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Judge puts strong restrictions on Denver police use of tear gas, pepper balls during protests

Denver asks judge to modify order
Denver protests following George Floyd death
Posted at 9:56 PM, Jun 05, 2020
and last updated 2020-06-06 22:00:14-04

DENVER -- A federal judge has temporarily banned the Denver Police Department from using tear gas, pepper balls or "projectiles of any kind" against peaceful protesters, declaring in a blistering ruling the department "failed in its duty to police its own."

The temporary restraining order from the U.S. District Court in Colorado, obtained by Denver7 Friday night, came a day after four Denver residents filed a lawsuit against the city claiming officers with the city’s police department violated the protesters’ constitutional rights during a recent George Floyd protest, and demanded DPD temporarily halt the use of tear gas, pepper balls, pepper spray and other non-lethal devices.

U.S. District Court Judge R. Brooke Jackson said in the ruling the court reviewed video of numerous incidents "in which officers used pepper-spray on individual demonstrators who appeared to be standing peacefully, some of whom were speaking to or yelling at officers, none of whom appeared to be engaging in violence or destructive behavior."

The ruling cites instances of Denver police targeting Denver7 journalists, protesters, as well as medics.

In the ruling, Judge Jackson writes that in those instances, police officers had "ample time for reflection and were not dealing with dangerous conditions," adding that the demonstrators, journalists and medics at the protests were targeted with extreme tactics "meant to suppress riots, not to suppress demonstrations."

"People have an absolute right to demonstrate and protest the actions of governmental officials, including police officers," Judge Jackson wrote, adding citizens "should never have to fear peaceful protest on the basis of police retaliation, especially not when protesting that very same police violence."

The judge continued, "Indeed, irreparable harm has already occurred in the form of physical injury and the suppression of speech; there is no reason such harm would not otherwise continue if this relief were denied."

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In a major rebuke against the actions of the Denver Police Department, Judge Jackson wrote that while he does not agree with those who've used the protest as an excuse to commit crimes, "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," Judge Jackson wrote.

The judge also wrote he's not issuing the temporary restraining order to prevent officers from doing their work, bur rather to balance citizens' constitutional rights against officers' ability to do their jobs.

The temporary restraining order — in effect for 14 days — not only applies to officers within the Denver Police Department, but also to officers from other jurisdictions working with DPD, the ruling from Judge Jackson states, “to be better assure that this idealistic order is carried out.”

The judge’s ruling is not an outright ban, however, as the use of tear gas or other non-lethal devices is allowed once “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,” according to the document.

The ruling also stipulates that Kinetic Impact Projectiles (KIP’s) and all other non- or less-lethal projectiles may never be discharged to target the head, pelvis, or back of a person. Additionally, the ruling states, KIP’s “shall not be shot indiscriminately into a crowd.”

The restrictions also specify officers from outside of Denver cannot use force or weapons beyond what Denver authorizes for its own officers, and calls for all officers deployed to demonstrations in Denver to make sure their body-worn cameras are activated and recording at all times during their deployment.

The ruling also sets forth that “chemical agents or irritants (including pepper spray and tear gas) may only be used after an order to disperse is issued by an on-scene supervisor – but only after it is clear that protesters are able to hear the commands from law enforcement.

In response to the ruling, an official with the Denver Police Department said via Twitter that while they will comply with the temporary restraining order, they are asking for modifications "that would account for limitations on staffing and body-worn cameras so the directions can be operationalized."

On Saturday, Denver filed a motion to modify the restraining order. They want to include lieutenants because there are only four police officers with the rank of captain and one commander responsible for the downtown area.

Judge Jackson ruled Saturday afternoon that Denver PD lieutenants would be able to order less-lethal munitions deployed if specific conditions are met during protests, but officers’ body cameras “should be activated and filming any and all acts of confrontation.”