In an announcement today, the ACLU of Colorado praised the Colorado Department of Corrections (CDOC) for adopting a new Administrative Regulation—drafted after months of collaborative negotiation with ACLU attorneys—that puts a stop to a practice the ACLU had criticized as unconstitutional corporal punishment. The newly-revised regulation prohibits CDOC officials from chaining and shackling compliant prisoners for extended periods of time when those prisoners are safely locked alone inside maximum-security prison cells.

“Immobilizing chains and shackles are justified only when prison officials determine that an agitated prisoner is out of control and poses a physical threat to himself or others,” said Mark Silverstein, ACLU Legal Director. “These types of restraints, which are uncomfortable at best and often painful, should be applied only as long as necessary to bring the prisoner under control. When prisoners who no longer pose any threat of harm are chained and shackled for extended periods, the restraints are no longer justified—they serve only to impose physical discomfort and pain as punishment for the out-of-control episode that has already passed. Imposing pain as a punishment is corporal punishment, which violates the Eighth Amendment.”

Silverstein noted the two most significant policy changes that CDOC agreed to include in its revised administrative regulation:

• Compliant prisoners who are locked inside a cell cannot be confined in immobilizing chains and shackles for more than two hours

.
• If prisoners who are locked within a cell are confined in immobilizing physical restraints for longer than two hours, a shift commander must regularly document the facts he believes justify the continued restraint.

“This policy change, and the training that will follow, curbs a practice that the ACLU criticized as unjustified corporal punishment, while also ensuring that CDOC’s security needs are fully met,” said C. Ray Drew, ACLU Executive Director. “But there is something else at work here. Because of ongoing collaborative work and negotiation between the ACLU and CDOC, this matter was resolved without litigation, at minimal cost to CDOC and the community as a whole. We look forward to continuing to work with CDOC to solve problems collaboratively.”

The practice CDOC agreed to modify came to the ACLU’s attention during its investigation of administrative segregation (long-term solitary confinement) earlier this year. In a letter to ACLU, a prisoner complained that he had been painfully restrained for eighteen hours after he was caught violating prison rules by “fishing”—casting a string outside his cell to retrieve a magazine being shared by another prisoner in solitary. When he declined to surrender his fishing line, prison guards in SWAT gear initiated a “cell extraction.”

They pumped pepper spray into the cell, removed the prisoner, stripped him to his underwear, and applied leg shackles, handcuffs, hip cuffs, and a tight belly chain. An additional crotch chain attached to the front of the belly chain, went through his crotch, and was attached to the belly chain behind his back. He was then placed into a bare “observation cell,” where he remained in restraints for eighteen hours.

“During those eighteen hours, the prisoner could not feed himself without assistance, could not defecate without assistance, and could not sit or lay down without extreme pain and discomfort,” said ACLU Staff Attorney Rebecca T. Wallace. “The in –cell restraints were unnecessary. While locked inside the maximum security prison cell, the prisoner complied fully with every order from the guards. He clearly posed no threat to himself or others. Under these circumstances, the painful, severely-confining restraints could have served only one purpose: to punish him physically for his past misconduct, in violation of the Constitution. ”

The ACLU’s investigation determined that this prisoner’s ordeal was not an isolated episode. CDOC documents confirmed reports from more than a dozen additional prisoners that they were removed from their cells and subjected to similar restraints, in individual observation cells, for more than twelve hours.

“Correctional professionals have long agreed that physical restraints should not be imposed as punishment,” Silverstein added. “Even when restraints may be justified at first, they can become punishment when the initial justification has passed. CDOC officials should be commended for being willing to hear the ACLU’s concerns and change a troubling practice.”

Visit https://aclu-co.org/case/ending-the-use-of-punitive-restraints-in-colora...

The ACLU of Colorado announced today a tentative agreement to resolve a lawsuit its attorneys filed against Denver police officer Timothy Scudder earlier this year. The agreement, which must still be approved by the Denver City Council, calls for additional training, changes in the police department’s Operations Manual, and compensation for the ACLU’s client, Valerie Rodriguez.

“We are very pleased that the Denver Police Department was willing to make changes in policy and training in order to resolve this lawsuit,” said Elisa Moran, who litigated the case as an ACLU Cooperating Attorney. “ The changes will reduce the risk of similar incidents occurring in the future.”

The lawsuit alleged that Officer Scudder engaged in “recklessly sloppy” police work that caused Ms. Rodriguez—who had no criminal record—to be falsely arrested and jailed for an incident with which she had no connection whatsoever.

Ms. Rodriguez was jailed on the basis of a bogus warrant that Scudder obtained nine months earlier, shortly after he took a report of a minor assault at a gas station in Denver’s Five Points neighborhood. A young woman told Scudder that she had been struck by an acquaintance who lived in the neighborhood and that the assailant’s name was Valerie Rodriguez.

According to the lawsuit, Officer Scudder searched a noncriminal database for the name “Valerie Rodriguez” and found information pertaining to the ACLU’s client, who did not know the victim and had never lived anywhere near Five Points. Without performing any additional investigation that would have immediately made clear that he had the wrong person, Scudder then wrote up a criminal complaint and warrant application with the name, date of birth, social security number, and driver’s license number of the ACLU’s client.

“Our client was handcuffed, locked in a scary jail cell, and lost a job opportunity simply because she has the same name as the person suspected of the assault,” said Mark Silverstein, ACLU Legal Director. “The Denver Police Department has now agreed to change its operations manual to make it crystal clear that finding a name in a computer database that is the same as the suspect’s name does not, by itself, provide grounds to obtain a warrant for the person whose information appears in the database. Police officials deserve credit for recognizing a problem and being willing to make changes to address it.”

