Police accountability improving in Colorado

police pepper spray people at protest, police accountability

Colorado has one of the worst rates of police shootings in the country. And the record on police accountability is just as bad:

“In all but two of the 309 cases in six years, officers’ actions were legally justified by district attorneys or grand juries.”

On June 19, 2020, the Enhance Law Enforcement Integrity bill was signed into law in Colorado to help stem this tide and to respond to the dramatic protests that erupted in response to the death of George Floyd. The new law will add significant police accountability mechanisms for officers who engage in excessive force and other constitutional rights violations, and will enact other reforms to help weed out bad cops. Here are some of the most important pieces of the bill:

It will increase police transparency and accountability by requiring body cameras

On or before July 1, 2023, the bill requires all law enforcement agencies in the state of Colorado to wear and use body-worn cameras during interactions with everyday people.

A peace officer shall wear and activate a body-worn camera when responding to a call for service or during any interaction with the public initiated by the peace officer, when enforcing the law or investigating possible violations of the law.

Not only will all officers be required to wear body cameras, but those that do can face penalties for turning off or tampering with the cameras. Also, departments will be required to release footage within 21 days after a misconduct allegation. We highly recommend that you make complaints of misconduct with the Internal Affairs Division of any police agency who you believe may have committed misconduct.

The bill limits use of chokeholds

Any type of chokehold or carotid hold will be banned unless absolutely necessary, and only when dealing with violent offenses. Officers will not be allowed to use deadly force against anyone suspected of a minor or nonviolent offense.

swat team standing against crowd, police accountability among officers

Police will be required to intervene to prevent excessive force or face new penalties for the ‘failure to intervene’

One of the biggest problems with the current system of police accountability is that supposed good cops often stand by while bad cops assault or even kill people, as was the case with George Floyd in Minneapolis. Under the new law, officers who fail to stop other officers from using unnecessary excessive force could face new charges. There are also provisions to protect those officers from retaliation when they do intervene.

New database will keep a record of police misconduct and problem police officers to improve police accountability

In the past, many officers were able to remain on the force because misconduct violations were often erased from their records after a short amount of time, eliminating any possibility for police accountability. Even for serious offenses, they could simply move to a different state and get hired by a new department. Starting on January 1, 2022, this new database will require a database entry be made for any officer who has been fired, decertified, found to have lied, or failed to follow training requirements. Also, any officer who is convicted of (or pleads guilty to) using excessive force, failure to intervene to stop excessive force, would permanently lose their Peace Officer Standards and Training board certification, which is required to serve as a peace officer in Colorado.

While the bill still leaves open a gaping loophole for officers who choose to quit amid investigation of police misconduct against them, it does require a new level of documentation so that problem officers can be identified and police accountability can be improved.

The Qualified Immunity Defense will be removed for violations of the Colorado State Constitution and officers will be made to pay

Until now, one of the biggest issues with police accountability is that officers were shielded from liability for novel ways in which they could think up or act to violate the constitutional rights of victims. Qualified immunity, under federal law, completely shields officers from liability when the same, precise, conduct has not been held to be a violation of someone’s rights in prior appellate decisions. Even worse, appellate courts could avoid making any determinations of whether an officer’s conduct violated the constitution merely by pointing to a lack of prior cases that fail to examine that exact conduct, because it had not been “clearly established,” beyond debate,” to “every police officer” before. As you might imagine, this led to a catch-22 in which officers have been let off the hook in litigation for excessive force in a whopping 57% of cases.

The new bill will allow people to file civil rights violations against officers individually for violations of the Colorado Constitution and qualified immunity may not be invoked as a defense in such state actions. Many of the same rights afforded by the federal Constitution are also enshrined in our state Constitution. Moreover, under this new law, individual officers will be forced to pay a small portion of judgments against them, instead of leaving it completely up to the city or county that employs them.

