IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF XXX
Civil Action No.
A HOME FOR ALL, Plaintiff
v.
CITY AND COUNTY OF ESSEX, Defendant.
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
COME NOW, the plaintiff, A Home For All on behalf of members of Essex Home for All (EHA) by and through their attorneys undersigned counsel hereby moves, pursuant to C.R.C.P. 56, for summary judgment because there is no genuine issue as to any material fact and Plaintiffs are entitled to judgment as a matter of law. Pursuant to C.R.C.P. 121 § 1-15(8), counsel for Plaintiffs in good faith conferred with opposing counsel about this Motion prior to filing. Support for this Motion is provided in a Memorandum in Support of Plaintiffs’ Motion for Summary Judgment, filed concurrently herewith.
WHEREFORE, Plaintiffs respectfully request that summary judgment be entered in their favour.
s/
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF XXX
Civil Action No.
A HOME FOR ALL, Plaintiff
v.
CITY AND COUNTY OF ESSEX, Defendant.
MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
TABLE OF CONTENTS
PLAINTIFF’S STATEMENT OF UNDISPUTED FACTS. 3
- STANDARD OF REVIEW… 5
- THE CITY AND COUNTY OF ESSEX SHOULD NOT UNCONSTITUTIONALLY LIMIT THE FREEDOM OF SPEECH OF ESSEX HOME FOR ALL MEMBERS IN COUNCIL MEETINGS 6
TABLE OF AUTHORITIES
Cases
XXX………………………………………………………. 6
XXX…………………………………………………………………………… 5
XXX…………………………………………………………….. 4
XXX………………………………………. 5
XXX…………………………………………………………. 6
XXX)…………………………………………………………………………………… 4
XXX……………………………………………………………………… 5
XXX………………… 5
XXX…………………………………………………………… 5
XXX………………………………………………………………………. 6
XXX…………………………………………………………….. 5
XXX)……………………………………………………… 5
XXX…………………………………………… 6
Statutes
ERMC § 38-87……………………………………………………………………………………………………………. 3, 4
First Amendment to the XXX…………. 5
INTRODUCTION
Summary judgment should be entered in favour of the plaintiffs A Home For All. Essex Home for All (EHA), a local homeless advocacy organization, seeks summary judgment in their favor in response to the threats of arrest made by Essex police against its members during their peaceful protests at city council meetings. EHA asserts that the threats of arrest for violating city ordinances, specifically ERMC § 38-87, which involves disruption of a lawful meeting, are unconstitutional under the First Amendment of the United States Constitution. EHA argues that the protesters’ actions, including unfurling banners and reclining on the floors of the council chambers during city council meetings, are protected forms of expressive conduct and do not constitute disruptions of the meetings. Therefore, EHA contends that there are no genuine issues of material fact and that they are entitled to summary judgment as a matter of law.
PLAINTIFF’S STATEMENT OF UNDISPUTED FACTS
- Essex is a city located in Colorado with a population of half a million, experiencing a rise in homelessness due to increasing property values and rents.
- Homeless advocates, including members of Essex Home for All (EHA), have been engaging in political activism to obtain affordable housing and services for the homeless, including testifying at weekly city council meetings and staging protests.
- On December 15, 20XX, approximately 100 people, including members of EHA, attended a well-attended demonstration at a City Council meeting, where they remained silent but raised banners and signs criticizing Essex’s policies on homelessness.
- The protesters did not speak during the City Council meeting but unfurled banners and asked for Essex to provide a safe place for homeless people to rest, as part of their larger effort to obtain “a right to rest.”
- John James, an organizer for A Home for All declared that, December 25, 20XX he organized a protest at City Council of approximately 100 people. They decided it should be a silent protest that included reclining on chairs in the chambers, to symbolize the right to rest, which was violated by Essex policies. They unfurled two six-feet banners that said A Right to Rest is a Human Right
- Toward the end of the meeting, a deputy sheriff approached John James and told him that city council members were disturbed by the presence of the protestors and asked them to leave. Since the protestors did not have any plans for how to handle mass arrests, John James signaled the protestors to leave. The deputy sheriff told John James that the city would not tolerate future protests at city council.
