Durango Arts Center Director lies to trespass journalist from taxpayer-funded public property

Durango Arts Center Executive Director Brenda Macon lied to the police about the ownership and funding status of our fractionally-owned public property in order to have me trespassed while video recording in publicly accessible areas during their business hours.

While peacefully recording the art exhibits in the gallery, the gift shop and then the theater, I was confronted by some people who were rehearsing on stage.

Geoff Johnson, and some other people on stage saw me peacefully recording by myself next to the seating area. Johnson got down off of the stage, approached me, and told me that the theater was not open to the public.

“We’re not able to do any recordings or have it open to the public, so I’m going to have to ask you to take off if you don’t mind,” said Johnson.

However, the theater was open to the public since the door to the theater was wide open and there was no signage or ballards at the entryway that would restrict my access. Additionally, no signage existed inside the theater that would restrict the access of the public.

Curiously, the doors to the theater did not appear to have any locking mechanisms for restricting access.

Furthermore, there was a sign above the entrance to the theater that said, “Community Arts Center Theater,” suggesting that the place and the bar in it were open to the general public.

Geoff Johnson goes hands on with cameraman in DAC theater

After I told Johnson that it’s a public property, he asked me to leave and grabbed my arm in an attempt to push me out of the theater. I told him to get his hands off me and to not touch me.

I asserted my right to be in the theater since it was public property that’s fractionally owned and funded by the City of Durango.

Both Johnson and Mary Quinn tried telling me that the facility was exclusively owned by Durango Arts Center, a non-profit organization.

Even the director Brenda Macon tried telling me and the police that the facility was not owned by the city, but was instead paid for by a private group of citizens.

Shortly thereafter, Macon would lie to a responding police officer by telling him that they were not taxpayer funded.

After explaining to Johnson that I was allowed to be in the theater, I tried to walk away from him.

Johnson and another man followed me when I walked over to look at the bar. They told me that I did not have their permission to video record them.

Brenda Macon approached me near the bar in the theater. By the bar, Brenda Macon told me that it was a private event, and that I would need to go.

I asked Macon if it was a ticketed event, and she said no.

Then, she told me that “it’s a rental.”

Months later, Macon would tell the county court judge overseeing my case that the event that was occurring in the theater while I was there was not a rental. She was not in possession of three documents that I subpoenaed her to produce for my trial:

1. Rental payment receipt for DAC theater rehearsal on 5/7/2022.
2. Certificate of Insurance for DAC theater rental on 5/7/2022.
3. Signed copy of DAC theater Rules and Procedures for rental on 5/7/2022.

Letter from Brenda Macon to court about non-existent evidence of rental

While Brenda alleged that there was a private event occurring in the theater as a rental, the lack of documentation to prove her assertion told another story.

According to the facility page on the DAC website,

“All rentals are done on a first-come-first-served basis and are not secured until a signed contract, rental deposit and damage deposit have been received.”

• All rentals are required to provide a Certificate of Insurance prior to their event.
• All rentals are required to review and sign off on the Rules and Procedures.

Suspiciously, Macon was later unable to produce any of these documents for her claim on May 7, 2022 to the police and I that there was a “private event” and “rental” occurring at the facility.

Here’s what she told the court in response to my subpoena:

“To whom it may concern:

I am in receipt of a subpoena to produce documents that do not exist. I do not have a mailing address for the Defendant, Adam Howell, so I am addressing this to you. The Durango Arts Center has no documents responsive to Mr. Howell’s request. I am hopeful that this can be relayed to Mr. Howell. The documents he requested do not exist as the program running in the theater on May 7th was internally produced by the Durango Arts Center and as such was not a rental. We cannot produce something that we do not have.

Thank you for your assistance in this matter.

Sincerely,

Brenda Macon.”

In other words, the people who were on the stage at the time of my visit to the “Community Arts Center Theater” had no reasonable expectation of privacy in public since the theater was a public place.

Specifically, the Durango Arts Center Community Arts Center Theater and its lobbies are public places, which mean places 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. Colo. Rev. Stat. § 18-1-901(n) (1971).

Letter from Brenda Macon

Director Brenda Macon makes false 911 report to authorities

After I told her that the theater was open to the public, she said that she was going to call the cops.

Then, Macon called for police and falsely told the dispatcher that I was threatening and harassing a group of people. Of course, this was a false police report that could have gotten me injured or killed by responding officers.

Her false claim to dispatch insinuated that I had engaged in an assault or some type of harassment.

Since I knew that this was a serious accusation of falsehood, I listened to Macon talking to the dispatcher, and I asked her to tell the dispatcher that she had just lied about what I was doing.

Macon’s allegations against me in her call to 911 would differ dramatically from the claims she made months later in her written request to the court for me to pay restitution.

