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Case 1:19-cv-00150-CMA-SKC Document 19 Filed 03/05/19 USDC Colorado Page 1 of 2

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLORADO

Civil Action No. 19-cv-150-CMA-SKC

CLIFTON WILLMENG,

Plaintiff,

v.

CITY OF LAFAYETTE, COLORADO;


CHRISTINE BERG, in her individual capacity,

Defendants.

PLAINTIFF’S NOTICE OF ACCEPTANCE OF


DEFENDANTS’ OFFER OF JUDGMENT

Pursuant to Rule 68(a) of the Federal Rules of Civil Procedure, Plaintiff Clifton

Willmeng, by and through his counsel, hereby accepts and provides notice that he has accepted

Defendants’ Offer of Judgment Pursuant to Fed.R.Civ.P. 68, proffered by Defendants on

February 20, 2019, and attached hereto as Exhibit 1. Plaintiff respectfully requests that this

Court enter judgment in his favor.

Respectfully submitted this 5th day of March 2019.

KILLMER, LANE & NEWMAN, LLP

s/ Andy McNulty
___________________________
Andy McNulty
Tania Valdez
Killmer, Lane & Newman, LLC
1543 Champa Street, Suite 400
Denver, Colorado 80202
(303) 571-1000
(303) 571-1001 fax
amcnulty@kln-law.com
tvaldez@kln-law.com

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Case 1:19-cv-00150-CMA-SKC Document 19 Filed 03/05/19 USDC Colorado Page 2 of 2

Attorneys for Plaintiff

CERTIFICATE OF SERVICE

I hereby certify that on March 5, 2019, I filed the foregoing via CM/ECF, and the
CM/ECF system will send notification to the following:

Kevin Chen
Michiko Brown
Davis Graham & Stubbs
1550 17th Street, Suite 500
Denver, CO 80202
303.892.7229
303.893.1379 fax
kevin.chen@dgslaw.com
Miko.Brown@dgslaw.com

Counsel for Defendants

KILLMER, LANE & NEWMAN, LLP

s/ Jesse Askeland
_________________________
Jesse Askeland

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Case 1:19-cv-00150-CMA-SKC Document 19-1 Filed 03/05/19 USDC Colorado Page 1 of 3

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLORADO

Civil Action No. 1:19-cv-00150-CMA

CLIFTON WILLMENG,

Plaintiff,

v.

CITY OF LAFAYETTE, COLORADO; and


CHRISTINE BERG, in her individual capacity,

Defendants.

DEFENDANTS’ OFFER OF JUDGMENT PURSUANT TO


FEDERAL RULE OF CIVIL PROCEDURE 68

Pursuant to Federal Rule of Civil Procedure 68, Defendants City of Lafayette and

Christine Berg (collectively, “Defendants”), by and through their undersigned counsel, hereby

submit the following Offer of Judgment (the “Offer”):

1. Judgment may be entered jointly against Defendants and in favor of Plaintiff

Clifton Willmeng (“Plaintiff”) in the total amount of $5,000.00 (five thousand dollars), plus

reasonable attorney’s fees and costs accrued to date as determined pursuant to 42 U.S.C. §1988

and Federal Rule of Civil Procedure 54(d).

2. This judgment shall be in full satisfaction of all federal and state law claims or

rights that the Plaintiff may have to damages, or any other form of relief, against Defendants

arising out of the acts alleged in the Complaint.

3. If not timely accepted within 14 days, the Offer shall be deemed withdrawn

pursuant to the provisions of Federal Rule of Civil Procedure 68.

4549476.2
Case 1:19-cv-00150-CMA-SKC Document 19-1 Filed 03/05/19 USDC Colorado Page 2 of 3

Dated: February 20, 2019

s/Michiko Brown
Michiko Brown
Kevin Chen
DAVIS GRAHAM & STUBBS LLP
1550 17th Street, Suite 500
Denver, Colorado, 80202
Telephone: 303.892.9400
Facsimile: 303.893.1379
Email: miko.brown@dgslaw.com
Email: kevin.chen@dgslaw.com

Attorneys for Defendants

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Case 1:19-cv-00150-CMA-SKC Document 19-1 Filed 03/05/19 USDC Colorado Page 3 of 3

