INDEX OF CONFERENCE MATERIALS INCLUDED IN PDF
THE PEOPLE’S LAW PROJECT - MASS DEFENSE IN A SMALL MARKET
2009 NLG Conference Workshop
Friday, October 16, 2009, 8:30-9:45 AM
Seattle, Washington
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Speaker

Description

Index
Agenda for panel presentation
Speaker biographies
Norkin
2009 Guild Notes article: DNC Trials in Denver a Success
Carson
Forms used during the DNC
Carson
Arrestee Intake Form
Carson
Phone script
Pendergrass Overview of the ACLU’s activities during the DNC
Pendergrass Letter from the ACLU to the Denver Sheriff’s Department
Spalding
Structure of the PLP’s legal office during the DNC protests
Vicente
Press release – Aug. 22, 2008
Vicente
Press release – Aug. 28, 2008
Vicente
Press release – Nov. 10, 2008
Vicente
CORA request addressed to Mayor John Hickenlooper
Vicente
Rocky Mountain News article regarding CORA request
Vicente
Face the State article regarding CORA request
Nadler
Rocky Mountain News article regarding 80-y.o. arrestee Cecil Bethea
Nadler
List of charges
Nadler
Summary of case results
Nadler
Timeline of events during mass arrest event
Nadler
Sample Motion to Dismiss – Void for Vagueness
Nadler
Sample Motion in Limine
Nadler
Sample Motion to Suppress ID
Nadler
Sample Theory of Defense jury instruction
1

AGENDA
THE PEOPLE’S LAW PROJECT - MASS DEFENSE IN A SMALL MARKET
2009 NLG Conference Workshop
Friday, October 16, 2009, 8:30-9:45 AM
Seattle, Washington
Moderator: Josh Norkin
I. Shannon Carson
• Mass defense committee
• Legal observer committee
• Logistics committee
• Know Your Rights trainings
II. Taylor Pendergrass
• FOIA litigation
• Pre-convention efforts
o Open records requests
o Negotiations with the city
o KYR booklet
• Post-convention civil litigation
III. Dan Spalding
• PLP's organizational structure
• Comparison of recent mass defense projects
IV. Brian Vicente
• Media strategy
V. Jes Jones
• Legal support of arrestees
• Attorney recruiting and support
VI. Charlie Nadler
• Criminal Litigation
VII. Josh Norkin
• Closing comments
• Q&A

Biographies of 2009 NLG Conference Panel Members
Shannon Carson is a third year law student at the University of Denver. She graduated
from New York University with a BA in Journalism, after which she moved to Denver to
go to law school at Denver University. She was recently elected to the Colorado NLG’s
Steering Committee. She spent the past summer defending misdemeanor clients as a
student intern with the Colorado State Public Defender’s office.
Jes Jones graduated from Northeastern University in 2007. She moved to Colorado and
joined the Colorado Public Defender’s Office in August of 2007. She has been a member
of the NLG since her first year of law school and was recently elected President of the
Colorado NLG Chapter.
Charles Nadler was born, raised and educated in New York City. He first became a
member of the NLG when he entered law school in 1982. Before law school he was a
philosophy professor in Ellensburg, Washington, and union organizer of professors in
Iowa, where he led the first strike at a theological seminary since the University of Paris
in the Middle Ages. After law school, he and his wife started their own firm
representing juveniles and criminal defendants in Iowa. He was a cooperating attorney
for the ACLU, and President of the Iowa Affiliate for three years. During this time, he
practiced bankruptcy, social security, labor law (union side only) and employment law.
At the time he moved to Colorado in 2005, over 75% of his practice was federal criminal
defense. He is a member of the Colorado NLG's Steering Committee.
Joshua Norkin recently graduated from Denver University's Sturm College of Law and
currently practices criminal defense in Denver, Colorado. He is a member of the
Colorado NLG's Steering Committee. He has worked as a congressional staffer in
Washington, done outreach with migrant farm workers in rural Colorado, worked for the
non-profit Rocky Mountain Immigrant Advocacy Network, and has studied and traveled
abroad in Australia, Spain, Costa Rica and Cuba.
Taylor Pendergrass graduated from the Univ. of Colorado School of Law in 2004. He
is currently a staff attorney for the ACLU of Colorado. He joined the NLG during law
school and served as National Vice President of the NLG from 2003-2007. Prior to
joining the ACLU, he worked as a farm labor advocate and organizer in Oregon and
North Carolina after his first and second years of law school. He also worked as a
volunteer attorney with the Rocky Mountain Immigrant Advocacy Network and as a
contract attorney with Boulder County Legal Services.
Dan Spalding is a co-founder of the Midnight Special Law Collective, an Oakland-based
non-profit that facilitates legal trainings for activists and community groups, and provides
legal support for mass actions. In that capacity, Dan has helped coordinate legal support
for such protests as the A16 World Bank/IMF demonstrations in DC in 2000; the Bay

Area anti-war protests in 2003; and the DNC and RNC protests in 2008. A former Legal
Worker Vice President, he works as an ESL teacher to adults in Oakland.
Brian Vicente is an active defense attorney in Colorado and serves as executive director
of Sensible Colorado, a non-profit working for effective and humane drug policy in
Colorado. He currently serves as the chairman of the Denver Mayor’s Marijuana Policy
Review Panel, coordinates the Colorado Bar Association's Drug Policy Project, and
serves as director of the People's Law Project, a legal collective defending First
Amendment rights at the 2008 Democratic National Convention.

*The following article was published in the Spring 2009 edition of Guild Notes

DNC TRIALS IN DENVER A SUCCESS
By Joshua Norkin
On the first night of the Democratic National Convention, August 25, 2008, the
Denver Police Department arrested over one hundred people, including innocent
photographers, members of the press, legal observers and bystanders. Each was
uniformly charged with three municipal ordinances: Obstruction of Streets, Interference,
and Failure to Obey a lawful order.
That same night, the Colorado Chapter of the National Lawyers Guild, under the
banner of the People’s Law Project (PLP), had attorneys working round the clock to
advise those being held in a makeshift police detention facility in downtown Denver.
These attorneys were successful in advising nearly all one hundred arrestees, and
approximately sixty of those individuals would later ask for jury trials. It was an
amazing feat, and in the following months the People’s Law Project worked hard to make
sure that every individual who wanted free legal representation would have it.
The ensuing trials were a striking achievement. Over the course of six months the
legal community in Denver came together under the PLP banner and succeeded in having
forty of the sixty cases set for trial result in acquittals or dismissals. Defense counsel
also managed to have two of the three charges dropped in every case. Despite the
instance of the police in probable cause videos, nobody was every given a lawful order to
disperse.
These victories can be attributed to a sound organizational structure of dedicated
individuals and a carefully thought out “mass defense” strategy. Involved attorneys met
at least once weekly during the trials and the PLP organized informational sessions and
attorney round tables. Organizers also managed a fully functioning list-serve and
website. Such a high level of involvement allowed attorneys to build on mistakes, fine
tune strategies, share cross-examination techniques and perfect motions. Because each
case was essentially the same fact pattern, with slight variation, attorneys were able to
work together to perfect a winning trial strategy; the results were overwhelming.
The trials themselves were inconceivable to the casual onlooker as well as many
clients. Those in the courtroom found it hard to believe that prosecutors were willing to
try so many individuals with so little evidence. Prosecutors worked hard to convict
individuals based on a theory of guilt by association. Everyone was painted as an
“anarchist” who was determined to raze downtown Denver. Defendants were accused of
throwing missiles, vandalism and even filling bags full of urine and feces to throw at the
police. However, no defendant was ever charged with those crimes and no evidence was
ever introduced to suggest that those activities had even occurred.
Defense attorneys worked hard to counter the false perceptions that were being
fed to the jury. For many, the theory of defense was to insist that the defendants were

being tried as individuals, and not as a group. This was supported by the lack of any
individualized evidence. Many defendants faced a trial in which prosecutors had a
admittedly circumstantial case.
Critical testimony was given by Scott Humphreys and Cecil Bethea. A student at
University of Colorado Boulder, and a trained NLG legal observer, Humphreys provided
a critical thirty minute video tape that one Judge called “the smoking gun”. Unlike the
several police videos that were turned over in discovery, Humphreys’ video had a time
stamp and ran continuously from before the arrest until the very end. Humphreys’ was
able to testify to the fact that police had surrounded people, blocking egress, within just
two minutes. The video directly contradicted police testimony that protesters were
violent and threatening toward the police and free to come and go for up to an hour.
Bethea’s story was perhaps the incidents most compelling. Bethea, in his mideighties, was on his way home from the library when he encountered a crowd that he
described as a “Butch Cassidy look-alike contest”. By the time he reached the end of the
block the police, dressed like “armadillo man” had already shut-down the entire street in
both directions. Bethea had nowhere to go. So he waited and then eventually sat down
when commanded to do so by officers. He was then approached by two officers from
behind; they lifted him up off the ground by forcefully pulling his arms behind his back.
Bethea was in pain. But it got worse. Bethea was then brought to the mass arrest area
where he was searched. Eventually, one of the officers realized Bethea must not have
been part of the protest. Bethea later commented that “I didn’t know the Constitution had
any age limits”.
The Colorado Guild is currently working to build its membership base following
the success of the PLP. Colorado hopes to establish another working project in the areas
of immigration or police brutality over the course of the next year.

People’s Law Project – DNC Documents
The following pages contain a sample of the Arrestee Intake
Form used during the DNC along with a model phone script that
was used by the volunteers who answered the phones.
Other forms that were used during the DNC include:
• Evidence Intake Form
• Jail Support Form
• Out-take Form
• Police Misconduct Report Form
• Witness Statement Form
Current versions of these forms can be found at:
www.midnightspecial.net/materials/actionlegal.html

Date:

Time:

ARRESTEE INTAKE FORM

One form per arrestee

Possible duplicate?

(*) is important

Personal
* First name
* Exact last name

Y

Arrest
* Do you want to see a lawyer?

Y / N

* Do you want to bond out?

Y / N

Nickname

Arrest date

* Date of birth

Time of arrest

Gender ID

Location

Phone

Charge(s)

Email

Arresting officer

Address

Badge #

City, state, zip

Incident ID#

Medical
* Med conditions

Your name:

Citation #
Witness name
Witness phone

Jail

Medications and
dosage/instruct.

Facility
Booking #

Doctor name

Exact location

Court Dates

Doctor phone
Notes

Location

date

Location

date

Outside Support

Lawyer

*Affinity group (AG)

Name

(AG) support person

Agency

Phone

Phone

Notes

www.dnc-plp.org

08/20/08

People's Law Project

Calls from the street 
 
Answer the phone by saying “People’s Law Project, this call may be monitored.” 
 
Write all this information into the notebook at your call station: 
•

Date and time 

•

Name of caller 

•

Exact location of caller 

•

Call back number (email & landline #, too, if it's an extreme situation) 

•

The message 
o If they're taking too long, let them know we need to keep the phone lines open 

 
For calls regarding police brutality or harassment: 

•
•
•
•
•
•
•
•
•

Briefly, what’s happening? 
Where exactly are you?  How close are you to the incident?  
Are any Legal Observers or media seeing it? How many?  If not, can you direct their attention 
to it?  
Are there any medics? Do you need the number for the Medical Team?  
Is the victim(s) detained or arrested? (Held down, behind police lines, handcuffed?) 
How many police are present? (Estimates are ok) 
Can you see the names or badge numbers of police? Have you recorded or can you record this 
information? 
Can you get the names and contact info of Legal Observers, media, medics, and other 
witnesses? If you can’t write them down, can you dictate them to me over the phone? 
You can get a Police Misconduct Report from a Legal Observer, or download one from our 
website and mail it in.   

• [Tell a core person as soon as you hang up] 
 
Make a note as to your perceptions of the witness — did they sound upset? scared? angry?  
 
Highlight all entries in your notebook regarding police misconduct or brutality in blue. 
 

Phone Script

8/23/08

PLP - p1 of 6

When police are arresting people 
 
Answer the phone by saying “People’s Law Project, this call may be monitored.” 
•

How many people are being arrested? Count or estimate numbers. 

•

Are any Legal Observers or media seeing it? How many?  If not, can you direct their attention 
to it?  

•

Are the police using any force? (shoving, tackling, pain compliance holds) 

•

Can you find out if the arrestees know the legal hotline number? Do you see it written on their 
arms or legs?  Can you get close enough to tell them the number?  

•

Can you hear if they're saying, "I am going to remain silent, I want to see a lawyer"? Can you 
get close enough to suggest that they do this?  

•

Are any arrestees using non‐compliance (going limp, etc)?  

•

Are there any medics? Do you need the number for the medics?  

•

Are there buses, vans, or other police vehicles nearby?  

•

Is the situation escalating? 

•

[Fill out Arrestee Intake Forms for each individual who gets arrested – even if we only have 
partial identifying info for them (like just first name)] 

•

[Tell a core person as soon as you hang up] 

 
Highlight reports of arrests in your notebook in yellow.   
 
 

 

Phone Script

8/23/08

PLP - p2 of 6

Calls from jail 
 
All information received from people calling from jail for the first time should be recorded on the 
Arrestee Intake Form.  Ask the questions with stars (*) next to them first.   
Put this form in the 
Arrestee Intake Form box.  This is extremely important for keeping track of arrestees.   
 
Answer the phone by saying “People’s Law Project, this call may be monitored.” 
•

What's your name? 

•

Are there any medical or other emergencies?  [If yes, tell a core person as soon as you hang 
up and highlight in pink.]  

•

Is this your first call to the legal hotline?  
1. If yes, then continue down this script.   
2. If no, ask if they have any updates on their situation.  If they do, then find their arrestee 
form (if you have time) and take updates on it.  If you can't find it, or if the phones are 
ringing off the hook, write down their updated information on another arrestee intake 
form.  Check the box for “Possible duplicate?” and write in big letters at the top of the 
form, “UPDATED INFORMATION FROM JAIL [date and time]”) 
3. If they've called before and have no updates, skip to the "Emotional support" section 
below. 

•

Were you arrested with others or by yourself?  Does anyone need immediate attention? Has 
anyone been separated from the group? 

•

How many people are with you? What are their names and booking numbers? 

•

Do you or anyone else there have a designated legal support person?  Who are they and have 
they been contacted? (Write the name and contact information under “(AG) Support Person” 
in the Personal section) 

•

Have you asked to see a lawyer?  Who have you asked? What did they say? Do you know the 
name(s) and badge number(s) of the person(s) you asked?  

•

Have the cops tried to question anyone?  Has everyone invoked their rights by saying the Magic 
Words — "I am going to remain silent.  I want a lawyer."?  

•

Have you discussed with others what you want to do? (Bond out, stay in jail until arraignments, 
etc.) 

•

Do you feel you have been mistreated in any way?  