If the peace officer’s employer determines the officer did not act upon a good faith and reasonable belief that the action was lawful, then the peace officer is personally liable for 5 percent of the judgment or $25,000, whichever is less, unless the judgment is uncollectible from the officer, then the officer’s employer satisfies the whole judgment.” (Enhance Law Enforcement Integrity bill, Colorado General Assembly)

police hold back group of protesters on street, police accountability at protests

Police accountability at protests

In direct response to the recent protests in Denver, the new bill prohibits officers from using any kind of chemical irritant like tear gas or pepper spray without first sufficiently announcing it and then giving people enough time to leave and get to safety. It also prohibits them from indiscriminately firing rubber bullets into crowds, as well as specifically at people’s heads, torsos, and backs. Rubber bullets have been shown to cause serious injuries.

We are here to help if you are the victim of police misconduct or violence

If you have been the victim of police misconduct, please give us a call. We work diligently to ensure police accountability and fight those who violate your civil rights. For a free, no-obligation consultation with the Civil Rights Litigation Group, contact our Denver CO law firm today at (720) 515-6165 or use our online contact form.

What are my rights if I protest the police?

citizens protesting against police and discrimination -- civil rightsThe most important thing to remember is that the First Amendment guarantees every person in America the right to peacefully assemble and protest.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. 

The right to protest is valued in our country and has led to many substantial changes over the past 200 years, such as the Civil Rights Act. When outrageous police abuse occurs — such as the killing of George Floyd in Minneapolis or the beating of Rodney King in Los Angeles — that conduct affects us all. Exercising your right to speak up and to protest could foster recognition, awareness, and much needed change in the future.

However, it’s important to remember that the Supreme Court has recognized limits to the exercise of our rights – when they could affect the rights of others. Just like freedom of speech doesn’t provide the right to publicly lie about someone or the right to yell fire in a crowded theater, the right to assemble does not mean that a protester has cart-blanche protection to commit otherwise illegal acts, such as vandalism, and there could be criminal repercussions for those who harm others.

Also, current law permits “reasonable time, place, and manner” restrictions by governments to limit some of the unintended adverse effects of those who gather to speak in local communities. Legal interpretations of what constitutes “reasonable” time, place and manner restrictions can be nuanced, but they usually permit municipal action to do things like restrict protesters from marching down the middle of busy streets or instituting non-discriminatory curfews to curb looting and vandalism. Protesters have more leeway regarding location and time when a protest is spontaneous, such as immediately after a major incident occurs that calls for public outcry, like the events in recent days. However, the protection for spontaneous association will likely be subject to greater “time, place, and manner” restrictions after initial protests erupt and/or after public safety concerns surface.

protest facing off against police -- civil rights

When can the police interfere with protests?

If a protest escalates to include violence and property damage, local law enforcement has the legal authority to intervene to quell that violence or to arrest perpetrators. They may also have the legal authority to stop protests on private property, those organized without a permit, or those that block public rights of way, such as on an interstate or major street.

As to the time or duration of protests, law enforcement can intervene if a curfew has been legally established and police have given you warning, time, and opportunity to safely leave. Police should act only to apply limited restrictions in a non-discriminatory and even-handed manner.

What am I allowed to record at a protest?

There have been a lot of contrary opinions written regarding what citizens can and can’t record, with respect to the police. And while some states have limits on where you can post recordings with audio, the visual part of recordings is protected by the First Amendment and can be posted online and shared.

You have a First Amendment right to record the police while they are performing public duties. As long as you aren’t interfering with or threatening them, and stay a fair distance away from officers performing official functions, the police DO NOT have the legal authority to demand that you stop recording. In fact, it’s always a good idea to record any encounter with the police if you think things might go bad for anyone involved. Phone recordings have been key in prosecuting police misconduct in recent years, especially with the quality of video that most cell phones can produce. As Will Smith said, “Racism isn’t getting worse, it’s getting filmed.”

