HomeMy WebLinkAbout2023-1112 - Perry V. State Of Colorado, Et Al. - 02 - Opening BriefV.
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UNITED STATES TENTH CIRCUIT COURT OF APPEALS MAY 30 2023
Case# 23-1112, Appeal from U.S. District Ccffl!IRISTOPHERM WOLPER'r
Civil Action No. 1 :21-cv-02306-RM-KLM Clerk.
Robert-Lawrence: Perry, Appellant/ Petitioner
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;
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;
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
Nie Olsen, and each heir appointee and/or official; each
Individual Jointly and Severally Liable as Co-Defendants.
APPELLANT'S OPENING BRIEF
APPELLANT'S OPENING BRIEF
1
Appellate Case: 23-1112 Document: 010110866541 Date Filed: 05/30/2023 Page: 1
JURISDICTIONAL STATEMENT
Appellant, Mr. Perry appeals the District Court Order affirming the magistrate's
order dismissing all claims. See 28 U.S.C. §1291 and Fed. R. App. P. 4(a)(4)(B)(i).
BACKGROUND
Petitioner, Mr. Perry, has lived in Fort Collins, Colorado continuously since 1990;
he is 68 years old; he is 'indigent' and he subsists on state food assistance and social
security disability benefits. Colorado State University is centrally located within the city
of Fort Collins. Mr. Perry attended Colorado State University and graduated in 1994.
In 2019, Colorado State University campus police issued Mr. Perry a permanent
'exclusionary order', which is a form that acts like a personal 'no trespass' notice, that
was enforced by application of the Fort Collins municipal ordinance against trespassing
that allows police officers to permanently banish anyone from public property with just
verbal notice. The Fort Collins city trespass ordinance has been routinely employed to
banish homeless people from public places. The City of Fort Collins is notable for the
numerous challenges to city ordinances, which are applied exclusively on the homeless
people in the area; such as the ACLU cases challenging the camping, panhandling and
so-called 'sit-lie' ban ordinances; all of which were adjudged unconstitutional.
Contemporaneously, when Colorado State University (hereinafter CSU) campus
police issued Mr. Perry a permanent 'exclusionary order' they also issued two citations
for alleged 'trespassing' on CSU property.
2
APPELLANT'S OPENING BRIEF
Appellate Case: 23-1112 Document: 010110866541 Date Filed: 05/30/2023 Page: 2
CSU campus police cited Plaintiff with 'trespass' under C.R.S. § 18-4-504, and
Fort Collins Municipal Code (F.C.M.C.) section 17-40(a), that applies the definition of
"Enter or remain unlawfully" defined by F.C.M.C. Sec. 17-1. However, neither the state
trespass statute nor city trespass ordinance applies to public property, like CSU.
C.R.S. § 18-4-201 defines what conduct would constitute "enters unlawfully" or
"remains unlawfully", and provides exception for public property: thus, Plaintiff should
not have been cited for 'trespass on CSU campus. In fact, C.R.S. § 18-9-109 prohibits
denying access and use of educational facilities, such as CSU.
At trial, Plaintiff was found 'guilty' of 'trespass' under the Fort Collins Municipal
Code (F.C.M.C.) Sec. 40(a), which is broadly interpreted and enforced by local police
officers to discriminatorily verbally ban anyone from public property without reason.
Also, Plaintiff was found 'guilty' of 'trespass' under C.R.S. § 18-4-504, which is
interpreted and applied to presume that CSU 'exclusionary orders' are lawful; though
this was never proved, and C.R.S. § 18-9-109(1) prohibits anyone from denying lawful
access and use of educational facilities. The judge and prosecutor conspired to deny
Plaintiff due process by excluding any evidence, legal argument or testimony to prove
CSU 'exclusionary orders' are unlawful. The judge and prosecutor even committed jury
tampering by seating a clerk from the prosecutor's office on the jury. (A felony)
The City of Fort Collins prosecuted Plaintiff seven (7) times for 'camping', which
is vaguely and broadly defined as: "to spend the night, reside or dwell temporarily,
or to conduct activities of daily living such as eating or sleeping."
3
APPELLANT'S OPENING BRIEF
Appellate Case: 23-1112 Document: 010110866541 Date Filed: 05/30/2023 Page: 3
STATEMENT OF THE CASE
Plaintiffs 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."
4
APPELLANT'S OPENING BRIEF
Appellate Case: 23-1112 Document: 010110866541 Date Filed: 05/30/2023 Page: 4
Petitioner brings suit against numerous Fort Collins and Colorado authorities in
their official and personal capacities for violating his constitutional, civil and inalienable
rights. Petitioner alleges that CSU police, with authorization of CSU administrators, and
with knowledge and/or with authorization of CSU Board of Governors, did permanently
ban Petitioner from all CSU property by issuing a 'exclusionary order, thereby denying
access to all public accommodations, including access to public transportation. CSU
police 'exclusionary order' policy is enforced with trespass citations under Fort Collins
'trespass' ordinance that grants police dictatorial discretion to permanently ban anyone
from public property for any reason or no reason whatsoever. Petitioner was banned
from CSU for allegedly 'feeding squirrels' and issued (3) three 'trespass' citations for
exercising his right of access to public facilities, including the public bus transportation
terminal on CSU property. Petitioner challenges whether the City 'trespass' ordinance
may be enforced on Colorado property. particularly public property, such as CSU, and
especially when the City 'trespass' ordinance equally enforced would necessarily mean
that it would be enforced against all Colorado residents and out-of-state students and
visitors to CSU and Fort Collins, including CSU 'exclusionary orders' that deny public
access to CSU property in violation of Colorado law, specifically C.R.S. 18-9-109.
Petitioner asserts that he is entitled to equal access and use of public property,
and the City 'trespass' ordinance infringes upon that right. The City claims home-rule
status allows the City to just disregard the fact that C.R.S. § 18-4-201 states the public
have license and privilege to enter and remain on public property.
5
APPELLANT'S OPENING BRIEF
Appellate Case: 23-1112 Document: 010110866541 Date Filed: 05/30/2023 Page: 5
ABBREVIATED CITATIONS OF LAW
Fort Collins Municipal Code (F.C.M.C.) 17-40(a) states in pertinent part:
"No person shall enter or remain unlawfully in or upon property, whether publicly or
privately owned."
F.C.M.C. Section 17-1 states in part: "Enter or remain unlawfully" shall mean:
(1) To enter or remain in or upon public or privately owned property when not
licensed, invited, privileged or otherwise authorized to do so; ... "
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, ... "
C.R.S. § 18-1-901 (3)(n) defines "Public place" and states:
"Public place" means "a place to which the public or a substantial number of the
public has access, and includes but is not limited to highways, transportation facilities,
schools, places of amusement, parks, playgrounds, and the common areas of public
and private buildings and facilities."
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."
SUPPORTING CITATIONS OF CASE PRECEDENT
In Dunkel v. Elkins, 325 F. Supp. 1235, the U.S. District Court stated that:
"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."
In the case of Watson v. Board of Regents of University of Colorado 512 P.2d
1162, the Colorado Supreme Court issued the opinion that:
"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 ... "
6
APPELLANT'S OPENING BRIEF
Appellate Case: 23-1112 Document: 010110866541 Date Filed: 05/30/2023 Page: 6
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 'trespass' and 'camping' ordinances, as written and applied, are lawful:
Whether an administrative regulation, ordinance or statute as written or applied
denies, substantially prohibits, or unreasonably interferes with Plaintiff in the practical
exercise of his rights guaranteed by the United States Constitution.
Whether an administrative regulation, ordinance or statute as written or applied
is 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 administrative policy, regulation, ordinance or statute as written or
applied denies, impairs or fundamentally infringes upon Plaintiffs 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'.
