Legal Battle Over First Amendment Plays Out at Denver Courthouse

Published September 1, 2015

By Noelle Phillips
The Denver Post

What started in late July over a pamphlet about an obscure legal act dating to the 1600s has escalated into a turf war outside a Denver courthouse and a legal battle between city officials and activists.

The case has created some strange allies in the legal community, energized holdouts from the 2011 Occupy Denver community and ensnared a chief judge worried about security as a jury deliberated in Denver’s first death penalty case since 2001.

The saga continues at 9:30 a.m. Tuesday when the parties of a civil rights lawsuit appear in U.S. District Court in Denver for a hearing over whether Police Chief Robert White should be held in contempt after his officers last week confiscated protesters’ property.

The legal wrangling features opponents who long have clashed on Denver’s streets — police, who feel obligated to uphold laws and protect the public, and protesters, who have shown a willingness to take up almost any anti-government cause.

But the activists and their attorney argue a line has been crossed because judges, prosecutors and police find the message offensive.

“Whether these guys are polite or not polite, whether these guys are annoying or not annoying doesn’t matter,” said David Lane, the Denver attorney who filed a lawsuit over the issue. “The First Amendment lives in a rough neighborhood.”

The dispute began in July when Denver prosecutors charged 56-year-old Mark Iannicelli with seven counts of jury tampering after he set up a small booth on the Lindsey-Flanigan Courthouse property and began distributing jury nullification brochures.

Less than two weeks later, Eric Brandt, 47, was arrested on the same charges.

Jury nullification goes back centuries, and its evolution includes a case from 1670 when a jury refused to convict the Quaker William Penn for preaching publicly. It occurs when a jury reaches a not guilty verdict because its members believe a law is immoral or wrongly applied.

Kirsten Tynan, executive director of the Montana-based Fully Informed Jury Association, said the publicity surrounding the arrests and a federal lawsuit have played well for her organization.

“The DA is basically doing our job,” she said. “The DA’s efforts to quash our message have made it go much further.”

Tynan’s association joined two Denver residents in a federal civil rights lawsuit on Aug. 17 against the city and White.

Around the same time the lawsuit was filed, 2nd Judicial District Chief Judge Michael Martinez issued an order, banning protests outside the courthouse in anticipation of a verdict in the Dexter Lewis death penalty case. Courthouse officials feared potentially violent protests should the jury decide to sentence Lewis to death for stabbing to death five people at Fero’s Bar and Grill in 2012.

Martinez was added as a defendant in the civil rights lawsuit. His concerns would be unrealized, as the jury decided Lewis should be sentenced to life in prison.

The legal entanglement has made for some rare partnerships.

City Attorney Scott Martinez took sides with the plaintiffs and their attorney, Lane, even though the city and its police chief were the targets of the lawsuit.

Over the years, Lane has been a formidable opponent for the city attorney’s office, winning millions of dollars in legal settlements after suing the city in police brutality cases.

This time, however, Martinez agreed with Lane’s position that the courthouse plaza is a free speech zone. His staff argued on behalf of the activists in federal court.

Scott Martinez also advised Denver police officers and sheriff’s deputies to stop arresting people distributing pamphlets outside the courthouse.

“Once in a blue moon,” Martinez said about the odd pairing.

Lane successfully argued before U.S. District Judge William Martinez for a court order that would allow activists to continue handing out the jury nullification pamphlets. But the judge in his Aug. 25 ruling allowed parts of the lower court’s order to stand, including prohibitions on erecting structures, blocking entrances, trampling landscaping and using loud speakers.

(None of the Martinezes in the case are related.)

The next day, about 20 activists pushed boundaries. They set up a shade canopy, brought buckets to use as drums, posted banners, including one with a profane message toward cops, and again handed out pamphlets.

Police swarmed the courthouse plaza, leading to a heated confrontation. No one was arrested, but the police confiscated property.

Lane quickly filed a motion in federal court asking that White be held in contempt. He called Denver police “jack-booted” thugs and accused them of taking the property to retaliate against the activists.

The city attorney’s office, once aligned with the protesters, countered. Attorneys took offense at the name calling and accused protesters of bringing oil or gas to the courthouse.

Since then, the protesters have gathered each morning at the courthouse while police monitor their activities. Each side blames the other for elevating the tension.

Mark Silverstein, legal director of the ACLU of Colorado, said the police could de-escalate the situation.

“The police have discretion about the enforcement of lots of laws,” he said. “They have the ability to say some laws are not so important so they don’t have to enforce them in every case.”

With neither side backing down, the federal judge again will referee the dispute in court.

The future of the original criminal charges is unresolved. Judge Martinez concluded the pamphlets are protected speech, and Lane maintains that is enough to get the charges dropped.

Arraignments are scheduled for later this month, and Lynn Kimbrough, a spokeswoman in the Denver District Attorney’s Office, said the charges are going forward.

The decision to charge the men with jury tampering met the requirements under Colorado law, Kimbrough said.

“It’s not to make a statement about any other particular issue,” she said.