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Public Safety Review Commission Recommends New Police Procedures to Prevent "Wholesale Violations of Citizens' Constitutional Rights"


April 16, 2001

The Denver Police Department "provides an open opportunity for wholesale violations of citizens' constitutional rights" because it does not require officers to record the basis for pedestrian stops and pat-down searches, according to a letter sent to Police Chief Gerald Whitman by the Denver Public Safety Commission ("Commission").


The letter, dated January 30 and released Tuesday by the American Civil Liberties Union Foundation of Colorado (ACLU), culminates a Commission investigation launched in response to an ACLU request made in 1998.


The letter states that without a reporting requirement, "there is no opportunity for supervisors to review whether the officers are adhering to the legal requirements of reasonable suspicion." As a result, police officers on the street "have the ability to make stops on the basis of insufficient evidence or impermissible reasons," a situation that "has lent fuel to the recent charges that Denver police officers are engaged in racial profiling when they stop and frisk citizens."


The Commission formally recommended that Chief Whitman begin requiring officers to keep a record of stops and frisks and the facts that justify them.

"The Public Safety Review Commission has recommended a welcome and sorely-needed reform," said Mark Silverstein, ACLU Legal Director. "Too many Denver police officers have lawlessly conducted pat-down searches as a matter of routine, in violation of the governing legal standard. The higher-ups in the department have deliberately turned a blind eye to the practice. The police department has no way to know how many individuals have been frisked or whether those frisks are legal. In essence, the department has made a policy decision to let officers do as they please."


The Commission also recommended that Chief Whitman reverse the findings of an internal affairs investigation and impose discipline on a Denver police officer for an illegal pat-down frisk of ACLU client Mark Schneider that occurred in December, 1997. Schneider was frisked on a downtown Denver sidewalk while conducting a peaceful vigil for an end to the sanctions against Iraq. After Schneider filed a complaint, an internal affairs investigation exonerated the officer, and Schneider appealed to the Commission.


"When Mr. Schneider was frisked, the Oklahoma City bombing trial was taking place in the federal courthouse across the street," Silverstein said. "But the bombing trial did not suspend the Constitution. The frisk was illegal because the police could not articulate any specific, objective facts that suggested that our client was armed."


By the end of 1999, with the statute of limitations expiring and the matter still pending before the Commission, the ACLU filed suit on Schneider's behalf. The lawsuit asks for one dollar in damages.


"The system of police accountability in Denver is broken," Silverstein said. "Internal Affairs does not conduct credible investigations, and the Public Safety Review Commission is understaffed and underfunded. This case is now in federal court because the two-year statute of limitations ran out before the system could fully process Mr. Schneider's complaint."


"The Denver Police Department has spent thousands of dollars on outside attorneys in an effort to avoid paying the one dollar we seek in this lawsuit," said Elisa Moran, who is handling Mr. Schneider's case as an ACLU volunteer cooperating attorney.


Moran said that evidence she has obtained in the lawsuit confirms the need for the reporting requirements the Commission's letter recommends. "Depositions and reports turned over in discovery confirm that Denver Police officers routinely conduct pat-down frisks without meeting the legal standard," Moran said. "And the supervisors, including Chief Whitman himself, don't seem to care."


According to Moran, Chief Whitman testified in a deposition in March that he did not know about the pat-down search of Mr. Schneider until he discussed the deposition with the City's lawyer a week earlier. Pointing out that the Commission's letter is dated January 15 and is addressed directly to the Chief, Moran concluded that "either the Chief is lying or he just doesn't think that a formal recommendation from the Public Safety Review Commission is worth his time."


As part of a settlement of a different ACLU lawsuit, the Denver Police Department has agreed that beginning June 1, it will begin collecting data to document patterns of police stops of pedestrians and motorists. "Although the police department has already agreed to document wehther a search occurred," Silverstein said, "it has not yet agreed to do what the Commission now recommends: require officers to record the facts that they rely on to justify a pat-down frisk."

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