CERTIFICATE OF SERVICE

I hereby certify that on this 20th day of February, 2019, I caused the foregoing Offer of

Judgement to be delivered via email and US mail, addressed as follows:

Darold W. Killmer
Andrew McNulty
Tania Valdez
Killmer, Lane & Newman, LLP
1543 Champa Street, Suite 400
Denver, CO 80202
(303) 571-1000
(303) 571-1001
dkillmer@kln-law.com
amcnulty@kln-law.com
tvaldez@kln-law.com

s/Bernadette Marquez
Bernadette Marquez

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Case 1:19-cv-00150-RPM Document 1 Filed 01/17/19 USDC Colorado Page 1 of 21

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLORADO

Civil Action No. ______

CLIFTON WILLMENG,

Plaintiff,

v.

CITY OF LAFAYETTE, COLORADO;


CHRISTINE BERG, in her individual capacity,

Defendants.

COMPLAINT

Plaintiff Clifton Willmeng, by and through his attorneys Darold W. Killmer, Andrew

McNulty, and Tania Valdez of KILLMER, LANE & NEWMAN, LLP, respectfully allege for his

Complaint as follows:

INTRODUCTION

1. In 2018, social media platforms, like Facebook, provide “perhaps the most

powerful mechanisms available to a private citizen to make his or her voice heard.” Packingham

v. North Carolina, 137 S. Ct. 1730, 1737 (2017). Facebook allows any person with an internet

connection to “become a town crier with a voice that resonates farther than it could from any

soapbox.” Reno v. American Civil Liberties Union, 521 U.S. 844, 870 (1997). Defendant

Christine Berg, Mayor and City Councilperson for Lafayette, has misused this powerful tool to

stifle the voice of those who are critical of her.

2. Plaintiff Clifton Willmeng is a concerned citizen who has posted comments

critical of Defendant Berg on her Facebook page. For that, Defendant Berg removed his

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comments and blocked him from posting any further messages. Defendant Berg’s practice of

stifling Mr. Willmeng’s valid criticism of her is unconstitutional, and this suit seeks to end it.

JURISDICTION AND VENUE

3. This action arises under the Constitution and laws of the United States and is

brought pursuant to 42 U.S.C. § 1983. Jurisdiction is conferred on this Court pursuant to 28

U.S.C. § 1331.

4. Jurisdiction supporting Plaintiff’s claim for attorney fees and costs is conferred by

42 U.S.C. § 1988.

5. Venue is proper in the District of Colorado pursuant to 28 U.S.C. § 1391(b). All

of the events alleged herein occurred within the State of Colorado, and all of the parties were

residents of the State at the time of the events giving rise to this Complaint.

PARTIES

6. At all times relevant to this complaint, Plaintiff Clifton Willmeng was a citizen of

the United States of America and a resident of the State of Colorado.

7. At all times relevant to this Complaint, Defendant City of Lafayette, Colorado

(“Lafayette”) was a Colorado municipal corporation.

8. At all times relevant to this Complaint, Defendant Christine Berg was a citizen of

the United States and a resident of the State of Colorado. At all relevant times, Defendant Berg

was acting within the scope of her official duties and employment and under color of state law in

her capacity as a City Councilmember and Mayor for Lafayette.

FACTUAL ALLEGATIONS

Plaintiff Clifton Willmeng is a well-known, outspoken activist against fracking, and


resident of Lafayette, who has been critical of Defendant Berg.

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9. Plaintiff Cliff Willmeng is a father of two, a husband, and registered nurse who

lives and works in Lafayette. Mr. Willmeng moved to Lafayette eight years ago to raise a family

in a place that is safe for people and children and that would allow a healthy and secure

upbringing. One year after moving to Lafayette, Mr. Willmeng learned about the massive oil

shale that exists under much of the northern front range when he read in the local paper about a

protest taking place in his neighboring town of Erie, Colorado against hydraulic fracturing in that

community.

10. The protest Mr. Willmeng learned of was being conducted by the parents of

students at Red Hawk Elementary School. At that time, Encana Corporation was planning to drill

a well pad adjacent to the school for purposes of conducting hydraulic fracturing operations. Mr.

