Verlo v. Martinez, No. 15-1319 (10th Cir. 2016)
Annotate this CaseIn 2015, two men were distributing pamphlets on the plaza outside the Courthouse (Plaza). The pamphlets contained information about "jury nullification." Both men were arrested and charged with jury tampering in violation of Colorado law. Plaintiffs, like the men who were arrested, wanted 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 White, Denver’s police chief, 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. This case was an interlocutory appeal challenging the district court’s grant of the 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. The Order prohibited all expressive activities within an area immediately surrounding the Courthouse. Following an evidentiary hearing, the district court enjoined enforcement of a portion of the Order as against Plaintiffs. The Judicial District appealed. "[T]he government’s power to control speech in a traditional public forum is circumscribed precisely because the public has, through the extent and nature of its use of these types of government property, acquired, in effect, a 'speech easement' that the government property owner must now honor." Based on the arguments made and evidence presented at the preliminary injunction hearing, the Tenth Circuit held the district court did not abuse its discretion in granting Plaintiffs’ motion in part.
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