Free Motion for Summary Judgment - District Court of Colorado - Colorado

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

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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.

MOTION AND BRIEF FOR SUMMARY JUDGMENT

COMES NOW Defendant, the City of Colorado Springs ("City"), by and through the Office of the City Attorney, and, pursuant to F.R.Civ.P. 56(b), submits the following motion and brief for summary judgment. I. LEGAL BACKGROUND Defendant filed a motion and brief for summary judgment with this Court on April 15, 2005. Plaintiff filed a response on May 5, 2005, to which Defendant replied on May 20, 2005. On September 19, 2005, this Court entered an order granting Defendant's motion for summary judgment on Plaintiff's Fourth Amendment claim, but denying it in regard to Plaintiff's First Amendment claim. The Court observed that the basis of Plaintiff's First Amendment claim is

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that Plaintiff allegedly was prevented from engaging in some form of First Amendment activity within the limited access area. Subsequent to the briefing on Defendant's motion for summary judgment and prior to this Court's ruling, an order was issued in case number 04-cv-00464-RPM, titled Citizens for Peace in Space v. City of Colorado Springs. This order relates to the same temporary limited access area as the one in the present case. In the Citizens case, Judge Matsch found that the existence of the temporary limited access area did not violate the First Amendment rights of a group of protestors who sought to demonstrate within the area, but who were not allowed to do so. A copy of the order is attached as Exhibit J.1 Accordingly, Defendant submits this motion for summary judgment. II. FACTUAL BACKGROUND From October 7-9, 2003, an international conference took place at the Broadmoor Hotel, in Colorado Springs, Colorado. This event, known as an informal meeting of NATO Defense Ministers (the conference), involved defense ministers from many different countries as well as their staffs. It was a "first-of-its-kind" event for the City. Exhibit I, deposition of Commander Pete Carey, 37:324. The Broadmoor Hotel had been leased exclusively for this purpose by the Department of Defense, which hosted the conference. Involved in the planning and/or provision of security for the conference was the FBI, Secret Service, branches of the U.S. Armed Forces, the Colorado Springs Police Department, the Broadmoor Hotel and the El Paso County Sheriff's Office. Part of the security planning involved

Exhibits A-I were submitted with Defendant's April 15, 2005, motion for summary judgment. In the interest of economy, they are not attached to this motion. 2
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the establishment of a temporary limited access area extending around the Broadmoor Hotel. Exhibit A, map of vicinity.2 Only authorized participants in the conference, support staff, hotel staff, area residents and credentialed members of the press were allowed into the limited access area. Exhibit I, 15:2 - 19:8. On the early afternoon of October 8, 2003, Plaintiff was a passenger in a truck being driven by his friend and employee, Curt Curtis. The two were headed to a job site west of the Broadmoor Hotel. On the way, they encountered two checkpoints which controlled entry to the limited access area around the Broadmoor Hotel. Each time, they were told that they could not proceed past the checkpoints. Each time, the Plaintiff and Mr. Curtis took an alternative route and eventually made it to the job site. Exhibit B, deposition of Brian Hildenbrandt, 46:3-21. Mr. Hildenbrandt had heard about the planned security measures through the media prior to the beginning of the conference. He did not agree with them because he was upset at what he considered a "Martial Law Zone inside of our City for three days." Exhibit B, 47:22 - 48:15. The Plaintiff had been concerned for years over what he felt was a constant, gradual erosion of civil rights which might lead to the entire city being declared a "Martial Law Zone" for some future event. Exhibit B, pp. 48:16 - 49:15. After completing the job, the Plaintiff asked Mr. Curtis to drive back to the area of the Broadmoor Hotel. According to the Plaintiff, he wanted to "talk to the protesters". Exhibit B, 58:2-

