Information about http://www.aclu-co.org/docket/200809/809padf.complaint.05-19-08.pdf
Denver District Court 1B 1437 Bannock Street, #256 Denver, CO…
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Language: english
Created: Mon May 19 09:25:25 2008
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Denver District Court
1B
1437 Bannock Street, #256
Denver, CO 80202
This case is NOT
subject to the simplified
AMERICAN CIVIL LIBERTIES UNION OF COLORADO, procedures for court
a Colorado corporation, actions under Rule 16.1
because:
Plaintiff,
This matter is an
v. expedited proceeding
under § 24-72-305(7),
ALVIN J. LaCABE, JR., in his official capacity as C.R.S. (2003).
Manager of Safety, and
THE CITY AND COUNTY OF DENVER,
Defendants.
Attorneys for Plaintiff
John A. Culver, Esq., #21811 Case Number:
Benezra & Culver, L.L.C.
274 Union Blvd., #220
Lakewood, CO 80228-1835
(303) 716-0254 Div.: Ctrm:
(303) 716-0327 facsimile
jaculver@bc-law.com
Mark Silverstein, Esq., #26979
Taylor S. Pendergrass, Esq., #36008
ACLU Foundation of Colorado
400 Corona Street
Denver, CO 80218
(303) 777-5482
msilverstein@aclu-co.org
VERIFIED COMPLAINT AND APPLICATION FOR ORDER TO SHOW CAUSE
Plaintiff, American Civil Liberties Union of Colorado ("ACLU"), through its
attorneys, John A. Culver of the law firm of Benezra & Culver, L.L.C., and Mark
Silverstein and Taylor S. Pendergrass of the ACLU Foundation of Colorado, for its
Complaint and Application for Order to Show Cause against the Defendants, Alvin J.
LaCabe, Jr. and the City and County of Denver ("Denver"), alleges the following:
I. INTRODUCTION
1. The Denver Sheriff's Department ("DSD") operates the Pre-Arraignment
Detention Facility ("PADF") in downtown Denver. The PADF serves as the initial intake
facility for arrestees in Denver. At the PADF, arrestees are processed into the system,
booked, fingerprinted, and temporarily housed until they are able to make bond or have
been given an advisement by the Court.
2. This lawsuit seeks disclosure of the Policy and Procedure Manual of the
PADF pursuant to the Colorado Criminal Justice Records Act ("CCJRA"), C.R.S.
§ 24-72-301, et seq. Relief from this Court is required, because Defendants have
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refused to produce a complete copy of the PADF Manual, without legitimate justification
under the CCJRA. While Defendants have refused inspection and copying on the
grounds that disclosure is "contrary to the public interest," the public interest clearly
compels public disclosure of this information.
II. JURISDICTION AND PARTIES
3. This Court has jurisdiction to consider Plaintiff's claims, pursuant to C.R.S.
§§ 24-72-305(7).
4. Plaintiff ACLU of Colorado is a not-for-profit public interest membership
organization incorporated in Colorado and headquartered in Denver, Colorado. As
such, it is a "person" as defined in the CCJRA, C.R.S. § 24-72-302(9).
5. Defendant Alvin J. LaCabe, Jr. is the Manager of Safety for the City and
County of Denver, Colorado, and is both the "custodian" and the "official custodian" of
the criminal justice records at issue in this case. (See C.R.S. § 24-72-302(5) and (8).)
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He is sued in his official capacity only.
6. The City and County of Denver is a home-rule political subdivision of the
State of Colorado and is also a "custodian" of the criminal justice records at issue in this
case pursuant to C.R.S. § 24-72-302(5).
III. APPLICABLE LAW
7. The DSD is a "criminal justice agency" as defined by C.R.S. § 24-72-
302(3). The records at issue in this case, the PADF Manual, are "criminal justice
records" as defined by C.R.S. § 24-72-302(4). Unless specifically exempt,
C.R.S. § 24-72-305 requires that all criminal justice records should be made available
for public inspection and copying, unless such disclosure would be "contrary to the
public interest."
