Verlo v. Martinez, No. 15–1319.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtMcHUGH, Circuit Judge.
Citation820 F.3d 1113
Parties Eric VERLO; Janet Matzen; and Fully Informed Jury Association, Plaintiffs–Appellees, v. The Honorable Michael MARTINEZ, in his official capacity as Chief Judge of the Second Judicial District, Defendant–Appellant, v. The City and County of Denver, Colorado, a municipality; Robert C. White, in his official capacity as Denver Chief of Police, Defendants–Appellees.
Docket NumberNo. 15–1319.
Decision Date08 April 2016

820 F.3d 1113

Eric VERLO; Janet Matzen; and Fully Informed Jury Association, Plaintiffs–Appellees,
v.
The Honorable Michael MARTINEZ, in his official capacity as Chief Judge of the Second Judicial District, Defendant–Appellant,
v.
The City and County of Denver, Colorado, a municipality; Robert C. White, in his official capacity as Denver Chief of Police, Defendants–Appellees.

No. 15–1319.

United States Court of Appeals, Tenth Circuit.

April 8, 2016.


820 F.3d 1118

Stephanie Lindquist Scoville, Senior Assistant Attorney General, Office of the Attorney General for the State of Colorado, Denver, CO (Cynthia H. Coffman, Attorney General; Frederick R. Yarger, Solicitor General; Matthew D. Grove, Assistant Solicitor General; Ralph L. Carr, Colorado Judicial Center, Denver, CO, with her on the briefs), for Defendant–Appellant.

David A. Lane, Killmer, Lane & Newman, LLP, Denver, CO, for Plaintiffs–Appellees.

Wendy J. Shea, Assistant City Attorney; Geoffrey C. Klingsporn, Assistant City Attorney; Evan P. Lee, Assistant City Attorney; Cristina Peña Helm, Assistant City Attorney, Denver City Attorney's Office, Denver, CO, filed a brief on behalf of Defendants–Appellees.

Before BRISCOE, McKAY, and McHUGH, Circuit Judges.

McHUGH, Circuit Judge.

This is an interlocutory appeal challenging the district court's grant of a preliminary injunction, enjoining in part the enforcement of an administrative order (Order) issued by Defendant–Appellant Judge Michael Martinez, acting in his official capacity as Chief Judge of the Second Judicial District of Colorado (Judicial District). The Order prohibits all expressive activities within an area immediately surrounding the Lindsey–Flanigan Courthouse in Denver (Courthouse). Plaintiffs–Appellees Eric Verlo, Janet Matzen, and the Fully Informed Jury Association (collectively, Plaintiffs) sought the preliminary injunction to stop enforcement of the Order against their expressive activities. Following an evidentiary hearing, the district court enjoined enforcement of a portion of the Order as against Plaintiffs. The Judicial District now appeals.

Based on the arguments made and evidence presented at the preliminary injunction hearing, we hold the district court did not abuse its discretion in granting Plaintiffs' motion in part. Although we affirm the district court's order granting a limited preliminary injunction, we express no opinion as to whether a permanent injunction should issue. Instead, we provide guidance to the district court and the parties regarding the factual inquiry and the applicable legal standard relevant to that question on remand.

820 F.3d 1119

I. BACKGROUND

The genesis of this case is an incident involving nonparties. On July 27, 2015, two men were distributing pamphlets on the plaza outside the Courthouse (Plaza). The pamphlets contained information about jury nullification, a practice in which a jury refuses to convict a defendant despite legal evidence of guilt because the jury members believe the law at issue is immoral.1 Both men were arrested and charged with jury tampering in violation of Colorado law. See Colo. Rev. Stat. § 18–8–609(1) ("A person commits jury-tampering if, with intent to influence a jury's vote, opinion, decision, or other action in a case, he attempts directly or indirectly to communicate with a juror other than as a part of the proceedings in the trial of the case.").

