HomeMy WebLinkAbout2021-cv-2306-RM-KLM - Perry V. State Of Colorado, Et Al - 059 - Pl's Response To State Dfs' Motion To DismissIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:21-cv-02306-RM-KLM
Robert-Lawrence: Perry, Plaintiff
v.
Each 'STATE OF COLORADO' Individual employee,
executive officer, and/or administrative official acting
personally, individually, and/or in combination namely,
Alita King, Thomas Lynch, and Daniel McDonald, and
each 'doe' administrator, agent, and/or executive, and
Steven Vasconcellos, and 'doe' judicial administrators;
and,
The 'CITY OF FORT COLLINS', et. al., including each
Individual administrative official, agent, employee and
or executive officer, acting personally, individually, and
or together, including each individual member of the city
council and Mayor, the City Attorney, the City Manager,
Darin Atteberry, Ross Cunniff, Gerry Horak, Ray Martinez,
Kristin Stephens, Ken Summers, Wade Troxell, including
'doe' agents, administrators, executives, officers and / or
each 'doe' appointee administrator, agent, police officer,
official, and 'City' employees, namely, Brandi Lynn Neito,
Dan Callahan, Jill Hueser, and Ryan Westlind;
and,
CSU BOARD OF GOVERNORS, for 'CSU', and each
individual member of the 'CSU Board of Governors', for
'COLORADO STATE UNIVERSITY' and each 'doe' and
or named administrators, agents, employees or officials
acting personally, individually, and or together, namely,
Scott Harris, Jeff Goetz, Jesse Ihnen, Michael Lohman,
Phil Morris, Derek Smith, Lynn Johnson, Mark Gill, and
Nic Olsen, and each heir appointee and/or official; each
Individual Jointly and Severally Liable as Co-Defendants;
and,
Larimer County Board of Governors, and each individual
member personally and in his/her official capacity, and all
doe administrators, agents, employees, and officials acting
individually or together personally or in their official capacity.
1
RESPONSE TO STATE's MOTION TO DISMISS
SUMMARY STATEMENT
As a preliminary matter, Petitioner has contacted legal counsel for Defendants
and informed each of them that he intends to file a second motion to amend Second
Amended Complaint to eliminate allegations of criminal misconduct, and amend the
allegations to eliminate claims of his unlawful arrest, unlawful conviction and unlawful
imprisonment. Defendant's arguments regarding these claims, including arguments of
immunity, application of the Rooker-Feldman doctrine, and failure to state a claim for
these allegations will not apply, so these arguments will become irrelevant and moot.
Notably, none of the Defendants have responded or objected to further amendment of
the Complaint to eliminate allegations of misconduct.
Petitioner seeks declaratory and injunctive relief by Court decision whether:
a.Colorado State University 'exclusionary order' policy is unconstitutional; and,
b.Whether CSU permanent 'exclusionary orders' are unconstitutional; and,
c.Whether C.R.S. § 18-9-109 (1) prohibits exclusion from CSU campus; and,
d.Whether the City trespass ordinance applies to state property like CSU; and
e.Whether F.C.M.C. Sec. 17-1 (3) and (4) are unconstitutional as applied; and,
f.Whether Fort Collins 'camping' ordinances are facially unconstitutional; and,
g.Whether C.R.S. § 18-4-201(1) exempts public property from trespass laws.
Petitioner is not seeking relief to invalidate his arrest, prosecution, conviction or
imprisonment. Petitioner simply seeks declaratory and injunctive relief so that he may
'conduct activities of daily living', and have equal access to public property.
2
RESPONSE TO STATE's MOTION TO DISMISS
Without addressing the Defendant's arguments regarding claims and allegations
of Defendant's unlawful conduct and not including Petitioner's allegations and claims of
unlawful arrest, unlawful conviction, and unlawful imprisonment, Petitioner's arguments
are limited to just questions of law: a) the constitutionality of CSU exclusionary orders,
and the CSU policy that provides for its use; b) proper application and interpretation of:
C.R.S. § 18-9-109 (1), C.R.S. § 18-4-201(1), and c) whether the Fort Collins trespass
ordinance definitions F.C.M.C. Sec. 17-1 (3) and (4) are constitutional, and applicable to
public property, such as CSU, and d) whether the Fort Collins 'camping' ordinances are
facially unconstitutional.