7
APPELLANT'S OPENING BRIEF
Appellate Case: 23-1112 Document: 010110866541 Date Filed: 05/30/2023 Page: 7
STATEMENT OF ISSUES
Petitioner appeals the Final District Court Order [Doc 80] in the above entitled
case, and presents the following as grounds for appeal:
(1) The magistrate inappropriately refused to acknowledge individual defendants as
necessary parties to the case contrary to FedR.Civ.P. Rule 19 (a)(1 )(A). Therefore, all
individual defendants were dismissed in clear error of the law.
(2) The magistrate committed clear error by her misinterpreting Petitioner's Petition
for Relief and Motion for Declaratory Judgment as a complaint subject to dismissal.
(3) The magistrate committed prejudicial error by waiting to rule upon Petitioner's
Motion for Assignment of Counsel until issuing the recommendation, thus prejudicing
Petitioner's opportunity to further amend the Petition for Relief with legal assistance.
(4) The magistrate committed clear error of law by asserting authority to review the
Defendants' motions to dismiss in violation of 28 U.S.C. § 636(b)(1)(A).
(5) The magistrate committed clear error by her misinterpreting Petitioner's response
to the State's 'Motion to Dismiss' as his voluntary dismissal of claims against individual
state defendants in their official and personal capacities and an admission by Petitioner
that state defendant were entitled to sovereign immunity and were excused.
(6) The magistrate committed prejudicial error by her granting sovereign immunity to
state defendants including individual defendants in their official and personal capacities,
and specifically by dismissing the 'State of Colorado' and Colorado State University as
defendants 12 days before issuing her full recommendation.
8
APPELLANT'S OPENING BRIEF
Appellate Case: 23-1112 Document: 010110866541 Date Filed: 05/30/2023 Page: 8
(7) The magistrate committed clear of law and prejudicial error by determining that
and that no continuing injury exception existed to the statute of limitations, thus barred
Petitioner relief, and Petitioner did not adequately state claims for relief; to wit:
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.
(8) The magistrate committed clear of law and prejudicial error by determining that
Petitioner failed to adequately state claims for relief under Title 42 U.S. Code §§ 1981,
1983, 1985, and 1986 for violations of his Fifth, Eighth, and 14th Amendment rights.
(9) The magistrate committed clear of law and prejudicial error by determining that
Petitioner lacks any private interest right to conduct activities of daily living and private
interest right of access to public places.
(10) The magistrate committed clear of law and prejudicial error by dismissing claims
for declaratory judgment by refusing to acknowledge original subject matter jurisdiction
and incorrectly applied supplemental jurisdiction by determination that Petitioner failed
to state claims for relief against the City of Fort Collins.
9
APPELLANT'S OPENING BRIEF
Appellate Case: 23-1112 Document: 010110866541 Date Filed: 05/30/2023 Page: 9
SUMMARY ARGUMENT
CSU 'exclusionary orders' are unconstitutional as 'bill of pains and penalties' by
immediately banning Plaintiff, and unconstitutional as cruel and unusual punishment by
permanently banning Plaintiff, and unconstitutional by denying Him equal protection of
the law, and depriving Plaintiff of due process. CSU 'exclusionary orders' are unlawful
because they violate C.R.S. § 18-9-109 (1), which prohibits denying access and use of
CSU; and contrary to C.R.S. § 18-4-201, which recognizes that the public has license
and privilege to access and use public property. Therefore, the 'trespass' prosecution,
convictions, and imprisonment of Plaintiff were unconstitutional and unlawful; as such,
Plaintiff is Entitled to Declaratory and Injunctive relief, and Just Compensation.
Defendants, by and through agents, employed officers, and elected officials are
engaged in a campaign against 'homeless' people. CSU 'exclusionary orders' and the
verbal 'trespassed' orders issued by police and enforced with citations of 'trespass' or
'camping' are an obvious attempt to re-enact the 'vagrancy' ordinances and statutes,
which were determined to be unconstitutional over fifty (50) years ago.
The City of Fort Collins ordinances against 'camping' and 'trespass' are unlawful
and unconstitutional by violating the Eighth Amendment prohibition against cruel and
unusual punishment, and by violating the Fifth and Fourteenth Amendment prohibition
against depriving Plaintiff the right of due process and equal protection of the law by
denying Plaintiff of His rights and private property interests and His rights and interests
in equal access and use of public places and places open to the public.
10
APPELLANT'S OPENING BRIEF
Appellate Case: 23-1112 Document: 010110866541 Date Filed: 05/30/2023 Page: 10
The City ordinances prohibiting 'camping' in the City are unconstitutional.
Plaintiff asserts claims that the City ordinances prohibiting 'camping' on public or
private property are both unconstitutionally vague and over-broad on their face, and as
applied in this case, since they generally prohibit living in Fort Collins. Also, Plaintiff
asserts that the City ordinances prohibiting 'camping' are discriminatory because they
are only enforced upon 'homeless' people, like Plaintiff, as part of a City policy to rid
Fort Collins of 'homeless' people. Plaintiff asserts that the City ordinances prohibiting
'camping' are unconstitutional because they impose cruel and unusual punishment of
excessive fines or (6) six months in jail for conducting activities of daily living.
Plaintiff was charged (7) seven times with 'camping'; most recently, Plaintiff was
cited with 'camping'; Municipal Court Case: FC-20-4935-MD, which was dismissed on
September 17, 2020; therefore, the statute of limitation has not expired.
The City of Fort Collins ordinance prohibiting "camping" is over-broad and vague
due the lack of guidance in the enforcement that grants police unlimited discretion to
use it to discriminate against 'homeless' people, such as Plaintiff. The Fort Collins city
ordinances against 'camping' on public or private property effectively renders everyone
subject to criminal penalties for living in Fort Collins. Yet, the City ordinance against
'camping' is applied exclusively against indigent, 'homeless' people, such as Plaintiff.
Since Plaintiff intends to continue to live in Fort Collins, he is subjected to continual
threat of being jailed for exercising his equal and fundamental right to live and be in
public places. Plaintiff has 'standing' to assert his 14th Amendment rights.
11
APPELLANT'S OPENING BRIEF
Appellate Case: 23-1112 Document: 010110866541 Date Filed: 05/30/2023 Page: 11
The CSU exclusionary order policy is vague and over-broad, as interpreted and
enforced, in violation of the Due Process Clause of the Fourteenth Amendment.
The challenged CSU 'exclusionary order' policy, as interpreted, and enforced by
CSU campus police is over-broad and vague and fails to provide adequate notice to
enable people of ordinary intelligence to understand what conduct is prohibited.
The CSU exclusionary order policy as interpreted, and enforced by CSU campus
police, fails to establish adequate guidelines to govern CSU police officers, thereby it
authorizes and encourages CSU campus police to act in arbitrary and discriminatory
practices in enforcement against Plaintiff, and others similarly situated.
CSU 'exclusionary orders' are unlawful since they violate 42 U.S.C. § 1983 et.
seq. by denying equal protection of the law in violation of the 14th Amendment.
CSU 'exclusionary orders' are enforced with criminal citations for trespass.
Defendants have enforced and intend to continue to enforce CSU 'exclusionary
orders' in the unconstitutional and unlawful manner as described by Plaintiff.
Defendants have acted, and are threatening to act, under color of state law to
deprive Plaintiff of lawful equal access and use of CSU premises and facilities open to
the public, thereby depriving Him of equal protection of the law.
Plaintiff has suffered, and continues to suffer, actual and permanent irreparable
injury due to enforcement of the CSU 'exclusionary order' issued against Him, as was
reported in CCIC as a 'permanent civil restraining order'. Plaintiff has no other plain,
adequate or speedy remedy at law, so Plaintiff is entitled to Injunctive relief.
