After a settlement agreement fell apart in a lawsuit alleging government authorities and an energy company violated two Colorado residents’ constitutional rights at a protest of the company, a judge last month ruled in favor of a police lieutenant and community college, ending a nearly four-year legal battle.
The August ruling did not affect a separate agreement between Boulder residents Thomas Asprey and Leslie Glustrom and Peabody Energy Corporation. Peabody earlier this year paid $145,000 to each of the two protesters following their arrest while protesting on behalf of miners at a shareholders meeting in Gillette.
The Coloradans’ civil complaint stemmed from a 2013 protest on the campus of Gillette College, where the shareholder meeting was held. The meeting typically would have been held at Peabody’s headquarters in St. Louis, but the company moved to Gillette to avoid miners’ protests, according to Asprey and Glustrom. The two then came to Gillette to protest on behalf of miners, they said.
After the Coloradans arrived, college police told Asprey and Glustrom that they would have to go to a fenced area far from the meeting in order to show a banner. When they displayed the banner — emblazoned “Peabody Abandons Miners” — near the meeting on their way through a parking lot, police arrested them.
The college allowed the company to order police to suppress protests, the Coloradans alleged in their lawsuit, which argued infringement of their First and Fourth amendment protections. Last month, however, Judge Scott Skavdahl found in favor of the policeman, the college and its police department, ruling the claims against them were not valid and closing the case.
Darold Killmer, who represents the two Coloradans in the lawsuit, told the Star-Tribune in August that although he had agreed in January to settle claims with the college and police for $80,000 and a public educational program on the First and Fourth amendments, opposing lawyers later reneged on the deal. The money wasn’t the issue, Killmer said. Although defendants indicated they would be willing to pay more to settle the suit, Asprey and Glustrom declined to take money in exchange for dropping the public information requirement. Killmer said he would appeal the judge’s decision to grant summary judgment.
“It’s very upsetting,” Killmer said. “But we’re not going away.”
“I am pleased that upon reviewing the facts, the judge dismissed all claims against the Northern Wyoming Community College District and Lieutenant Trebby,” Walter Tribley, district president, said in a written statement provided by a district official. Tribley also claimed in the two-sentence statement that “there was no settlement of any kind.” However, the official did not respond to a follow-up email requesting clarity in light of a March 20 court filing signed by lawyers, including the college’s, that stated parties had agreed to a settlement with minor details to be reconciled.
A late Friday afternoon phone call to Assistant Vice President Wendy Smith, who provided the statement, went unanswered. She did not reply by press time to a voicemail likewise seeking clarification.
Chris Voigt, who represented the school district and its police department, declined this week to comment directly on Killmer’s characterization of the deal’s sticking points. He said by email that as a rule he treats settlement discussions as confidential.
“All I can say is that all the parties worked hard and spent a lot of time attempting to reach agreement on the specific settlement terms,” Voigt said. “Unfortunately we just couldn’t quite get to specific settlement terms everyone could agree upon.”
Wyoming’s attorney general, whose office represented the police lieutenant named in the case, did not initially respond to an email requesting details on how the settlement fell apart. Attorney General Bridget Hill in response to a follow-up email Friday noting this story’s publication date confirmed a policy described in prior statements precluding her from commenting on cases until they are fully resolved in appellate courts.
The federal judge’s ruling, handed down Aug. 19, caps a half-year of uncertainty in the case. In January, court records stated that Killmer and Assistant Attorney General Justin Daraie — who represented police Lt. Chad Trebby in the case — had agreed to settle the case. The same entry called for a submission of dismissal filings by Feb. 19.
Killmer in January told the Star-Tribune that the Northern Wyoming Community College District and campus police had agreed to pay $80,000 to the protesters, who Killmer said would donate the money to charity causes. A vice president of the community college district said at the time that certain unfinished details of the settlement precluded her from commenting.
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When the February deadline came, Killmer instead requested a time extension, stating lawyers were still working out the settlement agreement’s details.
Lawyers in March requested another time extension, stating they had largely agreed to the settlement’s terms.
“The Parties have agreed on almost all material details in the settlement of the claims, including training for law enforcement officers, but a few minor details must be agreed to prior to the execution of the agreement,” states the filing, which was signed by Killmer, Daraie and Voigt. The delay was partially attributable to need for community college board approval to implement certain policies governing school police and relating to the First Amendment, the attorneys wrote.
On the new deadline, May 3, Killmer filed request for a settlement conference. In the unopposed request, the lawyer stated the tentative settlement still had certain unsettled issues. Days later, Magistrate Judge Kelly Rankin set the conference for June.
Days before the conference, Rankin approved another request for an extension to filing deadlines. Lawyers never filed the paperwork and online filings show no record indicating the conference took place. In August, Skavdahl ordered the case continue and said he would rule on defendant requests for summary judgment dating to December.
About a week after Skavdahl’s order, lawyers for the lieutenant and the college filed documents to those requests. In the late 2018 filings, the college, the agency and Trebby had asked the judge to find that lawyers didn’t dispute any relevant facts of the case and that the protesters’ legal analysis was faulty.
The attorney general’s office in its August filing cited a U.S. Supreme Court case decided earlier this year and argued that a claim of retaliation for speech protected by the First Amendment — which Trebby and the state lawyer’s office disputed — could not even be considered because Trebby could reasonably believe he had probable cause to arrest them on suspicion of interference, despite a judge’s later dismissal of a criminal trespassing case for lack of probable cause.
The college’s lawyer, for his part, argued Asprey and Glustrom had exaggerated the facts in their complaints and had not shown Tribby arrested them for the content of their speech, which is precluded by the First Amendment. Voigt, however, went on to write that even if the protesters’ characterizations were accurate, the college would not be responsible because Trebby wasn’t an authorized policymaker for the college.
Then, on Aug. 19, Skavdahl issued a ruling dismissing the claims against the district and Trebby.
In his written ruling, the judge wrote that Trebby ordering Asprey and Glustrom not to display a banner was a legitimate part of his job. Trebby testified in state court that concerns about potential traffic obstruction in the parking lot gave authorities reason to restrict speech in the lot by ordering Asprey and Glustrom only display the banner in a designated demonstration area. Trebby could reasonably have found probable cause to arrest them on suspicion of interference, even if that was not the case charged, Skavdahl wrote.
“A prudent, reasonable and cautious police officer in Lt. Trebby’s position would reasonably and objectively believe plaintiffs were committing the crime of misdemeanor interference,” Skavdahl wrote. The judge ruled that qualified immunity, which protects government officials from lawsuits for reasonable actions taken as job duties that do not violate already established rights, as applied in Trebby's case.
Because Skavdahl found Trebby did not violate the protesters’ constitutional rights, the community college and its police department were necessarily not liable for the claims against them. The judge wrote in his decision, however, that even if he had found otherwise, the government would not have been liable because Killmer did not establish a civil rights violation would have been highly predictable or plainly obvious.
By Friday, Killmer had not yet filed a notice of appeal in the case, which drew national press years ago, when Peabody asked the court to strike lyrics from John Prine’s “Paradise” that Killmer had included in legal filings. The 1971 song is critical of Peabody’s mining activities in Kentucky. A magistrate ruled against Peabody on that matter in September 2015. After the case received national attention, a representative for Prine thanked Killmer for defending the song’s lyrics and invited him to a 2016 Prine concert in Colorado, which he attended along with Asprey and Glustrom, according to Killmer’s statements and emails provided by Prine’s management.