8. Upon application to the District Court for the District in which the criminal
justice records can be found, the Court is to enter an order to show cause "at the
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earliest practical time" at which time the custodian of records must demonstrate why the
records at issue should not be disclosed. (See C.R.S. § 24-72-305(7).) Unless the
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Court finds that the custodian's refusal to permit access to the records at issue was
proper, the Court shall order the custodian to permit such access. (Id.)
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9. Upon a finding that the custodian's denial of access was arbitrary or
capricious, the Court may order the custodian to pay the applicant's court costs and
attorney fees in an amount to be determined by the Court. (Id.)
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IV. FACTUAL ALLEGATIONS
A. The Public Interest Served by Disclosure of Defendant's PADF Manual.
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10. The disclosure of the PADF Manual serves the compelling public interest
of providing the public knowledge of whether the government's policies effectively and
competently protect the constitutional and statutory rights and the health, safety, and
welfare of the 48,000 persons annually processed and detained at the PADF. The
public interest in transparency and openness regarding the government's policies at the
PADF is manifest and clearly outweighs any arguable interest in denying inspection of
the PADF Manual.
11. Disclosure serves the public interest in multiple ways, including, but not
limited to, the following: (a) the general public interest in knowing how and whether the
constitutional and statutory rights of pre-trial detainees and prisoners the PADF are
protected; (b) the public interest in knowing about the government's policies, or lack
thereof, regarding persons wrongfully arrested by Denver officers in cases of mistaken
identity and detained at the PADF; (c) the public interest in investigating unreasonable
and unnecessary delays in processing detainees and releasing them from the PADF
after they have posted bond; and (d) the public interest in knowing whether existing
policies are adequate to protect the constitutional and statutory rights, and the health
and safety, of pre-trial detainees during a major event like the Democratic National
Convention ("DNC").
1. The public interest in protecting the rights of pre-trial detainees and
prisoners.
12. The ACLU of Colorado is dedicated to promoting the public interest by
protecting and defending the civil rights and civil liberties of all persons in Colorado. In
particular, the ACLU is interested in and engages in advocacy to protect the
constitutional and statutory rights of pre-trial detainees and prisoners.
13. The ACLU of Colorado's advocacy in furtherance of the public interest on
behalf of the rights of pre-trial detainees and prisoners includes numerous instances of
informal advocacy, such as letters, phone calls, or other communication encouraging
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governmental officials to add or amend policies or practices that relate to the treatment
of pre-trial detainees and other prisoners.
14. Each year, the ACLU of Colorado receives thousands of requests for legal
assistance from persons in Colorado. A majority of these requests come from pre-trial
detainees and prisoners, including persons who are processed through the PADF.
Prisoners and pre-trial detainees write about a range of issues such as religious
exercise, overcrowding, access to counsel, access to medication, medical and mental
health care, and other issues.
15. In addition to letters from pre-trial detainees, prisoners, and their families,
the ACLU of Colorado also receives communications from private attorneys, public
defenders and others regarding the PADF. These communications include allegations
that the PADF is dangerously overcrowded; that detainees have been "lost" at the
PADF as a result of internal misidentification; that there are unnecessary delays in
releasing persons after they have posted bond; and that understaffing and limited
infrastructure pose risks to the health and safety of persons at the PADF, among other
concerns.
16. In this regard, the public interest served by disclosure of the PADF Manual
includes, but is not limited to, the public interest in knowing the procedures for booking
these detainees, the information collected by Denver during that process, the access
provided to counsel and family for these detainees, the medical care and treatment they
receive while detained, risks attendant to overcrowding at PADF, the use of the PADF
for immigration detention and immigration holds, the procedures for identification of
detainees, procedures for posting bond and release, religious exercise at the PADF,
accurate computation of sentences, and other issues.
2. The public interest in disclosure of policies protecting the rights of
pre-trial detainees who may wrongfully be detained at the PADF.
