eric Patrick Brandt – sui juris and pro se, having been ordered silenced by the judge from making any record of objections, arguments, or any other statement in retaliation for challenging the validity of the judges authority and needing to ensure sufficient record of defendant’s concerns and objections, do hereby enter into the record numerous documents anticipated will be essential should he need to appeal a conviction following trial.

Broadly, the Defendant broadly alleges the judicial bias is so intense that a fair trial is not just unlikely but in fact unintended. He has been treated to conditions and rulings uniquely applied where quick and inexpensive convictions with immediate long jail sentencing is the justice the City desires above the Defendant’s rights.

Besides vindictive actions of police, prosecution and the judge, the Defendant continues to suffer from counsel that is unresponsive, unzealous, and ineffective. The entire situation is a stream of apathy, incompetence, corruption and conspiracy bearing no resemblance to the liberty and justice of a free people protected by constitution.

This is, sadly, a concerted effort to silence a prominent, harsh, and very tenacious critic of government abuses against the people. The Defendant objects to the entire proceedings of the cases listed above and preserves for appellate review any issue, currently known or unknown, which might exist or be thought to exist whether raised specifically during the proceedings or not. The Defendant expressly preserves for appellate review the issues raised in this supplemental record.

[The 2015 Protest]
This case is one of about a dozen cases brought against this defendant and others stemming from a group of activists two-month long non-stop 24/7 protest against police brutality, unjust prosecutions and ordinances and practices abusive to the 盈彩彩票less as well as advocating for jury nullification and human rights. This action was in direct response to the felony arrests of the defendant and one Mark Iannicelli alleging the distribution of jury nullification literature constituted jury tampering which resulted in a federal civil rights lawsuit and the issuance by the federal court of an injunction barring Denver Police from arresting those who would share jury nullification messages and a finding that the courthouse plaza was a traditional free speech zone 24/7.

Denver Police responded in massive forces immediately within hours the first day activists returned to the plaza confiscating materials and property and issuing arrests for practically anything BUT jury nullification.

During the next 56 days, the City evolved ever novel tactics clearly attempting to drive the activists away from the courthouse. Responses with militarized riot police numbering sometimes near 100 regularly stormed the group any hour of the day or night.

[Arrests]
There were arrests for Obstructing Public Passageways for the existence of small tents, carts, and various other personal property and property was booked into evidence, taken for storage, or immediately discarded as trash almost every day.

DPD conspired with the City Attorney’s office and Public Works, at a minimum, first attempting to criminalize activists having any property, claiming obstruction of a public passage. Immediately the police misapplied codes regarding ENCUMBRANCES and issued almost daily unlawful orders, making arrests for failure to obey those unlawful orders. Specifically, the City asserted a criminal consequence under color of a complex civil question expressly under the authority of Public Works; Denver Police in fact have no authority regarding encumbrances.

The City Attorney’s office ordered signs be erected asserting 49-246 D.R.M.C. criminally applied to any thing what so ever on the plaza. This unlawfully legislated policy by the judicial and executive bodies defied the separation of powers and the activists defied their unlawful policy despite repeated arrests for nearly 30 days.

Then the City Attorney’s Office called Public Works and ordered 36 signs to be erected at various city building plazas instituting an overnight curfew subject to arrest for trespassing which was successful, immediately forcing the activists to move across the street at night instantly quashing the effectiveness of the activists speech to almost nothing; the group could not recover from this curfew action and dwindled over three weeks until the Police delivered a fatal blow confiscating everything the activists owned during a cold rain storm.

Again circumventing the safeguards of the separation of powers, the very entities being most directly impacted by the activists message – the city attorneys for unjust prosecutions and jury nullification and the police for abuses, beatings, killings, and other misconduct – took deliberate actions and conspired to establish a city-wide curfew policy without the approval of the legislative body, lacking any significant and legitimate government interest, and in direct retaliation for protected speech with the intent and indeed result of silencing that voice.

[The Prosecutions]
In excess of 20 criminal prosecutions followed in the wake of that intense 56 days. The vast majority of defendants either prevailed, appealed, or received sentences much lighter than prosecution desired. This defendant was subjected to the most cases filed and prosecutors were not achieving their goals with him either.

Furthermore, defendants enjoyed large numbers of activists showing court support which effectively brought anti-police and anti-prosecution messages directly into the courthouse. Discovery issues, overloaded ADC, witness issues, and unexpected family death with ADC lead to the Defendant’s cases being repeatedly continued out for over a year.

