*Also admitted to practice in California†Also admitted to practice in New York ‡Also admitted to practice in Wyoming
Also admitted to practice in New York,not yet licensed in Colorado
www.KLN-law.comDarold W. KillmerDavid A. Lane*
Mari Newman*Lisa R. SahliLauren L. FontanaTiffany J. DrahotaFaisal SalahuddinSarah M. Morris
September 3, 2012
Seth Brigham v. City of Boulder, Colorado
Dear Mr. Carr:As you well know, the district court recently denied Boulder’s attempt to obtain a permanentrestraining order against Seth Brigham. It was and remains our position, as well as that of thecourt, that the actions complained of by Boulder were all protected by the First Amendment tothe United States Constitution. The court cogently set out the First Amendment case law onpoint in denying your effort to violate Seth Brigham’s right to free speech and to petition hisgovernment for redress.It appears to me that Boulder’s efforts to silence Mr. Brigham amounted to both retaliation forhis protected speech activity and an abuse of process. In the Motion for a TRO, you citeexamples of Mr. Brigham sending “disturbing emails” to members of the City Council. Inreality, every email sent was protected speech and involved allegations by Mr. Brigham of misconduct and conflicts of interest on the part of members of the City Council. You sought touse the court system to silence a vocal critic of Boulder city government.Abuse of process is a common law tort and is cognizable under §1983 of the federal civil rightsact so long as it also results in a violation of federal constitutional law such as the FirstAmendment.
See Cook v. Sheldon,
41 F.3d 73, 77 (2d Cir 1994). In Colorado, abuse of processrequires proof that: 1) defendants had an ulterior purpose in the use of judicial proceedings; 2)willful actions by defendant in the use of process that are not proper in the regular conduct of aproceeding; and 3) damages.
Hewitt v. Rice,
154 P.3d 408, 414 (Colo. 2007). It is my contentionthat Seth Brigham can prove each of these elements in a federal lawsuit against Boulder.