motion for a temporary restraining order (PDF) - Denver Post Blogs

Case 1:11-cv-03048-REB Document 2 Filed 11/22/11 USDC Colorado Page 1 of 15 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLORADO 

Civil Action No. 11-cv-03048-REB-MJW 

OCCUPY DENVER an unincorporated association, 

AMBERLYNN RESTORICK, 

TERRY BURNSED, 

ROBERT PIPER, 

ROB KUYKENDAL, 

CATHERINE LINDSEY, 

NATALIE WYATT, and 

DANIEL GARCIA, 

v. 

Plaintiffs, 

CITY AND COUNTY OF DENVER, 

MICHAEL HANCOCK, in his official capacity as MAYOR OF DENVER, 

GERALD R. WHITMAN in his official capacity as DENVER’S ACTING CHIEF OF 

POLICE, 

Defendants. 

MOTION FOR A TEMPORARY RESTRAINING ORDER 

Plaintiffs by their attorneys David A. Lane, Lisa R. Sahli, and Tiffany 

Drahota of the law firm of KILLMER, LANE & NEWMAN, LLP, and Kenneth 

Padilla of the law firm PADILLA & PADILLA, PLLC, hereby submit this Motion for a 

Temporary Restraining Order Pursuant to F.R.C.P. 65(b).


I. INTRODUCTION AND BACKGROUND 

All statements of fact set forth in the previously filed Complaint are hereby 

incorporated into this Brief as though set forth fully herein 1 . 

II. 

PARTIES 

All statements of fact regarding the parties set forth in the previously filed 

Complaint are hereby incorporated into this Brief as though set forth fully herein. 

Furthermore, all Plaintiffs have standing as they have been injured by the 

conduct complained of in this motion 2 . 

III. 

LEGAL ARGUMENT 

A. Plaintiffs Have a Particularly Strong Basis For Meeting The 

Temporary Restraining Order and Preliminary Injunction Standards in 

a First Amendment Case 

Defendants’ selective enforcement of certain municipal ordinances against 

Occupy Denver protesters and their supporters, including Plaintiffs, constitutes 

retaliation in violation of their First Amendment rights to free expression and 

assembly and to petition their government for a redress of grievances. 

Defendant’s conduct similarly deters the exercise of legitimate constitutionally 

protected activity. Defendants’ unconstitutional retaliation creates a strong 

presumption that a temporary restraining order should issue. 

1 All factual statements in this motion as well as in the Complaint will be supported by 

sworn witness testimony at a hearing in this matter. 

2 Douglas Friednash, the Denver City Attorney, has been emailed the Complaint in this 

case and has acknowledged receipt thereof to counsel in an email yet he nevertheless 

insisted upon personal service which has now been completed. He is also being emailed 

a copy of this pleading. 

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To establish a First Amendment retaliation claim, a plaintiff must show 

that (1) he was engaged in constitutionally protected activity, (2) the 

government’s actions caused him injury that would chill a person of ordinary 

firmness from continuing to engage in that activity, and (3) the government’s 

actions were substantially motivated as a response to his constitutionally 

protected conduct. Howards v. McLaughlin, 634 F.3d 1131, 1144 (10th Cir. 

2011); see also Nielander v. Board of County Com’rs of County of Republic, 

Kansas, 582 F.3d 1155 (10th Cir. 2009). 

A Plaintiff in a First Amendment case must meet four conditions to obtain 

a Temporary Restraining Order: A Plaintiff must show that (1) he will suffer 

irreparable harm unless the injunction issues; (2) there is a substantial likelihood 

the Plaintiff ultimately will prevail on the merits; (3) the threatened injury to the 

Plaintiff outweighs any harm the proposed injunction may cause the opposing 

party; and (4) the injunction would not be contrary to the public interest. Am. 

Civil Liberties Union v. Johnson, 194 F.3d 1149, 1155 (10th Cir. 1999); see also 

Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir. 1980); Heideman v. S. Salt Lake 

City, 348 F.3d 1182, 1189 (10th Cir. 2003). In a First Amendment case, the 

second condition—likelihood of success on the merits—plays a decisive role. 

Plaintiffs’ likelihood of success on the merits is especially strong here, because 

Defendants’ selective enforcement of the Denver municipal ordinances 

unquestionably retaliates against, and thereby violates, Plaintiffs’ First 

Amendment Rights. 

