Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-01126-MJW-PAC

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-01126-MJW-PAC

BRIAN HILDENBRANDT, Plaintiff,

v. THE CITY OF COLORADO SPRINGS, a Colorado municipal corporation, Defendant.

REPLY TO OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

COMES NOW Defendant, City of Colorado Springs ("City"), by and through the Office of the City Attorney, and hereby submits the following reply to opposition to Defendant's motion for summary judgment: I. DISCUSSION A. Substantial Identity Of Interests Exists Between The Plaintiffs In Citizens And Mr. Hildenbrandt.

Plaintiff's opposition admits or does not dispute the following facts: · The temporary limited access area in this case is the same one involved in the Citizens case. · The First Amendment claim in the Citizens case was based on the City's denial of entry into the temporary limited access area to a group of individuals who intended to exercise their First Amendment Rights.

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· The First Amendment claim in the present case is based on the City's denial of entry into the temporary limited access area to Mr. Hildenbrandt. · Both Mr. Hildenbrandt and his attorney, Bill Durland, attended portions of the Citizens trial. Plaintiff's Exhibits 2 and 3. · Mr. Durland spoke with an attorney for the Citizens plaintiffs, Ed Ramey, in order to get advice on this case. Mr. Ramey also served as trial counsel in the Citizens case. Plaintiff's Opposition, Exhibit 3. · Mr. Durland has been "active" with the Citizens for Peace in Space organization. Plaintiff's Opposition, Exhibit 3. · A deposition taken in the Citizens case was used by Mr. Hildenbrandt in this case. Plaintiff's Opposition, Exhibit 2. · No unauthorized individuals or groups were allowed into the temporary limited access area, even to exercise their First Amendment rights. While simultaneously admitting or simply not opposing these facts, Plaintiff offers surprisingly scant and vague arguments in attempting to distinguish Mr. Hildenbrandt's First Amendment claim from the issue decided in Citizens. Plaintiff attempts to distinguish the issues as follows: Plaintiff's main purpose, as his deposition and that of Mr. Curtis states, was simply to "be there" and to observe what took place, Plaintiff's Exhibit 5, and to exercise his First Amendment Rights legally outside the security zone. Plaintiff's Opposition, page 3. Apparently, the Plaintiff is asserting that there is some type of fundamental difference in attempting to enter the limited access area to just "be there", and in attempting to enter the area in

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order to exercise First Amendment rights. This assertion is appalling in its inadequacy.1 If Plaintiff is asserting that he had a constitutional right to "be there" to observe what took place (presumably within the limited access area), even if such activity is deemed to be a legitimate First Amendment activity, it still does not distinguish this case from the holding in the Citizens case. In both instances, the underlying allegation is that the City violated individuals' First Amendment rights by denying them entry into the limited access area. Accordingly, there is substantial identity of interests between the Citizens plaintiffs and Mr. Hildenbrandt. Benson, at 1214. Plaintiff also attempts to distinguish the issue before this Court from the holding in Citizens by portraying the Citizens case as some type of permit case. This is erroneous. While the Citizens group did ask for entry into the temporary limited access area both in advance of the NATO conference and again at the main checkpoint at the time of their demonstration, their case dealt directly with the issue of the City's ability to temporarily close the area to unauthorized individuals, including those wishing to exercise their First Amendment rights. This was the issue ruled upon by Judge Matsch. The Citizens case did not involve any permit procedure allowing some demonstrators in and keeping others out. Instead, the City's policy of keeping all unauthorized people out of the area was more of a "bright line" rule. Accordingly, Plaintiff's suggestion that this case is different because he did not seek permission to enter the limited access area is irrelevant. If the Plaintiff sought permission to enter, or attempted to enter, the limited access area, he is in a substantially

Taking Plaintiff's argument to its conclusion would result in case law (Citizens) holding that demonstrators could be denied entry into the limited access area while observers seeking out such demonstrators (Hildenbrandt) could not. Illogic aside, such a policy of prohibiting demonstrators from an area while allowing all others in would most likely be unconstitutional. 3

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identical position as the plaintiffs in the Citizens case. If he did not seek to enter the area, and did not seek to exercise his civil rights, he is not stating much of a case. Accordingly, the "substantial identity of interests" standard discussed in Benson is satisfied. Benson, at 1214. B. All Of The Elements Of Collateral Estoppel Are Present Under Colorado Law To Bar Plaintiff's First Amendment Claim In This Case.