Willmeng felt that the parents were reasonably concerned for the safety of their children.

11. Hydraulic fracturing, or “fracking,” is the process of injecting liquid at high

pressure into subterrean rocks so as to force open existing fissure and extract oil or gas.

12. Mr. Willmeng’s concerns about fracking extend beyond his community. Mr.

Willmeng believes that the proliferation of fracking effects all of Colorado’s citizens negatively.

13. And Mr. Willmeng’s concerns about fracking are based in scientific evidence.

Last year, a study by the Colorado Department of Public Health and Environment found that

within 500 feet of some fracking wells in Colorado there were increased air concentrations of

benzene, acetaldehyde and formaldehyde. The study found that those increased concentrations

also carried with them increased cancer risks.

14. Fracking has also been associated with increased seismic activity. Research has

shown a demonstrable link between wastewater injection, a process that’s used to dispose of

waste fluids from fracking, and the incidence of earthquakes in a region. One study in particular

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has shown that there is a direct correlation between the depth of wastewater injection sites in a

region and the magnitude of earthquakes in that region.

15. Moreover, fracking uses huge amounts of water, which must be transported to the

fracking site, at significant environmental cost. Preliminary studies have demonstrated that there

is a risk that carcinogenic chemicals used during the fracking process may escape and

contaminate groundwater around the fracking site.

16. Mr. Willmeng has also seen the tangible consequences of allowing fracking in

Colorado. In April 2017, a home in Firestone, Colorado exploded, killing two men and seriously

injuring one woman. The explosion was caused by a gas leak from a fracking well, owned by

Anadarko Petroleum Corporation, that was less than two hundred feet away from the home.

17. Eventually, Mr. Willmeng discovered that drilling operations were moving

toward Lafayette. Mr. Willmeng, along with many other people within the community, began

organizing to prevent oil and gas drilling in Lafayette. Since that time, Mr. Willmeng has

regularly seen reports of fires, explosions, spills, release of toxic chemical emissions, pipeline

leaks and ruptures, flaring, and hazardous material vehicle accidents and/or spills associated with

fracking in his community. Mr. Willmeng truly believes, and has seen evidence that, oil and gas

drilling is a life and death threat to his children, the local environment, the global climate, and

every person in the area.

18. Mr. Willmeng, in coordination with many other concerned citizens, has been

compelled to engage in political life as a result of the threats posed by oil and gas expansion in

Colorado. Mr. Willmeng has, in coordination with many other concerned citizens, attended city

council meetings, created local and state ballot initiatives, organized educational forums, and

attempted to make his and his community’s concerns known to government in every imaginable

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way. Mr. Willmeng is one of the founders of East Boulder County United, a group that advocates

against oil and gas expansion in Boulder county and neighboring counties (including Weld and

Adams counties).

19. Mr. Willmeng is also an outspoken critic of Defendant Berg, who is the Mayor of

Lafayette. Defendant Berg, while saying that she is concerned about the dangers of oil and gas

expansion in Colorado, has been taking actions that advance the oil and gas industry’s agenda in

Lafayette. Mr. Willmeng has been an outspoken critic of Defendant Berg and her history of

saying one thing while doing another.

20. Mr. Willmeng noticed that, as early as 2012, Defendant Berg established herself

as a figure that opposed democratic decision making on municipal oil and gas matters by

refusing to allow a ban on fracking in Lafayette onto the 2013 ballot.

21. Defendant Berg also worked to ensure that a ban that was passed by voters was

never implemented through a number of actions, including supporting a motion to disallow the

group who had initially petitioned to have the fracking ban placed on the ballot from intervening

to defend the ban. The ban was eventually struck down after a challenge by the oil and gas

industry, while the City of Lafayette government, including Defendant Berg, who didn’t support

the ban was half-heartedly defending it in court.

22. Defendant Berg works for the Environmental Defense Fund, an organization that

promotes market-based drilling solutions and pro-fossil fuel politicians.

Mr. Willmeng turns to Facebook to better advocate against fracking and speak out against
Defendant Berg’s complicity with the oil and gas industry.

