Occupy Denver: Charge against plaintiff in David Lane lawsuit dropped days before court date

Update: Two of the charges incurred by supporters of Occupy Denver in recent weeks were dropped over the weekend when the city attorney's office decided against officially filing in both cases. The most notable of the two instances is that of Natalie Wyatt, who has since enlisted as a plaintiff on the side of David Lane in his legal team's pursuit of an injunction against the Denver Police Department for restrictions against the group's First Amendment freedom of expression.

Wyatt was cited for disturbing the peace over the use of an air horn from the passenger seat of a car. As she was receiving her ticket, fellow protester Robert Schultz earned one of us own -- for riding his bicycle on the sidewalk to meet her.

An Occupy Denver protest.
An Occupy Denver protest.
Photo by Kelsey Whipple

Both cases have since been dropped, according to Vince DiCroce, the director of the prosecution section of the city attorney's office. He sent both Occupy Denver supporters letters revealing that "the charges would not be filed and they don't need to appear in court," he says. "Upon review of the file, it seemed we would not be able to successfully prosecute either case in court. Those two were brought to my attention before they were filed with the court, but there are numerous cases filed that we're going forward on. "

Wyatt and Schultz's cases are the only two to have been dropped before being filed, and the timing, several days before Monday's hearing on the injunction, seems significant. DiCrose says there is no connection between the decision to drop Wyatt's charge and her role as a plaintiff in the case, but Occupy Denver's internal legal working team remains suspicious.

"The city attorney's official position was that they've never targeted anyone specifically in relation to Occupy Denver, but the same week, we get these dismissals for some of the charges," says protester Rob Piper, who is also a plaintiff in the case. "They're trying to mitigate their loss, and I would do the same if I were rapidly approaching a court date. I find that incredibly disingenuous."

Could the city use the dropped charge as an argument that Wyatt's role in the case be diminished? Piper argues that the specific charge is not a central issue here. "It was my guess that the city is trying to eliminate standing for the suit, but the petition for injunctive relief doesn't speak specifically to charges," Piper says. "It speaks more to the effect that pattern has had on freedom of expression. The city has offered no guarantee of non-prosecution in the future. Nothing stops them from, starting today, writing the same tickets again."

In the past few weeks, Occupy Denver has experienced a noticeable decrease in donations and participation that Piper believes is a direct result of a crackdown on attempts to support and donate to the group. Occupy Denver's Facebook page warns potential donors against stopping or slowing down in front of Civic Center Park, and the number of people who stop down the street to walk their donations to the occupation is considerably fewer than those who used to pull over and greet protesters between 14th and Colfax.

"I think that's directly correlated to the way the police are treating this," Piper says.

Continue for Westword's previous coverage of the group's injunction and open-records requests.  Update by Michael Roberts: Earlier this month, attorney David Lane sent an open records request to the City of Denver regarding possible collusion with officials elsewhere in timing Occupy Denver crackdowns. The city claimed not to have any info, but today -- a week before a scheduled court date over an occupation-related temporary injunction request -- Lane plans to resubmit the request. Why?

The reason has to do with an e-mail sent on November 23 by Amber Miller, spokeswoman for Denver Mayor Michael Hancock, to Lane associate Christopher Dodd. Here it is:

Mr. Dodd -

When we replied to your records request by saying the Mayor's Office had no responsive records, we meant that the Mayor did not have "documentation of any... communication between Mayor Hancock (and/or his staff) and the governors or mayors of any other states or municipalities (and/or their staff) regarding the Occupy Movement." We were not withholding any document based upon an exemption from disclosure.

Admittedly, we had only searched for records of the Mayor -- we had not searched for records of the staff of the Mayor's office. We have now done so and have determined that neither the Mayor nor any member of his staff has any "documentation of any... communication between Mayor Hancock (and/or his staff) and the governors or mayors of any other states or municipalities (and/or their staff) regarding the Occupy Movement."

Please advise of additional questions or concerns regarding this request.

