Free Motion to Dismiss - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00023-LTB-CBS THOMAS MINK, Plaintiff, v. SUSAN KNOX, a Deputy District Attorney working for the 19th Judicial District Attorney's Office, in her individual capacity, Defendant. ______________________________________________________________________________ DEFENDANT'S RENEWED MOTION TO DISMISS ______________________________________________________________________________ Defendant Susan Knox, by and through her counsel, David R. Brougham, Esq. and Andrew D. Ringel, Esq. of Hall & Evans, L.L.C., hereby submits this Renewed Motion to Dismiss, and as grounds therefore states as follows: INTRODUCTION AND PROCEDURAL HISTORY Plaintiff Thomas Mink filed this lawsuit alleging inter alia Defendant Susan Knox, in her capacity as a Deputy District Attorney, violated his constitutional rights pursuant to 42 U.S.C. § 1983, as well as his statutory rights under the Privacy Protection Act, 42 U.S.C. § 2000aa, and the Electronic Communications Privacy Act, 18 U.S.C. § 2703. [See Doc. 1]. Plaintiff filed a First Amended and Supplemented Complaint on February 19, 2004. [See Doc. 14]. On April 9, 2004, Ms. Knox filed a Motion to Dismiss or in the Alternative for Summary Judgment. [See Doc. 22]. On October 26, 2004, this Court issued its Memorandum Order and Opinion granting Ms. Knox's Motion to Dismiss. This Court concluded Plaintiff failed to state any cognizable

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Privacy Protection Act or Electronic Communications Act claim. In addition, this Court also held Ms. Knox was entitled to absolute immunity Plaintiff's 42 U.S.C. § 1983 Fourth Amendment claim because she acted in a quasi-judicial capacity when she reviewed and approved the search warrant affidavit for the Greeley Police Department. See Mink v. Salazar, 344 F.Supp.2d 1231, 1235-1240 (D. Colo. 2004). Plaintiff filed a Notice of Appeal of this Court's determination on November 24, 2004. [See Doc. 48]. On appeal, the United States Court of Appeals for the Tenth Circuit affirmed in part and reversed in part. First, the Tenth Circuit affirmed this Court's dismissal of the

Plaintiff's Privacy Protection Act claim. See Mink v. Suthers, 482 F.3d 1244, 1257-58 (10th Cir. 2007). Second, however, the Tenth Circuit reversed this Court's determination Ms. Knox was entitled to absolute quasi-judicial immunity from Plaintiff's 42 U.S.C. § 1983 claim. Id. at 12581263. At the conclusion of its opinion, the Tenth Circuit noted: For the foregoing reasons, we conclude the district court erred in dismissing Mink's damages claim on the ground that it was barred by the doctrine of absolute immunity. The deputy district attorney, however, may be entitled to qualified immunity if she reasonably concluded probable cause existed to support the warrant application, or that the application of the Supreme Court's First Amendment cases to the criminal libel statute was not clearly established under the circumstances here. The district court did not address the application of qualified immunity in these circumstances, and we decline to do so in the first instance. Accordingly, we remand that issue to the district court. Id. at 1263. The United States Supreme Court denied Ms. Knox's petition for writ of certiorari on January 22, 2008. See Knox v. Mink, 128 S.Ct. 1122 (2008). On January 29, 2008, Ms. Knox filed her Notice of Denial of Petition for Writ of Certiorari and Renewal of Motion to Dismiss Plaintiffs' Third Claim for Relief Against Susan

