Case 1:20-cv-01052-RM-NRN Document 45 Filed 08/03/20 USDC Colorado Page 1 of 11

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 20-cv-01052-RM-NRN

RAVERRO STINNETT,

Plaintiff,

v.

REGIONAL TRANSPORTATION DISTRICT, a political subdivision of the State of

Colorado;
UNIVERSAL PROTECTION SERVICE, LP, d/b/a ALLIED UNIVERSAL SECURITY
SERVICES, a California corporation;
SERGEANT TAYLOR TAGGART, in his official capacity;
OFFICER JAMES HUNTER, in his official capacity;
OFFICER VICTOR DIAZ, in his official capacity;
OFFICER AARON FOUGERE, in his official capacity,

Defendants.

Plaintiff’s Response to Defendant Allied’s Motion for Gag Order [ECF No. 36]

Plaintiff Raverro Stinnett (“Mr. Stinnett”), by and through counsel, responds to the

Motion for Civil Restraining (Gag) Order [ECF No. 36] (“Mot.”) submitted by Defendant

Universal Protection Service, LP d/b/a Allied Universal Security Services (“Allied”), and states

as follows:

INTRODUCTION

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“Where you see wrong or inequality or injustice, speak out, because this is your country.

This is your democracy. Make it. Protect it. Pass it on.” - Thurgood Marshall

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Allied is the law enforcement arm and agent of Colorado’s Regional Transportation

District (“RTD”). Within this capacity, Allied’s latest filing demands Mr. Stinnett and his

counsel shut up and dribble. Mr. Stinnett, a black man, is the victim and survivor of a

coordinated felony perpetrated by RTD’s entire patrolling shift of law enforcement officers

working at Union Station on April 20, 2018. This cannot be disputed by RTD or Allied.

Moreover, there is no evidence at all that the press coverage of this case will result in any

trial prejudice—let alone the substantial prejudice Allied must show. The amount of press

coverage here has been minimal. Given the large jury pool in this district, the length of time until

jury selection, and presumptive efficacy of voir dire and jury instructions—which Allied does

not bother to address—a restraining order is wholly unnecessary.

Mr. Stinnett enjoys the constitutional rights of any citizen who wishes to speak out

against police violence. These officers were on duty, tasked with protecting governmental

services and property, wearing uniforms emblazoned with RTD and Allied insignia, and they

were cloaked in state authority. These four officers were performing the exact roles and

responsibilities they were instructed (with scant training or guidance) to perform by RTD and

Allied.

It is difficult for people of good conscience to comprehend the depths of savage racism

necessary to violently beat an innocent black man’s head and face with such force that it resulted

in a permanent brain injury, visible through imaging. Compl. ¶¶ 129–37. Mr. Stinnett was sitting

by himself amongst many other people doing absolutely nothing—except for being a black man

waiting for public transportation—when he was near-simultaneously contacted by no less than

four RTD/Allied law enforcement members.

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The four TSOs approach Mr. Stinnett.

Allied’s defense of RTD’s customs and practices in the instant motion tramples all over

Plaintiff’s First Amendment rights. The instant motion fails because it ignores the balancing

required by the complete legal standard and necessarily requires this Court to assume as 100%

true the following factual representations:

1) “This case arises from an isolated incident of an attack upon Plaintiff Raverro Stinnett

by Defendant James Hunter...” Mot. at 1.

2) Mr. Stinnett’s public statements concerning “RTD and Allied’s systematic campaign

to target the homeless and communities of color for increased scrutiny and

harassment” are unsupported by any evidence...” Mot. 6. (emphasis added)

LEGAL STANDARD

Court orders aimed at preventing or forbidding speech “are classic examples of prior

restraints,” Alexander v. United States, 509 U.S. 544, 550 (1993), and are “one of the most

extraordinary remedies known to our jurisprudence,” Nebraska Press Ass’n v. Stuart, 427 U.S.

539, 562 (1976). Because such censorship is “the most serious and the least tolerable

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infringement on First Amendment rights,” Nebraska Press Ass’n, 427 U.S. at 559, it carries “a

heavy presumption against its constitutional validity,” id. at 558.

