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Federal judge: Denver PD lieutenants can order less-lethal deployment, body cams must record confrontations

Judge: "If that means increasing the supply of batteries, so be it.”
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Posted at 7:37 PM, Jun 06, 2020
and last updated 2020-06-07 17:05:27-04

DENVER – A federal judge on Saturday evening granted some modifications to a temporary restraining order that were requested by the Denver Police Department Saturday afternoon after the order, which restricts certain uses of force by the department, was issued Friday night.

U.S. District Court of Colorado Judge R. Brooke Jackson partially granted the motion to amend from DPD and the city to allow lieutenants to approve the use of chemical weapons or projectiles in certain instances of violence or if property is being visibly destroyed.

The attorneys for the plaintiffs in the lawsuit and for the city of Denver and its police department had come to the agreement earlier in the day, according to court documents. A filing from the plaintiffs made Saturday afternoon says the department said there would be nine lieutenants on the ground during demonstrations who would be allowed to issue such orders and that all “would be made aware of the Court’s TRO and their responsibility in light thereof in advance of being sent to the demonstrations.”

But Judge Jackson denied the city’s motion to change language in the temporary restraining order about how body cameras should be utilized by officers during the demonstrations.

His order does, however, say that it is sensible that officers would not need to have their cameras on if nothing is active where they are located.

“[A]s a matter of common sense, the Court is not requiring that body cameras be activated and draining batteries when nothing is happening in the officer’s vicinity,” the judge wrote in the order.

The city had requested, in a motion filed earlier Saturday, that the court modify the order, which states: “All officers deployed to the demonstrations or engaged in the demonstrations must have their body-worn cameras recording at all times, and they not intentionally obstruct the camera or recording.”

The city and department argued that not all officers at the demonstrations, some of whom come from other jurisdictions, wear body cameras in their departments and thus can’t at Denver protests, and also that there were “technical limitations” that prevented “constant recording and saving of video for extremely long durations.”

But Judge Jackson denied the city’s claims, following a response from the plaintiffs that it was the first time they had learned that not all officers were wearing body cameras and which gave options about how to utilize older body cameras that do not record for as long.

“The cameras should be activated and filming any and all acts of confrontation between police officers and others, and if that means increasing the supply of batteries, so be it,” the judge wrote in the order Saturday afternoon.

Jackson’s fiery ruling Friday 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 demanding DPD temporarily halt the use of tear gas, pepper balls, pepper spray and other non-lethal devices.

The Friday ruling cited instances of Denver police targeting Denver7 journalists, protesters and medics.

In the ruling, Judge Jackson wrote 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."

Jackson rebuked the department’s actions during the protests before officers stopped firing tear gas and pepper balls at demonstrators, a few of whom early during Denver’s protests had vandalized some businesses. The judge wrote Friday: “[P]roperty 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," he wrote.

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.

But after Saturday’s changes, lieutenants – not captains, as was originally the case in the TRO – or any rank above may approve the use of tear gas or other non-lethal devices if they are “in response to specific acts of violence or destruction of property that the command officer has personally witnessed.”

But none of those devices can be shot at a person’s head, pelvis or back, nor can they be “shot indiscriminately.” Demonstrators must also be able to hear clear commands from law enforcement before any actions are taken once approved.

Friday represented the fourth night in a row in which demonstrations in Denver had remained almost entirely peaceful throughout the night and saw little police presence aside from blocking roads.

Saturday’s demonstrations have remained peaceful as of the early evening as well.