The ACLU of Colorado announced today that it will provide free criminal defense services to Shane Boor, a 35-year-old Colorado man with no criminal record who faces criminal prosecution and a jail sentence for displaying his middle finger to an officer of the Colorado State Patrol.

UPDATE: After 24 hours of tremendous media coverage, on Friday, May 27, the Colorado State Patrol decided to ask Jefferson County prosecutors to drop the charge of harrassment against Shane Boor.

“Our client engaged in peaceful, silent symbolic expression that is protected by First Amendment,” said Mark Silverstein, ACLU Legal Director. “The protection of the Constitution is not limited to speech that is acceptable in polite society. The First Amendment also protects expression that may be disrespectful, coarse or even vulgar. It’s rude to flip off a cop, but it’s not a crime.”

In April, Mr. Boor was driving to a work site in Jefferson County when he saw a state trooper pull over a car. As he passed by, Mr. Boor extended his middle finger in the trooper’s direction, a gesture that quietly expressed Mr. Boor’s disapproval of what he regarded as unjustified harassment by members of the trooper’s profession.

Soon after Mr. Boor arrived at his work site, another trooper arrived and questioned Boor about the hand gesture. Boor then received a criminal summons ordering him to appear in Jefferson County Court to answer a criminal charge of “harassment.” The charge carries a possible penalty of six months in jail.

“We will urge the DA’s office to dismiss this unjustified criminal case and we are confident they will,” said Dan Recht, an ACLU Cooperating Attorney who formally entered his appearance in Jefferson County Court to defend Mr. Boor. “The police obviously need better training concerning our country’s time-honored constitutional right to free expression. Their training must teach them to shrug off insults and disrespectful comments from the public. In essence, they need to develop a thicker skin so that our constitutional rights prevail.”

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“Recklessly deficient” police training asserted as a contributing factor in wrongful shooting death."

Lawyers for the American Civil Liberties Union of Colorado filed suit today in federal district court against three Colorado State Patrol officers – and two training supervisors – in the wrongful death of an unarmed Grand Junction man who was shot at point-blank range and killed last summer when he refused to allow officers to enter his home without a warrant.

The ACLU’s suit was filed on behalf of Connie and Keith Kemp, the parents of Jason Alan Kemp, a 31-year-old Mesa State College graduate, who died at the scene after Trooper Ivan Lawyer shot him in the chest.

The lawsuit asserts that Lawyer and two additional troopers at the scene, Corporal Kirk Firko and Sergeant Chad Dunlap, are responsible for Jason’s wrongful death as well as the illegal police actions that led to it, including attempting to break down Jason’s door when he told them they needed to get a warrant.

“The state troopers were investigating a minor accident that resulted, at most, in minimal damage to a neighbor’s lawn,” said Mark Silverstein, ACLU Legal Director. “They suspected Jason was responsible for this minor accident and may have been driving under the influence of alcohol. But that provided no legal justification for proceeding without a warrant, drawing their guns, and attempting to kick down Jason’s front door. It certainly provided no justification for shooting him dead.”

“Jason was killed because he did what every American has the right to do. He insisted that police comply with the Fourth Amendment and obtain a warrant before entering a person’s home,” Silverstein continued.

The lawsuit also names as defendants additional employees of the State Patrol—Training Officer Ralph Turano and one or more yet-to-be-identified officers, currently designated as John Doe—whom the ACLU asserts were responsible for the constitutionally-deficient training of Lawyer, Firko, and Dunlap. An ACLU review of Colorado State Patrol training materials preceded the decision to include the Colorado State Patrol’s training supervisors as defendants.

“Two supervisory officers—a corporal and a sergeant—were present at the scene and supported or participated in this lawless action of forcefully breaking into a home without a warrant to investigate a minor DUI,” Silverstein continued. “Only recklessly deficient training could account for supervisors’ failure to stop the illegal warrantless entry before it resulted in the tragic escalation that unjustifiably took Jason’s life.”

A Mesa County Grand Jury indicted Lawyer and Firko in connection with the incident last fall. While declining to charge Lawyer with second degree murder or manslaughter, the grand jury did return indictments for criminally negligent homicide, second degree assault, criminal trespass and other charges. Firko faces charges of criminal trespass and criminal mischief. Dunlap was not charged with any crime.

“The criminal prosecution of Lawyer and Firko, even if successful, will not touch the supervisors and higher-ups at the Colorado State Patrol who share responsibility for Jason’s very avoidable death, nor will it bring to light the serious institutional failures of training and supervision that allowed this tragedy to occur” said Rebecca T. Wallace, ACLU Staff Attorney. “This lawsuit will hold accountable the highest-ranking supervisory officer on the scene, Sgt. Dunlap, as well as the State Patrol employees who should have educated the troopers fully on the Fourth Amendment’s warrant requirement, the limits of the exceptions, and the proper limits on use of deadly force.”

In addition to Silverstein and Wallace, the Kemps are represented by ACLU Cooperating Attorneys Paul G. Karlsgodt, Paul S. Enockson, Erica Gann Kitaev and Nathan A. Schacht of Baker Hostetler.

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Yesterday, under pressure from the ACLU, the Moffat County School District made public – through a post on its website – that students will now be permitted to wear “I ♥ Boobies! Keep a Breast!” bracelets at school without fear of reprisal. This announcement comes in response to a letter sent by the ACLU of Colorado last week demanding that the Moffat County School District rescind its illegal ban of the bracelets.

ACLU staff attorney Rebecca Wallace said: “We commend the Moffat County School District for taking quick and decisive action to restore the constitutional rights of its students.” Over the past week, the ACLU has received complaints from students and their families who report that the bracelets have been illegally banned within several other Colorado school districts. “We hope that other school districts will take a cue from Moffat County,” Wallace said. “Silencing student speech is not only unconstitutional, it’s also bad policy. Schools are charged with teaching young people how to be active participants in vibrant democracy, not policing thought and expression, particularly on an issue of such great social and health importance as breast cancer.”

In the ACLU’s letter to school administrators sent last week, demanding that the Moffat County rescind the bracelet ban, the ACLU stated that the bracelets had caused no disruption in school, the school district banned them because some school administrators found the word “boobies” to be offensive. The ACLU’s letter says that the ban is a clear violation of students’ First Amendment right to free expression.

ACLU staff attorney Rebecca T. Wallace said: “Students, just like adults, are protected by the Constitution and have a right to express themselves, particularly when they are just silently and peacefully wearing bracelets to show their support for such an important cause.”

“I ♥ Boobies! Keep a Breast!” bracelets are distributed by the Keep-A-Breast Foundation, a nonprofit organization whose mission is to help eradicate breast cancer by educating young people – in their own language – on methods of prevention, early detection, and support.

Jordan Harmon, a Moffat County Middle School student upon whom the ACLU’s letter focuses, purchased and wore her “I ♥ Boobies! Keep a Breast!” bracelets in support of a close family friend who has fiercely battled the disease. After purchasing the bracelet, Jordan was inspired to visit the Keep-A-Breast Foundation website and learn more about breast cancer. The school has forbidden Jordan, and other students, from wearing the bracelet.

“Jordan is a perfect example of the effectiveness of these bracelets in raising awareness about breast cancer among young people,” said Ms. Wallace. “Schools should be supporting such an innovative educational tool, rather than squelching students’ First Amendment expressions.”

Last month, at the request of ACLU lawyers, a federal court in Pennsylvania enjoined another school district’s ban of “I ♥ Boobies! Keep a Breast!” bracelets, finding that the bracelets did not significantly disrupt school activities, and that the word “boobies,” is not lewd, vulgar, or indecent in this cancer-fighting context.

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