Almost two months later, Macon submitted a Victim Impact Statement to the Victim Witness Unit of the District Attorney’s Office. In this statement, Macon’s story about the nature of the threat had changed.

This time, she would claim that I threatened her in a non-verbal manner.

“Mr. Howell was carrying pepper spray on his belt and when questioned, he would put his hand on it in a way that threatened he might use it,” said Macon.

Of course this was a lie that she could not prove. Furthermore, it just sounded ridiculous.

While peacefully recording what’s going on in public while on publicly-accessible areas of public property is not a crime, the act of making a false report to authorities is a crime.

Codified in C.R.S. 18-8-111, the part of law that applies to Macon’s statement is the following:

(1)(a)(II) He or she makes a report or knowingly causes the transmission of a report to law enforcement authorities of a crime or other incident within their official concern when he or she knows that it did not occur;”

Durango Police Department refuses to issue citation for Macon’s false Report

While I was at the Durango Arts Center getting coerced to leave, I told Commander Casey Malone that Macon had made a false 911 report to authorities by her telling them that I was threatening people.

Malone did not care to take action on Macon’s false 911 report.

Month’s later I made a request to Commander Jacob Dunlop to issue a citation and summons for Macon’s false police report. He refused.

Instead, he had Officer Richard Clamp reach out to me for a statement from me about how I had never threatened anyone at DAC. Clamp refused to write a criminal citation or summons to Macon for making a false 911 to authorities, even though I provided him and the DA’s office with the video evidence as proof.

Police confused about ownership of Durango Arts Center

Durango Police Department employees who showed up to enforce the feelings of Durango Arts Center’s Brenda Macon appeared disinterested in verifying who owned the building. None of the police who approached me were willing to look up the property on the La Plata County Assessor’s web page, known as Eagle Web.

Officer Robinson, badge #9193, arrived at the facility and told me that I was on private property. To that, I told him that it was public property, and that the City of Durango was on the Special Warranty Deed.

Special Warranty Deed, Durango Arts Center

Moreover, the DAC has received a Community Support Funding grant from the City of Durango annually over the past couple of years.

In 2022, Durango Arts Center’s general operating fund received $6,345 dollars in grant funding from City of Durango taxpayers through the United Way of Southwest Colorado. United Way of Southwest Colorado managed the City of Durango Community Support Funding grant (CSF).

In 2021, Durango Arts Center’s general operating fund received a $6,750-dollar CSF grant.

In its 2019 Form 990 tax filing, Durango Arts Center designates itself a public charity because it “normally receives a substantial part of its support from a governmental unit or from the general public described in section 170(b)(1)(A)(vi).”

Additionally, the Durango Arts Center receives property tax breaks based on its 501(c)(3) status. In other words, the facility serves a public function.

Durango Arts Center has fractional interest in City of Durango-owned building

Durango City Council voted unanimously to adopt Ordinance O-1996-14 authorizing the sale of a fractional interest in the property and improvements located at 802 East 2nd Ave to Durango Arts Center, Inc, according to the July 2, 1996 meeting minutes.

Formerly known as the City-owned Murphy Service Center Building, it is now known as Durango Arts Center.

The City of Durango purchased the property in order to provide a public parking lot, in addition to providing assistance in the establishment of a community arts center.

“Councilor Shine believed this action would have a very positive impact on the community. She was pleased to see a solution whereby the City still provided additional parking  for the downtown and also provided a needed facility for the community,” the June 17, 1996 Durango City Council meeting minutes said.

“The agreement by which the Durango Arts Center had acquired a fractional interest in the City-owned property at 802 Second Avenue provided that the property and improvements be used exclusively for purposes of an art center facility for the community and that any other use required prior written consent of the Council, which would not be unreasonably withheld, (p. 18)” the Sept. 16, 1997 Durango City Council meeting minutes said.

Officer Bobian embellishes, then backtracks about interference claim at DAC

Durango Police Department Officer Levi Bobian immediately embellished about my peaceful photography when he approached me in the theater.

Officer Bobian said that “these people’s day was being interfered with.”

I told Officer Bobian that he was embellishing by using the word “interfere.”

Furthermore, I asked Officer Bobian if he had ever looked up the definition of interference.

The definition of “interference”, according to Black’s Law Dictionary 11th Edition is, 1. The act or process of obstructing normal operations or intervening or meddling in the affairs of others. 2. An obstruction or hindrance.

“Let’s not use the word interfere,” said Bobian. “I don’t think these people are having a very good time, right.”

In response, I told Officer Bobian that we were talking about feelings.

I asked Officer Bobian if what he was saying was that he was enforcing feelings.

Officer Bobian said that he is just trying to understand.

