Denver protests

A participant holds a placard Sunday, May 31, 2020, during a protest outside the State Capitol in Denver over the death of George Floyd who died after being restrained by Minneapolis police officers on May 25.

Denver is seeking to block testimony from the city’s former top law enforcement watchdog and memos he prepared in an ongoing lawsuit over policing of the city’s racial justice protests last summer.

Attorneys for the protesters say Denver is using a legal process to hide damaging information about police conduct the city doesn’t want to reveal, including evidence that the department cut back on field force training for officers.

But attorneys for the city have claimed that attorneys for the protesters had inappropriate conversations with former independent monitor Nick Mitchell about evidence in the case without his lawyer being present.

In the lawsuit filed last year by a handful of individual protesters and Black Lives Matter 5280 — which has since withdrawn as a plaintiff — the protesters have said Denver and Aurora are responsible for police’s alleged unconstitutional uses of force to control and suppress demonstrations because both cities failed to train and supervise their officers on use of force. The lawsuit also says Denver failed to hold joint training for Aurora officers who helped with the city’s response to the protests to make sure they complied with Denver’s policies.

The sides are in a dispute over memos of interviews with officers prepared by Mitchell and the Office of the Independent Monitor’s staff during the process of investigating how Denver police handled protests last year sparked by the murder of George Floyd in Minneapolis by former police officer Derek Chauvin. The report, released last fall, found police misused less-lethal force tactics and at times acted anonymously without body-worn cameras.

Lisa Calderón, a longtime advocate for police reform in Denver who has a law degree from the University of Colorado, said she believes the city’s attempt to block Mitchell’s testimony and the Office of the Independent Monitor’s memos as evidence is meant to distract from getting to the bottom of the decisions made by police during the protests.

“Really, this isn't about Nick Mitchell; this isn't about ethics. This is about the plaintiffs who are the public. And fighting so hard to keep the public from understanding the decisions that were made in the course of the protests is not good governance,” she said.

An attorney for the protesters declined to comment because the evidence dispute is ongoing. Another did not respond to a request for comment.

The Denver city attorney’s office also declined to comment on its motion.

In court filings, attorneys for the protesters say Denver is trying to cover up damaging information about officers’ behavior during the protests and shortcomings in their training by trying to exclude the memos and Mitchell’s testimony. In a response filed Oct. 27 to the city’s request, the attorneys say evidence includes:

  • Police command staff knew their officers’ training on field force tactics and crowd control had been insufficient for years.
  • The department cut down on field force training because of complaints from commanders about the time it took.
  • Commanders persistently criticized behavior of officers working on the ground during the protests.
  • Officers frequently hit unintended targets with less-lethal weapons and used them on whole crowds even when large numbers of peaceful protesters were among them.

Attorneys for the city seek to block Mitchell’s testimony as a sanction against the protesters' attorneys for what the city says were improper conversations between them and Mitchell, without his counsel from the city being present, about the memos and redactions by the city because of a privilege that protects information showing how a government agency came to a decision. Mitchell himself is not accused of misconduct.

Mitchell said in a deposition he gave in June that a video meeting he had with attorneys for the protesters included discussion of body-worn cameras and perhaps the process of interviewing officers during the Office of the Independent Monitor’s investigation. But in response to the city’s request to exclude the memos and Mitchell’s testimony, the protesters’ attorneys say Mitchell didn’t discuss redactions to the memos with them in a videoconference in April, nor did he discuss any information covered by attorney-client or deliberative process privilege.

Their response also says city attorneys said for the first time in June they would represent Mitchell in his capacity as a former city official.

Attorneys for the city also say in court documents that neither Mitchell’s testimony nor the memos would be relevant to the lawsuit’s claims of constitutional violations, because they are outside the scope of his work. Mitchell confirmed in his June deposition that his work addressed whether police acted outside of department policy.

Jason Dunn, a former U.S. attorney in Colorado who’s now a partner at Brownstein Hyatt Farber Schreck, said the relevance of Mitchell’s testimony and the memos to the lawsuit’s constitutional claims will be key to whether the judge admits them.

“That's a fair question, why is a third party's opinion on what happened relevant to whether or not the constitutional rights of the plaintiffs are violated, unless they're an expert who they've qualified for the purposes of the trial?”

Dunn said any knowledge Mitchell has about what happened during the protests would be considered hearsay because he didn’t witness them firsthand. The typical course for attorneys would be to talk to any officers who are mentioned in his testimony or the memos as primary witnesses, he said.

Court records indicate attorneys for Denver have said the information they seek to protect in the Office of the Independent Monitor’s interview memos is mental impressions of the investigators and candid information provided that isn’t factual in nature.

Attorneys for the protesters requested an in-camera review by the judge, R. Brooke Jackson, of unredacted versions of the memos to determine whether the city’s redactions are appropriate. Jackson granted the request Tuesday, and said in an order he would hold off deciding the issue of whether to allow the memos and Mitchell's testimony until the memos have been reviewed.

But Calderón said she believes the city is inappropriately inserting itself as a fact finder by saying Mitchell’s testimony isn’t relevant, when the responsibility of fact finding should be left up to a potential jury.

“In other words, they've made the decision of what is relevant, what the public and a potential jury would eventually find out, instead of saying that, ‘We know something happened here. And it is in the public's best interest, and it is in our office’s best interest to do justice. And so we are going to participate in finding the truth.’”

She added the city’s move to exclude evidence gathered by the Office of the Independent Monitor represents the interests of the mayor and police chief, rather than the interests of the public.

“[The city attorney's] job should be to do justice, wherever justice leads,” she said.