Two days ago, a federal judge ordered Denver police to refrain from harassing activists distributing jury nullification pamphlets near the Lindsey-Flanigan Courthouse, activity that the city conceded is protected by the First Amendment. Yesterday morning, according to a new motion filed by the lawyer representing Eric Verlo and Janet Matzen, the two activists who sought the injunction, "a cadre of Denver police officers" descended upon them and several associates as they were engaged in exactly the sort of pamphleting described in the injunction. The lawyer, David Lane, says the cops seized "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." He adds that the officers even "attempted to take personal property such as purses, computers, backpacks and other items" from the activists, but "the pamphleteers resisted the attempts by the police to steal their personal property."
The official justification for this raid is that the seized items constituted illegal "encumbrances of the right-of-way" under Denver's municipal code. The code does not define that term, Lane says, so police "have decided that anything and everything in the possession of the Plaintiffs and their associates is an 'encumbrance' and may be removed." To the left is a photograph that Lane submitted along with his motion, which asks U.S. District Judge William J. Martinez to hold Denver Police Chief Robert C. White in contempt of court. The picture, which I have helpfully labeled so you can identify the "encumbrance" that Denver police found intolerable, shows that the activists were not by any stretch of the imagination obstructing traffic into or out of the courthouse. "The mere presence of a packet of literature, a small shade shelter canopy, a cooler, a small table and signs encumbered nothing," Lane writes. "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."
The Fully Informed Jury Association (FIJA), which produces the pamphlets distributed by Verlo and Matzen, joined them in their lawsuit, and plans to hold a Jury Rights Day event at the courthouse on September 4, reports that the activists' property had not been returned as of last night. "When one of the juror rights educators went to the police department to inquire what was the reason for the delay in returning the stolen property," FIJA says, "he was told that property owners must identify their property to retrieve it."
A pattern seems to be developing. Yesterday I noted that Denver, even while admitting that distributing jury nullification pamphlets near a courthouse is constitutionally protected, is still prosecuting two activists, Mark Iannicelli and Eric Brandt, for distributing jury nullification pamphlets near a courthouse. The official charge against Iannicelli and Brandt is jury tampering, but the Denver District Attorney's Office won't explain how their actions, which were not aimed at influencing the outcome of any particular case, qualified for that description, or how they differed from the peaceful pamphleting the city says "does not violate Colorado law." Now police are continuing to harass the very activists the city promised to leave alone, on the pretext of enforcing a vaguely worded prohibition. It seems Denver is willing to tolerate jury nullification activists in theory but not in practice.