23. Mr. Willmeng found that when he sent emails to his representatives his concerns

were at times outright ignored or met with evasive answers. Because of this, Mr. Willmeng

moved onto social media, including Facebook, to interact with local officials. Mr. Willmeng

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noticed that on social media the discussion was transparent, recorded, and progressed in real

time. Mr. Willmeng truly believes that social media remains the most efficient expression of

political debate and discussion on the issue of the expansion of oil and gas expansion in

Colorado.

24. Mr. Willmeng began commenting on the Facebook page of Defendant Berg

because he found it to be one of the most effective ways of both communicating directly with

Defendant Berg and with other Lafayette constituents of Defendant Berg.

Facebook is a public forum in which political speech is engaged in, disseminated, and
debated.

25. Facebook is a social media platform with more than 2.23 billion monthly active

users, as of June 30, 2018. In the United States, approximately two-thirds of adults are Facebook

users. Facebook allows its users to publish messages of any length (or publish Facebook

“posts”), to republish other users’ posts, and to respond to (or “comment on”) other users’ posts.

Speech on Facebook ranges from birthday wishes to heartfelt reconnections to political

discourse. Particularly relevant to this lawsuit is the amount of speech by, to, and about the

government at all levels that occurs on Facebook on a daily basis.

26. Facebook users are those with an account that has been created on the platform. A

Facebook user’s “profile” includes the user’s name, a description of themselves, biographical

information, work history, and other web pages maintained by the user. A Facebook “profile” is

a personal account on Facebook.

27. In contrast, a Facebook “page” is a user account created by a public figure. Many

public officials create Facebook user “pages” that represent their official capacity as a

government, or public, official. These pages are called “Community or Public Figure” pages and

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differ from personal Facebook user profiles in appearance and content. Facebook users who

maintain “pages” often describe their official position on their page.

28. By default, Facebook profiles and pages are visible to everyone with internet

access. Although non-users can view users’ Facebook webpages, they cannot interact with users

on the Facebook platform without an account.

29. A Facebook user’s webpage displays all posts generated by the user, with the

most recent posts appearing at the top of the page. This display is known as a user’s “timeline.”

When a user posts on Facebook, the user’s timeline immediately updates to include that post.

Anyone who can view a user’s public Facebook page can see the user’s timeline.

30. A user can post on their own timeline, or on another user’s timeline. Facebook

posts can include photographs, videos, and links. Users can post links to news articles.

31. By default, any Facebook user can comment on any other user’s posts or timeline.

Any Facebook user can also reply to another user’s comment on a third user’s post. The

collection of replies and replies-to-replies is sometimes referred to as a “comment thread.”

Facebook’s comment threads are a large part of why it is a social media platform. Comment

threads reflect multiple overlapping conversations among and across a group of users.

32. Facebook users are able to post and comment on Facebook public figure pages

freely, unless they are “banned.”

33. Defendant Berg maintains an official Facebook page. On the “Home” section of

her official Facebook page, Defendant Berg describes herself as “Lafayette Mayor Christine

Berg” on her page. Defendant Berg presents her page to the public as one she operates in her

official capacity rather than her personal capacity. Defendant Berg’s page is generally accessible

to the public at large without regard to political affiliation or any other limiting criteria. Any

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member of the public can view her posts. Any Facebook user who wants to follow Defendant

Berg’s page can do so and her page has 464 followers. Any Facebook user can also comment on

Defendant Berg’s post or post on her timeline, unless they have been blocked. Defendant Berg

uses her page to promote official government business and she uses to account to directly

communicate with her constituents in her official capacity as both a City Councilperson and

Mayor of Lafayette.

34. Below is a screenshot of the “Home” section of Defendant Berg’s official

Facebook page:

35. Defendant Berg’s official Facebook page also has an “About” section. In the

“About” section, Defendant Berg lists herself as the Mayor of Lafayette. She lists her contact

information as her official email address and phone number. Defendant Berg also notes that her

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official Facebook page is a place where she will post Lafayette community information and

updates, and allow for community comments.

36. Below is a screenshot of the “About” section of Defendant Berg’s official

Facebook page:

37. The comment threads associated with the posts on Defendant Berg’s Facebook

page are important forums for discussion and debate about government policy. Her page

functions as a digital town hall in which Defendant Berg communicates official Lafayette news

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and information to the public, and members of the public comment on that news and information

to both respond to Defendant Berg and to exchange views with other members of the public.

