"About five or six out of the ten people arrested last month were cited previously," says attorney David Lane, who represents the individuals accused in both incidents. He adds that "I'd like to see Denver do the right thing and dismiss the cases. But they're not going to do that — and if it's a trial they want, it's a trial they'll get."
As we've reported, ADAPT demonstrators were ticketed by police on January 27 in the lobby of the Chase Bank building, 1125 17th Street, where Gardner's Denver office is located, because of the senator's opposition to the Affordable Care Act, popularly known as Obamacare.
"Cory Gardner has repeatedly talked about repealing Obamacare," Lane told us at the time, "and for these folks that we represent, this is a life-and-death matter. They wanted to talk to the people at Cory Gardner's office — Cory Gardner included, if he was there. The problem was, Cory Gardner has his downtown office on the fifth floor of the Chase Bank building, and the lobby is controlled by a corporate entity called Hines. And the Hines corporation would not allow these folks to go up to the fifth floor."
In Lane's view, this decision "is a violation of the First Amendment for free speech, and also a violation of the First Amendment right to petition your government for redress of grievances."
Disability-rights protesters who were cited for trespassing during a demonstration earlier this year.
Photo courtesy of Jeff Hart
Finally, around 7 p.m. on June 29, Gardner's minions lost patience with the protest and had the ADAPT members arrested.
In pleading not guilty to trespassing, the advocates are setting up "a lesser-of-evils defense," Lane says. "They didn't get to meet with Cory Gardner, but the message was so important that they had to decide between staying or leaving because they were told this was in violation of the lease and the management company wanted them to leave. And that's dubious: We have no proof the management company told them to leave, and even if they did, we have a copy of the lease, and what happened doesn't appear to be a violation. And if there was no lease violation, it was an unlawful arrest."
The ADAPT ten are choosing to challenge the bust because "for our people, getting the message out is far more important than taking a small conviction. And look what happened in the Senate this week," when both the AHCA proposal and a followup plan to repeal Obamacare without a replacement collapsed. "That happened in part because the message is being received by at least a few Republican senators, Cory Gardner not included, that the public isn't going to stand for these kinds of health-care cuts."
He adds that "we've got a good shot at acquittal, although we will be prohibited from telling the jury they have a right to nullify. If a conviction would be unjust under all the circumstances, even though the DA has proven the case beyond a reasonable doubt, juries have the power to simply not convict — but lawyers are routinely precluded from telling the jury they have that power."
The messages sent by the January and June cases are twofold, Lane believes: "Part of it is that the Affordable Care Act allows people to survive, and repealing it will kill people. But it's also to say, 'Look what your government is doing to protesters who are exercising their constitutional rights. The police are acting as tools of corporate America.' Surprise, surprise."
If the first ADAPT case on Monday results in an acquittal, Lane believes that "Denver may drop everybody else" who was cited in January. But even if that happens, he expects city officials to move forward with prosecuting the June cases — and that's fine by him. "We're ready to defend," he says. "We're ready to go to trial."