Best --

Amber Miller

Lane had assumed that Denver reps would have been more thorough in responding to the initial records request. "On the one hand, I give them credit for fessing up that they didn't do a full-blown search," he says. "On the other hand, I give them criticism for not doing a full-blown search."

Given this discrepancy, Lane and company will submit an expanded request just in case other things were overlooked.

In the meantime, a hearing over the injunction request has been set for 9 a.m. Monday, December 5, in the Federal District courtroom of Judge Robert Blackburn. According to Lane, "I want the judge to enjoin the City of Denver and its police department from ticketing people for honking in support of Occupy Denver, ticketing people who pull over to offer food, clothing or support, stop arresting people for being in the park after 11 p.m. and stop harassing and ticketing people for placing objects on the sidewalk."

Incidents that fall within these parameters continue to take place. Consider a brief police chase over a woman's attempt to make a donation on Thanksgiving. As such, Lane believes that "Denver police are absolutely retaliating against people because they don't like their First Amendment-protected speech.

"You can camp out on sidewalks or streets to get tickets for a musical show or a good deal on a sale. So when you're supporting capitalism by buying something, the police are your best friend. But if you're camping out in protest, they will do anything to harass you or anyone who wants to give you support -- and that's a First Amendment violation. Police don't get to pick and choose which messages they like and those people, and they don't get to pick and choose which messages they don't like and harass those people."

Look below to see a video version of the Thanksgiving story. Then page down to see our earlier coverage about the injunction and open-records requests.

 Update by Michael Roberts, 12:09 p.m. November 22:

We've now received a copy of Occupy Denver vs. the City and County of Denver, a complaint being filed in U.S. District Court today by attorney David Lane. The document, on view below, features a list of plaintiffs that includes occupiers and a number of individuals cited for honking in support or dropping off donations for the group.

Among those listed is Daniel Garcia, who spoke to Westword's Kelsey Whipple for a November 16 post about being ticketed for honking. Also represented is occupier Rob Piper, featured in an October 21 item about Occupy Denver developing a democratic process and suspending its first member. At the time he told Whipple, "We must decide whether we are a circle jerk or a social fucking movement."

The major areas addressed by the complaint are "No horn honking -- ordinance enforcement," "'No stopping' traffic enforcement," "Right of way ordinances" and "Enforcing park curfew laws." In each of these areas, the complaint maintains that plaintiffs' First Amendment rights have been unconstitutionally curtailed by representatives of the city and county.

How should these allegations be addressed? Here's the document's prayer for relief:

a. Immediately hold a hearing on this complaint;

b. Issue a declaratory judgment that Defendants' acts as described in this Complaint undertaken in retaliation for free speech are depriving Plaintiffs of their rights to free speech, assembly and association, in violation of the First Amendment to the Constitution of the United States;

c. Issue an injunction against Defendants barring them from in any way from enforcing the noise ordinances, the parking ordinances, the sidewalk ordinances or the park curfew ordinances in retaliation for the free speech and associational activities of the Plaintiffs and other "Occupy Denver" protestors and/or their supporters;

d. Award Plaintiffs their costs, expenses and reasonable attorney's fees pursuant to 42 U.S.C. § 1988; and

e. Grant such other and further relief as this Court deems just and proper.

Read the entire document below, followed by our earlier coverage.

Occupy Denver vs. City and County of Denver

Update by Michael Roberts, 8:07 a.m. November 21: Attorney David Lane confirms his plan to seek an Occupy Denver-related injunction either today or tomorrow. Below, he shares his four-pronged approach to defending the free speech rights of occupiers and their supporters, as well as his doubts about collusion denials by the City of Denver and the State of Colorado.

On Friday, Lane's law firm, Killmer, Lane & Newman, shared Colorado Open Records Act requests sent to the state and city. The documents asked for any record of communication with officials at other Occupy Wall Street sites across the country, in an effort to demonstrate that the timing of nationwide crackdowns on assorted occupiers had been coordinated. At the time of our last update, Colorado had responded by maintaining that it had no communication that fit the request. Today, Lane says the city has done the same -- not that he's convinced.

