Federal Judge Scolds Denver for "Cavalier Attitude" in Protest Filing

A federal judge is not happy with a Denver response regarding a protest lawsuit.
A federal judge is not happy with a Denver response regarding a protest lawsuit.
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Denver is currently dealing with several lawsuits claiming misconduct by Denver police officers during protests that took place in the spring and summer. And in one case, which has already resulted in a temporary restraining order dictating when and how law enforcement can use less-lethal force against protesters, a federal judge is scolding the city for not taking part of the legal action seriously enough.

On November 23, Judge R. Brooke Jackson of the U.S. District Court of Colorado reprimanded the City of Denver for the "cavalier attitude" with which the City Attorney's Office responded to a motion filed by Milo Schwab, the attorney for the plaintiffs.

Schwab had sued the city on June 4 on behalf of multiple plaintiffs who alleged mistreatment by Denver law enforcement during protests in the wake of the death of George Floyd at the hands of Minneapolis police officers. A day later, Judge Jackson granted a temporary restraining order regarding the use of less-lethal weapons. In late June, before that order expired, the City of Denver and Schwab came to a stipulated agreement regarding less-lethal weapons that was supposed to last an indeterminate amount of time; Jackson signed off on that agreement.

But in a motion filed in late July, Schwab claimed that the Denver Police Department had violated the terms of the stipulated agreement, particularly the parts related to the use of less-lethal force and the wearing of body cameras.

Schwab included photographic evidence to back up the claims: pictures and a video that appear to show officers not wearing body cameras at two protests in July, which would be a violation of the settlement terms. His filing also included a video of one police officer using pepper spray against multiple protesters, as well as a second video of police firing pepper balls at protesters, with the attached suggestion that the officers were aiming for the heads of protesters.

In a mid-August filing, the City Attorney's Office noted that while it didn't believe it had to respond to Schwab's motion under federal court procedures, it was filing a "short response in an abundance of caution."

In that response, attorneys representing Denver argued that there was not enough evidence to corroborate the alleged instances of inappropriate use of less-lethal munitions, and that, in at least one case, the use of force appeared to be justified.

Regarding the claim that at least three officers present at one protest weren't wearing body cameras, the city's lawyers said that despite the video submitted with Schwab's motion, there was no evidence showing that the officers had engaged in dispersing individuals at the protest. Further, they said, one of the three officers was, in fact, wearing a body camera — though the still image submitted by the city seemed to show the officer's body armor was obscuring the camera.

The stipulated agreement requires that "all officers deployed to the demonstrations or engaged in the demonstrations must have their body-worn cameras recording any and all acts of confrontation between police officers and others."

In response to an allegation that officers weren't wearing body cameras at a second July protest, the city said that the three officers depicted without cameras weren't in the vicinity of demonstrators, and that three other law enforcement officers shown were actually Colorado State Patrol troopers. And a final image indicated that a law enforcement officer who allegedly wasn't wearing a body camera was indeed wearing one.

But Judge Jackson, who'd presided over this case for months, clearly didn't think the city went far enough in considering the claims in Schwab's motion.

"The settlement was designed to prevent recurrences of these incidents and to prevent needless future lawsuits, for the benefit of the public and the Department," Jackson wrote in his November 23 order. "The Denver Police Department at the very highest level should have a keen interest in assuring that its officers comply fully with the stipulation. Rather than accepting a procedural non-response to the plaintiffs’ motion, the Department should have jumped on these photos and videos, determined what they do show, and provided the plaintiffs and the Court with a substantive response, including if necessary admissions of any noncompliance and assurances that the non-complying conduct has been dealt with internally and will not recur. If it has not done so, then it should do so now."

Ryan Luby, a spokesperson for the City Attorney's Office, declined to discuss Jackon's order beyond noting that the city's lawyers would be responding in court in the coming days.

Schwab is hopeful that their response to Jackson's order will include further explanation from the city.

"I expect that the city will respond more earnestly and more forthrightly about these incidents," Schwab says, noting that in its initial response, the city wasn't "accepting accountability or responsibility."

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