38. Below are screenshots of posts that appeared on the timeline associated with

Defendant Berg’s official Facebook page, providing information to members of the public and

asking for public engagement:

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39. Defendant Berg’s Facebook page is controlled completely by her in her official

capacity as City Councilperson and Mayor of Lafayette. Defendant Berg controls who can

comment on her timeline and who may comment on her posts.

40. By default, Facebook profiles and pages are visible to everyone with internet

access. Although non-users can view users’ Facebook webpages, they cannot interact with users

on the Facebook platform without an account.

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41. By default, any Facebook user can comment on any other user’s posts or timeline.

Any Facebook user can also reply to another user’s comment on a third user’s post. The

collection of replies and replies-to-replies is sometimes referred to as a “comment thread.”

Facebook’s comment threads are a large part of why it is a social media platform. Comment

threads reflect multiple overlapping conversations among and across a group of users. Defendant

Berg interacts with her constituents on her official Facebook page.

42. While Facebook profiles can be “protected” by users, which results in limits on

who can see the user’s timeline and who can search for their posts, Facebook pages cannot be

limited in this way. Facebook pages are inherently open to the public.

43. Users and creators of Facebook’s pages, however, can “ban” individuals. When a

user with a Facebook page “bans” an individual, that individual can no longer comment on the

user’s Facebook page.

44. If the banned user attempts to comment on a Facebook page that she or he has

been banned from, she or he will only be given the opportunity to share the post and not be

allowed to comment on the post. Banned users also cannot see other users’ comments on a post.

45. Below is a screenshot of what a user encounters when they are banned from

commenting on Defendant Berg’s Facebook page:

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46. Users and creators of Facebook’s pages also have the ability to delete other users’

posts on their timeline and other users’ comments on their posts.

Defendant Berg blocked Mr. Willmeng from her Facebook page and removed his
comments.

47. Mr. Willmeng is a Facebook user who has been blocked by Defendant Berg from

commenting on her Facebook page because he posted messages that were critical of her.

Defendant’s blocking of Mr. Willmeng prevents him from commenting on Defendant’s posts,

viewing comment threads associated with those posts, and from participating in comment

threads.

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48. In March 2017, Mr. Willmeng commented on a number of posts that Defendant

Berg made on her Facebook page. Mr. Willmeng’s comments were in support of the Lafayette

Climate Bill of Rights, which would have banned fracking in Lafayette. There posts were critical

of Defendant Berg, who had been obfuscating her position on the Lafayette Climate Bill of

Rights and, later, would move to stop the citizens of Lafayette from intervening to defend the

Lafayette Climate Bill of Rights from legal attack by the oil and gas industry.

49. At the time, Mr. Willmeng was a well-known anti-fracking activist in Lafayette.

He is the leader of the group East Boulder County United, which often demonstrates against

fracking in Boulder County, including in Lafayette. Defendant Berg knows that Mr. Willmeng

was, and is still, a well-known anti-fracking activist.

50. Because of Mr. Willmeng’s comments on her Facebook page, along with his

advocacy and speech against fracking in other forums, Defendant Berg blocked him from

commenting on her Facebook page and deleted the comments he had posted on her timeline.

51. Defendant Berg blocked Mr. Willmeng, and deleted his comment, in retaliation

for his comments on her posts. Particularly, Defendant Berg retaliated against Mr. Willmeng

because he posted comments and posts that were anti-fracking and critical of her position on the

issue of fracking. Her retaliatory actions were premised on Mr. Willmeng’s political opposition

to her views on fracking and his criticism of her on this issue.

52. Mr. Willmeng can no longer comment on posts of Defenant Berg’s Facebook

page. He can no longer interact with other users in comment threads. Each new Facebook post by

Defendant Berg represents another discussion Mr. Willmeng is foreclosed from participating in.

53. Defendant Berg’s blocking of Mr. Willmeng, and the deletion of his comments

and posts, was viewpoint-based. The blocking of Mr. Willmeng imposes an unconstitutional

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restriction on his participation in a designated public forum and his right to petition the

government for redress of grievances.