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Knox. [See Doc. 57]. On February 27, 2008, this Court held a Status/Scheduling Conference in this matter. [See Doc. 63]. At the Status/Scheduling Conference, this Court directed Ms. Knox to file a Renewed Motion to Dismiss. Ms. Know now does so. ARGUMENT I. DEFENDANT SUSAN KNOX IS ENTITLED TO QUALIFIED IMMUNITY FROM THE PLAINTIFF'S REMAINING 42 U.S.C. § 1983 FOURTH AMENDMENT CLAIM Defendant Susan Knox is entitled to qualified immunity from the Plaintiff's 42 U.S.C. § 1983 Fourth Amendment claim against her as a matter of law. First, Plaintiff cannot establish Ms. Knox's activities in reviewing the search warrant affidavit prepared by Detective Ken Warren violated Plaintiff's constitutional rights because probable cause existed to support the issuance of the search warrant. Second, even assuming arguendo that Plaintiff states any viable violation of his Fourth Amendment rights, Ms. Knox is still entitled to qualified immunity because Plaintiff cannot demonstrate Ms. Knox's actions of reviewing the search warrant affidavit prior to its submission to the district court violated any clearly established law. Accordingly, Ms. Knox is entitled to qualified immunity from Plaintiff's 42 U.S.C. § 1983 claim. A. QUALIFIED IMMUNITY PRINCIPLES After an individual defendant raises the affirmative defense of qualified immunity, the burden shifts to the plaintiff. Scull v. New Mexico, 236 F.3d 588, 595 (10th Cir. 2000); Adkins v. Rodriguez, 59 F.3d 1034, 1036 (10th Cir. 1995). At that point, "[t]he plaintiff initially bears a heavy two-part burden when the defendant pleads the defense of qualified immunity." Mick v. Brewer, 76 F.3d 1127, 1134 (10th Cir. 1996); Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir. 1995). The plaintiff must demonstrate: (1) the defendant's conduct violated the law; and (2) the law was clearly established when the alleged violation occurred. Pueblo Neighborhood

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Health Centers, Inc. v. Losavio, 847 F.2d 642, 646 (10th Cir. 1988). Only if the plaintiff establishes the defendant violated clearly established law, does the burden return to the defendant. County of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5 (1998); Mick, 76 F.3d at 1134. Applying these principles, a plaintiff must first demonstrate the individual defendant's conduct violated the law by coming forward with specific facts to establish the violation. Taylor v. Meacham, 82 F.3d 1556, 1559 (10th Cir.), cert. denied, 519 U.S. 871 (1996). "Plaintiff has the `burden to show with particularity facts and law establishing the inference that defendant violated a constitutional right.'" Abeyata By & Through Martinez v. Chama Valley Ind. Sch. Dist. No. 19, 77 F.3d 1253, 1255 (10th Cir. 1996) (quoting Walter v. Morton, 33 F.3d 1240, 1242 (10th Cir. 1994)); Peterson v. Jensen, 371 F.3d 1199, 1202 (10th Cir. 2004). A plaintiff suing public officials must set forth specific facts showing the personal involvement of each named individual defendant. Green v. Branson, 108 F.3d 1296, 1302 (10th Cir. 1997); Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996). Conclusory, nonspecific and generalized allegations of constitutional deprivations are insufficient. Pride v. Does, 997 F.2d 712, 716 (10th Cir. 1993). In Currier v. Doran, 242 F.3d 905 (10th Cir.), cert. denied, 534 U.S. 1019 (2001), the Tenth Circuit concluded the United States Supreme Court's decision in Crawford-El v. Britton, 523 U.S. 574 (1998), abrograted the Tenth Circuit's prior "heightened pleading requirement" for qualified immunity cases. Currier, 242 F.3d at 911-17. However, even under the notice pleading standards of Fed. R. Civ. P. 8, the non-conclusory facts combined with reasonable inferences drawn therefrom must demonstrate a defendant violated a plaintiff's constitutional rights. See, e.g., Ruiz v. McDonnell, 289 F.3d 1173 (10th Cir. 2002); Moffett v.

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Haliburton Energy Services, Inc., 291 F.3d 1227, 1231 (10th Cir. 2002); Hackford v. Babbitt, 14 F.3d 1457, 1465 (10th Cir. 1994). Second, the plaintiff must also prove the relevant law was clearly established when the alleged violation occurred. "To be clearly established, `[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" Albright, 51 F.3d at 1535 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). The right must be clearly established in a "particularized" sense. Anderson, 483 U.S. at 640. For a right to be "`particularized,' there must ordinarily be a Supreme Court or Tenth Circuit decision on point, or `clearly established weight of authority' from other courts." Wilson v. Meeks, 52 F.3d 1547, 1552 (10th Cir. 1995) (quoting Medina v. City and County of Denver, 960 F.2d 1493, 1498 (10th Cir. 1992)). See also Wilson v. Layne, 526 U.S. 603, 616 (1999). Ultimately, this Court "must determine whether the right allegedly violated has been `clearly established in a more relevant sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.'" Denver Justice & Peace Committee, Inc. v. City of Golden, 405 F.3d 923, 928 (10th Cir. 2005) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). B. FOURTH AMENDMENT PRINCIPLES The Fourth Amendment protects against unreasonable searches and seizures. Renalde v. City & County of Denver, 807 F.Supp. 668, 671 (D. Colo. 1992). "The central inquiry of the Fourth Amendment is the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security." Terry v. Ohio, 392 U.S. 1, 19 (1968). The standard of probable cause for reviewing search warrant affidavits it the totality of the circumstances test

