Denver Really Doesn't Want Nick Mitchell, Former Independent Monitor, to Testify in Protest Lawsuit

As suits continue to pile up, charging that law enforcement officials used excessive force during Denver's racial-justice protests in the wake of George Floyd's death in May 2020, attorneys representing the city are trying hard to prevent Nick Mitchell, Denver's former law enforcement watchdog, from testifying in one of those cases, and also to keep Mitchell's memos from becoming evidence.

Mitchell stepped down from his job as Independent Monitor in December 2020, just after his office issued a report critical of the way the Denver Police Department responded to the protests; he subsequently took a job overseeing reform of the Los Angeles County jails but remains in Denver.

"[The city] seeks to exclude Mr. Mitchell as a witness and the [Office of the Independent Monitor] interview memos as evidence because Mr. Mitchell’s testimony and the statements of the DPD officers (including command staff) in the OIM interview memos are unfavorable to the City," attorneys from Loevy and Loevy and Arnold and Porter Kaye Scholer wrote in an October 27 court filing in the U.S. District Court of Colorado.

These attorneys are representing fifteen plaintiffs who sued the City of Denver and law enforcement agencies that worked the protests in May and June 2020.

Epps v. City and County of Denver combines plaintiffs from two separate complaints into a single suit that alleges the City of Denver, its law enforcement agencies and neighboring law enforcement agencies that assisted the Denver Police Department violated the First, Fourth and Fourteenth amendment rights of the plaintiffs, and also violated laws involving failure to intervene. The legal complaint gets its name from lead plaintiff Elisabeth Epps, a prominent Denver abolitionist, founder of the Colorado Freedom Fund and leader of many marches and rallies last year.

The Epps case is one of at least nine active federal lawsuits that have been filed against Denver over law-enforcement conduct during the protests. In June, Judge R. Brooke Jackson granted class certification in the Epps lawsuit for people who were present during the demonstrations in downtown Denver and arrested for violation of the curfew order and possibly failure to obey a lawful order, but were not charged with any other violations and whose initial charges were ultimately dismissed. This class, which could number up to 300 people, had its First Amendment rights violated, the suit claims, as these individuals were targeted for arrest solely based on their protest activity.

One piece of evidence cited as indicative of possible First Amendment violations is a text message sent by Kathleen Bancroft, the DPD's District Two commander, to fellow law enforcement personnel on June 2, 2020, at 1:49 p.m., a time when protests were taking place in Denver.

"From [Division Chief] Ron Thomas," the text begins. "The city curfew in effect this week begins at 2100. As has occurred previously, everyone will receive an emergency announcement on their cellphone at 2045 as a notification. Please advise all your officers that this curfew ordinance is to be used only for enforcing protest-related behavior regardless of location in the city. Do not let officers cite for curfew just for being out after 2100. Unless they are actively engaged in protest activity, some other charge of justification must be used."
In April, lawyers representing the plaintiffs communicated with Mitchell via Zoom to ask questions about his investigation and the report. They also filed a motion to obtain the OIM memos, which include notes taken during interviews with law enforcement officials and officers.

In May, the City of Denver produced "heavily redacted OIM interview memos," according to the October 27 filing. "Counsel for the City represented to the Court: 'The only thing that the city is trying to protect in this context is mental impressions and the assessments and the candid information that was provided that’s not factual in nature related to the investigation that the Office of Independent Monitor conducted.'"

The same day that the lawyers received the redacted interview memos, they again spoke with Mitchell.

In June, attorneys representing the City of Denver emailed the plaintiffs' attorneys, informing them that the City Attorney's Office would be representing Mitchell, since he was an employee of Denver when he issued the 2020 report, and that any communication intended for Mitchell should be redirected to the City Attorney's Office.

"Plaintiffs responded on June 8, 2021, explaining that the rules did not prohibit Plaintiffs’ counsel from communicating with former employees of a represented organization, and that counsel’s communications with Mr. Mitchell had been completely permissible and consistent with the rules of professional conduct," the October 27 filing notes, adding that the lawyers for the plaintiffs have not communicated with Mitchell since then.

At the end of June, lawyers involved in the case deposed Mitchell. During his deposition, Mitchell stated that there was a "zero percent chance that every single word" in the redacted sections of the memos "reflects an opinion from me or a member of my team," the October 27 filing reads.

In September, Judge Jackson instructed the City of Denver to revisit its redactions of the memos and make sure it wasn't inappropriately redacting something that should be on view. On October 1, the City of Denver produced less-redacted versions of the memos.

"A comparison of the originally produced memos and the less-redacted versions of the memos reveals that the original redactions were improper, and that many of the withdrawn redactions attempted to conceal from Plaintiffs unfavorable statements made to Mr. Mitchell and his staff by DPD personnel about their response to the protests," lawyers wrote in the October 27 filing.

Soon after the second release of the memos, attorneys representing the city let the counsel for the plaintiffs know that they'd be filing a motion for sanctions because of improper "ex parte communications" with Mitchell. On October 6, the city's lawyers filed that motion.

"Under the circumstances of this case, an appropriate sanction is the exclusion of Mr. Mitchell as a witness for Plaintiffs and preclusion of Plaintiffs using of the OIM memos as evidence," they wrote in the filing, adding that the communication violated the deliberative-process privilege. "A serious and meaningful sanction needs to occur here or other counsel litigating before this Court will feel free to violate ethical rules in communicating with former government high-ranking public officials."

But attorneys representing Epps and the other plaintiffs strongly objected to this argument in their October 27 filing.

"The City’s motion is a diversion tactic," they wrote. "The less-redacted versions of the OIM memos that the City was forced to produce earlier this month reveal that the City’s original redactions hid damaging factual information that was unprotected by any privilege. Now, having been caught in its own evasion, the City seeks to distract attention by throwing meritless accusations at Plaintiffs’ counsel. The City’s real goal — to hide from the jury evidence favorable to Plaintiffs and damaging to Defendants — is evident in its request: it seeks not to disqualify Plaintiffs’ counsel (which it admits is the normal sanction if there were in fact an ethical violation), but to exclude Mr. Mitchell and the OIM memos as evidence, and thereby 'obviate the need' for this Court to scrutinize whether the City’s remaining redactions are warranted. The City’s gambit is improper and its motion should be denied."

Attorneys representing the city did not respond to a request for comment, while Mitchell and the plaintiffs' attorneys declined to comment.

Andy McNulty, an attorney with Killmer, Lane and Newman, had represented some of the plaintiffs in the Epps suit; he's no longer involved in the case. Still, he's been tracking the recent filings, and says the city's latest motion regarding Mitchell "is pretty much nonsense. He's a former city employee. To say that they did something unethical by contacting him is just baseless." He adds: "To say that these [memos] are covered by the deliberative-process privilege is just legally frivolous and essentially designed to bury information about how the officers acted during the protests two summers ago."

According to the October 27 filing, the City of Denver is seeking to hide evidence that shows that "DPD command staff knew that their officers’ training on crowd control and field force tactics was insufficient —and had been for years, DPD cut back on field force training due to complaints from commanders about the amount of time it took, there was persistent criticism of DPD officers on the ground by the commanders in the Command Post during the protests, [and] less lethal weapons frequently hit unintended (peaceful) targets and were used on entire crowds despite the presence of significant numbers of peaceful protestors in those crowds."