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ACLU blasts DA’s reversal of long-established “open file” policy in police shooting cases

FOR IMMEDIATE RELEASE
August 23, 2006

Denver District Attorney Mitch Morrissey has quietly abandoned the “open file” protocol that his predecessors had followed for more than two decades in police shooting cases. In doing so, Morrissey violated an explicit campaign pledge and took a major step backward with regard to transparency and police accountability, ACLU Legal Director Mark Silverstein said today.

“Until recently, the District Attorney’s Office bragged that its protocol was ‘the most open process in the country for conducting officer-involved shooting investigations,’” Silverstein said. “Sadly, that is no longer the case. Mr. Morrissey now refuses to disclose critical information about police shootings. Moreover, he misleads the public by suggesting that the information is available elsewhere, when that is not the case.”

“With the DA’s 180-degree change of policy, the public is left in the dark,” Silverstein continued. “Contrary to the DA’s assertions, the detailed information about police shootings that used to be available at the DA’s office is not available from Denver city officials, because the Denver city administration has failed to deliver on one of its promised reforms in how it deals with incidents in which a Denver police officer kills or causes serious bodily injury.”

Until Morrissey took office in 2005, the Denver DA’s Office issued a detailed “decision letter” when it concluded its investigation of an officer-involved shooting. The letter discussed the facts, the applicable legal standards, and explained DA’s decision not to file criminal charges against the officer. At that time, if a prosecution was not pending, the DA opened the complete investigative file to the public.

The lone exception was the case of Frank Lobato, who was shot and killed by Officer Ranjan Ford in July, 2004. Lobato was sitting in bed holding a can of soda that Ford claimed he mistook for a gun. After a grand jury declined to indict Ford, the DA’s Office also declined to press charges. At that time, outgoing district attorney Bill Ritter said that his file on that case would remain closed until the Denver police department and the Denver Manager of Safety completed their administrative investigations.

In a series of letters written as Morrissey was assuming his new post in early 2005, the ACLU challenged the DA’s decision to close the Lobato file. In March, 2005, Morrissey insisted that the Lobato file was an exception and that he had not changed the long-established practice of opening the investigative files to the public.

When Morrissey ran for office in the spring and summer of 2004, the issue of police shootings came up frequently. Morrissey pledged to maintain the policy of opening the DA’s file to the public.

Despite the campaign promise and the written assurance to the ACLU, in late 2005 Morrissey made two significant but little-noticed changes to the long-established protocol. First, Morrissey now will issue only a very brief “decision letter” instead of the thorough analysis provided in past years. Second, Morrissey will no longer allow the public to review the DA’s investigative file.

According to the revised protocol posted on the DA’s web site, the changes were made “because the Denver Manager of Safety now writes an exhaustive letter at the conclusion of the administrative review of the shooting.” The open-file policy was abolished “to avoid impacting the integrity and validity” of the ongoing administrative reviews by the Denver police department and the Manager of Safety.

“There are two fundamental flaws in the DA’s reasoning,” Silverstein said. “First, allowing the public to review the DA’s file poses no threat to whatever internal administrative investigations are proceeding within the police department or the Manager of Safety’s office. Such administrative investigations have always been taking place at the time that Mr. Morrissey’s predecessors opened the DA’s investigative file.”

“Second, the Manager of Safety has not been writing the exhaustive letters referenced in the DA’s new protocol. Although the Hickenlooper administration announced in 2003 that such letters would be drafted and made public in all cases in which Denver officers cause death or serious bodily injury, that promised reform has not been carried out.”

In March, 2005, the ACLU revealed that the Manager of Safety had written only one of the promised public reports since the Hickenlooper administration touted them as one of the administration’s package of police accountability reforms. The Manager of Safety has written only one additional report since then.

“The Manager of Safety is backlogged,” Silverstein said. “There are at least 10 publicized cases of death or serious injury for which no Manager of Safety report has been issued, as well as an unknown number of additional cases that have not received publicity. If the promised public reports were actually written and released promptly to the public, that would be a step forward in transparency and accountability. In contrast, the District Attorney’s about-face is a major step backward. The DA is wrong to bar the public from these long-available investigative files, and he is doubly wrong for doing so by relying on the public’s supposed access to reports from the Manager of Safety that do not exist.”

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