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announced by the Supreme Court in Illinois v. Gates, 462 U.S. 213 (1983). "The task of the issuing magistrate is simply to make a practical, common-sense decision, whether, given all of the circumstances set forth in the affidavit before him, including the `veracity' and `basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Gates, 462 U.S. at 238. A probable cause determination requires "less evidence which would justify condemnation" and instead "imports a seizure made under circumstances which warrant suspicion." Gates, 462 U.S. at 235. In Gates, the Supreme Court stressed "probable cause is a fluid concept--turning on the assessment of probabilities in particular factual contexts--not readily, or even usefully, reduced to a neat set of legal rules." Gates, 462 U.S. at 232. Importantly, a court reviewing whether probable cause existed to support a search warrant must interpret a search warrant in a commonsense manner and not with the post-hoc clarity of hindsight. "Reasonable minds frequently may differ on the question whether a

particular affidavit establishes probable cause, and we have thus concluded that the preference for warrants is most appropriately effectuated by according great deference to a magistrate's determination." United States v. Leon, 468 U.S. 897, 914 (1984). The duty of a court reviewing a previous probable cause determination is simply to ensure that a substantial basis exists for concluding probable cause existed. Gates, 462 U.S. at 238-39 (quoting Jones v. United States, 362 U.S. 257, 271 (1960)). This Court must keep in mind the "presumption of validity with respect to the affidavit supporting the search warrant." Franks v. Delaware, 438 U.S. 154, 171 (1978). "[A]fter-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review." Gates, 462 U.S. at 236. Further, "the resolution of doubtful or

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marginal cases in this area should be largely determined by the preference to be accorded to warrants." Gates, 462 U.S. at 237 n. 10 (quoting United States v. Ventresca, 380 U.S. 102, 109 (1965)). In the context of a search warrant, the Supreme Court has held that the standard of qualified immunity is one of objective reasonableness, and that "[o]nly where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable, will the shield of immunity by lost." Malley v. Briggs, 475 U.S. 335, 344-45 (1986). Finally, and critical for the instant case, no alteration of the above probable cause standard occurs because Plaintiff alleges the search warrant was directed at materials protected by the First Amendment. The Supreme Court explicitly rejected any such conclusion in New York v. P.J. Video, Inc., 475 U.S. 868 (1986), as follows: "We think, and accordingly hold, that an application for a warrant authorizing the seizure of materials presumptively protected by the First Amendment should be evaluated under the same standard of probable cause used to review warrant applications generally." Id. at 875. This Court has followed this rule. See, e.g., Clarke v. Mesa County Sheriff's Office, 1987 U.S. Dist. LEXIS 15257 at *5-6 XX (D. Colo. Nov. 27, 1987) (unpublished disposition attached hereto as Exhibit A). C. PLAINTIFF CANNOT DEMONSTRATE ANY VIOLATION OF HIS CONSTITUTIONAL RIGHTS BY DEFENDANT SUSAN KNOX Application of the above Fourth Amendment principles to Ms. Knox's review of the information provided to her by the Greeley Police Department demonstrates it was objectively reasonable for her to conclude that probable cause existed to support the search warrant under these circumstances.

