Case 1:11-cv-03048-REB Document 11

Filed 11/29/11 USDC Colorado Page 1 of 16

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 11-cv-03048-REB OCCUPY DENVER an unincorporated association, AMBERLYNN RESTORICK, TERRY BURNSED, ROBERT PIPER, ROB KUYKENDALL, CATHERINE LINDSEY, NATALIE WYATT, and DANIEL GARCIA, Plaintiffs, v. CITY AND COUNTY OF DENVER, MICHAEL HANCOCK, in his official capacity as MAYOR OF DENVER, and GERALD R. WHITMAN, in his official capacity as DENVERS ACTING CHIEF OF POLICE, Defendants. RESPONSE IN OPPOSITION TO PLAINTIFFS MOTION FOR A TEMPORARY RESTRAINING ORDER Defendants, through their undersigned counsel, submit the following response in opposition to Plaintiffs Motion for a Temporary Restraining Order (Motion) (Doc. #2): I. INTRODUCTION Plaintiffs seek a temporary restraining order (TRO) to prevent Denver from enforcing four long-standing ordinances which address public use of Civic Center Park, use of public rights of way, and traffic safety regulations. Plaintiffs do not claim that any of the four ordinances at issue are facially invalid. Rather, Plaintiffs contend, without any

Case 1:11-cv-03048-REB Document 11

Filed 11/29/11 USDC Colorado Page 2 of 16

factual support, that Denver is selectively enforcing these ordinances against them in retaliation for the exercise of their First Amendment rights. However, there has been no change in Denvers enforcement of its laws, and Plaintiffs Complaint is completely devoid of any allegations demonstrating that Denver has treated substantially similar members of the public any differently than Plaintiffs have been treated. Moreover, Plaintiffs have and continue to be free to vigorously exercise their rights to free speech, expression and assembly in Denver, including Civic Center Park and adjacent public areas. Accordingly, Plaintiffs are not entitled to the injunctive relief they seek and their Motion for a TRO should be denied. II. SUMMARY OF FACTS Beginning in September 2011, Occupy Denver protestors essentially set up residence in Lincoln State Park. In October, after the Colorado State Patrol, with the assistance of the Denver Police Department, enforced state law and required the protestors to leave, the protestors moved across the street to Denvers Civic Center Park. Civic Center Park is located between Colfax Avenue and 14th Avenue and faces Broadway, one of Denvers busiest streets. Since that time, Denver has allowed and facilitated First Amendment activities for the occupy protestors so long as such conduct was reasonable and peaceful, including allowing them to conduct unpermitted marches on October 15th, October 29th, and November 12, 2011. Denvers enforcement of its ordinances has complied with constitutional requirements. As a result, numerous peaceful, law abiding persons have been able to freely exercise their constitutional rights since the inception of the Occupy Denver

Case 1:11-cv-03048-REB Document 11

Filed 11/29/11 USDC Colorado Page 3 of 16

movement. Nevertheless, Plaintiffs claim that Denver is selectively enforcing its ordinances against them in retaliation for the exercise of their First Amendment rights and, as a result, injunctive relief is immediately required to protect their alleged rights, despite the fact that Denver has allowed the protests to continue for over two months to the present. However, a review of Plaintiffs Complaint shows that their allegations of First Amendment retaliation based upon Denvers alleged selective enforcement of its laws are entirely devoid of any factual support. For example, Plaintiff Amberlinn Restorick claims that constant harassment and intimidation by the Denver Police has chilled her willingness to speak out and reduced her involvement with the protest; however, she also admits that she was arrested and does not contest the validity of her arrest. Complaint (Doc. #1), 55-56. Plaintiffs Terry Burnsed and Robert Piper attempt to support their claims by offering conclusory allegations that as a result of Denvers ordinance enforcement there has been a diminished ability to mobilize large groups of persons to maintain the protest. Plaintiff Rob Kuykendall claims he was cited for impeding traffic when he stopped on Broadway to allegedly donate to the protestors, in direct violation of Denvers traffic regulations. Id. 30-32, 64. Plaintiffs Natalie Wyatt and Daniel Garcia claim that they received tickets when they drove by the protest site and allegedly honked their horns in support of the protestors.1 Id. (Doc. #1), 23, 66-71. Finally, Plaintiff Catherine