Plaintiffs, like the men who were arrested, wish to distribute literature relating to and advocating for jury nullification to individuals approaching the Courthouse who might be prospective jurors. Fearing they too would be subject to arrest, Plaintiffs brought suit against the City and County of Denver and Robert C. White, Denver's police chief, in his official capacity (collectively, Denver) to establish their First Amendment right to engage in this activity. On the same day they filed suit, Plaintiffs also moved for a preliminary injunction, seeking to restrain Defendants from taking action to prevent Plaintiffs from distributing jury nullification literature on the Plaza. Two days later, Plaintiffs amended their complaint to also challenge the Order issued by the Judicial District.

That Order, entitled Chief Judge Order Regarding Expressive Activities at the Lindsey–Flanigan Courthouse, states in relevant part:

The Court has the responsibility and authority to ensure the safe and orderly use of the facilities of the Second Judicial District; to minimize activities which unreasonably disrupt, interrupt, or interfere with the orderly and peaceful conduct of court business in a neutral forum free of actual or perceived partiality, bias, prejudice, or favoritism; to provide for the fair and orderly conduct of hearings and trials; to promote the free flow of pedestrian and vehicular traffic on sidewalks and streets; and to maintain proper judicial decorum. Those having business with the courts must be able to enter and exit the Lindsey–Flanigan Courthouse freely, in a safe and orderly fashion and unhindered by threats, confrontation, interference, or harassment. Accordingly, the Court hereby prohibits certain expressive activities on the grounds of the Courthouse, without regard to the content of any particular message, idea, or form of speech.

Prohibited Activities: The activities listed below shall be prohibited in the following areas: anywhere inside the Lindsey–Flanigan Courthouse, including courtrooms, corridors, hallways, and lobbies; the areas, lawns, walkways, or roadways between the Courthouse and public sidewalks and roads; and any areas, walkways, or roadways that connect public sidewalks and roads to Courthouse entrances or exits. This includes, but is not limited to, the Courthouse entrance plaza areas on the east and west sides of the Courthouse as
820 F.3d 1120
depicted in the highlighted areas of the attached map.

1. Demonstrating; picketing; protesting; marching; parading; holding vigils or religious services; proselytizing or preaching; distributing literature or other materials, or engaging in similar conduct that involves the communication or expression of views or grievances; soliciting sales or donations; or engaging in any commercial activity; unless specifically authorized in writing by administration;

2. Obstructing the clear passage, entry, or exit of law enforcement and emergency vehicles and personnel, Courthouse personnel, and other persons having business with the courts through Courthouse parking areas, entrances, and roadways to and from Courthouse and Courthouse grounds;

3. Erecting structures or other facilities, whether for a single proceeding or intended to remain in place until the conclusion of a matter; or placing tents, chairs, tables, or similar items on Courthouse grounds; except as specifically authorized in writing by administration; and

4. Using sound amplification equipment in a manner that harasses or interferes with persons entering or leaving Courthouse grounds or persons waiting in line to enter the Courthouse.

The Order was accompanied by an image depicting an aerial view of the Courthouse and its grounds, with the areas in which the Order prohibited expressive activity highlighted in yellow (Restricted Areas).

820 F.3d 1121

The Courthouse is bordered on its north side by Colfax Avenue and on its west side by Fox Street. Both Colfax Avenue and Fox Street have public sidewalks running along the perimeter of the Courthouse. Immediately to the east of the Courthouse lies the Plaza. The Plaza is bisected by Elati Street, which is closed to traffic other than police vehicles. Elati Street runs through a large circular area (Main Plaza) between the Courthouse and the Van Cise–Simonet Detention Center (Detention Center), which houses pretrial detainees. The Main Plaza contains planters, benches, public artwork, sidewalks, and gravel areas and is suitable for public gatherings.