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Plaintiff attached the Affidavit for Search Warrant Under Rule 16 completed by Greeley Police Detective Ken Warren to the First Amended and Supplemented Complaint. [See First Amended and Supplemented Complaint, ¶ 30, Exhibit F]. Because of its importance to the probable cause issue before this Court, relevant portions of Detective Warren's Affidavit are quoted in full below: Your affiant, Ken Warren, being first duly sworn, upon his oath says: that he has reason to believe that (on the person) (at the place) or (in the vehicle) known as: . . . . there is now located certain property, to wit: . . . . which property: (1) (2) is stolen or embezzled. is designed or intended for use or which is or has been used as a means of committing a criminal offense or the possession of which is illegal; would be material evidence in a subsequent criminal prosecution; Based upon the following facts: Your affiant is a police officer for the City of Greeley Police Department and has gained the following information from reading the reports and speaking to fellow officers, from reading the statements of the victim and witnesses and through personal investigation. Your affiant is currently assigned to the Greeley Police Department, Weld County Forensics Laboratory. Your affiant is responsible for conducting forensic computer analysis on evidence submitted, and for investigating Internet and online related investigations. Your affiant has undergone extensive training on the recovery and documentation of evidence relating to computers, Internet activity, and data recovery from digital media. Your affiant has been examining digital media in excess of Three (3) years.

(3)

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On November 14th, 2003, Junius Peak reported to the Greeley Police Department that he was the victim of what he believed to be criminal libel. He reported to Detective Warren that he discovered an Internet Website at the address of www.geocities.com/thehowlingpig. He discovered this website after being sent a copy of the site printed by one of his colleagues at The University of Northern Colorado. He told Detective Warren that there were several copies of this site being passed around campus. Detective Warren went to the website via an Internet connection at the police department. Upon reading the articles posted on the website, Detective Warren found that the site was apparently designed with a logo that mimics The University of Northern Colorado. The website also has a picture of Junius Peak on the main page as well as other pages. The picture of Mr. Peak is from the University of Northern Colorado's Website. The picture has been altered to include sunglasses, a smaller nose and a small moustache similar to that of Hitler's. The person in the photograph is identified on the website as Junius Puke. The picture is accompanied by a biography of Mr. Puke. According to the site, its purpose is to draw attention to issues rampant in Northern Colorado and Elsewhere. The body of the website includes three articles at the time of this affidavit. The articles consist of statements about various topics and persons relating to the Northern Colorado Area and The University of Northern Colorado. According to Mr. Peak, there are many statements in the website and its accompanying articles that are defamatory to his character. He told Detective Warren that the statements made on the website about him are false. He feels that the articles have brought him embarrassment and exposed him to public hatred, contempt and ridicule. He feels they have impeached his honesty, integrity, and reputation within the community. When asked to site a few specific examples of this criminal libel, Mr. Peak cited the following examples: 1) The website uses his photograph and identifies him as the Editor in Chief Junius Puke. The website states that he "gambled in tech stocks" in the 90's. The website states: The dark glasses are to avoid being recognized since he fears the good natured ribbing of his colleagues on Wall Street where he managed to luck out and ride the tech bubble of the nineties like a $20 whore and make a fortune.

2) 3)

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4)

The website contains many opinions and articles about The University of Northern Colorado, the Greeley Community and Northern Colorado. As this is an "editorial" column, those statements are attributed to Mr. Puke, and therefore Mr. Peak. Mr. Peak feels that these opinions are not his but have been attributed to him.

. . . . [See Warren Affidavit, at 1-2, attached as Exhibit F to Plaintiff's First Amended and Supplemented Complaint]. Fundamentally, the issue before this Court is whether probable cause existed to support the issuance of a search warrant, not whether probable cause existed to arrest or charge the Plaintiff with the crime of criminal libel. Plaintiff's prior briefing on Ms. Knox's Motion to Dismiss inappropriately attempts to confuse the two inquiries. Thus, this Court must determine whether based on the information reviewed by Ms. Knox contained in Detective Warren's Affidavit quoted above there was "a fair probability that contraband or evidence of a crime will be found in a particular place." Gates, 462 U.S. at 238. Judged against this standard, it is unequivocally clear that probable cause existed to support the issuance of a search warrant in this case. All Ms. Knox did in this case was review Detective Warren's Affidavit to determine whether she believed it was appropriate to submit the information to a district court judge as part of a search warrant application. Based on the totality of the information contained in Detective Warren's Affidavit, it was objectively reasonable for Ms. Knox, in reviewing the Affidavit for the limited purpose she did, to conclude that a search of the residence where the Plaintiff lived and operated his computer to place information on the internet website had the fair probability to lead to the discovery of evidence that could be used in a subsequent criminal prosecution. At the time of the search warrant application and Ms. Knox's