The following are the elements of collateral estoppel, along with a discussion as to their application to the facts of this case. 1. The issue is identical to an issue actually litigated and necessarily decided in the prior action. 2. The Plaintiff was a party or in privity with the party in the prior action. 3. action. 4. The Plaintiffs had a full and fair opportunity to litigate the issue in the prior action. Benson, at 1214. In regard to the element of identity of issue, such element has been adequately discussed. In regard to the issue of privity, privity was determined by the Benson court to exist when there was a substantial identity of interests between the party in the prior litigation and the non-party such that the non-party was virtually represented in the litigation. Benson, at 1214. The question of privity loops back into the identity of interests analysis. Therefore, privity exists in this case for the same reasons that identity of interests has been established. The Benson holding does not require personal contacts or other traditional elements of privity in order for privity to be established in a 4 There was a final judgment on the merits in the prior

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collateral estoppel analysis. Nonetheless, elements of traditional privity exist in this case, much as they did in the Benson case. The Plaintiff and his attorney got advice and access to discovery from an attorney for the Citizens plaintiffs. Mr. Hildenbrandt and his attorney attended the Citizens trial. Mr. Hildenbrandt's attorney has been "active" with the Citizens organization. In regard to the third element of collateral estoppel, there was a final judgment on the merits in the Citizens case, as demonstrated in Exhibit J to Defendant's motion. The fact that the holding has been appealed does not render the order anything but final. Indeed, an order must be final to be appealed. Finally, the Plaintiffs in the Citizens case, as discussed in the City's motion, had a full and fair opportunity to litigate their First Amendment claim before Judge Matsch. With all of the elements present in this case for the application of the doctrine of collateral estoppel under Colorado law, Defendant respectfully requests that this Court grant Defendant's motion for summary judgment. C. This Court Has Already Allowed, And/Or Good Cause Exists For Allowing The Filing Of This Motion For Summary Judgment.

Plaintiff argues that the City's motion is untimely. However, the Plaintiff acknowledges that Judge Matsch's ruling in the Citizens case was issued more than three months after the deadline for the filing of dispositive motions in this case. Plaintiff's opposition also acknowledges that this Court's order granting in part and denying in part Defendant's motion for summary judgment was not entered until September 19, 2005, more than five months after the dispositive motion deadline.

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It was not until after these orders were entered that the issues raised in Defendant's present motion for summary judgment became apparent. Since this Court already accepted Defendant's motion for summary judgment regarding Plaintiff's First Amendment claim, and established a briefing schedule, it is implicit that the Court found that there was good cause for the timing of Defendant's motion. However, even if this Court were to reconsider such issue, the Court should find that good cause exists for amendment of the scheduling order to allow for the filing of Defendant's motion for summary judgment of October 18, 2005. Where a party seeks to amend a scheduling order, the moveant must demonstrate that it has "good cause" for seeking modification of the scheduling deadline. The "good cause" standard focuses on the diligence of the party seeking leave to modify the scheduling order to permit the proposed amendment. Colorado Vision Academy v. Medtronic, Inc., 194 F.R.D. 684, 687 (D.Colo. 2000). As discussed previously, with the timing of the entry of the orders in both the Citizens case and in the present case, it was impossible for defense counsel to prepare the present motion within the deadline set forth in the scheduling order. Defense counsel had to see both rulings in order to properly assess whether the present motion was necessary and was supported by law. The submission of this motion within one month of this Court's order granting Defendant's first motion for summary judgment in part and denying it in part, demonstrates appropriate diligence on the part of defense counsel. Accordingly, the defense requests that this Court allow amendment of the scheduling order to allow for the filing of Defendant's motion and brief for summary judgment of October 18, 2005 6

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Dated this 14th day of November, 2005. Respectfully submitted, PATRICIA K. KELLY City Attorney/Chief Legal Officer Reg. No. 014408

s/Thomas J. Marrese Thomas J. Marrese Senior Attorney Reg. No. 15138 Colorado Springs City Attorney's Office 30 South Nevada Avenue, Ste. 501 P.O. Box 1575, Mail Code 510 Colorado Springs, Colorado 80901-1575 Telephone: (719) 385-5909 Facsimile: (719) 385-5535 E-mail: [email protected] Attorneys for Defendant City of Colorado Springs

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on November 14, 2005, I electronically filed the foregoing REPLY TO OPPOSITION TO MOTION FOR SUMMARY JUDGMENT with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected], and I hereby certify that I have mailed or served the document or paper to the following non CM/ECF participants in the manner (mail, hand-delivery, etc.) indicated by the non-participants name:

s/Tiffany M. Haywood Tiffany M. Haywood Legal Assistant Colorado Springs City Attorney's Office 30 South Nevada Avenue, Ste. 501 P.O. Box 1575, Mail Code 510 Colorado Springs, Colorado 80901-1575 Telephone: (719) 385-5909 Facsimile: (719) 385-5535 [email protected]

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