Of relevance to this appeal are the Restricted Areas, which include an arc-

820 F.3d 1122

shaped walkway and planter area immediately to the east of the Courthouse. The arced walkway runs from the corner of Elati Street and Colfax Avenue in a curved path across the front of the Courthouse and ends where it intersects with an open area in front of the Courthouse containing planters and benches (the Patio), which also forms part of the Restricted Areas. The Patio provides access to the main entrance on the east side of the Courthouse. Thus, the Restricted Areas encompass only the portions of the Plaza closest to the Courthouse.

The Judicial District opposed Plaintiffs' motion for a preliminary injunction and, in doing so, defended the Order. In contrast, Denver entered into a joint stipulation (the Stipulation) with Plaintiffs. The Stipulation asserted that the entire Plaza between the Courthouse and the Detention Center—specifically including the Restricted Areas—was "a public forum and any content-based regulations must be narrowly drawn to effectuate a compelling state interest and reasonable time, place and manner regulations." It further acknowledged that Plaintiffs were entitled to distribute jury nullification literature on the Plaza and pledged that...

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    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • April 17, 2020
    ...v. Fed. Transit Admin. of U.S. Dep't of Transportation, 843 F.3d 886, 915 (10th Cir. 2016), or constitutional rights, Verlo v. Martinez, 820 F.3d 1113, 1127-28 (10th Cir. 2016), the public interest weighs 455 F.Supp.3d 1165 in favor of granting an injunction. See Hobby Lobby Stores, Inc. v.......
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    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 7, 2020
    ...they had not established a substantial likelihood that they will prevail on the merits of their claims. See generally Verlo v. Martinez, 820 F.3d 1113, 1126 (10th Cir. 2016) (noting that, "[i]n the First Amendment context, ‘the likelihood of success on the merits will often be the determina......
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    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • August 31, 2020
    ...whether the proffered justifications for prohibiting speech in the forum satisfy the requisite standard of review." Verlo v. Martinez, 820 F.3d 1113, 1128 (10th Cir. 2016) (citations omitted).BWe agree with the district court that all plaintiffs whose claims proceeded to trial engaged in pr......
  • Legacy Church, Inc. v. Kunkel, No. CIV 20-0327 JB\SCY
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • July 13, 2020
    ...v. Fed. Transit Admin. of U.S. Dep't of Transportation, 843 F.3d 886, 915 (10th Cir. 2016), or constitutional rights, Verlo v. Martinez, 820 F.3d 1113, 1127-28 (10th Cir. 2016), the public interest weighs in favor of granting an injunction. See Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d......
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60 cases
  • Legacy Church, Inc. v. Kunkel, No. CIV 20-0327 JB\SCY
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • April 17, 2020
    ...v. Fed. Transit Admin. of U.S. Dep't of Transportation, 843 F.3d 886, 915 (10th Cir. 2016), or constitutional rights, Verlo v. Martinez, 820 F.3d 1113, 1127-28 (10th Cir. 2016), the public interest weighs 455 F.Supp.3d 1165 in favor of granting an injunction. See Hobby Lobby Stores, Inc. v.......
  • Harmon v. City of Norman, No. 18-6187
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 7, 2020
    ...they had not established a substantial likelihood that they will prevail on the merits of their claims. See generally Verlo v. Martinez, 820 F.3d 1113, 1126 (10th Cir. 2016) (noting that, "[i]n the First Amendment context, ‘the likelihood of success on the merits will often be the determina......
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    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • August 31, 2020
    ...whether the proffered justifications for prohibiting speech in the forum satisfy the requisite standard of review." Verlo v. Martinez, 820 F.3d 1113, 1128 (10th Cir. 2016) (citations omitted).BWe agree with the district court that all plaintiffs whose claims proceeded to trial engaged in pr......
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    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • July 13, 2020
    ...v. Fed. Transit Admin. of U.S. Dep't of Transportation, 843 F.3d 886, 915 (10th Cir. 2016), or constitutional rights, Verlo v. Martinez, 820 F.3d 1113, 1127-28 (10th Cir. 2016), the public interest weighs in favor of granting an injunction. See Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d......
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