Also, the police cannot legally demand your phone or confiscate it without a warrant, and those take time to obtain because they have to be signed by a judge. They also don’t have the authority to tell you to delete a photo or video. If you feel a confrontation may occur — especially one involving force — many have suggested complying, handing over the device, and then filing a complaint with Internal Affairs, the Office of the Independent Monitor (in Denver), or legal organizations like the ACLU or with local lawyers. But you absolutely have the right to retain possession of your phone along with any video or photos. If nothing else, quickly send or upload the media to someone before handing over your phone so that it cannot be deleted. The ACLU has developed a smart phone application that – once activated – will record and automatically upload any video taken from that phone to the ACLU for safe-keeping and later review:

https://www.aclu.org/issues/criminal-law-reform/reforming-police/aclu-apps-record-police-conduct

If you don’t like your own photo being taken or publicly shared, you should know that your presence at a public protest means you have given consent for your photo to be taken and potentially used, most commonly by the media. After-all, protests are meant to be matters of public interest. There are a few restrictions, but if you are uncomfortable with your photo showing up on social media or potentially the evening news, you should consider other forms of speech or wearing something that hides your identity.

police tear gas crowds at protest, civil rights

What are the police allowed to do during a protest?

The first job of the police is to protect your right to peacefully assemble — both they and public officials have taken a vow to uphold the Constitution. If you are acting reasonably, within the confines of the law, then they have no authority to act against you or restrain you in any way. However, they are also charged with maintaining order and upholding the law, so if protesters or infiltrators start being violent or causing damage then the police will most likely take action. The concern for all of us is what form that action takes and whether it is proportionate to the public policy and/or legal justifications permitted under the law.

The main priority of police should be to de-escalate violence, but it has been shown time and again that the police often are the cause of violence. For example, if they start dropping tear gas canisters and firing rubber bullets at peaceful protesters before curfew has started, and without any legal and/or legitimate purpose, then they could be found liable for use of excessive force. This is one of the times when it is important to always be recording police on your phone.

What should I do if the police stop me or if I get arrested?

First of all, it’s always good to stay calm. Remember that sometimes the police just want to ask a question and you may not be suspected of doing anything wrong. The law permits police to ask questions without converting the contact into a seizure. Second, get your phone out and start recording. Finally, you always have the right to ask the police if you are being detained and/or free to go. If they indicate you are not being detained or are free to go, just calmly leave — you are under no obligation to speak to them. If they detain you, you have the right to ask why you are being detained.

If you are arrested or detained — whether justified or not — it’s best to remain calm and not resist. If other people are there, ask them to record everything they can. You do not have to speak to the police if you don’t want to — you have the right to remain silent. After you are booked, you will have the right to make a phone call so it’s a good idea to write a few numbers on your arm since your phone will be taken away. And it’s always a good idea to call a lawyer because while that conversation is privileged, the police do have the authority to listen in on calls to friends or family.

What should I do if I feel my rights were violated at a protest?

If you truly feel your rights were violated, the first step is always to gather evidence to support you. You have the right to sue for the violation of your rights and you should contact a civil rights attorney devoted to your rights. 42 U.S.C. Section 1983 of federal law permits those who are violated by official government actors (such as police) to seek redress in federal court. However, police officers are also covered by qualified immunity, which means they are shielded from civil liability if they didn’t break a clearly established law. That is one reason it is so important to record any interaction with the police as many of them are still not required to wear body cameras. Recordings remove much of the grey area of “he said, she said” when courts are charged with determining who is telling the truth. Video doesn’t lie.

We are here to help with protecting your Constitutional right to protest

If you have experienced problems with your civil rights being violated during a protest, please give us a call. We work diligently to protect constitutional rights. For a free, no-obligation consultation with the Civil Rights Litigation Group, contact our Denver CO law firm today at (720) 515-6165 or use our online contact form.

Examples of non-verbal freedom of speech rights

Examples Of Non-Verbal Freedom Of Speech Rights

The First Amendment is well-known to cover what we call “freedom of speech.” It means that every individual has the right to express an opinion and be free from government censorship, even if not everyone agrees with it. We discussed the First Amendment as it relates to blogging in a post in 2018.

But freedom of speech doesn’t always include the spoken word. In fact, freedom of speech and expression can take a number of non-verbal forms. These are known as symbolic speech, actions that express specific ideas.

