In a lawsuit filed in federal court in Denver today, ACLU lawyers alleged that a Colorado Springs police officer used his heavy police-issued metal flashlight to administer a vicious beating to the ACLU’s client, Delvikio Faulkner, a young African American who was riding with two other young men in a car that was initially stopped for a minor traffic violation.

According to the suit, Officer D.K. Hardy delivered six blows from the flashlight, including three to Mr. Faulkner’s head. The blows continued long after it was clear that Mr. Faulkner was not resisting. Faulkner required hospital treatment, including eight staples to close the head wounds.

“A blow to the head from a police flashlight poses a substantial risk of serious bodily injury and even death,” said Mark Silverstein, ACLU Legal Director. “It is the equivalent of deadly force. Police officers are not justified in clubbing a suspect in the head with a flashlight unless they would also be justified in pulling out a gun and shooting, which certainly was not the case here.”

“According to police reports, Mr. Faulkner was suspected of nothing more than failing to provide his correct name when asked to identify himself,” said Reid Neureiter, who, along with his colleagues, Elizabeth Harris and Kathryn Reilly of the Jacobs Chase firm in Denver, is litigating the case as an ACLU Cooperating Attorney. “He was not armed and Officer Hardy’s partner acknowledged that Mr. Faulkner posed no physical threat whatsoever. Even if Mr. Faulkner initially pulled away when he was placed under arrest, as Officer Hardy believed, the officer responded with grossly excessive and disproportionate force, and he continued beating Mr. Faulkner even after it was clear that he was compliant.”

The incident, which took place exactly two years ago, prompted the Colorado Springs Police Department to conduct an internal investigation into Hardy’s action. When the ACLU asked the City for documents created in the course of that investigation, the City refused. Colorado Springs then sued the ACLU and asked the state district court to declare that the police department’s internal affairs file was not subject to disclosure under the Colorado open records laws. The ACLU won that suit earlier this year, and it obtained the full investigative file on the beating of Mr. Faulkner.

“The investigative file shows that Hardy’s partner, Jackson Andrews, witnessed the incident and believed that Hardy’s beating of Faulkner was unnecessary, uncalled-for, and excessive,” Silverstein said. Although the investigators recommended that Hardy be disciplined, Hardy appealed. Before the appeal could be decided, however, Hardy was fired for his role in a different incident.

“The Colorado Springs Police Department deserves credit for recognizing that Officer Hardy was out of line,” Silverstein said. “Although Hardy is no longer working as a Colorado Springs police officer, our client has not received any compensation for his serious injuries or for the egregious violation of his constitutional rights. This lawsuit seeks that compensation.”

According to Silverstein, the internal affairs file also revealed that Officer Hardy’s unit was assigned that night to engage in deliberately aggressive and provocative policing tactics. “The officers were told to stop as many cars as they could and to ‘toss’ the cars, meaning they should conduct searches and rummage through the passengers’ belongings,” Silverstein said. “This assignment is a recipe for harassment, pretext stops, and racial profiling. It is unfortunate that the Colorado Springs internal investigation did not criticize this instruction or even find it noteworthy.”

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In an open letter to the University of Colorado Board of Regents released today, the ACLU and the ACLU of Colorado urged the Board to reject the recommendation of CU President Hank Brown to terminate Professor Ward Churchill. President Brown’s decision ran counter to the majority of the Appeals Panel of the Privilege and Tenure Committee, which concluded that dismissal was not warranted.

National ACLU Executive Director Anthony Romero (of the ACLU) and Cathryn Hazouri, Executive Director of the ACLU of Colorado noted the highly charged political nature of the public uproar over Professor Churchill’s essay about the terrorist attacks on September 11, 2001. They stated that the “poisoned atmosphere in which this investigation was launched…[has] irretrievably tainted the process. The investigation of Professor Churchill’s scholarship cannot be separated from the indefensible lynch-mob furor that generated the initial calls for his termination.”

“The cure for unpopular speech is public debate,” says Hazouri, “not silencing a voice you don’t want to hear. Professor Churchill’s critics didn’t call for an investigation; they called for him to be fired. When those critics include the Governor and politicians with influence over the University budget, it’s impossible to conduct an impartial investigation.”

