“Act like a lady,” Denver police officers told Colorado journalist Susan Greene as they roughly and unlawfully handcuffed and detained her for exercising her First Amendment rights.
Greene, an editor for the Colorado Independent and a Pulitzer finalist for her investigative reporting on criminal justice, had stopped to observe and photograph a police interaction with a nearly-naked black man sitting on a sidewalk by Colfax Avenue in Denver.
As Greene points out, in recent years Denver police have killed two black men, Marvin Booker in 2010 and Michael Marshall in 2015, so journalists and citizens have especially strong reasons to observe and document conduct of Denver police.
Reflecting on the officers’ remarks to her, Greene wondered, “How exactly should a lady act when being wrongly detained on a public sidewalk for exercising First Amendment rights?” (At the time, as video footage reveals, Greene replied, in part, “Are you fucking kidding me?”)
Now Greene and the Independent have engaged the services of a top Colorado civil-rights law firm, Killmer, Lane, & Newman. Mari Newman and associate attorney Andy McNulty joined Greene for an August 29 media conference to discuss the case.
“The press’s job is to be a bulwark between government and oppression, and Ms. Greene was doing just that when she was out filming on the sidewalk,” McNulty said at the event.
Newman added: “If necessary, we are prepared to bring legal action on behalf of Ms. Greene and on behalf of the Colorado Independent, for the city’s violation of their First Amendment free-speech rights.”
McNulty addressed a statement by one of the officers to Greene that she should “stop resisting.” McNulty said, “In the city of Denver, we’ve seen it time and again. Any time an officer uses excessive force, they reflexively say, ‘stop resisting.’ It’s a way to cover up their conduct in the moment.”
A journalist at the event asked, “Did you feel like that was a set-up to justify whatever their actions were, that you were somehow resisting?” Greene answered, “Absolutely.”
Regarding the “act like a lady” remark, Greene said, “I think he [the officer] meant be mute and be limp. And that’s not the kind of message we need from our police officers.”
Greene also said, “It’s our job [as journalists] to not take no for an answer when ‘no’ is illegal. I don’t think we should stop taking photos when we are told unlawfully to do so.”
The Denver District Attorney’s office declined to prosecute the officers involved in Greene’s unlawful detention. On August 23, the office stated via email, “Our office has declined to file charges against the police officer involved in connection with the July 5, 2018, incident. There is insufficient evidence to charge and prove beyond a reasonable doubt that the officer’s conduct constituted criminal offenses.”
At the media conference Newman said, “There’s no good reason for the district attorney not to have pressed charges against the officers who were illegally arresting and [who] used excessive force against Ms. Greene.”
The Denver Police Department released a document on August 29 stating, in part:
The Denver Police Department conducted a preliminary review of the officers’ interactions with and detainment of the bystander [Greene] the day of the incident, and opened a formal internal affairs investigation into the matter to determine if the officers acted in accordance with department policies. . . .
Right now, the internal affairs investigation remains underway, and therefore it would be inappropriate for the Department to discuss the incident or officers’ actions in detail. The results of the internal affairs investigation will be made public at the conclusion of the investigation and review process.
The Denver Police Department respects the First Amendment rights of all individuals. Guided by that value, the Department trains officers on First Amendment issues, and recently reiterated to officers the relevant policies involving First Amendment considerations. On July 10, 2018, a training requirement to review the applicable policies was sent to all officers, and on August 16, 2018, a training bulletin was published for officer review.
The bulletin is provided with the online document.
The Department also released extensive body-camera footage of Greene’s detention and surrounding events.
I am not an attorney, but I can read the relevant Colorado statutes as well as anyone.
As I previously reviewed, by a common-sense reading of Colorado’s statutes, the police officers who detained Greene probably committed assault against Greene and almost certainly falsely imprisoned her (if only for a few minutes).
True, the section about false imprisonment specifically mentions the police: “This section shall not apply to a peace officer acting in good faith within the scope of his or her duties.”
Were the officers who detained Greene “acting in good faith within the scope of [their] duties?” Certainly not.
One officer told Greene that photographing the man sitting on the sidewalk was a violation of HIPAA, the Health Insurance Portability and Accountability Act. The officer’s statement was an obvious and transparent lie. HIPAA had nothing to do with Greene’s actions. Quite obviously, the officer lied to Greene in order to try to intimidate her into not exercising her First Amendment rights. Thankfully, Greene didn’t buy the officer’s “Cracker-Jack-brand legal poppycock” (as she later described it).
Ridiculously, the officer in question said that HIPAA “supersedes” the First Amendment—as if a Federal statute could override fundamental Constitutional protections even if the statute were somehow relevant. That a Denver police officer so cavalierly trampled the Bill of Rights is distressing.
But the First Amendment and the Colorado laws against assault and false imprisonment are not the only legal provisions relevant to the case.
In 2015 the Colorado legislature passed, and the governor signed, House Bill 15-1290, “Concerning prohibiting a peace officer from interfering with a person lawfully recording a peace officer-involved incident.” The bill became Colorado Statute 16-3-311, the first line of which states, “A person has the right to lawfully record any incident involving a peace officer and to maintain custody and control of that recording and the device used to record the recording.” Yes, there are some exceptions, none of which were relevant to Greene’s actions.
[August 30 Update:] Also, Colorado Statutes 18-8-803 explicitly outlaws excessive force by police officers. The section states that “a peace officer who uses excessive force in pursuance of such officer’s law enforcement duties shall be subject to the criminal laws of this state to the same degree as any other citizen.” Denver police has no lawful authority to use any force against Greene given the circumstances, so the force that they used necessarily was excessive.
Why This Matters
Why should anyone care about this? Is it that big of a deal? “All” that happened is that Greene was cuffed and put into a police car for a few minutes. I’m sure it was stressful, but it’s not like the police body-slammed, beat, tased, shot, or killed her (as some police officers have done to countless others). Some people have commented via social media that Greene should have respected the privacy of the man on the ground and meekly obeyed the officers’ directions.
This case is a big deal, and Greene is a hero for documenting the police actions at the time and for fighting the police abuses after the fact.
As should be obvious to everyone given widespread media attention of the problem, some police officers are more than capable of abusing members of the public, especially minorities and those who lack social standing.
A central function of journalism is to hold agents of the government to account for their actions. By observing and documenting the incident in question, Greene sought to make sure that officers did not abuse their power and, if they did, that they would later have to answer for doing so.
If journalists and citizens do not monitor the police, the inevitable result will be more police abuses.
As for the spurious claim that complaining about police abuses is somehow “anti-cop,” holding the police accountable is obviously pro-good-cop. When we get those few who abuse their power out of police forces—or at least make sure they face consequences for their actions—the majority of good cops are able to do their jobs more safely and effectively. And, if good cops are wrongly accused of misconduct, third-party observers can help to exonerate them.
The American Civil Liberties Union of Colorado has a “Mobile Justice App” that helps citizens video police actions—and I sincerely hope that more Coloradans download and use it. (Of course people also can use their usual photo and video options.)
If ever you find yourself surrounded by police officers looking to take you into custody, you should sincerely hope that someone like Susan Greene is there to observe and document the incident. Only the few bad cops have something to fear by being observed. If you are unfortunate enough to have such a cop after you, your safety and very life might depend on that cop being observed.
In short, you should hope that Susan Greene, or someone like her, acts like a journalist.