- Despite not blocking exits or entrances, and reclining on chairs in the council chambers without disrupting the meeting, the protesters were warned by several police officers after leaving the meeting that future demonstrations would result in criminal charges for violating city ordinances, specifically ERMC § 38-87related to disruption of a lawful meeting.
- Homeless advocates, including members of EHA, intend to continue their demonstrations in the future, which may involve unfurling banners and reclining on the floors of the council chambers during City Council meetings, with the intent to peacefully express their views and advocate for the rights of homeless people.
- The threats of arrest by Essex police for future demonstrations have caused members of EHA to seek legal recourse and determine whether their rights have been violated.
These facts are undisputed and form the basis of the plaintiff’s claim against Essex police for threatening arrest in response to peaceful protests advocating for affordable housing and services for the homeless.
LEGAL ISSUE(S)
Whether Defendant’s threatened expulsion and arrest of peaceful protesters from city council under ERMC § 38-87 violates Plaintiffs’ right to freedom of speech because Defendant sought to prevent Plaintiffs from expressing a viewpoint disfavored by the government. Plaintiffs argue that Defendant’s threatened expulsion and arrest of peaceful protesters from city council under ERMC § 38-87 violates Plaintiffs’ right to freedom of speech because the Defendant sought to prevent Plaintiffs from expressing a viewpoint disfavored by the government.
LEGAL RULES APPLICABLE
(a) The First Amendment of the United States Constitution protects the right to freedom of speech, including expressive conduct such as displaying banners and signs, even in a government setting such as a city council meeting. See XXX. The First Amendment protects the right to engage in peaceful protest, even if it involves speech that is unpopular or disfavored by the government. XXX);
(b) Governmental restrictions on speech in a public forum, such as a city council meeting, must be content-neutral, narrowly tailored to serve a significant government interest, and leave ample alternative channels for communication. See Ward v. Rock Against Racism, 491 U.S. 781 (1989). Speech restrictions must be narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication. Ward v. Rock Against Racism, XXX;
(c) Threats of arrest and expulsion of peaceful protesters from a city council meeting for expressing disfavored viewpoints violate the First Amendment. See City of XXX. Government officials may not retaliate against individuals for exercising their First Amendment rights. XXX.
ARGUMENTS
I. STANDARD OF REVIEW
Summary judgment is appropriate under C.R.C.P. 56(c) if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Peterson v. Halsted, 829 P.2d 373, 375 (Colo. 1992). A material fact is one that will affect the outcome of the case. Mt. Emmons Mining Co. v. Town of Crested Butte, 690 P.2d 231, 239 (Colo. 1984). When reviewing a motion for summary judgment, courts review the pleadings and the documentary evidence in the light most favorable to the nonmoving party. Peterson, 829 P.2d at 376. For the reasons demonstrated herein, Plaintiffs are entitled to entry of summary judgment as a matter of law. The compelled disclosure of the identities of Plaintiffs’ donors—in exchange for being allowed to speak about municipal ballot measures—violates the First Amendment to the U.S. Constitution and Art. II, § 10 of the Colorado Constitution.
II. THE CITY AND COUNTY OF ESSEX SHOULD NOT UNCONSTITUTIONALLY LIMIT THE FREEDOM OF SPEECH OF ESSEX HOME FOR ALL MEMBERS IN COUNCIL MEETINGS
The threats of arrest made by Essex police against its members during their peaceful protests at city council meetings constitute a violation of their First Amendment rights to freedom of speech. Weatherford v. City of XXX Recognizes that peaceful demonstrations during city council meetings are protected speech under the First Amendment, and restrictions on such speech must be content-neutral and narrowly tailored to serve a significant government interest. The protesters’ actions of unfurling banners and displaying signs criticizing Essex’s policies on homelessness are considered forms of expressive conduct protected by the First Amendment. The protesters’ silence during the city council meetings does not diminish the protected nature of their speech, as the Supreme Court has recognized that “symbolic speech” is also entitled to First Amendment protection XXX). The threats of arrest for engaging in peaceful expressive conduct, without any evidence of disruption or interference with the meetings, constitutes a content-based restriction on speech that is subject to strict scrutiny, the highest level of judicial scrutiny.