"I cannot imagine that they really have nothing," he concedes. "But if they say they have nothing, short of seizing the city's e-mail system, there's not much I can do."

Protesters gather in front of tents erected on November 12 before police intervention.
Protesters gather in front of tents erected on November 12 before police intervention.
Photo by Kelsey Whipple

In contrast, he feels he has plenty of options in regard to filing an injunction. Over the weekend, the Denver Post reported that Lane's actions were spurred by TV station pieces about ticketing for honks in support of Occupy Denver -- items that followed Westword staffer Kelsey Whipple's coverage of that subject and a previous offering about citations for people who pull over to drop off donations. But Lane's efforts are broader than that.

"We're going after three, and possibly four, issues in this lawsuit," he reveals. "One is honking. One is ticketing people who stop to give money, food or clothing. The third is going after people who put any items down on the sidewalk in this five-foot swath that the police say has to be completely clear. And we're looking into whether or not we can go after the curfew in the park. It's absurd that after 11 p.m., if anyone sets one foot in the park, they get arrested and everyone's got to stay on the sidewalk at that point."

In addition, Lane has a strong point of view on the question of whether or not the Occupy Denver tents banned by the DPD constitute speech. "If you look back through this country's history, back to the bonus army that marched on Washington in the Depression era, tents have long been part of protest," he notes. "A tent is a symbol that 'we're in this for the duration. We're not going away.' So it is a form of speech."

At this writing, Lane hasn't definitively lined up an individual who was ticketed for either honking or dropping off supplies. "We're hoping to make contact with them today," he says. "But we have plenty of plaintiffs in this case. You don't necessarily have somebody who's been ticketed. The idea here is that when police ticket anyone for engaging in free-speech activities, they chill a person of ordinary firmness from engaging in similar conduct -- like a bunch of people who would like to provide food, clothing or money, but are being deterred from doing so for fear of being cited."

To Lane, legal efforts like his firm's are needed to protect the First Amendment rights of occupiers, and the rest of us. "You watch video clips of the police in Egypt cracking down on protesters, and video clips of the cops in Iran doing the same thing," he points out. "Then, you see video clips of UC Davis police acting like they're the Egyptian police, or Oakland police beating people as if they are in Iran.

"Any incursions in free speech bring us closer to that sort of society," he goes on. "And our goal is to stop it as well as we possibly can. Any incursions in free speech are met with zero tolerance by us."

Page down for our earlier coverage.   Update by Michael Roberts, 10:01 a.m. November 18: Today, attorney David Lane released open-records requests over alleged "collusion between top city or state officials and those in other cities and states to suppress the Occupy movement in violation of the First Amendment." The State of Colorado denies this charge; the City of Denver hasn't responded at this writing.

Yesterday, Lane told Westword's Kelsey Whipple that he was planning both a federal injunction and an open-records request related to Occupy Denver. The injunction involved reports of Denver Police harassment against supporters of the occupation, exemplified by citations for dropping off donations and honking in support of the group at Civic Center Park. As for the open records requests, they're motivated by the suspicion that local officials are coordinating with officials across the country to time crackdowns.

Below, see the open-records request sent to the State of Colorado; it's essentially identical to one shipped to the City of Denver on the same date, November 15. Both documents list more than thirty officials in communities with occupations of their own, including New York, Washington, Oakland and Portland.

Two days later, on November 17, Killmer, Lane & Newman, Lane's law firm, received a letter from Stephanie Donner, deputy legal counsel to Governor John Hickenlooper. In it, she wrote, "The Governor's Office has no public records responsive to your request." Thus far, Lane writes via e-mail, the City of Denver has not replied. Presumably it will be day's end, since open-records laws require a response within three days.

See the State of Colorado request and response below, followed by our previous coverage.