Plaintiff Wyatt was actually issued a ticket for violating 38-89(b) which prohibits disturbance of the peace through sound amplification for using a compressed air horn 3

Case 1:11-cv-03048-REB Document 11

Filed 11/29/11 USDC Colorado Page 4 of 16

Lindsey offers conclusory allegations concerning the chilling of her willingness to honk her horn or donate to the protestors. Id. (Doc. #1), 61-63. Thus, over the course of nearly three months of constant protest activity, Plaintiffs are only able to allege that Denver has enforced its ordinances through the issuances of citations four times. III. ARGUMENT A. Plaintiffs Motion is Disfavored Because it Seeks to Alter the Status Quo A TRO seeks to preserve the status quo and prevent immediate irreparable harm as long as it is necessary to hold a hearing and no longer. Granny Goose Foods, Inc. v. Brotherhood of Teamsters and Auto Truck Drivers Local No. 70, 415 U.S. 423, 439 (1974). Issuance of a TRO as a form of preliminary injunctive relief is an extraordinary remedy that should only be granted when the moving party clearly and unequivocally demonstrates its necessity. See Schrier v. Univ. of Colo., 427 F.3d 1253, 1258 (10th Cir. 2005). A party requesting injunctive relief must show: (1) a substantial likelihood of prevailing on the merits; (2) he will suffer irreparable injury unless the injunction issues; (3) the threatened injury outweighs whatever damage the proposed injunction may cause the opposing party; and (4) the injunction, if issued, would not be adverse to the public interest. Id. at 1258. Here, however, Plaintiffs request for a TRO seeks to alter rather than preserve the status quo by requiring Denver to stop enforcing its longstanding laws. Thus, the TRO Plaintiffs seek falls in the category of specifically disfavored injunctions, as a result of which their Motion must be more closely scrutinized to assure that the exigencies of from inside of a motor vehicle. Plaintiffs Complaint does not challenge Denvers enforcement of this Ordinance. 4

Case 1:11-cv-03048-REB Document 11

Filed 11/29/11 USDC Colorado Page 5 of 16

the case support the granting of a remedy that is extraordinary even in the normal course. See O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 975 (10th Cir.2004); Occupy Sacramento v. City of Sacramento, 2011 WL 5374748 at *6 (E.D. Cal. Nov. 4, 2011). Further, because they are seeking disfavored injunctive relief, Plaintiffs must satisfy a heightened standard of proof by making a strong showing both with regard to the likelihood of success on the merits and the balance of the harms. See Id. at 976. Plaintiffs cannot meet this heightened standard. B. Plaintiffs Do Not Have a Substantial Likelihood of Prevailing on their Claim that Denvers Enforcement of its Ordinances Violated the First Amendment Plaintiffs Complaint seeks to enjoin Denver from enforcing four ordinances: D.R.M.C. 39-3 (imposing a curfew in city parks between the hours of 11:00 p.m. and 5:00 a.m.) (Exhibit A); D.R.M.C. 49-246 (prohibiting encumbrances in the public right of way) (Exhibit B); D.R.M.C. 54-482 (prohibiting vehicle parking, stopping, or standing where prohibited by signs) (Exhibit C); and D.R.M.C. 54-71 (prohibiting unwarranted use of motor vehicle horns) (Exhibit D). See Complaint (Doc. #1) 6-10. Not surprisingly, Plaintiffs do not challenge the facial validity of these content neutral ordinances. Instead, Plaintiffs contend that due to Denvers alleged past selective and retaliatory enforcement of these valid ordinances in violation of their First Amendment rights, Denver should be enjoined from enforcing such ordinances against them in the future. Motion (Doc. #2), p. 4. However, their Complaint is devoid of any supporting facts. To establish their First Amendment retaliation claim, Plaintiffs contend they are only required to prove: (1) they were engaged in constitutionally protected activity, (2) 5