Thirteen minutes after Bobian cited me for Public Building Trespass and I left the facility, he had a conversation with Brenda Macon and some of the Board of Directors in the lobby.

Officer Bobian then said that Durango Arts Center was not a public building, but something more akin to private property.

A board member asked Bobian if DAC could restrict people from bringing pepper spray into the building.

“I don’t know, because I think this is not a public building,” Bobian replied, about 13 minutes after writing me a ticket for public building trespass [14:53]. This really could have been a civil problem. In my opinion, you could post whatever you want in the building, as long as it’s not discriminatory, I imagine. You could post, no weapons, no mace.”

“I’m not a civil lawyer. That sounds like a civil problem,” said Bobian. “I don’t think that would be unreasonable. You could do that. In my home I could post that. You could trespass people for any reason. He’s just trying to find this weird obscure law, or something like that.”

Obviously, the obscure law that he’s referencing is the first law of the land–also known as the First Amendment.

Incident Report falsified by Officer David Levi Bobian

Following my visit to Durango Arts Center, Officer Bobian filed a Police Report for Incident P22-15149 that contained a number of false statements that he could have verified were false if he had just reviewed some public records, some definitions, and his own body worn camera footage prior to writing his report.

Among the most egregious false statements that Officer Bobian wrote into his report was a false accusation that was allegedly made by the president of the DAC, Michael Scieszka.

“The president of the DAC arrived and identified himself as Michael Scieszka,” said Bobian. “Scieszka informed Howell that he was the president of the DAC and requested Howell leave the premises.”

To be clear, Scieszka never contacted me while I was in the DAC at the time of the incident. Scieszka never identified himself to me, and he did not ask me to leave the premises. The public can verify this fact, as well, by reviewing my videos.

False claim of interference by Officer Bobian

Also false in Officer Bobian’s report was his statement that I disrupted and interfered with the DAC’s private rehearsal.

Alarmingly, Officer Bobian’s claim of interference was false even though he had the means of verifying and investigating what had occurred at the time of the incident.

1. Interference is a word used to define a physical act, which he could have confirmed with a simple search of the term on the internet.
2. Disruptive conduct refers to the disorderly conduct in the context of a governmental proceeding, according to Black’s Law Dictionary. Given this definition, can disruptive conduct occur in a government-owned property where government officials are not present?
3. The rehearsal at DAC on 5/7/2022 was not private since it was occurring in a publicly-accessible public place on publicly-owned property during operational hours, as posted on their doors, interior wall and website.

What was misleading in his report was the claim that “all individuals involved in the rehearsal left the DAC.” Several of the individuals involved in the so-called rehearsal can be seen going into the private office at the DAC, and even talking to Officer Bobian in the lobby after I was forced to leave the building.

 

Durango Police Department Officer Report for Incident P22-15149

Those operating Durango Arts Center appear to be state actors

I may be relieved of criminal liability for any trespassing charge at the time of the episode due to my participation in a First Amendment-protected activity.

Specifically, on property that’s operated by state actors, people have the lawful right to exercise their civil rights.

When people are discriminated against or forced to stop engaging in those civil rights under the color of law, they may have a claim against those state actors for deprivation of rights pursuant to 42 U.S.C. § 1983.

In this instance, I’m claiming that the alleged victim in my case was a state actor because of the following two factors:

1. Durango Arts Center was performing a public function on publicly-owned  property.
2. A symbiotic relationship was occurring between the City of Durango and Durango Arts Center since the facility was receiving Community Support Fund grant money into their general operating fund in exchange for the “public charity” purporting to carry out the goals of the city.

2021 United Way Contract_Executed

Symbiotic Relationship Test defined by Black’s Law Dictionary

“Private acts by a private person do not generally create liability for violating someone’s constitutional rights. But if a private person violates someone’s constitutional rights while engaging in state action, the private person, and possibly the government, can be held liable. State action may be shown by proving that the private person and the state have a mutually dependent (symbiotic) relationship. For example, a restaurant in a public parking garage was held to have engaged in discriminatory state action by refusing to serve African Americans. Burton v. Wilmington Parking Authority, 365 U.S.C. 715, 81 S.Ct. 856 (1961). There, the Court found a symbiotic relationship because the restaurant relied on the garage for its existence and significantly contributed to the municipal parking authority’s ability to maintain the garage. But the symbiotic-relationship test is strictly construed. For example, the fact that an entity receives financial support from — or is heavily regulated by — the government is probably insufficient to show a symbiotic relationship. Thus, although a state had granted a partial monopoly to a public utility, the Court refused to find a symbiotic relationship between them. Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449 (1974),” Black’s Law Dictionary, 11th Edition, Garner.

