Occupy Denver et al v. City and County of Denver et al

Filing 27

ORDER. The plaintiffs Motion for a Temporary Restraining Order 2 filed 11/22/2011, is DENIED. By Judge Robert E. Blackburn on 12/7/2011.(sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 11-cv-03048-REB-MJW
OCCUPY DENVER, an unincorporated association,
AMBERLYNN RESTORICK,
TERRY BURNSED,
ROBERT PIPER,
ROB KUYKENDALL,
CATHERINE LINDSEY,
NATALIE WYATT, and
DANIEL GARCIA,
Plaintiffs,
v.
CITY AND COUNTY OF DENVER,
MICHAEL HANCOCK, in his official capacity and as Mayor of Denver,
GERALD R. WHITMAN, in his official capacity and as Denver’s Acting Chief of Police,
Defendants.

ORDER DENYING MOTION FOR TEMPORARY RESTRAINING ORDER
Blackburn, J.
The matter before the court is Motion for a Temporary Restraining Order [#2]1
filed by plaintiffs on November 22, 2011. The defendants filed a response [#11], and the
plaintiffs filed a reply [#20]. On December 5, 2011, the court conducted a hearing on
the motion. At the hearing he plaintiffs and the defendants presented evidence and
argument. I deny the motion.
I. JURISDICTION
I have jurisdiction over this case under 28 U.S.C. §§ 1331 (federal question).
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“[#2]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

II. STANDARD OF REVIEW
A temporary restraining order constitutes extraordinary relief. A party seeking a
temporary restraining order or a preliminary injunction must show (1) a substantial
likelihood that the movant eventually will prevail on the merits; (2) that the movant will
suffer irreparable injury unless the injunction issues; (3) that the threatened injury to the
movant outweighs whatever damage the proposed injunction may cause the opposing
party; and (4) that the injunction, if issued, would not be adverse to the public interest.
Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir. 1980). Some types of temporary
restraining orders or preliminary injunctions are disfavored and, therefore, require the
plaintiff to satisfy a heightened burden of showing that the four primary factors
weigh heavily and compellingly in movant’s favor before such an injunction
may be issued. The heightened burden applies to preliminary injunctions
that (1) disturb the status quo, (2) are mandatory as opposed to
prohibitory, or (3) provide the movant substantially all the relief he may
recover after a full trial on the merits.
Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir. 2001) (internal quotation and citation
omitted).
III. ANALYSIS
The seven individual plaintiffs are participants in or supporters of the ongoing
protest known as Occupy Denver, which “is an un-incorporated, very informal and loose
association of protestors.” Complaint [#1], p. 3. The defendants are the City and County
of Denver, Michael Hancock, the Mayor of Denver, and Gerald Whitman, the Acting
Chief of Police for the Denver Police Department. In their Complaint [#1] and motion
for temporary restraining order, the plaintiffs allege that the defendants have selectively
enforced four Denver City Ordinances against certain of the plaintiffs while the plaintiffs
were present at or in the vicinity of the Occupy Denver protest site, which is located in
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Denver’s Civic Center Park. The plaintiffs allege that the four ordinances were enforced
against certain of the plaintiffs in retaliation for those plaintiffs’ exercise of their rights to
freedom of speech and freedom of assembly under the First Amendment of the United
States Constitution.
The plaintiffs retaliatory enforcement claim concerns four Denver City ordinances
codified in the Denver Revised Municipal Code (D.R.M.C.): (1) D.R.M.C. § 39-3
(imposing a curfew in city parks between the hours of 11:00 p.m. and 5:00 a.m.); (2)
D.R.M.C. § 49-246 (prohibiting encumbrances in the public right of way); (3) D.R.M.C.
§ 54-482 (prohibiting vehicle parking, stopping, or standing where prohibited by signs);
and (4) D.R.M.C. § 54-71 (prohibiting unwarranted use of motor vehicle horns).
Complaint [#1], pp. 6 - 11; Motion for TRO [#2], pp. 3 - 4. Based on their allegation that
the defendants enforced these ordinances against the plaintiffs in retaliation for the
plaintiffs’ exercise of their First Amendment rights and based on the evidence2
submitted by the plaintiffs with their reply [#20] and at the hearing on December 5, the
plaintiffs ask the court to enter a temporary restraining order prohibiting the “Defendants
from enforcing Denver Revised Municipal Codes §§ 49-246, 54-71, and 54-482 against
the Occupy Denver Protesters and Supporters.”3 Motion for TRO [#2], p. 14.