•

Do you feel like you are in special circumstances and need to cite out right away? 
 

 
All calls from jail are recorded.  Certain things should not be discussed over the phone: 
— Immigration status of a particular person 
— Individual involvement in event that led to arrest  
Phone Script

8/23/08

PLP - p3 of 6

— Any admission of crime or intent to commit a crime 
 
If someone begins to talk to you about these things, remind them again that the call is probably 
recorded.  Suggest they wait until they see a lawyer to try to explain what's going on or certain 
problems they may have.  Tell them that we will make extra effort to get lawyers in to see people who 
have special circumstances that may cause them to be targeted.  
 
Don’t promise that we can get them a lawyer right away, only that we’re doing everything we can. 
 
Answer questions, but don’t spread rumors. 
 
Again, if anyone needs emergency help, tell a core person as soon as you hang up and highlight in 
pink. 
 
 

When people call from jail for emotional support: 
•

Listen. 

•

Let them know generally we are doing what we can — sending lawyers to the jails, talking to 
the prosecutor's office, etc.  

•

Let them know about other support — people calling the jails, court, mayor, etc. to demand 
the arrestees' release; jail vigil outside (or jail vigil being organized); press conferences and high 
media interest.  

 
 
When people call about mistreatment in jail: 
•

Ask if they need or if they have requested medical attention. 

•

Ask about identification/badge numbers, names, physical descriptions of police or guards; ask 
them to pay close attention to these things in the future. 

•

Take detailed notes on what they're telling you in your log.  Make a note next to the person's 
name on the list of arrestees of time, date and your name.  

•

Tell them that we will have Police Misconduct Reports available when they get out and that 
they should fill one out then. 

•

[Highlight police brutality in blue.] 

Phone Script

8/23/08

PLP - p4 of 6

If they are calling from jail with specific legal questions:  
•

Remind them that you are not a lawyer, but that the People's Law Project is working with 
lawyers.  

•

If the office isn't too busy, ask a core person to talk on the phone with them. 

•

If they really need the answer and the core people in the office are too busy, write down the 
questions and tell them you will get the answer(s) as soon as possible or try to get a lawyer to 
come and answer the question directly.   

 
 

If they are calling from jail with messages for lawyers: 
•

If they have sensitive information or messages that can only be given to or through lawyers: 
o Ask them what the message is regarding in general and how they would rank its 
urgency on a scale of 1‐5, 5 being extremely urgent.   
o Write down the request for a lawyer, the request, and the urgency number. 

•

[Relay information to core members they call the lawyers.] 

 
 
Calls from family and friends 
 

Early in the action: 
•

The caller wants to know what the legal hotline is or who you are.  
o The legal hotline is staffed by volunteers for the People’s Law Project, whose mission is 
to provide emotional and legal support to activists participating in the demonstrations.  
Our priority right now is taking calls from people reporting brutality and arrests 
happening on the streets and for people calling from jail who have been arrested.   

 
•

The person wants to know if their friend/relative has been arrested.  
o If you believe your (friend/relative) has been arrested, you might want to call back later 
when we've heard from more arrestees and have better information.  It takes a while 
for police to process people, and arrested activists are sometimes denied their right to a 
phone call, and we expect the police will continue to make arrests, so no matter when 
you call, there is a good chance that our list will not be complete.  However, you are 
welcome to call back, and if we aren’t too busy, we would be happy to try to answer 
your questions. 

Middle or Later in the Action  
Phone Script

8/23/08

PLP - p5 of 6

(after you have some arrestee information compiled, and if the phones aren’t ringing off the hook 
with calls from jail) 
 
The caller wants to know if their friend/relative has been arrested. 
•

What is the name of the person you are looking for? 
o If the office is not busy and you have time then proceed.  
ƒ

Otherwise, say “Sorry, we can't look this information up right now because we 
have to keep the phone lines open for people calling from jail.  Try calling back 
later, and in the meantime try to stay by a phone that they can call you from.” 

o Check the list of confirmed arrestees for the name  
o If you find the name: Yes, _______ is in jail.  The legal team is working on getting 
lawyers into the jail as soon as possible.  Reassure the caller that the person is ok, that 
they are with other activists, and that they are taking care of each other (if you know 
this to be true). 
o If you do not find the name: “We don’t have this person on our list, but that doesn't 
mean that s/he wasn't arrested.  Our list is incomplete ‐ it takes a while for police to 
process people, arrested activists are sometimes denied their right to a phone call, and 
not everyone knows the legal hotline number.  You can call the jail and see if _______ 
has been booked.  The number for the jail is:  (xxx)XXX‐XXXX.  
o If you have time, and/or the person is dissatisfied, angry, or upset: 

Phone Script

ƒ

I hear your concern(s), and we are doing all we can to help those who have 
been/are being arrested.  There is something else you can do – you can call the 
mayor, the sheriff, the police chief/commissioner, the jails and the media and tell 
them you are outraged at their disregard for and repression of constitutional 
rights and the unlawful arrests of people expressing their First Amendment 
rights.   

ƒ

You can find their numbers on our website – www.dnc‐plp.org  

ƒ

I know this is a stressful time for all of us.  We’re doing all we can to help those 
being persecuted for their political activity.  Stay strong.

8/23/08

PLP - p6 of 6

FOUNDATION

AMERICAN CIVIL LIBERTIES UNION
of COLORADO

Rehan Hasan, Chair ΠMark Silverstein, Legal Director

Avenues for Human and Civil Rights Advocacy and Litigation at Mass Events 
Case Study:  2008 Democratic National Convention, Denver, Colorado 
 
All of the advocacy letters, education materials, and legal pleadings discussed in  
this outline are available online at:  <http://www.aclu‐co.org/dnc/dnc.htm> 
 
Before and after the Democratic National Convention in Denver in 2008, the ACLU of Colorado 
worked in four broad areas:  1) free speech and Fourth Amendment rights; 2) conditions of 
confinement and due process for arrestees; 3) local and federal surveillance of activists and 
protestors; 4) accountability.  For each of these above broad categories, we made strategic 
choices about employing one or more of the following:  a) non‐public advocacy, or public 
advocacy combined with media strategies; b) public education and outreach; c) litigation. 
 
Regardless of your event or community, many or all of the above issues might be considered by 
organizers, activists, legal workers, lawyers and others protecting human and civil rights during 
the event.  Depending on your local politics, resources, strategies and goals, some of the ACLU’s 
experiences might be useful touchstones or references for your mass event. 
 
1.  Free Speech and Fourth Amendment Rights 
 
In 2008 in Denver, the ACLU’s focused its efforts on ensuring that Denver’s legal and policy 
framework accommodated the broadest range of First Amendment activity, with the goal of 
maximizing free speech opportunities and decreasing grounds on which officers could validly 
make stops, searches or arrests.  Some examples of these efforts included: 
 
• Non‐public and public advocacy that resulted in sweeping changes to the City’s 
ordinances related to parades and use of public parks.  As a result, the City made 
changes that included:  abandoning a proposal that a government permit applicant 
would “win” over a private permit applicant in the event of two competing permit 
applications for a public forum; formally recognizing in the ordinance that 
“spontaneous” marches and events required no permit; reducing and eliminating 
certain permitting fees and indemnity/insurance requirements; creating a clear appeals 
procedure for permit denials with clear timeframes; restricting discretion for officials 
charged with approving or denying permits; striking virtually discretionless arrest 
authority for certain permit violations.  The advocacy was not successful in lobbying for 
an end to a ban on overnight camping in City parks. 
 
• Public advocacy letter that resulted in City abandoning their position that its officers 
would make full custodial arrests in all circumstances during the DNC, even for minor 
violations. 

400 Corona Street ΠDenver, CO 80218-3915 Π303-777-5482 ΠFAX 303-777-1773

ACLU of Colorado… because liberty cannot protect itself.

 
• Litigation against Denver and the United States Secret Service challenging their refusal 
to commit to a timetable for announcing security restrictions around the convention 
center, and challenging the location and size of the “public viewing area,” i.e., “free 
speech zone.”  The litigation was successful in forcing the disclosure of all security plans 
and timetables for permit processing well in advance of the DNC, and in convincing 
Denver to abandon plans for suspicionless searching of bags within the “free speech 
zone.”  The court refused to alter the location or size of the “free speech zone” or 
designated parade route. 
 
• Drafted a Colorado‐specific “Know Your Rights” booklet and, in conjunction with the 
People’s Law Project, distributed thousands before and during the DNC at numerous 
KYR trainings held by PLP. 
 
• Filed an open records act request seeking records of how Denver was spending $50 
million dollars in federal money for “security” purposes, with emphasis on the purchase 
of so‐called “less lethal” weaponry.  Filed successful open records act lawsuit when 
Denver refused to divulge the requested records. 
 
• Demanded information from Denver on what policies, procedures and accountability 
mechanism would apply to thousands of officers coming to DNC from outside 
jurisdictions across the state. 
 
• Sent public advocacy letter during the DNC regarding lack of badge numbers on officers 
patrolling the streets, and lodged immediate public critique regarding mass arrest of 
August 25, 2008. 
 
2.  Conditions of Confinement and Due Process for Arrestees 
 
While the above efforts were aimed, in part, at decreasing the possibility that law enforcement 
officers would make arrests, the ACLU also focused on trying to insure that if and when arrests 
occurred, that arrestees were accorded safe, sanitary and constitutional conditions of 
confinement and due process.  
 
• Numerous public advocacy letters requesting information on Denver’s detention plans 
and demanding that Denver commit to ensuring particular constitutional and statutory 
rights, and have proper contingency plans for health and overcrowding emergencies. 
 
• Filed successful open records act lawsuit when Denver refused to divulge detention 
policy manual in response to open records act request. 
 
• Demanded that Denver commit to affording all arrestees the right to meet immediately 
with an attorney at the DNC detention facility, as guaranteed by Colorado law.  Drafted 
Page 2 of 3

flyers informing protestors of this particular Colorado right and how to exercise it, 
distributed by PLP.  Advocacy paved way for class action claims after the DNC. 
 
3. Local and Federal Surveillance of Activists and Protestors 
 
Leading up to and during the DNC, the ACLU attempted to keep the issue of government 
surveillance in the public eye through the use of open records act/FOIA requests and media 
strategies. 
 
• FOIA requests related to surveillance at past National Special Security Events (NSSE’s). 
 
• Colorado open records act requests related to plans for video surveillance and local law 
enforcement officers’ involvement in surveillance. 
 
• Held press conference on FBI “Special Bulletin” sent to all Denver law enforcement 
agents that listed innocuous objects such as bikes and maps as tools of “violent 
demonstrators”; press conference featured homeowner who had been repairing her 
chimney and was interrogated by officers for having a “stockpile” of bricks. 
 
• Publicly filed complaint with Denver’s police monitor regarding law enforcement deputy 
discovered posing as a protestor and accidentally doused with OC spray by other law 
enforcement officers. 
 
4. Accountability 
 
•  Filed a series of public complaints with Denver’s police monitor during and after the 
DNC regarding use of force, mass arrests, and Denver’s failure to perform an adequate 
internal investigation.  Complaints helped make Denver commit to version of events, 
generated internal interviews and paper later useful in litigation, and added momentum 
to long term struggle for overhaul of Denver’s police monitoring structure. 
 
• Filed post‐convention FOIA request to federal agencies regarding surveillance of 
protestors. 
 
• Filed civil litigation regarding mass arrests on August 25, 2008, including class action 
claims on behalf of all arrestees denied the right to meet with an attorney; and First and 
Fourth Amendment claims on behalf of those wrongfully arrested.   

Page 3 of 3

Cathryn L. Hazouri, Executive Director

Œ

FOUNDATION

AMERICAN CIVIL LIBERTIES UNION
of COLORADO

Mark Silverstein, Legal Director

August 27, 2008
Mr. William Lovingier
Director of Corrections and Undersheriff
Denver Sheriff Department
1437 Bannock Street, Room 405
Denver, CO 80202
VIA EMAIL to Alvin.lacabe@denvergov.org
David Fine
Office of the City Attorney
1437 Bannock St., Room 353
Denver, CO 80202
VIA EMAIL to david.fine@denvergov.org
Re: Problems resulting from mass arrests
Dear Director Lovingier and Mr. Fine:
In the aftermath of the mass arrests made by the City and County of Denver on
August 25th, 2008, I write to address issues arising from those arrests and
connected to the City’s refusal to permit attorney from the People’s Law Project
and the American Civil Liberties Union of Colorado access to arrestees held at
the Temporary Arrestee Processing Site (TAPS).
As you know, prior to the DNC the ACLU of Colorado expressed concerns about
the conditions of confinement at TAPS. Some of these concerns were
communicated in an August 6, 2008 letter sent to Director Lovingier and
Manager of Safety Al LaCabe, and copied to Mr. Fine1 , and included ensuring
confidential visits with attorneys at any place of custody pursuant to C.R.S. §§
16-3-403 & 404, providing access to adequate food and water, prompt
processing, and the health and safety of the detainees.
The City assured the ACLU that it had considered and addressed many of the
ACLU’s other concerns. The City ultimately refused, however, to permit attorney
access at TAPS.
Unfortunately, when these assurances were tested by the mass influx of
arrestees to TAPS during of Monday evening, August 25th, and Tuesday
morning, August 26th, several problems quickly emerged.
1

http://www.aclu-co.org/dnc/Lovingier.LaCabe.ACLU.detentionfacility.08-06-08.pdf

400 Corona Street ΠDenver, CO 80218-3915 Π303-777-5482 x114 ΠFAX 303-777-1773

ACLU of Colorado… because liberty cannot protect itself.

Although we are still gathering information and interviewing persons detained at
TAPS, the initial information we have gathered raises serious questions
regarding whether there were systemic and pervasive violations of the
constitutional and statutory rights of those detainees, and their rights under
international law. The combination of the conditions at TAPS and the lack of any
confidential consultation with attorneys may have put undue pressure on those
arrested on the evening of August 25th to plead guilty to charges simply to
escape confinement.
I write now to address these concerns and request that the City remedy these
problems to correct any problems before any future mass arrests occur.
1. Mass Arrests on the Evening of August 25th, 2008
Although the legality of the mass arrests of persons on the evening of August 25,
2008 is not the subject of this letter, the health and safety of the persons held in
custody by Denver at TAPS cannot be fully addressed without understanding the
events that lead to their confinement.
We are still investigating the events that lead to the corralling of hundreds of
citizens on 15th Street between Court and Cleveland. What we do know is that at
after some interactions between law enforcement and civilians in and around
Civic Center park, a large group of persons walked down Colfax Avenue and
onto 15th Street, where any further progress was stopped by an array of law
enforcement officers blockading 15th Street at Court.
The group that proceeded to 15th Street appear to include 1) protestors who had
been standing in the public streets around Bannock, 2) protestors who were
obeying all laws by standing only on the sidewalks, 3) interested onlookers and
bystanders from Civic Center Park, the 16th Street Mall and the downtown area
who followed the crowd to see what was occurring or otherwise found
themselves blocked in with the crowd, 4) members of the media, and 5) Legal
Observers from the People’s Law Project (“PLP”) of the National Lawyers Guild.
As this group came down 15th Street and saw that any further progress was
impeded, another group of law enforcement officers closed off 15th Street from
the southeast side on Cleveland, completely blocking several hundred people in
that small section of 15th Street between Cleveland and Court, and not permitting
anyone to leave the area.
It is not clear whether any order to disperse was ever given. No Legal Observer,
witness or arrestee on the scene we’ve debriefed heard any order to disperse. If
one was given, it was not audible to many of the persons trapped inside of 15th
Street between Cleveland and Court, nor was it audible to me at the corner of
15th and Court or to our Legal Observers inside the cordon.

