Settlement Terms Include Improvement in Police Policy on Crowd Control

Attorneys for City and County of Denver have agreed to pay $200,000 and make changes in police policy and training to settle an ACLU lawsuit filed in the wake of an indiscriminate mass arrest that shut down a protest march during the 2008 Democratic National Convention in Denver.

The lawsuit charged that Denver falsely arrested the ACLU’s clients without probable cause and groundlessly prosecuted them for crimes they did not commit, in violation of the First and Fourth Amendments.

The settlement agreement follows a ruling by federal district court Judge Richard Matsch, holding that the ACLU’s false arrest claims could proceed to trial.

“This case identified serious flaws in Denver’s training and policies on crowd control and policing demonstrations,” said Mark Silverstein, ACLU Legal Director. “The settlement, and the resulting improvements to Denver’s crowd-control manual, underscores an important lesson for Denver police: They must have individualized facts showing that each separate person they arrest was violating the law. Police violate the Constitution when they simply arrest everyone who happens to be in the area.”

The ACLU’s lawsuit noted that Denver police often allow street marches to proceed without the required permit, a practice that provides breathing room for First Amendment expression while avoiding unnecessary confrontations between protesters and police.

“In this case, however, police cracked down aggressively with a massive deployment of riot-equipped police,” said John Culver, of Culver & Benezra, LLC, who litigated the case and negotiated the settlement as an ACLU Cooperating Attorney. “Police eventually arrested nearly 100 persons, without distinguishing between those who were marching in the street without a permit and others, like our clients, who merely watched from the sidewalks, where they had a legal right to be.”

The march started from Civic Center Park in the early evening of August 25, 2008, the second day of the convention. Participants marched on Fifteenth Street and the adjoining sidewalks but were quickly stopped by a solid line of police at Court Street. A second line of police -- clad in full body riot armor and carrying an array of less-lethal weapons -- quickly closed in from behind, confining hundreds of persons in a one-block stretch of Fifteenth Street. After detaining the crowd for hours, Denver arbitrarily allowed half the group to leave and then began handcuffing the others.

The lawsuit charged that Denver carried out a groundless mass arrest of an entire group, knowing that the roundup included numerous innocent persons such as the ACLU’s clients. Indeed, of the 54 persons who did not accept an immediate plea bargain, at least 38, including the ACLU’s eight clients, were cleared after jury trials or after prosecutors finally dismissed the bogus charges.

The ACLU’s clients, who included a legal observer for the People’s Law Project (PLP), a journalist, as well as students documenting the march, were charged with failing to obey a police order to disperse. After Denver finally acknowledged that no such order had ever been issued, Denver City attorneys nevertheless persisted in prosecuting the Plaintiffs for supposedly “obstructing” a public right of way by marching in the street without a permit. With legal representation from the PLP, all the criminal cases were resolved in the Plaintiffs’ favor.

The ACLU’s lawsuit also alleged that Denver violated Colorado statute when it refused to allow attorneys to meet with any of the arrestees at the vacant warehouse Denver had converted into a special detention facility for DNC-related arrests. The court certified that state-law claim as a class action on behalf of all persons caught up in the mass arrest, but the court later ruled that, as written, the Colorado statute did not require Denver to accommodate attorney visits when arrestees are charged only with violating municipal ordinances. Silverstein said the ACLU will ask the Colorado legislature to clarify the statute with an amendment that will make it crystal clear that any detainee -- regardless of the charge -- has a right to meet with an attorney in a confidential setting.

The settlement agreement will not be final until it is approved by the federal district court and the Denver City Council.

“This settlement is about much more than money,” said ACLU client Kim Sidwell, one of those arrested unlawfully. “We wanted Denver held accountable for violating the Constitution, which protects everyone from indiscriminate arrests and false charges. I hope that this settlement and the changes to Denver’s crowd control manual will ensure that nothing like this will happen again at future demonstrations.”

In addition to Silverstein and Culver, the ACLU legal team included ACLU Cooperating Attorneys Seth Benezra and Lonn Heyman, ACLU Staff Attorney Rebecca T. Wallace, and former ACLU Staff Attorney Taylor Pendergrass.

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