17. The ACLU has investigated multiple incidents in which innocent persons
have been mistakenly arrested and detained at the PADF on the basis of a warrant for a
different person. In these cases, the innocent parties who have been mistaken for
criminal suspects have been wrongfully detained from a few hours up to two, eight,
nine, and even to 25 days before being released. There is a strong public interest in
knowing whether Defendants have adequate policies in place to ensure that a suspect
arrested on a warrant and brought to the PADF is indeed the person named in the
warrant. There is a strong public interest in knowing whether the failure to promptly
identify and correct these mistakes results from deficient policies or, instead, from a
failure to follow existing policies that would be adequate if followed.
18. In cases the ACLU has investigated, the innocent persons who were
mistakenly arrested and detained repeatedly informed DSD deputies at the PADF that a
mistake had been made and that they were not the criminal suspect named in the
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warrant. In some cases friends or family members brought documentation to the PADF
to prove that the persons being detained were not the person for whom the warrant
issued, but DSD deputies at the PADF did not investigate or verify the identity of the
innocent parties. There is a strong public interest in knowing whether the Sheriff's
Department has adequate policies in place to ensure that such claims of mistaken
identify are taken seriously and promptly investigated. There is a strong public interest
in knowing whether the failures to investigate in these cases result from deficient
policies or, instead, from a failure to follow existing policies that would be adequate if
followed.
19. Rule 5 of the Colorado Rules of Criminal Procedure states that a person
arrested, with or without a warrant, must be brought before a judicial officer without
unreasonable delay. In more than one case, the innocent persons who were mistakenly
arrested and detained at the PADF were not brought to court for the prompt judicial
appearance the rule requires. There is a strong public interest in knowing whether the
Sheriff's Department has adequate policies in place to ensure that persons arrested and
detained at the PADF are indeed brought before a judicial officer without unnecessary
delay.
20. Rule 5 of the Colorado Rules of Criminal Procedure states that when a
person is arrested and detained on a warrant that originates from another jurisdiction,
that person must be transferred to that jurisdiction within 48 hours if he or she has not
posted bond. In one case, an innocent person mistaken for a criminal suspect was
arrested and held at the PADF on a warrant from another jurisdiction, and, he was not
transferred to that jurisdiction until eight days after his arrest. When he was eventually
transferred to that jurisdiction, he was immediately released. There is a strong public
interest in knowing whether the Sheriff's Department has adequate policies in place to
ensure that persons arrested and detained at the PADF on a warrant from another
jurisdiction will be transferred to that jurisdiction within 48 hours.
21. The problem of wrongful detentions at PADF due to mistaken identity has
garnered significant press attention. (See, e.g., Susan Greene columns, attached as
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Exhibit A.) That attention plainly demonstrates the public interest in this matter.
22. The failures described in the cases described above underscore the public
interest in knowing whether these cases result from deficient policies or, instead, from a
failure to follow existing policies that would be adequate if followed. The public interest
would thus be served by disclosure of the PADF Manual.
3. The public interest regarding unreasonable and unnecessary delays
in processing and releasing detainees.
23. Persons arrested and detained at the PADF, criminal defense attorneys,
and public defenders have long complained that it takes hours for persons to be
"booked" into the PADF, that it takes hours before persons ready and able to pay their
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bond immediately upon their arrest are allowed to do so, and that it takes even more
time to release a detainee even after bond has been posted.
24. Some criminal defense attorneys have stated that when they are
counseling a client who is going to turn herself in on an active Denver warrant, they
arrange for that to take place at a jurisdiction outside of Denver, because the delays in
processing and release at the PADF are so common and so long.
25. There is a strong public interest in knowing whether the delays in
processing and releasing persons who have posted bond are the result of deficient
policies, or whether the delays are the result of failure to follow policies that are
adequate on their face. Disclosure of the PADF manual will serve that public interest.
4. The heightened public interest in the potential consequences of
mass arrests during the time of the 2008 Democratic National
Convention.
26. Issues arising from the potential for mass arrests during the upcoming
Democratic National Convention ("DNC") highlight the public interest in disclosure of the
policies and procedures of the PADF. The DNC is scheduled for the week of
August 24, 2008.