Case 1:11-cv-03048-REB Document 11

Filed 11/29/11 USDC Colorado Page 6 of 16

the governments action caused them injury that would chill a person of ordinary firmness from continuing to engage in that activity, and (3) the governments actions were substantially motivated as a response to their constitutionally protected conduct. Motion (Doc. #2), p. 3. However, to prevail on their First Amendment selective

enforcement retaliation claim, Plaintiffs must also provide compelling evidence of other similarly situated persons who were in fact treated differently because the multiplicity of relevant (non-discriminatory) variables involved in law enforcement decisions are not readily susceptible to the kind of analysis courts are competent to undertake. See Grubbs v. Bailes, 445 F.3d 1275, 1281 (10th Cir. 2006), quoting Jennings v. City of Stillwater, 383 F.3d 1199, 1214-1215 (10th Cir. 2004); see also, United States v. Armstrong, 517 U.S. 456, 465-66 (1996) (the requirements for a selective prosecution claim draw on ordinary equal protection standards and a showing that similarly situated individuals were not prosecuted); Thomas v. Chicago Park Dist., 534 U.S. 316, 325 (2002) (in order to win a viewpoint discriminatory enforcement challenge against a law that is facially neutral, the challenger must show a pattern of unlawful favoritism.). Moreover, if a plaintiff alleges that a defendants action was taken in retaliation for protected speech, the standard for evaluating that chilling effect on speech is objective, rather than subjective . . . a trivial or de minimis injury will not support a retaliatory prosecution claim. Shero v. City of Grove, 520 F.3d 1196, 1203 (10th Cir. 2007) (quoting Eaton v. Meneley, 379 F.3d 949, 954-55 (10th Cir. 2004) Plaintiffs failure to articulate objective facts demonstrating that Denver has treated them more harshly in comparison to other similarly situated members of the

Case 1:11-cv-03048-REB Document 11

Filed 11/29/11 USDC Colorado Page 7 of 16

public with respect to its enforcement of the four ordinances makes their claim of selective enforcement speculative at best, and dispositive of the likelihood of success on the merits element of this claim. To the contrary, the attached affidavits show that Denver has routinely enforced the four ordinances at issue against other persons. See Exhibit E, Affidavit of Division Chief David Quinones; Exhibit F, Affidavit of Terrie L. Cooke. Thus, Plaintiffs are effectively asking the court to specially excuse them from compliance with laws that everyone else is required to follow simply because they want to express their alleged First Amendment rights however and whenever they choose. Because Plaintiffs Complaint fails to show a violation of any of their First Amendment rights or selective enforcement of any of the four ordinances against them in retaliation for the exercise of First Amendment rights, their request for a TRO should be denied. 1. Plaintiffs have failed to articulate cognizable First Amendment interests which have been infringed upon by Denvers enforcement of its Ordinances

Plaintiffs contend that they have a First Amendment right to: (1) sit-in, camp, and picket; (2) temporarily use the sidewalks regardless of whether such use violates the public right of way; and, (3) support the protestors in any manner they deem appropriate, which rights are being chilled by Denvers enforcement of its ordinances. Motion (Doc. #2), pp. 5-11. However, the First Amendment does not guarantee the right to communicate ones views at all times and places or in any manner that may be desired. Metromedia Inc. v. City of San Diego, 453 U.S. 490, 555 (1981); see also Adderley v. Florida, 385 U.S. 39, 48 (1966) (vigorously and forthrightly rejecting the notion that

Case 1:11-cv-03048-REB Document 11

Filed 11/29/11 USDC Colorado Page 8 of 16

people who want to propagandize protests or views have a constitutional right to do so whenever, however, and wherever they please). While the protections provided by the First Amendment do not end at the spoken word, the Supreme Court has specifically rejected the notion that an apparently limitless variety of conduct can be labeled speech whenever the person engaging in the conduct intends thereby to express an idea[.] Texas v. Johnson, 491 U.S. 397, 404 (1989) (quoting OBrien, 391 U.S. at 376); see also City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989) (It is possible to find some kernel of expression in almost every activity a person undertakes . . . but such a kernel is not sufficient to bring the activity within the protection of the First Amendment.). Rather, conduct must be sufficiently imbued with elements of communication to be entitled to First Amendment protection. Johnson, 491 U.S. at 404. Thus, even if Plaintiffs could establish that Denvers enforcement of any of the four ordinances constitute limitations on expressive conduct, such restrictions do not violate the First Amendment so long as they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant government interest, and that they leave open ample alternative channels for communication of information. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984); see also OBrien, 391 U.S. at 376 (when speech and nonspeech elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.). When these guidelines are applied to the