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review of Detective Warren's Affidavit, neither Ms. Knox nor anyone else had made any determination whether to prosecute Plaintiff for criminal libel. Instead, the Greeley Police Department was simply gathering evidence as a result of a complaint of criminal libel which would subsequently be analyzed and assessed by both the police and the District Attorney's Office to determine whether an arrest or any charges were warranted. The issue here is not whether a criminal libel prosecution of the Plaintiff was warranted based on the information available to Ms. Knox and Detective Warren. The issue here was also not whether Ms. Knox had sufficient information to conclude that Junius Peak was a public figure or that the Plaintiff's internet website activities were protected by the First Amendment. Instead, the only issue is whether based on the information Ms. Knox reviewed in Detective Warren's Affidavit it was reasonable for her to conclude there was sufficient probable cause to justify requesting a search warrant from a district court judge. So long as Ms. Knox's probable cause assessment was reasonable, which it clearly was in this case, she is at least entitled to qualified immunity. Malley, 475 U.S. at 344-45. Resolution of the issue of whether Ms. Knox violated Plaintiff's Fourth Amendment constitutional rights by this Court requires no additional analysis. D. NO VIOLATION OF CLEARLY ESTABLISHED LAW EXISTS HERE Alternatively, even if this Court could conclude that some breach of Plaintiff's constitutional rights occurred, Defendant Knox is still entitled to qualified immunity from the Plaintiff's 42 U.S.C. § 1983 Fourth Amendment claim because no clearly established law exists concerning any alleged constitutional violation by Defendant Knox. To be clearly established, the constitutional right allegedly violated must be clearly established in a "particularized" sense. Anderson, 483 U.S. at 640. To be particularized for

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qualified immunity purpose, prior precedent must provide the contours of the right sufficiently clear so that a reasonable official would understand that what she is doing violates that right. Denver Justice & Peace Committee, 405 F.3d at 928; Albright, 51 F.3d at 1535. Here, the question for the appropriate qualified immunity analysis is whether a reasonable deputy district attorney in December 2003 would know that reviewing a search warrant affidavit for probable cause prior to its submission to a district court judge for the issuance of a search warrant violated clearly established law. Compare Cortez v. McCauley, 438 F.3d 980, 988 (10th Cir. 2006) ("This inquiry, it is vital to note, must be undertaken in light of the specific context of the case, not as a broad general proposition."); Harris v. Board of Ed.,, 105 F.3d 591, 596n (11th Cir. 1996) ("Therefore, the question for the qualified immunity analysis is whether a reasonable Board member on July 9, 1990 would have known that relieving Harris of his duties as Superintendent while continuing to pay him his salary and benefits violated clearly established law."). No precedent establishing the contours of the constitutional right allegedly violated by the Defendant Knox exists. No Supreme Court, Tenth Circuit, or the clearly established weight of authority from other federal courts would provide any foreknowledge to Defendant Knox that her actions were violative of the Plaintiff's clearly established constitutional rights. Fortunately, this Court need not rule on the issue of Ms. Knox's qualified immunity on a tabula rasa. Instead, the Tenth Circuit has previously addressed a qualified immunity issue in a nearly identical factual situation. In Douglas v. Dobbs, 419 F.3d 1097 (10th Cir. 2005), cert. denied, 546 U.S. 1138 (2006), the Tenth Circuit determined an assistant district attorney was entitled to qualified immunity from a plaintiff's 42 U.S.C. § 1983 Fourth Amendment claim premised on allegations the assistant district attorney approved the form of the materials

