Free Brief in Opposition to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 04-MW-1126 (PAC) BRIAN HILDENBRANDT, Plaintiff. v. THE CITY OF COLORADO SPRINGS, A Colorado Municipal Corporation, Defendant MOTION AND BRIEF IN OPPOSITION TO DEFENDANT'S SECOND MOTION AND BRIEF FOR SUMMARY JUDGMENT

COMES NOW Plaintiff, Brian Hildenbrandt, by and through his attorney, William Durland, and submits the following Motion and Brief in Opposition to Defendant's second Motion and Brief for Summary Judgment. 1. Plaintiff's Reply to Defendant's Legal Background and Analysis Defendant filed a Motion and Brief for Summary Judgment on April 15, 2005. Plaintiff opposed on May 5, 2005 and Defendant replied on May 20, 2005. On September 19, 2005 the Court granted Defendant's Motion in part and denied it in part. Denial was based on Defendant's alleged violation of Plaintiff's First Amendment rights on October 8, 2003 inside and outside the barricades established to protect the NATO conference from October 7th to 10th, 2003. After the Defendant's Motion was filed on April 15, 2005 and before the Court's September 19 ruling, an opinion and order was issued by Citizens for Peace in Space v. City of Colorado Springs, CO (Case no. 04-CV-00464-RPM), hereafter referred to as the "CPIS" case, in the same federal district court in which this case is being litigated. That opinion and order ruled that it was a reasonable act on the part of the City to deny permits to a small group of

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Colorado Springs citizens who applied to the City before the conference began for permission to stand with a few signs for a few hours closer to the Broadmoor Hotel conference than the barricades and checkpoints set up by a NATO-military-City complex would allow. According to Judge Matsch, "The Plaintiffs contend that the City was required by the First Amendment to allow them limited entry into the security zone for the purpose of staging a political demonstration." at page. 8. Mr. Hildenbrandt makes no such contention, which distinguishes these two cases and extinguishes Defendant's untimely claim. The Court's order specifically stated in closing that the Plaintiffs in that case "have not shown that the difference between the permitted location and the street in front of the IC was a significant impediment to their freedom of expression." at page 11. The ratio decidendi of that case turns on whether to exclude their "limited entry" at page 8 was a reasonable restriction on time, place and manner of public speech in a public forum." at page 7. That Court's dictum concerned the extent of the so-called "security zone" but it was not the ultimate issue in that case as the words of Judge Matsch make clear, although his reasoning concerning the restricted entry was part of that opinion, as was his analysis of the application of the time and place and manner doctrine of constitutional law. From July 25, 2005 to October 18, 2005, Defendant chose not to react to Judge Matsch's decision, almost three months. In spite of a deadline for dispositive motions established and agreed upon in the Scheduling Order dated August 10, 2004, and U.S. Magistrate Judge Patricia Coan's clearly ordered dispositive motion deadline of April 15, 2005 with "no extensions," the City files another Summary Judgment motion, and this after the City waited three months beyond Judge Matsch's ruling and over a month after U.S. Magistrate Judge Watanabe's ruling of September 18, and over six months after said deadline to do so. Plaintiff contends that the Defendant may not do so.

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II. Plaintiff's Reply to Defendant's Factual Background Plaintiff relies on his statement of the facts in his previously filed and timely Motion in Opposition to Defendant's Motion for Summary Judgment of May 20, 2005, pages 1-6 and incorporates them by reference in response to Defendant's second and untimely Motion of October 18, 2005. Plaintiff, in response to Defendant's second rendition of the facts in its instant Motion, takes issue with Defendant's new version, both procedurally and substantively. 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. "The Plaintiff did not intend to participate in any demonstration or protest activity of any kind." Defendant's Brief, page 4. Plaintiff, in his Deposition clearly states that "we're not testing the strength of the perimeter." Plaintiff's Exhibit 5, 70: 24-25. Where the Defendant claims that Plaintiffs "looked suspicious", the factual record indicates that Mr. Hildenbrandt and Mr. Curtis were simply trying to find the protesters and feared that they were going to be arrested, even though they were walking legally and had done no wrong. Plaintiff's Exhibit 5, 68: 10-11, 74: 22-23. This is just one example of Defendant's new "facts" not coinciding with sworn testimony in the depositions. The truth of the matter is that it was not his purpose to protest or demonstrate or seek a permit to hold banners and signs inside the security zone at the International Center, as was the purpose of the Plaintiffs in the CPIS case. Plaintiff contends that much of Defendant's second rendition of the "facts" is worked over and not included in the Defendant's first Motion, as the above examples indicate. (See also additions to Defendant's first Motion at page 11 under Roman numeral V-c).