12
APPELLANT'S OPENING BRIEF
Appellate Case: 23-1112 Document: 010110866541 Date Filed: 05/30/2023 Page: 12
ARGUMENT
The statute of limitations has not expired: therefore, Petitioner is entitled to relief
from continuing injury by the permanent 'exclusionary order'.
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 unconstitutional 'exclusionary orders' in violation of
C.R.S. § 18-9-109(1). Defendant's have not denied that CSU is public property.
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."
The permanent 'exclusionary order issued by CSU campus police was enforced
by the municipal court of Fort Collins that issued a judgment and sentencing order that
prohibited Plaintiff from going to CSU for one year from December 1, 2020. Also, the
Larimer District Court affirmed the sentencing order of the municipal court and upheld
the sentence of the Larimer County Court, which prohibited Plaintiff from going to CSU
for one year from December 19, 2020. These court orders extended the permanent
'exclusionary order', which itself, by definition, proves continuing injury. Plaintiff could
not know that these court orders would add to his injury; thus, Plaintiff asserts that the
statute of limitations extended at least to December 19, 2022.
13
APPELLANT'S OPENING BRIEF
Appellate Case: 23-1112 Document: 010110866541 Date Filed: 05/30/2023 Page: 13
ARGUMENT
The magistrate committed numerous clear errors of law and preiudicial findings
of fact that Petitioner specificallv obiects on the following grounds:
(1) The magistrate inappropriately refuses to acknowledge individual defendants as
necessary parties to the case contrary to FedR.Civ.P. Rule 19 (a)(1 )(A). Therefore, all
individual defendants were dismissed in clear error of the law.
(2) The magistrate committed prejudicial error by waiting to rule upon Petitioner's
Motion for Assignment of Counsel until issuing the recommendation, thus prejudicing
Petitioner's opportunity to further amend the Petition for Relief with legal assistance.
(3) The magistrate committed clear error by her misinterpreting Petitioner's response
to the State's 'Motion to Dismiss' as his voluntary dismissal of claims against individual
state defendants in their official and personal capacities and an admission by Petitioner
that state defendant were entitled to sovereign immunity and were excused.
(4) The magistrate failed to apply the appropriate standard of review for Petitioner as
pro se and read the pleading liberally; instead, the magistrate applied a strict standard
of review and narrow interpretation of the constitutional merit of Petitioner's claims.
(5) The magistrate committed prejudicial error by her granting sovereign immunity to
state defendants including individual defendants in their official and personal capacities,
and specifically by dismissing the 'State of Colorado' and Colorado State University as
defendants 12 days before issuing her full recommendation. The machinations of the
magistrate prejudiced the rights of Petitioner to contest her legal maneuvers.
14
APPELLANT'S OPENING BRIEF
Appellate Case: 23-1112 Document: 010110866541 Date Filed: 05/30/2023 Page: 14
Petitioner filed a Petition for Relief. which was a motion for declaratory iudgment
that was to be granted or denied, not a complaint subiect to dismissal.
(6) Petitioner specifically objects to the treatment of his Petition for Relief and motion
for declaratory judgment being treated as a complaint subject to dismissal. Petitioner
was not seeking compensatory damages, so there were no factual issues in dispute, it
was a question of law only, so the case would involve no trial management procedures
and the involvement and participation of the magistrate was not proper. [Dkt. 1]
(7) The magistrate committed clear error of law and prejudicial error by determining
that there was no continuing injury exception existed to the statute of limitations, thus
barred Petitioner relief, and for not assuming all facts as true as required by Rule 12.
(8) The magistrate committed clear of law and prejudicial error by determining that
Petitioner failed to adequately state claims for relief under Title 42 U.S. Code §§ 1981,
1983, 1985, and 1986 for violations of his Fifth, Eighth, and 14th Amendment rights.
(9) The magistrate committed clear of law and prejudicial error by determining that
Petitioner lacks any private interest right to conduct activities of daily living and private
interest right of access to public places.
(10) The magistrate committed clear of law and prejudicial error by dismissing claims
for declaratory judgment by refusing to acknowledge original subject matter jurisdiction
and incorrectly applied supplemental jurisdiction by determination that Petitioner failed
to state claims for relief against the City of Fort Collins and that no constitutional claims
would apply to the Board of Governors improperly granting them absolute immunity.
15
APPELLANT'S OPENING BRIEF
Appellate Case: 23-1112 Document: 010110866541 Date Filed: 05/30/2023 Page: 15
(11) The magistrate committed clear error of law and prejudicial error by dismissing
claims by erroneously finding that the Eleventh Amendment bars Plaintiff's Claim One
(regarding the CSU exclusionary policy), and Claim Two (regarding Fifth, Eighth, and
Fourteenth Amendment violations) asserted against the Board of Governors.
(12) The magistrate committed clear of law and prejudicial error by dismissing claims
with prejudice; erroneously finding that Petitioner lacks any personal property interests
in access to public places; thus concluding that no constitutional violation occurred.
(14) The magistrate committed clear error of law and prejudicial error by dismissing
claims with prejudice erroneously findin~ that Petitioner abandoned his 8th Amendment
claim with respect to the trespass ordinance and that Petitioner failed to state factual
grounds for his claim for declaratory judgment of the City of Fort Collins trespass and
camping ordinances.
(15) The magistrate committed clear error of law and prejudicial error by dismissing
claims with prejudice by erroneously finding that Petitioner had failed to state factual
grounds to support his claim of violation of his 14th Amendment right to due process
regarding the City of Fort Collins trespass and camping ordinances.
(16) The magistrate committed clear error of law and prejudicial error by erroneously
finding that Petitioner had failed to state factual grounds to support his claim that the
City of Fort Collins camping and trespass ordinances abridge his constitutional right to
conduct activities of daily living and have access to public places, specifically his right of
access to CSU campus and access to city public transportation facilities.
16
APPELLANT'S OPENING BRIEF
Appellate Case: 23-1112 Document: 010110866541 Date Filed: 05/30/2023 Page: 16
(17) The magistrate committed clear error of law and prejudicial error by dismissing
claims with prejudice by applying the incorrect review standard and erroneously finding
that Petitioner's claims for declaratory judgment of facial, and as applied, challenge of
the Fort Collins city ordinances against camping and trespass was time barred.
(18) The magistrate committed clear error of law and prejudicial error by dismissing
claims with prejudice by applying the incorrect review standard and erroneously finding
that Petitioner's claims for declaratory judgment of CSU permanent 'exclusionary' order
policy was time barred.
(19) The magistrate committed clear error of law and prejudicial error by erroneously
finding that Petitioner had failed to state factual grounds to support his claim that the
CSU police permanent exclusionary order and permanent restraining order prohibiting
Petitioner from access to CSU campus and public transportation facilities violated 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;" Petitioner stated
facts in support of his claim that the State trespass statute was enforced to deny him
access to CSU campus and public transportation 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, ... "
Petitioner's claim for declaratory judgment simply asked this Court to determine
that Petitioner is entitled to access to public property, specifically CSU campus.
17
APPELLANT'S OPENING BRIEF
Appellate Case: 23-1112 Document: 010110866541 Date Filed: 05/30/2023 Page: 17
Title 42 U.S.C. § 1985(3) states, in pertinent part: "If two or more persons in any
State or Territory conspire for the purpose of depriving, either directly or indirectly, any
person or class of persons of the equal protection of the laws, or of equal privileges
and immunities under the laws;
Petitioner asserts that C.R.S. § 18-4-201 acknowledges his individual right and
privilege of access to public places and his immunity from prosecution for trespass on
public property and that such prosecution and threat of future prosecution deprives him
of his right of equal privileges and immunities guaranteed by 42 U.S.C. § 1985(3).
