Jose Luis Olivas and Fernando Torres Hernandez were hanging out in the alley off 27th and Larimer at about noon on April 10, sharing a quart of beer, when a white pickup truck pulled up to them. The man inside the truck gestured at them with his hands, but his windows were rolled up and they couldn't understand what he wanted. After a few seconds, the truck pulled out of the alley and the two men went back to their beer.
Not more than a minute or so later, the truck reappeared. This time the man inside pulled out a camera and started taking their pictures. In response, Olivas threw his bottle at the truck. And before the man could speed off, Torres Hernandez kicked the side of the truck. The men, still unsure of what the guy in the truck was after, decided it was time to move on.
A few hours later, the man in the truck appeared again, this time on nearby Park Avenue West. And this time he had a couple of cops with him. The stranger flashed the pictures he'd taken earlier of Olivas throwing the bottle, and the officers proceeded to arrest the two men on charges of felony criminal mischief, an offense in the same class as auto theft, robbery and second-degree assault. Both Olivas, 36, and Torres Hernandez, 37, pleaded not guilty to the charge, but without $500 to make bail, they're still cooling their heels in the Denver County Jail. They may be there all summer; their trial isn't scheduled until August 10.
Olivas and Torres Hernandez, as it turned out, fell victim to a one-man crusade. The sight of homeless people drinking in the alleys along Larimer Street isn't exactly rare, but Denver Post photographer Brian Brainerd is trying to change that. Brainerd, who lives in what locals call the Little Flower Building at 26th and Larimer, spends a good deal of his free time patrolling the rundown area north of downtown in his pickup, shooing away transients. Brainerd says most people move along when he motions for them to get lost. Olivas and Torres Hernandez didn't.
"This is a stupid, stupid case," fumes Olivas's court-appointed attorney, Ed Pluss, whose client has no known criminal record. Referring to Brainerd, Pluss says, "If the victim in this case were a Hispanic, an African-American or a redneck, this case would be a cut-and-dried misdemeanor. The interpreter working on the preliminary hearing made an interesting comment about the situation. In my experience, interpreters rarely offer any opinion about cases. But after the hearing she asked, 'Why not just let them drink?' I think that pretty much sums it up."
Not for Brainerd. "Getting people to stop loitering around this neighborhood is just a matter of being persistent," says the photographer, who's lived in the Little Flower for six years. "If you let them do it, it's an invitation for them to continue to hang out. They're welcome to walk through the alleys, but when they get the idea that they are parks, I'll ask them to leave."
And if they don't heed his signals to vacate the premises, Brainerd says, he whips out his camera and starts taking pictures.
"I saw them drinking in the alley and signaled for them to move along," Brainerd recalls of his incident with Olivas and Torres Hernandez. "Then I drove around the block only to find them still there, with one of them urinating. Generally, I don't speak to people in the alleys because I don't want to have the windows down--you never know what these people will do--but since it was clear that they weren't going to leave, I started taking pictures of them. And that's when they assaulted my truck."
Brainerd wasted no time getting out of the alley and calling the police on his cellular phone. When the cops showed up, both Olivas and Torres Hernandez had taken off. But that didn't stop Brainerd, who says he went home, printed up photos of the two men and started cruising the area in hopes of finding them.
"I'm an urbanist," says Brainerd, "so I don't mind standing up to predators like that. So later that day I drove up around Park Avenue, where that crowd hangs out, and saw them. I called the cops, and since I had the photo prints, there was no doubt about who they were."
But Ed Pluss is irate. "My client wasn't bothering anybody," he says, "and he was in a part of town where there are homeless people like himself on the streets. He wasn't looking for a fight or a hassle, and then this man, who he doesn't know and who didn't identify himself, starts harassing him. My client found himself in a situation where he felt vulnerable, and the only protection he had was this bottle. He couldn't just pull out his cell phone and call the cops."
Pluss can't fathom why Chief Deputy District Attorney Diane Balkin wants to pursue the case as a felony, especially considering that the 37-year-old Torres Hernandez is an illegal alien and will be deported as soon as he gets out of jail. Balkin acknowledges that neither man has a criminal record in Denver. "Keeping these men in jail for what's going to amount to close to six months is ridiculous," says Pluss. "It's going to cost the taxpayers quite a bit of money."
Balkin says it's not her job to take those factors into account. "First of all," she says, "I never negotiate being deported. I leave that up to the immigration officials. And the fact that they can't post bond doesn't make them any different from anyone else. We'll make sure that they aren't in custody any longer than necessary."
Asked whether the case got special attention because Brainerd works for the Post, Balkin adamantly replies that that made no difference. "The bottom line is that I consider any felony a serious crime," she says, "no matter who the victim is."
Brainerd is equally unapologetic about the men's predicament. "I guess it was just an expensive bottle of beer for the taxpayers and the guys who threw it," says Brainerd. "I can't say I intended for them to get put in jail for six months, but I don't feel bad about it. It's not like they were doing anything useful for society when they were free. I'm just trying to look out for my neighborhood, and these people had no right to be sitting in my alley. If they want privacy, they should go get a job and an apartment, and they could drink there.
"I've taken thousands of pictures of people who didn't want their pictures taken. That's my absolute right. Aside from some drunk yuppies who beat me up in Washington Park about ten years ago, no one has ever thrown a bottle at me for taking their picture.
"And since they can't come up with $500 for bail, it's pretty obvious that they're not interested in working or paying restitution. Balkin offered that to them and they turned it down. All they want to do is sit in an alley all day drinking."
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Balkin offered a plea bargain in which the men would be placed on probation and pay for the estimated $800 damage to Brainerd's truck. Pluss says his client turned it down because "the chances of Mr. Olivas, a transient, meeting the requirements of supervised probation, which hinges upon maintaining a place of residence, are slim to none. And if his probation was revoked, he would then become an aggravated felon subject to deportation." That would mean that the 36-year-old Olivas, who says he's had a green card since 1986, couldn't return to the U.S. for twenty years. If he did, Pluss says, he would face a "substantial" prison sentence.
But more important, according to Pluss, is that Olivas doesn't believe he's guilty. "He doesn't understand the plea-bargain offer," says Pluss. "The interpreter I work with says that this is pretty common among people from Mexico. As far as they're concerned, you're either right or wrong. And Mr. Olivas doesn't think he was wrong in what he did. He was in that alley for the same reason I go to LoDo on the weekends--he felt comfortable there. And he had no idea what this man wanted or why he was hassling him."
For his part, Olivas says that he's holding up in jail okay and that he wants to get out as soon as possible so that he can find work and get on with his life. As to why he was hanging out in that particular alley, he says it's close to the local rescue missions, where he's able to get food. He says he still has no idea why the man in the pickup wanted him out of that alley so badly.