CSU police officers issued an 'exclusionary order' form that permanently banned
Petitioner from all CSU property. Further, CSU police officer Derek Smith entered into
the CCIC criminal database that there is a permanent criminal restraining order against
Petitioner, although, in fact, no judge issued any such restraining order . However, what
this means is that Petitioner will be subject to arrest, prosecution, and imprisonment if
Petitioner ever sets foot on CSU property.
Notably, CSU campus is centrally located in Fort Collins. The Fort Collins bus
terminal on campus services most of Fort Collins; the Max Transfort route runs North
and South through CSU. What this means is that it is impossible for Petitioner to use
the Fort Collins public transportation. As long as Petitioner is permanently banned from
CSU property and subject to enforcement of the City 'trespass' ordinance for being on
public property, Petitioner will suffer an injury in fact and have standing.
3
RESPONSE TO STATE's MOTION TO DISMISS
CONSTITUTIONAL REVIEW STANDARD
The United States Constitution Amendment XIV, Section 1 states:
“No state shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any state deprive any
person of life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.”
The Mathews balancing test requires balancing the Right, Liberty or Interest in
property, and the probability of erroneous deprivation of that interest, compared with a
legitimate public interest that government seeks to serve by such action or policy that
deprives the Liberty, Rights or property Interests of such individuals by such action or
policy. See Mathews v. Eldridge, 424 US 319, 332, 96 S Ct 893, 47 L Ed 2d 18 (1976).
Plaintiff submits these issues, including whether CSU 'exclusionary order' policy,
Fort Collins 'camping' and 'trespass' ordinances, as written and applied, are lawful:
Whether CSU 'exclusionary orders', City 'camping' and 'trespass' ordinances, as
written and/or applied, denies, substantially or unreasonably interferes with Plaintiff in
the practical exercise of his rights guaranteed by the U.S. Constitution.
Whether the challenged exclusionary order and ordinances as written or applied
are not reasonably related to achieving a legitimate public interest, or disproportionately
severe in relation to the affect of denying or impairing Plaintiff's constitutional rights.
Whether the challenged exclusionary order and City ordinances as written or
applied denies, impairs or fundamentally infringes upon Plaintiff's constitutional rights or
His Inalienable Personal Interests in 'conducting activities of daily living', and whether
such infringement of His Constitutional and Inalienable Rights constitutes a 'Taking'.
4
RESPONSE TO STATE's MOTION TO DISMISS
ARGUMENT
State Defendant's cannot 'exclude' banish anyone from public property .
CSU Defendant's assert that the 'trespass' ordinance may be applied to public
property to permanently ban anyone; similarly, State Defendant's assert that the state
trespass statute may be applied to public property to permanently ban anyone ; these
assertions presume that banishment is lawful, which is proven false by these cases:
People v. Blakeman, 170 Cal. App. 2d 596, 339 P.2d 202 (Dist. Ct. App. 1959);
the California Court of Appeals overturned the county court order probation revocation
based upon violation of a district court order of banishment as a condition of probation.
The district court order of probation on condition of banishment was determined to be
void citing: In re Scarborough, 76 Cal.App.2d 648 [ 173 P.2d 825], an order suspending
sentence on a condition of banishment for two years was deemed the granting of
probation upon a void condition.
Said the court: "The same principle which prohibits the banishment of a criminal
from a state or from the United States applies with equal force to a county or city .
The old Roman custom of ostracizing a citizen has not been adopted in the United
States. The so-called `floating sentence,' [‘suspended sentence or ‘deferred judgment’]
too frequently resorted to in some inferior courts, falls in the same category. There is
no statute in California authorizing such judgments." (P. 650. See also the authorities
cited on p. 649 of 76 Cal.App.2d, and 15 Am.Jur. 112, Crim. Law, § 453.)
Ex parte Scarborough, 76 Cal. App. 2d 648, 173 P.2d 825 (Dist. Ct. App. 1946);
The probation condition contained in the judgment that it would be suspended in part if
the defendant left Stockton and San Joaquin County and remained away for two years,
is, in effect, an unlawful increase of punishment by banishment not provided by statute,
and therefore void. (People v. Baum, 251 Mich. 187 [ 231 N.W. 95, 70 A.L.R. 98]; Ex
parte Sheehan, 100 Mont. 244 [ 49 P.2d 438, 442]; People v. Lopez, 81 Cal. App. 199,
203 [ 253 P. 169]; 24 C.J.S. § 1991, p. 1216.) In holding that a condition of a judgment
requiring banishment from the state is illegal and void, the court said in the Baum case,
supra, that: "To permit one state to dump its convict criminals into another would entitle
the state believing itself injured thereby to exercise its police and military power, in the
interest of its own peace, safety, and welfare, to repel such an invasion. It would tend to
incite dissension, provoke retaliation, and disturb that fundamental equality of political
rights among the several states which is the basis of the Union itself. Such a method of
punishment is not authorized by statute, and is impliedly prohibited by public policy."
