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JACK BRANSON; KATHERINE CUMMINS; EVAN RAVITZ; TOM CUMMINS Plaintiffs, v. UNIVERSITY OF COLORADO; Defendant. ______________________________________ Attorneys for Plaintiffs: Robert J. Corry, Jr. #32705 Travis B. Simpson #43858 600 Seventeenth Street Suite 2800 South Tower Denver, Colorado 80202 303-634-2244 Telephone 720-420-9084 Facsimile Robert.Corry@comcast.net www.RobCorry.com EXPEDITED HEARING RESPECTFULLY REQUESTED
COURT USE ONLY _____________________
Case No: 2012CV_____
VERIFIED COMPLAINT AND APPLICATION FOR PRELIMINARY INJUNCTION AND DECLARATORY RELIEF Plaintiffs, through undersigned counsel, hereby petition this Court for a Preliminary Injunction, and Declaratory and Equitable Relief, related to the University of Colorado’s closing of the campus and Norlin Quad on April 20, 2012 and intent to charge people with criminal violations for entering either campus or Norlin Quad, actions that are designed to shut down the 420 Free Speech Protest, and that will impair Plaintiffs’
constitutional rights of Free Speech and Association, and that will cause irreparable harm and create a potentially dangerous and unsafe situation on campus, and as grounds state as follows: Parties 1. Plaintiff Rob Smoke is an individual, not a CU student, who wishes to
participate in and exercise his constitutional rights of Free Speech and Free Association on the CU Boulder campus on April 20, 2012 and use other campus facilities generally open to the public. Mr. Smoke has attended approximately six previous 420 Protests at CU, and in 2006 served on the City of Boulder Human Rights Commission which made inquiry into CU’s stance against the 420 Protest by posting photos of students online and offering rewards to students who became paid informants against 420 Protest participants. 2. Plaintiff Timothy Tipton is an individual, not a CU student, who wishes to
participate in and exercise his constitutional rights of Free Speech and Free Association on the CU Boulder campus on April 20, 2012 and use other campus facilities normally open to the public. Mr. Tipton has attended approximately ten previous 420 Protests at CU, wishes to attend this year without receiving a citation, ticket, or arrest. He has spoken in public assemblies at CU about marijuana policy. 3. Plaintiff Jack Branson is an individual, not a CU student, who wishes to
participate in and exercise his constitutional rights of Free Speech and Free Association on the CU Boulder campus on April 20, 2012 and use other campus facilities normally open to the public. Mr. Branson is HIV-positive and suffers from numerous debilitating
medical conditions. He has attended numerous previous 420 Protests at CU, wishes to attend this year without receiving a citation, ticket, or arrest, which he fears would harm his condition which is exacerbated through stress. 4. Plaintiff Katherine Cummins is an individual, not a CU student, who
wishes to participate in and exercise her constitutional rights of Free Speech and Free Association on the CU Boulder campus on April 20, 2012. She plans to attend her first 420 Protest this year as a peaceful observer and use other campus services normally open to the general public. She fears an enhanced police presence could threaten the safety of herself and others. 5. Plaintiff Evan Ravitz is an individual, not a CU student, who wishes to
participate in and exercise his constitutional rights of Free Speech and Free Association on the CU Boulder campus on April 20, 2012 and use other campus facilities normally open to the public. He has participated in past 420 Protests, and while there engaged in political and associational activities such as gathering names for political activism purposes. 6. Plaintiff Tom Cummins is an individual, not a CU student, who wishes to
participate in and exercise his constitutional rights of Free Speech and Free Association on the CU Boulder campus on April 20, 2012 and use other campus facilities normally open to the general public. Mr. Cummins is a 65-year old retired grandfather who wishes to attend this year without receiving a citation, ticket, or arrest and fears that the blockades and enhanced police presence may threaten his safety. 7. Defendant University of Colorado (“CU”) is a state governmental entity
and public university that owes its existence to, and is established and organized under the Colorado Constitution, operating under color of law, and does business statewide and in Boulder County, where it maintains its main flagship campus consisting of approximately 786 acres. CU has a police force with jurisdiction on campus, and also authorizes other law enforcement entities to enter and enforce its directives on campus, which it has done in this instance. Jurisdiction and Venue 8. This Court has jurisdiction over this matter pursuant to C.R.C.P. 65;
