David Lane, the high-profile Denver civil-rights attorney who has represented everyone from Ward Churchill to Richard Heene, has sent a letter to the Boulder City Council threatening to sue over Seth Brigham’s ejection from a council meeting in February.
Brigham, who was arrested after wearing only boxer shorts while speaking to the council on Feb. 16, was charged with obstruction and trespassing, but those charges were subsequently dropped.
In his June 10 letter, Lane outlines the case law supporting his assertion that Brigham’s removal from the meeting was a violation of his First Amendment rights.
Lane concludes the letter by saying that Brigham “is very determined to secure a fair resolution of this matter. Absent a resolution in this matter, he will file a civil rights case in the United States District Court for the District of Colorado. If you are interested in discussing this matter, please have your representative contact me by the close of business on June 25, 2010.”
Brigham told Boulder Weekly that he would prefer to file suit, and that a hefty monetary settlement is not his ultimate goal.
He says that city officials have been ambiguous in their response to the incident, with some apologizing and expressing regret, and others defending the action.
Brigham says he “wants the city council and city government to understand that what they did was serious, and that it wasn’t just about me.”
At the same time, he says, an apology and acknowledgment of guilt is probably not enough of a resolution to the matter. “That might be too easy of an out,” he says. “I think they need a slap on the wrist.”
Brigham says that while he has no dollar figure in mind, “I’m not going to be unhappy if there is some financial settlement.”
Still, he insists that he wouldn’t see much of the money even if there were a financial settlement, after the attorneys and IRS take their cut, especially since he is on Social Security due to a disability.
“I regret the evening, but I don’t think it’s a federal case,” Boulder Mayor Susan Osborne told Boulder Weekly. “I think Seth had said he was going to do this, and I hoped he had thought better of it. But it’s his right to do it.”
The full text of Lane’s letter is below:
June 10, 2010
Mayor Susan Osborne
Boulder City Council Office
[email protected]
RE: Seth Brigham v. The City of Boulder
Dear Mayor Osborne:
Mr. Seth Brigham has retained Killmer, Lane & Newman, LLP to represent him with respect to his wrongful arrest without probable cause on February 16, 2010 during his attempt to engage in protected political speech before the Boulder City Council. I have advised Mr. Brigham that it appears his unlawful arrest caused by the Boulder City Council violates both state and federal law, and that he likely has meritorious legal claims against the City of Boulder.
I. Factual Background
As you know, on February 16, 2010, Mr. Brigham appeared before the Boulder City Council during a public comment session wearing nothing but his boxer shorts in an effort to communicate his concerns on a variety of political issues, including but not limited to campaign contributions to Council Member Suzy Ageton, Council Member George Karakehian’s “open door policy” concerning his business on the Pearl Street Mall, and the City of Boulder’s recent focus on public nudity issues. Mr. Brigham’s speaking in only his boxers was largely symbolic, in order to assist in making his points. Mr. Brigham was recognized as a speaker who would be addressing the Boulder City Council prior to any comments he made.
Less than a minute into Mr. Brigham’s comments, he was interrupted many times, and Deputy Mayor Ken Wilson caused scratching noises over the microphone system, effectively drowning out Mr. Brigham’s ability to speak. Thereafter, Mr. Karakehian directed Boulder Police law enforcement officer Sterling Ekwo to remove Mr. Brigham. Mr. Brigham’s microphone was turned off, and without any warning or communication from officer Ekwo, Mr. Brigham was immediately placed into handcuffs, and escorted outside. Mr. Brigham was charged with Obstruction and Trespassing, and transported to the Boulder County Jail. On February 25, 2010, all criminal charges against Mr. Brigham were dismissed on motion by Boulder’s Office of the City Attorney.
II. Legal Standard
The United States Constitution and the Colorado Constitution protect the right of freedom of speech and assembly for all citizens. The First Amendment of the United States Constitution provides that “Congress shall make no law. . .abridging the freedom of speech. . .or the right of the people peaceably to assemble and to petition the government for a redress of grievances.” Article II, Section 10 of the Colorado Constitution further provides that: “No law shall be passed impairing the freedom of speech, every person shall be free to speak, write or publish whatever he will on any subject. . .”
Political speech in particular holds a “high rank” in the “constellation of freedoms guaranteed by both the United States Constitution and our state Constitution.” Bock v. Westminster Mall Co., 819 P.2d 55, 57 (Colo. 1991). The Colorado Supreme Court noted in Bock that:
The United States Supreme Court and this court have been extraordinarily diligent in
protecting the right to speak and publish freely. Whether this is because free speech has
been conceived as a means to the preservation of a free government or as an end to itself,
the results have been the same. Free political speech occupies a preferred position in this
country and this state.