Banishment is not acknowledged as lawful punishment in any state.
5
RESPONSE TO STATE's MOTION TO DISMISS
The City enforced CSU 'exclusionary orders' applying the trespass ordinance to
public property under presumption that CSU has the authority to deny access to anyone
for any reason, such as: 'feeding squirrels'. The United States District Court issued the
following opinion over 50 years ago in Dunkel v. Elkins, 325 F. Supp. 1235 (1971).
“Defendants urge that plaintiff's use of public land and property is a "privilege
withdrawable by the State at any time for any reason." We do not agree. While the
State undoubtedly possesses power to control the use made of its premises, it cannot
do so without regard to the Constitution.”
Also, this point of law was specifically addressed in Watson v. Board of Regents
of University of Colorado 512 P.2d 1162 , when the Colorado Supreme Court issued
the opinion that:
“The Colorado Supreme Court has labeled the access and use of public facilities,
such as parks, as a “fundamental” right.
The University of Colorado opened its doors to the public. Accordingly, on this
basis, we hold that a non-student's right to access to University functions and
facilities, which are open to the public at-large, cannot be permanently denied
without due process of law under the Fourteenth Amendment...” Adding:
“Plaintiff urges that the University's exclusion order was void because it
issued without procedural due process, i.e., a hearing was not afforded plaintiff
prior to his exclusion from University property. We agree .” This was the opinion in
People in Interest of J.M., 768 P.2d 219, 221 (Colo. 1989).
This case was cited in a 2017 Colorado District Court case:
The City and County of Denver Parks and Recreation Department implemented a
temporary policy, to ban someone for up to (90) days for using drugs in Denver parks.
Denver Police used this city parks directive to issue an exclusionary order banning the
defendant for smoking marijuana in Denver's City park. The court ruled in favor of
the defendant's individual interests in access and use of public property .
6
RESPONSE TO STATE's MOTION TO DISMISS
CSU campus police website contains university policies and regulations; there is
no CSU policy or regulation against 'feeding squirrels', nor is it even a city ordinance.
CSU police 'exclusionary order' policy cites C.R.S. 18-9-109 as legal authority
that 'authorizes' them to issue an 'exclusionary order' form, that were issued against
Plaintiff solely on the basis of allegedly 'feeding squirrels'. However,
C.R.S. § 18-9-109 (3) states: “No person shall willfully refuse or fail to leave the
property of or any building or other facility used by any educational institution upon
being requested to do so by the chief administrative officer, his designee charged with
maintaining order on the school premises and in its facilities, or a dean of such
educational institution, if such person is committing, threatens to commit, or incites
others to commit any act which would disrupt, impair, interfere with, or obstruct
the lawful missions, processes, procedures, or functions of the institution .”
At no time before or during the trespass trials did any CSU police officer testify
that Plaintiff committed any act that would disrupt, impair, interfere with, or obstruct the
lawful missions, processes, procedures, or functions of the institution.
C.R.S. § 18-9-109 (2) states:
No person shall, on the premises of any educational institution or at or in any
building or other facility being used by any educational institution, willfully impede the
staff or faculty of such institution in the lawful performance of their duties or willfully
impede a student of the institution in the lawful pursuit of his educational activities
through the use of restraint, abduction, coercion, or intimidation or when force
and violence are present or threatened.” (Emphasis added)
At no time before or during the trespass trials did any CSU police officer testify
that Plaintiff committed any act that might impede the staff or faculty of such institution
in the lawful performance of their duties or willfully impede a CSU student in the lawful
pursuit of his educational activities through the use of restraint, abduction, coercion,
or intimidation, or threatened use of force or violence .
7
RESPONSE TO STATE's MOTION TO DISMISS
SUMMARY ARGUMENT
Plaintiff's claims are grounded upon his Fourteenth Amendment rights; that: “No
state shall make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any state deprive any person of life, liberty, or
property, without due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws.”