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III. Plaintiff's Issues 1. Is Defendant's second Motion for Summary Judgment barred in whole by the Court's Scheduling deadline of April 15 for dispositive motions? 2. If not, is Defendant's Motion barred in part because it contains new "facts" and arguments after the deadline, which are untimely? 3. If Defendant's Motion is not barred in whole or in part, does Defendant's argument based on "res judicata", "collateral estoppel" and "privity" to wit: that the ruling in the CPIS litigation involves the "exact same" issue and same parties in privity overrule the Court's Order denying in part Defendant's first Motion?1 IV. Plaintiff's Short Answer Yes to one and two and no to three. The Plaintiff is (1) wholly barred in arguing a second Motion for Summary Judgment, (2) and also barred as to the submission of new material. (3) His arguments of collateral estoppel or issue preclusion, privity, and the cases upon which he relies that also argue res judicata, are misapplied because the parties and issues are not identical to an issue "actually litigated" and necessarily decided in a prior action. Moreover privity does not exist between Plaintiff (or his attorney) and a party in the prior action. Nor was Plaintiff "virtually represented" at the CPIS trial, among other necessary criteria listed on page 7, infra. V. Plaintiff's Reply to Defendant's Discussion A. Summary Judgment Standard: The summary judgment standard Plaintiff relies on was stated in his timely and previously filed first Motion in Opposition to Defendant's Motion for first

The doctrines of res judicata, collateral estoppel, and privity have been used by Defendant in his Motion and Brief and are therefore included in Plaintiff's reply. They are defined in Benson at 1213-14, Wilkinson at 1322, Aerojet at 715, Michaelson at 699-701, cited in Plaintiff's Brief above and also Sill-Flo, Inc. v. SFHC, Inc., 917 F.2d 1507, 1520 (10th Cir., 1990) which is cited in Clark v. Haas Group, Inc., 953 E.2d 1237 (10th Cir., 1992) at page 9 of Defendant's Brief. 4

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Summary Judgment. Plaintiff contends that the Defendant's second rendition of "summary judgment standard" is untimely and barred by the Scheduling Order. B. Defendant's "Exact, Same Issue" Theory is Flawed: The Plaintiff's interest in the instant case is not identical to the interests of the Plaintiffs in the CPIS case, nor does privity exist. Defendant has established neither of these two arguments sufficient to reverse the Court's Order. First, Defendant argues that the CPIS case involves the "exact same" issues as the instant case. Pages 7, 9, 10. Plaintiff initially is confused by Defendant's repetitive language. Are there two points here ­ "exact" and "same"? Do these two adjectives connote two different aspects of the case? Exact means, "exhibiting or marked by strict particulars and complete accordance with fact or standard." "Same" means "resembling in every relevant aspect; conforming in every respect ... without addition, change, or discountenance ... identical ... indistinguishable". (Merriman-Webster's Collegiate Dictionary (10th ed.) Plaintiff accepts either or both of these definitions whether redundant or not, as the issue before us. The instant case and the CPIS case must be identical and indistinguishable according to the City's theory. Of course, they are not. As to the "identity of issues," Defendant cites Benson v. Town of Nunn, Colorado. Three cases were involved. In the first case the parties were Ike and Lurena King. In the second case the parties were Robert and Rena Grigsby. In a third case, the parties were Randy and Glenda Benson. The Grigsbys were not parties in either of the other cases. King and Benson were parties. At the hearing in the King case, Rena Grigsby testified, i.e. was a witness. In the Benson case, the Town of Nunn contended that the Grigsbys were not parties but had privity because they "virtually represented" the party in litigation, having adequately represented their interests. The Court decided that their interests were in privity.

