DENVER – In a lawsuit filed this morning against Colorado Springs police officers and the City of Colorado Springs, the ACLU of Colorado charged that two young African-American men were victims of the police department’s “custom and practice” of engaging in racially-biased policing and carrying out groundless, racially-motivated stops and searches.

In 2015, the lawsuit asserts, Ryan and Benjamin Brown were pulled over because of their race, handcuffed, searched, and detained at gun point and taser point, all without legal justification.  Despite a video recording that clearly showed the officers drawing their weapons without cause, refusing to identify the reason for the stop, and using unnecessary force, an internal affairs investigation concluded that the officers’ actions were “justified, legal, and proper.”

“This is a clear-cut case of racial profiling,” said Mark Silverstein, ACLU Legal Director.  “Ryan and Benjamin Brown were stopped because of the color of their skin.   There is no place for such racially-biased policing in a country dedicated to equal justice under the law.”

According to the ACLU lawsuit, “Colorado Springs has a custom, policy, and/or practice of doing the following to minority individuals: (1) engaging in racial profiling at the initial stop of individuals; (2) searching them without reasonable suspicion that they are armed or dangerous; and (3) unnecessarily detaining them for extended periods of time in an effort to build some basis for arrest.”

African-American males are stopped by the Colorado Springs Police Department as much as 161% more often than would be expected based on their proportion of the population, according to the complaint.

Ryan and Benjamin Brown were driving just a block away from their home in a predominantly white neighborhood when they were pulled over by Colorado Springs police.  To justify the stop, an officer later claimed that the men had been observed earlier in the day driving slowly through “a high crime area,” terminology that the complaint asserts is law enforcement code for “driving while black.”

A taser-wielding officer ordered Benjamin Brown, the driver, out of the car.  He was handcuffed, searched without cause, and detained in the back of a police vehicle, even though he had been cooperative, no weapons or contraband were found, and there was no evidence to suggest that he had been involved in a crime.

Ryan Brown then began recording the scene on his phone. His repeated requests for the officers to identify the reason for the stop were ignored.  Officers worked together to force him out of the car, push him to the ground, face down in the snow, search him, and cuff him, all the while at gunpoint.

While dragging Ryan Brown out of the car, officers on the video are heard saying that he is not under arrest and that they were just checking him for weapons.  No weapons were found.  Officers grabbed his phone and threw it in the snow.

Brown filed a complaint with the department following the incident.  He received a brief boilerplate letter in June informing him that police had conducted a “complete and thorough” investigation into the incident and concluded that the officers’ conduct was “justified, legal, and proper.”

“That the Colorado Springs Police Department saw nothing wrong with the conduct of its officers in the stop of Ryan and Benjamin Brown speaks volumes about the department’s culture and mentality when it comes to the constitutionally-protected rights of Black men,” said ACLU cooperating attorney Darold W. Killmer of Killmer, Lane & Newman LLP.

The ACLU lawsuit seeks compensatory and punitive damages.  The case is being litigated by Killmer and Andy McNulty of Killmer, Lane & Newman, as well as Silverstein and ACLU staff attorneys Sara Neel and Rebecca T. Wallace.

more on this case

Did you know that the Colorado Constitution still allows legal slavery, and that Coloradans can do something about it this fall?
Colorado’s language parallels an exception written into the 13th Amendment to the U.S. Constitution, banning slavery and involuntary servitude “except as a punishment for crime whereof the party shall have been duly convicted.”
When a group of faith and community leaders began a campaign last spring to eliminate the exception allowing slavery, many legislators were surprised to learn that, even though Colorado was never a slave state, we still have language allowing slavery — as a punishment for crime.
That archaic federal exception, part of the difficult battle to get the 13th Amendment passed, has largely been ignored. The 13th Amendment has normally been treated and thought of as a total ban on legal slavery. Some states do have a total ban on slavery with no exception, some have no language related to the 13th Amendment at all, and about half the states, including Colorado, have similar language leaving an exception to the ban on slavery.
As Coloradans, we can’t change the federal language, but we can be one of the states that declares it will not allow slavery in any situation by voting Yes on Amendment T. The Colorado legislature voted unanimously, including every Republican and every Democrat in both houses, to place Amendment T on the ballot in November.
A Yes on T vote will remove the exception language in the Colorado Constitution to our state ban on slavery and involuntary servitude, as the 13th Amendment itself should have done from the beginning.
It is fair to ask what Amendment T will accomplish, although it is a statement worth making even if it has no practical effect. States have a variety of language around slavery and involuntary servitude, and all states have similar criminal justice systems with work programs and community service programs, so there is no reason to believe Amendment T would affect those programs. Courts have defined slavery and involuntary servitude narrowly enough that typical work programs or community service would not fall under those definitions.
Technically, however, it would not be unconstitutional for the State of Colorado to sell people into slavery or involuntary servitude as long as it was deemed a punishment for crime—and that would be simply wrong. Even if that has never happened and even if we believe it never would, it shouldn’t even be possible under our Constitution. If any practices of a state actually met the definitions of slavery or involuntary servitude, they probably shouldn’t be allowed in any case. Whatever our criminal justice system may be, it shouldn’t be slavery.
So Amendment T is a genuine protection for the future, and in a time of widespread racial tensions, it is a strong and positive signal of good will today. Words matter. We weren’t around to take part in the abolition of slavery after the Civil War, but Amendment T gives us an opportunity to finish that abolition today, at least for Colorado. Slavery in any circumstance is immoral, and it is not a Colorado value.
The ACLU of Colorado urges you to follow the example of the entire Colorado legislature and vote Yes on Amendment T.