Defining symbolic speech

Non-verbal symbolic speech is the action clearly conveys a specific message to anyone who sees and reads it. Symbolic speech can take the form of:

  • Public protests, such as sit-ins and marches
  • Demonstrations
  • Wearing buttons, armbands or other clothing items (such as t-shirts) that deliver a protest or other specific message
  • Nudity
  • Flag waving
  • Flag burning
  • Burning draft cards

The government must have an important reason and prove to a court that the message isn’t protected speech should be punished. Government disapproval cannot be the reason. But like fighting words, not everything is protected speech.

The limits on freedom of speech and protected speech

What freedom of speech does not mean is that you can say whatever you want without consequences. The fighting words doctrine includes speech or words that intentionally incite violence or cause distress, are not protected. Slander (lying), obscenity, child pornography and obscene gestures are also not protected as free speech.

Two examples of symbolic speech

One example of these limits occurred during the Vietnam War. Students at two Des Moines, Iowa schools decided to wear black armbands to school as a silent protest to the war in Southeast Asia. Once the principals discovered the plan, they warned students that anyone wearing the armbands would be suspended. Three students were suspended as a result.

Parents of these children sued, and the US District Court sided with the Southern District of Iowa sided with the school. The students lost on appeal, so they took the case to the Supreme Court.

The case of Tinker v. Des Moines Independent Community School District brought the case to the Court to decide that students did indeed have the right to free speech at school. However, in this instance, the school was correct in prohibiting them to avoid disrupting learning at the school, and they had the right to do so.

Another famous example of symbolic speech is the case of Texas v. Johnson, in which a man burned an American flag outside of the 1984 Republican National Convention. He chose to burn it there, where Ronald Reagan was about to receive the nomination to run for president, to protest Reagan’s policies. Soaking an American flag with kerosene in front of the Dallas City Hall, he set fire to it, and immediately arrested for violating a Texas state law prohibiting the burning or desecration of an American flag. He served a year in jail and paid a fine.

The Texas Court of Criminal Appeals is the state’s highest appeals court for criminal cases. They argued that symbolic speech was protected by the First Amendment, and overturned his conviction. This led the way to a Supreme Court hearing in June 1989 that produced a controversial 5-4 ruling that burning the flag is, in fact, protected speech. The justices called it a bedrock principle that the government could not just prohibit an expression of speech just because society finds it offensive.

The First Amendment protects your right to freedom of speech

If someone has threatened your right to free speech, you can fight back. Call the Civil Rights Litigation Group at (720) 515-6165, or use our online contact form, to schedule your free consultation with us today. We understand civil rights cases, and aggressively defend you in court and make sure your rights are protected.

Hate speech, the First Amendment and social media posts — what you should know

Last year, we explained how the First Amendment affects bloggers. The laws and decisions that go into protecting bloggers may also affect rights regarding the first amendment and social media postings.

You may have encountered virulent arguments on social media about topics that should not have provoked that type of reaction. At some point, you or someone else may be accused of and reported for promoting “hate speech.” Maybe you just stated an opinion, and someone shot back an inflammatory comment. Does First Amendment cover you?

First Amendment Rights, Hate Speech And Social Media Posts—What You Should Know

Defining hate speech

“Hate speech” isn’t a legal term, but is one used to describe speech that’s intended to attack or demean another individual or group. This type of speech is usually based on characteristics that are illegal to use for discrimination, such as race, sex, religion, nationality, sexual orientation, or age.

Hate speech has also come to mean any type of comment that another individual does not agree with, even if it’s not specifically insulting or demeaning.

Simply hurling insults at someone is offensive, but not against the law. But hate crimes, targeting someone because of the above characteristics, are a matter of criminal law, not civil.

What is social media?

Websites, apps and other forms of electronic communication allow people to communicate and share content in real time. Most people are familiar with Facebook, Twitter, Instagram, Pinterest, YouTube, and similar websites, as well as professional networking site Linkedin. Depending on the platform, you can disseminate any type of information to your friends, private groups or the user community at large.

When a post, picture, or other piece of content “goes viral,” it’s shared widely and occasionally appears in broadcast media. This can be anything from a cute cat video to a vicious diatribe targeting a group of individuals, and anything in between. With a combined social media user community in the billions, one share can put your post in front of the entire world in the blink of an eye.