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In the instant case, although Mr. Hildenbrandt was present for half a day of the three-day CPIS trial, he was not a witness and the issues are not identical, nor are the parties. Plaintiff does not claim relief for the "exact same alleged injury," Defendant's Brief, page 9, that CPIS plaintiffs claimed. His First Amendment claim rests on the facts surrounding his "being there" legally at the blockade area, and his subsequent detention, interrogation, and arrest, which followed. Although, in the Plaintiff's case, he was detained and arrested at or near the blockade and checkpoints ordered and established by the NATO-military-City complex (perhaps in violation of the Posse Commitatus Act), he did not seek legal permits to proceed into the security zone, crucial to the CPIS case, but rather compensation for personal and physical injuries he sustained that constitutes "the injury for which relief is demanded" Defendant's Brief, page 9, Benson at 1213, citing Wilkinson v. Pitkin County Bd. of County Commissioners, 142 F.3d, (1998) 1319, 1322. His injuries differ from the injuries the CPIS group claimed. The cases in point cited by the Defendant or referred to in the cases cited by the Defendant call for the claim or the cause of action to be "the same" as the one previously decided and not "the legal theory on which the person asserting the claim relies." Defendant's Brief, page 9. Therefore, "the extent of the security zone" rationale may be a legal theory and/or a question of fact in both cases but it is not, in the Plaintiff's case, the ultimate issue or even the cause of action upon which the injury claimed by Plaintiff relies, that is, compensation for injuries sustained through loss of his constitutional rights. In the CPIS case, the Court concluded, in arriving at its specific decision, that it was reasonable not to grant entry or a permit to the CPIS Plaintiffs because to grant to them would mean the NATO-military-City complex would have to grant access to all. Yet there is no allegation by the Defendant that Mr. Hildenbrandt sought permission to enter beyond the barricades or that he sought a permit to do so. Assume that the