(20) The magistrate committed clear error of law and prejudicial error by dismissing
Petitioner's claims with prejudice by erroneously finding that Petitioner failed to provide
factual support for his 42 U.S.C. § 1985(3) and§ 1986 claims.
(21) The magistrate committed clear error of law and prejudicial error by citing cases
which did not support the magistrate's findings of fact and conclusions of law. Just by
way of example: the magistrate cites Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir.
1993) as support for the finding and conclusion that Petitioner failed to provide factual
support for his 42 U.S.C. § 1985(3) and § 1986 claims. However, the court in Tilton,
found that "§ 1985(3) covers only conspiracies 'aimed at interfering with rights that are
protected against private, as well as official, encroachment."' See Tilton, 6 F.3d at 686.
Unlike the facts in this case where the defendants have acted officially and under color
of law, the court in Tilton determined that his claims failed because the actions were
attributable to private individuals not officials acting under color of law.
18
APPELLANT'S OPENING BRIEF
Appellate Case: 23-1112 Document: 010110866541 Date Filed: 05/30/2023 Page: 18
ARGUMENT
Defendant individuals are not entitled to sovereign immunity.
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).
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."
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.
19
APPELLANT'S OPENING BRIEF
Appellate Case: 23-1112 Document: 010110866541 Date Filed: 05/30/2023 Page: 19
ARGUMENT
28 U.S.C. § 636 (b)(1) prohibits a magistrate from determining a Fed.R.Civ.P.
12(b)(6) motion to dismiss. Therefore. the magistrate acted without legal authoritv to
review the motions to dismiss and issue a recommendation.
Petitioner objects to the conduct of the magistrate in reviewing the Motions to
Dismiss and issuing a recommendation to dismiss all claims for relief. Such action is
contrary to COURT ORDERS that were not vacated.
In the recommendation. the magistrate states pursuant to 28 U.S.C. § 636(b)(1)
(A) and D.C.COLO.LCivR 72.1 (c), the Motions [#51, #53] have been referred to the
undersigned for a recommendation regarding disposition. See [#52, #54]. Assignment
of the magistrate in this case is in clear error of law and contrary to court orders.
The August 27, 2021 Docket entry 6 states:
MINUTE ORDER Re:[Dkt 5] Consent/Non-Consent Form to Jurisdiction of
Magistrate Judge filed by Robert-Lawrence Perry. IT 15 HEREBY ORDERED that this
case shall be assigned to a District Judge under D.C.COLO.LCivR 40.1(c)(8) and
D.C.COLO.LCivR 40.1(a), by Magistrate Judge Kristen L. Mix on 08/27/2021. (alave,)
(Entered: 08/27/2021) [Dkt. 6]
ORDER REFERRING CASE to Magistrate Judge Kristen L. Mix. Pursuant to 28
U.S.C. § 636(b)(1)(A) and (B) and Fed. R. Civ. P. 72(a) and (b), this case is referred to
the assigned United States Magistrate Judge to (3) hear and determine pretrial matters,
including discovery and other non-dispositive motions. [Dkt. 9]
20
APPELLANT'S OPENING BRIEF
Appellate Case: 23-1112 Document: 010110866541 Date Filed: 05/30/2023 Page: 20
ARGUMENT
State Defendant's cannot 'exclude' banish anyone from public properly.
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.LR. 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.
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APPELLANT'S OPENING BRIEF
Appellate Case: 23-1112 Document: 010110866541 Date Filed: 05/30/2023 Page: 21
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.
22
APPELLANT'S OPENING BRIEF
Appellate Case: 23-1112 Document: 010110866541 Date Filed: 05/30/2023 Page: 22
CITY OF FORT COLLINS 'TRESPASS' ORDINANCE
Plaintiff was prosecuted under the Fort Collins Municipal Code, Section 17-40(a),
which awkwardly combines public and private property into one 'trespass' ordinance.
NOTE: Fort Collins Municipal Code (F.C.M.C.) 17-40(a) states:
"No person shall enter or remain unlawfully in or upon property, whether publicly or
privately owned. For the purposes of this Section, the term property shall include, but
not be limited to, any land, dwelling, building, conveyance, vehicle or other temporary or
permanent structure."
Plaintiff asserts that the City trespass ordinance (F.C.M.C.) 17-40(a) cannot be
legally applicable to public property since the Fort Collins Municipal Code definition of
"enter or remain unlawfully" excepts those licensed, invited, or privileged.
F.C.M.C. Section 17-1 stated: "Enter or remain unlawfully" shall mean:
(1) To enter or remain in or upon public or privately owned property when not
licensed, invited, privileged or otherwise authorized to do so;
(2) To enter or remain in or upon publicly owned property that is not open to the public;
(3) To fail to leave property, whether privately or publicly owned, after being directed to
do so by a person lawfully in control of the property; or
(4) To conduct oneself in a public place in violation of any rule or regulation issued by
any officer or agency having the power of control, management, or supervision thereof,
which limits or prohibits the use, activities or conduct in such public place, provided that
the rule or regulation is: (i) prominently posted at all public entrances to the property; (ii)
posted in such a way as to be clearly visible from the site of the infraction; or (iii)
actually known to the offender.
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." (Emphasis added)
F.C.M.C. Section 17-1 is not applicable to public property as it also conflicts
with C.R.S. § 18-1-901(3)(n) that defines "Public place" where the public has access.
23
APPELLANT'S OPENING BRIEF
Appellate Case: 23-1112 Document: 010110866541 Date Filed: 05/30/2023 Page: 23
NOTE: C.R.S. § 18-1-901(3)(n) defines "Public place" and states:
"Public place" means "a place to which the public or a substantial number of the
public has access, and includes but is not limited to highways, transportation facilities,
schools, places of amusement, parks, playgrounds, and the common areas of public
and private buildings and facilities."
Since C.R.S. § 18-1-901(3)(n) defines "Public place" as "a place to which the
public has access", including schools, such as CSU; and, since F.C.M.C. Sec. 17-1
defines "Enter or remain unlawfully" and states: "To enter or remain in or upon public
or privately owned property when not licensed, invited, privileged"; this allows for an
exemption; and, since C.R.S. § 18-4-201 states that: "A person who, regardless of his
or her intent, enters or remains in or upon premises that are ... open to the public
does so with license and privilege ... "; therefore, the 'City' trespass ordinance cannot
be legally applicable to public property, such as CSU. Yet, enforcement of the 'City'
trespass ordinance, in this case, depended upon enforcing CSU 'exclusionary orders',
which are unconstitutional and illegal since they allow CSU campus police to violate
C.R.S. § 18-9-109 (1) that prohibits anyone from denying lawful access and use of
premises or facilities of any educational institution; yet, CSU campus police did when
issuing 'exclusionary orders', thus, these 'orders' are unlawful. Therefore, Plaintiff was
subjected to illegal prosecution and unlawful conviction for 'trespass'.
NOTE: 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."
24
APPELLANT'S OPENING BRIEF
Appellate Case: 23-1112 Document: 010110866541 Date Filed: 05/30/2023 Page: 24
F.C.M.C. Sec. 17-1 (3) allows anyone in 'lawful control' over public property to
exclude anyone, at any time, for any reason, or for no reason whatsoever. This grants
local officials, i.e., the police, dictatorial powers over public property. Except, it is not
defined as to what constitutes 'lawful control'. City of Fort Collins and CSU campus
police have interpreted it as carre blanch'e authority to exclude anyone from public
property by issuing an 'exclusionary order', or simply by verbally stating the person is
permanently "trespassed" as City police have told Plaintiff on two occasions. Plaintiff
was "trespassed" from a public pool for being the last one out of the locker-room and
was "trespassed" from a Fort Collins community center for no reason whatsoever even
though Plaintiff possessed an active senior membership on both occasions.
