The legal battle arising from a restraining order filed by the City of Boulder against Seth Brigham, its most annoying critic. has gotten more complex. According to attorney David Lane, Brigham has rejected a settlement offer from Boulder, whose reps are expected to participate in a conference call to determine when a hearing on the order might take place -- tomorrow or a month or more from now.
As we've reported, Brigham has been a thorn in the side of Boulder officials for years. Note that in 2010, 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.
More recently, Brigham has been sending 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.
Lane disputed that conclusion in a court motion. In a previous interview with Westword, he pointed out that Nicoletti didn't meet or speak with Brigham before making his recommendation -- a methodology the attorney compared with mind-reading.
The latest? Lane and the city embarked on settlement negotiations, and while Lane declines to go into the specifics, Brigham sent an e-mail to members of the media, including yours truly, containing the following offer:
The City would be amenable to an agreed final order that permitted Mr. Brigham to speak before council, but prohibited him from violating council's rules. We could agree that de minimus violations, such as running a short time over, would not be subject to enforcement. He would be required to stay away from the people listed, except when in council members. He could contact the city through me and I would be responsible for forwarding e-mails when appropriate.
In the end, however, Lane says, "We rejected their offers" -- hence the need for a court date. In Lane's words, "I filed a motion to continue the trial until late June, which is when their expert [Nicoletti] claims he's going to be available. Then I got an e-mail from the city attorney saying [Nicoletti] isn't available on those dates. I said, 'Well, look, you said late June, and now you're telling me he's not available then, either? He needs to accommodate a little bit.' But the city attorney said, 'You need to do the hearing on Tuesday.'"
That's tomorrow -- the original date for the hearing. But since Lane won't be available then (he's in federal court, arguing on behalf of the Independence Institute and other entities in a case about petition rules), his partner, Darold Kilmer, will represent their firm in the aforementioned conference call. Lane hopes the result will be a decision about a court date "that can accommodate everyone."
Whatever comes from that conversation, it seems clear that neither Brigham nor Boulder are ready to back down -- at least not yet. Continue reading to see our earlier coverage.
Original May 7 item, followed by an update: Last week, Boulder filed a restraining order against Seth Brigham, the city's most annoying critic. Brigham received a $10,000 settlement from the community for an alleged free-speech violation two years ago, and attorney David Lane, who represented him in the earlier matter, believes Boulder's latest action follows in that tradition and is based on the fear of future problems, not actual offenses.
"It reminds me of Minority Report," says Lane, referencing a 2002 Tom Cruise/Steven Spielberg film about a police squad that fights crimes that haven't happened yet based on information provided by a trio of strange psychics called "precogs."
What's the connection? As we reported last week, Boulder's restraining order, on view below, is based in part on the opinions of Dr. John Nicoletti, an expert on workplace violence -- he was a primary source in my 2000 feature article "The Wide World of Grief" -- who'd recently made a presentation to the city council on the topic. Nicoletti examined material provided by the city, including e-mails to Boulder councilwoman KC Becker and other officials that accuse her of financial malfeasance, plus an account of an April exchange between Brigham and councilman George Karakehian that involved a "Heil Hitler" salute, multiple F-bombs and conflicting views about who touched and/or jabbed who. Although Nicoletti did not interview Brigham, he still managed to conclude that the man characterized in the order as a bipolar marijuana and alcohol user "was definitely a threat and the city needed to take action," according to Boulder spokeswoman Sarah Huntley.
She added, "What it really comes down to is, no one in the city wants to be in the position of learning too late that we underestimated the consequences of Mr. Brigham's behavior and failed to take the appropriate steps to deal with it."
For his part, Brigham described himself as "committed nonviolent individual" who now feels like "a political prisoner in my own town" as a result of the restraining order, which prohibits him from coming within fifty yards of the Boulder Municipal Building, at 1777 Broadway, and forbidding him to contact all nine members of the city council, the city manager, the city clerk and Patrick von Keyserling, Boulder's communications manager. In his words, "I've been here since 1983, and I've never committed any violence, never threatened anyone. And telling someone to fuck off or sending e-mails about financial conflicts of interest isn't something that should elicit this kind of response."