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so-called barricades constituting the boundary of the security zone, discussed in the CPIS case, were extended further or were less inclusive. It would matter little to the Plaintiff's case. His rights were violated simply because he was legally present observing the events of the day and would have done so wherever the perimeter was located and would have been detained and arrested much the same. Plaintiff's standing inside or outside the barricades a few feet did not constitute a threat to the people or property within the barricades so that his detention and arrest was a violation of his rights and an unreasonable exercise of police power upon orders controlled and initiated by NATO and the military. Dorsen, Bender, & Newborne, in the seminal Political and Civil Rights in the United States, Vol. 1, Boston, Little Brown Co., 1976, page 617 indicated that Supreme Court cases have moved towards stricter application of collateral estoppel to civil rights 42 U.S.C. 1983 cases and that the bulk of decisions have rejected the application of collateral estoppel and res judicata in such litigation. To apply Benson and Colorado law, Plaintiff's claim is only barred if all of the following characteristics establishing the collateral estoppel doctrine are present and "exact" and the "same," in the Defendant's vernacular. It is the Defendant's burden, not the Plaintiff's, to satisfy all these necessary conditions.2 These are: 1) The issue is identical to that litigated. 2) The issue was necessarily decided in a prior action. 3) The issue must be necessary to the judgment. (The permission to enter the security zone is not an issue in the instant case.) 4) Plaintiff was a party or has privity with the parties in prior action. 5) There was a final judgment on the merits in the prior action. (It should be noted that the C.P.I.S. case has been appealed). 6) Plaintiff had full and fair opportunity to litigate the issue in prior action, that is, the Plaintiff was The necessary conditions for res judicata, and collateral estoppel, or issue preclusion, to apply which when all are present are sufficient to support the Defendant's argument, are those listed above and found in Benson at 1213-14, Wilkinson at 1322, and Aerojet at 719 and are cited in the Plaintiff's Brief above. 7
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"virtually represented" in the prior litigation, (from Benson quoting Aerojet-General Corp. v. Askew, 511 F.2d 710, 719 (1975); that case is also authority for the point that this is a question of fact for the trial court). 7) Under res judicata the "same claim or cause of action" must be determined by the injury for which relief is demanded and not by a legal theory on which the person asserting the claim relies. Wilkinson v. Pitkin County Bd. of County Commissioners, at 1322, cited in Benson and Michaelson v. Michaelson, 884 P.2d 695, 699 (Colo. 1994). "A working or functional relationship may be said (to exist) if the non-party substantively participates in controlling the presentation of the issues as if it were the party." Public Service Co. v. Osmose Wood Processing, Inc., 813 P.2d 785, 787-8 (Colo. Ct. App., 1991) quoting, Aerojet cited in Benson. These characteristics are not all present in the instant case, no "identity of issues" exists, and therefore collateral estoppel does not apply. C. Defendant's "The Attorney Did It" Privity Theory Has No Legal Precedent. There being no issue of collateral estoppel or res judicata that fulfills all of the characteristics that those doctrines call for to establish "identity of issues," and not simply one or another, we move to Defendant's last argument, which Plaintiff contends verges on the spurious and inflammatory. That is that either or both the Plaintiff, Hildenbrandt, and his attorney, William Durland, constitute in some way the nexus establishing res judicata or collateral estoppel through a privity theory. Let us examine the Defendant's allegations and the facts in juxtaposition. Defendant avers that the "exact same issue" exists establishing both identity of interest and privity. For the latter, he states the following: "There was substantial contact between Mr. Hildenbrandt, his attorney, and the CPIS Plaintiffs and their attorney during the citizens' case" (That trial took place from July 5-7, 2005). In answer to the defendant's allegations, Plaintiff offers the following analysis:

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1) "Mr. Hildenbrandt's attorney Bill Durland is a member of CPIS" (Proof: Defendant's Exhibit K, Deposition of Barbara Huber). However, that exhibit proves nothing. Attorney Maresse asks Barbara Huber, "Now, I guess just to make a record of it, this probably will be something objected to, but is Bill Durland a member of Citizens for Peace in Space?" Ms. Newman: "Let me object and instead you're not to answer." Mr. Maresse: "Are you familiar with Bill Durland at all?" Barbara Huber: "Yes." Mr. Maresse: "How are you familiar with him?" Ms. Newman: "Let me just counsel you. If you're familiar with him because he is in some organization that you are part of, then I instruct you not to answer." Huber: "Okay. I won't answer that." In fact, Mr. Durland is not a member of CPIS, (see Plaintiff's Exhibits 1 and 3). There are no members of CPIS. Therefore, it follows that Mr. Durland is not a member. In fact, Mr. Durland and Barbara Huber have been members together of other organizations, at least two, but neither can be a member of CPIS. 2) Next, Defendant tries to establish that, if not a member, "Mr. Durland has attended meetings and demonstrations organized and/or attended by the citizens group and has spoken on camera "espousing their views" (Proof: Defendant's Exhibit L). Defendant, in the CPIS trial, showed a film of several people interviewed by the press in the only place set aside from October 7 to 10, 2003 for public expression of one's First Amendment rights of free speech and exercise of religion. Mr. Durland was there as were hundreds of Colorado Springs citizens from varying and diverse groups, as well as people from outlying areas of Colorado. Individuals who were later to become the CPIS Plaintiffs gathered elsewhere on October 8, 2003. Mr. Durland's views are his own and his presence (along with his wife) at such gatherings is personal, undertaken as a private citizen. He is and has been a member of the boards of several diverse groups which were present at that gathering but he does not represent them in any way.