Plaintiff asserts that CSU 'exclusionary orders' are unlawful because they allow
CSU police to commit a crime; denying lawful access and use of CSU premises in
violation of C.R.S. § 18-9-109 (1). CSU 'exclusionary orders' are unconstitutional as
supported by precedent, in Watson v. Board of Regents of University of Colorado 512
P.2d 1162, in the Colorado Supreme Court, and Dunkel v. Elkins, 325 F. Supp. 1235,
by the United States District Court. Permanent CSU 'exclusionary orders' are also
unconstitutional as 'bills of pains and penalties', and cruel and unusual punishment.
C.R.S. § 18-9-109 (1) states:
(1) “No person shall, on or near the premises or facilities of any educational institution,
willfully deny to students, school officials, employees, and invitees:
(a) Lawful freedom of movement on the premises;
(b) Lawful use of the property or facilities of the institution ;
(c) The right of lawful ingress and egress to the institution's physical facilities .”
C.R.S. § 18-4-201 defines what misconduct would constitute "enters unlawfully"
or "remains unlawfully", and states: “A person who, regardless of his or her intent,
enters or remains in or upon premises that are at the time open to the public does
so with license and privilege unless the person defies a lawful order not to enter
or remain, personally communicated to him or her by the owner of the premises or
some other authorized person.”
8
RESPONSE TO STATE's MOTION TO DISMISS
Because C.R.S. § 18-4-201 states that the public have license and privilege to
enter and remain on property open to the public; by definition, Plaintiff did not trespass
upon CSU; nevertheless, Plaintiff was convicted and imprisoned. Further, the county
court issued a judgment and sentencing order that stated Plaintiff was prohibited from
going to CSU for one year from January 22, 2020. Therefore, Plaintiff asserts that the
statute of limitations extended to January 22, 2022; so, Plaintiff's claims for violation of
his Fourteenth Amendment rights has not expired; so, the Court has subject matter
jurisdiction to grant relief under Title 42 U.S Code §§ 1981, 1983, 1985, and 1986.
To the extent that Defendant's object to Plaintiff's claim of nominal damages for
the deprivation of his Inalienable, Individual, and Constitutional right to due process and
equal protection of the law, Plaintiff hereby withdraws his claim for this Court to award
him compensation of one dollar. However, Plaintiff reserves all claims for declaratory
judgment and injunctive relief . To the extent that this Court lacks jurisdiction to vacate
the trespass conviction, Plaintiff hereby withdraws his claims of unlawful conviction, yet
Plaintiff reserves his claims for declaratory judgment and injunctive relief regarding the
constitutionality of CSU 'exclusionary orders ', and Lawful interpretation of the trespass
statute as applied to public places, like CSU. Plaintiff also reserves his claim for relief
regarding the lawful interpretation of C.R.S. § 18-9-109(1), which refers to “invitees” as
having implied access, entry and use of all facilities open to the public of educational
institutions, like CSU. Further, Plaintiff reserves his claim for declaratory judgment and
injunctive relief regarding the CCIC record of a permanent protective order .
9
RESPONSE TO STATE's MOTION TO DISMISS
Counsel for Defendant's asserts numerous defenses and case citations; none of
which are applicable to the facts of this case. Plaintiff is well aware that civil procedure
requires a defendant to assert all defenses under any conceivable theory; however, in
this case defense counsel asserts defenses that are not applicable whatsoever. Other
than the defense assertion that this Court lacks subject matter jurisdiction to reverse the
'trespass' convictions, all other defenses and case citations are inapplicable to the facts
of this case. Plaintiff could write a lengthy brief refuting each defense and case citation;
however, Plaintiff is restricted to page and word lengths by civil procedure rule.
Plaintiff is not seeking monetary damages; thus, he is not required to prove
injury. Also, Plaintiff is not seeking reversal of his trespass convictions ; thus, the
Rooker-Feldman doctrine does not apply in this case . Further, Plaintiff is not asserting
claims against the 'State of Colorado' or 'Colorado State University' entities ; Plaintiff is
asserting claims against identified individuals, acting in official capacities, under color of
law, on behalf of the “State of Colorado”, and/or “Colorado State University”. Plaintiff
asserts claims of intentional violations of his inalienable, civil and constitutional right to
due process and equal protection of the law; he seeks only declaratory judgment and
injunctive relief from actual and continuing injuries from a CSU permanent exclusionary
order and permanent protective order that permanently denies Plaintiff access and use
of CSU campus and the central public bus transportation facility located on CSU. CSU
permanent 'exclusionary orders' are unconstitutional as bills of attainder and cruel and
unusual punishment, and deprive procedural and substantive due process.