Civil rights should apply to Durango Arts Center operated by state actors

We have rights under the Free Press Clause of the First Amendment of the United States Constitution, as applied to the states by the Fourteenth Amendment.

Of relevance is that the publicly-accessible areas of Durango Arts Center are places for expressive activity, pursuant to reasonable time, place and manner restrictions.

Discriminatory action by private parties may be precluded by the Fourteenth Amendment if the particular party involved is exercising a “public function.” See Marsh v. Alabama, 326 U.S. 501, 66 S. Ct. 276, 90 L. Ed. 265 (1946).

I was asked by state actors to leave a public building. An entity that is leasing the inside of a government building can be deemed a state actor. For instance, a man leasing a cafeteria inside of a county courthouse was deemed to be a state actor in Derrington v. Plummer, 240 F.2d 922 (5th Cir. 1956). “His conduct is as much state action as would be the conduct of the County itself.”

Durango Arts Center can be deemed a state actor for operating inside of a city-owned theater. For example, a company leasing a city-owned theater was deemed to be a state actor in Jones v. Marva Theatres, Inc., 180 F. Supp. 49 (D. Md. 1960).

First Amendment retaliation on behalf of state actors

At the time of my 5/7/22 visit to Durango Arts Center, I did not mention my political views on COVID-19. I also did not mention a previous video that I had published involving one of the responding officers to the incident at Durango Arts Center.

Instead, it was Executive Director Brenda Macon who mentioned previous journalism and viewpoints of mine to Officer Bobian. She also told several officers that I had been to the facility before during Brewfest to harass people, which was false.

“This guy’s been in here before harassing us because of our covid policies. [not true] We’ve always been in line with San Juan Basin Public Health. He video tapes us, and then posts it on social media and tries to lambaste us. [not true] He’s just a harasser. [not true] He came in this time with pepper spray, which is new. He won’t identify himself. [not true] And he won’t leave. And this is a private rehearsal going on in here today and he’s been giving these guys a hard time for about 15 minutes. [not true]”

In Officer Bobian’s report, he wrote that Macon stated that “Howell was not a part of the rehearsal and was making herself and the other individuals uncomfortable.”

While I was peacefully video recording inside the DAC theater, Macon misled police officers by telling them that I was on private property that was not funded by taxpayers.

Officers Heller and Robinson told me that I was on private property.

Body camera footage from Heller suggests that he was misled by what Brenda Macon had told him.

“It’s not taxpayer funded or anything,” Officer Heller asked Macon.

In response, Brenda Macon nodded her head from left to right and said no. “We don’t receive…, [unintelligible]” said Macon.

Video shows discomfort created by video recording

I was asked to leave the publicly-accessible area of the public place on public property because I was engaged in the First Amendment activity of video recording. Under the state action doctrine, I have a First Amendment right in the facility that is run by state actors who are entwined with the City of Durango. See West v. Atkins, 487 U.S. 42, 108 S.Ct. 2250.

Also, I was asked to leave a public place because I was video recording and making people uncomfortable. I asserted my First Amendment right to record and be where I was. My First Amendment right negates an element of each offense that I was charged with.

Under the First Amendment to the United States Constitution, a citizen has the lawful right to be free from governmental action taken to retaliate against the citizen’s exercise of First Amendment rights or to deter the citizen from exercising those rights in the future.  Sloman v. Tadlock, 21 F.3d 1462, 1469-70 (9th Cir. 1994).

Durango Arts Center President Michael Scieszka threatens me on sidewalk

After the tyrants kicked me out of the Durango Arts Center, the organization’s board President Michael Scieszka gave me a veiled threat.

Before that day I had never known or talked to Scieszka.

While he was approaching his vehicle to get in and drive away, he initiated conversation with me.

Michael: “See you later fuck nuts.”

Michael: “Oh, you like that name, don’t ya?”

Michael: “That’s good. It fits.”

Michael: “It fits really nice.”

Then, I stepped onto the sidewalk to video record his license plate.

Michael: “What the fuck are you doing now?”

He got out of his car, walked up to me and stepped within arms length of me.

Michael: “What the fuck are you doing? What the fuck are you doing?”

Michael: “Get away from me. Get away from me.”

Officer Bobian: “I’d recommend not doing that.”

Michael: “Ok.”

Michael: “I hope to meet you somewhere, some other time.”

Me: “Oh. Then what are you going to do?”

Michael: “You don’t want to know asshole.”

Me: “What’s your name?”

Scieszka would later provide material misrepresentations to in a letter to the DA’s office about what happened that day.

Going further, Scieszka succeeded at having Judge Satter approve a Permanent Civil Protection Order against me for having the pepper spray and taking pictures of Scieszka’s license plate and VIN number.

The trespassing case is scheduled for jury trial on May 11, 2023.