If the Denver City Council approves the settlement, the City will also make a payment to compensate Ms. Rodriguez and cover her attorney’s fees.

more on this case

WASHINGTON - The American Civil Liberties Union national office today filed a federal lawsuit against a former high-level White House staffer for enacting a policy that unlawfully excluded individuals perceived to be critical of the administration from public events where President Bush was present. The policy is laid out in an October 2002 "Presidential Advance Manual" obtained by the ACLU.

"The White House has gone too far in its attempt to make dissent invisible," said Chris Hansen, a senior ACLU attorney who is lead counsel in this case. "When taxpayers foot the bill for a public event, the president does not have the right to use a partisan litmus test to stack the audience with his political supporters."

The ACLU filed today's lawsuit after obtaining a heavily redacted version of the Presidential Advance Manual from the Justice Department. This manual is the Bush administration's guide for planning presidential events around the country, and it repeatedly instructs organizers about "the best method for preventing demonstrators," "deterring potential protestors from attending events," "designat[ing] a protest area . . . preferably not in view of the event site or motorcade route," and the like.

The ACLU said it is clear from the manual that the aim of the White House policy is to keep people who are critical of the president away from him and from the news media. According to the manual, "if it is determined that the media will not see or hear" demonstrators, then event staff can ignore them. The manual's guidelines are designed for use at all presidential events, not just fundraisers or political rallies. However, the ACLU noted that there are stricter constitutional guidelines for taxpayer-funded events than for privately- or politically-funded events.

"When the president attends a public event, the First Amendment does not allow him to speak or listen only to those who agree with him," said Arthur Spitzer, Legal Director of the ACLU of the National Capital Area and co-counsel in the lawsuit. "Public places cannot be 'cleansed' of all dissent just to make the president look popular on television."

The ACLU is suing Gregory Jenkins, former Director of the White House Office of Presidential Advance and a Deputy Assistant to President Bush, for setting the policy in the manual. Jenkins' policies have led to the removal and, in some cases, arrest of innocent people from taxpayer-funded events. The lawsuit names as plaintiffs Jeff and Nicole Rank, who were arrested at a Fourth of July presidential appearance at the West Virginia State Capitol because they were wearing t-shirts critical of the president, and Alex Young and Leslie Weise, Denver residents who were thrown out of a town hall meeting with President Bush because they had an anti-war bumper sticker on their car.

The Ranks had tickets to attend the July 4, 2004 event, but drew attention when they removed their outer garments to display t-shirts bearing the international "no" symbol (a circle with a diagonal line across it) superimposed over the word "Bush." Although other people in the audience were allowed to wear pro-Bush paraphernalia, White House event staff demanded that the Ranks remove or cover their t-shirts. When the Ranks refused, the White House staffers instructed local police to arrest the couple, causing them to be removed from the Capitol grounds in handcuffs, jailed and charged with trespassing. Ms. Rank was also temporarily suspended from her work with the Federal Emergency Management Agency. City officials later apologized for their part in the arrest when they realized they'd been used as political operatives by the White House.

Similarly, Weise and Young had tickets to attend the March 21, 2005 Denver town hall on Social Security, but they were singled out after a staffer was informed that Weise had a bumper sticker on her car that read, "No More Blood for Oil." Weise was stopped upon entering the event and warned that she had been "ID'd," but was allowed to enter. However, shortly after reaching their seats, Weise and Young were forcibly removed from the event by a staffer who later admitted that he was acting under orders from White House officials.

"Freedom of speech is the cornerstone of the American way of life and public forums are the place where this matters most. Peaceful expression, whatever the format, is vital to all of us. We believe this case is important for protecting the rights of all Americans," Weise and Young said in a joint statement.

Mr. Rank added, "The free exchange of ideas is essential to democracy, and when government suppresses one side of that exchange it puts democracy in peril."

The ACLU lawsuit also cites other occasions throughout the country in which individuals were excluded from presidential events because of their political views. For example, in LaCrosse, Wisconsin, ticket holders in line to hear the president speak had to unbutton their shirts before they could get inside. One individual was wearing a t-shirt critical of the president, and was ejected by security officials. In Fargo, North Dakota, several dozen individuals were placed on a "do not admit list" of those forbidden to attend a presidential event; most of the individuals on the list belonged to a liberal organization, and some had written letters to the editor opposing the president's policies. And in Tucson, Arizona, a student was barred from a presidential forum on Social Security because he was wearing a Young Democrats t-shirt.

Today's lawsuit was filed in U.S. District Court for the District of Columbia.

The ACLU previously filed lawsuits in West Virginia and Colorado on behalf of the Ranks and Weise and Young, respectively. Both cases are pending in federal district court. Another ACLU lawsuit charging mistreatment of anti-Bush demonstrators at a presidential appearance is pending in federal district court in Oregon (Moss v. United States Secret Service).

The Denver case is Weise v. Jenkins and is in U.S. District Court for the District of Colorado. In addition to Hansen and Silverstein, attorneys in the case are Catherine Crump of the national ACLU and Martha Tierney and Jerremy Ramp of Denver-based law firm Kelly Haglund Garnsey & Kahn, who are acting as ACLU of Colorado cooperating attorneys.

Weise and Young have created their own web site with background information on the incident at: www.denverthree.org.