The boundary of the limited access area relevant to this case ran north-south long the west side of 2nd Street from Maple to Broadmoor Road. Concrete road dividers delineated the boundary as shown in photographs attached as exhibits to this brief. 3
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9. Mr. Hildenbrandt had no other goal in returning to the area and had no knowledge of where any particular demonstrations might take place, if at all. Exhibit B, 58:24 - 61:9; 62:4-9. The Plaintiff did not intend to participate in any demonstration or protest activity of any kind. Exhibit B, 58:2-9; Complaint ¶¶ 11, 19. After arriving at the area of the Broadmoor Hotel, Mr. Curtis parked on 2nd Street north of Elm Street. After exiting the truck, the Plaintiff and Mr. Curtis walked south on 2nd Street and turned west onto Elm. In doing so, Mr. Hildenbrandt and Mr. Curtis crossed between concrete barriers that were placed across Elm. At the time they did this, the Plaintiff knew that he was crossing into the "secured zone." Exhibit B, 60:11 - 61:7; 64:10-16. After crossing through to the west of the barricades and walking approximately 30-50 feet, the Plaintiff and Mr. Curtis were ordered out of the area by an individual dressed in a blue Air Force uniform. Exhibit B, 62:11-18. After being ordered back to the east side of the barricades, Mr. Hildenbrandt asked the Air Force official a few questions. The official did not respond, instead repeating that the Plaintiff and Mr. Curtis had to go back to the east side of the barricades. Exhibit B, 63:9-20. The Plaintiff and Mr. Curtis then walked back east on Elm and turned south onto 2nd Street. The Plaintiff and Mr. Curtis continued south to Lake Avenue where there was a checkpoint (#1) manned by security personnel. The checkpoint controlled traffic proceeding west past 2nd Street into the limited access area around the Broadmoor Hotel. The Plaintiff and Mr. Curtis continued south across Lake Avenue past the checkpoint. While going by the checkpoint, Mr. Hildenbrandt asked security personnel manning the checkpoint as to the location of any protesters. One officer 4
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replied that they might be further east on Lake Avenue.3 Mr. Hildenbrandt did not believe what the officer told him, and he and Mr. Curtis continued walking south on 2nd Street past Lake Avenue. Exhibit B, 68:1 - 70:2. As they walked further south approaching Beech Street, the Plaintiff and Mr. Curtis looked over their shoulders several times at security personnel, which aroused the suspicion of Sgt. Wykoff, a military police officer stationed at checkpoint #1. Exhibit C, deposition of Sgt. Wykoff, 9:1112:20. Sgt. Wykoff decided to follow the Plaintiff and Mr. Curtis after seeing them bear off in a direction toward the west after walking further south near Beech. Exhibit C, 12:6-17. As Mr. Hildenbrandt and Mr. Curtis approached Beech Street and Broadmoor Road, both of which intersect 2nd Street, they saw there were no protesters at the location. Nonetheless, they walked to the southwest corner of Broadmoor and 2nd and stopped. Exhibit B, 82:1-16; See also photographs of the area attached as Exhibits D and E. According to the Plaintiff, after a short time, he and Mr. Curtis decided to go back to the north, retracing the route they had just taken. After walking to approximately Beech Street, they saw Sgt. Wykoff approaching, who ordered them to stop. Plaintiff and Mr. Curtis ignored Sgt. Wykoff's command to stop and walked past Sgt. Wykoff heading north back toward checkpoint #1. Exhibit B, 90:18 - 92:20. As the Plaintiffs continued toward checkpoint #1, Sgt. Wykoff followed. The Plaintiff and Mr. Curtis were stopped at the location of 2nd and Lake by a Colorado Springs police

The previous day, October 7, 2003, protesters had occupied locations near traffic circles on Lake Avenue several blocks east of 2nd Street. 5
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officer. Exhibit B, 93:3 - 94:25. The Plaintiff and Mr. Curtis were served with complaints for trespass, and were transported to a police substation where they were released.4 According to Sgt. Wykoff, after he began to follow Hildenbrandt and Curtis, a plainclothes officer pulled up in a vehicle and drove Sgt. Wykoff to Beech and 2nd. After exiting the vehicle, Sgt. Wykoff observed the Plaintiff and Mr. Curtis several feet within the limited access area. Exhibit C, 12:11 - 18:8, See also Exhibits D and E.5 Sgt. Wykoff has absolutely no doubt that the Plaintiff and Mr. Curtis crossed into the restricted area since he, himself, had to walk between the barricades into the restricted area to confront Hildenbrandt and Curtis. Exhibit C, 27:10-22. Sgt. Wykoff directed the pair back to checkpoint #1, with Sgt. Wykoff following. Detective Michael Yeater, the plainclothes Colorado Springs police officer who transported Sgt. Wykoff to 2nd and Beech, also drove back to checkpoint #1. Detective Yeater had also observed Hildenbrandt and Curtis to the west of the barricades in the limited access area. At 2nd and Lake, Sgt. Wykoff and Detective Yeater filled out affidavits in support of trespassing complaints. Exhibits F and G. Based on this information, the Plaintiff and Mr. Curtis were cited into municipal court on trespass charges.

