Today the ACLU of Colorado announced a settlement with the City of Denver over the arrest and imprisonment of a student who was handcuffed, arrested and forced to spend a night in jail simply for asking for a Denver police officer’s business card.

The ACLU of Colorado represented Evan Herzoff, a University of Colorado at Denver student and local CopWatch volunteer. CopWatch is a national organization that monitors police and community interactions by observing and videotaping police activity, educates the public about police misconduct, and advocates for more accountable law enforcement practices.

On the night of April 8, 2006, Mr. Herzoff was walking home when he encountered police arresting an individual in the parking lot near 14th and Pearl. Mr. Herzoff began videotaping the arrest, and shortly thereafter was approached by two Denver Police Department officers. Officer Morgan demanded Mr. Herzoff’s identification. After examining Mr. Herzoff’s identification, Morgan told Mr. Herzoff that he was free to go. When Mr. Herzoff subsequently asked for Morgan’s business card, however, Morgan quickly changed his mind and told Mr. Herzoff, “Let’s take you to jail instead.” A trespass charge filed against Mr. Herzoff at the time of the arrest was later dismissed.

“The trespass charge against Mr. Herzoff was never valid,” said Taylor Pendergrass, ACLU of Colorado Staff Attorney who represented Herzoff. “Even if Mr. Herzoff had been briefly standing on privately owned property, however, his arrest and imprisonment would have still been unconstitutional. Officer Morgan had already determined Mr. Herzoff was free to go. The arrest was made only because Mr. Herzoff requested Officer Morgan’s business card. An arrest--even a technically valid one--made solely in retaliation for an exercise of constitutionally protected speech violates the First Amendment.”

The settlement agreement, in which the City of Denver denies any wrongdoing, provides for monetary compensation, pending city council approval, to Herzoff and obligates DPD to issue a training bulletin negotiated with the ACLU of Colorado to all officers instructing them against such wrongful arrests. The training bulletin states in part that, “[N]o retaliatory action shall be taken against any member of the community based on [a] request for identification. Any exercise of discretion by an officer with regard to a decision to arrest, cite, detain, search or question and individual must be made without regard to whether that individual has requested the identity or business card of an officer.”

“The right of citizens to ask their police officers for their name and badge number is not only protected by the First Amendment,” stated Pendergrass, “it is also one component of rebuilding the community’s trust in the Denver Police Department. Officer Morgan’s decision to summarily punish Mr. Herzoff by arresting him and forcing him to spend a night in jail simply for asking for a business card demonstrates a disregard for Mr. Herzoff’s constitutional rights and has a chilling effect on all Denver residents. We commend the City of Denver for its willingness to reach a settlement in this case without the need for a lawsuit. We are hopeful that the training bulletin and public attention to this issue will send a clear signal that it is not only unconstitutional, but counterproductive, for DPD officers to retaliate against Denver citizens who simply want to know the identity of the officer with whom they are interacting.”

View Evan Herzoff's encounter with Denver Police 

more on this case

In a letter sent today, the ACLU of Colorado urged the Roaring Fork School Board to adopt a policy prohibiting the current practice of School Resource Officers (SROs) collaborating with Immigrations and Customs Enforcement (ICE).

SROs are employed by local police departments to work in schools to promote school safety and build stronger relationships between law enforcement, students and the local community. According to press accounts, one or more SROs working within the Roaring Fork School District have been directly collaborating with ICE. This collaboration threatens the sense of safety and security that students – whether documented or undocumented – have a right to feel in public school.

“All children, documented or otherwise, have a right to attend public school in this country," said ACLU Staff Attorney Rebecca T. Wallace. "When School Resource Officers participate in home raids with ICE that lead to the deportation of mothers, fathers, brothers, sisters, and friends of students, undocumented students are understandably discouraged from attending school. These students may reasonably fear that the SRO will use his position to gather information that will lead to deportation of the students or their relatives. Yet, one or more SROs within the Roaring Fork School District have participated in exactly these kinds of raids that stoke these reasonable fears. This practice must end.”

According to the ACLU’s letter, federal law prohibits schools from erecting barriers that discourage undocumented children from attending public school. In Plyler v. Doe, decided in 1982, the United States Supreme Court held that undocumented children in this country have the same right to a public education as citizens and other legal residents. The Court reasoned that denying an education to undocumented children who may be in this country for the rest of their lives “den[ies] them the ability to live within the structure of our civic institutions, and foreclose[s] any realistic possibility they will contribute to even the smallest way to the progress of our nation.”

A Few Questions for Scott Gessler

Statement of C. Ray Drew
Executive Director
ACLU of Colorado

As Colorado’s Secretary of State, it is Scott Gessler’s job to supervise and administer our state’s elections. This is no small task, as voting is the essence of democracy. That is why we find it puzzling that he has decided to sue the City of Denver for helping its eligible voters cast their ballots. Instead of ensuring that Coloradans can vote, our Secretary of State is taking the unprecedented step of spending public money to keep the public from voting.

Why? Gessler leaves us guessing.

His actions would make it harder for lawful voters to cast their ballot simply because they haven’t voted in the last year. Maybe they were out of the country and did not request an absentee ballot. Perhaps they were serving in the military or were ill or simply felt uninspired by the choices available to them on the ballot. There are many reasons that voters cannot or do not cast a vote.

But to go as far as to file a lawsuit to prevent them from receiving a ballot -- to make it HARDER to vote -- leaves us questioning the commitment of the Secretary of State to the mission of his own office – to ensure the integrity of elections. What is more integral to an election than ensuring that all lawfully eligible voters can exercise that right?

What are his motives here?

Gessler says he won’t attempt to invalidate the ballots of inactive overseas voters already mailed by Denver, so his lawsuit is not about uniformity in ensuring the right to vote. It’s also not about voter fraud since it has been proven that so very little of that exists. Who is willing to risk eighteen months in jail for the “reward” of improperly voting? Gessler’s action is also not about saving money because it costs many more taxpayer dollars to launch a legal challenge of Denver election procedures than it would to simply but a stamp on a ballot and mail it to a voter who might be “inactive” but is otherwise eligible to vote.

As a candidate Gessler claimed to have “repeatedly fought for fair and open elections.” That may be, but this lawsuit is anything but a fair fight. Denver believes that the opportunity to vote is worth the price of a stamp and our Secretary of State should honor that decision, not fight it. Our democracy is stronger when more citizens who participate in elections. Any attempt to keep Coloradans from voting is simply shameful.