B. Plaintiffs Are Likely to Succeed on the Merits Because Defendants’ 

Selective Enforcement of Denver Municipal Ordinances §§ 39-3 54-71, 

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54-482, and 49-246 Retaliates Against Plaintiffs for the Exercise of Their 

First Amendment Rights 

Since September 2011, Plaintiffs have exercised, have witnessed the 

exercising of, or wish to exercise, their First Amendment rights in support of the 

Occupy Denver movement by sitting-in and picketing Lincoln and Civic Center 

Parks; honking their car horns; stopping on the side of the road to donate to the 

protesters or to simply show their support; and placing small items on the 

sidewalks nearby the Occupy Denver protests. Since October 13, 2011, 

Defendants have selectively enforced Denver Revised Municipal Code § 54-71 

(the “no horn-honking ordinance”), § 54-482 (the “no stopping ordinance”), § 49- 

246 (the “right-of-way ordinance”) and § 39-3 (the “park curfew ordinance”) in an 

increasingly severe, systematic effort to silence the Occupy Denver movement. 

Defendants’ enforcement has been substantially motivated as a response to 

Plaintiffs’ exercise of their First Amendment rights in support of Occupy Denver, 

and has reasonably chilled Plaintiffs from continuing to exercise their First 

Amendment rights in support of Occupy Denver. Plaintiffs have a substantial 

likelihood of prevailing on the merits of a First Amendment retaliation claim. 

Notably, to obtain a temporary restraining order, “it is not necessary that the 

plaintiff’s right to a final decision, after a trial, be absolutely certain, wholly 

without doubt; if the other elements are present (i.e., the balance of hardships 

tips decidedly toward plaintiff), it will ordinarily be enough that the plaintiff has 

raised questions going to the merits so serious, substantial, difficult and doubtful 

as to make them a fair ground for litigation and thus for more deliberate 

investigation.” Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir. 1980). 

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Plaintiffs here have more than met this test. 

i. Plaintiffs’ Have A First Amendment Right to Sit-In and 

Picket to Express Their Support for Occupy Denver and 

the Selective Enforcement of the Park Curfew Ordinance 

Has Chilled The Plaintiffs’ Exercise of That Right. 

The First Amendment protects “speech,” which includes expressive 

conduct. See United States v. Grace, 461 U.S. 171, 176 (1983). To determine 

whether particular conduct is communicative such to fall within the protection of 

the First Amendment, courts consider two elements: (1) “whether an intent to 

convey a particularized message was present,” and (2) “whether the likelihood 

was great that the message would be understood by those who viewed it.” 

Texas v. Johnson, 491 U.S. 397, 404 (1989) (upholding the First Amendment 

right to burn the American flag during a protest rally). 

Sit-ins and picketing such as Plaintiffs’ in Lincoln and Civic Center Parks 

has long been deemed expressive conduct protected by the First Amendment. 

For example, the Supreme Court has extended First Amendment protection to 

the wearing of armbands by students to protest U.S. military involvement in 

Vietnam, Tinker v. Des Moines Independent Community School District, 393 

U.S. 503, 505 (1969); a sit-in by African-Americans in a “whites only” area to 

protest segregation, Brown v. Louisiana, 383 U.S. 131, 141-42 (1966); the 

wearing of American military uniforms in protest of American involvement in 

Vietnam, Schacht v. United States, 398 U.S. 58 (1970), and even picketing in 

support of a wide variety of causes, see, e.g., Food Employees v. Logan Valley 

Plaza, Inc, 391 U.S. 308, 313-314 (1968); Grace, 461 U.S. at 176. Notably, sit- 

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ins such as that in Brown v. Lousiana were granted First Amendment protection 

despite the fact that such sit-ins technically violated the law. 

Plaintiffs and their Occupy Denver cohorts are no different than the civil 

rights and war protesters that preceded them. Their conduct is expressive and 

protected by the First Amendment: they are sitting-in, camping, and picketing in 

a public forum to protest economic inequality and publicize their demand for a 

more just and economically egalitarian society. Yet Defendants’ selective 

enforcement of the Park Curfew Ordinance disregards the fact that Denver’s 

Civic Center Park is rooted in the protection of this type of speech from 

governmental intrusion. Defendants’ selective enforcement of the Park Curfew 

Ordinance seeks only to chill Plaintiffs’ speech and has in fact done so by 

clearing some protesters from the park during evening hours and by intimidating 

protesters who would otherwise be present from attending Occupy Denver. 