Under strict scrutiny, the government must show that the restriction on speech is narrowly tailored to serve a compelling government interest. EHA contends that Essex has failed to meet this burden, as the threats of arrest are not narrowly tailored to serve a compelling government interest. The mere presence of banners and signs criticizing Essex’s policies on homelessness does not constitute a disruption of the city council meetings, especially when the protesters remained silent throughout the meetings. Additionally, the protesters’ intent to continue their demonstrations in a manner that does not block exits or entrances, and in a council chamber with plentiful empty seats, further undermines the argument that their actions would disrupt the meetings. Therefore, EHA argues that the threats of arrest for engaging in peaceful expressive conduct are unconstitutional under the First Amendment and summary judgment should be granted in their favor on this claim.
In XXX it was held that the removal of demonstrators from a public meeting based on their viewpoint violates their First Amendment rights. Furthermore, in ,XXX – Establishes that officials cannot exclude peaceful demonstrators from public meetings based on their viewpoint or the content of their speech. The Essex City and County Council thus violated the constitutional provisions in the first amendment as illustrated by the judicial decisions above when it threatened to arrest the EHA peaceful protestors during the council meeting.
The disruptions by the protestors during the council’s meeting did not meet the criteria laid down in ERMC § 38-87. Disruption of a lawful meeting is only proved if it is shown that the perpetrator(s) had the intention of preventing or disrupting any lawful meeting, procession, or gathering. There has to be a significant obstruction or interference with the meeting, procession, or gathering by physical action, verbal utterance, or any other means. The EHA did not cause any disruption or obstruction to the council meeting since they had silent protests besides the conventional reactions like laughing, snorting and other noises that are a legitimately expected in most meetings. They conducted their silent protest through unfurling banners and displaying signs criticizing Essex’s policies on homelessness which are considered forms of expressive conduct protected by the first amendment. In XXX), it was held that the First Amendment protects peaceful demonstrations during City Council meetings, and government officials cannot suppress speech based on the viewpoint expressed. EHA’s actions constituted peaceful demonstrations which are allowed in city council meetings.
III. THE CITY AND COUNTY OF ESSEX HAS VIOLATED THE FREEDOM OF ASSEMBLY OF EHA MEMBERS BY ISSUING THREATS OF ARREST IN FUTURE PROTESTS BY THE MEMBERS
The threats of arrest made by Essex police against its members during their peaceful protests at city council meetings constitute a violation of their First Amendment rights to freedom of assembly. The protesters’ actions of gathering in the city council chambers to peacefully protest Essex’s policies on homelessness are considered a form of expressive association protected by the First Amendment. The protesters’ intent to continue their demonstrations, despite the risk of arrest, further underscores their commitment to exercising their right to assembly for the purpose of expressing their grievances.
Essex’s threats of arrest for engaging in peaceful assembly, without any evidence of disruption or interference with the meetings, constitutes a content-based restriction on assembly that is subject to strict scrutiny. EHA contends that Essex has failed to meet this burden, as the threats of arrest are not narrowly tailored to serve a compelling government interest. The protesters’ actions of unfurling banners and displaying signs criticizing Essex’s policies on homelessness do not constitute a disruption of the city council meetings, and the intent to continue their demonstrations in a manner that does not block exits or entrances further undermines the argument that their actions would disrupt the meetings.
Therefore, EHA argues that the threats of arrest for engaging in peaceful assembly are a breach of their constitutional freedom of assembly contained in the first amendment.
CONCLUSION
WHEREFORE, Plaintiffs respectfully request that this Court grant summary judgment in favor of Plaintiffs and against Defendant on the issue of the violation of Plaintiffs’ First Amendment right to freedom of speech, and grant such other relief as the Court deems just and proper.
Dated: XXX
/s/
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