The definition of "enters or remains unlawfully" used in F.C.M.C. Sec. 17-1(4) is
unconstitutionally over-broad and vague on its face; it intentionally omits reference to
the public right of access and use of places of public accommodation, allowing officers
to discriminate against individuals whomever the officer chooses by applying his or her
personal rules of conduct. The intentional omission of lawful orders in the definition
leaves a void filled by unlawful orders, and completely disregards the public right of
access and use of public property contained in C.R.S. § 18-4-201 (3). The definition of
"enters or remains unlawfully" provided by F.C.M.C. Sec. 17-1 (3) is blatantly unlawful,
especially in Plaintiff's case because it allowed CSU police officers to violate the law,
specifically, C.R.S. § 18-9-109 (1). As written and enforced, F.C.M.C. Sec. 17-1(3) and
(4) are unconstitutionally vague and over-broad in violation of the 14th Amendment.
25
APPELLANT'S OPENING BRIEF
Appellate Case: 23-1112 Document: 010110866541 Date Filed: 05/30/2023 Page: 25
THE FORT COLLINS 'CAMPING' ORDINANCES
The City of Fort Collins, by and through agents, employed officers, and elected
officials are engaged in a campaign against 'homeless' people. The City Council has
enacted ordinances against 'camping' and 'trespass' that are selectively enforced only
against people in the community that are suspected to be 'homeless' or 'indigent'.
THE FORT COLLINS ORDINANCE AGAINST CAMPING IS UNLAWFUL
Fort Collins Municipal Code (F.C.M.C.) Sec.17-181 states:
"It shall be unlawful for any person to camp or pitch a tent, or knowingly permit
any person to camp or pitch a tent, on public property within the City. Camping, for the
purposes of this Section, shall mean to sleep, spend the night, reside or dwell
temporarily with or without bedding or other camping gear and with or without
shelter, or to conduct activities of daily living such as eating or sleeping, in such
place unless such person is camping in compliance with Chapter 23 in a natural or
recreation area. Camping shall not include incidental napping or picnicking."
(Code 1972, § 60-22; Ord. No. 28, 1999, § 2, 3-2-99; Ord. No. 199, 2006 § 1, 1-16-07)
F.C.M.C. Sec. 17-181 is unconstitutionally null, void, and legally unenforceable
on numerous grounds, including, without exception or limitation: (a) It is vague and
over-broad, thus, it violates the Fifth Amendment Right to Life, Liberty and Property
without due process; (b) it denies Plaintiff of the Fifth Amendment Right to Live and to
use His private Property to 'conduct activities of daily living'; so it constitutes a 'Taking';
thus, Plaintiff is entitled to just compensation; (c) the discriminatory enforcement of the
ordinance denies Plaintiff equal protection of the law, and (d) it exacts fines of $3,000
and/or six months in jail, which constitutes cruel and unusual punishment prohibited by
the Eighth Amendment. Incredulously, the 'camping' ordinance even holds criminally
liable those citizens who knowingly permit others to 'conduct activities of daily living'.
26
APPELLANT'S OPENING BRIEF
Appellate Case: 23-1112 Document: 010110866541 Date Filed: 05/30/2023 Page: 26
As written and enforced, City of Fort Collins ordinances prohibiting 'camping' do
not serve any legitimate or legally-recognizable interest. In addition to state and local
fire prevention regulations, and restrictions on the possession and use of alcohol and
drugs, the Fort Collins Municipal Code includes numerous ordinances to address any
other conceivable public interest concern of anticipated misconduct associated with the
'camping' life-style of 'homeless' people; including, without exclusion or limitation:
Sec. 17-39. -Criminal mischief., Sec. 17-41. -Littering., Sec. 17-44. -Misuse of public
waters, Sec. 17-45. -Damage to public property, Section 17-46. -Appropriate use of
public facilities., Sec. 17-103, -Bodily waste. Sec. 17-121, -Disturbing the peace. Sec.
17-124, -Disorderly conduct. Sec. 17-126. -Harassment, Sec. 17-127. -Panhandling.
Sec. 17-128, -Obstructing the public right-of-way. Sec. 17-129, -Unreasonable noise.
Sec. 17-131. -Nuisance gatherings, and Sec. 17-142. -Public nudity.
Obviously, there is no legitimate need for the City of Fort Collins to enact and
enforce the ordinances against 'camping' to impose criminal punishment upon citizens
for 'eating, sleeping or conducting activities of daily living'. Especially, since there is
already a Fort Collins ordinance that addresses this very issue of 'camping'. NOTE:
Fort Collins Traffic Code (F.C.T.C.) Sec. 1213(2) states that: "It shall be unlawful
for any person to occupy any parked motor vehicle or trailer, as defined in this Traffic
Code, or any parked recreational vehicle or trailer, as defined in Section 20-104 of the
City Code, on any street, roadway, parking lot open to the public, right-of-way or public
property for the purposes of living or sleeping therein ... "
Fort Collins Parking Services website states that the fine for violating F.C.T.C.
1213(2) is $100; while the same conduct of 'living or sleeping' subject the 'homeless'
who 'sleep or conduct activities of daily living' with cruel and unusual punishment of a
fine of $3,000 and six months in jail under the Fort Collins 'camping' ordinances.
27
APPELLANT'S OPENING BRIEF
Appellate Case: 23-1112 Document: 010110866541 Date Filed: 05/30/2023 Page: 27
FACTUAL ALLEGATIONS
65. Colorado State University (hereinafter CSU) has adopted and enforced a policy,
which allows CSU campus police to issue an "exclusionary order", which denies access
and use of CSU campus to, Plaintiff, the identified subject of the "exclusionary order".
66. CSU "exclusionary orders" function as a written personal "no trespass" notice to
persons identified as the subject of the "exclusionary order", in this case, Plaintiff.
67. CSU is a publicly-funded, land-grant state public university; not private property.
68. CSU is not a private university; CSU is open to the general public for use of the
campus library, Fort Collins Transfort bus station, CSU stadiums for events, and hosts
events in the student union, with public access roads and parking facilities.
69. The legal definition of "Public place" provided by C.R.S. § 18-1-901(3)(n) would
include Colorado State University, as a public school.
70. C.R.S. § 18-9-109 (1) states:
"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."
71. CSU police "exclusionary order" policy cites C.R.S. 18-9-109 as legal authority
that presumably 'authorizes' them to issue an 'exclusionary order' form to Plaintiff.
72. Plaintiff is a "public invitee", defined under Restatement (2nd) of Torts § 332(2)
(1965); so, Plaintiff should also be an "invitee" as used in C.R.S. § 18-9-109 (1).
28
APPELLANT'S OPENING BRIEF
Appellate Case: 23-1112 Document: 010110866541 Date Filed: 05/30/2023 Page: 28
73. Plaintiff is an "invitee" for the purposes of C.R.S. § 18-9-109 (1).
74. Plaintiff is a 68 year-old alumnus of Colorado State University.
75. Plaintiff did use the CSU library and Fort Collins public bus terminal located on
campus until he was permanently banned for allegedly 'feeding squirrels',
76. CSU campus police issued Plaintiff several "exclusionary orders", exclusively for
allegedly 'feeding squirrels' on campus; no evidence was offered to prove Plaintiff fed
squirrels, and no witnesses ever testified that Plaintiff had fed squirrels.
77. CSU campus police website contains university policies and regulations; except,
there is no CSU policy or regulation against 'feeding squirrels' that was posted on the
CSU police website, nor is 'feeding squirrels' a city or county ordinance or state law.
78. C.R.S. § 18-4-201, states in part: "A person who, ... , enters or remains in or
upon premises that are ... open to the public does so with license and privilege ... ".