Case 1:11-cv-03048-REB Document 11

Filed 11/29/11 USDC Colorado Page 9 of 16

allegations set forth in Plaintiffs Complaint, it is clear that Plaintiffs cannot establish that Denver has impermissibly infringed upon their First Amendment rights. a. Denvers Park Curfew is content neutral and does not impermissibly restrict expressive conduct

A park curfew ordinance, like the no camping law upheld in Clark, is a content neutral law which does not directly regulate expressive conduct. As recognized in the Occupy Sacramento case, in which plaintiffs sought a TRO through a facial challenge of Sacramentos curfew ordinance, the fact that an ordinance stifles speech or expression does not necessarily lead to the conclusion that it is unconstitutional . . . . Occupy Sacramento, 2011 WL 5374748 at *6; see also Metromedia Inc., 453 U.S. at 555. Here, it is undisputed that although Plaintiffs are not allowed to remain in Civic Center Park during curfew hours, they are still able to utilize public areas adjacent to the park to continue their protest so long as they do so in a lawful manner. Thus, they have failed to demonstrate that Denvers enforcement of the curfew violates any cognizable First Amendment rights. See, e.g., Clark, 468 U.S.at 299. As such, Plaintiffs cannot meet their burden of showing a likelihood of prevailing on the merits of this claim. b. The ability to place small items on a sidewalk is not a right protected by the First Amendment

Plaintiffs also cannot demonstrate that they have a substantial likelihood of prevailing on their claim that their First Amendment rights have been chilled by allegedly watching Denver Police officers issue citations to individuals for placing items on the sidewalk when such items encumber the public right of way. See Motion, (Doc. #2) p. 8. As discussed below, this allegation is completely devoid of factual support, as

Case 1:11-cv-03048-REB Document 11

Filed 11/29/11 USDC Colorado Page 10 of 16

Denver is unaware of any citations having been issued for right-of-way encumbrances in 2011. Exhibit F, p. 2. Moreover, Plaintiffs contention that placing items on a sidewalk is somehow expressive of their cause is devoid of any factual or legal support. See, e.g., OBrien, 391 U.S. at 376 (We cannot accept the view that an apparently limitless variety of conduct can be labeled speech whenever the person engaging in the conduct intends thereby to express an idea.). In fact, Plaintiffs Complaint does not even attempt to articulate any particularized message they intend to convey by placing small items on the sidewalk. c. There is no First Amendment right to violate content-neutral traffic laws

Finally, Plaintiffs contend that Denvers alleged enforcement of two traffic ordinances retaliates against them by interfering with their ability to donate or express other support for the protestors. However, as discussed above, the First Amendment does not protect Plaintiffs desire to express their support however they deem appropriate. See, e.g., Metromedia Inc., 453 U.S. at 555; Adderley, 385 U.S. at 48. 1. Plaintiffs have not been precluded from making donations

Notably, Plaintiffs do not contend that Denver has impermissibly eliminated all ability to donate to the protestors. In fact, Plaintiffs cannot credibly make such a claim because all Denver has allegedly restricted is the ability to stop in a lane of traffic on a busy street where stopping is prohibited to ensure public safety. Persons who want to make a donation merely need to lawfully park their vehicle on an adjacent street and walk to the protest site or signal a protestor to walk over to their car to get the donation. 10