Because of the significant First Amendment interests involved, a party seeking a ‘gag

order’ relating to pretrial publicity must generally meet the heavy burden of showing that there is

a “clear and present danger” that the restricted speech would impair the right to a fair trial. Id. at

562, (quotation omitted); see also Gentile v. State Bar of Nevada, 501 U.S. 1030, 1054 (1991)

(plurality op.) (noting that “speech by an attorney regarding pending cases” is subject to “normal

First Amendment principles”). The Supreme Court has held, however, that, given their role in the

judicial process, “the speech of lawyers representing clients in pending cases may be regulated

under a less demanding standard.” Gentile, 501 U.S. at 1074. In particular, “the ‘substantial

likelihood of material prejudice’ standard constitutes a constitutionally permissible balance

between the First Amendment rights of attorneys in pending cases and the . . . interest in fair

trials.” Id. at 1075; see also Marceaux v. Lafayette City-Par. Consol. Gov’t, 731 F.3d 488, 494

(5th Cir. 2013) (holding that the “substantial likelihood of prejudice test . . . represents the right

balance”); but see Pfahler v. Swimm, No. 07-cv-01885-MJW-KLM, 2008 WL 323244, at *1 (D.

Colo. Feb. 4, 2008) (applying “reasonable likelihood” standard).

In determining whether there exists a substantial likelihood that further extrajudicial

speech would materially prejudice the right to a fair trial, courts consider: “(a) the nature and

extent of pretrial news coverage; (b) whether other measures would be likely to mitigate the

effects of unrestrained pretrial publicity; and (c) how effectively a restraining order would

operate to prevent the threatened danger.” Pfahler, 2008 WL 323244, at *2 (quoting Nebraska

Press Ass’n, 427 U.S. at 562). In addition, any restraint on speech must also be “narrowly

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tailored” and employ the least restrictive means of preventing the prejudice. Gentile, 501 U.S. at

1075; see also Pfahler, 2008 WL 323244, at *2.

RESPONSE

I. RTD and Allied Engaged in a Systematic Campaign to Target the Homeless and
Communities of Color for Increased Scrutiny and Harassment
In addition to the violence perpetrated against a black man, Officer Diaz himself

volunteered to Denver Police Department detectives that the Transit Security Officers (“TSOs”)

profiled those who they believed were homeless and treated them less favorably. Compl. ¶¶ 211–

17. Even assuming the TSOs’ profiling is actually based on homelessness and not race, it is well

known that racial minorities experience homelessness at far higher rates, and there is a

particularly “striking disproportionality” with respect to African-Americans. Nat’l Alliance to

End Homelessness, Racial Inequality, Jan. 2020.1 Far from being “unsupported by any

evidence,” the offending RTD TSOs own testimony in the underlying state felony and

misdemeanor criminal cases demonstrate that Allied engaged in a “systematic campaign to target

the homeless and communities of color for increased scrutiny and harassment.” Mot. at 6.

As just one example of many, on December 22, 2016, Allied guards providing transit

security at Boston’s North Station assaulted a disabled homeless man during rush hour by

“gripp[ing] [his] cane with both fists and smash[ing] it across his face.” Ex. 1 at 1 (Evan Allen,

et al., He was allegedly beaten by TD Garden security. He may not be alone, Boston Globe, Jan.

18, 2017). The guards had “told him to leave” even though he “had been sitting alone and quiet

on a bench.” Id. Witness interviews suggested the “attack was part of a pattern of alleged abuse”

by Allied guards. Id. at 2. This pattern of misconduct—which Allied denied knowledge of—was

1
https://endhomelessness.org/homelessness-in-america/what-causes-homelessness/inequality/

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only uncovered because a passerby happened to witness two separate assaults and wondered:

“How many times has it happened that I’m missing it?” Id. at 8. Indeed, “[e]ight former Allied

security guards told the [Boston] Globe that management often told them to eject homeless

people, leaving them with little choice but to be aggressive . . . .” Ex. 2 at 5 (Nicole Dungca and

Evan Allen, Security company, guard sued over alleged assaults of homeless at North Station,

Boston Globe, March 16, 2017).

An investigative report published in Westword noted that “[w]hile Allied Universal and

RTD are treating the alleged assault as an isolated incident, in recent weeks other people have

come forward with stories of being harassed, intimidated or profiled by [TSOs] in and around

Union Station.” Chris Walker, Is Union Station, “Denver's Living Room,” Really Open to All?,

Westword, July 10, 2018.2 It should therefore come as no surprise to Allied that it can be

credibly accused of a “systematic campaign to target the homeless and communities of color for

increased scrutiny and harassment.” Mot. at 6.

II. Mr. Stinnett’s Assault Can Be Attributed to RTD and Allied

There is evidence here, too, on the basis of which Mr. Stinnett’s assault can be attributed

to Allied and RTD’s negligence or deliberate indifference.3 For example, communications

among RTD policymakers and Allied TSO managers show that both RTD and Allied were aware

that TSOs’ use of force was “a concern,” and that TSOs were inappropriately using force to

“physically take people off of buses or trains” as well as to detain them. Ex. 3 at 1 (10/23/17

Command Staff Meeting Notes). Despite the importance of proper de-escalation to their jobs,

2
https://www.westword.com/news/allied-universal-guards-charged-with-assaulting-man-at-denvers-
union-station-10511932
3
It should not be implied that the evidence discussed herein is all, or the best, of Mr. Stinnett’s evidence.