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At the hearing, the plaintiffs asserted that the Federal Rules of Evidence are relaxed at a
temporary restraining order hearing. Relying on Fed.R.Evid. 1101(d)(3), the court questioned that
contention. However, the United States Court of Appeals for the Tenth Circuit has held that the “Federal
Rules of Evidence do not apply to preliminary injunction hearings.” Heideman v. South Salt Lake City,
348 F.3d 1182, 1188 (10th Cir. 2003). Presumably, the same is true of a hearing on a motion for a
temporary restraining order. The application of the Federal Rules of Evidence by the court at the hearing
did not prevent the plaintiffs from introducing any material evidence. For example, the court admitted
exhibits 60 and 61, both affidavits, over the objection by the defendants that this evidence constituted
inadmissible hearsay.
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D.R.M.C. § 39-3 is not included in the plaintiffs’ prayer for relief in their motion for temporary
restraining order [#2]. I assume this omission is due to a clerical error. For the purpose of resolving the
motion, I assume the plaintiffs also seek to restrain the enforcement of D.R.M.C. § 39-3.

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A. Applicable Burden of Proof
The plaintiffs argue that the defendants altered the status quo by engaging in
retaliatory enforcement of the ordinances they specify in their complaint and motion.
Thus, the plaintiffs contend that they need not satisfy the heightened burden of proof
applicable to a disfavored injunction. Contrastingly, the defendants argue that
enforcement of Denver’s city ordinances is the status quo and that the plaintiffs seek to
alter that status quo. Thus, the defendants argue that the plaintiffs must satisfy the
enhanced burden of proof applicable to a disfavored injunction. After hearing the
evidence presented at the hearing, the defendants have the better argument. However,
even assuming, without deciding, that the plaintiffs need not satisfy a heightened
burden of proof, the court still concludes that the plaintiffs are not entitled to a temporary
restraining order.
B. Elements of Claim
To establish their claim of retaliatory enforcement, the plaintiffs must prove (1)
that the plaintiffs were engaged in constitutionally protected activity; and (2) that the
actions of the defendants caused plaintiffs injury that would chill a person of ordinary
firmness from continuing to engage in that activity; and (3) that the actions of the
defendants were substantially motivated as a response to the plaintiffs’ constitutionally
protected conduct. Howards v. McLaughlin, 634 F.3d 1131, 1144 (10th Cir. 2011),
cert. granted, ___ U.S.___, 2011 WL 3812626 (December 5, 2011). “Even if an
official's action would be unexceptionable if taken on other grounds, when retaliation
against Constitutionally-protected speech is the but-for cause of that action, this
retaliation is actionable and subject to recovery.” Id. at 1143 (internal quotation and
citations omitted).
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In their Motion for a Temporary Restraining Order [#2], the plaintiffs focus
exclusively on the alleged selective enforcement of the four Denver ordinances as the
means via which they seek to prove that the alleged retaliatory motive of the defendants
was a substantial motivation for the enforcement of those ordinances against the
plaintiffs. In turn, to prove selective enforcement a plaintiff must “provide compelling
evidence of other similarly situated persons who were in fact treated differently,”
because the multiplicity of relevant non-retaliatory variables involved in law enforcement
decisions are not readily susceptible to the kind of analysis the courts are competent to
undertake in assessing such claims. Grubbs v. Bailes, 445 F.3d 1275, 1282 (10th Cir.
2006). I find and conclude that this requirement is applicable to the plaintiffs’ motion for
temporary restraining order because in their motion the plaintiffs focus exclusively on
selective enforcement as the means via which they seek to establish retaliatory
enforcement.
C. Evidence and Entitlement to a Temporary Restraining Order
Testimony and other evidence presented at the hearing established that the
following citations were issued to individuals who are named plaintiffs in this case. On
November 17, 2011, an unidentified Denver Police officer issued to plaintiff, Daniel
Garcia, a citation under D.R.M.C. § 54-71 for improper use of Garcia’s car horn. Exhibit
1.4 This charge has been dismissed.
Plaintiff, Amerlinn Restorick, was arrested by an unidentified Denver Police
officer on October 15, 2011, and charged with obstruction of a street or passageway
and disobeying a lawful order. In her testimony Ms. Restorick did not specify the

4

Citation in this order to exhibits refer to exhibits admitted in evidence at the hearing on
December 5, 2011.

