Denver’s US District Court Rules Against State, Denver Police Department, in Use of Force Class Action Lawsuit

[Updated 6.8.2020 to correct the name of the court.]

[Updated: 10:30pm]

I wrote earlier today about the class action lawsuit brought againt the Denver Police Deparment. See here.

The judge in the case, Judge R. Brooke Jackson, requested language for a Temporary Restraining Order against the Denver Police Department. That language was provided and the ruling was issued this evening, dealing a severe blow – a clear reprimand – to the City of Denver, Mayor Hancock, Chief Pazen, and the entire Denver Police Department. Use of force that exceeds legal limits or that imposes restrictions on the exercise of First Amendment rights are out of bounds. Hypothetical harm is not enough of a harm to merit use of force, as seen in Denver, and the limits against free speech seen in our local protests. This is a clear win for the First Amendment, the protests, and America.

The ruling has several parts, including Background, Standard of Review, Likelihood of Success on the Merits, Irreparable Harm to the Movant, Balancing Harm to the NonMovant, Public Interest, Conclusion, and the Order [cited in whole below]. Some areas of specific import include that:

“”Officers used physical weapons and chemical agents to prevent not just peaceful demonstration, but also the media’s ability to document the demonstrations and plaintiffs’ and third parties’ ability to offer aid to demonstrators. Peaceful demonstrators’ legitimate and credible fear of police retaliation is silencing their political speech—the very speech most highly valued under the First Amendment.”

That is, the police were **actively** working to obstruct media documentation and healthcare provisions to the injured. If America no longer has a free media, are we free? Only under dictatorships or fascism is media controlled, limited, or in this case actively targeted.

“Citizens should never have to fear peaceful protest on the basis of police retaliation, especially not when protesting that very same police violence.”

“Plaintiffs do not expressly discuss the potential harm to the public interest. The most likely potential harm is an increase in property damage. Although I do not agree with those who have committed property damage during the protests, property damage is a small price to pay for constitutional rights—especially the constitutional right of the public to speak against widespread injustice. If a store’s windows must be broken to prevent a protestor’s facial bones from being broken or eye being permanently damaged, that is more than a fair trade. If a building must be graffiti-ed to prevent the suppression of free speech, that is a fair trade. The threat to physical safety and free speech outweighs the threat to property.”

And “I believe in everything that Commander Phelan testified during tonight’s hearing about the duty of the police to protect the rights of citizens who demonstrate and protest. However, the Denver Police Depart has failed in its duty to police its own.”

Police – whether they choose to accept it or not – or constrained by the laws they are tasked with enforcing. In fact, many argue a higher level of accountability should be enforced against those whose duty is the law. None should be above it. Unfortunately, we’ve seen a national police movement of unnaccountability targeting protestors, the media, and those who act to support the injured, community street medics. It’s hugely important that the Denver Police is called out for not policing its own.

You can read the entire ruling HERE. This is the text of the order, against the Denver Police Department:

“Plaintiffs’ motion for a temporary restraining order, ECF No. 10, is GRANTED in

PART. The Court temporarily enjoins the City and County of Denver, and specifically the

Denver Police Department and officers from other jurisdictions who are assisting Denver Police

Officers, from employing chemical weapons or projectiles of any kind against persons engaging

in peaceful protests or demonstrations. To be better assure that this idealistic order is carried out,

the Court temporarily enjoins the Denver Police Department and officers from other jurisdictions

working with Denver Police Department officers from using chemical weapons or projectiles

unless an on-scene supervisor at the rank of Captain or above specifically authorizes such use of

force in response to specific acts of violence or destruction of property that the command officer

has personally witnessed. The Court further orders that:

1. Kinetic Impact Projectiles (“KIPs”) and all other non- or less-lethal projectiles may never

be discharged to target the head, pelvis, or back.

2. KIPs and all other non- or less-lethal projectiles shall not be shot indiscriminately into a

crowd.

3. Non-Denver officers shall not use any demonstration of force or weapon beyond what

Denver itself authorizes for its own officers. Any non-Denver officer permitted to or

directed to be deployed to the demonstrations shall be considered an agent of Denver

such that Denver shall ensure such officer is limiting their use of force to that authorized

by the Defendant.

4. All officers deployed to the demonstrations or engaged in the demonstrations must have

their body-worn cameras recording at all times, and they may not intentionally obstruct

the camera or recording.

5. Chemical agents or irritants (including pepper spray and tear gas) may only be used after

an order to disperse is issued.

6. Any and all orders to disperse must be followed with adequate time for the intended

audience to comply, and officers must leave room for safe egress. If it appears that the

intended audience was unable to hear the order, the order must be repeated prior to the

use of chemical agents or irritants.

DATED this 5th day of June, 2020, 8:39 p.m.