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TSOs received just a two-hour lecture on “mental judo,” Ex. 4 at 10:6–12 (Hunter Proffer), and

were released “released for duty simply because their [training] time is up” even if they were not

adequately trained, Ex. 5 at 2 (6/25/18 Command Staff Meeting Notes).

According to a press statement made by Allied, after Mr. Stinnett’s assault, “[a] special

training program was then developed stressing enhanced situational awareness, customer service

and ethical intervention.”4 Kati Weis, RTD Board Member Wants To Replace Contracted

Security Guards With Mental Health Professionals, CBS Denver, June 16, 2020.5 Yet the trainer

Allied used to implement this program noted that the TSOs were “truly different” from other

security guards, and was “unprepared to teach a group of officers that deal with the homeless

community, alcoholics, drug users and mentally challenged.” Ex. 5 at 1. Allied itself did not

fully understand the TSOs job duties, and “seemed to have forgotten about” them. Id. Despite

“talk about de-escalation,” there were still TSOs “engaging in unsafe practices.” Id. at 2.

And, in addition to Allied’s abject failure to supervise Officer Hunter, Compl. ¶¶ 79–83,

Allied also maintained a culture where TSOs were not disciplined for misconduct—including

criminal misconduct. For example, regarding the incident with Mr. Stinnett, Officer Diaz

testified that “it’s not like it was anything out of the ordinary,” because TSOs often did not act

according to protocol. As an example, Officer Diaz recounted an incident where Allied covered

up a TSOs’ criminal drug trafficking:

You know, there was an officer, you know, before I got let go and he gave a client,
you know, pills. His -- a controlled substance. We don’t do that, right? They have
him on camera. They didn’t fire him. What did they do? They threw it under the
rug.

4
In response to the incident at Boston’s North Station, Allied likewise “said it will further train staff on
conflict management and de-escalating situations.” Ex. 3 at 1.
5
https://denver.cbslocal.com/2020/06/16/rtd-security-guard-mental-health/

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Ex. 6 at 101:13–18 (Diaz Proffer).

The fact that Allied has asserted, both in public statements and before this Court, that Mr.

Stinnett’s injuries “cannot be attributed to Allied,” Mot. at 1, is not a proper basis for a

restraining order. While Mr. Stinnett’s allegations may be “vigorously disputed by Allied,” Mot.

at 6, Allied cannot complain that they are baseless and prejudicial. Press statements, like those in

this case, that “describe and track the allegations” of a plaintiff’s complaint do not prejudice the

right to a fair trial, and Allied’s attempt to silence Mr. Stinnett should be rejected. Hernandez v.

Monarch Real Estate Corp., No. 08-cv-732-MCA-WPL, 2008 WL 11450595, at *2 (D.N.M.

Oct. 17, 2008). Indeed, nearly every defendant who is sued denies legal responsibility for the

claimed injuries. If merely offering a defense providing grounds for a gag order, such orders

would be the rule and not the rare exception.

III. Allied’s Business and Public Relations Concerns Do Not Justify Prior Restraint

Allied’s concern lies not just with alleged trial prejudice, but with the effect of its

growing reputation as “a firm that has a history of controversy including allegations of sexual

harassment and abuse” and “racism” on its business interests. Ex. 7 at 1 (Tim Gallen, Tempe

declines to award security contract to controversial firm, Phoenix Business Journal, Dec. 21,

2018). Indeed, as a result of publicity surrounding the incident at Boston’s North Station, Allied

was quickly replaced by a competitor. Ex. 2 at 3. And, when Allied bid on a contract with the

City of Tempe, Arizona, the City Council “unanimously denied” awarding a contract to Allied,

concluding that Allied did not “represent[] Tempe’s values.” Ex. 7 at 2, 1. And the same may be

true here. Recently, a member of RTD’s Board of directors has planned to “introduce a

resolution . . . calling for an end to the agency’s contracts with . . . [Allied] security personnel.”

Ex. 8 at 1 (Michael Karlik, RTD director to introduce resolution calling for defunding security,

Colorado Politics, Jun. 9, 2020). To be sure, “the current political climate surrounding racial

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issues and police brutality,” is likely to increase public attention to, and scrutiny of, government

relationships with Allied. Mot. at 6.

