The Spencer's Gifts outlet in the Town Center at Aurora mall sells a cap with a marijuana leaf on it. But if you buy it and wear it out of the store, cops could immediately evict you from the shopping center and order you not to return until 2011.
That's the logical conclusion to draw from what happened to John Gailey, a medical marijuana patient who was cited for trespassing and banned from the mall for a year for wearing a "Yes We Cannabis" T-shirt.
According to Jessica Corry, who's representing Gailey in tandem with her husband, fellow attorney Rob Corry, Gailey and his girlfriend visited the Aurora mall last Saturday and bought a Denver Broncos hat. But shortly after making the purchase, he was stopped by a security guard quickly joined by colleagues and representatives of the Aurora Police Department. They told him he could take off the "Yes We Cannabis" T-shirt, wear it inside-out, or leave.
Gailey turned down all three of these options, arguing that he was simply exercising his right to free speech. And besides, numerous mall stores sell marijuana-themed products, including Spencer's Gifts, a national chain.
The response from guards and officers was "a 45-minute police interrogation riddled with threats and a trespass citation," says Corry. Gailey was also told he's banned from shopping at the mall for a year.
Corry says the reason the cops gave for their action against Gailey was a "family night" promotion. It's hardly the first time the mall's used heavy-handed tactics to promote a family-friendly image. Back in 2005, as documented in this Westword article, the mall hyped a "Families First" program that required anyone age sixteen or younger to be accompanied by a parent or guardian after 5 p.m. on Fridays and Saturdays. Since most of the teens who hung out at the mall during those evenings were minorities, some observers saw the approach as racist in nature -- something the mall adamantly denied.
The Gailey case suggests that Aurora authorities don't see marijuana advocacy as representing family values. That's wrong, Corry says -- because it represents the values of her family.
"I have that T-shirt, and I've worn it when I've taken my children shopping, worn it gardening, worn it at play dates, and I've never had a problem," she says. "When I wear it, what I'm saying is that the effects of marijuana prohibition are far worse than marijuana use itself. And as a mother, I will be the most powerful tool in our family's arsenal in an effort to prevent my children from making detrimental decisions."
She adds that she learned about the Gailey case from a phone call from his mom.
In Corry's view, the law is on Gailey's side. "The Supreme Court has been clear time and time again that private commercial retail centers that open themselves to the public can function as a town square, and the Town Center clearly qualifies," she says. "And if wearing a T-shirt espousing a political view that's shared by half the state's population is too offensive to wear, then none of us are safe. And the concept is the same even if it's a political viewpoint held by 5 percent or 10 percent of the population."
Although Corry insists that Gailey would like to avoid litigation, the letter she and Rob Corry sent to the Aurora Police Department, with copies to the mall's manager, A.J. Coffee, and the managing attorney for Simon Property Group, its owner, gives a deadline of tomorrow for an apology and a statement that wearing a marijuana-themed t-shirt will be allowed at the mall in the future.
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This is an important issue, she emphasizes: "We need to protect the speech of all, or none of us are free to speak."
Here's the text of the aforementioned letter:
Chief Daniel J. Oates Aurora Police Department 15151 E. Alameda Parkway Aurora, CO 80012
Re: Violation of Civil Rights at Town Center at Aurora "YES WE CANNABIS" T-Shirt
Dear Chief Oates:
We write to you on behalf of John Jacob Gailey, an Aurora resident and small business owner who on May 22, 2010, was stopped, seized, and cited in the Town Center at Aurora by Aurora Police and Mall Security for peacefully and quietly exercising his constitutional right to free expression by merely wearing a t-shirt that says "YES WE CANNABIS" on it, and which depicts a marijuana leaf. The shirt contained no profanity, nudity, or references to other more-dangerous drugs, such as Coors.
After a lengthy and uncomfortable detention and interrogation, Mr. Gailey received a written citation and 12-month "ban" from the Town Center at Aurora, a mall at which he shops frequently. As Mr. Gailey accurately pointed out while being detained, Cannabis is legal in Colorado, and he also pointed out that Mr. Gailey is a Colorado-registered Medical Marijuana patient pursuant to the Colorado Constitution, Article XVII § 14. His rough treatment by police and security and subsequent exclusion from the public place probably equate to discrimination against him due to his disability.
In addition to the discrimination claim, Mr. Gailey probably has a claim for violation of his civil rights. In Bock v. Westminster Mall Company 819 P.2d 55 (Colo. 1991), the Colorado Supreme Court analyzed the extent to which privately owned commercial retail centers could be held to a "public forum" standard which requires deference to political speech protected as free speech. As the court held in Bock, a mall hosting a police substation or other similar government agencies or representatives within a mall, when considered as part of the "range of activities permitted in the common areas of the Mall... indicates the extent to which the Mall effectively functions as a latter-day public forum."
The Town Center at Aurora certainly qualifies as a "public forum." In addition to hosting a police substation, the mall regularly hosts community events open to the public. In fact, according to the Aurora Police and Mall Security officials who detailed Mr. Gailey, his t-shirt was found to be that much more offensive given that he was wearing it on the same day the mall was hosting an event focused on welcoming families inside its doors.
The treatment and citation of Mr. Gailey is also problematic on practical and public policy grounds. Within the Town Center at Aurora, multiple stores sell marijuana-related products. As Mr. Gailey pointed out to the authorities who detained him, Spencer's Gifts, located within the mall, sells several items that include references to or images of marijuana, including a hat with a marijuana emblem on it. While Mr. Gailey could have legally purchased this hat, as opposed to the Denver Broncos hat he purchased that day for $27.00, he chose not to.
Is it the mall's position, or that of the Aurora polie, that any person who purchases a marijuana-related clothing item at the mall should then be prohibited from wearing it until exiting the mall?
While a pro-marijuana legalization t-shirt may be offensive to Mall Security, Aurora Police, and other overly-sensitive people, the argument simply cannot be made that pro-legalization views, or event pro-medical marijuana views, could somehow fail a community standards decency review. A recent statewide survey conducted by Rasmussen Reports concluded that 49 percent of Colorado voters supported marijuana legalization, with just 39 percent of respondents saying they remain opposed. It is worth noting that this same poll found support for legalization greater among respondents than support for any statewide candidate for elected office. Obviously, Colorado voters legalized marijuana in the 2000 election and added it to our State Constitution, the Supreme Law of Colorado.
We understand that amateur officers and mall security can get over-eager and can make mistakes. Mr. Gailey is a reasonable person who wishes to avoid litigation. We respectfully request that the Aurora Police and Mall Security immediately and in writing apologize sincerely to Mr. Gailey, completely rescind any "ban" on Mr. Gailey's presence at the Aurora Town Center, and confirm that marijuana-themed T-shirts are always acceptable at the mall. If this can be accomplished in writing by Friday, May 28, 2010, Mr. Gailey will probably refrain from filing any legal action, and we will deem this matter settled.
Please contact me with questions. Thank you for your prompt attention to this matter.
Robert J. Corry Jr. Attorney at Law Law Offices of Robert J. Corry, Jr.
Jessica P. Corry Special Counsel Hoban & Feola, LLC