The Colorado Independent has sued the City and County of Denver demanding the release of videotapes showing sheriff’s deputies’ fatal confrontation with Michael Lee Marshall, a mentally ill, homeless man, in the city jail.
The complaint alleges that the city violated Colorado’s Criminal Justice Records Act in November when it denied The Independent’s request for videotapes, incident and witness reports and other materials related to Marshall’s case. Releasing the information serves the public’s “strong and compelling interest in the disclosure of information relevant to official misconduct by government officials,” according to the complaint filed Wednesday in Denver District Court.
“Mayor Michael Hancock’s administration has pledged transparency around the death of Michael Lee Marshall, yet shut down our open records request. That’s not transparency. It’s shrouding the incident in darkness,” says Susan Greene, The Colorado Independent’s editor and executive director.
“Terms like ‘transparency’ and ‘public information’ shouldn’t be thrown around in platitudes and hollow promises,” Greene adds. “In Colorado, those principles aren’t just the tools we journalists need to do our jobs. They’re the law. Last time we checked, public officials — even public officials in Denver — must be accountable under that law. This lawsuit is our way to make them accountable.”
Neither Hancock’s office, his Safety Department nor City Attorney Scott Martinez has responded to this reporter’s inquiries about the lawsuit.
The complaint was filed by the Boulder office of Loevy & Loevy, a civil rights law firm that successfully sued the City of Chicago for the release of surveillance video of the shooting of 17-year-old Laquan McDonald on behalf of independent journalist Brandon Smith. McDonald was shot sixteen times as he walked away from Officer Jason Van Dyke.
Since that videotape was made public, Van Dyke has been charged with first-degree murder.
“We took this case because we firmly believe in open and transparent government,” says attorney Elizabeth Wang, who wrote The Independent’s complaint. “The video and audio recordings of the confrontation between sheriff’s deputies and Michael Marshall is objective evidence of what occurred, and the public deserves to see the footage and decide for themselves.”
“Cities all around the country are finally realizing that transparency is essential to fostering trust in government,” adds Wang’s co-counsel, Matthew Topic, who was the lead attorney in the Chicago case.
“Places like Seattle are releasing videos of possible police misconduct in a matter of weeks. In the wake of the Laquan McDonald video release, the City of Chicago is finally coming to terms with decades-long problems in policing. While there has long been a knee-jerk reaction to withhold videos for as long as possible in the name of a pending investigation, all across the country people are realizing that approach is counterproductive,” says Topic.
There’s precedent for Denver withholding videos in use-of-force cases. Part of the impetus for The Independent’s lawsuit was the city’s delay releasing the video in a case uncannily similar to Marshall’s. Denver waited ten months before making public a videotape of sheriff’s deputies fatally restraining Marvin Booker at the city jail in 2010. Booker, like Marshall, was homeless, mentally ill and black. The videotape of his killing showed in clear black and white that Booker posed no serious physical threat to the deputies who fatally restrained him with a Taser and a chokehold.
Booker’s family won an unprecedented $6 million jury verdict against the city.
“Given what happened to Marvin Booker and given the reforms the city has promised since that case, the public has a right to know what deputies did to Michael Marshall,” Greene says.
Marshall’s death was ruled a homicide by the Denver Coroner. An investigation into the case is ongoing. The determination of whether to pursue criminal charges against the deputies who restrained him is up to Denver District Attorney Mitch Morrissey, whose office has never prosecuted a law enforcement officer for an on-duty killing.
The Independent’s suit comes as Marshall’s family as well as a coalition of African American clergy, congregants and community activists enter the second week of a hunger strike that began on January 11. Their strike is a protest against Hancock’s refusal to release the tapes.
Natalia Marshall, Marshall’s niece, is among an estimated 300 Denverites who have joined the strike, which is being led by the Denver Ministerial Alliance. Speaking at Civic Center Park on Monday, surrounded by activists from Black Lives Matter 5280 during a Reclaim MLK Day protest, Natalia Marshall sounded physically weak but resolute as she called for accountability in her uncle’s death.
“I’m losing my voice, losing my weight, and I’m tired,” she said. “There is no reason for us to sit here mourning him, requesting and begging the release of tapes we should already have. We want to know what happened to Michael.”
Last week, Hancock told The Denver Post that the city was prepared to share the video with Marshall’s family.
“I don’t expect it is going to take much longer,” Hancock said, adding that the video was withheld from the public during the ongoing homicide investigation: “What we want to do is make sure everyone who needs to be interviewed has been interviewed before we show the video.”
Yet lawyers for the Marshall family say reports indicate the tapes have already been viewed — not by their clients, but by deputies involved in the case. That’s a questionable move, they say, for an administration claiming concern that witnesses may change their stories after seeing the video.
“Denver has steadfastly refused to show the evidence to anyone except the very same sheriff’s deputies that it claims to be investigating,” says civil rights attorney Mari Newman. “Denver has already intentionally tainted the so-called investigation. That’s not transparency; that’s a cover up.”
“The Mayor and the City Attorney’s office are fighting against the people’s right to know. This lawsuit should not be necessary, but the city will delay and hide evidence as long as they can get away with it,” adds Newman’s co-counsel, attorney Darold Killmer. “The Marshall family is very grateful to The Independent for fighting to release the evidence.”
“The community has a right to know what happened, and a right to see the evidence,” Killmer says. “What is the city hiding?”