Case 1:11-cv-03048-REB Document 11

Filed 11/29/11 USDC Colorado Page 11 of 16

Moreover, Plaintiffs contention that they did not and would not have impeded traffic by momentarily stopping to donate to the protestors also provides no support for their First Amendment claim because Denver is not required to establish that either Plaintiff threatened public safety or to wait for misfortune to strike before it may lawfully enforce its Ordinance. See City of Memphis v. Greene, 451 U.S. 100, 126 (1981) (As a matter of constitutional law a citys power to adopt rules that will avoid anticipated traffic safety problems is the same as its power to correct those hazards that have been revealed by actual events.); United States v. Albertini, 472 U.S. 675, 688 (1985) (The First Amendment does not bar application of a neutral regulation that incidentally burdens speech merely because a party contends that allowing an exception in a particular case will not threaten important government interests.). Rather, because adequate alternative means to donate to the protestors clearly exist, Plaintiffs do not have a protected First Amendment right to illegally stop their cars in the street. Further, Plaintiffs Complaint fails to set forth facts establishing that the honking of a motor vehicle horn constitutes expressive conduct entitled to First Amendment protections. Even if they were able to do so, Plaintiffs still cannot show that

enforcement of the Ordinance violates their First Amendment rights because it satisfies the narrowly tailored requirement of a valid time, place and manner restriction on the use of a motor vehicle horn by leaving other ample means of communication for a driver to indicate support for protestors, including flashing headlights, waving, or calling out to the protestors. See Hill v. Colorado, 530 U.S. 703, 725-26 (2000); see also Weil v. McClough, 618 F. Supp. 1294, 1296-97 (S.D.N.Y. 1985).

11

Case 1:11-cv-03048-REB Document 11

Filed 11/29/11 USDC Colorado Page 12 of 16

2.

No credible evidence exists to demonstrate that Denver has selectively enforced its ordinances against Plaintiffs

Plaintiffs are also not entitled to a TRO because they cannot demonstrate that Denver has selectively enforced its Ordinances against them in retaliation for the exercise of any First Amendment rights. It is undisputed that even prior to the protestors decision to assemble in Civic Center Park, Denver has routinely enforced its park curfew. For example, in 2010 alone, 912 cases were filed with the Denver County Court concerning park curfew violations and since January 2, 2011, over 726 cases have been filed. Exhibit F. Additionally, while not as common, two citations were issued in 2010 for encumbering the public right of way. Id. Further, in 2010, Denver issued over a hundred thousand tickets for illegal parking, stopping and standing where prohibited by signs, and issued twenty three tickets for unwarranted use of motor vehicle horns. Id. So far in 2011, over sixty thousand tickets have been issued for illegal parking, stopping and standing, and eleven tickets have been issued for honking violations. Id. Consequently, Plaintiffs also cannot demonstrate that they have a substantial likelihood of prevailing on the merits on their selective enforcement claim because similarly situated individuals, including Plaintiffs, have been treated equally. C. Plaintiffs are able to Exercise their Right to Expression without Enjoining Denver from Enforcing its Ordinances Plaintiffs claim that they are currently suffering irreparable harm and will undoubtedly continue to suffer irreparable harm unless the restraining order issues to stop the police from enforcing Denver municipal ordinances in retaliation for Plaintiffs

12

Case 1:11-cv-03048-REB Document 11

Filed 11/29/11 USDC Colorado Page 13 of 16

exercise of their First Amendment rights. Motion (Doc. #2), p. 12. Thus, according to Plaintiffs, because their First Amendment rights have allegedly been burdened, a presumption of irreparable harm exists. However, in cases like this one, the Supreme Court has recognized that the need for a proper balance between state and federal authority counsels restraint in the issuance of injunctions against law enforcement engaged in the administration of criminal laws in the absence of irreparable injury which is both great and immediate. See City of Los Angeles v. Lyons, 461 U.S. 95, 112 (1983). Moreover, wherever a court is asked to exercise its equitable powers to oversee state law enforcement authorities, it must recognize [t]he special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law. Id. (quoting Stefannelli v. Minard, 342 U.S 117, 120 (1951)). Here, Plaintiffs have failed to show any imminent irreparable harm due to Denvers enforcement of its Ordinances. As Plaintiffs Complaint acknowledges, the Occupy Denver movement began in September 2011, when protestors began their occupation of Lincoln Park, and they were warned as early as October 13, 2011 about Denvers enforcement of its laws. Complaint (Doc. #1), 13-21. If the harm to Plaintiffs was actually irreparable, they should have sought a TRO over a month ago. However, their delay in filing substantially undermines their ability to establish immediate irreparable harm. See Occupy Sacramento id, at *7-9. In fact, just the opposite is true as evidenced by the daily continuance of the occupy protest in and around the vicinity of Civic Center Park. As such, other adequate remedies exist for Plaintiffs to pursue, such as monetary damages, which are designed to specifically redress alleged wrongs