10
RESPONSE TO STATE's MOTION TO DISMISS
State Defendants' each argue that they have sovereign immunity for each entity
and each individual acting in their official capacity; however, this is not true when such
individual has acted in contravention of the Constitution and law ; no state Defendant is
entitled to 'sovereign immunity' to violate the laws; no individual Defendant may claim
'sovereign immunity' for committing crimes while acting in official capacity that were
committed in this case. State Defendant's also argue the statute of limitations has run
on each claim. However, Plaintiff's injuries result from distinct and continued unlawful
acts at trial and sentencing to jail and court ordered exclusion from CSU . Plaintiff still
cannot go to CSU or use the central public transportation bus station located on CSU
campus. Further, Plaintiff is subject to a permanent criminal protective order illegally
entered by CSU campus police officer Derek Smith on the same day that he issued an
'exclusionary order' and a citation for trespass under C.R.S. § 18-4-504. Also, Plaintiff
continues to be permanently excluded (banished) from CSU, and deprived access and
use of the central public bus transportation facility located on CSU campus.
Also, Plaintiff asserts claims of violation of his Fourteenth Amendment right to
due process and equal protection of the law because individual state officials enforced
C.R.S. § 18-4-504, the trespass statute, which denied him equal protection of the law,
C.R.S. § 18-4-201, which states that the public have license and privilege to enter or
remain on public property, like CSU. Upon conviction, the county court ordered and the
district court affirmed the judgment and order that Plaintiff was not permitted to enter
CSU property for one year from January 22, 2020 .
11
RESPONSE TO STATE's MOTION TO DISMISS
ARGUMENT
Defendant individuals are not entitled to sovereign immunity.
Although C.R.S. § 18-4-201, states that the public has license and privilege to
enter and remain on public property, such as CSU, and C.R.S. § 18-9-109 (1) prohibits
denying access and use of educational institutions , like CSU; yet, CSU adopted and
enforced an 'exclusionary order' policy permanently denying Plaintiff access and use of
CSU campus. Then, CSU campus police enforced their 'exclusionary order' forms by
issuing Plaintiff trespass citations. At trial, where all defense evidence and testimony
was excluded as “irrelevant” to the issue whether Plaintiff defied a CSU 'exclusionary
order', and since the jury was not advised of the legal definition of “unlawfully enters or
remains” provided by C.R.S. § 18-4-201, which states that the public have license and
privilege to enter or remain on public property , like CSU; the ill-informed jury convicted
Plaintiff of 'trespass' under C.R.S. § 18-4-504, which has never been applied to public
property. Also, the county court judge and prosecutor conspired and engaged in jury
tampering by dismissing two (2) jurors, then seated a clerk from the prosecutors' office
on the jury after the prosecution had rested its case . Upon conviction, the county court
judge imposed sentence of 60 days in jail, with 54 days suspended upon condition that
Plaintiff not go to CSU property or have any contact whatsoever with CSU employees.
Plaintiff's appeal of the trespass conviction and sentencing order was denied by some
unidentified individuals in the office of judicial administration, who wrote the 'Judgment
Affirming Conviction' and forged the judge's signature with a PDF copy.
12
RESPONSE TO STATE's MOTION TO DISMISS
The United States Supreme Court decision in Ex parte Young , 209 U.S. 123
(1908), does provide an additional exception to immunity in certain suits for prospective
declaratory judgment or injunctive relief against state officials . Under Ex parte Young
and its progeny, the Eleventh Amendment will not bar a suit against a state official
providing that the plaintiff seeks (1) only declaratory or injunctive relief that is properly
characterized (in substance) as forward looking relief rather than money damages ; (2)
for an ongoing violation of federal law ; (3) aimed at state officers acting in their official
capacities, not the state itself. Hill v. Kemp, 478 F.3d 1236, 1255-56, 1259 (10th Cir.
2007). Note that, 'Ex parte Young' requires a nexus between the individual defendant
and ‘enforcement’ of the challenged statute.” Peterson v. Martinez, 707 F.3d 1197, 1206
(10th Cir. 2013) (citation omitted) (emphasis in original).
