Does the Public Have a Right to Record a Homeless Sweeps Court Hearing?

The U.S. District Court of Colorado doesn't allow members of the public to record proceedings at the courthouse in downtown Denver. And during the COVID-19 pandemic, the court has also made it clear that people tuning in to a virtual criminal hearing are prohibited from recording the proceedings.

But there's been some ambiguity about civil cases, and now attorneys are getting ready to duke it out over whether members of the public should be allowed to record such cases from the comfort of their living rooms.

"Denver’s trying to keep further evidence of their unconstitutional actions suppressed and out of the public view," says Andy McNulty, the Killmer, Lane & Newman attorney representing plaintiffs in a lawsuit against the City of Denver, along with state officials and others, regarding this past summer's sweeps of homeless encampments.

Audio recordings from a hearing in connection with that case are included in an hour-long documentary about the city's homeless encampment sweeps by Emancipation Theater Company, a project of Denver hip-hop and theater artist Jeff Campbell, which was released on social media February 12. The doc was the latest salvo in the "Message to the Mayor" campaign launched by From Allies to Abolitionists to draw attention to the effects of the sweeps on encampment residents. Campbell, in partnership with various local hip-hop artists, also recently recorded a "Message to the Mayor" rap music video on the same subject.

At around the six-minute mark, the documentary shares audio of Conor Farley, a Denver city attorney, questioning a Denver police officer during a January 11 federal court evidentiary hearing for the lawsuit filed by ten homeless plaintiffs and Denver Homeless Out Loud regarding the sweeps.

In the audio clip, Farley asks Sergeant Brian Conover of the Denver Police Department's Homeless Outreach Team how his officers dealt with a homeless woman named Tiley English during an August 19 sweep of a small encampment in Five Points marked by vociferous protests by demonstrators. Then the documentary flips to the body-worn camera footage of an officer from the Homeless Outreach Team who'd helped English stand up and offered to put her in an air-conditioned car.

"All of the screaming and yelling and carrying on was affecting her, it was scaring her. She was afraid they were going to breach the line and she was going to be injured," Conover testified in federal court. Farley followed up by asking Conover to clarify that it had been the vocal protesters and not the police who had stressed out English, to which Conover responded affirmatively.

The documentary then juxtaposes that statement with another courtroom recording of McNulty questioning English. When he asked what had stressed her out that day, English replied that she felt anxiety "because of the cops," not because of the protesters. "It was a mess," English added, echoing what body-camera footage had recorded her saying on August 19.

"I think it just clearly illustrates the intentions of the city government in regards to how they are framing these traumatic displacements, and the stark contradiction between their perspective and the people who are being displaced," Campbell says, explaining his use of those two courtroom clips side by side.
Soon after it appeared on YouTube, the documentary caught the attention of lawyers with the Denver City Attorney's Office, who filed a "motion to clarify" on February 23, asking Judge William J. Martinez, who is presiding over the lawsuit, to rule on whether a member of the public can record virtual civil hearings in the U.S. District Court of Colorado. That lawsuit has already resulted in an order from Martinez placing restrictions on the City of Denver regarding sweeps, a ruling Denver has appealed.

While not stating outright that they would like Martinez to prohibit members of the public from recording such hearings, the city's lawyers note, "The recording of federal court proceedings is generally prohibited."

"When the city learned that the preliminary injunction hearing had been recorded and disseminated, it sought clarification from the court regarding whether these rules applied to hearings in this case that were made available to the public via public-access telephone line," says Theresa Marchetta, communications director for Mayor Michael Hancock's office, on behalf of the City Attorney's Office (she's doing double duty because of a vacancy there).

As the city attorneys note in their filing, the U.S. District Court of Colorado has not offered any guidance that would explicitly prohibit the recording of virtual civil hearings, but during the pandemic, it has issued rules that explicitly ban the public from recording virtual criminal proceedings.

"I don’t think they would’ve even bothered to inquire if it wasn’t for the fact that not only is the documentary beginning to build traction and we are getting requests from national organizations to host screenings and talkbacks, but also the fact that there’s a lot of unanswered questions at the end of the day, and they just don’t want the public to start asking those questions in a chorus rather than the single voice of Denver Homeless Out Loud," Campbell says.

"It’s obvious that they didn’t like the way these recordings were used in a message to criticize Mayor Hancock and the sweeps," says McNulty, who promptly filed a motion opposing any ruling against the recording of virtual hearings. "That’s the point of open court — so folks can see how the judiciary functions and to make sure that things are aboveboard and everything’s aboveboard."

McNulty notes that many courts actually record hearings themselves and then publish them online. "The most utilized argument by courts as to prohibiting recordings is that it distracts people in person. If people, for example, see someone recording, then it might distract jurors and witnesses. That’s been disproven empirically," he says. And since this recording was done outside the court, he adds, "I don't think there's a good argument."

As an artist, Campbell believes there's a special power in being able to share the audio from the courtroom hearings. "When you read something or scroll through a headline in passing, you can easily just hit the 'like' buttons, the sad buttons, the heart or whatever emoji fits your understanding of said headline. But when you hear that voice, it resonates on a different level. You understand from a deeper context," Campbell says.

McNulty agrees. "While secondhand reports of proceedings are important," he writes in his response to the city's request for clarification, "they do not capture the idiosyncrasies of hearing live testimony: the inflection of a witness's voice, the actual words spoken, a lawyer's demeanor, and the tenor of a cross-examination. These subtle yet extremely important details can only be captured by recordings, and creating a fully accurate historical record of proceedings — particularly those involving the government — is an important public-policy goal in and of itself."