Plaintiffs are fearful that they would be issued tickets for attending Occupy 

Denver protests during the hours prohibited by the Park Curfew Ordinance, even 

if they remained nearby, but outside of, the park. Defendants’ actions chilled 

the Plaintiffs’ firm commitment to engaging in protected First Amendment 

activity. Defendants, motivated by a desire to quash the Occupy Denver protest 

movement, selectively targeted Occupy Denver protesters in response to their 

expressive, constitutionally protected conduct. As such, Defendants have 

engaged in First Amendment retaliation. 

i. Plaintiffs Have a First Amendment Right to Temporarily Set 

Items Down on the Sidewalk Near the Occupy Denver Protests 

and The Selective Enforcement of the Right-of-Way Ordinance 

Has Chilled the Plaintiffs’ Exercise of That Right. 

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Defendants have selectively enforced the Right-of-Way Ordinance to 

prevent the placement of items on the sidewalk nearby the Occupy Denver 

protests. “Sidewalks, of course, are among those areas of public property that 

traditionally have been held open to the public for expressive activities and are 

clearly within those areas of public property that may be considered, generally 

without further inquiry, to be public forum property.” See Grace, 461 U.S. at 179 

(finding the display of a sign with a written message on it expressive conduct 

protected by the First Amendment). 

Defendants have unconstitutionally attempted to close the sidewalks as a 

forum for Occupy Denver speech, by selectively enforcing the right-of-way 

ordinance against persons who set any item down while protesting at or 

associating with the Occupy Denver protests. “Even if an official’s actions would 

be ‘unexceptionable if taken on other grounds,’ when retaliation against 

Constitutionally-protected speech is the but-for cause of that action, this 

retaliation is actionable and subject to recovery.” See Howards, 634 F.3d at 

1143. The fact that the police may have had probable cause to arrest some of 

the protesters for violating this municipal ordinance is not fatal to Plaintiffs’ claim 

that the Denver Police are in fact retaliating against Plaintiffs, and others, for 

exercising their Constitutional rights. Id. at 1145 (holding that “the presence of 

probable cause is not fatal to Mr. Howards’ First Amendment retaliation claim). 

In Howards, the Secret Service arrested a man in retaliation for the man’s 

statements to then-Vice-President Cheney. The defendants claimed that they 

arrested Mr. Howards not only because of his statements but also because they 

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had probable cause to believe Mr. Howards may have assaulted then-Vice- 

President Cheney. Howards was permitted to proceed to trial on his First 

Amendment retaliation claim, despite the fact that the Tenth Circuit found there 

was probable cause to arrest him. The defendants in this §1983 suit argued that 

when an officer has probable cause to arrest a plaintiff for any crime, it is 

irrelevant that a plaintiff may have engaged in protected speech prior to or 

during the arrest. Id. The Tenth Circuit rejected this argument, specifically 

declining to extend a “no probable-cause” requirement to First Amendment 

retaliation cases. Id. at 1148. 

In this case, Plaintiffs were engaged in expressive protest activities in a 

public forum. Plaintiffs watched the Denver police issue tickets to other 

protesters for merely placing items on the sidewalk, while protesting or to 

express support for the protests. Plaintiffs became fearful that the police would 

soon issue tickets to them. Motivated by a desire to silence the Occupy Denver 

movement, Defendants retaliated against, and thereby chilled the Plaintiffs’ firm 

commitment to press ahead in the exercise of First Amendment rights as well as 

those of others who have observed Defendant’s unlawful conduct. Defendants 

thereby engaged in First Amendment retaliation. 

ii. 

Plaintiffs Have a First Amendment Right to Donate to Occupy 

Denver and The Selective Enforcement of the No-Stopping 

Ordinance Has Chilled the Plaintiffs’ Exercise of That Right. 

The enforcement of the No Stopping Ordinance against Plaintiffs, supporters 

of Occupy Denver, should also be restrained. The retaliatory selective 

enforcement by Defendants violates Plaintiffs’ First Amendment rights of political 

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association and expression because Plaintiffs’ wished to donate money, 

clothing, and other items to support the Occupy Denver protesters. Plaintiffs’ 

desire to donate to express their agreement with the political and social goals of 

the Occupy Denver movement. 