79. F.C.M.C. Section 17-1 did state: "Enter or remain unlawfully" shall mean:
(1) To enter or remain in or upon public or privately owned property when not
licensed, invited, privileged or otherwise authorized to do so; ...
80. CSU police exclusionary order policy provides an administrative appeal process;
however, there is NO evidentiary standard, hearsay statements are permitted, and NO
evidence and NO witnesses are required.
81. CSU "exclusionary order" policy provides for immediate exclusion or banishment
by CSU campus police, which were enforced by citations of trespass under Fort Collins
Municipal Code Section 17-40(a), and C.R.S. § 18-4-504 issued against Plaintiff.
29
APPELLANT'S OPENING BRIEF
Appellate Case: 23-1112 Document: 010110866541 Date Filed: 05/30/2023 Page: 29
82. CSU police 'exclusionary order' policy cites C.R.S. 18-9-109 as legal authority
that 'authorizes' police to issue an 'exclusionary order' form, that were issued against
Plaintiff solely on the basis of allegedly 'feeding squirrels'. C.R.S. 18-9-109(2),(3) set
expressly conditional and limited authority to remove someone from campus only for
committing acts, which 'disrupt, impair. interfere with. or obstruct the lawful missions.
processes, procedures. or functions of the institution'.
83. CSU 'exclusionary order' policy allows CSU campus police to exclude anyone
immediately and permanently, for any reason whatsoever, and deny due process and
equal protection of the law.
84. Plaintiff repeated notified CSU attorneys and CSU Office of General Counsel by
email, that CSU campus police CSU 'Exclusionary orders' and the policy that provides
for their use violated His Constitutional Rights of due process because it immediately
deprived Him of access and use of public property without access to court review.
85. Plaintiff repeated notified CSU attorneys and CSU Office of General Counsel by
email, that CSU campus police CSU 'Exclusionary orders' and the policy that provides
for their use violated His Constitutional Rights and equal protection of the law because
C.R.S. 18-9-109(1) prohibits denying access and use of educational institutions; thus,
Plaintiff argued that CSU police committed a crime by issuing him 'exclusionary orders'
banning Him from university property.
86. Plaintiff notified CSU Board of Governors that CSU campus police 'exclusionary
order' policy violated His Rights, and requested action; however they did not reply.
30
APPELLANT'S OPENING BRIEF
Appellate Case: 23-1112 Document: 010110866541 Date Filed: 05/30/2023 Page: 30
87. CSU website page of Office of Policy and Compliance contains a graphic chart,
that lists the hierarchy of legal authority; demonstrating that CSU 'exclusionary order'
policy is superseded by levels of legal authority, which are all superseded by the U.S
Constitution, Federal Laws and Regulations, that then supersedes State Constitution,
Laws and Regulations, which supersedes Colorado State University System / Board of
Governors Policies, which supersedes Colorado State University Policies, which also
supersedes College Policies; all of which supersedes individual Department Policies,
such as CSU campus police and their 'exclusionary order' policy.
See: http://opc.prep.colostate.edu/policy-hierarchy/
88. CSU Office of Policy and Compliance (OPC) is part of the Department of Policy,
Risk and Environmental Programs (PREP) in the Division of University Operations that
is administered by Lynn Johnson, Vice President for University Operations.
89. The Office of Policy and Compliance submits proposed policies to stakeholders,
including administrative professional council, namely, Lynn Johnson, Vice President for
University Operations and CSU Chief of Staff, and CSU police command staff, namely
CSU Chief of Police, who is also part of the public safety team; all of whom approved
the CSU campus police 'exclusionary order' policy. https://opc.prep.colostate.edu/wp-
content/uploads/sites/2/2019/09/Policy-Development-slide-show-rev-9.9.19.pdf.
90. CSU campus police 'exclusionary order' policy was reviewed by the CSU Office
of General Counsel, who must research applicable legal authority for compliance, then
the 'exclusionary order' policy was adopted and signed by CSU president.
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APPELLANT'S OPENING BRIEF
Appellate Case: 23-1112 Document: 010110866541 Date Filed: 05/30/2023 Page: 31
91. CSU 'exclusionary order' policy was promoted by Vice President for University
Operations, Lynn Johnson, and adopted on August 12, 2016; Policy ID#: 6-6023-005.
92. CSU campus police 'exclusionary order' form policy states that after one year,
the excluded person may request the CSU Chief of Police terminate the exclusionary
order; when the CSU Chief of Police declines, then the excluded person may appeal to
CSU Chief of Staff; when the Chief of Staff declines, then 'exclusionary order' form is
presumed to be enforceable and permanent, effective for a persons life-time.
93. CSU campus police have issued Plaintiff several 'exclusionary order' forms for
allegedly 'feeding squirrels'; notably, CSU does not have a campus policy or regulation
against feeding squirrels, nor is there any local or state prohibition.
94. CSU campus police 'exclusionary orders' are deemed enforceable with citations
for 'trespass'. http://policylibrary.colostate.edu/policy.aspx?id=562
95. CSU campus police charged Plaintiff with 'trespass' under C.R.S § 18-4-504, for
disregarding a CSU campus police 'exclusionary order'.
96. CSU campus police charged Plaintiff with 'trespass' under Fort Collins Municipal
code 17-40(a) for disregarding a CSU campus police 'exclusionary order'.
97. Plaintiff asserts that the City trespass ordinance (F.C.M.C.) 17-40(a) cannot be
legally applicable to public property, like CSU since the Fort Collins Municipal Code
definition of "enter or remain unlawfully'' is specifically limited to private property
98. At no time during or after Plaintiff's 'trespass' trials was any evidence submitted
nor did any witness testify that CSU is private property.
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APPELLANT'S OPENING BRIEF
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99. CSU "exclusionary orders" are unconstitutional as bills of pains and penalties as
are bills of attainder prohibited by the U. S. Constitution Article I Section 10 Clause 1,
because they impose immediate punishment (exclusion) without judicial trial.
100. CSU "exclusionary orders" are unconstitutional because they deprive persons of
substantive due process, and equal protection of the law, including, but not limited to:
sections of law allowing for public access to public property such as: C.R.S. § 18-4-201,
and C.R.S. § 18-9-109 (1) that prohibits denying access and use of public educational
institutions and public accommodations and facilities.
101. CSU "exclusionary orders" are unconstitutional because they impose permanent
exclusion or banishment, which constitutes cruel and unusual punishment prohibited by
the Eighth Amendment to the U.S. Constitution.
102. Banishment is not provided for as punishment under any federal or state law.
103. Plaintiff was issued the first "exclusionary order" by CSU campus police officer
Jesse Ihnen on May 18, 2016, that was lifted without the necessity of an exclusionary
order appeal 'hearing', by CSU Vice President for University Operations, Lynn Johnson,
after Plaintiff submitted a written appeal citing the constitutional and other criminal and
civil statutory citations that conflict with CSU "exclusionary order" policy.
104. Contemporaneously with the "exclusionary order" issued on May 18, 2016, CSU
campus police issued Plaintiff a citation for trespass under C.R.S. § 18-4-504, which
was later voluntarily dismissed by the Larimer county prosecutor; he informed Plaintiff
that being on public property does not constitute a crime.
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105. Prior to July 21, 2016, CSU policy on issuing exclusionary orders stated the
purpose and intent was, in part:
"This policy applies to all persons whose actions are deemed to be harmful
and/or disruptive to the university and/or to members of the campus community,
or who pose a substantial threat of causing such harm or disruption if permitted
to enter upon university property, as determined by any university official who has
been delegated with authority to issue an Exclusionary Order under this Policy."
106. Prior to July 21, 2016, CSU policy on issuing exclusionary orders cited as the
statutory authority C.R.S. § 18-9-109, citing or referencing sections (2) and (3).
