June 25, 2020
DENVER – The ACLU of Colorado and Arnold & Porter filed a lawsuit today against the City and County of Denver on behalf of Black Lives Matter 5280 (BLM 5280) and individual plaintiffs who were injured by police while protesting police violence in late May and early June. The lawsuit challenges the use of tear gas and “less-lethal” weapons that police unleashed against nonviolent protesters who were demonstrating over the killings of Black men and women at the hands of law enforcement. The officers’ unjustified attacks on protesters’ First and Fourth Amendment rights caused both physical and emotional injuries. Denver police also violated their own internal use of force policies when they recklessly fired dangerous projectiles indiscriminately into crowds, with little regard for safety, life, or the law. In doing so, the police not only failed to make the city safer but further widened the chasm of distrust between community and police.
“The City’s actions, while unconstitutional in any context, are even more pernicious here because the use of this dangerously excessive force specifically targeted peaceful demonstrators who assembled to protest police brutality, particularly law enforcement violence that disproportionality targets Black and Brown people,” said ACLU of Colorado Legal Director Mark Silverstein. “The police had no legitimate basis to assault peaceful protesters. 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.”
Arnold & Porter partner Timothy Macdonald, who heads the firm’s Denver office, explained that “this lawsuit demands that the City and its police department stop using indiscriminate and unlawful force against peaceful protesters exercising their First Amendment rights to assemble, speak, and petition their government for a redress of grievances. The actions of the Denver police were outrageous, particularly in attacking the peaceful protesters seeking to affirm the principle that Black Lives Matter.”
The death of George Floyd, a 46-year-old Black man who was killed by white Minneapolis police officers, ignited a wave of protests across the country, including in Colorado. During the first several days of protests, Denver law enforcement officers, assisted by the Colorado State Patrol and almost a dozen additional law enforcement agencies, attacked peaceful demonstrators with tear gas, pepper ball guns, rubber and foam bullets and flash bang grenades, without provocation, often causing serious physical injuries. Even as protesters knelt and chanted, “Hands up, don’t shoot,” police released tear gas and pepper bullets. While the police refer to their weapons as “less-lethal,” a 2017 study found that 3% of people hit by projectiles worldwide died and 15% of those studied were permanently injured.
In addition to BLM 5280, ACLU clients include Dr. Apryl Alexander, a clinical and forensic psychologist and professor at the University of Denver, and a leader of BLM 5280. During the first day of protest on May 28, Dr. Alexander witnessed police officers launching tear gas into protesters without warning. A few hours later, she found herself trapped between two clouds of gas, coughing, eyes and throat burning and disoriented. A day and a half later her face continued to burn. The police attack forced her to leave the demonstration, cutting short her ability to exercise her First Amendment rights.
“Coloradans civilly protested to mourn the loss of Breonna Taylor, George Floyd, Tony McDade, Elijah McClain, De’Von Bailey and many others to police brutality — only to be met with excessive force in the form of tear gas, pepper balls, and rubber bullets,” Dr. Alexander said. “In both circumstances, we are seeking accountability for these forms of aggressive and violent tactics. The indiscriminate carelessness at which these chemical and physical weapons were deployed toward protesters, journalists and medical professionals should never happen again.”
The lawsuit seeks to hold Denver law enforcement accountable for its actions as well as the actions of the additional law enforcement agencies who assisted Denver police. The complaint seeks an order banning Denver law enforcement from deploying tear gas and so-called “less lethal” weapons on peaceful protesters. The lawsuit also seeks compensatory damages for violations of constitutional rights on behalf of BLM 5280 and individual plaintiffs, including Dr. Alexander and:
- Elisabeth Epps: gassed, shot and bruised multiple times with projectiles including one that hit her face, breaking the plastic medical-grade respirator mask she was wearing and wounding her face.
- Ashlee Wedgeworth: gassed, suffered pain and difficulty breathing, as well as burning in her eyes, nose, and face hours after being attacked. She remains fearful of being gassed or hit by projectiles if she exercises her right to protest in the future.
- Amanda Blasingame and Phillip Rothlein: had SWAT officers shoot pepper ball bullets directly at their home while they were sitting on the front steps. Pepper ball bullets hit the front door and even entered the apartment building. An officer also came up to their face and threatened to pepper spray them, staring directly at Ms. Rothlein, the only Black person in the front yard, as he made the threat. Ms. Rothlein, who is Black and transgender, felt targeted and has become sensitive to loud noises and sirens.
- Zach Packard: hit in the head with a projectile and immediately knocked unconscious. Mr. Packard suffered a fractured skull and jaw, two fractured discs, and bleeding in his brain. Mr. Packard remained at the hospital for about one week. He has been prescribed anti-seizure medication, muscle relaxers, and oxycodone. Mr. Packard currently must wear a neck brace and is in a significant amount of pain.
- Hollis Lyman: was gassed, shot by a pepper ball that bruised her arm and suffered temporary hearing loss from grenades. Since her experiences protesting, Ms. Lyman has had difficulty sleeping and has remained anxious.
- Cidney Fisk: gassed and disoriented, Ms. Fisk was shaking and sobbing when she returned home and had to use her nebulizer. After her experiences at the protests, Ms. Fisk was unable to get out of bed for two days. She’s suffered nightmares since the protests and remains fearful of the police.
- Stanford Smith: encouraged other protesters to remain peaceful yet was sprayed directly in the face with pepper spray by one officer without warning. Mr. Smith feared for his life, could not see and felt as though his face was on fire. His face remained red for several days and his skin eventually peeled off.
The lawsuit was filed in Federal District Court in Denver by the ACLU of Colorado legal team of Mark Silverstein, Sara Neel and Arielle Herzberg and ACLU Cooperating Attorneys Timothy R. Macdonald, Matthew J. Douglas, Ed Aro, R. Reeves Anderson, Colin M. O’Brien, Kathleen K. Custer, and Anya A. Havriliak of Arnold & Porter Kaye Scholer, LLP.
The ACLU of Colorado is the state’s oldest civil rights organization, protecting and defending the civil rights of all Coloradans through litigation, education and advocacy.