While many social media users share pictures of whatever they’re doing, eating, drinking, or watching, hate groups use the same medium to disseminate their own messages. This is where the First Amendment and social media come into play.

The difference between the First Amendment and social media

Hate groups from all over the world have routinely used social media to spread their message, recruiting and bringing more people into their fold. The recent attack on a German synagogue was live-streamed on Twitch by the shooter wearing a helmet camera. But it wasn’t the first time social media has been used to broadcast such an event.

While the First Amendment protects your right to say what’s on your mind in a public forum, social media is a different matter. The platforms might be a public forum, but are privately owned by companies that issue their own policies for what you can and can’t say there.

For instance: standing in the public square and shouting insults will upset people of that you’re targeting, but the comments are constitutionally protected. However, threats of and encouraging violence, the so-called “fighting words,” are not constitutionally protected, and may also get you arrested.

Platform policies

Making the same comments on social media may be First Amendment protected, but may violate the platform’s “community standards.” This means that although your comments are constitutionally protected, the platform itself does not have to allow you to say it on their “premises.”

It’s akin to saying something insulting to someone in their own home. You can say it on the sidewalk, but they don’t have to allow you in to say it in the privacy of their living room. By the same token, social media companies have the right to tell you that you can’t say that on their privately owned platform. Users are allowed to “flag” comments that they believe to be hate speech, but flags are also used in retaliation for benign comments that someone simply disagreed with. This makes it more difficult to find true hate speech and combat it.

While social media companies have broad powers to restrict hate speech in their platforms, their capacity is lacking to catch and control everything that violates their community standards.

Have you been accused of hate speech?

Call the Civil Rights Litigation Group at (720) 515-6165, or use our online contact form, to schedule your free consultation with us today. As a civil rights defense firm, we will work to ensure that your civil rights are defended and protected.

What is the burden of proof in a religious discrimination lawsuit

Religion is a personal choice, no matter what the denomination. You may choose to share your beliefs with others, or you may keep them to yourself. You may also eschew religion if you choose to. But religious discrimination is not a choice your employer has a right to make.

One of the most demeaning forms of discrimination is on the basis of your choice of religion. Whether you grew up with your religion beliefs, or chose them later, it should never be used against you. If it is, your civil rights have been violated through religious discrimination. And in the workplace, you may have grounds for a lawsuit.

religious discrimination

The First Amendment

What it actually says is:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

There is no “national religion” in the U.S., as there are in other countries, nor limitations on the practice of religion. 

Title VII of the Civil Rights Act of 1964 also prohibits employers from discriminating against employees.

Two types of religious discrimination

There are two general ways that you could be harassed based on your religion:

  • Quid Pro Quo, (Latin for “this and that”), when you are required to alter or abandon a religious belief in order to obtain employment, or an adverse action that occurs after you accept a position but refuse to change your beliefs.
  • A Hostile Work Environment, in which you are subjected to negative comments and/or actions that create a hostile work environment, and suffer a “negative employment action.” Employers are responsible for the actions of their employees.

There are some exceptions. Religious organizations, by their very nature, have the right to hire based on their own religious beliefs, especially if it’s activities are religious on a day-to-day basis. Clergy members are also prohibited from filing religious discrimination lawsuits, because doing so would allow the government to interfere in religious activities. They are not, however, exempt from other forms of discrimination, such as race based or sex based.

Proving religious discrimination

If you believe you are the victim of religious discrimination, it’s important to:

  • Report each incident of religious discrimination to your employer
  • Personally document each incident, as well as each time you report an incident

Should your employer fail to take corrective action, you can file a Claim of Discrimination with either the EEOC or the Colorado Civil Rights Division (CCRD). You’ll have 300 days from the act of religious discrimination in which to file your complaint with the EEOC, or 180 days with the CCRD. After that, you will lose your right to file your religious discrimination claim under Title VII or Colorado law.

The American Bar Association’s criteria for a prima facie case states that a plaintiff must show that:

  1. The harassment occurred because of, or was motivated by, religion
  2. The conduct was pervasive or severe
  3. The conduct had a detrimental effect on the plaintiff and
  4. The harassment would have had such an effect on a reasonable person of the same religion in that position

Once you successfully prove your claim of religious discrimination, there are a number of remedies available under the law. You may be awarded compensatory damages including lost wages and benefits, emotional distress, and occasionally, punitive damages. You may also be awarded attorney’s fees and litigation costs. The court could also require the company to reinstate you, and issue an injunction against the company barring them from committing further acts of discrimination.