During this time the Defendant aggressively investigated the conspiracy between the various departments and the unlawful institution of the encumbrance and curfew policies. The City was tight-lipped about the subjects and concrete evidence eluded discovery. Scant pieces of evidence painted a circumstantial picture but the evidence was insufficient to compel the Courts to grant subpoenas or permit use at trial to show motive and attack credibility. Despite nexus of this concerted plan through almost every case, each case was handled as it’s own unique package.

[A Special Judge]
Ultimately this defendant was assigned a hand-picked judge – Frederick Rodgers – and assigned entirely to his own courtroom – the unused 4B. The details of the assignment are unclear except that it appears Judge Teresa Spahn likely requested the special treatment, and Rodgers has made comments on the record indicating he was assigned to move the defendant’s cases along and that it was desired to get these cases out of the general sessions dockets. The Defendant alleges this was a deliberate act to further isolate the activists from the people in the general sessions corridor and to a courtroom that was essentially vacant.

Rodgers issued a very bizarre order concerning conduct on August 24th, 2016 which was unknown to the Defendant until the night before his September 7th trial setting. Attached with this filing – because oddly enough the clerks cannot find the order filed in any of the defendant’s case files but furnished a copy from an email they found – the strange order, which published the Defendant’s other acts as well as his associates acts along with a claim these associates create serious disruptions, was published loud and clear to the prospective jurors waiting to enter the courtroom and to the actual jurors during breaks.

It is undoubtedly this 3-page document directed against alleged disruptions coupled with the constant presence of up to a dozen armed sheriff’s deputies throughout the proceedings that caused the jurors in that trial to ask the court to assign extra law enforcement to escort them to their vehicles. It was this first Rodgers trial where the Defense council withdrew for ineffectiveness after being unable to meet with the Defendant on the case or go over discovery, then the Defendant was denied new council, forced to proceed pro se, denied discovery, and even denied the right to subpoena witnesses essential to his defense. Withdrawn Council was ordered under his express objections to remain as assistance of council – a claim the judge denied in another strange order entered after the trial.

The Court then denied the entry of evidence clearly defining the terms ENCUMBRANCE and OBSTRUCTION which was essential to the police were unlawfully applying a criminal penalty to a civil code.

The inevitable conclusion of course was a conviction rendered by six terrified jurors followed by immediate sentencing and remand to custody. The remand was thwarted when a very clearly irritated judge was forced to research and agree with the Defendant that a stay of execution was MANDATORY under Rule 37f and a very clearly irritated judge.

[The Missing Oath]
From the very beginning, the Defendant objected to Rodger’s authority and has repeatedly challenged his jurisdiction and demanded a showing in the record he was lawfully empowered to preside over his cases. The defendant was already aware of issues Rodgers had with his qualification. Rodgers was already on a watch list of bad judges. As such, the Defendant had already attempted to obtain a copy of his Oath of Office from the Clerk and Recorder’s office.

Constitution, statute and code obligate a Denver Municipal Court Judge SUBSCRIBE AND FILE WITH THE CLERK AND RECORDER’S OFFICE AN OATH OF OFFICE BEFORE ACTING AS A JUDGE. The consequences for neglecting to accomplish this requirement is that the person has no authority, their office is IPSO FACTO VACANT and all findings, Judgments, orders etc are NULL AND VOID.

Frederick Barker Rodgers did not file an oath of office as required and there have been numerous attempts by the defendant and others in the past year to obtain it. The De Jure Peoples Grand Jury indicted Rodgers for oath problems while he was in Gilpin County and complete copies of that indictment were entered into the record on all three of my then pending cases. I advised Rodgers in court to put his house in order before peering into mine.

I then demanded records showing his appointment as a retired judge. The presiding judge’s clerk responded with a letter stating there are no such records and she offered a copy of his oath of office – signatures redacted for privacy. That oath of office was dated July 27, 2011! I demanded a non-redacted oath and demanded it to be the one filed with the clerk and recorder’s office as required by law. She responded with a redacted signature copy of a copy copy showing a received stamp dated 2015DEC02!

In court next, Rodgers proudly displayed that original oath of office in a gold frame on the bench. It bears no received stamp. At the same time Stephen Nalty obtained a certified copy of the oath from the clerk and recorders office. This time the oath existed where it had not several times before. This oath copy was not redacted and most disturbingly did not bear the received stamp which was passed off to me on the copy claimed to have been filed. Clearly hanky panky is going on.

To date the City has failed to show Rodgers has any lawful appointment. He is 76 years old, has no contract, has no valid oath of office, has no official bond, and he was assigned to my cases “to move things along” which I allege means get me convicted and in jail.