27. Representatives of the ACLU began meeting with Denver officials in May
of 2007 to discuss plans to accommodate demonstrations during the time of the
convention. The ACLU was aware of numerous complaints of serious violations
stemming from the mass arrests made by the New York City Police Department during
the Republican National Convention in 2004. One complaint was that New York had
apparently made full custodial arrests for minor violations, resulting in an overload of the
available processing infrastructure, excessive backlogs in processing, and serious
problems with access to food, medicine, attorneys, sanitary facilities, and delivery of
medical care to vulnerable detainees.
28. At a meeting about the DNC during the summer of 2007, an ACLU
representative suggested that Denver Police issue a citation or summons in the case of
minor violations, instead of making a full custodial arrest. Deputy Chief of Police
Michael Battista responded that implementing such a suggestion would require a
change of policy. The current policy, as Chief Battista described it, is that "for protests,
we don't cite and release."
29. Several months later, Denver Police apparently followed the "no cite and
release" policy with regard to protesters accused of minor law violations during the
annual Columbus Day Parade. Approximately 80 protesters were subjected to full
custodial arrests and were detained at the PADF.
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30. The addition of 80 arrestees overwhelmed the physical and staffing
infrastructure at the PADF. Almost all of the arrestees were prepared to post bond
immediately, either with cash or credit cards they carried, or through friends or family
who were ready with the necessary money. Nevertheless, dozens of the Columbus Day
arrestees were forced to wait for many hours before their bond money was accepted
and listed as "posted" on the jail's computer. Even after bond money was accepted and
"posted," many arrestees remained locked up an additional six, eight, ten, even twelve
hours before they were released.
31. In a letter dated October 23, 2007, ACLU of Colorado Legal Director Mark
Silverstein wrote to Denver officials (attached as Exhibit B). The letter noted the
unreasonable delays -- up to 12 hours -- in releasing persons who had posted bond for
minor arrests in connection with protests of the Columbus Day Parade. The letter noted
that the problems the PADF faced in processing only 80 accused protesters would be
increased exponentially during the DNC if Denver failed to change the "no cite and
release" policy for minor violations in connection with protests. The ACLU urged City
officials to abandon the "no cite and release" policy. The letter also asked the City to
investigate the reasons why the PADF was unable to release persons for up to 12 hours
even after they had paid their bond money and presumably had a right to a prompt
release. The City did not respond to the letter.
32. On information and belief, the Denver Police Department has not modified
the policy, as described by Chief Battista, that with regard to alleged protest-related
offenses, the Denver Police Department will not issue citations for minor violations but
instead carries out full custodial arrests. On information and belief, the Denver Police
Department plans to carry out full custodial arrests for alleged violations of law -- even
for minor offenses -- in connection with protests during the DNC.
33. The ACLU of Colorado has attempted to advise various Denver City
officials that the prospect of full custodial arrests on a mass scale will overload the
staffing and physical infrastructure of the PADF and the Denver Sheriff's Department
and will pose a risk of multiple violations of the constitutional and statutory rights of the
prisoners. One example of that effort is a letter dated April 29, 2008 to judges of the
Denver County Court (attached as Exhibit C). In cases where the staffing is not
adequate to provide medications or medical care to vulnerable arrestees, there is a risk
of serious damage to prisoners' health and possibly a risk of a tragic death. The City
and County of Denver already faces a federal lawsuit over the death of Emily Rice while
she was detained at the PADF.
34. Disclosure of PADF policies may inform public discussion of the PADF's
ability to adequately ensure protection of prisoners' statutory and constitutional rights,
especially in light of the prospect of mass arrests in connection with the DNC.
Disclosure may also help inform public discussion of the question whether Denver
police should modify the "no cite and release" policy in order to minimize the potential
overload of the PADF.
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35. For all the reasons discussed above, disclosure of the PADF Manual is
not contrary to the public interest. On the contrary, disclosure overwhelmingly
advances the public interest.
