Boulder judge rejects restraining order against city's most annoying critic
Update: Today, Judge David Archuleta rejected Boulder's request for a permanent restraining order against Seth Brigham, a vocal critic whom a workplace-violence expert deemed dangerous without having met him and sans any actual attacks or explicit threats; see our previous coverage below. Brigham is exultant over the ruling, and so is his attorney, David Lane, who drops anvil-sized hints that he'll soon sue the city over the affair.
As we've reported, Brigham was served with a restraining order after the city provided Dr. John Nicoletti with copies of e-mails accusing Boulder City Councilwoman KC Becker of financial impropriety, as well as information involving verbal jousting, F-bombs and occasional jabs and pushes involving other councilmembers. Brigham responded by contacting Lane, who'd represented him two years earlier after he was arrested for stripping to his boxer shorts at a council meeting -- an incident that led to Boulder paying a $10,000 settlement to make the matter go away.
In the latest case, Lane argued that because Boulder hadn't demonstrated that Brigham was dangerous, the city was violating his First Amendment rights by attempting to ban him from future council meetings and the like. And Judge Archuleta agreed. Here's an excerpt from his "Orders Denying Permanent Protection Order," on view below in its entirety:
I find that the Petitioners have failed to meet their burden to prove that a restraining order should enter in this case. Although I do not believe that Petitioners necessarily intended to silence Respondent's political speech it is clear to me that approving a permanent protection order in this case would do just that, and that they haven't satisfied the Protection Order statute in any event....
Although I have considered this case very carefully, given the strongly held and well-articulated positions of each party, this case is not a particularly compelling one for me. The threat posed by the Respondent is not imminent and the request for the permanent protection order must, therefore, be denied.
That sounds like the final word, but it's not. Archuleta subsequently goes into detail about the case, placing particular emphasis on an affidavit filed on Brigham's behalf by councilmember Lisa Morzel. She describes Brigham as a "pest" and a "gadfly," but argues that there are remedies to deal with him other than a permanent restraining order. The judge concurs, writing, "If City Council is concerned the Respondent is violating its rules of decorum or procedure, they should have him removed from the Council chambers. If any Council Member believes they are threatened by the Respondent's words or actions they should contact the police to lodge a criminal complaint." But a blanket ban of Brigham, he believes, is neither justified nor supported by the facts.
In an e-mail reply to Lane, Brigham reacted to the ruling by writing, "WONDERFUL!!!! I COULD TELL YOU MORE ABOUT HOW THIS MAKES ME SO HAPPY!!!!" We subsequently sent him some specific questions and (update) he sent a long and passionate response on view below.
In the meantime, Lane says he is "extremely happy with the ruling. Finally, someone inside the Boulder city limits has read the Constitution and understands the First Amendment.
"The law has never allowed simply being annoying to justify having a restraining order put on you," he goes on. "And Seth agrees that he's annoying. He's trying to be annoying. That's what gadflies are supposed to do, and that's what the First Amendment allows and encourages them to do."
What's next? Quite possibly more legal action.
Lane maintains that his office has "a zero-tolerance policy for constitutional violations, and simply trying to violate the Constitution unsuccessfully doesn't really teach Boulder a lesson. They tried to muzzle Seth one other time, and it cost them $10,000. They didn't learn their lesson after that, so consistent with our policy, we're going to have to teach Boulder a better lesson. Let's see what a federal court jury in a civil-rights case says about Boulder abusing process in this way. Let's see what a civil-rights case does to Boulder in federal court."
Should that be interpreted as an unshakable plan to sue Boulder? Not quite, but close. Here's how Lane characterizes the situation: "It seems to me that Boulder used the judicial process to try and violate the First Amendment. That's an abusive process. That's a civil-rights violation. And they need to be held accountable for their actions."
Boulder spokeswoman Sarah Huntley sees things very differently -- and far from apologizing for the actions taken against Brigham, she vigorously defends them.
"The City of Boulder is disappointed in the court's ruling," she says. "The city did not make the decision to seek a protective order against Mr. Brigham lightly. The concern was and continues to be public safety and the safety of public officials from behavior that is erratic and threatening. The city believes that Dr. Nicoletti's testimony established that Mr. Brigham's escalating behavior is cause for alarm and preventative action."
How will Boulder deal with Brigham in the future?
"The court specifically mentioned in the ruling that there are a variety of methods available to the city in dealing with Mr. Brigham if his disruptive and potentially violent conduct continues," she allows. "These include removing Mr. Brigham from meetings if he violates the rules of decorum and the filing of criminal complaints by individuals if necessary -- and the city intends to use these means if appropriate."