OBJECTION TO ORDER OF SILENCE
After filing his indictment into the record, Rodgers issued an order of silence and removed me to a secret room when I objected. This is in retaliation for the indictment and oath demand as I have never created a disruption before in his court. He also beefed up security and has me under armed guard of 4 to 6 deputies all the time. I object to not being allowed to address the court and I object to being treated like a criminal under guard.

NOTICE OF INEFFECTIVE LEGAL COUNCIL
My attorney has had a constant history of not responding to me and not doing the research I require in my case. The email record is repeat with my objections to her lack of commitment to my cases.

OBJECTION TO UNIQUE / UNEQUAL ENVIRONMENT
I was removed from the 3rd floor and given my own special courtroom with my own special (imposter) judge because Judge Theresa Spahn was mad at me for my free speech critical of her performance WHILE OUTSIDE ANY CASES SHE WAS CONDUCTING. She was mad because our group is helpful to other defendants and our assistance to them has resulted in them achieving success in their cases. The city is upset they are losing our cases left and right and they want to separate us from the masses and get us convicted. Ho better than Rodgers – who doesn’t let good law and reason stand in the way of lousy rulings and judgments.

NOTICE OF PRESERVATION OF APPEAL ISSUES
Because I have been silenced and my lawyer is ineffective I hereby reserve the right to raise ANY issue on appeal regardless of it having been preserved on the record.

OBJECTION TO DENIAL OF NEW EVIDENCE
There is new evidence revealed which demonstrates without a doubt there was conspiracy to silence our protest through the misapplication of a civil code. That evidence is being denied despite clearly speaking to prosecutorial motives and credibility of officer’s statements.

CHALLENGE TO ORDINANCE CONSTITUTIONALITY
My lawyer failed to challenge the pedestrian in a roadway ordinance as overbroad as I demanded. I object and preserve for appeal.

ASSERTION CONDUCT PROTECTED FIRST AMENDMENT EXPRESSION
My lawyer failed to file a motion to dismiss as protected expression my actions leading to these charges. I object and preserve for appeal.

CHALLENGE TO JUDICIAL AUTHORITY OF FREDERICK BARKER RODGERS
Rodgers has REFUSED to enter into the record any authority he has to preside over my cases. He is essentially an unauthorized permanent judge with no contract, a 6-year old expired oath of office (which was never properly filed anyway) who is apparently exempt from the 72 year mandatory retirement age and exempt from the people having opportunity to vote him out of office. He has absolutely no authority and apparently perfect immunity to do what ever the city wants him to do. I REJECT FREDERICK RODGERS AND EVERY THIING HE HAS DONE OR WILL DO IS NULL AND VOID. HE IS OPERATING IN AN IPSO FACTO VACANT OFFICE. I OBJECT AND PRESERVE FOR APPEAL.

Unresolved 2015 protest case reveals Denver police have been concealing evidence from all activist trials

盈彩彩票Eric Brandt on the hoof
DENVER, COLORADO- A seemingly ordinary protester-in-the-roadway case has exploded in the face of Denver city lawyers from the prosecutor’s office to the department of civil liabilities. The case against activist Eric Brandt, for chasing a police motorcade which had falsely arrested a fellow demonstrator, today revealed that in arrests made at political protests, Denver police have been withholding key reports from the evidence disclosed to those defendants.

Denver police file what’s called an “After Action Report” for public protests that prompt a mobilized law enforcement response. But the department doesn’t release the report to arrestees who face charges stemming from those actions. Ostensibly the reports are kept secret to avoid public scrutiny of crowd control strategies, but the reports also document the attendance of officers who witness the purported crimes. Those –otherwise undocumented– personnel write reports which are then not included in the discovery evidence. That is what defense lawyers call “Brady Material”, witnesses who are not consulted about what they saw, possibly exculpatory evidence which is being denied to the accused. What role those officers might play in the circumstances leading to the arrests is also kept a mystery.

Last week just before Eric Brandt’s trial, a DPD After Action Report for the protest arrests of August 28, 2015 was accidentally brought to the court’s attention the morning of trial. DPD Commander Tony Lopez brought the AAR report with him as a crib sheet to help his officers corroborate their witness testimonies. The prosecuting attorney coaching the witnesses was offered the report as an aid and as a consequence she was obligated to reveal it to the defense. At first Judge Frederick Rogers gave the defense one hour to study the new document. An hour later, after everyone had pondered the implications, the jury pool was excused for good and Rogers conceded that more time was needed for further subpoenas.

