A federal court has dismissed a civil complaint against the former Morgan County sheriff from a notorious agitator – not because the claim was meritless, but because the judge could not find other cases similar to it.

Eric Brandt, who broadcasts his pugilistic confrontations with law enforcement over a YouTube channel, sued Sheriff James Crone (who has since retired) for threatening to arrest him and allegedly preventing him from completing an open records request at the sheriff’s office building. On Feb. 22, U.S. Magistrate Judge Michael E. Hegarty dismissed Brandt’s complaint by granting Crone qualified immunity, a judicial doctrine that generally shields government employees from liability unless they violate a clearly-established legal right.

However, a right is only clearly-established if prior courts have determined under similar circumstances that qualified immunity does not apply.

“The Court notes that it has seen (and presided over) some of Plaintiff’s other cases. In fact, the Court even worked personally with Plaintiff to settle one case,” Hegarty wrote in a court order. “The Court has recognized the merits of some of Plaintiff’s other claims. Despite the Court’s diligent efforts to find clearly established law here, the Court could not find relevant precedent to demonstrate that Plaintiff’s claims could defeat qualified immunity.”

Given the lack of other cases where courts allowed plaintiffs alleging treatment akin to Brandt’s to sue government officials, “the Court sees no other possible result as a matter of law.”

On July 26, 2018, Brandt went to the Morgan County Sheriff’s Office to make a public records request. In a video posted to YouTube that his associate streamed online, once an employee gave Brandt the paperwork, he turned to a wall depicting officers’ photos and narrated facts about officers he said he liked and did not like.

After Brandt mentioned a sexual assault and described how certain sheriff’s employees were “manhandling” another worker, Crone entered the lobby and told Brandt, “If you want to make comments, go outside and make all the comments you want. These ladies [the office workers] do not need to hear you carry on this conversation.” 

Crone added that Brandt was speaking so loudly he was disrupting the office.

When Brandt’s videographer, Abade Irizarry, interjected, Crone raised his voice and repeated, “Did you hear me? Did you hear me?” according to the video.

“It is time for you to leave now,” Crone told Brandt. When Irizarry asked what would happen if the men did not leave, Crone responded: “Then I will arrest you.”

Once Crone escorted the men outside, Brandt screamed a torrent of profanities, taunted and raised his middle finger to the sheriff.

Brandt, who in the past has advocated for the shooting of judges and police and who was arrested for saying a Denver judge should be murdered in front of the judge’s children, filed a civil complaint against Crone.

Saying he was in a public area and speaking at “a reasonable volume level,” Brandt alleged the sheriff had infringed upon his free speech and prevented him from commenting “on matters of public concern.”

In Crone’s response to the complaint, his attorneys noted that Brandt was arrested for disorderly conduct and harassment following the encounter, and argued the First Amendment does not guarantee an absolute right to free speech in any form at any time.

“Sheriff Crone’s actions on July 26, 2018 in response to Plaintiff’s noisy, disruptive, and harassing behavior were taken pursuant to his law enforcement duties and consistent with constitutional boundaries,” wrote Andrew R. McLetchie and Eden R. Rolland, attorneys based in Golden.

Hegarty ultimately determined it to be unclear whether the sheriff violated Brandt’s constitutional rights, which meant Crone was entitled to qualified immunity from liability. The defense frequently surfaces in cases alleging excessive force from police officers, to the point where two federal judges spoke out last year against the continued expansion of immunity grants.

Still, there is no prior court precedent “concluding that an officer who asks individuals who are attempting to make a records request to leave a public building so as to allow them to make their otherwise disruptive comments outside and does not altogether prevent those individuals from otherwise making the comments or requesting records,” Hegarty noted, “violates the First, Fourth, or Fourteenth Amendments.”

The case is Brandt v. Crone.