Page 2 of 10

Even if an order to disperse was given and could have been heard, however, it
may have made little difference as officers who had cordoned off 15th Street were
initially refusing to allow anyone to leave. Numerous persons, including
attorneys serving as Legal Observers, asked to be able to leave the blockaded
area and were refused. At some point, additional lines of law enforcement
officers began to subdivide the area between the street and the sidewalks,
forcing more persons off the sidewalk and onto the street. During the time that
people were trapped on 15th Street, law enforcement officers deployed chemical
agents, including pepperball rounds, and used other physical force on the
persons trapped inside of the cordon.
Eventually, law enforcement officers began releasing some persons and making
full custodial arrests of others. It is not yet clear what the methodology or criteria
were for determining whether a person would be released or arrested.
2. Time in custody at the arrest site
By approximately 7:00 p.m., if not earlier, it was clear that persons trapped inside
the police cordon on 15th Street were not free to leave and were being held in the
custody of the City’s law enforcement officers. The persons who were ultimately
arrested that night spent the next several hours in the custody of the City while
officers determined who they were going to arrest. For those arrested, after
hours in custody waiting sitting on the road or sidewalk, they then spent more
time during a videotaped probable cause statement and other arrest processing
at the site. Eventually, they were placed on a bus and transported to TAPS.
Thus, by the time they had reached TAPS, arrestees had already been detained
and in the custody of the City for hours.
3. Denial of attorney access at TAPS
After the arrests, attorneys from the People’s Law Project and the ACLU arrived
at TAPS to conduct confidential attorney-client consultations with persons in
custody detained there, as guaranteed by Colorado law. The PLP and ALCU
attorneys had specific names of clients who wished to meet with them. Although
these persons had now been in the custody of the City for hours, the City refused
to provide any access to allow these persons to meet with attorneys.
4. Time in Custody at TAPS
The City had assured the ACLU and the public that processing times would be as
fast as 60 persons per hour. 2 Early reports indicated that 84 arrestees were sent
to TAPS within a short time frame on the night of August 25th. Later reports we
received from court personnel indicated that this number may have been as high
as 139.
2

No Razor Wire At Denver's Convention Holding Cells, P. Solomon Banda, CBS 4 News
(available at http://cbs4denver.com/local/denver.convention.holding.2.799498.html).
Page 3 of 10

Arrestees spent hours in custody at TAPS. The last group of arrestees was still
arriving at the City and County building late into the morning of August 26th, after
spending hours at TAPS. It is unclear whether this delay was because the
processing times at TAPS were far longer than the City had publicly estimated
(139 arrestees arriving en masse would have taken about 2 ½ hours to process
by the City’s estimates; if they arrived in groups that never exceeded 60,
presumably they all should have been processed within one hour), or because
the persons were processed in one hour as anticipated but then had to wait for
space at the City and County building before transport. In any event, however, it
is clear that TAPS was and is a detention facility, as some arrestees who did not
make their own bond spent 6, 7, 8 or more hours waiting at TAPS before being
transferred to court.
5. Conditions of confinement at TAPS
Reports of the conditions of confinement at TAPS are disturbing. The allegations
reported by arrestees held at TAPS includes, but is not limited to:
•

Numerous arrestees report being denied the right to make any phone call
at TAPS despite requests to do so;

•

A larger number of arrestees was permitted to make a short phone call,
but only after they had been forced to make a decision regarding whether
or not to post their own bond; 3

•

Arrestees who were exposed directly or indirectly to pepper spray report
not being decontaminated at the arrest site nor at TAPS;

•

Arrestees who were vegetarian or vegan, which was a large portion of the
arrestees, were not given any food at all, not even non-animal portions of
the standard brown bag meals;

•

Universally, arrestees report that TAPS was kept incredibly cold. Many
arrestees, who were arrested outside on a hot and sunny August day,
were dressed in tank tops and shorts, or other light clothing. Some were
shirtless when arrested. Arrestees who reported requesting blankets were
not given any. Many arrestees were kept in holding pens where tubes
running from the air conditioning trucks outside were venting directly and
forcefully into their cells from across an open floor;

•

Arrestees were kept barefoot at TAPS. I personally saw one such
arrestee later at the City and County Building. I saw her marched from the

3

Had the phone call been permitted earlier, arrestees could have been counseled on their bond
options, and the positive and negative consequences of posting their own bond.
Page 4 of 10

elevator to the courtroom in bare feet and leg shackles. I saw her appear
in front of the judge in bare feet. At least one other arrestee I personally
saw in court was missing one shoe and was sock-footed.
6. Misinformation provided to arrestees at TAPS
During an August 14th, 2008, meeting between myself, Manager LaCabe,
Director Lovingier, Mr. Fine and ACLU of Colorado Legal Director Mark
Silverstein, we discussed the ACLU’s position that attorney access had to be
provided at TAPS. Manager LaCabe questioned the purpose of such attorney
access. The night of August 25th and 26th drew into sharp relief just how critical
that access would have been, and how the City’s decision to deny arrestees that
access fundamentally prejudiced their most basic rights.
The City provided arrestees with pre-printed forms, or “trip tickets,” that purported
to contain all the charges that were being lodged against the arrestee. The forms
almost universally contained charges such as obstructing streets and
interference with police authority. In addition, however, the forms included
additional other charges that included begging, loitering, and throwing stones and
missiles. Arrestees looking at the forms thought that they were facing 6, 7 or 8
different charges.
It was not until later that an assistant city attorney explained, for the first time,
that the charges for arrestees were “pre-printed” on the forms, and that the
protocol was supposed to have been to “cross-out” the charges that arrestees
were not facing, with the remaining charges being the ones actually brought
against arrestees. The assistant attorney explained that that it had been an error
that the charges were not “crossed-out.”
In addition, the summons and complaint form filled out by officers reflected
precisely the same error—on the face of the summons there were typed charges
that made it erroneously appear that the arrestee was facing numerous charges
which, according to the City’s questionable protocol, should have been “crossed
out.” In addition, on some summons forms officers had mistakenly written-in or
checked off charges by hand in addition to the pre-printed charges. Thus, one
arrestee’s summons and complaint form that I reviewed appeared to have 6
charges, but upon further inspection it revealed that 2 pairs of the charges were
duplicates—the arrestee was actually only charged with 2 ordinance violations,
not 6.
In addition, it was evident that the arrestees were laboring under a myriad of
misunderstandings and misinformation that was predictably highly coercive in
convincing an arrestee to plead guilty, and could have been remedied if they
were provided a confidential visit with legal counsel, including, but not limited to:
•

If they plead not guilty they could not post bond;
Page 5 of 10

•

If they plead not guilty would result in a “double-sentence” if they were
convicted;

•

If they plead “not guilty” they could not later change their plea;

•

They were facing “years” in jail for a conviction of a single particular
charge; 4

•

That third parties could not post their bond;

•

A number of other basic and common misunderstandings about the
complicated criminal justice process including, but not limited to, lack of
information for out-of-town arrestees about the possibility of moving or
continuing future court dates.

7. Conditions of confinement at the City and County Building
After being moved from TAPS, arrestees were brought to the fourth floor of the
City and County building. Nearly all were flexi-cuffed on the right wrist to another
person on the right wrist, which was a painful and uncomfortable position
especially when seated in rows of seats in the jury box, as one person had to
constantly have his or her arm draped over her body at all times. The arrestees
were also put in leg shackles. Arrestees remained flexi-cuffed to other arrestees
even when they were inside the holding cells. Even more shocking, however,
was that deputies refused to release persons from flexi-cuffs for the purpose of
using the bathroom. Thus, arrestees that had to use the restroom were forced to
do so while be flexi-cuffed to another person. 5
8. Attorney-client visits denied at City and County Building
It was our understanding from Director Lovingier that although the City refused to
allow attorneys access to TAPS, arrestees would be permitted to have
confidential meetings in private rooms with attorneys at the City and County
Building. During the night of August 25th and 26th, however, we learned for the
first time that no confidential meetings with arrestees would be provided at all.
Attorneys from the PLP and ACLU were not permitted a single confidential
attorney visit with any arrestee at the City and County building. The only
meetings that the sheriff’s department permitted prior to court appearance was to
allow PLP and ACLU attorneys to speak to arrestees in the holding cells, or
“cages,” on the fourth floor of the City and County Building, in the presence of
4

In fact, all the charges were municipal court violations that do not carry such penalties.
In addition, although deputies clipped the middle of the flexi-cuffs apart upon release from jail,
they sometimes left the actual cuffs on like bracelets. One arrestee came to the PLP office and
had to use wire cutters to remove his flexi-cuffs.
5

Page 6 of 10

sheriff’s deputies and other arrestees, and only for a few minutes. ACLU and
PLP attorneys were never permitted to meet one-on-one with a single client at
the City and County Building. Later, the sheriff’s office changed course and
prohibited even these limited non-confidential visits on the 4th floor.
Even when arrestees were brought down to court, ACLU and PLP attorneys and
arrestees were not provided with any opportunity for a confidential visit. The only
access we were given to these clients was to whisper with them while the clients
were in the jury gallery, in open court in front of the judge, court staff, assistant
city attorneys, a reporter from the Rocky Mountain News in the gallery, and
sheriff deputies. In addition, because of the fact that each arrestee was flexicuffed to another arrestee in the same awkward fashion, it was not even possible
to whisper to a client without another arrestees’ ear being literally inches away
from the conversation. Even these limited, non-confidential conversations were
incredibly brief, as they could be conducted only in open court while the court
was waiting for pleas to be entered.
9. The City did not tell ACLU and PLP attorneys about arrestees at PADF
We had long understood that every person arrested during the DNC on municipal
charges would be processed at the TAPS and brought to the City and County
building for a hearing. We also understood that because things would be moving
relatively quickly, it would be nearly impossible for the sheriff or the court to
inform attorneys in advance of who would be appearing in court. Thus, the only
way an attorney could make sure he or she was present to appear with his client
in court would be to “camp out” in the courtrooms and wait for the client to
appear. In fact, several private attorneys were in the courtroom doing just that,
along with PLP and ACLU attorneys, in the wee morning hours of August 26,
2008.
The City was well aware that PLP and ACLU attorneys were ready, willing and
able to meet with any person arrested during the DNC, and more specifically,
that PLP and ACLU attorneys were at the court from 11 p.m. on the night of
August 25th, 2008 and were staying until each and every arrestee came to the
City and County Building. I personally spoke with DSD sergeants each time I
was permitted into the cages, and requested and received updates on when the
next buses were coming from TAPS and how many arrestees were left at TAPS.
In the early morning of August 26, 2008, we were told that that there were only
approximately 50 arrestees left at TAPS who were coming shortly in two buses, a
bus of 22 and a bus of 30. Later that morning, however, after only seeing
perhaps an additional two-dozen arrestees, ACLU and PLP attorneys were
abruptly told that all the arrestees had been brought over, although clearly 50
additional arrestees had not come through court by that time.

Page 7 of 10

It wasn’t until later that the ACLU and PLP learned from the friends and relatives
of other arrestees that a significant number of arrestees had been taken to
Denver’s Pre-Arraignment Detention Facility (“PADF”), not the City and County
building. Although City officials knew that ACLU and PLP attorneys were ready
and able to meet with arrestees, we were lead to believe that all the arrestees
had come from TAPS and had their court hearings. In fact, a substantial number
of arrestees were transported to the PADF, contrary to the process that was
communicated to us prior to the DNC. Had we been informed that people were
being detained at PADF, we would have had confidential visits with those
arrestees. 6
Arrestees at PADF reported that they believed they were separated from other
arrestees because the City had identified them as “organizers” or “ringleaders,”
although it is unclear what criteria or evidence the City could have relied upon to
make any such alleged designation. We look forward to getting more information
from the City on why this last group of arrestees was sent to PADF instead of
through the announced protocol, and why ACLU and PLP attorneys were not
notified that arrestees were at custody in PADF, but rather lead to believe that all
arrestees had come to court.
10. Arrestees may have entered unknowing and involuntary guilty pleas
It cannot be underestimated how gravely and seriously the misinformation
provided by the City, the denial of telephone access, the denial of confidential
attorney visits at TAPS, the denial of confidential attorney visits at the City and
County building, and the conditions of confinement and general fatigue
prejudiced the rights of these arrestees and their ability to rationally and
knowingly make informed decisions about the charges brought against them.
Most critically, of course, arrestees at TAPS never had the chance to be
counseled by attorneys who could have asked them questions about the facts of
the events of that evening, and discussed whether there were serious questions
regarding the existence of probable cause for their arrest and whether the
government would be able to prove the elements of the crime beyond a
reasonable doubt. Of course, a citizen’s access to information about the nature
of the charges, the elements the government must prove to convince a jury to
convict them of those charges, and possible defenses is a fundamental part of
legal counsel in our criminal justice system.
In addition, the other circumstances described in this letter, individually and in
their totality, call into question whether any guilty plea could have possibly been
knowing or voluntary. After spending hours sitting on the road, arrestees were
transported to TAPS were they sat in ice-cold pens for hours without blankets,
unable to sleep, unable to use the bathroom except with another person, some
unable to make any phone calls. Arrestees had a number of misunderstandings
6

Unlike TAPS, the City does allow confidential attorney visits at PADF.
Page 8 of 10

about their rights and the criminal process, not the least of which was
misinformation provided by the City to many arrestees that falsely showed the
arrestees facing a half dozen or more criminal charges when they were only
actually facing 1, 2 or 3 charges. It is not surprising that when arrestees heard
that a plea deal included pleading guilty to only one charge, this misinformation
was highly coercive in convincing some to take the plea. Out-of-town arrestees
mistakenly believed that they had no ability to work with the court system to set
court dates around already scheduled flights, and often times believed they were
facing much stiffer jail penalties that the ordinances actually permitted. For the
entire time in TAPS, not a single arrestee was permitted to speak confidentially
with a PLP or ACLU, or any other, attorney.
Not only did arrestees not have the opportunity to discuss with legal counsel the
charges, or their possible defenses, or their rights and the procedures of the
criminal process, they were also denied any confidential attorney client visits at
the City and County Building. Some arrestees got limited access to PLP and
ACLU attorneys who were permitted for to talk to them in groups through thick
wire screens for a few minutes (until the City subsequently revoked that access).
The only other counsel they received was in rushed, whispered conversations in
the jury gallery box surrounded by other arrestees, the judge and court staff, and
sheriff deputies.
When arrestees were forced to make a decision that could possibly result in a
conviction that would forever remain on their record, many had already made up
their minds after hours of detention, able to rely only upon misinformation and
rumor, and completely isolated from any legal advice. Even those attempting to
come to a rational decision were having to do so at 4, 5 or 6 a.m. in the morning,
after hours of confinement, without being fed, without sleep, bound
uncomfortably by flexi-cuffs to another arrestee, trying to understand complex
legal terms and concepts and accurately and rationally relate the facts of their
arrest to an attorney in a non-confidential setting in front of a court eager to move
through the docket. Certainly, many would agree that such conditions did not
permit a knowing and voluntarily plea.
11. The City must correct these problems immediately
With two days remaining in the convention, the City must permit attorney access
at TAPS. We know at one time that the City was considering housing a
functioning county court at TAPS. Surely if the facility had the physical capacity
to house a court, several pairs of chairs and office cubicle dividers could be
accommodated against a wall for confidential attorney client visits.
In addition, the City should remedy other problems including, but not limited to,
informing detainees that even if they are vegetarian there are items in the
lunches they can eat, providing blankets at TAPS, providing shoes or slippers to
arrestees without footwear, allowing phone calls and allowing the calls
Page 9 of 10

immediately upon entering TAPS if the arrestee so wishes, permitting confidential
attorney consultation on the 4th floor of the City and County building, and flexicuffing arrestees individually, and permitting them to use the restroom
individually and in private. 7
I look forward to hearing from you at your earliest convenience. When you
respond, please also copy Legal Director Mark Silverstein.
Sincerely,

Taylor Pendergrass
Staff Attorney, ACLU of Colorado
cc. Manager of Safety Al LaCabe (sent via email).