“The First Amendment affords the broadest protection to such political 

expression in order ‘to assure (the) unfettered interchange of ideas for bringing 

about of political and social changes desired by the people.’” Buckley v. Valeo, 

424 U.S. 1, 15 (1976) (quoting Roth v. United States, 354 U.S. 476, 484 (1957)). 

Accordingly, the First Amendment protects political association as well as 

political expression. Buckley at 15. Spending money for political ends falls within 

the First Amendment’s protection of speech and political association. See 

Federal Election Commission v. Colorado Republican Federal Campaign 

Committee, 533 U.S. 431, 442 (2001) (citing Buckley, 424 U.S. at 14-23). 

Here, Plaintiffs momentarily stopped to donate to the Occupy Denver 

protesters. Such conduct was constitutionally protected activity; and, but for the 

fact that this brief stopping was to support the Occupy Denver protesters, 

Defendants would not have enforced the No Stopping Ordinance. The Plaintiffs 

did not, or would not have, impeded traffic or obstructed the roadway for 

pedestrians or other vehicles. Plaintiffs noticed Denver Police issuing tickets to 

people briefly stopping to make donations to the protesters. Once Plaintiffs saw 

this, they became fearful that the Police would issue tickets to them if they made 

donations to the Occupy Denver protesters. Ultimately, Plaintiffs stopped making 

donations to the protesters to avoid being ticketed. Defendants are thus 

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selectively enforcing the No-Stopping Ordinance to retaliate against the 

Plaintiffs, and others, for exercising their First Amendment rights. “Even if an 

official’s actions would be ‘unexceptionable if taken on other grounds,’ when 

retaliation against Constitutionally-protected speech is the but-for cause of that 

action, this retaliation is actionable and subject to [First Amendment] recovery.” 

See Howards, 634 F.3d at 1143. 

iii. 

Plaintiffs Have A First Amendment Right to Honk Their Horn to 

Express Support for Occupy Denver and the Selective 

Enforcement of the No-Honking Ordinance Has Chilled The 

Plaintiffs’ Exercise of That Right. 

Like those who express support for Occupy Denver by sitting-in or 

picketing, those who express support by honking their car horns engage in 

speech protected by the First Amendment. Plaintiffs intended to convey a 

message when they briefly honked their horns: to support and energize 

protesters with the elevated sound of their car horn. Occupy Denver protesters, 

as well as the police, understood this intent. The protesters understood the 

intent of the car horns because when they heard the horns honking, the 

protesters’ spirits elevated; and frequently the protesters communicated back in 

the form of cheering. Furthermore, the police clearly understood the horn 

honking to be in support of the protesters. That is exactly why they began 

setting up police cars to pull over anyone who honked in support of the 

protesters. Thus, honking a horn as an expression of solidarity constitutes 

expressive conduct protected by the First Amendment. See Goedert v. City of 

Ferndale, 596 F.Supp.2d 1027, 1030-31 (E.D. Mich. 2008) (deeming horn- 

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honking in support of protesters to be speech protected by the First 

Amendment). 

Honking a horn to express support for protesters squarely falls within the 

protection of the First Amendment, and Defendants retaliated against Plaintiffs 

for that speech when they issued citations for the No Horn Honking Ordinance. 

Once Plaintiffs noticed that the police were ticketing cars for giving support to 

the protesters by way of car horn, the Plaintiffs became fearful that they police 

would ticket them as well. This caused Plaintiffs to stop honking in support of 

the Occupy Denver protesters. The motivation behind the selective enforcement 

of the horn honking municipal provision is to retaliate against the Plaintiffs for 

exercising their First Amendment rights. The law is well-settled that “the First 

Amendment prohibits government officials from subjecting an individual to 

retaliatory actions, including criminal prosecutions, for speaking out.” See 

Howards, 634 F.3d at 1143. Defendants must be restrained from ticketing those 

who honk their horns in support of the protesters because the practice inflicts 

irreparable harm on the Plaintiffs and is illegally motivated by a desire to 

retaliate against the exercise of the First Amendment. 

C. A Temporary Restraining Order Must Issue Because Plaintiffs Are 

Suffering Irreparable Harm, and the Balance of the Harms Results in 

Plaintiffs’ Favor. 

Once Plaintiffs have shown that their freedom of speech is burdened, as 

Plaintiffs have here, the other injunction conditions will typically be met. Where 

First Amendment rights are burdened, there is a presumption of irreparable 

harm. See Cmty. Communications v. City of Boulder, 660 F.2d 1370, 1376 (10th 

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Cir. 1981); Johnson, 194 F.3d at 1163. The reason for the presumption is selfevident. 