This explains the concerns that Allied’s counsel expressed at the scheduling

conference—namely that Mr. Stinnett was allegedly attempting to affect a “divorce” between

RTD and Allied—and it explains Allied’s attempt to silence Mr. Stinnett without any evidence

showing that Allied’s right to a fair trial has been impacted. But as a public contractor, Allied

cannot expect to be immune from adverse publicity, and Mr. Stinnett and others have every right

to make their views about Allied and RTD’s relationship with Allied known. The First

Amendment protects not only speech, but “the right of the people . . . to petition the Government

for a redress of grievances.” U.S. Const. amend. I. Although Allied may be irritated by the press

coverage this case has received, its business and public relations concerns cannot support a prior

restraint on speech.

IV. Allied Has Failed to Present Any Evidence That Its Right to a Fair Trial Is at Risk
Allied has failed to show any prejudice from the minimal press coverage of Mr. Stinnett’s

case. Indeed, given the size of the jury pool and the length of time before trial “only the most

damaging of information could give rise to any likelihood of prejudice.” Gentile, 501 U.S. at

1044 (emphasis added). Allied’s bald assertions to the contrary are not enough meet its burden.

Bertot v. School Dist. No. 1, 522 F.2d 1171, 1183 (10th Cir. 1975) (“The [First] Amendment

tolerates absolutely no prior restraints predicated on surmise or conjecture that untoward

consequences may result.”).

Because of the large jury pool in this district, there will be no difficulty impaneling an

impartial jury in this case. See Gentile, 501 U.S. at 1044 (finding that drawing a venire from a

population “in excess of 600,000 persons” significantly diminished risk of prejudice); In re Dan

Farr Prods., 874 F.3d 590, 595 (9th Cir. 2017) (“[P]retrial publicity is less likely to threaten the

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fairness of trial in a large metropolitan area.”). Moreover, any prejudice is insubstantial because

“there is no trial date set and discovery is not completed.” Pfahler, 2008 WL 323244, at *2. The

further in time an extrajudicial statement is from jury selection, the more attenuated any potential

prejudice, because any statements fade from prospective jurors’ memories. See Gentile, 501 U.S.

at 1044 (noting that even if “[a] statement which reaches the attention of the venire on the eve of

voir dire” might be prejudicial, “exposure to the same statement six months prior to trial would

not result in prejudice”). As such, Allied has failed to show any likelihood of prejudice.

A. The Amount of Pretrial Publicity Is Insubstantial

According to Allied, “[Mr. Stinnett’s] and his attorneys’ regular appearances in Colorado

news outlets” have generated “widespread press attention.” Mot. at 4. But Allied cites to only

four media reports about Mr. Stinnett’s case, one of which merely reprints portions of a prior

article. Mot. 4–5. As such, the amount of news coverage in this case has been “small in number,”

and cannot significantly impair the fairness of any trial. Pfahler, 2008 WL 323244, at *2; see

also Slivka v. Young Men's Christian Ass'n of Pikes Peak Region, 390 F. Supp. 3d 1283, 1286

(D. Colo. 2019) (finding “the extent of pretrial news coverage” was “insubstantial” where “three

media sources have published articles related to the lawsuit”).

B. Allied Fails to Show Less Restrictive Measures Would Be Ineffective

The restraining order requested by Allied is extraordinarily broad. It would “restrain[] the

litigants and their attorneys from discussing this lawsuit or the alleged incident.” Mot. at 8.

Given its breadth, it would restrict Mr. Stinnett and his counsel from commenting on matters of

public record that have no prejudicial effect on these proceedings. Yet Allied claims that because

statements have been “published on state-wide news sources with the capability of reaching

potential jurors from across the entire state,” only a blanket restraining order can ensure a fair

trial. Mot. at 6. Other than its say-so, Allied provides no support for this conclusion, and does not

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even bother to address why “extensive voir dire” and jury instruction would be insufficient.

Pfahler, 2008 WL 323244, at *2.

Allied’s assertions are not nearly enough to meet its burden. Indeed, “[e]mpirical research

suggests that in the few instances when jurors have been exposed to extensive and prejudicial

publicity, they are able to disregard it and base their verdict upon the evidence presented in

court.” Gentile, 501 U.S. at 1054–55 (citing studies). Thus, “any potentially damaging pretrial

publicity may be adequately mitigated without the imposition of a gag order.” Slivka, 390 F.

Supp. 3d at 1287.

CONCLUSION

Because Allied has failed to show that the “drastic” measure it seeks is warranted, its

motion should be denied. Nebraska Press Ass’n, 427 U.S. at 559.

Respectfully Submitted,

RATHOD | MOHAMEDBHAI LLC

/s Felipe Bohnet-Gomez
Felipe Bohnet-Gomez
Qusair Mohamedbhai
Siddhartha Rathod
2701 Lawrence St., Suite 100
Denver, CO 80205
(303) 578-4400
fbg@rmlawyers.com
qm@rmlawyers.com
sr@rmlawyers.com

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