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ordinances under which she is charged, and no relevant charging documents were
admitted in evidence. On cross examination, Ms. Restorick testified that she was not
ticketed for having encumbrances on the sidewalk. Thus, it is not clear whether or not
Restorick was cited under one of the four city ordinances at issue in this case. For the
purpose of this order, I assume without deciding that Ms. Restorick was charged with
violation of D.R.M.C. § 49-246, which prohibits encumbrances in the right of way and
which is one of the ordinances at issue in the plaintiffs’ complaint and motion.
On November 20, 2011, plaintiff, Rob Kuykendall, was issued a ticket by an
unidentified Denver Police officer. Mr. Kuykendall was cited for violation of D.R.M.C. §
54-160, impeding traffic. Exhibit 4.
Finally, on November 21, 2011, plaintiff, Natalie Wyatt, was issued a citation by
an unidentified Denver Police officer for disturbing the peace in violation of D.R.M.C. §
38-39. Exhibit 2. This citation was based on Ms. Wyatt’s use of a compressed air horn,
which she blew no less than three times as she held it out of the window of the car in
which she was a passenger as the car was driven near Civic Center Park. This charge
has been dismissed.
These four citations are the four citations that the plaintiffs allege were issued
because of the defendants’ motive to retaliate against the plaintiffs for their exercise of
their First Amendment rights. Notably, only the citations issued to Mr. Garcia and Ms.
Restorick include charges under one of the four city ordinances that are the subject of
the plaintiffs’ complaint and motion for temporary restraining order. The citations issued
to Mr. Kuykendall and Ms. Wyatt did not charge violations of any of the four ordinances
specified by the plaintiffs in their complaint and motion for temporary restraining order.
The fact that citations were issued to Mr. Kuykendall and Ms. Wyatt under ordinances
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not at issue in the complaint or motion does nothing to establish that the ordinances
specified in the complaint and motion for temporary restraining order were enforced in a
retaliatory fashion against Mr. Kuykendall and Ms. Wyatt.
The plaintiffs are the masters of their complaint, their motion, their claims, the
bases on which they seek injunctive relief, and the parties adgainst whom they seek
such relief. Injunctive relief may be awarded based only on the claim and grounds
asserted in the complaint and the motion. It is not proper or equitable to permit the
plaintiffs informally to expand the scope of their claims, including their claim to be
entitled to a temporary restraining order, by introducing at the hearing on their motion
for a temporary restraining evidence of the enforcement of ordinances not specified in
their complaint or in their motion for temporary restraining order. Thus, for the purpose
of resolving the motion for temporary restraining order, I find and conclude that
evidence of the citations issued to Mr. Kuykendall and Ms.Wyatt carries little or no
weight in determining whether or not the plaintiffs are entitled to a temporary restraining
order concerning the defendants’ alleged retaliatory, selective enforcement of the
ordinances placed at issue by the plaintiffs in this case.
Having considered the evidence presented, arguments advanced, and
authorities cited by the parties in the plaintiffs’ Motion for a Temporary Restraining
Order [#2], the defendants’ response [#11], and the plaintiffs’ reply [#20], together with
the evidence submitted, arguments advanced, and authorities cited at the hearing, I
find and conclude that the plaintiffs have not demonstrated that they are entitled to a
temporary restraining order. First, the plaintiffs have not demonstrated that they have a
substantial likelihood that they eventually will prevail on the merits of their retaliatory
enforcement claim vis-à-vis the named defendants. Notably, there is no evidence in the
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record that any of the defendants, the City of Denver, the Mayor of Denver, or the Chief
of the Denver Police, had a motive to retaliate against Mr. Garcia or Ms. Restorick
based on their exercise of their First Amendment rights when these plaintiffs were
issued the citations described above. Nothing in the record demonstrates
preponderantly a retaliatory motive on the part of the three named defendants against
the Occupy Denver protestors generally or the named plaintiffs specifically. Under the
standards established in Howards and Grubbs, evidence that the four ordinances
specified by the plaintiffs were enforced selectively by the defendants and that such
selective enforcement was driven by the defendants’ retaliatory motive, is absent.
At the hearing, the plaintiffs presented evidence of certain actions by unidentified
Denver Police officers that did not involve the issuance of a citation but that may be
seen as constituting enforcement of Denver city ordinances or other applicable rules.
For example, witness Patricia Hughes testified that tables set up by Occupy Denver
protestors have been removed and confiscated by the Denver Police. Ms. Hughes
testified that the tables generally contain literature about the Occupy Denver protest as
well as certain medical supplies. Ms. Hughes testified that she has not seen citations
issued concerning the placement of these tables in or around Civic Center Park.
Witness Robert Piper testified that he has seen police officers near Civic Center Park
"go after" people who honk their car horns in ostensible support of the Occupy Denver
protest, but said he was not able to observe what those police officers did about any
particular horn honking incident. Assuming such actions by unidentified Denver Police
officers constitute enforcement of one or more of the relevant city ordinances, this
testimony does little or nothing to demonstrate that the named defendants had a
retaliatory motive or took enforcement action against the plaintiffs or other Occupy
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Denver protestors based on such a motive.
Without evidence of the defendants’ retaliatory motive, the plaintiffs claim will fail.
To the extent any of the evidence in the record can be read to show that an individual
Denver Police officer may have selectively enforced one or more of the four ordinances
against the plaintiffs because that officer had a retaliatory motive, there is no evidence
that such a motive held by an individual officer is rightly or necessarily attributable or
imputable to the named defendants.5
Furthermore, the plaintiffs have failed to “provide compelling evidence of other
similarly situated persons who were in fact treated differently.” Grubbs, 445 F.3d at
1282. The putative comparators proffered by the plaintiffs fall woefully short of persons
or groups substantially similar to the plaintiffs.
Second, even if the plaintiffs had demonstrated a likelihood of success on the
merits of their retaliatory enforcement claim, they have not produced preponderant
evidence that they will suffer an irreparable injury absent a temporary restraining order.
A temporary restraining order, although potentially potent, cannot undo an irreparable
injury suffered in the past. Thus, to obtain a temporary restraining order, which
inherently is prospective in nature and effect, the plaintiffs must show that such puissant
injunctive relief is necessary to prevent future irreparable injury. See, e.g., City of Los
Angeles v. Lyons, 461 U.S. 95, 111 (1983) (real and immediate threat that plaintiff will
be wronged again necessary to show irreparable injury).
The plaintiffs claim that the defendants’ alleged retaliatory enforcement of the
four Denver ordinances would chill a person of ordinary firmness in exercising his or her
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To the extent the plaintiffs presented evidence in an effort to demonstrate incidents indicating
animosity between Occupy Denver protestors and Denver Police officers, such evidence does not
demonstrate that any of the defendants had animosity or a retaliatory motive toward the plaintiffs.