107. CSU policy on 'exclusionary orders' was amended after Plaintiff objected to the
first exclusionary order issued against him based solely upon him 'feeding squirrels'.
108. At all times relevant to this Petition all the 'exclusionary orders' issued against
Plaintiff, CSU policy on issuing and enforcement of exclusionary orders stated that the
intent and purpose as follows: "This policy provides direction to responsible university
personnel for the issuance of orders excluding a person from entry upon university
property. This policy is adopted pursuant to the inherent authority of the University to
protect the safety of persons and property within its supervision and control and the
specific authority vested in the university by law to adopt orders, rules, and regulations
necessary for the administration, protection, and maintenance of public buildings and
property, including the prohibition of activities or conduct within public buildings
or on public property." End quote.
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109. Colorado State University officials amended the stated purpose of the policy on
exclusionary orders to include general language and undefined provisions, particularly
regarding regulations for: "maintenance of its public buildings and property, including
the prohibition of activities or conduct within public buildings or on public property"; by
such July 21, 2016 amendment, it allowed CSU police to discriminate against Plaintiff
and to apply "exclusionary order" policy to such conduct as: 'feeding squirrels'.
110. Colorado State University officials intentionally deleted the reference to harmful
and disruptive conduct from the exclusionary order policy to eliminate the burden upon
them to provide reasonable grounds to explain why people, like Plaintiff, were banned
or identify what or how conduct, such as, feeding squirrels is harmful or disruptive.
111. CSU campus police issued Plaintiff several "exclusionary orders" applying CSU
"exclusionary order" policy with the amended statement of intent and purpose allowing
CSU campus police to exclude or ban Plaintiff for 'feeding squirrels'.
112. CSU campus police enforced "exclusionary order" policy with the amended text
quoted in paragraph 48 that excluded any reference to C.R.S. § 18-9-109, specifically
sections (2) and (3) in each case that Plaintiff was tried and convicted of 'trespass.
113. CSU campus police enforced "exclusionary order" policy by issuing Plaintiff (2)
citations for trespass on CSU property. One trespass citation was issued pursuant to
C.R.S. § 18-4-504, and another trespass citation was issued pursuant to Fort Collins
Municipal Code Section 17-40(a) in applying CSU "exclusionary order" policy statement
using the intent and purpose as it was amended AFTER July 21, 2016.
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114. Recently, CSU administrative officials again amended CSU "exclusionary order"
policy AFTER Plaintiff notified CSU and CSU Board of Governors of his intent to sue.
NOW, CSU "exclusionary order" policy amended statement of intent and purpose once
again cites the statutory authority of C.R.S. § 18-9-109, sections (2) and (3).
115. CSU exclusionary order policy assumes authority from C.R.S. §18-9-109 (3).
116. 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."
117. No CSU administrative official ever alleged that 'feeding squirrels' constituted an
act of disruption, interference or obstruction described in C.R.S. §18-9-109 (3).
118. Colorado State University Policy ID#: 6-0160-001 defines 'disruptive activity' as:
"Any act that unreasonably interferes with the rights of others to peaceably
assemble or to exercise the right of free speech, disrupts the normal functioning
of the University, damages property, or endangers health or safety is specifically
prohibited. No person may attempt to, nor actually interfere with, impair or impede the
institution's regularly scheduled classes, events, ceremonies, or normal and essential
operations." End quote.
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119. No CSU administrative official ever alleged that 'feeding squirrels' constituted an
offense in violation of CSU Policy ID#: 6-0160-001 that defines 'disruptive activity'.
120. CSU exclusionary order policy assumes authority from C.R.S. §18-9-109 (2).
121. 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)
122. No CSU administrative official ever alleged that 'feeding squirrels' constituted an
offense in violation of C.R.S. §18-9-109 (2).
123. I repeatedly requested for CSU General Counsel attorneys to state CSU policy
regarding the feeding squirrels, and interpret the application of the 'exclusionary order'
policy to 'feeding squirrels'.
124. CSU General Counsel attorneys refused to reply or interpret 'exclusionary order'
policy as applied and enforced against Plaintiff solely for 'feeding squirrels'.
125. I repeatedly asked that CSU administrative officials provide me a statement on
CSU policy regarding feeding squirrels; however, no university official has responded;
therefore, I reasonably assumed that since there is no law, ordinance, CSU regulation,
or policy against feeding squirrels that they took no official position on the issue.
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126. Plaintiff notified Defendants of his intent to sue on January 31, 2018. Recipients
of this e-mail Notice of Intent to Sue included, CSU General Counsel, Jason Johnson,
Chief Financial Officer, Lynn Johnson, Chief of Police, Scott Harris, and Captain, Frank
Johnson. Petitioner recited violations of his Inalienable, Constitutional, and Civil Rights
under Statutory Law, and notified Defendants of his per diem claim for damages. Yet,
Defendants were not deterred and issued two more 'exclusionary orders'.
127. On July 20, 2018 CSU police officer Phil Morris issued Plaintiff a citation for
trespass under C.R.S. § 18-4-504, and issued an CSU 'exclusionary order' form.
128. CSU exclusionary order policy provides for immediate exclusion upon issuance
of an exclusionary order, providing only an administrative "appeal" to CSU employees
from the office of the President, and appointed by the Chief Administrative Assistant.
129. On August 7, 2018, a administrative exclusionary order 'appeal' was conducted
by telephone by Nie Olsen, an employee in the Office of CSU President. During the
telephone 'hearing', although there was no evidence or witness testimony presented,
Nie Olsen stated he witnessed a man matching Plaintiff's physical description feeding
squirrels on campus and unilaterally upheld the permanent CSU 'exclusionary order'.
130. Plaintiff submitted a written appeal to the exclusionary order review committee
decision to uphold the exclusionary order against him to CSU President Chief of Staff,
Mark Gill on August 10, 2018. This 'appeal' included a July 24, 2018 Objection and
Response to the exclusionary order issued July 20, 2018, as well as, two affidavits in
support of the Objection and Response and letter of appeal.
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131. On August 24, 2018, Defendant, Mark Gill, Chief of Staff for the CSU President,
notified Petitioner, by e-mail, that his decision was to uphold and affirm the exclusionary
order 'appeal'; stating only: "The Exclusionary Order remains in effect."
132. Mark Gill was senior staff assistant responsible for a broad range of support for
the Office of the President, including oversight of operations and ensuring effective
implementation of initiatives on behalf of the President. Mark Gill personally endorsed
the exclusionary order against Plaintiff, on behalf of CSU President, when he affirmed
and upheld the decision of Nie Olsen after the exclusionary order review.
133. On November 20, 2018, I sent an e-mail letter and faxed both CSU Board of
Governors and Jason Johnson, CSU General Counsel to request that they respond to
my questions regarding 'exclusionary order' policy, and asked for an interpretation of
that policy, particularly supported by legal citations of any Colorado statutory authority,
which would authorize CSU issuing 'exclusionary order', and to respond within 10 days,
or I would disregard any 'exclusionary order' and return to CSU; I received no response
from any CSU official within 15 days, so I returned to CSU.
134. On May 17, 2019 CSU police officer Derek Smith issued me an 'exclusionary
order'. Further, Officer Derek Smith issued me a citation for 'trespass' under C.R.S. §
18-4-504. Later that day, Derek Smith accessed the CCIC database and unilaterally
entered an report of permanent criminal restraining order.
135. There was no 'permanent restraining order' issued by any judge as reported and
entered into CCIC by CSU campus police officer Derek Smith on May 17, 2019.
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136. On May 17, 2019 CSU campus police officer, Derek Smith accessed the CCIC
database, then entered a false report of a permanent criminal protective order against
Plaintiff; however, there was no court ordered restraining order prohibiting Plaintiff from
entering CSU property, thereby CSU officer, Derek Smith committed numerous crimes
against Plaintiff, including federal crimes regulating computer and internet use.