In this case, Plaintiff asserts facts that individual Defendant's, acting under color
of law, in their official capacities, did deny Plaintiff's Fourteenth Amendment Right to
due process and equal protection of the law, and deprived him of liberty and privileges
by unlawfully enforcing the trespass statute, C.R.S. § 18-4-504 by not advising the jury
that by definition, pursuant to C.R.S. § 18-4-201 the public have license and privilege to
enter and remain on public property, and by tampering with the jury by seating a clerk
form the prosecutor's office on the jury. Further, Plaintiff asserts facts that unidentified
individual Defendant's in the office of judicial administration, who wrote the 'Judgment
Affirming Conviction' and forged the judge's signature with a PDF copy ; thus, Plaintiff
was denied due process and lawful appeal of his 'trespass' conviction.
13
RESPONSE TO STATE's MOTION TO DISMISS
Individual identified Defendant, CSU campus police officer, Derek Smith, in his
official capacity, acting under color of law issued Plaintiff an 'exclusionary order' form;
exclusionary orders issued by university officials has been determined unconstitutional
by at least two (2) superior courts, which Plaintiff cited in each 'trespass' case.
'Exclusionary orders' as was issued by CSU campus police were determined to
be unconstitutional in Watson v. Board of Regents of University of Colorado 512 P.2d
1162, in the Colorado Supreme Court, and Dunkel v. Elkins, 325 F. Supp. 1235, by
the United States District Court. CSU 'exclusionary orders' are also unconstitutional
as 'bills of pains and penalties' or 'Bills of Attainder, since they impose punishment of
'exclusion' without benefit of a judicial trial. Further, 'exclusion' or 'banishment' is not
provided for as punishment by any federal or state law , and was determined to be
unconstitutional. Also, CSU police 'exclusionary orders' are permanent unless lifted,
which constitutes cruel and unusual punishment. Plaintiff has been denied procedural
and substantive due process and equal protection of the law.
Individual Defendant's Jeff Goetz, Jesse Ihnen, Michael Lohman, Phil Morris, and
Derek Smith, each CSU police officers, testified that they issued and/or enforced CSU
'exclusionary order' in accordance with CSU policy; thereby they confessed to violating
C.R.S. § 18-9-109 (1) that prohibits denying access and use of educational institutions ,
like CSU. These officers confessed and testified that they denied Plaintiff's Fourteenth
Amendment Right to due process and equal protection of the law, and did enforce a
state statute to deprive Plaintiff's privilege of equal access and use of CSU.
14
RESPONSE TO STATE's MOTION TO DISMISS
Plaintiff alleges facts that then CSU Police Chief, Scott Harris, acting under color
of law, and in his official capacity, permanently denied Plaintiff's Fourteenth Amendment
right of equal access and use of CSU campus, and that Vice President for University
Operations and CFO, Lynn Johnson, who adopted and amended CSU 'exclusionary
order' policy to abandon the previous reference to state law, and appointed Nic Olsen
then CSU employee, to unilaterally affirm the 'exclusionary order' against Plaintiff, and
that then CSU Chief of Staff, Mark Gill, acted individually, and in coordination with the
Chief of Police, in his official capacity when he denied Plaintiff's appeal to enforce CSU
'exclusionary order' policy, and willfully, permanently denied Plaintiff access and use of
CSU property and all facilities thereon, including the Fort Collins public transportation
central bus terminal located on campus.
Plaintiff alleges facts that Larimer County prosecutor, Alita King, Larimer County
Judge Thomas L. Lynch, acting in their official capacities violated Plaintiff's Fourteenth
Amendment right to due process and equal protection of the law, by tampering with the
jury by seating a clerk from the prosecutor's office on the jury , and deprived him of
liberty and privileges by unlawfully enforcing the trespass statute C.R.S. § 18-4-504 in
not advising the jury that, by definition, pursuant to C.R.S. § 18-4-201 the public have
license and privilege to enter and remain on public property, and unidentified individual
Defendant's in the office of judicial administration, who wrote the 'Judgment Affirming
Conviction' and forged the judge's signature with a PDF copy ; thus, Plaintiff was denied
substantive due process and lawful appeal of his 'trespass' conviction.