Colorado Declaratory Judgment Act, Colo. Rev. Stat. § 13-51-101 et seq., and C.R.C.P. 57. 9. Pursuant to C.R.C.P. 98, venue is proper in this Court because Plaintiffs
and Defendants reside and do business in Boulder County, State of Colorado, and the principal acts complained of occurred within Boulder County. Injunctive Relief Standard 10. Notice of Plaintiffs’ intent to seek Injunctive Relief related to these issues
was provided to the University Counsel on the afternoon of April 17, 2012 via a voice mail message left by Plaintiffs Counsel Robert J. Corry, Jr. The next morning, April 18, 2012, University Counsel Patrick O’ Rourke and John Sleeman responded promptly, and in the afternoon of April 18, 2012, these three lawyers engaged in a collegial and substantive discussion about the facts and law for approximately one half hour, gaining some knowledge of their respective positions. Later that evening, Mr. Corry confirmed to Mr. O’Rourke that Plaintiffs intended to file this action imminently, and will supply a
courtesy copy to Mr. O’Rourke’s email address upon filing. 11. Preliminary injunctions preserve and protect legal rights pending the final
determination of a cause. A preliminary injunction serves to prevent irreparable harm prior to a decision on the merits of a case. Combined Communications Corp. v. City and County of Denver, 528 P.2d 249, 251 (1974). 12. At the hearing on the preliminary injunction, the moving party must satisfy
six factors to obtain a preliminary injunction: (1) a reasonable probability of success on the merits; (2) a danger of real, immediate, and irreparable injury which may be prevented by injunctive relief; (3) lack of a plain, speedy, and adequate remedy at law; (4) no disservice to the public interest; (5) balance of equities in favor of the injunction; and (6) the injunction will preserve and protect legal rights pending the final trial on the merits. Rathke v. MacFarlane, 648 P.2d 648, 653-54 (Colo.1982). Factual Background and General Allegations 13. For approximately ten years, a group of individuals have gathered on the
CU-Boulder campus on April 20, 2012 to express and hear views concerning the Prohibition of Marijuana, known as the “420 Protest.” April 20 has significance worldwide within marijuana culture. At CU, the expressive conduct on April 20 generally begins in the late afternoon, peaks at 4:20 p.m., and dissipates shortly thereafter. Some participants choose on their own to consume marijuana. Some participants do not consume marijuana. There is no formal organizer or leader of the protest. 14. Historically, the 420 protests occurred first on Farrand Field, then a few
years ago moved to Norlin Quad, which is a traditional public forum hosting many free speech activities throughout the years, including concerts with sound amplification during class times. For example, in the 1980’s Norlin Quad hosted the Fun in the Nuclear Age (“FINA”) concert widely attended by thousands of students and nonstudents. 15. The 420 Protests are peaceful in nature and on information and belief, no
significant injury or property damage or disruption has ever occurred. Police have issued a handful of citations to individuals allegedly in violation of laws, usually petty offenses for possession of marijuana or paraphernalia. By comparison, the average CU home football game, which occurs approximately six times per fall, attracts far larger crowds and generally more damage, disruption, and problems than the 420 protest, once per year. 16. The 420 protest consists of expressive conduct and free speech. A pro-
marijuana, anti-Prohibition message is conveyed through the protests by various means including statements and expressive conduct. The participants, the protests, and media attention surrounding it, prompt discussion and affect and inform public opinion on marijuana issues, enriching the “marketplace of ideas.” 17. CU is aware of the recurring nature of the 420 Protest and has anticipated it
in recent years with announcements and pronouncements, generally expressing disapproval and discouraging individuals from participating. CU and its Administration does not endorse the message, viewpoint, or means of the 420 Protest. CU believes that the message and existence of the 420 Protest denigrates the reputation of the University and confirms the false and over-generalized stereotype of CU as a “party school.”
