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Colorado lawmakers may change when police can intervene in a protest after summer of unrest

Under Senate Bill 31, law enforcement wouldn’t be allowed to break up a demonstration unless there was an imminent threat of violence or significant property damage from “a significant number or percentage of persons acting in concert”

A Denver Police Department officer sprays pepper spray at a protester walking on Colfax Avenue near the state Capitol during the third day of protests against police brutality on May 30, 2020. (Eric Lubbers, The Colorado Sun)
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Colorado law enforcement would be barred from breaking up a protest unless there is an imminent threat of violence or major property damage from a “significant” number of people acting in unison, under legislation introduced Tuesday at the state legislature.

Senate Bill 31 comes in response to unrest last summer following the killing of George Floyd by police in Minneapolis, and the death of Elijah McClain in 2019 after an encounter with law enforcement and first responders in Aurora.

The measure would also require police to differentiate bad actors in a crowd of protesters instead of taking a blanket response and stopping a largely peaceful demonstration. 

“I think that there is a lack of clarity both for protesters and for police of what is protected speech under the First Amendment,” said state Sen. Jeff Bridges, a Greenwood Village Democrat who is championing the legislation. 

Bridges cited the Aurora Police Department’s response to a June 27 “violin vigil” memorializing McClain as a prime example of why his bill is needed. Video of the event at the Aurora Municipal Center showed officers in riot gear descending upon peaceful demonstrators who were listening to live music. The encounter later led to a lawsuit and an apology from the city’s police chief.

Denver police also came under intense criticism for their response to protests outside of the state Capitol. 

“Many police departments conducted themselves very well in most cases,” Bridges said. “And even the Aurora Police Department at other protests conducted themselves in line with the First Amendment.”

But there were cases that Bridges found troubling, and he said he hopes his legislation, if passed, will prevent them from happening in the future. 

Rep. Lisa Cutter, a Morrison Democrat who is leading the push for the bill in the House, said the idea is to define the fine line between a peaceful and destructive protest. 

Demonstrators clash with police at the Colorado Capitol on Saturday, May 30, 2020 for a third day of protests in Denver in response to George Floyd’s death at the hands of police in Minnesota. (Joe Mahoney, Special to The Colorado Sun)

Denise Maes, public policy director for the ACLU of Colorado, said the measure would do just that by creating “guardrails” in an area where there’s currently no guidance for law enforcement or the public. Her group supports and is working on the bill.

“There aren’t any laws on the books right now, and for that reason, law enforcement can deem anything to be an unlawful assembly,” said Maes, who said she had several conversations with Bridges during the legislative drafting process. “I think law enforcement should be happy to see (this bill).”

Tay Anderson, an at-large director on the Denver School Board who led a number of protests in the Denver area over the summer, supports the bill’s intent of protecting protest activity. He cited instances over the summer where property damage and clashes with law enforcement by some white rioters during racial justice protests was blamed on the Black Lives Matter movement. 

“It was found out, in multiple cases, that it was white people doing it, not BLM groups. That puts organizers in danger, when you have a situation with folks infiltrating protest movements and trying to push their own agenda,” Anderson said. 

Anderson, however, raised concerns about allowing police to make judgment calls about when demonstrators are being violent or destructive.

“I’m supportive of the idea, but I’m concerned about … who makes that call,” Anderson said. “We know that there are bad actors that try to affiliate themselves with an organization or protest. I don’t necessarily believe we should charge police officers, who are often the ones being protested, (with that).”

But Maes said police are already making judgments about when a protest is unlawful. 

A statue of Martin Luther King Jr stands in the background while Denver Public School Board Director Tay Anderson addresses the crowd at a Black Lives Matter demonstration to emphasize the need for more black educators in schools in City Park on June 7, 2020. (Kevin Mohatt, Special to The Colorado Sun)

She pointed to language in the legislation that requires authorities to distinguish people at demonstrations who are “acting in concert to escalate” violence or property damage, from peaceful demonstrators who “must be allowed to continue to do so without interruption.”

“They can do that today, without any kind of immediate threat, or any obligation to separate peaceful protesters,” Maes said. “So in that regard, this does go a long way with protecting First Amendment protest speech.”

Bridges said the bill will require police to remove destructive or violent demonstrators from a protest in order to protect the First Amendment rights of other, peaceful people gathered.

The legislation comes amid a broader push by Colorado lawmakers to boost police accountability.

Sen. John Cooke, a Greeley Republican and a former Weld County sheriff, thinks the legislation is anything but clear. He said wording in the bill preventing police from interacting unless “a significant number or percentage of persons acting in concert” are being violent or destructive is too vague since “significant number” and “significant percentage” are not defined. 

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“The bill is pretty broad, some of the wording,” he said. “It’s a bad bill”

(Bridges said he’s open to putting more specific definitions in the bill.) 

The Colorado Association of Chiefs of Police also appears skeptical.

“Lawmakers did not seek input from the Colorado Association of Chiefs of Police or our partners on this proposal that was introduced today. We are now reviewing it,” said Amy Faircloth, a spokeswoman for the group. 

Bridges said he’s committed to working with the police chiefs and hearing out their concerns. 

“There’s a long time until this bill goes to committee and I’m looking forward to a robust conversation with all parties involved,” he said. 

The bill is not yet scheduled for its first committee hearing.