15
RESPONSE TO STATE's MOTION TO DISMISS
CITATIONS OF LAW
C.R.S § 23-30-102 (1) identifies the CSU Board of Governors authority; stating:
“The board of governors of the Colorado state university system is a body corporate,
capable in law of suing and being sued ; ... having duties and powers to control,
manage, and direct the fiscal and all other affairs of the Colorado state university
system and the entities it governs; and of causing to be done all things necessary to
carry out the provisions of this article.
C.R.S § 23-31-103 states that: “The board of governors of the Colorado state
university system has the general control and supervision of the Colorado state
university and lands and the use thereof , which may be vested in the university by
state or national legislation and of all appropriations made by the state for the support of
the same. The board has plenary power to adopt all such ordinances, bylaws, and
regulations, not in conflict with the law , as they may deem necessary to secure the
successful operation of the university and promote the designed objects.”
C.R.S. 23-31-106 states that: “The president shall be chief executive officer of
the Colorado state university , and it is his or her duty to see that the rules and
regulations of the board of governors of the Colorado state university system and
the faculty are observed and executed.”
C.R.S. 23-31-107 states that CSU President may remove officers.
“The subordinate officers and employees , not members of the faculty, shall be
under the direction of the president and removable at his or her discretion .”
C.R.S. 23-30-116 states that: “It is the duty of the board of governors of the
Colorado state university system to choose the presidents of the institutions it
governs.”
C.R.S. 23-30-117 states that:
“Pursuant to section 23-30-113, the board of governors of the Colorado state university
system may delegate to the presidents of the institutions it governs the power to choose
such professors and staff as the necessities of their institutions require.
C.R.S. 23-31-104 states who shall constitute CSU faculty. “The president and the
faculty shall constitute the faculty of the Colorado state university.”
C.R.S. 23-31-105 states that:
“The faculty shall have the responsibility for making academic policy and governing the
academic affairs of the Colorado state university.
16
RESPONSE TO STATE's MOTION TO DISMISS
Defendant, CSU Board of Governors, is liable under United States and Colorado
law for Plaintiff's claims relating to violation of His Civil and Constitutional Rights as is
provided for by Article II, Section 15 of the Colorado Constitution, and as provided by
C.R.S. 38-1-101 et. seq., C.R.S § 13-21-131, and by (2nd) Restatement of Contracts,
and civilly liable for depriving Plaintiff of His civil rights in violation of Title 42 U.S.C. §
1981, §1983, §1985, and §1986, and liable under Title 18 U.S.C. §241, §242. Further,
non-government Defendant Individuals , including administrative officials at Colorado
State University are liable because they participated in denying Plaintiff equal access
and use of CSU campus by adopting the CSU 'exclusionary order' policy and enforcing
such policy in coordination with campus police, in violation of Plaintiff's Rights. In fact,
CSU 'exclusionary order' policy violates CSU policy on discrimination. Ironically, CSU
administrative officials and campus police violate their own policy.
Colorado State University Policy ID#: 6-0160-001 states that: “Discrimination is
defined as: conduct that (a) excludes an individual from participation in , (b) denies
the individual the benefits of , (c) treats the individual differently from others in, or
(d) otherwise adversely affects a term or condition of an individual’s employment,
education, living environment or University program or activity.”
Title 42 U.S. Code § 1981 (a) Statement of equal rights:
“All persons within the jurisdiction of the United States shall have the same right
in every State and Territory to make and enforce contracts, to sue, be parties, give
evidence, and to the full and equal benefit of all laws and proceedings for the
security of persons and property as is enjoyed by white citizens, and shall be subject
to like punishment, pains, penalties, taxes, licenses, and exactions of every kind,
and to no other.”
Further,
(c) Protection against impairment
The rights protected by this section are protected against impairment by
nongovernmental discrimination and impairment under color of State law .
17
RESPONSE TO STATE's MOTION TO DISMISS
Counsel for Defendants disingenuously asserts that all individual Defendants are
covered under the umbrella of agents for the State of Colorado and entitled to sovereign
immunity as state officials; this assertion is false and misleading. Individual Defendants
are not immune from claims that they acted in their official capacity, under color of law,
and deprived Plaintiff of his Fourteenth Amendment rights. Defense counsel cites the
Colorado Constitution article VIII, § 5 to assert that the CSU Board of Governors is an
arm of the state; yet, CSU Board of Governors is liable for the supervision of CSU.
