Boulder officials were warned earlier this year that if they didn't address concerns about an at-times rough arrest outside the county jail of two videographers who were subsequently released without being charged, a lawsuit could follow.
That suit has now arrived. The document (accessible below) was filed on behalf of Jedon Kerr and Dean Schiller, a pair of citizen journalists whose work can be found on the YouTube channels Colorado Donkey Watch and ZFG Videography, respectively.
Kerr and Schiller specialize in capturing on-the-job images of Boulder law enforcement agents behaving badly, including ex-college football player turned Boulder police officer Wayne Lolotai, who is being sued by Kelly Clark, a woman he shoved violently to the ground as she attempted to ascertain the status of a man busted in a separate incident. That matter is one of three cited to support the complaint's contention that "Defendants City and County of Boulder have an informal custom of condoning unlawful arrests, retaliation and excessive force by its officers that is based solely on the exercise of First Amendment rights."
Asked about the suit, Kerr replies via email: "Individuals with nothing to hide do not fear exposure from citizen journalists. It is my goal to see a more transparent, accountable and a more reliable law enforcement culture, dedicated to tackling the problems of the community instead of tackling citizen journalists."
Adds Schiller, also via email: "Cops and politicians shouldn't be above the law — no one should be."
Boulder communications director Patrick von Keyserling notes, "The city does not comment on litigation." However, the Boulder Sheriff's Office previously shared a post responding to controversy over the December 28, 2018, arrest of Kerr and Schiller, describing them as "suspicious" and suggesting that they are part of a "movement" attempting to provoke "confrontation."
According to Kerr, "I am a lifelong resident of Boulder, Colorado. In my many years in the Boulder area, I have seen a majority of police officers who handle themselves with dignity, respect and in honor of the position they serve. There are, however, those law enforcement officers who violate the trust of the public they serve along with their oath to uphold our Constitutional rights against all enemies, both foreign and domestic."
For his part, Schiller, a personal trainer pursuing a Ph.D. in nutrition, stresses, "I love this country and consider myself to be patriotic, but it seems like our nation is in a downward spiral. One of the principles that keeps us from completely destroying ourselves is the system of checks and balances. Unfortunately, the law enforcement personnel don't have an appropriate system in place to ensure they don't abuse their power. When something does go wrong, internal affairs investigates the matter. To me, this is cops watching cops, and that is a conflict of interest."
Schiller "never intended to be an activist," he says, but the September 2018 in-custody death of 23-year-old Demetrius Shankling, for which two Boulder sheriff's deputies transporting him to detox have been charged with manslaughter, "sparked my interest in police affairs in Boulder. I had watched videos of other so-called 'auditors' and thought this could be an unobtrusive method of 1) Exercising my rights, and 2) Exposing any attempts to suppress our rights. It was extremely important, though, that we not break any laws or obstruct officers from doing their jobs."
Likewise, Kerr emphasizes that "I remain 100 percent within the laws of the State of Colorado, Boulder County ordinances and Boulder city code while I am documenting police performing their public duty."
Cut to the stop by Kerr and Schiller at the Boulder County jail on December 28. In a previous Westword interview, lawyer David Lane of Killmer, Lane & Newman, LLP, who's representing the pair in tandem with colleague Andrew McNulty (the attorney behind the recently resolved Fort Collins 'Free the Nipple' case) summarized it with this: "They walk into the lobby of the jail, which is open to the public, and take video for a few minutes. Then they walk back outside and are on public sidewalks when deputy sheriffs and police show up."
What happened next was captured in the following video:
As seen in the clip, one of the officers tells Kerr to sit down and requests his ID. In response, Kerr asks if he's being charged with a crime. Rather than provide an answer, the officer repeats his demand for the ID — and when Kerr says he doesn't think he has one in his wallet, the officer reaches into the videographer's pants, fishes out the wallet, and looks for an ID himself. During the search, the officer allegedly shoved his knee into Kerr's back, causing him to scream in pain.