7

All videotape or digital footage from TAPS should be preserved.
Page 10 of 10

The World is Flat: The structure of the legal office
during the DNC 2008 protests
Dan Spalding, Midnight Special Law Collective
Here's the background of the DNC protests:
There's three kinds of mass demonstrations
1. Mass protests that are huge (Seattle 1999, RNC 2004)
2. Mass protests that are small (DNC 2004, G20 2009)
3. Mass protests that barely happen at all (BioJustice 2001 aka “BioJust Us”)
The DNC 2008 was a solid, smaller mass demonstration
•
There were several thousand protesters.
•
There was a huge police presence, including riot cops & plainclothes officers.
•
They had one large march (IVAW) and one (totally unrelated) mass arrest.

Legal Office Structure
We operated with a fairly flat hierarchy, composed of just two levels:
The Core Collective (CC)
•
This was Denver folks who committed to the project early, all lawyers & law students
•
...as well as Megan Books and Dan Spalding, who helped with prep and execution.
•
CC made decisions by consensus in meetings and by informal consensus in the
office.
•
There was always at least one Core Collective person in the office, usually more.
Volunteers
This was the attorneys, legal workers, law students and everyday folks – including Brian
Vicente's dad! – who helped during the protests.
•
We didn't need many volunteers from the streets. This was convenient for us, but we
also got less feedback from the protesters we were supporting
Core Collective folks did the same tasks as volunteers
CC people answered phones, did filing, data entry, etc.
CC people also did “higher order” tasks which required more responsibility and/or a big
picture perspective:
•
Talking to attorneys
•
Dispatching LOs
•
Handling evidence
Exceptions
•
Brian handled media calls.
•
Lawyers handled specific lawyerly tasks: Court appearances, talking to callers who

were in the process of getting questioned by the police, etc.

The Importance of a Flat Hierarchy

Having a flat hierarchy is crucial in a high stress, round-the-clock operation.
CC folks were able to make decisions on the spot – usually in collaboration with any
other CCs present, but without having to get approval from someone off-site.
This was possible because most decisions weren't strictly legal
Most decisions were logistical or tactical:
•
Changing filing systems and other office procedures as needed
•
Assigning different tasks to volunteers when things were really busy
•
And generally handling crises
A top-down hierarchy wouldn't have worked
Tasks were too varied and constantly changing for one (or a few) people to stay on top
of everything.
•
A flat hierarchy lets the people actually doing the work to make the decisions.
•
It also distributes experience, preparing more people to be in leadership positions
during and after the protests.
•
We used collective meetings to check in about the decisions we made.
•
The CC was able to meet fairly often because the office was in a central location in
a (relatively) small city.
The 24-hour office also makes a top-down structure impossible
The labor and trauma of a mass-protest inevitably makes the people working in it go a
little crazy.
•
A flat hierarchy distributes the stress to more people so it's (more) manageable.
•
When I've been in an office where one or two people were in charge of making all the
judgment calls, those people had nervous breakdowns a couple days into the protest.
•
This creates a terrible bottleneck. The bottomliners can't make good decisions,
and those who still can are frozen out of the decision making process.
The flat hierarchy was a big part of why we won
It's not just that we're smarter than the system, or that we worked harder – although we
are and we did.
We also had a better organizational model:
•
We were flexible, switching tasks when needed.
•
We made better decisions, by a mix of people with different experiences.
•
We were more robust, complementing each other's strengths and shoring up each
others' weaknesses.
This isn't just a means to an ends – this is an end in and of itself
•
For me personally, this is a big reason why I do the work I do – and believe in it.
•
We prove that a small group of dedicated people working democratically can be more
effective than a bigger institution based on domination and rigid hierarchy.
•
We're basically learning how to run our utopian society, one mass protest at a time.

Challenges? Bail.
Action legal offices usually don't handle bail.
Bail is problematic because:
•
It involves handling money.
•
You have to subjectively triage in the moment – who needs bail more, the veteran
activist with a broken nose or the random student who's having a panic attack?
•
We felt like we had enough to do already. (Me in particular)
•
Often, the person paying bail is legally responsible if the arrestee fails to appear.
But people wanted to donate bail money to us
•
We were the logical place for people to call.
•
We passed them off to an activist coordinating bail.
•
This worked poorly.
We should have figured out bail ahead of time
•
As it was, we just declared “We're not doing bail!” and left it at that.
•
However, in Pittsburgh, people were able to self-organize bail for G20 defendants
with serious charges and high bails.
•
Organizing bail is something we have to learn to do better. (Although there's some
disagreement about this within the collective.)

FOR IMMEDIATE RELEASE
Friday, August 22, 2008
Contacts:
Thomas Cincotta, Esq. Southwest Regional Vice-President, NLG (720) 234-8517
Miriam Stohs, Esq., Colorado Chapter liaison, NLG (303) 929-5501

NATIONAL LAWYERS GUILD OF COLORADO CALLS ON DENVER POLICE
TO EXERCISE RESTRAINT, NOT PUNISH PROTEST
Denver-- The National Lawyers Guild of Colorado (NLG) calls on local authorities and law
enforcement to exercise restraint, rather than punish freedom of speech at the 2008
DNC. Recent inflammatory rhetoric coming from local officials appears calculated to frighten
the public from participating in marches and rallies – activities that are fundamental to
democracy and lay at the core of the First Amendment.
1. Last year, the Denver City Council refused to adopt a resolution supporting free speech at
the DNC, although a nearly identical resolution was passed in St. Paul for the RNC. Instead, the
City Council recently passed an ordinance that makes it illegal to carry certain items, such as
chains, padlocks, and noxious substances like urine or feces with the intent to use them against
police officers. The NLG is not aware of a single documented instance of activists using
excrement or urine for nefarious purposes in the United States. State statute and local law
already prohibit spitting or throwing anything at law enforcement, with heavy mandatory
minimum sentences in the event of injury.
2. Denver has erected a temporary detention center north of downtown to hold and book
individuals who are arrested during the DNC. The funds used for this processing center
represent a theft from the students, the sick, and the poor of our community. It is also
symptomatic of the City’s disparate treatment of individuals who speak out. The need for this
facility springs from Denver’s decision to arrest any persons who are accused of breaking the
law while engaging in “protest” activity. The City punishes Free Speech-related activities by
mandating arrest that is not required for other non-violent municipal and state offenses. We
join the call of the ACLU of Colorado for the City to issue citations to appear in court, rather
than arrest individuals accused of non-violent offenses. In addition, no provisions have been
made for detainees to meet with counsel at the temporary detention center. We call on the
City to provide for detainees’ access to counsel as guaranteed by Colorado statute and
international law.
3. The Denver Police Department issued a bulletin to all uniformed officers and other agencies
to be on the lookout for materials that “could be used by violent protesters” at the upcoming
DNC. The NLG fears that this bulletin will be used as pretext for illegal invasions of privacy,
harassment of peaceful activists, and the unlawful shutdown of activists’ convergence centers.
4. The NLG opposes the use by the Denver police of pressure-point pain compliance holds,
chemical agents, batons, rubber bullets, and horses against peaceful activists whose only crime

is blocking traffic. We call on the police to exercise restraint and follow proper chain of
command.
The chilling effect of the City’s rhetoric is already evident. Wherever you go, people express
reservations about attending demonstrations because they fear “getting arrested.” According to
NLG Southwest Regional Vice President Thomas Cincotta, “The message from the City and
County of Denver has been clear: ‘Come to Denver if you have money to spend. If you live
here, do not protest. If you protest, you risk arrest.’ But anyone who wants to attend a rally in
the United States should not fear arrest and the threat of criminal charges.” The NLG
encourages the residents of Colorado to come to Denver and make their voices heard next
week. The demonstrations planned during the DNC can and should be large, effective
expressions of speech.
The People’s Law Project, a project of the Colorado Chapter of the National Lawyers Guild, was
established in late 2007 to ensure that peoples’ voices are heard at the DNC and their
constitutional rights are protected. The PLP is coordinating Legal Observers for public events
and arranging legal representation for individuals who are arrested. Anyone arrested while
exercising their constitutional rights during the DNC should call our 24/7 hotline at (303) 8300277.
Founded in 1937 as an alternative to the American Bar Association, which did not admit people
of color, the National Lawyers Guild is the oldest and largest public interest/human rights bar
organization in the United States. Its headquarters are in New York and it has chapters in every
state.

FOR IMMEDIATE RELEASE
Thursday, August 28, 2008
Contacts:
Brian Vicente, Director, National Lawyers Guild DNC People's Law Project, (720) 280-4067
Miriam Stohs, Esq., Colorado Chapter liaison, NLG (303) 929-5501
NATIONAL LAWYERS GUILD DNC PEOPLE'S LAW PROJECT CRITICIZES DNC COURT PROCEDURES
Denver-- The National Lawyers Guild DNC People's Law Project (PLP) criticizes the procedures that
created a high risk of accused persons waiving their rights without access to lawyers or an adequate
understanding of their cases.
The PLP is particularly concerned with today's phone call from the Denver County Courts alerting
defendants that they could appear in court on Friday, August 29 "for an opportunity to dispose of
their case." The information provided by court clerks did not inform defendants that they could
set their cases for jury trial. Earlier this week, eighty-two persons were taken into custody during a
preemptive mass arrest. Upon release, most defendants were told they had to appear in court on
September 2, 2008 even if they resided out of state. Although defendants were called throughout the
day regarding the new court appearance, PLP attorneys were not notified of this hearing until late Thursday.
This development heightens PLP's concern that people are being unfairly pressured to plead guilty,
rather than exercise their constitutional rights to trial. The PLP sees a pattern of unusual and potentially
abusive practices implemented for the DNC, notably:
- attorneys refused entry to the detention center to consult with detainees who requested counsel;
- initial court appearances from Monday's arrests were scheduled for 1:00 AM, leaving activists and
bystanders scrambling to obtain legal counsel in the dead of night;
- City Attorneys offered punitive plea bargains that ignored widespread absence of probable cause;
- the Court refused to release people on their recognizance regardless of an absence of criminal history
and the presence of significant community ties; and
- the Sheriff failed to release individuals in a timely manner after they posted bond, transferring them
to the county jail and slowly processing them out.
Together, these unusual practices raise PLP's concern that people have been and will be unfairly pressured
to plead guilty. The PLP is organizing volunteer attorneys to be present at the special appearance set for Friday
morning in Denver County Courtroom 100K.
The People's Law Project, a project of the Colorado Chapter of the National Lawyers Guild, was established in
late 2007 to ensure that peoples' voices are heard at the DNC and their constitutional rights are protected. The
PLP
is coordinating Legal Observers for public events and arranging legal representation for individuals who are
arrested.
Founded in 1937 as an alternative to the American Bar Association, which did not admit people of color, the
National Lawyers Guild is the oldest and largest public interest/human rights bar organization in the United
States. Its headquarters are in New York and it has chapters in every state.
www.nlg.org
www.dnc-plp.org

For Immediate Release
November 10, 2008
Contact
Brian Vicente, Director, People's Law Project, 720-280-4067

DNC Protester Defense Group Files Open Records Act Request for
Information on Prosecution Costs
City continues losing streak; falls to 1-17 conviction rate after Friday's
acquittals

DENVER – On Monday, November 10, the People's Law Project (PLP)-- the group responsible for
the legal defense of those arrested at protests during the DNC-- made a formal request to
Denver Mayor John Hickenlooper for an estimate of the costs that Denver taxpayers have
incurred in prosecuting individuals arrested on August 25, 2008 during the Democratic National
Convention. This request comes on the heels of the November 7 acquittal of three individuals
caught in the August 25 mass arrest of 106 citizens during a demonstration at 15th and Court in
Denver. With these three additional acquittals, the Denver City Attorney's Office has now failed
to convict 17 of the first 18 people set for trial who were arrested at free speech events during
the DNC.

"If the Denver Nuggets opened their season with a 1-17 record, people would raise
serious questions about what changes needed to be made," said Brian Vicente,
Denver lawyer and Director of the People's Law Project. "In this case, the mounting
number of acquittals provides further proof of what the PLP has been saying all
along--the manner in which police haphazardly arrested over a hundred people
resulted in a number of journalists, students, peaceful demonstrators, bystanders,
and curious onlookers being swept up in the arrests--persons guilty of no crime
whatsoever who the City is now attempting, unsuccessfully, to prosecute."
The request for information on the costs of prosecution, filed under the Colorado Open Records
Act ("CORA"), seeks an estimate of both the hours and dollars spent by the Denver Police
Department and the Denver City Attorney's Office in prosecuting individuals arrested on August
25. So far, these DNC-related trials have averaged three days in length and each trial has
required a full three-day commitment from six jurors, a judge and clerk, three prosecutors,
defense lawyers, and the testimony of numerous police officers. As the request notes, every
hour that officers spend preparing for and attending trials is an hour not spent on the street
stopping crime or performing other police duties.
These prosecutions have recently come under increased scrutiny after information surfaced that
Denver police may have acted inappropriately at the Monday event. Last week, the ACLU of
Colorado filed a report calling for an investigation into this event questioning whether a staged
violent confrontation by undercover police served to create a hostile and dangerous environment.
For more details on this story see: http://www.denverpost.com/popular/ci_10920817
A copy of the People's Law Project's CORA request is attached. By law, the City is required to
respond to this request within three business days.

