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In the first days of protests, law enforcement in Denver used a wide array of different types of less-lethal munitions.
In the first days of protests, law enforcement in Denver used a wide array of different types of less-lethal munitions.
Evan Semon Photography

As Temp Order Expires, Denver Agrees to Restrict Use of Less-Lethal Force

Three weeks after a federal lawsuit was filed against the City of Denver regarding how law enforcement authorities were using less-lethal munitions against protesters, the plaintiffs and Denver officials have reached an agreement on some of the issues in that case.

"We were happy to work with the city to find a solution to protect peaceful protesters and protect these peaceful protests going forward," says Milo Schwab, one of the attorneys representing the four plaintiffs, all of whom were present at the first days of the George Floyd protests.

The terms of the agreement, which will last until the litigation makes its way through the court, largely match the stipulations in the temporary restraining order that Judge R. Brooke Jackson of the U.S. District Court of Colorado granted on June 5. That order, which was extended for a week on June 19, was set to expire today, June 26.

Going forward, outside law enforcement agencies operating in Denver during protests will only be allowed to use weapons allowed under Denver Police Department policy. In the first few days of the protests, over a dozen outside law enforcement agencies assisted Denver police and employed many different types of munitions, such as rubber pellet grenades and bean bag shotgun rounds; the Denver Police Department was often unaware of who used what when.

While the temporary restraining order also required that all outside law enforcement agencies abide by the DPD's use-of-force policy, the agreement between the city and the plaintiffs only dictates that outside law enforcement agencies follow Denver's policy on what less-lethal weapons can be used.

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"The judge made it clear that he was not interested in issuing an order that would go as far as that use-of-force" requirement, Schwab says. As Westword reported, at least one law enforcement agency stopped assisting Denver police at the protests because of the temporary restraining order's requirement that any outside officers abide by Denver's use-of-force policy.

Under the agreement, only a sergeant or someone of higher rank can approve the use of less-lethal munitions like pepper spray or tear gas — unless there are exigent circumstances, such as no officer of the required rank present when a delay in using less-lethal munitions would be unreasonable. (The temporary restraining order had drawn the line at lieutenants.)

In line with the temporary restraining order, the stipulated agreement also requires that officers turn on their body-worn cameras whenever interacting with protesters.

The agreement also cites key sections of a new state law; legislators had inserted some of Jackson's order almost verbatim into the police reform and accountability bill passed this month and signed into law by Judge Jared Polis. Under that law, officers in Colorado must issue an order to disperse, allow time for protesters to comply, then repeat the order if it appears that the crowd didn't hear before they're able to use munitions like tear gas and pepper spray. Additionally, law enforcement authorities in Colorado are prohibited from aiming less-lethal rounds at the head, pelvis or back of protesters. They're also forbidden from firing less-lethal rounds indiscriminately into a crowd.

The City of Denver will file an answer to the original legal complaint in the coming weeks; it could be over a year before the two sides are in court again.

"There’s a lot of issues to look at, a lot of evidence, a lot of days, a lot of interactions," Schwab explains. In the meantime, he and the rest of the legal team representing the plaintiffs are asking members of the public to submit videos, pictures and stories documenting how law enforcement interacted with protesters to a new website they've set up. "We don’t want this to be told from just the viewpoint of police body cams," Schwab says.

While the City of Denver has reached an agreement with the opposing side in one lawsuit, it is now facing a second lawsuit that contains similar allegations about unconstitutional use of less-lethal force against protesters.

On June 25, the ACLU of Colorado and Arnold & Porter filed a lawsuit against the City of Denver on behalf of ten plaintiffs, including the organization Black Lives Matter 5280.

"The City’s actions, while unconstitutional in any context, are even more pernicious here because the use of excessive force has specifically targeted peaceful demonstrators who assembled to protest police violence and brutality, including in particular police brutality that disproportionately targets African Americans," this second lawsuit argues.

While the two lawsuits make their way through the courts, Denver's Office of the Independent Monitor is investigating the overall law enforcement response to protesters, as well as individual complaints. This investigation has support from Denver City Council, Denver Police Chief Paul Pazen, and Murphy Robinson, the executive director of the Department of Public Safety.

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