B. Defendants' Denial of Plaintiff's Request for Access to Records.
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36. On November 8, 2007, Taylor Pendergrass of the ACLU submitted a
request (attached as Exhibit D) pursuant to the CCJRA for the following:
a. All Denver policies, procedures, guidelines or other criteria related
to when Denver will accept the payment of bail by an arrestee;
b. All records related to any administrative steps or other processes
Denver requires to be completed prior to accepting the payment of
bail by an arrestee;
c. All Denver policies, procedures, guidelines, or other criteria related
to when Denver will release an arrestee after Denver has accepted
the payment of bail by an arrestee;
d. All records related to any administrative steps or other processes
Denver requires to be completed before any arrestee will be
released after Denver has accepted the payment of bail by an
arrestee.
37. On November 25, 2007, Mary Dulacki, Assistant Manager of Safety
("MOS") for the City and County of Denver, responded to the ACLU's request. In her
response, Ms. Dulacki provided access to just four sections of the PADF Manual
(attached as Exhibit E). In her response, Ms. Dulacki did not assert that production of
such materials would negatively impact a security interest for DSD. (Id.)
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38. On March 11, 2008, Mr. Pendergrass requested production of the entire
PADF Manual (attached as Exhibit F). In response, Ms. Dulacki produced four
additional sections of the PADF Manual. Ms. Dulacki then objected to production of the
remainder of the PADF Manual. As grounds for withholding, she stated, "it would be
contrary to the public interest because it relates to security procedures of the Denver
Sheriff Department" (attached as Exhibit G).
39. That same day, ACLU disputed Ms. Dulacki's rationale for denying
inspection of the Manual, and again requested a copy of the entire PADF Manual. In
that communication, the ACLU suggested that Defendants could redact portions of the
Manual that directly related to security procedures. In an effort to reach a compromise
that might avoid the need to disclose portions of the Manual that specifically related to
security procedures, the ACLU then requested that the MOS send the Table of
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Contents ("TOC") to the ACLU (attached as Exhibit H). The ACLU then indicated it
would designate specific sections for disclosure so that they could be produced subject
to appropriate redaction. By voicemail, Ms. Dulacki agreed to the compromise and then
forwarded by facsimile a copy of the TOC to Mr. Pendergrass (TOC, attached as
Exhibit I).
40. On March 25, 2008, Mr. Pendergrass sent a copy of the TOC to
Ms. Dulacki with approximately 94 sections designated for production.
41. On March 27, by facsimile, Ms. Dulacki disclosed to the ACLU 6 additional
sections of the PADF Manual.
42. On April 10, Ms. Dulacki spoke to Mr. Pendergrass regarding the
outstanding requests. During that conversation, Ms. Dulacki asserted, for the first time,
that the remaining sections of the PADF Manual were going to be withheld because the
Manual was a "discovery issue in the Emily Rice [et al. v. City and County of Denver,
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et al., Case No. 07CV01571-MSK (D. Colo.)] case."
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43. On April 17, Mr. Pendergrass sent a letter to Ms. Dulacki disputing that the
newly-asserted rationale justified withholding, and again requesting production of the
PADF Manual (attached as Exhibit J). On April 30, Ms. Dulacki responded to
Mr. Pendergrass' request (attached as Exhibit K). In that correspondence, Ms. Dulacki
abandoned her rationale based on the Emily Rice litigation. This time, she returned to
her assertion that production of the entire PADF Manual would be contrary to the public
interest. (Id.) Her correspondence did not address the ACLU's offer to accept redacted
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copies of the sections specifically designated on the basis of the Table of Contents.
(Id.)
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44. Ms. Dulacki abused her discretion to determine whether disclosure of the
requested sections contravened the public interest by failing to make a
section-by-section, policy-by-policy determination regarding the public interests at
issue. The vast majority of the sections Dulacki refused to produce do not even
arguably pertain to the "security" interest upon which she relies to justify non-disclosure.
Even where a section generally pertained to a security issue, she failed to make a
specific determination regarding the balance of competing interests and failed to
consider redactions to accommodate security concerns.