Denver’s Spy Files Past Raises Serious Concerns about “Geofeedia” Acquisition

DENVER – Citing concerns that the Denver Police Department may once again be monitoring the free speech activities of individuals and groups that are not suspected of criminal activity, a practice Denver publicly agreed to stop in 2003, the ACLU of Colorado filed a records request this morning seeking information related to the Department’s acquisition and use of Geofeedia and other social media surveillance software.

“In 2002, the ACLU revealed that the Denver Police intelligence unit was routinely monitoring the First Amendment activities of peaceful protesters and maintaining ‘Spy Files’ on the expressive activities of law-abiding advocacy organizations,” said Mark Silverstein, ACLU of Colorado Legal Director.  “After more than a year of litigation, Denver agreed to new policies and pledged to stop collecting information on how Denver residents exercise their First Amendment rights.”

“The Denver police recently purchased access to Geofeedia, which is marketed to police as a powerful tool for monitoring and collecting information on free speech activities.  We have serious questions about what the intelligence unit is doing with its new spying tool.  Have the police resumed the ‘Spy Files’ practices that they publicly agreed to abandon in 2003?”

Last month, the Daily Dot reported that the Denver Police Department used $30,000 in seized funds to purchase Geofeedia, surveillance software that allows officers to conduct location-based searches across at least a dozen social media platforms simultaneously.  In a promotional video, the surveillance software is marketed to law enforcement as a means to target public gatherings, using the example of a “Peace in Israel” rally in Chicago.

Lt. William Mitchell of the DPD Intelligence Bureau described Geofeedia in a funding request as an “intelligence and investigative platform” and listed the Martin Luther King Marade and the 420 Rally as examples of gatherings that police could monitor using the software.

An investigation by ACLU of Northern California into the Fresno Police Department’s use of similar software found that officers frequently searched for and monitored hashtags such as #BlackLivesMatter, #DontShoot, #ImUnarmed, #PoliceBrutality, and #ItsTimeforChange.  The Associated Press recently reported on hundreds of cases where officers misused intelligence tools and databases for personal reasons that were not connected to daily police work.

In 2003, the ACLU of Colorado filed a class action challenging DPD's practice of spying on peaceful protesters, maintaining "Spy Files" on activists who had done nothing more than attend rallies, meetings, and conferences, and disseminating information from the files to third parties.

As part of a settlement agreement with the ACLU, the City of Denver adopted a Criminal Intelligence Information policy that states, “The Department shall not collect or maintain information about the political, religious, social views, associations or activities of any individual or any group, association, corporation, business, partnership, or other organization, unless such information directly relates to criminal conduct or activity and there is a reasonable suspicion that the subject of the information is or may be involved in that criminal conduct or activity.”

The ACLU records request, which was delivered by email this morning, seeks the department’s current intelligence policy as well as any additional policies and training materials regarding social media surveillance.  The ACLU also requested a full list of search terms used by officers accessing Geofeedia.

"If the Denver Police Department has a policy to protect the public from a return to suspicion-less spying on free speech activities and from officers conducting surveillance for their own personal gain, then we invite the Department to produce it,” said Silverstein.  “Otherwise, the Department should suspend use of Geofeedia and any other social media surveillance immediately."

Geofeedia was purchased by the Denver Police Department using funds seized from criminal suspects through civil asset forfeiture. The purchase was not disclosed to the public before it was made, and it was not subjected to any formal approval process by the Denver City Council.

Resources:
Police Use of Social Media Surveillance Software Is Escalating, and Activists Are in the Digital Crosshairs: https://www.aclu.org/blog/free-future/police-use-social-media-surveillance-software-escalating-and-activists-are-digital
Full Chronology of the Spy Files Controversy: https://aclu-co.org/spyfiles/chronology/
ACLU Records Request: https://aclu-co.org/sites/default/files/wp-content/uploads/2016/10/2016-10-06-Dulacki-Silverstein.pdf
Denver Criminal Intelligence Information Policy: /sites/default/files/wp-content/uploads/2015/08/SettleAgreementExh1.pdf