The People's Law Project recruited and trained more than 40 attorneys to provide pro-bono
representation for those arrested at free-speech events during the Convention. The People's Law
Project is a nonprofit organization dedicated to protecting First Amendment rights. It is a project
of the National Lawyers Guild. For more information on the People's Law Project please visit
http://www.DNC-PLP.org<http://www.dnc-plp.org/>

People’s Law Project
Denver Democratic National Convention 2008

A project of the Colorado National Lawyers Guild

November 9, 2008

Mayor John Hickenlooper
City and County of Denver
City and County Building
1437 Bannock St., Room 350
Denver, CO 80202
SENT VIA FACSIMILE: 720-865-8787
Re:

Colorado Open Records Act Request regarding costs of prosecution of
August 25, 2008 arrestees

Dear Mayor Hickenlooper:
I write seeking information regarding the costs of prosecution for persons arrested and
charged on the night of August 25, 2008 during the Democratic National Convention.
Please consider the following a request pursuant to the Colorado Open Records Act
and the Colorado Criminal Justice Records Act. I believe that the Mayor’s office has
access to all the information requested below, however, if your office is not in custody of
these records, I would appreciate you forwarding this request to the proper custodian or
letting me know whom I should contact.
In cases where you believe that disclosure of this information is not mandated by, or is
exempted under, the Colorado Open Records Act or the Colorado Criminal Justice Act,
we request that the information nevertheless be disclosed in the interest of public
transparency. If you have concerns you believe would weigh against disclosure of any
of this information, I would be happy to discuss those concerns with you.
We request the following information:
1. An estimate of the total number of hours that Denver Police Department officers
have spent preparing for or attending court (whether preparing with City
Attorneys, traveling to court, waiting to testify, or actually testifying), instead of
performing police duties, as a result of the prosecutions of persons arrested on
the evening of August 25, 2008. This request includes, but is not limited to, the
time that Commander Dilley, Commander Kroncke, Sergeant Foster, Sergeant
Martinez, Officer Booten, Officer Ferrari, and Officer Campbell have spent
preparing for or attending court instead of performing police duties.

2. An estimate of the total monetary amount paid or that will be due to Denver
Police Department officers for their time spent preparing for or attending court in
request No. 1 above, including any overtime pay.

3. An estimate of the total number of hours spent by employees of the City
Attorney’s office on the prosecutions of persons arrested on the evening of
August 25, 2008.
4. An estimate of the total monetary amount paid or that will be due to any third
parties contracted to assist with the prosecutions of persons arrested on the
evening of August 25, 2008 including, monies paid or due to the law firm of
Holland and Hart.
5. An estimate of the total monetary amount paid or that will be due to any court
staff or court personnel contracted specifically to oversee or assist with
prosecutions arising from the Democratic National Convention.
6. An estimate of the total hours spent by regular employees and staff of the County
Court on prosecutions arising from the Democratic National Convention.
7. An estimate of the total monetary amount paid or that will be paid by the City for
the legal representation of indigent defendants arrested on the evening of August
25, 2008.
If you deny this request for records in whole or in part, I ask that you provide forthwith a
written statement of the reasons for the denial that cites the law or regulation that you
rely on. C.R.S. § 24-72-305(6).
I look forward to your response at your earliest convenience, and no later than within
three business days, as required by the Colorado Open Records Act.
Sincerely,

Brian Vicente
Executive Director

Lawyer wants to know what DNC protest trials are costing city : Local N...

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Column

Lawyer wants to know what DNC protest trials are costing
city
By John C. Ensslin, Rocky Mountain News (Contact)
Published November 10, 2008 at 7:19 p.m.

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Lawyers for protesters arrested during the Democratic National Convention want to know how much
Denver is spending to prosecute the cases, citing a 1-17 losing streak so far.
According to Brian Vincente, executive director of the People's Law Project, of the first 18 cases set for
trial, only one has resulted in a conviction.
So far, the city attorney has dismissed eight defendants, juries acquitted six and judges acquitted two.
One faces retrial after a jury deadlocked.
"If the Denver Nuggets opened their season with a 1-17 record, people would raise serious questions
about what changes needed to be made," Vincente said.
He said the mounting number of acquittals suggested that many of the 106 people charged were
"haphazardly" arrested during a demonstration at 15th and Court streets.
But City Attorney David Fine noted that about 50 of the protesters arrested have entered guilty pleas. He
also said that a much larger group that took part in the protest was allowed to disperse.
Fine added that in two trials, the juries that acquitted the defendants insisted on making public statements
to the effect of praising the behavior of the police and the prosecution.
Fine said those juries also admonished the defendants and said their acquittals should not be interpreted
as condoning their behavior.
On Sunday, Vincente filed an open records request, asking Denver officials to estimate how much money
and how many hours the police department has spent preparing for and testifying at the trials. He also
asked for the amount spent on the prosecution.
He said each trial has lasted an average of three days and involved two to three lawyers from the city
attorney's office.
"Is that a good use of time?" he asked. "There's domestic violence cases and rape cases and all sorts of
other issues plaguing the city of Denver."

10/1/2009 8:34 AM

FACE~ST~TE

--~--

Published on Face the State (http://facethestate.com)

DNC trials could cost city more than
$500,000
By bradj
Created 11/11/2008 - 10:13am
Face The State Staff Report
Trials for protesters arrested in Denver during August's Democratic National
Convention began last month and according to defense counsel, are likely to cost
taxpayers hundreds of thousands of dollars. The exact tally, however, remains
elusive as city officials decline to provide their own estimates.

FTS File Photo

The city's courts are expected to hear nearly 50 cases for arrests made Aug. 25,
the first official night of the DNC. Denver Police detained approximately 300
protesters at the corner of 15th and Court that day. Around 100 of those arrested
were charged with obstructing a public passageway, a misdemeanor criminal
offense. Half pleaded guilty, opting for plea deals, while the remaining half went
to trial.
Inquiries made by Face The State into just how much it will cost Denver to hear
the cases have come up fruitless. Brian Vicente, director of the People’s Law
Project, the group responsible for the legal defense of those arrested, made a
formal request Monday (PDF) to Denver Mayor John Hickenlooper seeking

information on costs associated with the arrest and prosecution of protesters.
The PLP is a non-profit coalition that recruited more than 40 lawyers to provide
pro-bono and low-pay representation to the accused.
In an attempt to tabulate the costs, a Face The State staff writer first contacted
the Denver Court Administrator's office, where representatives said they were not
responsible for maintaining the financial data of the courts and directed FTS to
the criminal division clerk for further information. A staffer there directed FTS
back to the court administrator's office.
And once back at that office, FTS was eventually referred to the city auditor.
Inquiries to the city auditor's office were not returned.
Vicente made a request for the information under the Colorado Open Records
Act. He says hopes the request will yield information, demonstrating how many
hours and dollars the Denver Police Department and City Attorney’s office have
collectively spent in prosecuting the individuals arrested.
Of the trials concluded thus far, the results have yielded few positive outcomes
for prosecutors. Out of the approximately 50 cases being heard, 10 have already
been dismissed, six have resulted in acquittals, there was one hung jury and only
one conviction. Vicente questioned why, after the government's losing streak, it
would continue to push so hard for more trials of such a low-level offense.
“If the Denver Nuggets opened their season with 1-17 record, people would raise
questions about what changes needed to be made,” Vicente said.
Vince DeCroce, director of prosecution for the city attorney's office, says it is
hard to quantify what the city will spend on an average DNC protest trial and
added that such trials shouldn’t warrant extra attention. He pointed to the fact
that city often sees event-related spikes in its caseload, such as when arrests
have been made at anti-war protests and on Columbus Day, at DUI checkpoints
on holiday weekends, or when the city conducts periodic outstanding warrant
sweeps.
Vicente estimates that defense lawyers would normally spend around $5,000 per
trial to defend an client in a misdemeanor case similar to the DNC trials. Sandy
Mullins, executive director of the Colorado Criminal Defense Bar, said that this
number is a “reasonable estimate for what a criminal defense attorney would ask
for in fees.”
If that number were applied to the prosecution, then the city would pay about
$250,000 to prosecute the DNC protesters. But that total doesn’t take into
account the additional tab for judges, clerks, bailiffs, courtroom security, juries,
and third parties contracted to work on cases.

Vicente said too many police officers have wasted time and money preparing and
testifying in the cases, when their time would be better spent “fighting real
crimes.”
Vicente's request for information comes on the heels of the American Civil
Liberties Union's request for a formal investigation into claims that undercover
police officers may have instigated the Aug. 25 confrontation.
“The real loser in all this is the Colorado taxpayer,” Vicente said.
•
•
•
•
•

American Civil Liberties Union
City and County of Denver
Civil Rights
Democratic National Convention
Local Government
Copyright 2007, 2008 Face the State, Inc. All Rights Reserved
Source URL (retrieved on 10/01/2009 - 9:38pm):
http://facethestate.com/articles/12010-dnc-trials-could-cost-city-more-500000

1 of 2

http://www.rockymountainnews.com/fdcp?1226168211900

80-year-old 'protester'
testifies at DNC trial
Rounded up by mistake with
protesters, let go
By Sue Lindsay, Rocky Mountain News (Contact)
Published November 8, 2008 at 12:05 a.m.

Photo by Tim Hussin / The Rocky
Tim Hussin / The Rocky

Police remove Cecil Bethea in August from a circle of
protesters after he got caught in the march while trying to
catch a bus.

Silver-haired Cecil Bethea, in a red plaid jacket
and tie, doesn't look much like the anarchists
police officers have described during recent trials
of Democratic National Convention protesters.
Friday, the 80-year-old sat outside a Denver
County courtroom and read a library book.
Photo by George Kochaniec Jr. / The Rocky
George Kochaniec Jr. / The Rocky

Cecil Bethea sits outside a Denver County courtroom Friday.
Bethea was called to be a witness in DNC protester trials.

He was waiting to testify at the trial of three
people who by day's end would be acquitted of
charges they blocked a street.
It was Bethea's passion for reading that nearly
got him arrested Aug. 25.
Bethea, a Denver resident for 50 years, told the
jury he had just left the Denver Public Library and
was walking across Civic Center when he saw a
large crowd on Bannock Street and decided he
wanted to try to see a DNC protest, "not to
participate, just to see what was going on."

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11/8/2008 11:17 AM

http://www.rockymountainnews.com/fdcp?1226168211900

All of a sudden, he said he saw the crowd moving
toward him, some of them running.
"Well, I thought, the meeting is over! What was
extraordinary is that half of them had
handkerchiefs tied around their faces. It looked
like a Butch Cassidy look-a-like contest," he
said, as jurors laughed.
"Next morning, when I read the paper, I found
out they were the anarchists!" he said, his voice
revealing traces of his native Alabama.
Bethea said he was walking down 15th Street to
catch the mall shuttle to his bus when he became
caught up in the crowd. He said 15th was blocked
by a line of police in riot gear at Court Place.
"They had all their regalia on," he said. "You
know how they enjoy dressing up. They looked
like Armadillo Man."
Bethea said he turned around to head to the mall
via Cleveland Place but found himself blocked by
another wall of police behind the crowd.
"They just had us corralled there," he said. "I just
stood there with a curious look on my face when
suddenly somebody yelled, 'Sit down!' "

bit old for protesting?" Bethea said he told the
officer he was just walking to his bus from the
library. Asked to prove it, Bethea directed the
officer to the two books in his briefcase, along
with his library check-out slip. Eventually, he
said, he was allowed to leave.
"It was a very disappointing riot," Bethea
concluded. "I thought of the riots in Chicago in
'68, the Detroit riots, and it was nothing like that.
There wasn't a sign, no chanting, singing or
anything. We were just sitting there."
Nearly 60 people have been tried or are
scheduled to be tried on DNC-protest-related
charges.
Asked after he testified what he thought about
the protester trials, Bethea said, "From what I
understand, they've only convicted one out of
how many trials? That's not a very good batting
average."
Not long after Bethea testified, the jury began
deliberations in the charges against Nathan
Acks, Edward Lloyd and Stephanie Catlin.
The three were acquitted.

"With my gimp leg, sitting down can be a bit of a
production, so I sat on my briefcase," he said.
Bethea said he was pulled from the crowd,
subjected to a pat-down search and handcuffed.
He said one of the officers told him, "Aren't you a
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11/8/2008 11:17 AM

DNC Charge List
Code

Charge

3-1 (a)

Posting Unauthorized Posters

18-18-406 (1) Possession of Marijuana under 1 OZ
18-18-428

Possession of Drug Paraphernalia

38-3

False Identification

38-31

Interference

38-31 (b)

Disobedience to Lawful Order

38-31 ( c )

Refused Order of Officer

38-32

Resistance

38-36

Aiding or Rescuing Prisoners

38-40

False Information

38-71

Destruction of Private Property

38-86

Obstructing Passage

38-87

Disrupting Assembly

38-89

Disturbing the Peace

38-92 (a)

Threats to Person / Property

38-96

Irritants in Public

38-115

Trespass

38-125

Obstruction Equipment Prohibited

54-240

Seat Belt Required

The 2008 DNC Cases: A Summary
The Results So Far
The total number of individuals is 151, including 147 adults and 2 juveniles for whom
there are results and 2 for whom there are none.
A. TRIALS
Total:

41

Acquittals:

28

Hung Jury:

1

Convictions: 12
Note: The numbers are of persons who had trials, not the actual number of trials, or the number
of charges disposed of for each individual.
B. DISMISSALS
Total:

13

Dismissed:

12

Diverted:

1

Note: The numbers represent persons, not charges disposed of. The diversion was included here
on the assumption that it was a deferred prosecution and so not a plea.
C. PLEAS, Part I
Total:

89

Deferred:

6

No Contest:

7

Straight:

74
-1-

Unknown:

2

Note: The pleas represent persons, not charges. Even with a plea, usually it was to one charge,
and usually two were dismissed. The deferreds could shift to either a straight conviction or
a dismissal. Only time will tell. As for the two unknowns, the docket sheets show that the
Court was unclear, and this was my best estimate.
D. PLEAS, Part II
Total:

89

Pled In:
August:

66

September:

6

October:

8

November:

1

December:

3

January 2009: 4
February 2009: 1
Note: You can see that most of the pleas were before there were any trials in the initial rush of
people to get out of jail and go home.
E. IN LIMBO
Total:

8

Failure To Appear:

3

Trial Reset:

2

Juveniles:

2

Status Hearing

1
-2-

Methodology
The summary numbers are based upon the attached charts. They in turn are primarily
based on the list of arrestees provided by the City with the probable cause photos and videos.
The list contained 151 names.
Of the 151, there were 1 Jane and 5 John Does These were actually named elsewhere on
the list and so were duplicates. This leaves 145.
Of the 145, there were 4 duplicates with the same case number but a slight variation in
name. This leaves 141.
Of the 141, 3 were juveniles. We have results for 1 of the 3. The other 2 are unknown as
to results. This leaves 138 adults, 1 juvenile and 2 unknown juveniles.
One adult had a second trial, because the first was hung. This increases the adults to 139.
After comparing our emails and victory list with the City’s list, I discovered another adult
and another juvenile. These were confirmed with the attorneys who represented them. This
results in 140 adults, 2 juveniles and 2 unknown juveniles.
I also found another adult in our Google Group, for 141 adults.
A comparison of the City’s list with the court administration DNC-1 and DNC-2 lists
revealed 6 more adults. This results in 147 adults, 2 juveniles and 2 unknown juveniles.
I may have included some who do not belong. You can make your own judgment from
the charges. These may have had the misfortune of getting arrested during the DNC. I saw a
couple, but do not recall their names. They would be on the plea list. There may be some I
missed, but, if so, I do not know how to find them.
There is a category called “In Limbo”, which covers those for which we have no results
yet. The 2 unknown juveniles are in that category. They will be moved when there are results.
The total number of persons is 151.
Note: Juveniles are not named to protect their privacy. I know who they are. The numbers after
last names coordinate with my lists.

