Green Light for Jury-Nullification Crusaders

Courthouse News Service – by Emma Gannon

DENVER (CN) – The 10th Circuit upheld an injunction that lets protesters disseminate pamphlets about jury nullification outside a state courthouse in Colorado.

Jury nullification describes the practice by which a jury acquits a defendant, despite evidence of his guilt, because the jury members believe the law at issue is immoral.  

Protests over jury nullification had been taking over Denver last year when the chief judge of Colorado’s Second Judicial District issued an order that sought to bar demonstrations of any kind on the Lindsey-Flanigan Courthouse grounds.

After a federal judge enjoined the state court’s ban of peaceful leafleting on Aug. 25, however, it took just one day for the tension between protesters and police to come to a head.

Though officers seized protesters’ tents, tables and pamphlets, a federal judge refused to hold the police chief in contempt, finding that the use of force showed “commendable restraint” in the face of attempts by activists to provoke violence.

The state court meanwhile sought to resume its ban against leafleting, but the 10th Circuit affirmed the federal judge’s injunction Friday.

Writing for a three-judge panel, Judge Carolyn McHugh called the injunction critical to ensuring that jury-nullification protesters can preach to their target audience- jurors.

“Plaintiffs proffered testimony that the order would substantially impair their ability to convey their intended message to their target audience because it would prevent plaintiffs from approaching potential jurors and engaging in a meaningful discussion of jury nullification,” the opinion states

McHugh added that “the Judicial District presented no evidence that plaintiffs’ activities otherwise interfered with courthouse functions.”

“On this record, the District Court did not abuse its discretion in finding … in favor of plaintiffs,” the ruling continues.

Denver has even stipulated that the area around the courthouse constitutes a “public forum” in which protesters could air their opinions peacefully, but the state court had said the protesters’ pattern of disruption irreparably harmed the judicial district.

McHugh emphasized, however, that noting in the injunction impedes the ability of police to remove citizens who were breaking the law.

“The district court reasoned the judicial district and Denver were free to enforce the order against the parties engaging in the complained-of disruptive behavior because such behavior was unlawful and not protected by the narrow injunction issued by the court with respect to plaintiffs’ activities only,” she wrote.

With Friday’s ruling focused solely on the merits of the “limited preliminary injunction,” McHugh noted that the court is not yet expressing any opinion as to whether the protesters are entitled to a permanent injunction.

“Instead, we provide guidance to the district court and the parties regarding the factual inquiry and the applicable legal standard relevant to that question on remand,” the opinion states.

In the underlying case, the state judge who issued the ban on courthouse protests is named Chief Judge Michael Martinez.

He is not related to U.S. District Judge William Martinez, the federal judge who issued the injunction.

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