Judge rules against city of Boulder in Seth Brigham restraining order case

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Jefferson Dodge

A judge has
turned down the City of Boulder’s request for a permanent restraining order
against political gadfly Seth Brigham.

Brigham, who has
been under a temporary restraining order since early May, says he believes he
was targeted because of claims he was raising about council members’ financial
ties and disclosures — claims that a Boulder
Weekly
investigation
has demonstrated were just the tip of the iceberg when
it comes to appearances of impropriety on council.

City officials
had claimed that they felt threatened by Brigham’s rude, profanity-laced
outbursts during public meetings, but the judge said in his ruling that the
content of his comments qualify as political speech, which merits the utmost
protection.

In his order
issued Aug. 28, District Court Judge David Archuleta writes, “Although I do not believe that
Petitioners [the city] necessarily intended to silence the Respondent’s
political speech, it is clear to me that approving a permanent protection order
in this case would do just that … . The statutory and case law of Colorado and
the United States vigorously protects political speech, and any order sought to
restrain it must be on very solid footing.”

Archuleta
concludes, “In sum, although I have considered this case very carefully, given
the strongly held and well-articulated positions of each party, this case is
not a particularly compelling one for me. The threat posed by the Respondent is
not imminent, and the request for the permanent protection order must,
therefore, be denied.”

The judge seems
to have been particularly convinced by the testimony of council member Lisa
Morzel, whose affidavit in support of Brigham was submitted to the judge earlier
this week. In that affidavit, Morzel says she has never found Brigham “violent,
threatening or otherwise dangerous.”

Archuleta quotes
several portions of Morzel’s affidavit, including the following statement:
“With respect to the permanent restraining order against Seth, I think it is
excessive and unnecessary and sets a very bad precedent. Even if we silence
Seth, other citizens will continue to criticize different actions of the city
council or individual council members, and then who will we silence next?”

Archuleta says
he agrees with her sentiments, adding, “What could be better evidence of the
nature of the Respondent’s conduct and his supposed danger than the experience
and thoughts of a veteran Council Member having experienced the actions of the
Respondent? Her affidavit is quite persuasive.”

Archuleta
concludes that not only has the city failed to establish that Brigham presented
an imminent danger, “there are other more appropriate remedies” that the city
should turn to before resorting to a restraining order that infringes on
someone’s free speech rights.

In an email
responding to the ruling, Brigham’s attorney, David Lane, referred to a
February 2010 incident in which the city kicked Brigham out of a council
meeting and arrested him after he showed up wearing only boxer shorts. It cost
the city $10,000 to settle the ensuing lawsuit.

“Boulder has a pattern of violating Seth Brigham’s First
Amendment rights,” Lane told BW. “The
last violation cost them $10,000 and they failed to learn a lesson. Here, they
sought a restraining order for improper purposes and they lost. That is abuse
of process and they can either settle again with Seth for more money or go to
United States District Court as defendants in a First Amendment lawsuit and let
a federal judge and jury decide the issue. In either event, their disregard of
the law will cost Boulder taxpayers more money.”

The city issued the following statement in response to the ruling: “The City of Boulder is disappointed in the court’s ruling. The city did not make the decision to seek a protective order against Mr. Brigham lightly. The concern was – and continues to be – public safety and safety of public officials from behavior that is erratic and threatening. The city believes that Dr. [John] Nicoletti’s testimony established that Mr. Brigham’s escalating behavior is cause for alarm and preventative action.”

City spokesperson Sarah Huntley told Boulder Weekly that city officials believe there are no grounds for Brigham to file a lawsuit.

“We believe that any lawsuit by Mr. Brigham would be frivolous,” she said. “It’s important to note that the court specifically made a finding in the ruling that the judge did not believe that the city was attempting to silence Mr. Brigham’s political speech or viewpoint. That was not the motivation, the city was acting in good faith.

“The city wants to make clear that we consider freedom of speech to be a core tenet of our government system, and we certainly understand that elected officials are subject to scrutiny and criticism,” she continued. “They and their families should not, however, be subjected to repeated abuse and scare tactics.”

Huntley said the city reserves the right to use other methods mentioned by the judge to deal with Brigham in the future if necessary, including ejecting him from meetings and filing criminal complaints.

The city’s cost for the legal proceedings against Brigham was not immediately available.