What about extra security at city council meetings and the like? In Huntley's words, "We evaluate on a meeting-by-meeting basis what an appropriate security response should be, and we'll continue to do that."
Regarding a potential federal civil-rights lawsuit, Huntley says, "I'm not surprised by that type of reaction from Mr. Lane. However, the city believes strongly that we were taking an appropriate and available step to protect the individuals who were threatened. And we were gratified to see the language of the judge in which he agreed this wasn't a veiled attempt to silence Mr. Brigham's political speech or viewpoint. The city considers freedom of speech to be a core tenant of our governmental system and understands that elected officials are subject to scrutiny and criticism. Where we disagree with the other side, I think, is that public officials and their families should not be subjected to repeated abuse and scare tactics."
Here's the judge's ruling.
Continue reading for Seth Brigham's reaction to the ruling and previous coverage. Here's the e-mail response to the ruling sent to us moments ago by Seth Brigham. We're sharing it with only the most minor editing.
You know that I have been sending quite a lot of e-mails as the decision was coming and it weighed heavily on me.
I think that it is a good thing for the people of Boulder in regard to the fact that they, Boulder City Government, will have to address these questions of conflict of interest. I now regard it as outright corruption.
My earlier e-mail describing how this has hurt me a lot, to the core, that with my illness, it effects me in a greater regard than the usual person.
How stressful would be this for you or anyone, to be made out in such a manner that is so reprehensible for any government to do to one of it's citizens.
I have really fought hard within myself to stay intact. there are many implications regarding civil liberties, free speech, my fundamental rights.
But, also it is very personal to me for I have suffered with a mental illness that runs in my family, a good and decent family, one that taught me to question authority, to ask questions because often the workings of those in control of our institutions often abuse those very privileges we give them, to be representatives of the people, for the people and by the people.
Do you know that 20 percent of Manic Depressives are SUCCESSFUL in committing suicide.
I felt a great need to stand up for the homeless of recent years, knowing that they are really powerless and yet are considered by many to be outcasts, worthless and not worthy of assistance.
Who do these who PUBLIC officials who hold the power to help or hinder be so callous? And, thoughtless.
In the same regard it appears to me that particularly our City Attorney, Tom Carr, our City Manager, Jane Brautigam and many of the Boulder City Council only have their own interests and those who already have wealth and power! That they mostly do their bidding.
I was very frustrated over the years over the taking away of not only our Public access station which was given to others to enrich themselves, then there was the homeless ordinances and an attempt to snuff out the Occupy movement, right here in a so called liberal bastion.
As well, being mentally ill, I had a desire to expose and educate those who would call those on the streets crazy or drug addicts or worse when they too may be afflicted with untreated mental illnesses. I exposed my vulnerabilities, even if sometimes I acted in a manner that others could not understand, but, yet, I was never threatening or violent, never have been.
What should be known is that these officials in their actions have shown a real mental illness, an institution illness filled with the idea that they are deserving while others are not. They live privileged lives and yet they would use my own mental illness against me out of a need to control the agenda and rid themselves of a thorn on their sides, to dismiss me as crazy and far worse, a possible mass murderer in the making.
They need to be educated on mental illness, but, as well, that everyone has a right to take part in our democracy, even if they might be different or have no real influence but their voice.
Yes, I am going to sue and sue big time. I do not think we will settle because I think The City of Boulder has gone too far in abusing their power, discriminating against those who have no power and stripping me or anyone of all the basic fundamental rights in the CONSTITUTION?
I take this very personal because I have had a hard life, been in places no person would wish to be and yet I have remained peaceful despite it all. That is only because my foundation is my family, two of which have or had this disease.
The mentally ill are not the problem nor are the homeless.
We are all for the most part as peaceful and caring and empathetic to our fellow man, more so than those who have everything, who have the opportunity to lead. but, these people, Boulder's whole lot of PUBLIC officials have shown a lack of leadership, a lack of ethics and have been Unconscionable in their actions to me, but, I could be many others. I am not alone because an have faith in people, more faith in the down and out, the disenfranchised than these hooligans who think they are supreme and have shown in their actions a disregard of the most basic tenets of faith, to be caring to all.
I am not perfect, far from it, but, I would have had more sense than to have started this most recent process.
It should never have even been considered if there were any thoughtful people on Boulder Council, yet,all but one continued to be on the " protected list."
