Colorado Springs cross-burning hoax was free speech — not a threat, accused participant argues

One of the three people accused of staging a racist scene in an attempt to support Colorado Springs’ Black mayor claimed in a court filing this week that the trio’s actions were protected free speech — not a threat.

Derrick Bernard Jr., Ashley Blackcloud and Deanna West were indicted in November on federal charges after investigators said the trio worked together to spray-paint a racist slur aimed at Black people on a campaign sign for then-mayoral candidate Yemi Mobolade, who is Black, in April 2023, during Colorado Springs’ runoff election campaign.

The trio also set up a white cross, then lit the cross on fire and took a photograph and four-second video of the scene, the federal indictment alleges.

The group shared the photo and video of the staged scene publicly in an attempt to help Mobolade win the election, the indictment alleged. He did win and is currently serving as the city’s mayor.

The three defendants were each charged with conspiracy to commit an offense to defraud the United States as well as a count of maliciously conveying false information to intimidate someone by means of fire, court records show.

In a motion to dismiss the charges filed Wednesday, Blackcloud argued that the staged racist scene constituted protected free speech and wasn’t a criminal threat.

“What makes this cross burning a fake threat is not that the activity, i.e. the cross burning, was never going to happen,” attorney Britt Cobb wrote in the motion. “It is a fake threat because it was not intended as a threat. It was staged as a political publicity stunt. It was not directed as a true threat to (Mobolade), or to anyone.”

Blackcloud’s legal arguments come as another woman charged in the case — West — has agreed to plead guilty, court records show. She is scheduled for a change of plea hearing on March 11.

The third defendant, Bernard, is serving life in prison after he was convicted of first-degree murder for ordering a 2019 killing in a separate state case. He remains in federal custody on the hoax charges, and his attorney recently sought an extension of time to file motions in the federal case, citing the more than 10,000 pages of discovery and complexity of the case.

Blackcloud argued that the federal charges must be dismissed because the trio committed no crime when they staged the racist scene. The charges, her attorney argued, “attempt to criminalize free speech.”

Cobb argued that Blackcloud’s actions did not constitute a “true threat” — a legal standard that was considered by the U.S. Supreme Court in 2023 — because the trio did not intend the racist scene as a threat.

“Cross burnings that are not meant to threaten or intimidate, but that are instead meant to spark anger, resentment or outrage, are not true threats,” Cobb wrote.

Federal prosecutors had not filed a response to the motion to dismiss by Friday and a spokeswoman for the U.S. Attorney’s Office declined to comment.

Mobolade and Bernard spoke on the phone for about five minutes three days after the cross-burning, prosecutors alleged. The mayor previously said his interactions with Bernard were in the context of Bernard’s role as a “local media personality,” and that he did not know Bernard was suspected of staging the cross-burning at the time they spoke.

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