A federal judge issued an extraordinary ruling late Friday ordering police not to use chemical weapons — such as tear gas and pepper spray — and less-lethal projectiles against peaceful protesters in Denver.
“The Denver Police Department has failed in its duty to police its own,” Judge R. Brooke Jackson wrote in his sweeping ruling.
The order comes on the the ninth straight day of demonstrations in the city in the wake of George Floyd’s death at the hands of Minnesota police officers last week.
“The Court has reviewed video evidence of numerous incidents in which officers used pepper-spray on individual demonstrators who appeared to be standing peacefully, some of whom were speaking to or yelling at the officers, none of whom appeared to be engaging in violence or destructive behavior,” Jackson wrote. The order is immediate but temporary.
Denver police tweeted a statement saying they would comply with the order and Jackson’s directions, “many of which are already in line with our community-consulted use of force policy.”
Colorado Sun reporters have witnessed, and videos have shown, tear gas and pepper balls being used by officers against people without provocation. Denver police say they are investigating accounts of inappropriate use of force during the demonstrations, as is the city’s independent law enforcement monitor, who has fielded hundreds of complaints.
Several Denver City Council members have also called for a review of the police response.
Police in recent nights have been less confrontational with demonstrators, which has mostly eliminated clashes between officers and protesters. Last weekend, officers and demonstrators were hurt in the skirmishes, which surrounded the Capitol for hours.
Denver police have been joined by officers from surrounding jurisdictions, as well at the Colorado National Guard, in responding to the city’s demonstrations. Law enforcement says it hasn’t used force unless necessary, saying that officers have been hit with rocks and other items.
Denver Mayor Michael Hancock said that Denver police officers “had to defend themselves.” Denver police Chief Paul Pazen said his officers “performed in an exemplary manner in order to control a very disruptive and dangerous situation.”
During the first days of the Denver demonstrations, buildings and vehicles were vandalized and fires were set.
But Jackson, who was nominated to serve on the federal bench in 2010 by President Barack Obama, said that officers need to use restraint.
“If a store’s windows must be broken to prevent a protestor’s facial bones from being broken or eye being permanently damaged, that is more than a fair trade,” he wrote. “If a building must be graffiti-ed to prevent the suppression of free speech, that is a fair trade. The threat to physical safety and free speech outweighs the threat to property.”
Jackson wrote that officers may use force only after giving notice to demonstrators to disperse and only after protesters are given adequate time to move.
He also ordered that less-lethal projectiles shall not be fired indiscriminately into crowds or at someone’s head, pelvis or back.
“All officers deployed to the demonstrations or engaged in the demonstrations must have their body-worn cameras recording at all times, and they may not intentionally obstruct the camera or recording,” Jackson’s ruling said.
Jackson wrote in his order that he felt he needed to step in immediately to prevent the hindrance of demonstrators ability to exercising their right to peacefully protest and also the media’s ability to document those protests.
“Indeed, irreparable harm has already occurred in the form of physical injury and the suppression of speech; there is no reason such harm would not otherwise continue if this relief were denied,” he wrote. “Officers would continue to use force, secure in the knowledge that retrospective claims take a significant amount of time, effort, and money to pursue.”
He added: “In issuing this relief I do not seek to prevent officers from protecting themselves or their community. I seek to balance citizens’ constitutional rights against officers’ ability to do their job. However, the time is past to solely rely on the good faith and discretion of the Denver Police Department and its colleagues from other jurisdictions.”
Under Jackson’s order, Denver police can only used tear gas, pepper spray or less-lethal projectiles against demonstrators if an on-scene supervisor at the rank of captain or above specifically authorizes such use of force in response to specific acts of violence or destruction of personal property that the supervisor witnessed.
The Denver Police Department said it would ask Jackson for some changes to the order.
“We are asking for modifications to the order that would account for limitations on staffing and body-worn cameras so the directions can be operationalized,” the department tweeted.
Jackson’s ruling came after four Denverites filed a lawsuit in federal court claiming Denver police have violated demonstrators’ rights.
A photograph taken by Colorado Sun editor Eric Lubbers showing an officer spraying a liquid — apparently pepper spray — at peaceful demonstrators was submitted as part of the legal action.