At a pretrial conference today Judge Rogers tried to limit the extent of additional evidence needed before the case could proceed. He rejected a subpoena which he deemed too broad, and limited requests for further AARs to those filed August 26 and 28th. While a prosecuting attorney described such reports as so rare she’s never encountered one before, another city attorney sheepishly admitted that a paralegal in his office had unearthed three AARs that may meet the criteria. So much for rare, that’s three in as many days. Another city attorney insisted that she needed to vet those beforehand, but a peeved Judge Rogers volunteered to assess their applicability himself. If they weren’t in his in-box by 4pm, he’d assume they were forwarded to the defense as ordered.

In question in this particular case was a mention that the head of Denver’s Dept of Public Works had ordered the police action on August 28. This is at odds with all previous police testimony which denied communication with Public Works. It goes toward impeachment of those officers as well as establishing whether Denver police have been abusing the city’s “encumbrance” ordinance. The encumbrance code is what Denver has used to squash sustained protests beginning with the original 2011 Occupy Denver encampments.

This is not the first time After Action Reports have come to light. A lieutenant testifying against an activist last November mentioned in his testimony that the reason he was fully confident in answering how many officers had responded to the protest in question was that he’s just reviewed the AAR. Unfortunately the lawyer defending that case didn’t bite.

And the public learned about AARs when one was accidentally included in the discovery evidence of an Anonymous protester arrested at MMM2015. That report famously revealed that the police outnumbered the protesters, 27% of whom were undercover “Shadow Teams”. Unfortunately the furthest defense attorneys got to more evidence were reports sent for in-camera review by the judge, in that case municipal Judge Espinosa, who ruled there was nothing relevant to the case. The case by the way is under appeal.

Now it remains for someone to file a CORA Colorado Open Records Act request for the missing AARs. There’s one for every public protest countered by police. Anyone who has been convicted of an infraction at a protest, or was coerced into taking a plea deal on the face of one-sided evidence, was denied the full story they needed to defend themselves.

For Eric Brandt’s current case, his being the last of charges filed against activists who occupied the Lindsey Flanigan Courthouse plaza in Fall months of 2015, the defense is seeking the AARs for the 26 police raids made against the protest, from its start on August 26 to its terminal extraction on October 22. Were the police acting within their authority? Were their orders legal? Did Denver abuse an ordinance to curtail free speech in the plaza? Ultimately authorities curbed the protest by imposing a curfew. Was that a flagrant work-around to circumvent a federal injunction meant to prevent their harassment of protected activity in not only a traditional free speech area but a designated free speech zone. That battle is already scheduled in April 2017 in federal court.

NOTES:
Those dates, if you’re interested, were Aug 26, 10am & 11pm; Aug 28, 6pm & 7:30pm; Sep 2, 6pm; Sep 8, 4:30pm; Sep 12, 1am; Sep 13, 3am & 11pm; Sep 14, 11am & 1:30pm; Sep 15, 3am; Sep 16, 12am; Sep 17, 1:20am; Sep 18, 1:20am & 5pm; Sep 19, 2:40am; Sep 22, 12:30am; Sep 24, 3am; Sep 25, 8:30pm & 9:30pm; Sep 26, 2:15am; Oct 9, 1pm; Oct 10, 10:20am; Oct 21, 2pm; and Oct 22, 10am. There may have been more.

North Dakota police are using grenades against Standing Rock DAPL protesters

盈彩彩票
STANDING ROCK, ND- Morton County sheriff deputies have admitted using STING GRENADES against the Standing Rock water protectors on Nov 22, which are suspected to have caused the serious injury which may result in 21-year-old activist Sophia Wilansky losing her arm. Protesters were fired on with rubber bullets, stun grenades, tear gas, pepper spray, and high pressure water cannons filled with chemical agents. Protesters were falling on the icy grass when deputies fired a sting-ball grenade into the group. Ms. Wilansky’s elbow was struck which severed her artery and all nerves in her left arm.

盈彩彩票
After denying responsibility for the many injuries they caused and accusing the protesters of attempting to detonate a propane cannister, the sheriffs department admitted to using “Stinger Bombs”, more exactly, the Sting-Ball grenade, described in police manuals as “an explosive anti-riot device which hurtles a large number of small “stinging” rubber balls at rioters when ignited. May or may not contain riot control agents. Also known as stingball or stinger grenade.”

盈彩彩票 Rubber bullets can be aimed away from eyes and faces, though an explosive which propels rubber pellets cannot. Any pretense that deputies are avoiding injuring the public is betrayed by the fact that they are aiming their bullets at the faces, groins and kneecaps of protesters. Though media reports state that police are “throwing” these projectiles, witnesses claim all of these are in fact being FIRED on them with launch weapons. Witnesses also report that the stun grenades being against them have their ventilation holes covered with duct-tape. It’s presumed that the tape causes the grenades to explode with greater pressure.