45. As of the date this Complaint was filed, Defendants have failed to disclose
numerous policies in the PADF Manual that directly pertain to the public interests
described herein. The PADF Manual contains approximately 205 policies. Of these,
the Defendants produced only 16 policies before refusing to disclose any additional
policies. 1 F
1
The policies initially produced are the following: 201 (Initial Booking), 202 (Search Desk), 206 (Booking),
207 (Fingerprinting), 301 (Booking Requirements), 304 (Change of Charge), 406 (Credit Card
Acceptance for Bonds), 407 (Cash Bonds), 408 (Bond Surrenders), 477 (Order for Release of Bonds),
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V. CLAIM FOR RELIEF
Order to Show Cause and Award of Reasonable Attorney Fees
2B
Pursuant to C.R.S. § 24-72-305(7)
46. Plaintiff hereby incorporates Paragraphs 1 through 45 above as if fully set
forth herein.
47. The information requested by the Plaintiff as described herein has been
made, maintained and kept by Defendants and constitutes criminal justice records
under C.R.S. § 24-72-302.
48. Defendants have refused to provide access to criminal justice records
pursuant to Plaintiffs' request.
49. No statutory exception under the CCJRA warrants Defendants' decision to
deny access to the public records requested by Plaintiff.
50. Defendants' denial of access to the records sought by Plaintiff violates the
CCJRA.
51. There was no good faith basis or grounds to support Defendants' refusal
to provide access to the CCJRA records sought by Plaintiff herein, and such denial was
arbitrary and capricious, thereby entitling it to an award of attorney fees and costs.
WHEREFORE, Plaintiff ACLU asks this Court to enter judgment in its favor and
award the following relief:
(a) The Court enter an Order directing the Defendants to show cause why
they should not permit inspection and copying of the entire PADF Manual
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as described herein. An Order to Show Cause has been filed separately
from this Complaint.
(b) The Court conduct a hearing pursuant to such Order "at the earliest
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practical time," at which time the Court should make the Order to Show
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Cause absolute and order production of the requested documents;
(c) The Court enter an Order directing Defendants to pay Plaintiff's court
costs and reasonable attorney fees;
(d) The Court order any other and further relief that the Court deems just and
proper.
934 (Bond Posted Prior to I.D. Bureau Clearance), 935 (Make Own Bond), and 944 (After House
Bond/Fine Procedures).
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Respectfully submitted this 19th day of May, 2008.
BENEZRA & CULVER, L.L.C.
s/John A. Culver________________
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John A. Culver, Esq., #21811
274 Union Blvd., #220
Lakewood, CO 80228-1835
(303) 716-0254
ACLU Foundation of Colorado
Mark Silverstein, Esq., #26979
Taylor S. Pendergrass, Esq., #36008
400 Corona Street
Denver, CO 80218
(303) 777-5482
Plaintiff's Address
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400 Corona Street
Denver, CO 80218
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VERIFICATION
0B
Mark Silverstein, being first duly sworn on oath, deposes and says that he is the
Counsel of the American Civil Liberties Union of Colorado, Plaintiff in this action, that he
has read the foregoing Verified Complaint and Application for Order to Show Cause,
and that the factual allegations set forth in paragraph IV(A) thereof are true to the best
of his knowledge, information and belief.
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF COLORADO
By:_s/Mark Silverstein__________
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Mark Silverstein
State of Colorado )
County of Denver )
Subscribed and sworn to before me this 16th day of May, 2008, by Mark
Silverstein. WITNESS my hand and official seal. My Commission expires: 6-27-2010.
_s/Debra L. Woods_______________
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Notary Public
Taylor S. Pendergrass, being first duly sworn on oath, deposes and says that he
is the Counsel of the American Civil Liberties Union of Colorado, Plaintiff in this action,
that he has read the foregoing Verified Complaint and Application for Order to Show
Cause, and that the factual allegations set forth in paragraph IV(B) thereof are true to
the best of his knowledge, information and belief.
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF COLORADO
By:_s/Taylor S. Pendergrass____
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Taylor S. Pendergrass
State of Colorado )
County of Denver )
Subscribed and sworn to before me this 16th day of May, 2008, by Taylor S.
Pendergrass. WITNESS my hand and official seal. My Commission
expires: 6-27-2010.
s/Debra L. Woods________________
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Notary Public
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