The Plaintiff was allowed to call a friend to pick him up while en route to the police substation. Based on the deposition testimony of Sgt. Wykoff, a red X has been drawn on Exhibit E, depicting where the Plaintiff and Mr. Curtis were standing when confronted by Sgt. Wykoff. 6
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III. ISSUE Does the ruling in the Citizens For Peace In Space litigation, involving the exact same issue, bar Plaintiff's First Amendment action in the present case? IV. SHORT ANSWER Yes. Under Colorado law, the doctrine of collateral estoppel, or issue preclusion, bars a claim if the issue is identical to an issue actually litigated and necessarily decided in a prior action, and where there is privity between a plaintiff and a party in the prior action. V. DISCUSSION A. Summary Judgment Standard F.R.Civ.P. Rule 56(c) mandates the entry of summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Clifton v. Craig, 924 F.2d 182, 183 (10th Cir. 1991). A defendant's motion for summary judgment should be granted: . . .where a party fails to make a showing sufficient to establish an essential element of its claim and on which it bears the burden of proof at trial. The non-movant must come forward with specific facts showing there is a genuine issue for trial. If the only evidence supporting a plaintiff's claim is merely colorable or not significantly probative such that no reasonable person could find for him on his claim, summary judgment is appropriate. Erickson v. Board of County Commissioners, 801 F.Supp. 414, 418 (D.Colo. 1992) (citations omitted). The non-moving party cannot rest upon "the mere allegations or denials of [his or her pleading] . . . ." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). He/she must go beyond 7
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the pleadings and establish through admissible evidence that there is a genuine issue of material fact that must be resolved by the trier of fact. Celotex Corp., 477 U.S. at 324. The non-moving party cannot raise issues of material fact such as will preclude summary judgment simply by means of argument; contentions must be supported by specific facts. Bauer v. Southwest Denver Mental Health Center, Inc., 701 P.2d 114, 117 (Colo.App. 1985). B. The Plaintiff's Interest In The Validity Of The Limited Access Area is Identical To The Interests Of The Plaintiffs In the Citizens Case. Therefore, Both Identity Of Issue And Privity Are Established.

