A pair of Denver officers taught me a few things in the summer of 2018.
#1: That a woman ought to “Act like a lady” when unlawfully being handcuffed for photographing police. And #2: That despite being paid to enforce our laws, some officers have no clue what those laws – especially that First Amendment one – mean.
Two years later, I fear the rank and file of Denver’s Police Department are no more informed about the public’s, including journalists’, First Amendment rights or, even worse, that their bosses in Mayor Michael Hancock’s administration are not committed to making sure they honor them.
Over the weekend, Denver police targeted, harassed and even injured journalists along with the protesters they were covering. Several reporters, photographers and TV news producers have welts from being hit by police pepper balls and other crowd-control ammo. On Sunday night, as one example, Denver Post reporter Alex Burness was walking with Denverite/Colorado Public Radio reporter Esteban Hernandez while covering a demonstration downtown. Burness noticed an officer eyeing them and both called out “PRESS” to let him know they were allowed to be there. Hernandez also was wearing a neon vest with the word “Press” written across it. Nevertheless, Burness and Hernandez say, the officer responded by pointing his weapon at them.
— Esteban L. Hernandez (@EstebanHRZ) June 1, 2020
This isn’t supposed to happen anywhere in the U.S., and it shouldn’t be happening now in the City and County of Denver, which last summer signed a legal settlement committing, among other things, to require every one of its police officers to undergo special First Amendment training. That out-of-court agreement stemmed from an incident two summers ago when two over-amped officers, James Brooks and Adam Paulsen, forced me to stop taking photographs of their handling of a black man on a Colfax Avenue sidewalk by grabbing my phone, handcuffing me and telling me to “stand up and act like a lady” in the process. Their supervisor made them let me go 14 minutes later.
I am by no means the first person Denver officers have messed with for recording questionable conduct. But I hoped, perhaps naively, I’d be the last.
Under our settlement, the Hancock administration agreed to fly in an expert of our choice to train each of the Denver Police Department’s 1,500 officers on heeding the public’s – and the news media’s – First Amendment rights to photograph and otherwise record them on-duty. For six months pre-COVID-19, the city delayed scheduling those trainings with our expert, Mickey Osterreicher, the New York-based general counsel for the National Press Photographers Association. After several non-responses from the city, he learned police brass were balking about the training, asking that he omit one-third of the material in his syllabus, including:
- The fact that the 14th Amendment prohibits officers from seizing cameras and other recording devices
- Any mention of U.S. Court of Appeals cases in which judges have ruled the public and news media have a right to record on-duty law enforcement officers in public places, even if the officers don’t like it
- That courts often do not grant officers qualified immunity (meaning a free pass) for violating free-speech rights
- And that police can’t arrest people without probable cause that they’re committing a crime
Why, after all, bum out an entire police force?
Andy McNulty, one of the lawyers who represented me in negotiations with the city, calls the city’s proposed omissions “flabbergasting.”
Osterreicher, a veteran of decades of First-Amendment legal battles, would not agree to them.
“I teach what I teach, and I’m not changing it,” he said.
He also wouldn’t agree to the department’s request, pre-pandemic, that he record his seminar rather than giving it in-person. He has been training police long enough to know that a certain percentage won’t pay attention if asked to watch on video.
McNulty equates video training to “that online driving course they want you to watch after you get a speeding ticket.”
“You know, the one you’re only half paying any attention to while you’re cooking dinner and also watching a movie on Netflix,” he said. “Unless you have someone up there live and in person, you’re not going to get buy-in from these officers.”
Denver officials put scheduling Osterreicher’s training on hold, understandably, since the coronavirus hit in March. Asked about the nine-month delay, Hancock’s spokeswoman Theresa Marchetta wrote in an email Monday, “Training is always a priority, but I am not sure what those protocols look like or how they’re carried out under a state of emergency, when lives and property are being put at risk.”
Had the administration made training a priority, I wonder if it would have kept Denver officers from messing with peaceful protesters and journalists over the past week. On Monday, a coalition of news organizations called upon the Denver Department of Public Safety, the Colorado State Patrol and the Colorado National Guard “to thoroughly investigate these extremely serious allegations, and, if confirmed, to hold the peace officers involved accountable.” Councilwoman Candi CdeBaca led a coalition of community groups in calling for investigations into police use of excessive force against protesters and journalists.
“Protests against police abuse should not result in more police abuse,” she wrote.
I hoped the legal settlement would make a difference in an administration that has a long record of ducking from scrutiny. I hoped it would increase transparency in a safety department that has failed to hold bad cops accountable and let some get away with murder. It is not lost on me that officers Brooks and Paulsen faced heavier repercussions for handcuffing me – both fined two days’ pay – than the officers who killed Marvin Booker and Michael Marshall, two mentally ill and vulnerable black men, in the Denver jail. It is not forgotten that Denver sheriff’s deputies and their bosses lied repeatedly on the witness stand during the Booker family’s civil trial, or that Hancock’s administration has failed to explain what happened to the missing Taser – and corresponding data showing how long it was deployed – deputies used when killing Booker. And it is not without a certain twinge that I’m writing about the plight of journalists when the stories behind these protests are so much bigger and more painful.
But in their tear-gas spraying, pepper-ball shooting response to people exercising their free-speech rights over the weekend, Denver police proved why they need to be watchdogged. As if the First Amendment requires a reason, which it doesn’t.
Osterreicher, who has been fielding calls from journalists who are under attack from police nationally, says he is struck by the extent to which Denver police are targeting the news media.
“I’ve been saying to myself, gee, they haven’t learned much from your incident in the interim, have they?” he said.
The teachable moment, should it come at all, will have come too late for an administration run by a mayor who claims to be a First Amendment champion. If there is any point in Denver’s history when the need for training is obvious, that moment is now.