"No, I'm not going to relax!"
"Stop strangling me, fucker! Fuck you! Just fucking shoot me!"
The raving man was being held to the ground in the Office Depot parking lot at East Colfax Avenue and Pearl Street when Evan Herzoff walked by around 9:30 p.m. on April 8. The University of Colorado at Denver political-science student had spent the Saturday evening studying over a beer at Sancho's Broken Arrow and was heading home when he came up on the scene. He just happened to have his video camera with him, so he pulled it out and got close enough to the swarm of police lights to see an arrest in progress.
The 27-year-old considers observing the police to be his civic duty, and he volunteers regularly with Denver CopWatch, which was born out of the 1999 shooting of Ismael Mena, who was killed by Denver SWAT officers searching the wrong address in a drug raid. The Denver grassroots group of about fifty volunteers seeks police accountability and was modeled after the original CopWatch in Berkeley, California, where members videotape and photograph police interactions with citizens at ordinary on-the-street encounters and rallies. Herzoff became familiar with the group while working at the now-defunct Stella Bluz coffeehouse at Colfax and Pearl, where they used to meet. Spurred by police shootings and his own activist inclinations, he's volunteered for several years to cop-watch during Cinco de Mayo and Columbus Day festivities.
Having been trained on how to legally watch and record police activity, Herzoff purposely did not stand in the Office Depot parking lot, because it is private property. He stood beside a dumpster, on the border of the alley and the parking lot of an apartment building next door, so as not to block traffic or trespass. A small "No Trespassing" sign was displayed in front of the apartment building, but he didn't see it.
He taped the three cops kneeling by the man on the ground and three standing over him. It looked to Herzoff like they were doing a good job, even holding the man's head up so he'd stop bashing it against the pavement himself. When one of the officers noticed Herzoff, he turned around and waved. "Hi. Having a good night?" he asked with an exaggerated smile and sarcastic tone.
Why, are you about to ruin it? Herzoff thought to himself.
The officer went to his car and drove away, but he was back in just a few minutes, pulling up behind Herzoff.
"Do you live here?" the officer asked.
Herzoff told him he lived less than a block away.
"Okay, do you live on this property?" the officer asked.
"No, I was actually kind of standing near the alley for that reason."
"I need to see your I.D."
"Because I'm filming?" Herzoff asked as he pulled his driver's license from his wallet.
"No, because you're on private property, and you don't have any reason to be here."
The officer cut him off, saying under his breath, "Yeah, I know the whole story."
After going to his car to run the license, he handed it back to Herzoff.
"Why don't you step into the alley so I don't have to take you to jail?"
"No problem," Herzoff said, starting to move toward the alley. "Oh, can I have your card, by the way?"
"Actually, let's take you to jail instead."
"I'm sorry. I'm just asking for your card."
"You're going to jail."
Herzoff captured the conversation on his recorder before he spent that night on the top bunk of a crowded jail cell for trespassing. It wasn't until his mom paid $100 to bail him out the next morning that he got his police report and learned that his arresting officer's name and badge number was Officer Morgan, #00102. The officers also told Herzoff that the "property bureau" was closed and refused to give him back his belongings; however, they changed their minds after he left and gave his stuff to his mother. His video camera had never been turned off during the night, and the cops were recorded as they went through his things, commenting that they were disappointed not to have found marijuana in his container of Altoids. Herzoff already believed the Denver police had a problem with racial profiling, but he didn't know they also stereotyped long-haired guys in leather jackets as pot smokers. When he got home, Herzoff called CopWatch founding member Steve Nash, who called the local chapter of the American Civil Liberties Union and asked if they would represent him. The ACLU agreed after seeing Herzoff's video.
"It was a clear abuse of police power," says Cathryn Hazouri, ACLU-Colorado's executive director. "The young man was asserting his right to ask for the police officer's card, and it wasn't until he did that that the police officer decided to arrest him."
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The Denver City Attorney's Office must have agreed, because it dropped the charges against Herzoff on Friday, June 2, after Herzoff and his attorney, Frank Moya, showed prosecutors the tape. "Our ethical responsibility is to assess whether or not we have a reasonable chance of conviction in all cases, and we deemed it in the interest of justice to dismiss the case," says Kathy Sasak, assistant director of prosecution and code enforcement for the city attorney's office.
Officer Morgan could not be reached for comment, and Denver Police spokesman Sonny Jackson says he isn't familiar with the specifics of the arrest. "They'll always give you a business card," Jackson says. "That's policy. Officers have no problem with that. Where they do have a problem is if somebody is impeding them from doing their duty in a safe manner. Videotaping happens all the time. I think the office is very used to it. Every phone has a camera. What it comes down to is, are you presenting a problem or a threat in a place where you're not supposed to be?"
Herzoff hopes to enlist the help of the ACLU in taking legal action against the Denver Police Department, though he's not yet sure what form that action would take. "I'm not interested in getting damages," he says. "I sonly lost fifty bucks and a night in jail. I'd like to see that officers are deterred from conducting themselves in this unprofessional way."
He's now preparing to write a report for school on police policy, but Herzoff feels his trust in police officers has been violated. Before Officer Morgan ruined his night on April 8, he believed he was going to walk away from that incident with footage showing the Denver police doing their job right. Now he suspects they were only putting on a show. He wonders what the cops might have done to the man after he and his camera were removed as witnesses. At the very least, he hopes his real-life example will remind citizens that it's their legal right to observe police interaction and to request a business card. "I was not arrested for trespassing; I was arrested for asking the officer for his business card," he says. "The citizens of a city should never be afraid to ask the identities of their police officers. They shouldn't even have to ask."