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First Amendment rights and is chilling the willingness of the plaintiffs and others to
exercise their First Amendment rights. Improper chilling of a person’s First Amendment
rights constitutes irreparable injury. See, e.g., Elrod v. Burns 427 U.S. 347, 373 - 374
(1976) (loss of First Amendment freedoms, even for minimal periods of time,
unquestionably constitutes irreparable injury).
However, the present record contains little evidence that the defendants will
issue to the plaintiffs, in the near future or ever, retaliatory citations concerning the four
ordinances at issue in the complaint and motion. To rehearse, there is no evidence that
the defendants had a retaliatory motive with regard to the citations issued to Mr. Garcia
or Ms. Restorick or, for that matter, any citation. Thus, the court can not and may not
infer that the defendants will issue retaliatory citations in the future. Further, the fact
that Denver Police officers issued a horn honking citation to Mr. Garcia on November
17, 2011, and an obstruction of street or passageway citation to Ms. Restorick on
October 15, 2011, does little to demonstrate that the defendants are likely in the near
future to issue similar citations, or citations under the other two ordinances at issue in
this case.6 Accordingly, the plaintiffs have not produced preponderant evidence that
they will suffer an irreparable injury absent a temporary restraining order prohibiting the
defendants from enforcing the four Denver city ordinances at issue in the plaintiffs’
complaint and motion.
IV. CONCLUSION AND ORDER
Having considered the evidence educed, arguments advanced, and authorities

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The testimony of witness Robert Piper that he has seen police officers near Civic Center Park
“go after” people who honk their car horns in support of the Occupy Denver protest does little if anything to
demonstrate that the defendants will issue, in the near future, retaliatory citations under the four
ordinances at issue in the complaint and motion.

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cited by the parties, I find and conclude ultimately that the plaintiffs have not
demonstrated by a preponderance of the evidence that they are entitled to a temporary
restraining order prohibiting the defendants from enforcing sections 39-3, 49-246, 5471, and 54-482 of the Denver Revised Municipal Code against the plaintiffs or, more
generally, against Occupy Denver protesters and supporters.
THEREFORE, IT IS ORDERED that the plaintiffs’ Motion for a Temporary
Restraining Order [#2] filed November 22, 2011, is DENIED.
Dated December 7, 2011, at Denver, Colorado.
BY THE COURT:

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