Yesterday, oral arguments were held before the Tenth Circuit Court of Appeals in the case of Verlo, et al. vs. City and County of Denver, et al., Appellants. (Click here for the audio recording.)
This case is one of several related cases with regard to the anti-free speech zone at the Lindsey-Flanigan Courthouse in Denver, Colorado.
In the summer of 2015, Mark Iannicelli and Eric Brandt were illegally arrested and falsely charged with 7 felony counts each of so-called jury tampering for sharing FIJA brochures with the general public outside the Lindsey-Flanigan Courthouse.
Two courts so far have dismissed those charges. Both courts agreed that simply handing out these brochures to anyone who accepts one does not constitute jury tampering. This malicious prosecution was initiated under the watch of former Denver District Attorney Mitch Morrissey.
Although Morrissey is no longer in office, the DA's office has not yet given up trying to get the charges reinstated. The matter has been submitted to the Colorado Supreme Court, which has so far taken no action.
First Amendment Civil Lawsuit
Following on the heels of these false arrests, an onerous anti-free speech order was issued prohibiting a plethora of First Amendment activity. Among other things, sharing FIJA brochures in certain areas outside the courthouse was prohibited by the order.
Represented by passionate First Amendment champions David Lane and Andrew McNulty of Killmer, Lane & Newman, LLP, co-plantiffs Eric Verlo, Janet Matzen, and the Fully Informed Jury Association filed a civil lawsuit to void this illegal order and restore Constitutional protection of First Amendment rights in the anti-free speech zones. Unfortunately, this challenge was unsuccessful and the zones remain in force today.
Contempt of Court
During the course of the civil lawsuit, however, the prohibition on handing out brochures in the anti-free speech zone was enjoined for several months. During that time, it was illegal for Denver to arrest people for sharing these brochures in those areas.
Denver, however, ignored that injunction and arrested both Mark and Eric again. Because Denver violated the injunction, it was held in contempt of court. Its penalty was not so much against those who engaged in the unlawful conduct, but against the taxpayers who have no choice but to fund their illegal behavior.
Although it suffered barely a slap on the wrist as a result, Denver has now appealed that contempt of court finding. In this latest chapter of the court proceeds, attorney Andrew McNulty ably made the case that the contempt ruling should not be overturned. We now await a decision.
Throughout this ordeal, the standards of the system have been exactly opposite of what they should be.
Instead of assuming that peaceful people doing nothing more than handing out informative pieces of paper are perfectly within their rights, Denver has assumed and behaved as if such people are criminals and mistreated them accordingly.
Denver expects members of the public to be informed of and follow to the letter a lengthy list of intricate legal details that most of us are not trained in just to be able to exercise our First Amendment-guaranteed rights.
But when its own armed officers, who are supposed to be trained to some degree in enforcing the law, turn out not to have any awareness of the order that WE are expected to follow to the letter, Denver doesn't want to take responsibility for its own tax-paid employees.
If Denver cannot be held accountable in this case, this opens up a wide new path for Denver to evade the law in the future. The implications are both disturbing and reach far beyond this case. We look forward to the Tenth Circuit upholding the contempt finding, ensuring that courts can put teeth into the constraints they place on government rather than allowing them even more latitude to act unlawfully without consequence.