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supporting a search warrant application prior to their submission to a state court. Id. at 10991100. The Tenth Circuit concluded the constitutional right at issue was not clearly established to overcome the assistant district attorney's qualified immunity. In pertinent part, the Tenth Circuit reasoned as follows: Douglas argues that her right to privacy in her prescription medication records was violated when ADA Dobbs approved a proposed order Sergeant Spear used, after obtaining authorization from a court, to search Douglas's prescription records. That proposed Motion and Order, Douglas alleges, lacked sufficient indicia of probable cause, and that by approving its submission to a magistrate judge, Dobbs approved a warrantless search of her prescription records. Accordingly, Douglas fashions her claim against ADA Dobbs as a violation of her Fourth Amendment right to be free from an unreasonable search of her prescription records in which she has a privacy interest. She asserts this violation against ADA Dobbs, not for the execution of a warrantless search, but for Dobbs' role in instructing Sergeant Spear with regard to the "Motion and Order to Produce Prescription Information" which he then used to obtain judicial authorization to execute the search. Douglas cites no statutory or case law to support her claim that the Fourth Amendment is implicated when district attorneys advise law enforcement officers about proposed motions or orders submitted to judges to obtain authorization to conduct searches. Instead, she merely cites to Katz v. United States, 389 U.S. 347, 351, 19 L.Ed.2d 576, 88 S.Ct. 507 (1967) for the general propositions that the Fourth Amendment protects people not places, and that searches of private areas must be made pursuant to warrants supported by probable cause. This citation, however, fails to support an allegation that a district attorney violates a constitutional right by the mere act of authorizing the submission of a Motion and proposed Order to the magistrate judge for the requested issuance of an order approving a search. Whether a warrant is required to conduct an investigatory search of prescription records, in contrast to the regulatory disclosures at issue in Whalen, is an issue that has not been settled, and is an issue we need not decide in the present case. Because Douglas cannot rely merely upon identifying an abstract right to privacy protected by the Fourth Amendment and then allege that Dobbs has violated it, she has failed to carry her burden under the threshold inquiry for qualified immunity. . . . Absent a showing that Dobbs' actions in authorizing the submission of the Motion and proposed Order to the magistrate judge violated a clearly established constitutional right, qualified immunity applies and Douglas's suit must fail.

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Id. at 1102-1103. The factual similarities between Douglas and the instant case are telling. In both cases, the prosecutor reviewed documents presented to the prosecutor by the police before their submission to a court. The only factual difference between the two cases is that in Douglas the assistant district attorney reviewed a request for a regulatory search and in the instant case Ms. Knox reviewed an affidavit for a search warrant. Based on the Tenth Circuit's conclusion in Douglas that no clearly established Fourth Amendment constitutional right existed to support the plaintiff's 42 U.S.C. § 1983 claim against the assistant district attorney for her pre-judicial review activities, no basis exists to suggest any clearly established law exists to overcome Ms. Knox's qualified immunity based on her virtually identical activities almost two years prior to when Douglas was decided. In sum, because Plaintiff cannot demonstrate any violation of clearly established law by Ms. Knox under these circumstances, Ms. Knox is entitled to qualified immunity from the Plaintiff's 42 U.S.C. § 1983 Fourth Amendment claim as a matter of law even if this Court concludes her actions violated the Plaintiff's Fourth Amendment constitutional rights. CONCLUSION In conclusion, for all of the foregoing reasons, Defendant Susan Knox respectfully requests this Court dismiss the Plaintiff's remaining 42 U.S.C. § 1983 Fourth Amendment Claim with prejudice, and for all other and further relief as this Court deems just and appropriate.

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Dated this 25th day of March 2008. Respectfully submitted,

s/ Andrew D. Ringel . David R. Brougham, Esq. Andrew D. Ringel, Esq. Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, CO 80202-2052 303-628-3453 Fax: 303-293-3238 [email protected] [email protected] ATTORNEYS FOR DEFENDANT

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CERTIFICATE OF SERVICE (CM/ECF) I HEREBY CERTIFY that on the 25th day of March, 2008, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: A. Bruce Jones, Esq. Holland & Hart, L.L.P. [email protected] Marcy G. Glenn, Esq. Holland & Hart, L.L.P. [email protected] Mark Silverstein, Esq. ACLU 400 Corona Street Denver, CO 80218 [email protected] [email protected]

s/ Loree Trout, Secretary to David R. Brougham, Esq. Andrew D. Ringel, Esq. Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, CO 80202-2052 303-628-3453 Fax: 303-293-3238 [email protected] [email protected]

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ATTORNEYS FOR DEFENDANT

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