Colorado Constitution of 1876 Art. VIII, § 5. Educational institutions
(2) The governing boards of the state institutions of higher education, whether
established by this constitution or by law, shall have the general supervision of
their respective institutions and the exclusive control and direction of all funds of and
appropriations to their respective institutions, unless otherwise provided by law.
Though, defense counsel is correct that CSU is not an entity capable of suing or
being sued in its own name; yet, CSU is governed by the CSU Board of Governors, not
by the State of Colorado. However, individual Defendants are liable for claims that they
acted in their official capacity, under color of law, and deprived Plaintiff of his Fourteenth
Amendment rights; especially, since Plaintiff is seeking only declaratory judgment and
injunctive relief. Defense counsel even cites C.R.S § 23-30-102, which states that CSU
Board of Governors is a corporate body capable of suing and being sued.
C.R.S § 23-30-102 (1) identifies the CSU Board of Governors authority; stating:
“The board of governors of the Colorado state university system is a body corporate,
capable in law of suing and being sued ; ... having duties and powers to control,
manage, and direct the fiscal and all other affairs of the Colorado state university
system and the entities it governs; and of causing to be done all things necessary to
carry out the provisions of this article.”
18
RESPONSE TO STATE's MOTION TO DISMISS
SUMMARY CONCLUSION
Plaintiff has stated facts to support claims asserted under Title 42 U.S. Code §§
1981, 1983, 1985, and 1986 to prove that individual Defendant's, acting under color of
law, did knowingly and willfully, deprive Plaintiff of his lawful individual right of access
and use of CSU campus by issuing 'exclusionary orders' ruled unconstitutional over 50
years ago by the Colorado Supreme Court in Watson v. Board of Regents of University
of Colorado 512 P.2d 1162, and by the United States District Court in Dunkel v. Elkins,
325 F. Supp. 1235 (1971). Such denial of equal access to university property is also
considered a violation of C.R.S. § 18-9-109(1).
CSU police enforced the permanent 'exclusionary order' with 'trespass' citations
under C.R.S. § 18-4-504, though C.R.S. § 18-4-201 states that the public has license
and privilege to enter and remain on property open to the public . Further, CSU police
cited Petitioner with 'trespass' under the City ordinance that grants police authority to
permanently deny access to public property, which conflicts with C.R.S. § 18-4-201, so
the City is not entitled to assert home-rule status. Petitioner continues to be subject to
permanent exclusion from CSU, therefore, he is entitled to prospective relief.
Wherefore,
Petitioner respectfully requests the Court deny the State's Motion to Dismiss.
Dated: This 27th day of June 2022.
Signed by: s/s: Robert-Lawrence: Perry, Man
19
RESPONSE TO STATE's MOTION TO DISMISS
CERTIFICATE OF SERVICE
I, Robert-Lawrence: Perry, Plaintiff, hereby certify that I sent a complete, correct
and true copy of the foregoing Response to State's Motion to Dismiss addressed to
each Attorney of Record for all Defendants by first-class U.S. Mail, postage pre-paid,
and/or by emailing documents, such as agreed by consent to the following:
Attorneys for Defendants,
The City of Fort Collins, et al.Colorado State University, et, al.
Darin Atteberry, City Manager Attn.: Jannine Mohr, Attorney
300 La Porte Ave., (City Hall)1300 Broadway, 10th Floor
Fort Collins, CO 80522 Denver, Colorado 80203
Phone: (970) 221-6520 Phone: (720) 508-6000
hoffmank@hallevans.com Skip.Spear@coag.gov
ratnerm@hallevans.com Allison.Ailer@coag.gov
The State of Colorado, et. al.CSU Board of Governors, for:
for: Steven Vasconcellos Colorado State University, et al.
1300 Broadway, 10th Floor 555 seventeenth St., Suite 1000
Denver, Colorado 80203 Denver, Colorado 80201
Phone: (720) 508-6000 Phone: (970) 491-6425
Carman.VanPelt@coag.gov Denise.Munger@coag.gov
Dated this: June 27, 2022
Signed pursuant to C.R.S. 4-3-402 by, /s/ Robert-Lawrence: Perry, Man
Robert-Lawrence: Perry, Trustee for:
4786 McMurry Ave., Unit 242 ROBERT LAWRENCE PERRY, Person
Fort Collins, Colorado 80525
fort_scout@yahoo.com
Phone: (970) 980-1849
20
RESPONSE TO STATE's MOTION TO DISMISS