In Benson v. Town of Nunn, Colorado, 52 F.Supp. 2d 1210 (D.Colo. 1999), the court considered a challenge to the Town's zoning ordinance by the Plaintiffs, Robert and Renee Grigsby. The court observed that in a prior state court action brought by the Town of Nunn seeking to enjoin Ike and Lurena King from violating the zoning ordinance, the state court held the ordinance valid and entered an order enjoining the Kings from violating the zoning ordinance. In Benson, the court also observed that in another state court matter, the court entered a permanent injunction against Randy and Glenda Benson from violating the same zoning ordinance. Robert and Renee Grigsby were not parties in either of these state court actions, although both were present at the hearing in the King case, and Renee Grigsby testified. Benson, at 1214. In its discussion, the Benson court observed that the doctrine of collateral estoppel, or issue preclusion, bars a claim if the issue is identical to an issue actually litigated and necessarily decided in the prior action, the plaintiff was a party or in privity with a party in the prior action, there was a final judgment on the merits in the prior action, and the plaintiff had a full and fair opportunity to 8
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litigate the issue in the prior action. Benson, at 1214 citing, Clark v. Haas Group, Inc., 953 F.2d 1235, 1237-38 (10th Cir. 1992). The issue of whether a claim or cause of action is the same as the one previously decided "is determined by the injury for which relief is demanded, and not the legal theory on which the person asserting the claim relies." Benson, at 1213, citing Wilkinson v. Pitkin County Bd. of County Comm'rs, 142 F.3d 1319, 1322 (10th Cir. 1998). In a motion for summary judgment submitted by the Town of Nunn, the Town contended that although Robert and Renee Grigsby were not parties in the earlier proceedings, they had privity with the other plaintiffs because they were present at the hearing in the King case, and Renee Grigsby testified. In determining the issue of privity, the court held as follows: Parties are in privity when the party in the litigation has adequately represented the interests of the non-party, or when there is a substantial identity of interests between a party and a non-party such that the non-party is "virtually represented" in the litigation. Public Service Co. v. Osmose Wood Preserving, Inc., 813 P.2d 785, 787 (Colo.App. 1991) (quoting Aerojet-General Corp. v. Askew, 511 F.2d 710 (5th Cir. 1975)). In this matter, although Robert and Renee Grigsby were not parties to the prior litigation, their interests in the validity of the zoning ordinance would have been identical to the other Plaintiffs herein. As such, Robert and Renee Grigsby were in privity in the prior litigation with the other Plaintiffs herein. Benson, at 1214. In the present case, the Plaintiff's remaining First Amendment claim demands relief for the exact same alleged injury that the group, Citizens for Peace in Space, alleged in their case before Judge Matsch. As observed in this Court's order of September 19, 2005, "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 of the security zone." This Court framed the Plaintiff's First 9
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Amendment claim as raising the issue of whether the exclusion of Plaintiff from the public streets within that security zone violated Plaintiff's First Amendment rights. Order, p. 7. In the Citizens case, the Plaintiff's argued this exact same issue, that their exclusion from the temporary limited access area around the Broadmoor Hotel violated their First Amendment rights. Accordingly, the First Amendment claim in the present case is identical to the issue actually litigated and necessarily decided in the prior action. Therefore, both identity of interest and privity are established. Benson, at 1213-14; Exhibit J. In addition, the plaintiffs in the Citizens case were represented by two extremely capable attorneys from reputable law firms who volunteered their services to the ACLU of Colorado to prosecute the case. There was substantial contact between Mr. Hildenbrandt and his attorney, and the Citizens plaintiffs and their attorneys during the Citizens case. Upon information and belief, Mr. Hildenbrandt's attorney, Bill Durland, is a member of Citizens for Peace in Space. Exhibit K, deposition of Barbara Huber, 53:11-25. Mr. Durland has attended meetings and demonstrations organized and/or attended by the Citizens Group, and has spoken on camera several times espousing their views. Exhibit L, aired media tape. During the course of the Citizens litigation, Mr. Durland was in contact with attorneys for the Citizens group, who shared information with Mr. Durland and Mr. Hildenbrandt. In Mr. Hildenbrandt's response to Defendant's April 5, 2005 motion for summary judgment, Mr. Hildenbrandt obtained access to a deposition taken in the Citizens case, and used portions of such deposition as an exhibit to his response. Exhibit M. Both Mr. Hildenbrandt and his attorney attended portions of the Citizens trial. Accordingly, even though the holding in Benson does not require such contacts to establish privity, such close contacts exist in this case. Therefore, 10
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privity between Mr. Hildenbrandt and the Citizens plaintiffs exists, as do all of the other elements of collateral estoppel, precluding another trial on the same issue. C. Plaintiff's First Amendment Claim Must Be Dismissed Since He Cannot Prevail On Such Claim Under The Undisputed Facts Of This Case.

Mr. Hildenbrandt alleges that he wanted to enter into the temporary limited access area around the Broadmoor Hotel in order to look for demonstrators. However, it is undisputed that no demonstrators were ever allowed into the temporary limited access area. Accordingly, it is undisputed that Mr. Hildenbrandt was looking in the wrong place. It is also undisputed that several demonstrations took place outside of the temporary limited access area. See Amended Complaint, ¶11. Therefore, for the Plaintiff to prevail in this case, he would have to convince a jury that his First Amendment rights were violated by being prevented from entering a limited access area to look for people who were not there. Undersigned counsel has found no case law which would support a successful First Amendment claim under these facts. Mr. Hildenbrandt has openly and truthfully stated that his intention was not to demonstrate within the security zone, but to seek, and perhaps speak, to demonstrators. Since no demonstrators were within the limited access area, Mr. Hildenbrandt sought to do something that was impossible. For Mr. Hildenbrandt to prevail on a First Amendment claim under such circumstances would be a bizarre result, opening the gates for speculative First Amendment claims.

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VI. CONCLUSION The First Amendment claims in the Citizens case are identical to those in the present case. The Citizens group was ably represented and there was substantial contact between Mr. Hildenbrandt and his attorney and the Citizens group and their attorneys throughout the Citizens litigation. As such, Mr. Hildenbrandt was "virtually represented" in the Citizens litigation. Accordingly, Mr. Hildenbrandt is collaterally estopped from trying his First Amendment claim again before this Court.

Dated this 18th day of October 2005. Respectfully submitted, PATRICIA K. KELLY City Attorney/Chief Legal Officer Reg. No. 014408

//s// 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 October 18th, 2005, I electronically filed the foregoing MOTION TO DISMISS 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 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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