STATEMENT OF CLAIMS FOR RELIEF


FIRST CLAIM FOR RELIEF
42 U.S.C. § 1983 – First Amendment
Free Speech
(Plaintiff Against All Defendants)

54. Plaintiff hereby incorporates all other paragraphs of this Complaint as if fully set

forth herein.

55. At all times relevant to this Complaint, Defendant Berg was acting under the color

of law.

56. Plaintiff was engaged in First Amendment-protected speech in his commenting on

Defendant Berg’s official Facebook page.

57. Plaintiff’s speech was on a matter of public concern and did not violate any law.

58. By banning Plaintiff from her official Facebook page, and deleting his comments,

Defendant Berg prevented Plaintiff from exercising his First Amendment rights, including his

right to speak freely.

59. Defendant Berg’s banning of Plaintiff from commenting on posts on her official

Facebook page, and the deletion of her comments, was a viewpoint-based restriction on speech.

60. Defendant Berg’s official Facebook page is a designated public forum.

61. Defendant Berg’s conduct violated clearly established rights belonging to Plaintiff

of which reasonable persons in Defendant Berg’s position knew or should have known.

Viewpoint-based prior restraint on speech has been widely known as being unconstitutional for

more than eight decades. See Near v. Minnesota, 283 U.S. 697 (1931).

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62. Defendant Berg engaged in this conduct intentionally, knowingly, willfully,

wantonly, maliciously, and in reckless disregard of Plaintiff’s constitutional rights.

63. Defendant Berg, as Mayor and City Councilmember, is a final policymaker for

Lafayette, and her actions in this matter has the effect of Lafayette custom, policy, and practice.

64. Defendant Lafayette’s customs, policies, and/or practices were the moving force

behind Defendant Berg’s violation of Plaintiff’s constitutional rights.

65. Defendant Berg’s actions and/or omissions caused, directly and proximately,

Plaintiff to suffer damages. The acts and inactions of Defendant Berg caused Plaintiff damages

in that they were prevented from speaking freely on a matter of public concerns, among other

injuries, damages, and losses.

SECOND CLAIM FOR RELIEF


42 U.S.C. § 1983 – First Amendment
Right to Petition the Government
(Plaintiff Against All Defendants)

66. Plaintiff hereby incorporates all other paragraphs of this Complaint as if fully set

forth herein.

67. At all times relevant to this Complaint, Defendant Berg was acting under the color

of law.

68. Plaintiff was engaged in First Amendment-protected petitioning in his

commenting on Defendant Berg’s official Facebook page.

69. Plaintiff’s petitioning was on a matter of public concern and did not violate any

law.

70. By banning Plaintiff from her official Facebook page, and deleting his comments,

Defendant Berg prevented Plaintiff from exercising his First Amendment rights, including his

right to petition the government for redress of grievances.

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71. Defendant Berg’s banning of Plaintiff from commenting on posts on her official

Facebook page and the deletion of his comments was a viewpoint-based restriction on his right

to petition.

72. Defendant Berg’s conduct violated clearly established rights belonging to Plaintiff

of which reasonable persons in Defendant’s position knew or should have known.

73. Defendant Berg engaged in this conduct intentionally, knowingly, willfully,

wantonly, maliciously, and in reckless disregard of Plaintiff’s constitutional rights.

74. Defendant Berg, as Mayor Pro Tem and City Councilmember, is a final

policymaker for Lafayette, and her actions in this matter has the effect of Lafayette custom,

policy, and practice.

75. Defendant Lafayette’s customs, policies, and/or practices were the moving force

behind Defendant Berg’s violation of Plaintiff’s constitutional rights.

76. Defendant Berg’s actions and/or omissions caused, directly and proximately,

Plaintiff to suffer damages. The acts and inactions of Defendant Berg caused Plaintiff damages

in that they were prevented from petitioning his government for redress of his grievances, among

other injuries, damages, and losses.

THIRD CLAIM FOR RELIEF


42 U.S.C. § 1983 – First Amendment
Retaliation
(Plaintiff Against All Defendants)

77. Plaintiff hereby incorporates all other paragraphs of this Complaint as if fully set

forth herein.