An attorney who specializes in civil rights violations and employment or religious discrimination can help you navigate this complicated area of law.

Denver’s civil rights attorney

You have the right to your own religion, guaranteed by the First Amendment. Employment discrimination in any form is a difficult and complex area of the law. Need help? Call the Civil Rights Litigation Group at (720) 515-6165, or use our online contact form, to schedule your free consultation with us today. We’ll aggressively defend you in court and make sure your rights are protected under the First Amendment.

Wrongful arrest? Here’s what you need to prove

A wrongful arrest (also called “false arrest”) can happen to anyone at any time. You may look like someone the police are looking for, you may have been misidentified by someone (intentionally or unintentionally) or just may be in the wrong place at the wrong time. An arrest can be embarrassing, particularly if you’re not guilty. But if it happens, here’s what you need to prove you that should not have been arrested.

Wrongful Arrest? Here’s What You Need To Prove

Wrongful arrest is a violation of your Fourth Amendment protections against unlawful search and seizures. Both private citizens and law enforcement personnel can commit a wrongful arrest. You can also sue for damages by way of a civil lawsuit.

First: don’t resist an arrest

Even if you know you’re being wrongfully arrested, resisting arrest is also a crime. It may be legal to resist a wrongful arrest, but you can still be charged. You’ll still have the right to speak to an attorney, and the right to a fair trial to prove your innocence. Always be polite, and never threaten a law enforcement officer or another individual during the arrest process.

Your right to remain silent

Exercise this right, especially in the case of a wrongful arrest. Make sure you ask for and have an attorney available whenever you speak to the police. Don’t wait for them to read you the “Miranda Warning,” since anything you say at the time of arrest can also be used against you. Give no statements until you can speak to an attorney.

Decline any searches without warrants

Police have procedures they must follow when they obtain a search warrant. But if you permit a search without a warrant, your rights may not be respected. The Fourth Amendment protects you from unwarranted searches.

The “Citizen Arrest”

Private citizens can also commit a wrongful arrest by detaining you and not allowing you to leave, violating your Fourth Amendment rights. An example is a private security guard in a retail store detaining you for shoplifting without witnesses or other probable cause. If there is cause, a guard can detail you temporarily until the police arrive to take over. But detaining someone without cause becomes a wrongful arrest or false imprisonment.

The ACLU offers this guide to knowing and understanding your rights when dealing with law enforcement in the state of Colorado.

Proving wrongful arrest in court

You’ll need to make four points in your case:

  • The individual in question intentionally confined or arrested you, preventing you from leaving and depriving you of your Fourth Amendment rights. This may be law enforcement or a private individual, such as a store manager or supervisor.
  • That the plaintiff (you) was conscious of the confinement and understood that you were being confined, arrested and prevented from leaving.
  • That the plaintiff (you) did not consent to being confined, and the arrest/confinement was done anyway.
  • If the arrest was “privileged” or legally justified. This is usually when a warrant, court order, or probable cause is involved and can justify an otherwise wrongful arrest. While a warrant and a court order can make an arrest justified, probable cause is less clear and can prove that an arrest was, indeed, wrongful.

Probable Cause allows a police officer to make an arrest on someone if he or she has sufficient reason to believe at the time of the arrest that the individual has or intends to commit a crime. It does not matter if the individual is guilty of a crime — that’s addressed in court. Should an individual claim probable cause, they can use it as a defense for wrongful arrest.

 Call us — we’ll fight for your rights

Wrongful arrests can happen to anyone, anytime. If you’ve been wrongfully arrested, or your civil rights have otherwise been violated, an experienced civil rights attorney will fight for your rights. Call the Civil Rights Litigation Group at (720) 515-6165. Schedule your free consultation with us today. We’ll defend you against wrongful arrests and other overreaching actions by police, and help you clear your name.

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