-3-

DNC TIMELINE

Time

Event

(B01D01 - DNC1-CAM5-Sheraton Disk)
19:10:23

Begin coming from Civic Center Park across Colfax

19:11:00

Move on to 15th

19:11:48

Police SUVs (3) plus a Police Car come right behind the crowd

19:12:00

Bus comes up the right lane

Can see people walking in the opposite direction to the crowd
(B06D01-Dispatch tapes)
19:06
+3:25 19:09:25

They are going north to Colfax

+3:50 19:09:50

They are crossing Colfax going North

+5:15 19:11:15

They are on 15th

+5:20 19:11:20

Get in front of them

+5:51 19:11:51

Stopped them at Court and 15th

+:15 19:12:15

Don’t want them doubling back through the park

+:40 19:12:40

Front end closed / Close the back end

+1:03 1913:03

We got em stopped

19:12

: County and Municipal Court

q District Court

The City and County of Denver, Colorado
Court Address:
1437 Bannock Street
Denver, CO 80202
The City and County of Denver,
Plaintiff,

COURT USE ONLY

v
Ellis, Richard Heath,
Defendant.
Attorney (Name and Address):

Case Number:
08GS094354

Charles H Nadler
1625 Larimer Street, Unit 901
Denver, CO 80202-1529

Division: General Sessions

Courtroom: 282
Phone Number: (303) 825-0585 E-mail: charlesnadler2@gmail.com
FAX Number: (303) 825-0585
Atty. Reg. CO#: 37698
Motion to Dismiss
Due to the Unconstitutional Vagueness of Section 38-86 of the Denver Municipal Code as Applied

COMES NOW Richard Heath Ellis, Defendant in the above matter, by and through his attorney, Charles H
Nadler, of Nadler and W eston, hereby makes his MOTION TO DISMISS DUE TO THE UNCONSTITUTIONAL
VAGUENESS OF SECTION 38-86 OF THE DENVER MUNICIPAL CODE AS APPLIED, as follows:

Assuming, without conceding, that the ordinance is valid on its face, the ordinance is void as it is being
applied to Mr. Ellis for vagueness.
In this specific situation, the charge of “obstruction of passage” is inexorably linked to the Denver
Police Department’s failure to give Mr. Ellis a lawful order to disperse and a reasonable opportunity to
correct his alleged infractions. To charge Mr. Ellis with “obstruction of passage” in these
circumstances, both the Colorado and United States Constitution require that a lawful order have been
communicated to Mr. Ellis to apprise him of his unlawful conduct.
Because no order to disperse was given to Mr. Ellis on August 25, 2008, Section 38-86 is void
for vagueness as applied to his.
I. FACTS
1. Mr. Ellis was present in the vicinity of 15th and Court in Denver, Colorado, at approximately
7:13 pm, the time that police cordoned off approximately 200-300 protestors. Mr. Ellis was
detained and arrested along with approximately 100 other individuals.
2. At the time of his arrest, Mr. Ellis was exercising the First Amendment’s guarantees of “freedom
of speech”, “freedom of assembly”, “freedom to petition government”, and more specifically,
“travel”, “observe demonstrations of a political nature”, “educate himself to better participate in
the political process”, and “take pictures of the political activities for posterity” in a traditional
public forum. See Colo. Const. Art II, Section 10. Defendant notes that the Colorado
-1-

Constitution provides broader freedoms of free speech than the First Amendment. See People ex
rel. Tooley v. Seven Thirty-Five E. Colfax, 697 P.2d 348, 356 (Colo. App. 1985). Streets and
parks “have immemorially been held in trust for the use of the public and, time out of mind, have
been used for purposes of assembly, communicating thoughts between citizens, and discussing
public questions.” Hague v. Committee for Indus. Org., 59 S. Ct. 496, 516 (1939).
3. At the time of his arrest, Mr. Ellis was not loitering. His presence was purposeful. No lawful
order or notice to disperse was ever communicated to Mr. Ellis before he was detained by police.
II. LAW
1. Denver Rev. Mun. Code Section 38-36 provides,
(1) It shall be unlawful for any person to knowingly:
(a) Obstruct a highway, street, sidewalk, railway, waterway, building
entrance, elevator, aisle, stairway, or hallway to which the public or a
substantial group of the public has access or any other place used for the
passage of persons, vehicles, or conveyances, whether the obstruction
arises from the person's acts alone or from the person's acts and the acts
of others; or
(b) Disobey a reasonable request or order to move issued by an individual
the person knows, or reasonably should know, to be a peace officer, a
firefighter, or a person with authority to control the use of the premises,
to prevent obstruction of a highway or passageway or to maintain public
safety by dispersing those gathered in dangerous proximity to a fire, riot,
or other hazard.
(2) For purposes of this section, "obstruct" means to render impassable or to render
passage unreasonably inconvenient or hazardous.
2. The due process clauses of the Colorado and the United States Constitutions prohibit penal
statutes which are vague. U.S. Const. Amend. V; Colorado Const. Art. II, Section. 25.
3. An ordinance is presumed constitutional. The burden is on the challenger to demonstrate that it
is not. “Where statutes or ordinances are challenged on the ground of vagueness, a court must
attempt to construe the law in a manner that will satisfy constitutional due process requirements,
if a reasonable and practical construction of the statute will achieve such a result.” Robertson v.
City and County of Denver, 978 P.2d 156, 159 (Colo. 1999).
4. A party may challenge the constitutionality of a law on its face or as it is, or will be, applied to
them. Mr. Ellis challenges the ordinance as it is being applied to him. See e.g. New York v.
Ferber, 458 U.S. 747, 774 (1982).
(1) According to the applicable law, in order to succeed on a facial vagueness challenge to an
ordinance, “the complainant must demonstrate that the law is impermissibly vague in all
of its applications.” Village of Hoffman Est. v. Flipside, Hoffman Est., 455 U.S. 499, 497
(1982).

-2-

(2) On the other hand, “A plaintiff bringing an ‘as-applied’ constitutional challenge to a
statute contends that the statute would be unconstitutional under the circumstances in
which the plaintiff has acted or proposes to act. If a statute is held unconstitutional “as
applied,” the statute may not be applied in the future in a similar context, but the statute
is not rendered completely inoperative.” Sanger v. Dennis, 148 P.3d 404, 410 (Colo.
2006).
5. Vague laws offend two important societal values:
(1) First, they may trap the innocent by not providing “fair warning” of what conduct is
illegal.” VanMeveren v. County Court, 551 P.2d 716, 719 (Colo. 1976).
(2) Second, they “impermissibly delegate basic policy matters to policemen, judges, and
juries for resolution on an ad hoc and subjective basis, with the attendant dangers of
arbitrary and discriminatory application” Grayned v. City of Rockford, 408 U.S. 102 at
108-109 (1972); see also Kolender v. Lawson, 461 U.S. 352, 358 n.7 (1982). (stating that
it would be “dangerous if the legislature could set a net large enough to catch all possible
offenders” and then leave it to the courts “to step inside and say who could be rightfully
detained, and who should be at large”).
6. “It is a well-recognized requirement and consonant alike with ordinary notions of fair play and
the settled rules of law that ‘The terms of a penal statute creating a new offense must be
sufficiently explicit to inform those who are subject to it what conduct on their part will render
them liable to its penalties.’” Connally v. General Construction, 269 U.S. 385, 391 (1926).
7. When reviewing these ordinances, the Court must use a heightened level of scrutiny. The level
of scrutiny used by a court depends on the nature of the enactment, which is determined by
considering four factors:
(1) Whether the statute is an economic regulation;
(2) Whether the statute imposes civil or criminal penalties;
(3) Whether the statute contains a scienter requirement; and
(4) Whether the statute threatens to inhibit the exercise of a constitutionally protected right.
Robertson, 978 P.2d 156 at 159.
8. “When a statute imposes criminal penalties or threatens to inhibit the exercise of constitutionally
protected rights, more specificity is required.” Id. “. . . a more strict vagueness test applies
when the statute imposes criminal penalties.” Parrish v. Lamm, 758 P.2d 1356, at 1366 (Colo.
1988). “. . . an ordinance must clearly define its prohibitions so as not to forbid or require the
doing of an act in terms so vague that men of common intelligence must necessarily guess at its
meaning and differ as to its application.” Connally, 269 U.S. 385 at 391 (1926).
9. “As a general rule, if a statute or ordinance is constitutional in one part and unconstitutional in
another, the constitutional provision may be sustained and the unconstitutional stricken.
Whether unconstitutional provisions are excised from an otherwise sound law depends on two
factors” Robertson, at 162.

-3-

(1) “The autonomy of the portions remaining after the defective provisions have been
deleted; and
(2) “The intent of the enacting legislative body.” Id.
10. “There is a proper time and place for even the most peaceful protest and a plain duty and
responsibility on the part of all citizens to obey all valid laws and regulations. There is an
equally plain requirement for laws and regulations to be drawn so as to give citizens fair warning
as to what is illegal.” Cox v. Louisiana, 379 U.S. 536 at 574 (1965).
11. “When compelling circumstances are present, the police may be justified in detaining an
undifferentiated crowd of protestors, but only after providing a lawful order to disperse followed
by a reasonable opportunity to comply with that order.” Barham v. Ramesy, 369 U.S. App. D.C.
146 at 156 (2006).
III. SECTION 38-86 OF THE ORDINANCE IS UNCONSTITUTIONAL AS APPLIED TO MR.
ELLIS
1. Den. Mun. Code § 38-86 is unconstitutional as applied to Mr. Ellis because “A statute not
objectionable on its face, may be adjudged unconstitutional because of its effect in operation. A
statute that is valid when enacted may become invalid by a change in the conditions to which it
is applied.” People v. Albrecht, 358 P.2d 4, 8 (Colo.1960). (Citing People v. Clifford, 105 Colo. 316, 98 P.2d
272); and (Nashville C. & St. L. Ry. v. Walter, 294 U.S. 405).

2. The language used in Denver Rev. Mun. Code Section 38-86(a) as applied to these facts fails to
pass constitutional muster. The phrase “obstruct a highway, street, [or] sidewalk . . . to which
the public has access or any other place used for the passage of persons, vehicles or
conveyances” is void for vagueness and violates the “fair warning” requirement of the due
process clause of the Fourteenth Amendment and Article II, Section 25 of the Colorado
Constitution. The provisions of Section 38-86 do not explicitly inform any person of what
conduct will render them liable to their penalties. Instead of prescribing a primary standard of
conduct, the ordinance authorizes law enforcement unfettered discretion to determine what
conduct is prohibited. This ordinance has caused Mr. Ellis to guess at its meaning because the
applicable coverage of the ordinance is unclear. For example, Section 38-86(a) could be read as
a prohibition against crossing a street without a green light, walking slowly with a group of
friends down a sidewalk, or stopping to tie one’s shoe. The ordinance simply fails to specify
what conduct constitutes the offense of obstruction.
3. The ordinance’s failure to specify what conduct constitutes obstruction is easily remedied by a
lawful order to disperse. With a group of nearly 300 individuals, such an order clarifies for
bystanders, protesters, legal observers and members of the media exactly what they are doing
that violates the law. “There is an equally plain requirement for laws and regulations to be
drawn so as to give citizens fair warning as to what is illegal.” Cox v. Louisiana, 379 U.S. 536 at
574 (1965).
4. When an ordinance is challenged on vagueness grounds, a court should consider the Robertson
test as it pertains to the level of scrutiny to be applied to the law. One factor is whether the
ordinance imposes criminal or civil penalties:

-4-

a. “When a statute imposes criminal penalties . . . more specificity is required.” Robertson,
978 P.2d at 159. This ordinance imposes criminal penalties. In order for it to be
Constitutional, the enacting legislative body must be more specific in describing the
behavior which it proscribes.
i. Since the enacting legislative body has neither proscribed the specific behavior
that Mr. Ellis is being punished for, nor set out guidelines for the court to follow
when determining whether Mr. Ellis is in violation of the law, the Court should
use a heightened level of scrutiny when reviewing the ordinance and hold that it is
unconstitutionally vague as applied to Mr. Ellis.
5. When challenging a statute under the “void for vagueness” doctrine, the language of the
ordinance itself must be scrutinized to see if it passes constitutional muster. Connally, 269 U.S.
385. The word “obstruct” in Section 38-86(a) is defined in the Denver Rev. Mun. Code as “. . .
to render impassable or to render passage unreasonably inconvenient or hazardous.” Denver
Rev. Mun. Code § 38-86 (2) (emphasis added). The terms “impassable,” “unreasonably
inconvenient,” and “hazardous” are vague and open to subjective interpretation. They are not
defined by the legislature. The ordinance fails to clearly delineate its reach in words of common
understanding such that they convey a sufficiently accurate concept of the behavior that they
prohibit. Therefore, Mr. Ellis was not put on notice as to what specific conduct on his part
would render him liable to the penalties of the ordinance.
a. “The dividing line between what is lawful and unlawful cannot be left to conjecture. The
citizen cannot be held to answer charges based upon penal statutes whose mandates are
so uncertain that they will reasonably admit of different constructions. The crime, and
the elements constituting it, must be so clearly expressed that the ordinary person can
intelligently choose, in advance, what course it is lawful for him to pursue.” Connally,
269 U.S. at 393. Each of the terms identified above are susceptible to multiple meanings
and violate the vagueness standards for the following reasons:
i. “Impassable” – “Impassable” is a subjective term that ordinary members of the
community would define differently in different situations. For example,
impassable to one person might mean a physical barrier such as concrete blocks,
while to another, it might mean one person crossing the street against the light,
forcing traffic to stop in order for that person to pass.
ii. “Unreasonably inconvenient” – There is no way to place a measure on what
renders a passage “unreasonably inconvenient.” It can mean being forced to cross
the street to walk on the other side, or it can mean stepping two feet to the side in
order to bypass a group of people window shopping. What is unreasonable for
one person may not be unreasonable for another. The definition of this term
should not be left up to the discretion of enforcing officers whose impressions of
these words could differ depending upon which officer ends up responding to a
dispatch call.
ii.
“Hazardous” – This language is problematic because it can apply to
multiple scenarios, not all of which are criminal. For example, a passage can be
hazardous if it snowed, and the owner, for whatever reason, failed to shovel the
walk before the snow melted into ice. Or, a passage could be hazardous because
-5-

of a car accident or a dog breaking free of its leash and running into the street
amid traffic. In other words, the word “hazardous” criminalizes events that are
beyond a person’s control. The definition in Section 38-86(2) fails to proscribe
the specific behavior for which Mr. Ellis is being prosecuted. Nowhere in the
ordinance is there a section that specifically indicates that walking down a public
street and/or sidewalk for a short distance is prohibited. Nor is there a prohibition
against expressing one’s political viewpoint in a public arena. Therefore, there
was no way for Mr. Ellis to have known or perceived that he had to avoid that
behavior.
6. The terms in the Denver Rev. Mun. Code 38-86 are unconstitutionally vague in their application,
not only because they are elusive and unjustified, but also because they are based on subjective
standards that are left to be determined by individual sensitivities. If this ordinance is to be
enforced, the determination of what “obstruct” means is left up to the subjective sensibilities of
members of the community and responding police officers. The law in this area states that,
“Statutes phrased in terms of individual sensibilities are susceptible to attack on vagueness
grounds because of the danger of arbitrary and discriminatory enforcement.” Parrish, 758 P.2d
at 1369.
7. The ordinance would also be void for vagueness if the Court were to determine that it must be
analyzed using an objective approach. Leaving the determination of what “obstruct” means to
whether reasonable people in the community believe a person rendered a passage “impassable,
unreasonably inconvenient, or hazardous” does not provide Mr. Ellis fair notice of the
proscriptions of the ordinance nor does it provide protection from arbitrary and discriminatory
enforcement.
a. Even under an objective approach, Mr. Ellis would not have notice of what actions the
ordinance proscribes because reasonable minds may differ as to what constitutes the
rendering of a passage impassable, unreasonably inconvenient, or hazardous. Under an
objective approach, the application of this ordinance depends, not upon a word of fixed
meaning in itself, or one made definite by legislative or judicial definition, but instead on
the varying impressions of juries and the varying meanings given to these terms by
individual jurors. “The Constitutional guarantee of due process cannot be allowed to rest
upon a support so equivocal.” Connally, at 395.
i. Some members of the community might believe that obstructing a passage
requires a physical barrier such as people linked in arms sitting in the street, while
some might believe a large group of friends stopped outside a restaurant to look at
a menu is an obstruction. A family pushing a stroller or walking their dog could
be considered obstructive. Factors such as the time of day, the season, the type of
passage …etc, would play a role in the determination of whether a passage was
“obstructed.” This open interpretation of the ordinance would not give Mr. Ellis
the ability to comport his actions with those that are required of him by the law.
8. When a law is vague, the Court must decide whether to declare the law unconstitutional or to
excise its defective provisions. Robertson v. City and County of Denver, 978 P.2d 156, 162
(Colo. 1999). The court must base its decision on two factors. Id.
a. “The autonomy of the portions remaining after the defective provisions have been
deleted.” Id.
-6-

i. Absent the defectively vague provisions, the ordinance would be incoherent and
unintelligible. The remaining subsections and definitions would lose their full
force and effect without the supporting vague language. Since these remaining
sections could not stand alone, the excision of the vague language would fail to
bring the ordinance into compliance with the United States and the Colorado
Constitutions and it should be found unconstitutional.
b. “The intent of the enacting legislative body.” Id.
i. When analyzing a statute under a void for vagueness challenge, “. . . a court must
seek out the intent of the legislature in voting for its passage;” Id. Here, the
intent of the enacting legislative body in enacting this ordinance is not clear from
Code.
9. The ordinance lacks sufficient textual and contextual limits to prevent arbitrary or ad hoc law
enforcement actions. As a result, individual officers are endowed with broad discretion in
defining whether a given behavior contravenes the law’s mandates. As applied to Mr. Ellis,
Section 38-86(a) is so vague and standardless as to what behavior may or may not cause
obstruction of a passage that she and others similarly situated were left with no objective
measure to which their behavior can be conformed. The ordinance, as applied, is over inclusive
and prohibits conduct that the legislature clearly did not intend to proscribe. According to the
ordinance:
a. Several people walking down the sidewalk on 15th Street toward Court Place could be
deemed to be obstructing a passage because some people might find it was unreasonably
inconvenient to walk around them.
b. If Mr. Ellis slowed as he crossed the street, he could be deemed to have violated this
ordinance.
c. Press members who gathered to report on the situation could be indiscriminately
prosecuted under this ordinance for obstructing the sidewalk.
d. If Mr. Ellis stopped a few seconds too long at a traffic light that recently turned green he
could be prosecuted for making the street “impassable.”
e. A bystander walking down 15th on the way home from the library could have been
inadvertently caught between police and protesters and prosecuted.
f. The number of situations in which the vague provisions of this ordinance could be
applied are too innumerable to list in this motion. The fact that so many of these
situations exist supports the conclusion that the ordinance is unconstitutional on its face.
10. The City bases its allegations in the theory that a “mob” of people were intent on destroying
downtown Denver, and that their individual actions, in concert, caused the streets and sidewalks
to be blocked. The City further alleges that all those in the streets at that time therefore are
guilty of violating 38-86. Without a lawful order to disperse, the hundreds of bystanders and
members of the press that were present to watch and document the march would have no idea
that their actions had risen to the level of criminality. Furthermore, they became subject to arrest
-7-

at the arbitrary discretion of law enforcement. The City is attempting to punish Mr. Ellis for
behavior which he could not have known was forbidden unless communicated to him. Nowhere
in the ordinance is it clearly enunciated that simply walking down a sidewalk or a street, taking
photos, can subject a person to criminal municipal sanctions.
11. The City is further alleging that a lawful order to disperse is not a requirement for 38-86(a).
However, in this situation, because specific terms within the ordinance cannot be clearly defined,
and because the composition of the crowd was one that included not just protesters, but
bystanders and members of the press and legal observers as well, the failure to give a lawful
order to disperse renders the statute vague as applied. The law “trap(s) the innocent by not
providing “fair warning” of what conduct is illegal.” VanMeveren v. County Court, 551 P.2d
716, 719 (Colo. 1976).
12. Additionally, the law “impermissibly delegate(s) basic policy matters to policemen, judges, and
juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary
and discriminatory application”. Grayned v. City of Rockford, 408 U.S. 102 at 108-109 (1972).
Testimony from members of the Denver Police Department confirms that 200-300 protesters
were split into two groups. A group of approximately 200 people next to the Wellington Webb
building were let go by the police because no officer could say anyone of them had committed a
crime. Additional testimony indicates that the police made a decision to arrest approximately
100 people because Sergeant Anthony Foster could say that they all had committed a crime. Mr.
Ellis never was given either an order to disperse, or a meaningful opportunity to leave, and then
he was rounded up with approximately 100 other individuals who were simply caught in the
wrong group. He was, and will continue to be, unsure of what behavior on his part will render
him liable to the penalties of violating Section 38-86.
13. To the extent the City bases its allegations on Mr. Ellis’s remaining in the vicinity of 15th and
Court after the police cordoned off the area, § 38-86 is void as applied to Mr. Ellis because due
to police orders and cordoning procedures, Mr. Ellis had no choice but to remain in the area. In
this circumstance, the impermissibly vague language of the statute rendered it impossible for Mr.
Ellis to determine what conduct was prohibited by § 38-86, without an order to disperse and an
opportunity to do so.
14. The result of this vague language is to deprive Mr. Ellis of rights guaranteed to him under the
due process clauses of the United States and Colorado Constitutions. This ordinance should be
held unconstitutional as it is being applied to Mr. Ellis and the charge pending against him
should be dismissed.
WHEREFORE, Mr. Ellis requests that this Court dismiss the charge against him and find the
ordinance unconstitutional as applied so that he and other ordinary members of the community will not
be prosecuted based on a defectively vague ordinance that can be applied on an ad hoc basis to
individuals without notice of the conduct that it proscribes.

-8-

NADLER & WESTON
BY:__________________________________
CHARLES H. NADLER, CO#37698
1625 Larimer Street, Unit 901
Denver, CO 80202-1529
PHONE: (303) 825-0585
FAX: (303) 825-0585
EMAIL: charlesnadler2@gmail.com
ATTORNEY FOR DEFENDANT
Copy To:
City Attorney
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing instrument
was served upon an attorney of record for each party to the
above-entitled cause at their respective address as disclosed
by the pleadings on December 5, 2008.
By

: U.S. M ail
G Hand D elivered
G Federal Express
G Electronic Noticing

G Fax
G Overnight Courier
G Other
(CM -ECF, or other)

Signature __________________________

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: County and Municipal Court

q District Court

The City and County of Denver, Colorado
Court Address:
1437 Bannock Street
Denver, CO 80202
The City and County of Denver,
Plaintiff,

COURT USE ONLY

v
Evans, Stephanie,
Defendant.
Attorney (Name and Address):

Case Number:
08GS093819

Charles H Nadler
1625 Larimer Street, Unit 901
Denver, CO 80202-1529

Division: General Sessions

Phone Number: (303) 825-0585 E-mail: charlesnadler2@gmail.com
FAX Number: (303) 825-0585
Atty. Reg. CO#: 37698
Motion In Limine

Courtroom: 282

COMES NOW Stephanie Evans, Defendant in the above matter, by and through her attorney, Charles H
Nadler, of Nadler and W eston, hereby makes her MOTION IN LIMINE, as follows:

I. OTHER PERSON’S CRIMES, WRONGS OR ACTS - Feces and Urine
1. The City during prior trials in the DNC series has introduced or sought to introduce evidence
of “feces collection”, “urine collection”, bags of feces, bottles of urine, bottles of a mixture of feces and
urine, etc., all with a promise to connect it up.
2. In those prior trials these things were never connected up to the Defendants.
3. Use of such things would violate CRE 403 and 404, or will have a greater prejudicial effect
than probative value.
The Defendant moves this Court pursuant to CRE 403 and 404 to exclude these alleged crimes,
wrongs or acts of other persons.
II. INCIDENTS AT BANNOCK STREET PRIOR TO 15TH STREET INCIDENT
1. Prior to the incident alleged in the amended complaint, other incidents took place at Bannock
Street.
2. In at least one prior DNC trial testimony was given about those prior incidents.
3. Those prior incidents were not connected up with the Defendants.
4. Use of such incidents would be in violation of CRE 403 and 404, or will have a greater
prejudicial effect than probative value.
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The Defendant moves this Court pursuant to CRE 403 and 404 to exclude these prior incidents
at Bannock Street.
III. USE OF DEROGATORY TERMINOLOGY
1. The City and its witnesses at prior DNC trials have referred to the group of people who were
halted, surrounded and arrested at 15th Street and Court Place as “anarchists”, “mob”, “rioters”, “black
bloc” and “violent crowd or mob”.
2. Such terminology immediately imputes some inference of criminal conduct on the crowd –
when none exists.
3. It does so where the City has been unable to connect up specific acts of violence to the
Defendants.
4. Use of such terminology would be in violation of CRE 403 and 404, will have a greater
prejudicial effect than probative value, would undermine the presumption of innocence and would
violate the US and Colorado Constitutions’ guarantee of individualized justice.
The Defendant moves this Court on those grounds to exclude such references.
IV. OTHER PERSON’S CRIMES, WRONGS OR ACTS -Hammers, Crowbars, Pipes, Large Backpack
1. The City during prior trials in the DNC series has introduced or sought to introduce evidence
of hammers, crowbars, pipes and an ominous large backpack, all with a promise to connect it up.
2. In those prior trials these things were never connected up to the Defendants.
3. Use of such things would violate CRE 403 and 404, or will have a greater prejudicial effect
than probative value.
The Defendant moves this Court pursuant to CRE 403 and 404 to exclude these alleged crimes,
wrongs or acts of other persons.
V. OTHER PERSON’S CRIMES, WRONGS OR ACTS - Anarchist Symbols & Other Graffiti
1. The City during prior trials in the DNC series has introduced or sought to introduce evidence
of anarchist symbols and other graffiti such as “Get police”, all with a promise to connect it up.
2. The City produced photographs of those markings as attachments to an email and later on a
disk.
3. In those prior trials these things were never connected up to the Defendants.
4. Use of such things would violate CRE 403 and 404, will have a greater prejudicial effect than
probative value, and would violate the US and Colorado Constitutions’ guarantee of individualized
justice, by the use of guilt by incidental association.
The Defendant moves this Court pursuant to CRE 403 and 404, and the US and Colorado
Constitutions to exclude these alleged crimes, wrongs or acts of other persons.
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VI. USE OF THE “ANARCHIST BROCHURE”
1. The City, at prior trials, introduced or sought to introduce a so-called “Anarchist brochure”
detailing a plan to disrupt the Democratic National Convention, all with a promise to connect it up.
2. The brochure was located on the internet by Commander Dilley.
3. In those prior trials these things were never connected up to the Defendants.
4. The term “anarchist” especially in Colorado has a longer history than “terrorist” because it
was associated with the IWW who were active in the Western United States.
5. Use of such things would violate CRE 402, 403 and 404, will have a greater prejudicial effect
than probative value, and would violate the US and Colorado Constitutions’ guarantee of individualized
justice.
The Defendant moves this Court pursuant to CRE 402, 403 and 404, and the US and Colorado
Constitutions to exclude these alleged crimes, wrongs or acts of other persons.
VII. USE OF A “SPEEDING” ANALOGY
1. The City in at least one prior trial argued that this case was analogous to the situation where
several people are going 90 miles per hour in a 60 mile zone, but only one person is pulled over.
2. This argument is tantamount to “if you were there, you were guilty”, which suggests a strict
liability offense.
3. Such suggestion is contrary to the requirement of the requisite mental state of “knowingly”.
4. Use of such analogy violates the US and Colorado Constitutions’ right to a fair trial.
The Defendant moves this Court on those grounds to prohibit the use of that analogy.
VIII. FELLOW OFFICER HEARSAY
The defendant moves this court to order the City and its police witnesses to testify within the
bounds set by CRE 602 and the Confrontation provisions of the U.S. and Colorado Constitutions.
1. In the city’s effort to prosecute other defendants charged in the August 25 mass arrest, the
city sought to introduce through police witnesses hearsay testimony in violation of the confrontation
rights of the defendants under Article VI of the U.S. Constitution and Article II, Section 16 of the
Colorado Constitution. See also Crawford v. Washington, 541 U.S. 36 (2004), as applied in Colorado by
People v. Vigil, 127 P. 3d 916 (Colo. 2006).
2. Defendant requests an order requiring the city’s witnesses to testify from the witness’s own
personal knowledge as required by CRE 602.
3. If the witness will offer testimony based on what the witness was told by another, that witness
should inform the court of that intent to permit determination of the hearsay and confrontation of
witnesses issues before the matter is exposed to the finder of fact.
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4. The City has argued such evidence is not offered to prove the truth of the matter asserted but
rather is presented to establish the “state of mind” of the officer as part of the res gestae to give the
finder of fact a more full picture of the background.
5. The court must balance the benefit of that background against the prejudice inadmissible
statements will cause. Peo. v. Czemerynski, 786 P.2d 1100 (Colo. 1990), Peo. v. Quintana, 882 P.2d
1366 (Colo. 1994).
6. To the extent such evidence is testimonial and relates to the case against the particular
defendant, such evidence is barred under the Confrontation Clauses of the U.S. and Colorado
Constitutions.
7. When all officers are present on the scene at the same time, the “fellow officer rule” does not
apply. See Killmon v. Miami, 199 Fed. Appx. 796 (11th Cir. 2006).
8. In addition, the fellow officer rule is traditionally only allowed to help establish probable
cause.
9. It is not intended to be an exception to the hearsay rules or rights to confront witnesses.
10. Further, as has been seen in the prior trials the City has been unable to produce a chain of
fellow officer hearsay to connect up the arrests for the alleged charges to the first officer in the chain.
11. Finally, in none of the trials has any officer claimed to have seen a particular Defendant
actually violating the law, and there is no notice in the instant case to the contrary.
Wherefore, Defendant requests an order directing the City and its witnesses to testify only from
personal knowledge and to inform the court of the intent to introduce evidence of the statements of
others to permit determination of hearsay and Confrontation Clause issues.
IX. USE OF PROBABLE CAUSE PHOTOGRAPH #646
1. The City has used Probable Cause photographs in prior DNC trials.
2. There is a Probable Cause photograph of Stephanie Evans (#646).
3. The photograph shows alleged violations for dismissed charges.
4. Use of such things would violate CRE 403 and 404, and will have a greater prejudicial effect
than probative value.
The Defendant moves this Court on those grounds to either exclude the photograph or
require that the offending parts be covered over.
X. USE OF FRAUDULENT PROBABLE CAUSE VIDEO #646
1. The City has turned over a Probable Cause video in discovery of Stephanie Evans (#646).
2. In the video the officer states that she charged with violations of 38-31, 38-31( c ), and 38-86.

