Gardner protesters beat charges, but their defense might not work in his new office

“If people are exercising their rights in a quasi-public forum, the police have to let them do it,” said Denver civil rights attorney David Lane.

Senator Cory Gardner speaks at the Western Conservative Summit, July 21, 2017. (Kevin J. Beaty/Denverite)

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The lobby of the Chase building where U.S. Sen. Cory Gardner had his Denver office until this week might be private property, but it’s public enough — people come and go without having to pay money or state their purpose — that police should not have cited protesters there for trespassing in a January protest, a Denver judge ruled Tuesday.

“It’s a fantastic ruling by an excellent judge because this sends the message to law enforcement that if people are exercising their rights in a quasi-public forum, the police have to let them do it,” said David Lane, a prominent civil rights attorney who represented Dawn Russell and Elizabeth Moseley in the case.

Charges against people involved in more recent protests at Gardner’s office have been dropped in one of those cases and are still pending in the other.

This defense might not work in Gardner’s new office.

Lane said other defendants in that case took plea deals for deferred prosecution, meaning they wouldn’t be charged unless they repeated their actions — protesting in such as a way that they might be arrested. But Russell and Moseley, longtime members of the disability rights group ADAPT, didn’t accept those terms and were prepared to go to trial.

Their attorney filed a motion to dismiss the charges based on Colorado’s constitution, which has more expansive free speech protections than the U.S. Constitution. The case that governs this issue in Colorado courts is Bock vs. Westminster Mall, in which courts found that people retain certain rights on privately owned property that functions as a public space.

“A mall, a shopping mall, it’s the equivalent of a town square in the days the constitution was drafted,” Lane said. “If (Gardner) chose to put his office in the Chase Bank building, the Chase Bank building people are going to have to put up with people trying to petition for redress of grievances.”

This probably would not be the case, though, in Gardner’s new office location inside the U.S. Customs House. It’s still open to constituents, but federal buildings, while publicly owned, are not necessarily public squares.

“The inside of the customs house is not a traditional place for protest,” Lane said.

What about the other cases?

This case is a different case than the one in which the Denver City Attorney’s Office just dismissed charges against five protesters from Democratic Socialists of America, as was widely reported Tuesday.

And it’s a different case from the 10 ADAPT protesters who were arrested after a 58-hour sit-in at Gardner’s office in June. Charges of trespassing, interference and obstruction are still pending in that case.

Why dismiss charges in one case and not the other? Denver spokeswoman Jenna Espinoza said the cases have different facts, and the sit-in case is being considered separately.

“Since the sit-ins occurred on two separate occasions, there are two separate cases that need to be evaluated,” she said in an email. “Currently our City Attorney’s Office is examining evidence in the case of the ADAPT protestors and a final determination should be made very soon.”

One difference in the DSA case is that Gardner was listed as a victim in the case — and subpoenaed by the defendants. The senator asked that charges be dismissed in that case. Gardner is not a victim in the ADAPT case, though his one of his office staff is.

Lane said he’s been trying to reach the City Attorney’s Office to get an answer.

“We don’t know why charges were dismissed against one group of protesters but not another,” he said.

The sit-in case may turn out differently because the protesters stayed so long in Gardner’s office, but the ruling by Denver County Court Judge Clarisse Gonzalez about the January arrests essentially said the lobby was fair game as long as a public official has his office in the building.

“A person wishing access to the senator’s rented public office space (paid for with public funds) to address a non-violent opinion to the senator or to appropriately speak with the senator to redress grievances must, by Chase building design travel through these areas to do so,” she wrote.

“… The Chase building’s policy, which resulted in banishment of members of the ADAPT group based solely on the possession of something as unimposing as a handmade pasteboard sign reflecting a political message, violated the defendants’ constitutional rights to freedom of speech.”

Gonzalez also emphasized that the protesters did not impede normal business operations in the building. A different set of facts or behaviors by the protesters might have resulted in a different ruling, she wrote.

In particular, she rejected a claim from building management that protesters were “blocking” the elevator. Instead, they were waiting to enter the elevator, but the elevator was not working because building management had disabled it.

This article has been updated with additional information from the ruling.



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Erica Meltzer

Author: Erica Meltzer

Erica Meltzer covers government and politics. She's worked for newspapers in Colorado, Arizona and Illinois and once won a First Amendment Award by showing up in the wrong place at the wrong time. She served in the Peace Corps in Paraguay and can swear fluently in Guarani. She gets emotional about public libraries. Contact Erica Meltzer at 303-502-2802, emeltzer@denverite.com or @meltzere.