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3) During the course of the citizens' litigation, Defendant avers that Mr. Durland was in contact with attorneys for the citizens group who shared information with Mr. Durland and Mr. Hildenbrandt. (Proof: This conjecture is based on a footnote in Plaintiff's Motion in Opposition to Defendant's Motion for Summary Judgment. That is a false statement concerning Mr. Hildenbrandt. Plaintiff's Exhibit 2. As for Mr. Durland, as a member of the legal profession, he frequently has informal conversations with colleagues about similar cases. To conclude that in doing so he may become the focal point of this Motion is ludicrous. To think that such a casual event could establish privity or proves res judicata and collateral estoppel is beyond belief. Such an accusation creates a chilling effect on the freedom of expression and speech among attorneys by inferring that while exercising their own rights under the Constitution they may be doing something that, in the future, will be used by the City of Colorado Springs against them. 4) It is charged that "Mr. Hildenbrandt obtained access to a deposition taken in the CPIS case and used parts of such deposition as an exhibit in his Motion in Opposition." Defendant's Exhibit M. Mr. Hildenbrandt purchased a public record ­ the deposition of Commander Steve Liebowitz ­ recorded in the CPIS case by Valerie S. Mueller, registered Professional Reporter. Plaintiff's Exhibit 4. He has a legal right to do so without creating on that basis "privity" among these cases. Commander Liebowitz naturally figures in both cases. Mr. Hildenbrandt's case arises to compensate him for the prior criminal case brought against him, by the City on the same facts and dismissed by the City for "lack of evidence." It has depleted his resources, requiring him to forgo the expense of taking his own deposition and to rely upon that previously taken and available from the court reporter. This may frequently happen to average citizens who cannot afford to fully pursue their rights and such an act certainly does not create privity in any case.

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5) "Both Mr. Hildenbrandt and his attorney attended portions of the CPIS trial." (Defendant's proof: none offered.) Mr. Hildenbrandt and Mr. Durland attended a small part of the CPIS trial, Mr. Durland from 2 to 4 pm on July 6 and Mr. Hildenbrandt in the morning and afternoon of July 6 for a few hours. Simple attendance at a public trial is irrelevant to the legal theory of privity. Moreover, Defendant's argument under "Discussion V ­ c" is barred as new material, not meeting the deadline of April 14, 2005 for dispositive motions and brief on this subject. Further, Defendant admits that "Mr. Hildenbrandt has openly and truthfully stated that his intention was not to demonstrate within the security zone ..." as was the exact purpose of the CPIS group. Defendant's Brief, page.11. Therefore, Defendant admits that Plaintiff's case is not identical or in privity with the CPIS case wherein it was the primary purpose of the Plaintiffs to demonstrate inside the security zone. VI. Conclusion The First amendment claims of the Plaintiff's case are not identical to the C.P.I.S. case. Mr. Hildenbrandt was not "virtually represented" in the C.P.I.S. litigation so that Mr. Hildenbrandt is not precluded as a party from pursuing his first amendment case. Defendant's untimely motion is barred in whole and/or in part by the Scheduling Order both legally and equitably, legally by the deadline date of April 15, 2005, six months previous, or at least equitably estopped under the doctrine of laches, for Defendant waited for the CPIS decision of July 25, three months previous, and finally by the U.S. Magistrate's opinion and order of September 19, one month previous before filing his gratuitous second motion on October 18, 2005. Defendant's motion infers that U.S. Magistrate Judge Watanabe, when writing his Order of September 19, was either unaware of Judge Matsch's decision of July 25, or believing in the