The also-ID-free Schiller was searched, too, and Lane had a theory about why: "When someone questioned [the officers'] authority, they immediately resorted to showing these people who was boss." Arrests followed, "but the only problem was, no crime had been committed," Lane continued. Indeed, after being taken inside the jail, booked and placed in a cell for approximately ninety minutes, Kerr and Schiller were freed. But in Lane's view, the damage had already been done. The officers "did assert their manliness," he said. "But unfortunately, they're going to have to pay us thousands of dollars for the fun of doing that."
The aforementioned Boulder Sheriff's Office statement, posted on January 4, characterizes the incident very differently. On December 28, this account asserts, "two suspicious men were observed by an off-duty sheriff's deputy wearing black masks and walking around the Boulder County jail complex recording video footage.... Officers from the Boulder Police Department subsequently contacted the two men in the parking lot to investigate their suspicious behavior and were later joined by on-duty sheriff's deputies."
The videos that resulted were recorded "under the auspices of a 'First Amendment Audit' campaign," the release goes on, and "their public posting has caused an influx of angry phone calls, including 'robo-calls,' from those who support their cause and believe their detention was unlawful as officers investigated their suspicious behavior. The Sheriff's Office is responsible for the safety and security of the jail and other public facilities and will investigate any suspicious behavior accordingly."
The statement continues: "Beyond the December 28 incident, members of the 'First Amendment Audit' movement have continued to try and instigate conflicts with law enforcement over the past week at a number of public facilities in and around Boulder, including a subsequent attempt involving the same behavior at the jail. The 'First Amendment Audit' movement appears to be an attempt at provoking a confrontation with law enforcement officers called to investigate their suspicious behavior."
Such arguments didn't move Lane, who said that law enforcement officials like those at the jail, who weren't punished for their actions, should know by now that recording video in public areas is legal. This same theme echoes throughout the lawsuit, which was put forward in the wake of a January 30 demand letter. One paragraph reads: "Plaintiffs were arrested, assaulted and manhandled by the Defendants because they stood on a public sidewalk and video recorded the outside of the Boulder County jail and various officers who approached them. Instead of disciplining its officers for this clear-cut violation of the First, Fourth and Fourteenth Amendments, Boulder has condoned their actions. Plaintiffs bring this action to do what Boulder failed to: uphold our most basic constitutional freedoms."
As evidence that the Kerr-Schiller arrest wasn't an isolated incident, the suit mentions Lolotai's shoving of Clark as well as his August 26, 2018, exchange with Michele Rodriguez, who was sitting with a group suspected of having an open alcohol container when he allegedly slapped away a cell phone on which she said she wanted to dial 911, then forced her to the ground. Rodriguez was later accused of obstructing a police officer and resisting arrest, but the latter beef was dismissed in April, and she was acquitted of the former in May.
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The suit also alludes to Lolotai's April 5 interaction with Sammie Lawrence, who tried to capture images of the cop ticketing several homeless people near ballfields in the Mapleton neighborhood of Boulder. Because of a seizure disorder, Lawrence walks with the assistance of a cane, and when he didn't immediately drop it when ordered to do so, Lolotai kicked the cane away from him and took him to the ground before busting him for obstructing a police officer and resisting arrest, too. (Click to see a Colorado Donkey Watch video of the Lolotai-Lawrence encounter.)
Despite a history of capturing vivid clips, Schiller admits, "I didn't expect much of a reaction from us filming outside the jail."
Filing the complaint was a last resort, he maintains: "I did attempt to notify city council, even speaking in public forum, and our attorney did give the city an opportunity to discipline the officers and make this right. They all, however, seem to take no responsibility, apologize or admit any fault. A lawsuit seems to be the only method of holding accountable the persons involved."
Click to read the Jedon Kerr and Dean Schiller v. City and County of Boulder, et al. and the January 30 demand letter.