7/31/2019 Seth Brigham Demand Letter

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*Also admitted to practice in CaliforniaAlso admitted to practice in New YorkAlso admitted to practice in Wyoming

Also admitted to practice in New York,

not yet licensed in Colorado

KILLMER,LANE &NEWMAN,LLP ATTORNEYS AT LAW

1543CHAMPA ST.ySUITE 400yTHE ODD FELLOWS HALL yDENVER,CO80202303.571.1000 y FAX: 303.571.1001 ywww.KLN-law.com

Darold W. KillmerDavid A. Lane*

Mari Newman*Lisa R. Sahli

Lauren L. FontanaTiffany J. DrahotaFaisal SalahuddinSarah M. Morris

September 3, 2012

Thomas Carr, Esq.Boulder City AttorneyCarrT@bouldercolorado.gov

Re: Seth Brigham v. City of Boulder, Colorado

Dear Mr. Carr:

As you well know, the district court recently denied Boulders attempt to obtain a permanentrestraining order against Seth Brigham. It was and remains our position, as well as that of thecourt, that the actions complained of by Boulder were all protected by the First Amendment tothe United States Constitution. The court cogently set out the First Amendment case law onpoint in denying your effort to violate Seth Brighams right to free speech and to petition hisgovernment for redress.

It appears to me that Boulders efforts to silence Mr. Brigham amounted to both retaliation forhis protected speech activity and an abuse of process. In the Motion for a TRO, you citeexamples of Mr. Brigham sending disturbing emails to members of the City Council. Inreality, every email sent was protected speech and involved allegations by Mr. Brigham ofmisconduct and conflicts of interest on the part of members of the City Council. You sought touse the court system to silence a vocal critic of Boulder city government.

Abuse of process is a common law tort and is cognizable under 1983 of the federal civil rightsact so long as it also results in a violation of federal constitutional law such as the FirstAmendment. See Cook v. Sheldon, 41 F.3d 73, 77 (2d Cir 1994). In Colorado, abuse of process

requires proof that: 1) defendants had an ulterior purpose in the use of judicial proceedings; 2)willful actions by defendant in the use of process that are not proper in the regular conduct of aproceeding; and 3) damages.Hewitt v. Rice, 154 P.3d 408, 414 (Colo. 2007). It is my contentionthat Seth Brigham can prove each of these elements in a federal lawsuit against Boulder.

mailto:CarrT@bouldercolorado.govmailto:CarrT@bouldercolorado.govmailto:CarrT@bouldercolorado.gov

7/31/2019 Seth Brigham Demand Letter

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If a suit is filed, you will be confronting evidence that it is the custom, practice and policy ofBoulder to violate the First Amendment rights of Seth Brigham. Boulder has already once paidMr. Brigham $10,000 for a blatant First Amendment violation and now the City Council is again

violating the Constitution. Boulder will be a municipal entity named in the suit as the ultimatedecision makers for Boulder, members of the City Council, undertook this unconstitutionalaction.

If you are interested in settling this matter without litigation, please contact me not later than thenoon on September 7, 2012. If I do not hear from you I will assume you are not interested indiscussing a settlement of this matter and we will proceed to file. Please be advised that anysettlement will involve a monetary award to Seth Brigham far in excess of the $10,000previously paid by your client, the City of Boulder. This is the City Councils second violationof the First Amendment as applied to Mr. Brigham and as your assistant city attorneys tell mycriminal defendant clients, there are escalating consequences for subsequent violations. I also

wish to make it clear that Council member Lisa Morzel will not be the subject of any legal actionby Mr. Brigham as she apparently was the only council member who both understood the FirstAmendment and had the courage to do the right thing and get out of the ill-conceived effort tosilence Seth Brigham brought by you and the rest of the Council

I look forward to hearing from you.

Sincerely,

David A. Lane