DENVER – The ACLU of Colorado and a Denver law firm filed a lawsuit Thursday on behalf of Black Lives Matter 5280 and others injured during the George Floyd protests against the city of Denver for the police department’s use of various “less-lethal” weapons on protesters, alleging their use violated protesters’ constitutional rights.
The federal suit is the second levied against the city for the use of force by the Denver Police Department and outside agencies brought in to assist during the early days of the protests in Denver. The first resulted in a temporary restraining order barring the use of less-lethal rounds against protesters unless a lieutenant or higher rank approves of their use and certain other requirements were met, such as officer-witnessed violence or types of destruction. DPD has since made some policy changes.
That order was extended and is set to expire on Friday, though state lawmakers passed a bill that has already been signed into law which prohibits officers from using less-lethal projectiles on protesters to target their head, pelvis or back or to shoot them indiscriminately into a crowd. And the law bars the use of chemical agents to disperse a crowd before giving orders and time for people to comply with them.
But according to the lawsuit filed on behalf of BLM 5280 and nine other protesters who were wounded by officers’ force, the department violated people’s constitutional rights. The suit is led by the ACLU of Colorado and Arnold & Porter and was filed in the U.S. District Court of Colorado
“The City’s actions, while unconstitutional in any context, are even more pernicious here because the use of excessive force has specifically targeted peaceful demonstrators who assembled to protest police violence and brutality, including in particular police brutality that disproportionately targets African Americans,” the suit says.
It alleges that the use of force by police officers injured several people attending the demonstrations and discouraged others from coming out to join, “and infringed on the rights of legal, observers, journalists, and medical personnel attempting to perform their duties at protest sites.”
The suit says that the use of various types of “less-lethal” force “infringed on protesters’ rights under the Fourth and/or Fourteenth Amendments to be free from unreasonable seizures and excessive use of force.”
Among the injuries to the plaintiffs, which include DU professor and clinical and forensic psychologist Dr. Apryl Alexander and abolitionist Elisabeth Epps, who has been front-and-center during the protests and the push to pass Senate Bill 217 into law, were skull and jaw fractures, a brain hemorrhage, bruising, and anxiety among others.
The suit alleges that officers used tear gas, flash bombs and grenades, rubber, foam and pepper bullets without warning on protesters who were peacefully demonstrating starting on the first night of the widespread Denver protests, Thursday, May 28, through Tuesday, June 2, when police changed their tactics.
Denver police have said they used such less-lethal munitions because rocks and other objects were being thrown at officers. An internal investigation into officers’ use of force continues.
Dr. Alexander, who is also a leader of Black Lives Matter 5280, was tear-gassed by police on May 28, according to the suit, which says led to her face burning for more than a day afterward.
“Dr. Alexander intends to continue protesting peacefully at future protests and seeks to do so without the threat of retaliatory police actions such as tear gassing and use of ‘less-lethal’ weapons,” the lawsuit says.
She described how she got caught between two tear gas clouds that day in an interview Thursday and said she was completely blinded by the gas, and that she worried about going to sleep that night because of how her asthma might be affected by the after-effects of the gas. And she said that she believes police treated all demonstrators the same, even though the vast majority of them were peaceful.
“I think we need to recognize that a majority of the protesters were peaceful – that we did have these outliers who were probably getting aggressive and throwing things, but they were the outliers,” she said. “So, my biggest concern is in addressing that one person, you’re exposing all of these people to these gases.”
She said that officers were “careless” in how they treated the demonstrations and that she joined the suit to keep people motivated to continue protesting in the future without fear of being harmed.
Epps, according to the suit, was hit several times in the face with objects, including one that broke a respirator she was wearing and leaving her bruised. Another plaintiff in the suit, Zach Packard, suffered a fractured skull and jaw and a brain bleed after being hit in the head with a projectile and was hospitalized for a week, according to the lawsuit.
"I was struck in the head by either a rubber bullet or a bean bag," Packard told Denver7 Thursday. "It's fractured. There's a plate in my skull and my jaw. It knocked me unconscious immediately, and that's what fractured my neck."
He said he had a panic attack on Wednesday and believes there needs to be repercussions for police.
"I think I'm healing physically faster than I am emotionally," Packard said. "It's definitely taking a toll on me."
Another plaintiff, Cidney Fisk, said she could not get out of bed for two days because of anxiety. Plaintiff Stanford Smith’s skin peeled off his face days after he was hit in the face with pepper spray, according to the lawsuit.
It claims that the city and the officers present for the use of force violated the plaintiffs’ First, Fourth and Fourteenth Amendment rights to free speech and assembly and protection against unreasonable search and seizure.
The suit requests that a judge find that the defendants violated the US. Constitution, put in place an injunction keeping police from using such force in the future, and award either compensatory, nominal or punitive damages to the various plaintiffs, along with attorney’s fees.
“The police had no legitimate basis to assault peaceful protesters,” ACLU of Colorado Legal Director Mark Silverstein said. “We intend to hold law enforcement fully accountable, not only the frontline officers but also the higher-ups who were responsible for ordering or allowing law enforcement to carry out these flagrant and pervasive violations of constitutional rights.”
The Denver City Attorney’s Office said in a statement that it believes the new suit “appears to be a reiteration of the lawsuit that was already filed a few weeks ago.”
“We are confident that DPD is in compliance with the requirements of the recently passed Law Enforcement Integrity Act with respect to law enforcement response to protests or demonstrations,” the office said in a statement delivered by the mayor’s office, which reiterated that the investigation into officers’ use of force was ongoing and would be reviewed by the Office of the Independent Monitor.
The office also said the city “is in full compliance with the federal district court judge’s temporary restraining order.”