78. At all times relevant to this Complaint, Defendant Berg was acting under the color

of law.

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79. Plaintiff was engaged in First Amendment-protected speech and petitioning in his

commenting on Defendant Berg’s official Facebook page.

80. Plaintiff’s speech was on a matter of public concern and did not violate any law.

81. Defendant Berg responded to Plaintiff’s First Amendment-protected activity with

retaliation, including but not limited to deleting his comments and banning him from

commenting on Defendant Berg’s official Facebook page.

82. Defendant Berg’s retaliatory actions were substantially motivated by Plaintiff’s

exercise of his First Amendment rights.

83. By banning Plaintiff and deleting his comments, Defendant Berg sought to punish

Plaintiff for exercising his First Amendment rights, to silence his future speech, to stop him from

petitioning, and to restrict his freedom of expression, along with the future speech and expression

of others. Defendant Berg’s retaliatory actions would chill a person of ordinary firmness from

engaging in First Amendment-protected activity.

84. Defendant Berg’s conduct violated clearly established rights belonging to Plaintiff

of which reasonable persons in Defendant Berg’s position knew or should have known.

Viewpoint-based prior restraint on speech has been widely known as being unconstitutional for

more than eight decades. See Near v. Minnesota, 283 U.S. 697 (1931). Retaliation against an

individual based on his First-Amendment-protected speech has been clearly established in the

Tenth Circuit for almost two decades. Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir. 2000).

85. Defendant Berg, as Mayor and City Councilmember, is a final policymaker for

Lafayette, and her actions in this matter have the effect of Lafayette custom, policy, and practice.

86. Defendant Lafayette’s customs, policies, and/or practices were the moving force

behind Defendant Berg’s violation of Plaintiff’s constitutional rights.

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87. Defendant Berg engaged in this conduct intentionally, knowingly, willfully,

wantonly, maliciously, and in reckless disregard of Plaintiff’s constitutional rights.

88. Defendant Berg’s actions and/or omissions caused, directly and proximately,

Plaintiff to suffer damages. The acts and inactions of Defendant Berg caused Plaintiff damages

in that they were prevented from petitioning his government for redress of his grievances and

were prevented from speaking freely on a matter of public concerns, among other injuries,

damages, and losses.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully request that this Court enter judgment in his favor

and against Defendants, and award them all relief as allowed by law and equity, including, but

not limited to the following:

a. Declaratory relief and injunctive relief 1;

b. Compensatory damages as allowed by law, including, but not limited to those for

past and future pecuniary and non-pecuniary losses, emotional pain, suffering,

inconvenience, mental anguish, loss of enjoyment of life, medical bills, and other

non-pecuniary losses;

c. Punitive damages for all claims as allowed by law in an amount to be determined

at trial;

d. Pre-judgment and post-judgment interest at the highest lawful rate;

1
Plaintiff would seek immediate injunctive relief, but Defendant Berg’s imminent resignation is
an intervening event that causes Plaintiff to simply seek injunctive relief through the normal
course of litigation. See Anthony Hahn, Lafayette Mayor Christine Berg resigning at month’s
end, BOULDER DAILY CAMERA, available at: http://www.dailycamera.com/lafayette-
news/ci_32387564/lafayette-mayor-christine-berg-resigning-at-months-
end?fbclid=IwAR2rpY9KTaWOuwoFWHGDVRfNHlr6F4kyZmv5JAsH6qLOYHP-
5wWCMLPm8rE.
20
Case 1:19-cv-00150-RPM Document 1 Filed 01/17/19 USDC Colorado Page 21 of 21

e. Attorney’s fees and costs; and

f. Such further relief as justice requires.

DATED this 17th day of January 2019.

KILLMER, LANE & NEWMAN, LLP

s/ Andy McNulty
____________________________________
Darold W. Killmer
Andy McNulty
Tania Valdez
1543 Champa Street, Suite 400
Denver, CO 80202
(303) 571-1000
(303) 571-1001
dkillmer@kln-law.com
amcnulty@kln-law.com
tvaldez@kln-law.com

ATTORNEYS FOR PLAINTIFF

21