The letter warns that firing Professor Churchill over the results of an investigation triggered by his unpopular views which are clearly protected by the First Amendment creates a dangerous precedent when it comes to repressing academic freedom and chilling public debate.

--TEXT OF THE LETTER--

July 11, 2007

To the members of the University of Colorado Board of Regents:

Later this month, the Board of Regents will meet to consider a recommendation, made by University of Colorado President Hank Brown, that Professor Ward Churchill’s employment be terminated.

We write on behalf of the American Civil Liberties Union—an organization long dedicated to preserving the principles of the First Amendment and academic freedom—to urge you to reject this recommendation.

The investigation of Professor Churchill’s scholarship is the result of widespread publicity in early 2005 about certain unpopular views Professor Churchill expressed several years earlier in an essay about the terrorist attacks of September 11, 2001. Prominent public officials, including members of the legislature and the then-Governor of Colorado, quickly called for Professor Churchill’s termination. The Board of Regents called an emergency meeting, at which the Chancellor announced his plan for an immediate investigation of all of Professor Churchill’s writing and speeches to determine whether they provided any grounds for dismissal.

It is undisputed, however, that Professor Churchill’s views are protected by the First Amendment and cannot serve as a legal basis for any adverse employment action. Nevertheless, the University soon launched the investigation of Professor Churchill’s scholarship in an effort to find more defensible grounds for sanctioning him.

The investigative committee found six charges of research misconduct to be sustained. The Appeals Panel of the Privilege and Tenure Committee concluded that only three of those were valid. Only one member of the five-member investigative committee believed that dismissal was an appropriate sanction, and a majority of the appeals panel concluded that termination was not warranted. Despite these conclusions, the University President has recommended termination, thus urging the same result as the elected officials who publicly called for Professor Churchill’s termination in 2005. The current Governor of Colorado has now added his voice to those clamoring for Professor Churchill to be fired.

We believe the poisoned atmosphere in which this investigation was launched, and the circumstances under which it was initiated, have irretrievably tainted the process. The investigation of Professor Churchill’s scholarship cannot be separated from the indefensible lynch-mob furor that generated the initial calls for his termination. Firing Professor Churchill in these circumstances does not send a message about academic rigor and standards of professional integrity. On the contrary, it sends a warning to the academic community that politically unpopular dissenters speak out at their peril.

Accepting President Brown’s recommendation in these circumstances poses too great a risk that other members of the academic community will respond by choosing to silence themselves or temper the public expression of their views out of fear that they, too, will be subjected to detailed fishing expeditions and censure. Such a result not only undermines academic freedom, it also diminishes the range and breadth of public debate that is vital to a flourishing democracy. We urge you to reject President Brown’s recommendation.

Sincerely,

Anthony Romero
Cathryn Hazouri
Executive Director Executive Director
ACLU ACLU of Colorado 

more on Ward Churchill's case

For the third year in a row, the ACLU of Colorado's nominee for the national ACLU Youth Activist Scholarship has been selected to receive the $4,000 award. Established in 2000, the scholarship honors graduating seniors who have demonstrated a strong commitment to civil liberties and civil rights through some form of student activism.

This year we nominated Ryan Brown, a senior at the Denver School of the Arts, for her documentary on the life of former Colorado Governor Ralph Carr. Brown was researching the history of World War II when she came upon the story of Ralph Carr, one of the only western leaders to publicly speak against the internment of Japanese Americans, a stand that cost him his political career. Brown conducted interviews with men and women who had been forcefully resettled in internment camps.

Her work was so compelling it led the ACLU of Colorado to create a new annual award of our own: the Ralph L. Carr award for devotion to a significant contemporary issue. We wish her the best in her collegiate years and look forward to following her future activist projects.

Watch Ryan's award-winning documentary, "A Small Voice But a Strong Voice," about former Colorado governor Ralph L. Carr's stand against internment of Japanese-Americans during World War II. The film also won several awards including first place in the 2006 National History Day, History Channel Award of Excellence in Documentary Film and the Merit Award in video/film production, NFAA ARTS Recognition and Talent Search 2006-2007. The film was a finalist for Best Documentary in the 2006 Denver Academy Film Festival for Youth.

Read Ryan's personal essay about her experience researching and producing the documentary.