Killmer Lane Open Records Request to State of Colorado re: Occupy Denver
Colorado Response to Killmer Lane Open Records Request re: Occupy Denver

Original item by Kelsey Whipple, 12:16 p.m. November 17: The idea that political officials have worked together on efforts to evict their occupations has traveled across the country in less time than it takes to read protesters their rights. By the time Occupy Denver faced another police altercation this weekend at the same time as a long list of others, the idea had already been cemented in David Lane's mind. With a deadline he describes as "very soon," the top Denver civil rights attorney plans to counter the issue with both open records requests and a federal injunction -- likely the most definitive legal step to date sparked by Occupy Denver.

The issue, he says, is everywhere. Earlier this week, the suspicions of collusion that had been forming since the movement's inception found firm, if accidental, footing when Oakland Mayor Jean Quan confirmed in a BBC interview that she had cooperated with the mayors of eighteen other cities. Although the names of those eighteen have yet to be uncovered, the admission hit home with those who see a national violation of First Amendment rights.

Protesters react to pepper spray and smoke created from a fire extinguisher.
Protesters react to pepper spray and smoke created from a fire extinguisher.
Kelsey Whipple

"The issue is very clearly established when the cops start moving simultaneously on Oakland, New York, Denver, everywhere on the planet at the same time, and they've been doing this since the beginning," says Lane, who has extensive experience with both civil liberties and the Denver Police Department. "Anytime there is action, it rises up all across the country, and it's obvious to anyone paying attention that this is not coincidence."

Lane is blunt about his plans to follow up on the issue's spread to Colorado, where he plans to file open records requests for any communications between the Denver city officials, Mayor Michael Hancock included, and the representatives of other cities since the movement began.

"Under the Colorado Open Records Law and the Freedom of Information Act, communication between various police chiefs and mayors of different cities should be an open record," he says. "I expect to find that mayors from different cities have been in communication with each other. We don't have any control over other mayors from other cities, but Hancock has to follow the Colorado law and report any activity through these records."

Lane is accompanied by a team of several dozen attorneys, he says -- a force that includes both the lawyers in his own firm and some of those who have provided representation to protesters arrested as a result of Occupy Denver. As of the time Westword spoke to him, Lane says, the Denver Police Department was currently unaware of his plan.  

Police cars block Broadway during the demonstration held two weeks ago.
Police cars block Broadway during the demonstration held two weeks ago.
Kelsey Whipple

That plan is two-fold: In that "very soon" time span, Lane and his team will also be directly targeting the Denver Police Department in a federal injunction aimed at "stopping the police from retaliating against people who give money or support to Occupy Denver," he says. This effort comes as a result of recent reports that occupation supporters and donors have been ticketed for stopping in front of the group at Civic Center Park and honking in support of the group.

"Once the police started harassing people in violation of the First Amendment, that was when we started our plans for all of this," Lane says. "The project is ongoing."

In recent months, Lane, who is easily one of the strongest and most recognizable presences in Colorado law, has filed a number of federal injunctions and records requests, most notably an approved July request that the DPD share all records relating to excessive force accusations for the past eight years. Lane represented Jason Graber, who initiated a brutality case against the DPD when he was tackled to the ground by an officer on his walk from a club to his hotel.

Although the case settled with Graber being awarded $225,000, Lane told Westword he had no intention of stopping his quest to create transparency about the DPD's history by requesting the years of open records. "If you want to stop all this police brutality in Denver, start by opening all police misconduct allegations to public scrutiny," he said. "Right now, it's being swept under the rug -- considered a private personnel matter, which is what the police union negotiated... But when a citizen raises a complaint about the performance of a police officer, that investigation should be open to the public -- or at least the report should be made public."

Although the settlement means the DPD is no longer required to respond to Lane's request for records in that case, Lane promised Westword's Michael Roberts that the settlement didn't mean the reports would stay hidden indefinitely. When asked why not, his answer was one that might be equally true this round: "Because I'm the problem."

More from our Occupy Denver archive: "Occupy Denver: 11 of 20 weekend arrestees have no criminal record outside of OD protests."

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