The anti-fracking activist ticketed for projecting a skull and crossbones onto the wall of the courthouse on Boulder's Pearl Street Mall has asked a judge to throw the case out, arguing his actions broke no law and were protected by the Constitution.

David Paul, 54, was cited by Boulder police for trespassing after officers say he beamed an image of a skull and crossbones along with the words "Ban Fracking!" onto the courthouse building, which houses Boulder County government offices.

He was protesting with the group Boulder County Protectors outside the adjacent Boulder Theater, 2032 14th St., during Boulder's celebration of the 50th anniversary of the city's open space program on Nov. 7.

The motion to dismiss indicated prosecutors have since sought permission to amend the charge to unlawfully posting signs on the property of another. On Wednesday, a judge granted that request.

Boulder County Attorney Ben Pearlman directed police to issue the ticket, saying the county does not allow images or phrases — political or otherwise — to be beamed onto the building.


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But Paul, who has retained David Lane and Andrew McNulty of Denver law firm Killmer, Lane & Newman LLP, is seeking the dismissal of the case, claiming that his actions were not only protected by the Constitution, but did not violate Boulder municipal law in the first place.

"Defendant's conduct, on its face, did not violate any law," Lane wrote in his motion. "For this reason alone, this case should be dismissed. However, this case also warrants dismissal because the continued prosecution of defendant is in violation of the First Amendment... and the Fourteenth Amendment."

The city of Boulder declined to comment on the case, and Pearlman could not be reached for comment.

The county's policy, in part, states that, "Signs, banners, lights or other materials affixed to or projected against the walls or surfaces of county-owned buildings and structures other than those owned approved by the (Board of County Commissioners) or another Elected Official are prohibited."

The Boulder trespass ordinance that Paul originally was ticketed on states that no person shall: "Enter or remain upon land or premises other than a dwelling of another in defiance of a legal request or order by the owner or some other authorized person." The ordinance also states that no person shall enter land or a building that is locked, fenced or enclosed by the owner in order to keep people out.

Lane, in his motion to dismiss, argues that Paul was not standing on the courthouse grounds at any time.

"Simply put, Mr. Paul never entered, or remained, on the grounds of the Boulder County Courthouse," Lane wrote. "Mr. Paul was arrested for trespass because he shone a light on the courthouse from a public street."

As for the possible amended charge — which the court has yet to rule on — posting a sign on another's property is prohibited and states that: "no person shall post a sign in the public right of way or on any other public property except on a kiosk or a public bulletin board meant solely for posting signs."

In his motion, Lane argues that the light projection did not meet those restrictions.

"The act of projecting light onto an object is not posting or affixing light to that object, and any intrusion that Mr. Paul's projection had on the Boulder County Courthouse was non-physical," Lane wrote.

Paul is scheduled to appear in Boulder Municipal Court for a hearing on the case Monday. The group Paul was associated with, the Boulder County Protectors, said it will hold a press conference following the hearing.

"We demand that the city of Boulder drop all charges against David Paul and affirm its commitment to preserve the people's fundamental right to political dissent," the group said in a statement. "In addition, we call on the Boulder County commissioners to issue a public statement condemning the actions of County Attorney Ben Pearlman and committing to stand with the community against the oil and gas industry."

According to the motion, the officer who ticketed Paul spoke to Pearlman and then "informed Mr. Paul that she would be issuing him a citation for trespassing, that she did not know or understand any of these laws, and that the order to issue Mr. Paul a trespassing citation was coming from 'higher up.'"

Mitchell Byars: 303-473-1329, byarsm@dailycamera.com or twitter.com/mitchellbyars