A hearing in Boulder County Court to make the temporary restraining order permanent is slated for May 15. Last week, Brigham informed us that Lane had other commitments on that day, but another member of his firm would be representing him. Shortly thereafter, however, Lane filed a motion to advance the hearing to this week. The change would allow Lane to handle the matter personally, but he stresses that this isn't the sole reason for the request.
"The U.S. Supreme Court has said that any violation of the First Amendment, no matter how seemingly minor or temporal, is a serious matter," he says.
He made a similar argument in February 2010, when Brigham was arrested for stripping to his boxer shorts at a city council meeting. Why did he do it?
Page down to continue reading our interview with David Lane, as well as to see a video of a disrobed Brigham, the hearing motion and the restraining order. Back then, as we've reported, Boulder was considering a nudity ordinance that would have criminalized the baring of nipples, among other things, in an effort to undermine events such as the Naked Pumpkin Run and the Naked Bike Ride. The language about nipples was subsequently removed from the measure prior to its approval.
At the aforementioned meeting, Brigham stripped to his boxer shorts as a way of ridiculing the nudity ordinance, which he thought would be debated that night; it wasn't. Here's video of his big moment:
Brigham was promptly arrested for trespassing and obstructing a peace officer, but he fought the charges with Lane's help. In a letter to the city, the attorney argued that actions preventing Brigham from speaking or being heard violated his right to free speech, and he hinted that sans a settlement, Brigham would "file a civil rights case in the United States District Court for the District of Colorado." To curtail such a prospect, Boulder paid Brigham a $10,000 settlement -- after which city council proposed a new set of decorum rules.
In Lane's view, such actions don't address a much larger issue.
"They just don't seem to have learned their lessons -- their civics lessons," he says. "This is the second-go-round with the Boulder City Council, where they've exhibited absolutely no understanding of the First Amendment.
"The city council's hired psychic says Seth Brigham may be a risk," he goes on. "He also probably concludes that crossing the street may be a risk, but that doesn't mean you get to stop all traffic on the street. But based on his psychic abilities, and him doing a drive-by evaluation of Seth Brigham -- never having spoken to him, never having met him, never laying eyes on him -- they actually convinced a judge to enjoin the First Amendment" by approving the temporary restraining order.
Lane would like that to change. "I'm going to offer the city one chance to withdraw the restraining order," he allows. "Otherwise, I'll go through the hearing and I will file a First Amendment retaliation lawsuit against the Boulder City Council. And we're not going to settle for $10,000 this time if I can beat them."
What about the possibility that Brigham, who last week admitted to being "obstinate," "insulting" and "a loudmouth," might actually be dangerous? "Everyone on the planet is an actual risk," Lane replies. "The issue is, did he make threats of violence? And the answer is 'no.'
"The First Amendment lives in a very rough neighborhood," he maintains. "If the city council doesn't like that neighborhood, there are plenty of countries around the world where they don't have to put up with all that pesky free speech."
In America, though, Lane sees other options. "If you don't like e-mails, delete them. If he's committing crimes, call the cops."
Update, 11:43 a.m. May 7: Moments ago, David Lane, Seth Brigham's attorney in regard to a temporary restraining order filed by the City of Boulder, copied us on an exchange regarding his request to move up a hearing on the matter from May 15 to this week. In an e-mail, a representative of Boulder County Court Judge David Archuleta asks for Lane's "response to his consideration of dismissing the TPO by noon this Friday, the 11th."
Lane reveals that "this order was just issued by the court. Judge Archuleta on his own volition is considering our motion as a motion to dismiss, which is great news."
Look below to see the document requesting a change in the hearing date, followed by the restraining order.
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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."