DENVER – Just days before the anniversary of a mass arrest that shut down a downtown protest march during the Democratic National Convention (DNC) last year, eight Plaintiffs represented by lawyers for the ACLU of Colorado filed suit last evening in Denver District Court against Denver and high-ranking police officials. The Plaintiffs, who include a legal observer for the People’s Law Project (PLP), a journalist, students documenting the march, and peaceful onlookers who observed the march legally from the sidewalks, assert that they were falsely arrested without probable cause and groundlessly prosecuted for crimes they did not commit, in violation of the First and Fourth Amendments.
In an additional claim filed as a class action on behalf of nearly one hundred persons, the ACLU charges that Denver illegally prohibited the Plaintiffs and others held at the City’s special DNC detention center from meeting with attorneys who came to provide legal advice and consultation after the mass arrest.
With regard to policing protest during the DNC, Denver police sometimes got it very right, for which they deserve credit,” said Mark Silverstein, ACLU Legal Director. “On this evening, however, Denver police got it wrong, very wrong. Although Denver often allows street marches to proceed without the required permit, the police chose to crack down on this one. But police failed to distinguish between street marchers and others who were participating or merely observing from the sidewalks, where they had a legal right to be. If there is a case where a large and potentially raucous public gathering threatens to get out of hand, police can issue orders to disperse and clear the area, but no such order was issued that night.”
The march started from Civic Center Park in the early evening of August 25, 2008. Participants marched on 15th 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 15th Street between Court and Cleveland. The encircled group included not only the street marchers, but also participants who had been marching legally on the public sidewalks, as well as legal observers, curious onlookers, members of the press, and other nonparticipants. This large group was detained a substantial time between police lines while Denver’s top officials decided what to do.
According to the lawsuit, Denver carried out an arbitrary and groundless mass arrest of an entire group of 96 individuals, 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 were exonerated after jury trials or after prosecutors finally dismissed charges. Although officers at the scene completed statements under oath recounting “facts” that supposedly justified each of the Plaintiff’s arrests, the lawsuit charges that these sworn statements were “universally and materially false.”
“The arresting officers consistently swore that Plaintiffs were marching in the street and that they ignored audible orders to disperse issued by a police supervisor,” said John Culver, of Culver & Benezra, LLC, who is litigating the case as an ACLU cooperating attorney, along with his partner Seth Benezra. “As Denver later acknowledged, however, no order to disperse was ever issued. Our clients did not participate in the march in the street, and police never provided them with any opportunity to leave the area.”
The ACLU asserts that its clients were falsely arrested and forced to defend themselves in court proceedings from groundless accusations of criminal conduct. All were charged with failing to obey a police order to disperse. After Denver finally acknowledged that no such order had ever been issued, City attorneys nevertheless persisted in prosecuting the Plaintiffs for allegedly “obstructing” a public right of way by marching in the street without a permit. With legal representation from the PLP, all the criminal cases have now been resolved in the Plaintiffs’ favor, either through dismissals or acquittals after jury trials.
After their arrest, the Plaintiffs and most of the arrestees were locked into holding cells at a vacant warehouse that Denver converted into a detention facility for DNC-related arrests. At the warehouse, which protesters dubbed “Gitmo on the Platte,” Denver refused to allow attorneys to meet with or speak with any of the arrestees.
The lawsuit relies on a longstanding Colorado statute that requires custodians of detention facilities to allow attorneys to meet with detainees in a confidential setting. The law provides for penalties of up to one thousand dollars for each violation. This claim is filed as a class action, and the ACLU lawyers ask that the statutory penalty be imposed on behalf of all the persons swept up in the August 25 mass arrest who were held at the City’s detention facility.
“Prior to the DNC, the ACLU advised Denver on multiple occasions that Colorado law required them to accommodate attorney visits at the detention facility, but Denver officials insisted that no attorney visits would be permitted," said Taylor Pendergrass, ACLU Staff Attorney. "This lawsuit challenges Denver's willful decision to deny an entire class of persons a basic right long protected by Colorado law--to consult with an attorney at any place of custody. Denver officials had no legitimate basis for treating the detention facility as a legal black hole where this fundamental Colorado law did not apply."
Plaintiffs in the lawsuit are Nathan Acks, Tiffany Bray, Chase Goll, Eli Hardy, Aminah Masud, Ian Morrison, Blake Pendergrass, and Kim Sidwell. Defendants include Denver as well as police Commander Deborah Dilley and Sgts. Anthony Foster and Anthony Martinez.
In addition to Culver, Benezra, Silverstein and Pendergrass, the Plaintiffs’ legal team includes ACLU Cooperating Attorney Lonn Heymann, of Rosenthal and Heymann LLC, who also represented arrestees in their criminal cases on behalf of the PLP.