As the Supreme Court put it, “[t]he loss of First Amendment freedoms, 

for even minimal periods of time, unquestionably constitutes irreparable injury.” 

Elrod v. Burns, 427 U.S. 347, 373-74 (1976); see also Utah Licensed Beverage 

Ass’n v. Leavitt, 256 F.3d 1061, 1076 (10th Cir. 2001) (court assumes 

irreparable injury where there is a deprivation of speech rights). Plaintiffs are 

currently suffering irreparable harm and will undoubtedly continue to suffer 

irreparable harm unless the restraining order issues to stop the police from 

enforcing Denver municipal ordinances in retaliation for Plaintiffs’ exercise of 

their First Amendment rights. 

The irreparable injury to the Plaintiffs, absent a temporary restraining 

order, far outweighs any alleged harm to the defendants if a restraining order 

issues. The balance of harms test will most often be met in a First Amendment 

case where a plaintiff demonstrates a likelihood of success on the merits as 

Plaintiffs have done herein. A threatened injury to Plaintiffs’ constitutionally 

protected speech will usually outweigh the harm, if any, the defendants may 

incur from being unable to enforce what is in all likelihood an unconstitutional 

statute or directive. See ACLU v. Johnson, 194 F.3d at 1163. This is especially 

true where restraining Defendants would actually give the Denver Police time to 

fight crime rather than trample on First Amendments rights of people engaged in 

constitutionally protected political speech. At a minimum, Defendants will suffer 

no injury if ordered to refrain from retaliating against people for supporting 

Occupy Denver. 

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Finally, Plaintiffs also satisfy the “public interest test” because restraining 

orders and injunctions blocking state action that would otherwise interfere with 

First Amendment rights are consistent with the public interest. Elam Constr. v. 

Reg. Transp. Dist., 129 F.3d 1343, 1347 (10th Cir.1997) (“The public 

interest...favors plaintiffs’ assertion of their First Amendment rights.”); Utah 

Licensed Beverage Ass’n, 256 F.3d at 1076; Johnson, 194 F.3d at 1163; Million 

Man March v. Cook, 922 F. Supp. 1494, 1501 (D. Colo. 1996) (stating that “it is 

axiomatic that the preservation of First Amendment rights serves everyone’s 

best interest.”). 

IV. 

CONCLUSION 

As Justice Brandeis once observed: 

Those who won our independence believed that the final end of the State 

was to make men free to develop their faculties, and that, in its 

government, the deliberative forces should prevail over the arbitrary. They 

valued liberty both as an end, and as a means. They believed liberty to be 

the secret of happiness, and courage to be the secret of liberty. They 

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, 

without free speech and assembly, discussion would be futile; that, with 

them, discussion affords ordinarily adequate protection against the 

dissemination of noxious doctrine; 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. 

Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring). 

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For the reasons stated, Plaintiffs respectfully request that this Court hold 

a hearing on this Motion for a Temporary Restraining Order, grant this Motion 

for a Temporary Restraining Order and prohibit Defendants from enforcing 

Denver Revised Municipal Codes §§ 49-246, 54-71, and 54-482 against the 

Occupy Denver Protesters and Supporters. 

Dated this 22 nd day of November 2011. 

KILLMER, LANE & NEWMAN, LLP 

s/ David A. Lane 

David A. Lane 

Lisa R. Sahli 

Tiffany Drahota 

1543 Champa Street, Suite 400 

Denver, CO 80202 

(303) 571-1000 

dlane@kln-law.com 

lsahli@kln-law.com 

tdrahota@kln-law.com 

Padilla & Padilla, PLLC 

s/ Kenneth A. Padilla 

Kenneth A. Padilla 

1753 Lafayette Street 

Denver, CO 80218 

Phone: (303) 832-7145 

Facsimile:(303) 832-7147 

E-mail: Padillaesq@aol.com 

ATTORNEYS FOR PLAINTIFFS 

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CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that on this 22 nd day of November, 2011, a true and correct 

copy of the foregoing BRIEF IN SUPPORT OF MOTION FOR TEMPORARY 

RESTRAINING ORDER was filed with the Clerk of Court using the CM/ECF system 

and was emailed to the Denver City Attorney. 

Doug Friednash 

doug.friednash@denvergov.org 

s/ David A. Lane 

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