137. The Colorado Bureau of Investigation (CBI) is designated by the Federal Bureau
of Investigation (FBI), Criminal Justice Information Services (CJIS) Division, as the CJIS
Systems Agency for the state of Colorado.
138. Further, the responsibility of the Crime Information Management Unit (CIMU) is
to manage all the policies and business practices followed by Colorado criminal justice
agencies regarding numerous criminal justice computer systems, including the National
Crime Information Center (NCIC), the Colorado Crime Information Center (CCIC) and
the International Public Safety and Justice Network (Nlets) computer databases.
139. All CSU police officers are commissioned through Fort Collins Police Services
and the Larimer County Sheriff's Office. Officers have full law enforcement authority on
all university and state-owned property, as well as the city of Fort Collins and Larimer
County. See C.R.S. 16-2.5-148.
140. All CSU police officers are state certified through the Colorado Peace Officers
Standards and Training (POST) board and are commissioned by the CSU Board of
Governors. Officers must successfully complete or challenge an POST-approved basic
law enforcement academy prior to being appointed.
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141. CSU campus police violated state law, C.R.S. § 18-9-109 (1) when they willfully
denied Plaintiff access and use of CSU facilities.
142. Defendant, Colorado State University police officers: Jeff Goetz, Jesse Ihnen,
Michael Lohman, Phil Morris, and Derek Smith unlawfully denied Plaintiff access and
use of CSU campus in issuing unconstitutional 'exclusionary orders' then individually
and in combination these officers conspired to unlawfully arrest and convict Plaintiff of
allegedly trespassing on CSU campus. Individually, and in combination, administrators,
employees and executives Lynn Johnson, and Nie Olsen, Chief of Police, Scott Harris,
and CSU Chief of Staff, Mark Gill participated in the violation of Plaintiffs rights.
143. 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."
144. C.R.S § 23-31-103 defines the control of the Board of Governors and states in
part: "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,
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."
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APPELLANT'S OPENING BRIEF
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145. Defendants, Colorado State University (CSU) and CSU Board of Governors are
each liable under Colorado and federal law for the actions of employees.
146. 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 11, 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.
147. C.R.S § 23-31-106 states the duties of CSU President:
"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."
148. Defendants, City of Fort Collins and Colorado State University employee police
officers violated Plaintiff's civil, constitutional, inalienable and statutory right of access
and use of public places by denying Him access and use of public places and places
open to the public, specifically CSU campus and all public accommodations, including
the library, parking and transportation facilities, and other public places.
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149. CSU police issued a Fort Collins 'camping' ordinance citation against Petitioner
on August 20, 2017 simply because Petitioner parked on CSU property; the case was
subsequently dismissed.
150. CSU exclusionary order policy is over-broad and vague in violation of Plaintiff's
Constitutional Right to due process, which promotes an subjective interpretation and
discriminatory enforcement by campus police in an arbitrary and capricious manner.
151. The CSU policy on exclusionary orders is intentionally vague and over-broad so
as to permit interpretation and enforcement to be conducted in discriminatory fashion.
152. CSU exclusionary order policy provides for, and permits, campus police to ban
people, like Petitioner, for any activity, even if not expressly prohibited by university
policy or regulation, such as in this case, for allegedly feeding squirrels.
153. CSU policy on exclusionary orders provides for permanent exclusion from CSU
unless either the CSU police chief or senior staff assistant to CSU President approves
lifting the exclusionary order against Plaintiff, which they refused.
154. In Colorado, Plaintiff would be granted mandatory parole in one year if he were
convicted of a class 6 felony; yet, the exclusionary order policy allows CSU Chief of
police to decide IF exclusionary orders will ever be lifted, otherwise, the exclusionary
order is permanent; a life sentence, for allegedly 'feeding squirrels'.
155. The discriminatory and disproportionately harsh treatment of Plaintiff by CSU is
unconstitutional as cruel and unusual punishment barred by the Eighth Amendment of
the United States Constitution.
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156. CSU 'exclusionary order' policy authorized and granted CSU campus police the
permission to discriminate against Plaintiff by denying him access and use of CSU.
157. Colorado State University Office of Equal Opportunity website page provides the
mission statement and guiding principles, which include integrity, inclusion, respect and
social justice, and states: "We create and nurture inclusive environments and welcome,
value and affirm all members of our community, including their various identities, skills,
ideas, talents and contributions. We honor the inherent dignity of all people within an
environment where we are committed to freedom of expression, critical discourse, and
the advancement of knowledge." The CSU statement on Equal Opportunity also states:
"We have the right to be treated and the responsibility to treat others with fairness
and equity, the duty to challenge prejudice, and to uphold the laws, policies and
procedures that promote justice in all respects... We are accountable for our
actions and will act ethically and honestly in all our interactions."
158. Petitioner accepted the offer, pledge and binding commitment for CSU to uphold
the laws, honor the dignity of people, and treat them with fairness and equity, and be
responsible and held accountable for their actions, just as in this case.
159. Colorado State University Policy ID#: 6-0160-001 on Discrimination states:
"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."
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APPELLANT'S OPENING BRIEF
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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.
WliereforeJ Petitioner prays that this Court reverse the Order and Judgment of
the district court with instructions to grant all relief requested.
Dated: This 30th day of May 2023.
Signed by: s/s: Robert-Lawrence: Perry, :Jvl.an
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CERTIFICATE OF SERVICE
I, Robert-Lawrence: Perry, Plaintiff, hereby certify that I sent a complete, correct
and true copy of the foregoing Opening Brief addressed to each Attorney of Record for
all Defendants by first-class U.S. Mail, and/or by emailing such documents, as agreed
by consent to the following:
Attorneys for Defendants,
The City of Fort Collins, et al.
Darin Atteberry, City Manager
300 La Porte Ave., (City Hall)
Fort Collins, CO 80522
Phone: (970) 221-6520
hoffmank@hallevans.com
ratnerm@hallevans.com
The State of Colorado, et. al.
for: Steven Vasconcellos
1300 Broadway, 10th Floor
Denver, Colorado 80203
Phone: (720) 508-6000
Carman.VanPelt@coag.gov
Dated this: May 30, 2023
Signed pursuant to C.R.S. 4-3-402 by,
Robert-Lawrence: Perry, Trustee for:
4786 McMurry Ave., Unit 242
Fort Collins, Colorado 80525
fort_scout@yahoo.com
Phone: (970) 980-1849
Colorado State University, et, al.
Attn.: Jannine Mohr, Attorney
1300 Broadway, 10th Floor
Denver, Colorado 80203
Phone: (720) 508-6000
Skip.Spear@coag.gov
Allison.Ailer@coag.gov
CSU Board of Governors, for:
Colorado State University, et al.
555 seventeenth St., Suite 1000
Denver, Colorado 80201
Phone: (970) 491-6425
Denise.Munger@coag.gov
Isl 'Robert-Lawrence: 'PerryJ Man
ROBERT LAWRENCE PERRY, Person
APPELLANT'S OPENING BRIEF
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CERTIFICATE OF COMPLIANCE
I certify that the total number of pages I am submitting as my Opening Brief is 30
pages or less or alternatively, if the total number of pages exceeds 30, I also certify that
I have counted the number of words and the total is 12,523, which is less than 13,000.
Further, I understand that if my Opening Brief exceeds 13,000 words, my brief may be
stricken and the appeal dismissed.
Dated this: May 30, 2023
Signed pursuant to C.R.S. 4-3-402 by, Isl 'Robert-Lawrence: Perry, :Nlan
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
APPELLANT'S OPENING BRIEF
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