They all should be sued individually no matter if they wrote up affidavit's or simple signed their name on the dotted line.
I could write volumes, but, it is in ones nature to be good or bad or to be peaceful or violent, wherever you might be on the totem pole.
POWER CORRUPTS, I guess.
I think Tom Carr should be fired and several council members should resign.
But I expect they will move forward as if I was just al fly that had been swatted.
They will be taught the only lesson for which they seem to know by way of financial recompense and I am not talking ten thousand.
I think ten thousand per day is appropriate. 4 MONTHS!!!
And, yes there was and is pain and suffering, beyond all the rights that I was stripped of.
And, those 4 months they all hid behind a RESTRAINING ORDER.
They need to be restrained and I hope that they will think again before they try this sort of thing on anyone ever again.
Take what you want and leave the rest.
Just remember I a human being who has been treated like a dog.
Continue reading for our previous coverage. Original post, 9:59 a.m. August 27: Final filings have been made in the case of annoying critic Seth Brigham, target of a restraining order by the City of Boulder. And accompanying a closing statement from lawyer David Lane, who considers Boulder's action a bad joke, is an affidavit from Boulder councilwoman Lisa Morzel, who argues city officials are going too far in trying to ban Brigham. Read the documents below.
As we've reported, Brigham has been a thorn in the side of Boulder officials for years. In 2010, for instance, the city paid him $10,000 to prevent a First Amendment lawsuit from Lane over the gadfly's arrest at a city council meeting. There, Brigham stripped to his boxer shorts as a way of ridiculing a nudity ordinance he incorrectly thought would be debated that night.
Here's video of his big moment:
More recently, Brigham sent e-mails accusing Boulder City Councilwoman KC Becker of financial impropriety and got into a dustup with councilman George Karakehian involving a "Heil Hitler" salute, multiple F-bombs and conflicting views about who touched and/or jabbed who. These incidents were shared with Dr. John Nicoletti, an expert on workplace violence, who concluded Brigham "was definitely a threat and the city needed to take action," according to Boulder spokeswoman Sarah Huntley.
In a previous interview with Westword, Lane pointed out that Nicoletti didn't meet or speak with Brigham before making his recommendation -- a methodology the attorney compared with mind-reading.
A hearing in the case was held earlier this month, and in a note accompanying an e-mail in which he shared the closing statement and Morzel's affidavit, Brigham made it clear how much the controversy has distressed him. He writes:
I just want to thank everyone for being in my life. And, a special thanks goes out to those who never wavered in supporting me during this time. Most of you know who I am. You know the struggles throughout my life, far worse than even this. But consider the stress that this has caused me. I know I will be a better person for it. I know how to turn my weaknesses into strength. I believe in me because I believe in faith, faith in others. Had I succumbed to this, I believe I would have put an end to my life. But, I am alive and I love life, never a thought of taking another's.
Morzel concurs with this last statement. In her affidavit, she writes that she has known Brigham for about twelve years, and she does "not find him a violent person."
Not that she heaps praise on his behavior.
While discussing Brigham's appearance at a 2010 gathering, Morzel describes his actions as being "boorish and rude," as well as "inappropriate." She is no more complimentary about his appearance at a January 2012 city council meeting, pointing out that he had used the word "fuck," briefly disrupted the meeting, and said the citizens should consider "getting rid of" council and some city officials -- a statement she interpreted as satire rather than a literal threat. Nonetheless, she considers him to have been "way out of line."
Despite this view, Morzel doesn't think a ban against Brigham is an appropriate way to deal with him. Here's an excerpt from her affidavit:
With respect to the permanent restraining order against Seth, I think it is excessive and unnecessary and sets a very bad precedent. Even if we silence Seth, other citizens will continue to criticize different actions of the city council or individual council members, adn then who will we silence next?
When asked about the Morzel remarks, attorney Lane says, "She is the only person on that council who has any real perspective on the First Amendment and the life of a politician. You simply have to be annoyed at some of your constituents from time to time. But that doesn't mean you can legally make them go away and be quiet."
As of now, Lane says, both parties are waiting on a judge to decide whether the restraining order should be made permanent or tossed entirely.
We've reached out to Morzel, and if and when she gets back to us, we'll update this post. In the meantime, here's her complete affidavit, followed by Lane's closing statement.
More from our Follow That Story archive: "Striptease pays off: Boulder City council offers $10,000 to boxer-shorts-protester Seth Brigham." More from our Occupy Denver archive: "Corey Donahue and Patrick Marsden arrested for assault on an officer, pepper-sprayed."
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