CU has been throughout its history, and remains, generally one of the most
highly selective and academically rigorous comprehensive research and teaching universities in the State of Colorado, the Rocky Mountain region, and in the United States. The 420 Protest does not harm this reputation, and probably enhances it because it confirms CU’s reputation as a place of free thought and exchange of ideas on relevant and controversial subjects of the day. 19. The 420 Protest is consistent with CU’s purpose of liberal education, and
does nothing to detract from the core purpose of CU. Instead, the 420 Protest strengthens CU’s “marketplace of ideas” and enhances CU and its educational mission. Not all learning need take place inside a classroom. 20. Years ago, a principal reason for the 420 Protest moving from Farrand
Field to Norlin Quad was CU’s decision to turn on lawn sprinklers during the event, which soaked participants and their hair and clothing with frigid water, made them uncomfortable and negatively impacted their health on cold Colorado spring evenings. 21. On April 6, 2012, CU claimed that there was to be “no crackdown” on this
year’s 420 protest. http://blogs.westword.com/latestword/2012/04/420_cu_boulder_denies_crackdown_marij uana_police_wyclef_jean.php 22. Then, on Friday, April 13, 2012, CU announced its intention to close the
entire Boulder campus to non-students and to close Norlin Quad to all, students or otherwise. http://www.colorado.edu/april20. CU’s News Release from April 13, 2012 details the closure. (CU News Release, incorporated herein by reference as Plaintiff’s
Exhibit 1 http://www.colorado.edu/node/716969/ .) The details of CU’s 420 plan include requiring CU students to carry identification and present it on demand to law enforcement at all times while on campus; issuing criminal trespassing citations to those on campus lacking CU identification; creating a special registration system for visitors to sign in before entering campus that day; police checkpoints at all major campus entrances on the 786 acre campus; total closure of Norlin Quad with signage and issuance of trespassing tickets; a “large presence” of police officers from CU and regional law enforcement agencies including the Medical Marijuana Enforcement Division; enhancing State Patrol enforcement in the areas surrounding CU; suggesting that “non-essential” meetings and events on campus be rescheduled to another day; and closure of Regent Drive and alteration of bus routes. (Id.) 23. On Friday, April 13, 2012 CU further announced it will be spreading “fish-
based fertilizer” on Norlin Quad on April 20, 2012. (Daily Camera Article, incorporated herein by reference as Plaintiff’s Exhibit 2 http://www.coloradodaily.com/ci_20389593/cu-boulder-close-campus-visitors-4-20ticket?source=most_emailed#axzz1rzdWJaG4 .) 24. CU’s purpose and intent is to “end” the 420 Protest. Chancellor Phil
DiStephano: “It needs to end.” (Id., Plaintiff Exhibit 2.) If CU is permitted to close down the entire campus to non-students and Norlin Quad to all people, students and nonstudents alike, it will likely end the 420 Protest as a peaceful and safe event. 25. Instead, extreme police presence, checkpoints, and potential violence
arising therefrom, could reconstitute the 420 Protest event as a dangerous, adversarial
confrontation between citizens and police that may result in harms that far exceed any of the original event. FIRST CLAIM FOR RELIEF (Injunction and Declaratory Judgment; First Amendment Rights of Free Speech and Association) 26. 27. Plaintiffs incorporate all previous allegations as if fully set forth herein. CU’s proposed closure of an entire campus to shut down an afternoon
protest occurring on a small portion of the campus is without legal support or precedent. On information and belief, there are no reported cases from any jurisdiction permitting such a closure. 28. CU’s actions are overbroad, and are not narrowly tailored to accomplish a
compelling government interest, and thus unconstitutionally infringe on plaintiffs’ rights to Free Speech, Free Association, and Free Assembly as protected by the First Amendment to the U.S. Constitution and Article II §§ 10 and 24 of the Colorado Constitution. 29. Traditional public forums are public areas such as streets and parks that,
since "time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983) (internal quotation marks omitted). A time, place, and manner restriction can be placed on a traditional public forum only if it is content neutral, narrowly tailored to achieve a significant government interest, and "leave[s] open ample alternative channels of communication." Id.
CU’s campus-wide closure, and closure of Norlin Quad fails all of these
tests. As noted, counsel is unaware of any published case law passing on the question of whether a public university can shut can, consistent with the constitution, shut down an entire campus with the intent of ending a peaceful expression of a particular viewpoint. Prayer for Relief WHEREFORE, Plaintiffs pray for the following relief: A. B. Enter judgment in Plaintiffs’ favor against Defendants; Grant Plaintiffs Declaratory Judgment finding that CU’s plan to close its
entire Boulder campus to non-students without specific permission, and its plan to close Norlin Quad to all, is unconstitutional and void; C. Enter a temporary restraining order and permanent injunction ordering the
Defendant, and all those acting in concert with it, to cease and desist from enforcement of the closure of the campus and Norlin Quad, pending the outcome of this litigation; D. Grant Plaintiffs any and all other relief the Court deems proper. Respectfully submitted, (original signature on file at law office) Robert J. Corry, Jr.
DATED: April 19, 2012
VERIFICATION Under penalty of perjury, I the undersigned, have read and understand the foregoing complaint and to the best of my knowledge believe the contents to be truthful. (original signature on file) ________________________________ ROB SMOKE; (original signature on file) ________________________________ TIMOTHY TIPTON; (original signature on file) ________________________________ JACK BRANSON; (original signature on file) ________________________________ KATHERINE CUMMINS; (original signature on file) ________________________________ EVAN RAVITZ; (original signature on file) ________________________________ TOM CUMMINS
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