13

Case 1:11-cv-03048-REB Document 11

Filed 11/29/11 USDC Colorado Page 14 of 16

committed them. See, e.g., Howard v. McLaughlin, 634 F.3d 1131 (10th Cir. 2011); Klen v. City of Loveland, 2011 WL 5546889 at *8 (10th Cir. Nov. 15, 2011). Where a plaintiff has an adequate remedy at law, the extraordinary remedy of injunctive relief should be denied. Rondeau v. Mosinee Paper Corp., 422 U.S. 49, 60 (1975). D. The Balance of Interests Weighs in Denvers Favor Requiring Plaintiffs to adhere to Denvers Ordinances concerning the use of Civic Center Park, public rights of way, and traffic regulations does not demonstrate any hardship on their part. In contrast, several substantial interests of Denver are at stake, including Denvers right to protect public health, safety and welfare by maintaining and preserving Civic Center Park for use by all people, ensuring that public sidewalks are available for all members of the public to use, and ensuring that traffic flow on a busy street is not restricted and proceeds in safe manner. As such, the balance of the interests at issue substantially weighs in Denvers favor. E. A TRO is Contrary to the Public Interest Plaintiffs have also failed to show that a TRO would benefit the public interest. Rather, Denver is preserving the public interest by maintaining and preserving its parks in an attractive and intact condition readily available to all people. Clark, 468 U.S. at 296. Whatever expressive benefit Plaintiffs may allegedly derive from instituting aroundthe-clock activities in Civic Center Park is substantially outweighed by the public interest served by Denvers enforcement of its Ordinances. See Id. at 300 (public parks are for all of the people, and their rights are not to be trespassed even by those who have some statement to make.) (J. Burger, concurring).

14

Case 1:11-cv-03048-REB Document 11

Filed 11/29/11 USDC Colorado Page 15 of 16

Further, Denver has an interest in preserving order and safety, such as by ensuring the free flow of traffic on the streets and sidewalks. Schenk v. Pro-Choice Network of Western New York, 519 U.S. 357 (1997). Enjoining Denvers ability to enforce its ordinances will harm the public interest by restraining Denver from regulating traffic on Broadway, one of the busiest thoroughfares in the City. Denver police officers will also be unable to limit access to Civic Center Park during those late evening hours when the park is typically closed to visitors and it will be prohibited from maintaining safe pedestrian travel along its sidewalks. Under such circumstances, because Denvers inability to enforce its Ordinances will have substantial negative consequences on the public, the public interest also weighs against the entry of a TRO. IV. CONCLUSION For all of the reasons stated herein, Denver respectfully requests that Plaintiffs Motion for a Temporary Restraining Order be denied. DATED this 29th day of November, 2011. Respectfully submitted, By: s/ Karla J. Pierce Douglas J. Friednash, City Attorney Karla J. Pierce, Assistant City Attorney Denver City Attorneys Office 201 W. Colfax Avenue, Dept. 1108 Denver, CO 80202-5332 Telephone: (720) 865-8751 Facsimile: (720) 913-3182 E-mail: dlefiling.litigation@denvergov.org Attorneys for Defendants

15

Case 1:11-cv-03048-REB Document 11

Filed 11/29/11 USDC Colorado Page 16 of 16

CERTIFICATE OF SERVICE I hereby certify that on this 29th day of November, 2011, I electronically filed the foregoing RESPONSE IN OPPOSITION TO PLAINTIFFS MOTION FOR A TEMPORARY RESTRAINING ORDER with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: David A. Lane, Esq. dlane@kln-law.com Lisa R. Sahli, Esq. lsahli@kln-law.com Lauren Fontana, Esq. lfontana@kln-law.com Tiffany Drahota, Esq. trahota@klh-law.com Kenneth A. Padilla, Esq. Padillaesq@aol.com s/ Raquel R. Trujillo Raquel R. Trujillo, Legal Secretary Office of the City Attorney

16