Id. The Colorado Supreme Court in Bock goes on to state:
Those who won our independence . . . believed that freedom to think as you will and to
speak as you think are means indispensable to the discovery and spread of political truth;
. . . that the greatest menace to freedom is an inert people; that public discussion is a
political duty; and that this should be a fundamental principle of the American
Government.
Bock, 819 P.2d at 57, citing Whitney v. California, 274 U.S. 357, 375 (1927).
The Colorado Constitution provides an even broader protection for free speech than does the United States Constitution. Bock, 819 P.2d at 58-60. Article II, Section 10 of the Colorado Constitution contains “an affirmative acknowledgement of the liberty of speech, and therefore [is] of greater scope than that guaranteed by the First Amendment.” Id. at 59. The United States Supreme Court and Colorado Supreme Court have been extraordinarily diligent in protecting the right to speak and publish freely, and free political speech occupies a preferred position in this country and this state.
My understanding is that certain members of the Boulder City Council have publically defended their decision to remove Mr. Brigham by suggesting that Mr. Brigham was allegedly discourteous and personally attacking a member of the Boulder City Council. Even if this were true (which the video proves it is not), this would still not legally justify Mr. Brigham’s forcible removal before the Boulder City Council while he was engaging in politically protected speech.
The Colorado Supreme Court recognized in Bolles v. People, 189 Colo. 394, 398 (1975), that a crucial function of free speech under our system of government is to invite dispute. “If unsettling, disturbing, arousing, or annoying communications could be proscribed ….the protection of the First Amendment would be a mere shadow indeed.” Id.; see also Houston v. Hill, 482 U.S. 451, 462 (1987)(“‘Speech is often provocative and challenging. . . . [But it] is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience. Certainly, nothing Mr. Brigham said could be construed as tending “to incite an immediate breach of the peace” or “inherently likely to provoke a violent reaction.” See Cohen v. California, 403 U.S. 15, 20 (1971) and C.R.S. § 18-9-106(1)(a).
The First Amendment does not require that Mr. Brigham be courteous when addressing his elected political leaders. Additionally, Mr. Brigham’s First Amendment rights may not be abridged even if he were making personal attacks on his elected officials (if allegations of improper campaign contributions could be construed as a personal attack). Boulder’s elected officials may not wield the overwhelming power of the government to curtail First Amendment rights each time their feelings are hurt by a public attack.
When viewed objectively, the video of Mr. Brigham during the public comment session
unequivocally demonstrates that he was not engaging in any unlawful behavior which would have legally justified the Boulder City Council’s curtailment of his protected political speech or his arrest. The Boulder City Council’s direction to law enforcement to remove and/or arrest Mr. Brigham constitutes unreasonable restriction on speech, and violates Mr. Brigham’s rights pursuant to the First and Fourth Amendments of the United States Constitution and Article II, Section 10 of the Colorado Constitution.
As stated, the Fourth Amendment requires probable cause that an individual has committed a crime prior to being arrested. ‘Disturbing the Police’ is not a crime, nor is ‘Disturbing the City Council.’ “A police officer violates an arrestee’s clearly established Fourth Amendment right to be free of unreasonable seizure if the officer makes a warrantless arrest without probable cause.” Olsen v. Layton Hills Mall, 312F.3d 1304, 1312 (10th Cir. 2002). That right was clearly established at the time of Mr. Brigham’s arrest. See Beck v. Ohio, 379 U.S. 89, 91 (1964); see also Guffey v. Wyatt, 18 F.3d 869, 872 (10th Cir. 1994). (“The right to be free from arrest without probable cause is a clearly established constitutional right.”).
III. Conclusion
The actions of Mr. Brigham before the Boulder City Council on February 16, 2010 constituted classic political speech. Certainly, the First Amendment necessarily requires that every member of a democratic society must be able to address their elected leaders on any issue they feel important without fear of arrest. Political speech at a town meeting occupies the highest order of protected speech in our nation. To remove Mr. Brigham from the microphone because members of the council did not appreciate his comments and to arrest him is plainly violative of the Constitutions of the United States and the State of Colorado.
Please be advised that Mr. Brigham is very determined to secure a fair resolution of this matter. Absent a resolution in this matter, he will file a civil rights case in the United States District Court for the District of Colorado. If you are interested in discussing this matter, please have your representative contact me by the close of business on June 25, 2010. I look forward to hearing from you.
Sincerely,
David A. Lane
Killmer, Lane & Newman, LLP
