As we've reported, U.S. District Court Jude William Martinez issued a preliminary injunction against an order that blocked protests outside the Lindsey Flanigan courthouse in Denver — an action prompted by the arrests of Eric Brandt and Mark Iannicelli for distributing jury nullification pamphlets.
Jury nullification is the act of jurors finding a defendant not guilty if they believe the law the person broke is unjust.
Yesterday, as we noted in an update that explained the City of Denver's rationale for the initial order (officials feared race-related civil unrest if Fero's Bar killer Dexter Lewis gets the death penalty when Aurora theater shooter James Holmes didn't), jury nullification advocates set up shop in the plaza near the courthouse and were promptly rousted by members of the Denver Police Department.
Attorney David Lane, who represents Brandt and Iannicelli and filed the preliminary-injunction request, has now penned a motion demanding that Denver Police Chief Robert White show cause why the advocates' efforts were disrupted or else be held in contempt of court. And Judge Martinez has demanded that White and the city respond by 4 p.m. today.
For our previous post, Lane provided us with photos and background about what led to the motion's issuance.
"Outside the courthouse today," he wrote via e-mail, "our clients wasted no time in passing out jury nullification literature. The police wasted no time in swooping in after these photos were taken and confiscated the tent, chairs, coolers and other items. Back to federal court…unless Denver responds by noon today. The below e-mail was sent to the attorney general and the city attorney:
Attached are two pictures taken this morning of peaceful pamphleteers passing out jury nullification literature. Moments after these pictures were taken, the Denver police swooped in, led by Commander Lopez and confiscated all of their property including the tent, the table, the chairs, their cooler and anything that was not nailed down. No arrests were made. The pampleteers were outside of the “no speech zone” as earmarked by Judge Michael Martinez which is not subject to his court order.
This is clearly retaliation for protected speech. If I don’t hear back from you by noon, we will re-file in federal court seeking a court order prohibiting the rank retaliation. The pictures clearly show that ingress/egress is not being blocked and there is no reason for this heavy handed police action.
I await your response.
A short time later, Lane filed his motion. The document is on view below in its entirety, but here's an excerpt describing what Lane sees as a violation of the preliminary injunction:
At approximately 10:00 a.m., a cadre of Denver police officers swarmed into the group of pamphleteers and began seizing items from them. The items seized included but are not limited to the following: All literature regarding jury nullification including about 1,000 pamphlets, a small shade shelter, a table, four chairs, buckets, a cooler, signs and other items.
While on-scene, the police attempted to take personal property such as purses, computers, backpacks and other items. The pamphleteers resisted the attempts by the police to steal their personal property.
Afterward, Lane contacted Wendy Shea, identified in the motion as "counsel for Denver and the Chief." She told him the police action was dictated by a city ordinance against "encumbrances." Lane clearly sees this explanation as absurd, as indicated by this passage from the motion:
The Denver police, acting as jack-booted thugs in blatant violation of this Court’s Order, came into the plaza and began seizing all property not being carried by a pamphleteer. The only plausible explanation for this is that the police were acting in retaliation for the exercise of the free speech rights of the pamphleteers.
We don't yet know if Judge Martinez will agree. But after receiving the motion, he issued the following order: "Before the Court is Plaintiffs' Motion for Order to Show Cause Why Defendant Robert C. White Should Not Be Held in Contempt of Court. Defendant White is ORDERED to file a response no later than 4:00 p.m. tomorrow (August 27, 2015). No reply will be permitted absent further order. SO ORDERED."
Here's the aforementioned motion.
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