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Occupy Denver: ACLU investigates constitutionality and safety of police action

Colorado ACLU communications director Rosemary Harris Lytle confirms her organization has launched an investigation of "an escalation of police force" at Occupy Denver -- like, for example, the shooting of Phillip Becarra, seen here, with pepper bullets. The ACLU has expressed concerns about both the safety and constitutional implications of the actions officers have taken. Meanwhile, occupiers have collected police-interaction evidence since the group's first eviction.

Although early dealings between police and occupiers were politely hailed as good behavior from both sides, recent developments have earned shocked attention from representatives of the ACLU, who cite the First Amendment rights at stake in the movement.

"We have been collecting some of the news reports, video that's been online and reports from participants and legal observers, and we're concerned that what has initially been characterized as a policy of admirable restraint now appears to have been transformed into an unwise series of provocative and dangerous tactics," says Mark Silverstein, legal director of the Colorado ACLU. "I think police commanders made a serious mistake sending a huge riot-equipped team into a crowd to enforce a minor ordinance regarding tents. There's no immediate health and safety need to take down these tents, and we have to question whether it's appropriate, safe and constitutional to even do so."

Andrew Cleres was wounded by police after being shot out of a tree with pepper bullets.
Andrew Cleres was wounded by police after being shot out of a tree with pepper bullets.
Kelsey Whipple

The evidence-collection process is an ongoing one. For weeks now, Occupy Denver's legal team has gathered and documented reports of force at the hands of both the Colorado State Patrol and the Denver Police Department: pepper bullet wounds, bruises from police batons, evidence of too-tight zip-ties, hospitalization records and stories of the situations behind them. The occupation's internal legal team hopes to use the evidence in an eventual class-action lawsuit against the city, but the documentation remained on ice pending attention from a larger entity.

"We have been collecting all of our evidence and signing documents that this has been happening since the night of the eviction," legal team member Catherine Keffer says. "We've had contact with the ACLU, and they've been aware of the situation the entire time, but it was yesterday that they called us to tell us of the potential possibility of a lawsuit coming out of all of it."

Since the ACLU's involvement began in a more official capacity yesterday evening, the organization has filed record requests with both the DPD and the CSP regarding all recent enforcement actions with Occupy Denver. Because of open record laws, Silverstein expects results by Friday. In the meantime, the group is also encouraging participants to send information and documentation of police interaction to the ACLU.

John Sexton being put in a chokehold by police.
John Sexton being put in a chokehold by police.
Photo by Tanner Spendley

"We're urging police and city officials to be more restrained and to actually consider whether it's necessary and worth all this provocation, confrontation and injury to enforce this no-tents policy," Silverstein says. "I'm particularly concerned about the practice of shooting pepper-ball guns into a crowd of people who are exercising their First Amendment rights. I saw Westword's photo of the pepper ball wound on that man's face [Becarra], and if that bullet had gone one inch either way, he could have lost an eye. Several years ago in Boston, there was one incident where police fired pepper balls into a crowd after a sporting event, and a woman lost her eye."

In a press release after Saturday's events, the Denver Police Department reconfirmed its role to protect protesters and stood behind the twenty arrests that resulted. Public information officer Matthew Murray acknowledges the difficulty of situations like the most recent one but maintains that the police department's tactics target only those people who are creating legal issues.

"It's important to note that our types of crowd control are targeted directly at the people who are causing problems," Murray says. "We don't just shoot a can of mace like the old days and catch a bunch of people along with the person who actually needs to be maced. We don't just spray the entire crowd like that. With new technology, we can specifically target an offender without harming anyone else. We're very reactive, and we're trying to be prepared."

Silverstein argues that the tents, which would also protect campers from the newly cold temperatures, serve as a symbol of free speech. This means the police, in adopting a zero-tolerance policy and selecting when to enforce the ordinance, could be infringing upon citizens' First Amendment rights.

"When it comes to people erecting a symbolic tent in Civic Center Park, police are adopting a zero-tolerance policy without acknowledging the risk of such an inflammatory and dangerous action," Silverstein says. "Police and city officials have a lot of discretion when it comes to enforcing minor city ordinances, and in thinking about that, they need to balance the value of people exercising their First Amendment rights with the realities of what harm is actually done if a minor ordinance is not followed to the letter for a small amount of time. In making those decisions, they should be giving a lot of breathing room to First Amendment tights. Is it truly worth sending in a huge force of riot police with their gear and pepper spray and pepper bullets?"

Although Silverstein is hesitant to discuss the future of the documents his organization is gathering, the ACLU's most immediate goal is to draw public attention to the issue from the city's decision-makers: the mayor, the Chief of Police, the Manager of Safety and any other officials involved.

"I don't talk about lawsuits that aren't filed, but we want to urge police to adopt a policy of restraint," Silverstein says. "Somebody has got to say this is too much. Firing pepper ball guns into a crowd of people exercising their First Amendment rights is unnecessary, unwise and may be unconstitutional."

More from our Occupy Denver archive: "Occupy Denver: Did unnamed 2nd assaulter knock over cop on motorcycle? (VIDEO)."