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identity of the two cases, chose intentionally to ignore it. Neither proposition seems plausible. The Court would not have overlooked a case in his own district court in composing its Order. Plaintiff has his own disagreements with the Court concerning the denial of his Fourth Amendment argument in his timely Motion in Opposition of May 5. If Defendant may raise his contentions with the Court's ruling on the First Amendment, Plaintiff requests equal time to express his disagreements legally with the Court's ruling on the Fourth Amendment. (Plaintiff believes both his First Amendment and Fourth Amendment claims are applicable to this case (Court Order, page 8 to the contrary) and that he is required to demonstrate the existence of a municipal policy or custom at trial as an ultimate question of fact for the jury to decide and not as a matter of law almost a year earlier than trial. Plaintiff did not choose to refile his Motion, believing such an argument is barred by the deadline of April 14 and has abided by that legal ruling. Such rulings are designed to guarantee stability and certainty to the procedural process before trial. The allowing of multiple supplemental and repetitive dispositive motions beyond the deadline can only thwart that end. To allow such a procedure effectively acts to dismantle the fundamental purpose of the process. It has already taken much time away from the purpose of this litigation, the trial, so that Plaintiff asks the Court for a swift disposal of Defendant's second Motion. Consider further, the consequences of granting the dismissal of this case at this time. If the Court grants Defendant's latest motion to dismiss the case in its entirety, in the event the Tenth Circuit Court of Appeals subsequently overrules Judge Matsch's CPIS ruling of July 25, in part or in whole, then the result would be to take away Mr. Hildenbrandt's right to a jury trial prematurely. Such a ruling in the CPIS case may not be forthcoming for more than a year. It would put him in the impossible position of having to appeal now, in the face of two District

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Court decisions when either or both could ultimately result in a final judgment in his favor. The case is set for trial. The Summary Judgment motions and the Court's ruling consumed the period between April 15 and September 19 and now the Defendant City attempts to string that period out which has been devoted to dispositive motions even further from October the 18 to whoknows-when. Let us proceed to give Mr. Hildenbrandt his day in court and the jury a chance to participate in this important matter. If Defendant's argument is based on one quote, lifted out of context from the Court's Order, to wit: "Plaintiff's first Amendment claim is based on the establishment of the security zone, not on the absence of any restrictions on his activities outside the security zone", then that only establishes at this point in the proceedings that the extent of the security zone is a necessary but not a sufficient condition3 in defining Plaintiff's cause of action and injury. If the Court agrees and the Court's entire Opinion and Order seems to do just that, then the Defendant's Motion must be denied both logically and legally. We may then proceed uninterrupted to the ultimate purpose of this one and two-thirds year litigation ­ a trial by jury of his peers for Mr. Hildenbrandt. WHEREFORE the Plaintiff avers that Defendant is not entitled to the granting of a second Motion for Summary Judgment on the basis of the foregoing and Plaintiff therefore moves this Court to deny Defendant's Motion, reject the arguments of his Brief, and for whatever further or different relief the Court deems just and appropriate.

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In Logic, two propositions can only be identical when all the conditions necessary for each one are present. That is called an efficient condition. In comparing these two cases and their issues, whether one or more necessary conditions exist is not the question. All of them must exist in order that all the prerequisites for res judicata, collateral estoppel or privity are fulfilled. In these cases, they are not and the Defendant loses his argument. Hurley, Logic, 8th ed., Belmont, CA, Wadsworth Publishing Co., 2003, pp. 87-488: Porter, Fundamentals of Critical Thinking, New York, Oxford University Press, 2002, pp. 186-188. 13

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Dated this 2nd day of November 2005. Respectfully submitted,

s/William Durland William Durland, #010807 William Durland Law Office 516 W. Pikes Peak Avenue Colorado Springs, CO 80905 Phone: 719-635-8686 Fax: 719-635-8686 (with notification) E-mail: [email protected] ATTORNEY FOR PLAINTIFF Brian Hildenbrandt

CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on November 2nd 2005, I electronically filed the foregoing MOTION AND BRIEF IN OPPOSITION TO DEFENDANT'S SECOND 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/Therese Smith__________ Therese Smith

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