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3. In the video the officer states that he observed her, suggesting that he observed her violating
the law, even though he knew that to be false at the time.
4. In the video the officer states that she was given an order to disperse by Sgt. Foster, and she
refused to do so., even though he knew that to be false at the time, or should have known it to be false.
5. In the video an officer off screen, the director, asks how many times the order was given, and
the Officer responds three times, even though he knew or should have known at the time that it was
false.
6. On the basis of Sgt. Foster’s testimony, we know he did not give the order to disperse, as
suggested, in conformity to the policies and procedures of the City.
7. In the video an officer asks where she was when he contacted her, and he responds “in the
street”, suggesting that he apprehended her when she was violating the law, even though he knew or
should have known that at that time it was false that she was in violation of law, because she was
surrounded and ordered to sit in the street by the Police.
8. Use of such things would violate CRE 403 and 404, will have a greater prejudicial effect than
probative value.
The Defendant moves this Court on those grounds to exclude the video, and exclude any
testimony by the arresting officers and by anyone else who may have participated to the making of the
video, on the grounds that the video is fraudulent, and as part of the City’s attempt to show probable
cause, the City and all the participants have attempted to perpetrate a fraud upon this Court, and the City
and County of Denver, and the State of Colorado, and all of its citizens.
In the alternative, if any officer is permitted to testify, and repeats any of the falsehoods on this
video, this Court is requested to allow the Defense to explore the making of this video or the story in it,
and that officer’s participation, for the purposes of impeachment.
XI. PRIOR CRIMES, WRONGS OR ACTS
1.

The City in its paper discovery produced a criminal history search showing one conviction.

2. There were three Ordinance violations in Case No. 07GS980646, viz. Disturbing the Peace, Threats to
Person or Property and Public Fighting.
3. The charges were dismissed after satisfactory completion of a Deferred Judgment.
4. The government may try to introduce those convictions at trial.
5. Use of this conviction would either violate
effect than its probative value.

CRE 403, 404, and 609, or will have a greater prejudicial

6. Further, the charges are for a Municipal violation and as such should not be admitted into evidence,
and since the judgment was deferred and the charges dismissed the violations should not be admitted into
evidence.
The defendant moves this Court pursuant to CRE 403, 404, and 609 to preclude the government from
using any of her prior convictions, wrongs or acts against her.

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XII. ALIAS

1. The in its paper discovery reveals that it believes that Ms. Evans has been using aliases.
2. The aliases are “Stephanie Evans” and “Stephanie Evans Brynn”.
3. It is unclear what name the City thinks is her true name. If they say: Stephanie B Evans, they
overlook the fact that her birth name is Stephanie Brynn Evans. “Stephanie Evans” is what most credit
card companies would take to be her legal name to spend plastic money.
4. The City may try to use those aliases against the defendant at trial.
The defendant moves this Court pursuant to Fed. R. Ev. 403 to preclude the use of those
“aliases” as incoherent and unfairly prejudicial.

NADLER & WESTON
BY:__________________________________
CHARLES H. NADLER, CO#37698
1625 Larimer Street, Unit 901
Denver, CO 80202-1529
PHONE: (303) 825-0585
FAX: (303) 825-0585
EMAIL: charlesnadler2@gmail.com
ATTORNEY FOR DEFENDANT

Copy To:
City Attorney
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing instrument
was served upon an attorney of record for each party to the
above-entitled cause at their respective address as disclosed
by the pleadings on December 5, 2008.
By

: U.S. M ail
G Hand D elivered
G Federal Express
G Electronic Noticing

G Fax
G Overnight Courier
G Other
(CM -ECF, or other)

Signature __________________________

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The City and County of Denver, Colorado
Court Address:
1437 Bannock Street
Denver, CO 80202
PEOPLE OF THE STATE OF COLORADO,
Plaintiff

σ COURT USE ONLY σ

v.
LEON HAYES,
Defendant
Attorney (Name and Address):
Joshua Norkin
1632 S. Milwaukee
Denver, CO 80210
Joshua.Norkin@hotmail.com
Attorney Reg. 40152

Case Number: 08 GS 094007
Division: General Sessions
Courtroom: 282
MOTION TO SUPPRESS ID

Leon Hayes, by and through counsel, respectfully requests that this Court suppress any
testimony at trial regarding the out-of-court identification of Mr. Hayes by Sergeant Tony Foster,
Sergeant Anthony Martinez, Officer Schluck, Officer Englebert, Officer Duran, Officer Sanchez,
Officer Buschy, Officer Hines and other individuals currently unknown to the defense, as well as
any in-court identification of Mr. Hayes during trial, on the grounds that the out-of-court
identification procedure(s) were unduly suggestive. As grounds he states as follows:
PROCEDURAL HISTORY
1. Leon Hayes is charged with violating 38-86: Obstructing Passageway.
2. On October 2, 2008, Mr. Hayes entered a not guilty plea to the charge against him.
3. The court also ordered that the City disclose to the Defendant any specific video evidence of
the Defendant one week prior to trial. Trial was set for December 1, 2008.
4. At status conference on November 3, 2008, the City amended the complaint against Mr. Hayes
and dropped the 38-31 charges.
5. In the course of their investigation, the City obtained a copy of a videotape of the alleged
incident from a legal observer named Scott Humphrey’s.
a. This video was taken by a citizen in a neutral capacity and not by a member of the
Denver Police Department. Neither the City Attorney, nor the Denver Police
Department, would have seen this video before it was obtained by them sometime in
late October 2008.

6. On November 25, 2008 Defendant received an email and a phone call from Bronwyn Scurlock,
the City Attorney, indicating that the City intended to use the video taken by Mr. Humphreys, a
legal observer.
7. Since obtaining the video, the City and members of the Denver Police Department have
allegedly identified Leon Hayes as an individual who was on the tape. The City Attorney
indicated in both her email and phone call that they had identified Leon Hayes at 7:11:10 on the
video.
8. The Defendant has received no details of how Mr. Hayes was identified on the tape, and
there is no evidence the individual who identified Mr. Hayes has ever met him. However,
based on the fact that a both video of Mr. Hayes during his arrest and a probable cause photo
taken of Mr. Hayes were provided in discovery, it is believed that the identifying officer or
City Attorney simply compared the video or photo to the Humphrey’s videotape in coming to
the conclusion.
I. The out of court identification of Mr. Hayes on Mr. Humphreys’ video was unduly
suggestive and his in-court identification must be suppressed.
1. Courts generally disapprove of suggestive lineups because of the increased likelihood of
misidentification. Bernal v. People, 44 P.3d 184, 190 (Colo. 2002). Furthermore, one-onone confrontations are viewed with even greater disfavor because they tend to be suggestive
and present greater risks of mistaken identification. People v. Walker, 666.P.2d 113, 119
(Colo. 1983). “In some cases the procedures leading to an eyewitness identification may be
so defective as to make the identification constitutionally inadmissible as a matter of law.”
Foster v. California, 394 U.S. 440, 442 n.2 (1969).
2. An individual is denied due process of law when an out-of-court identification is so
unnecessarily suggestive that it renders the in-court identification unreliable. Manson v.
Brathwaite, 432 U.S. 98, (1977); People v. Borghesi, 66 P.3d 93, 103 (Colo. 2003). The
threshold question to be determined is whether the out-of-court identification procedures
were unnecessarily suggestive based on the totality of the circumstances. Id. The factors
considered in this determination are: (1) the opportunity of the witness to view the criminal at
the time of the crime; (2) the witness' degree of attention; (3) the accuracy of his prior
description of the criminal; (4) the level of certainty demonstrated at the confrontation; and
(5) the time between the crime and the confrontation. People v. Smith, 620 P.2d 232, 237238 (Colo. 1981)
2.1. The video allegedly depicting Mr. Hayes occurs at 7:11:10. It was taken at a point in
time at which no police officer was present at the scene. Additionally, it was taken by a
citizen and not a member of the Denver Police Department. Any identification would
have had to have occurred after the City obtained the video from Mr. Humphreys. There
would have been no opportunity for the identifying party to have viewed Mr. Hayes at
the time of the crime.

2.2. Mr. Hayes was arrested with over 100 other individuals on August 25, 2008. There have
been approximately five different trials relating to this arrest during the Democratic
National Convention. As of yet, there has been no member of the Denver Police
Department who has been able to specifically identify any individual as having
committed a crime. Sergeant Tony Foster, who has testified that he gave the order to
arrest Mr. Hayes, has also testified that he can’t identify anyone as having specifically
committed the crime, only that “that group” of people was in the street.
2.3. The officer making the identification in this video would not have had a chance to do so
until sometime around October 25, 2008; nearly two months after the incident. This is a
significant period of time, and it would be nearly impossible for an officer on the scene
to identify an individual from behind, at great distance, and amongst hundreds of other
people without help as they would have had to do in this situation.
3. Where the pre-trial identification procedure is found to be impermissibly suggestive, the state
must prove by clear and convincing evidence that the in-court identification of the defendant
is based on an independent source. Otherwise, the in-court identification must be suppressed.
People v. Monroe, 925 P.2d 767 (Colo. 1996), citing United States v. Wade, 388 U.S. 218,
239-40 (1967). The same five factors used in the totality of circumstances test cited above
should be considered in determining whether there is an independent basis for the in-court
identification. People v. Smith, 620 P.2d at 238.
4. Defendants are entitled to have counsel present at post-indictment, pre-trial identification
procedures to protect against suggestiveness. People v. Monroe, 925 P.2d at 770, citing
Wade, 388 U.S. at 236-237 (a lineup is a “critical stage” in the prosecution, at which the
accused must be given the opportunity to be represented by counsel.) The Wade court based
their decision on recognition of the fact that “many variables and pitfalls exist” in pre-trial
identification procedures, thus “the first line of defense must be the prevention of unfairness
and the lessening of the hazards of eyewitness identification at the lineup itself”, which can
only be effectively ensured by the presence of counsel. Id. at 235.
WHEREFORE, Mr. Hayes respectfully requests that this Court enter an order
suppressing both the out-of-court identification of Mr. Hayes as well as any in-court
identification at trial, pursuant to the above statements of fact and law. Mr. Hayes makes this
motion, and all other motions and objections in this case, whether or not specifically noted at the
time of making the motion or objection, on the following grounds and authorities: federal and
state constitutional rights to bail, the due process, trial by jury, right to counsel, equal protection,
cruel and unusual punishment, confrontation, compulsory process, right to remain silent, and
right to appeal clauses of the federal and Colorado Constitutions, and the first, fourth, sixth,
eighth, ninth, tenth, and fourteenth amendments to the United States Constitution, and article II,
sections 3, 6, 7, 10, 11, 16, 18, 20, 23, 25, and 28 of the Colorado Constitution.

Copy To:
City Attorney, Bronwyn Scurlock
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing instrument
was served upon an attorney of record for each party to the
above-entitled cause at their respective address as disclosed
by the pleadings on December 1, 2008.
By

U.S. Mail
□ Fax
□ Hand Delivered
□ Overnight Courier
□ Federal Express
□ Other
□ Electronic Noticing (CM-ECF, or other)

Signature __________________________

JURY INSTRUCTION No.h
It is the defendant's theory of their case that they are individuals who should be
th
treated as individuals. There were many innocent bystanders or watchers at 15 Street
and Court Place on August 25, 2008.
Once the defendants were not free to leave then they could not have committed
the crime of obstruction of passageways.
Defendants argue that the conduct engaged in by the defendant(s) was justified as
a peaceable exercise of their rights.
The defendants contend the government's theory amounts to guilt by association.