NAPO Press Release
SUPPORTING LAW
ENFORCEMENT OFFICERS’ RIGHTS
ACLU v. City and County of Denver, et al.
WASHINGTON, DC - The National Association of Police Organizations, Inc. (NAPO) submitted today a legal brief with the Colorado Court of Appeals in support of law enforcement officers in the case of ACLU v. City and County of Denver, et al.The amicus curiae, or "a friend of the court", brief was filed with the Colorado Court of Appeals in the case of ACLU v. City and County of Denver, et al., on behalf of Intervenors-Appellants, Denver Police Officers Nicholas Grove and Phil Stanford, and also 51 Denver Police officers who are directly affected by the outcome of this case. [1]
"We are urging this Court to stop serious violations of these officers’ constitutional rights of privacy which could subject them to harm. It is unbelievable that the trial court could even consider releasing private information that could endanger the safety of law enforcement officers and their families," said Robert T. Scully, NAPO executive director.
STATEMENT OF THE CASE
This case involves an effort to by the Plaintiff-Appellee American Civil Liberties Union (ACLU) to obtain the entire Denver Police Department’s Internal Affairs Bureau (IAB) file in a case which has received much media attention. The confidential material sought by the ACLU arose out of the following event.
On March 26, 1997, while driving a stolen vehicle, Gil F. Webb II, then a 17-year-old, collided with a Denver Police patrol car. That collision killed a passenger in the patrol car, Police Officer Ron DeHerrara. Immediately after the collision, Webb was arrested for auto theft and vehicular homicide. A television reporter videotaped the events immediately after the crash, surrounding Mr. Webb’s detention, restraint and subsequent placement in an ambulance.
While unclear as to what exactly happened because of the television cameraman’s location and the angle of his camera, the videotape did raise questions about the officer Intervenors-Appellants’ use of force. Accordingly, in response to pressure from the NAACP and others, a special prosecutor was appointed to investigate whether criminal charges should be brought against anyone involved in the arrest or care of Mr. Webb. The Department’s IAB conducted that investigation.
At the conclusion of the investigation, in May 1997, a special prosecutor issued a decision that no criminal charges would be brought against any person involved in Mr. Webb’s arrest. This IAB investigation resulted in a finding that Officer Nicholas Grove had violated a departmental policy, arising out of this incident, for which he received a five-day suspension. Officer Stanford was also found to have violated departmental policy, not as a result of his actions during the incident, but as a result of subsequent conduct tangentially related to the March 26th incident. Officer Stanford accepted the discipline. Officer Grove first appealed to the Civil Service Commission, but then withdrew his appeal and accepted the discipline.
In December 1997, the ACLU filed a demand under the Colorado Open Records Act (CORA) and the Colorado Criminal Justice Records Act (CCJRA), to obtain disclosure of the IAB’s entire file in this case, including (a) sworn statements from 62 law enforcement officers (including 9 sheriffs deputies) and approximately 41 other witnesses (including paramedics), (b) evaluative summaries and recommendations, and (c) videotapes and audiotapes. The City and County of Denver rejected the demand, and the ACLU filed a lawsuit.
The District Court applied the Colorado Open Records Act and the Colorado Criminal Justice Records Act. On April 7, 1998, that court granted the relief sought by the Plaintiff-Appellee. First, the judge’s April 7th order dismissed the Intervenors’ confidentiality argument as "unpersuasive", finding that the information sought to be protected was not "highly personal and sensitive". Second, the court dismissed the City’s "official information" privilege, as applied primarily to the evaluative summary and recommendation parts of the IAB file. It ruled that disclosure of this information was warranted in this case, and it stated, at page 4 of the order:
The public knows what started the IAB investigation and it knows the results thereof. It is entitled to know what happened in between these two events. Indeed such disclosure may serve the public interest by showing a conscientious and thorough effort by the IAB.
The District Court ordered the disclosure of the entire IAB file, with no exceptions. Therefore, it appears that the court made little, if any, effort to review each document and to disclose the information in the "least intrusive way", as required under Martinelli v. District Court in and for the City and County of Denver, 612 P.2d 1083 (Colo. 1980). This appeal by the two officer Intervenors followed, and a stay in the implementation of the lower court’s order was granted. The City and County of Denver decided not to appeal, at least partly in response to political pressures.
In Colorado, the National Association of Police Organizations (NAPO) represents a total of 3,950 sworn law enforcement officers belonging to the Colorado Police Protective Association, 1,297 of whom are Denver Police officers, including Intervenors-Appellants Nicholas Grove and Phil Stanford and the 51 other Denver Police officers who provided statements to the Department’s IAB, investigators. NAPO therefore filed this amicus brief on behalf of all of these officers and the nine sheriffs deputies who also provided statements.
SUMMARY OF THE ARGUMENT IN NAPO’S AMICUS BRIEF
State laws, including Colorado’s, recognize the public interest in maintaining the confidentiality of law enforcement investigative files and public employee disciplinary records and the constitutional right of privacy of law enforcement officers.
The 53 Denver police officers (and probably the 9 sheriffs deputies) interviewed by the Denver Police Department’s IAB investigators were assured that their statements, which included their names and in some cases highly personal information, (such as Social Security numbers, home addresses and phone numbers) would be kept confidential. Disclosure of this information, under Colorado’s Public Open Records Act, would violate the police officers’ constitutional right of privacy, by subjecting them and their families to potential ridicule and harassment and also possible injury in this highly charged case. Disclosure would also contravene Colorado’s governmental interest in conducting effective criminal investigations, by discouraging witnesses, including the 41 civilian witnesses in this case, from cooperating with future internal police investigations.
In order to override any individual’s constitutional right of privacy, the person or organization seeking disclosure of confidential information must show a compelling state interest in that information. Typically, courts have found a compelling state interest in situations where individuals crucially need confidential investigative reports in order to prepare a defense in a criminal case or to obtain highly relevant information in a civil case. Furthermore, in situations concerning the effectiveness of agency investigations, the public has a compelling state interest only if there is evidence suggesting that the investigation was in some way corrupt or inadequate.
In the present case, the plaintiff-appellant ACLU has failed to demonstrate that the state’s interest in public disclosure of the entire IAB investigative file is compelling. First of all, there is no evidence that suggests that the Denver Police Department’s internal investigation was in any way inadequate or corrupt--to the contrary, the imposition of five-day suspensions on one of the Intervenors indicates otherwise. Secondly, there is no criminal defendant needing confidential information in order to prepare a defense against assaulting an officer, nor is there a plaintiff in need of highly relevant information in a civil rights case against the police, the situations where appellate courts have found a compelling state interest. Extensive media coverage of an incident of alleged police misconduct, by itself, does not constitute a compelling state interest in disclosing an internal affairs file of the investigation of that incident, including release of numerous officer statements and the evaluative summaries and recommendations, (covered by the "official information" privilege).
Even if the ACLU could show a compelling state interest that outweighed the law enforcement officers’ (and other witnesses’) constitutional right of privacy, which it has not done, the District Court had no authority to order release of the entire IAB file. Instead, it is required to examine each document and item in camera in order to determine, first, whether it was relevant to the state’s interest in disclosure and, if so, to disclose the information in the least intrusive manner possible, deleting confidential information such as officer names and other personal information and also any factual information which would identify individuals who provided it.
NAPO urged the Court of Appeals to reverse the lower court’s decision, in view of Colorado’s compelling interest in maintaining the confidentiality of investigative files, the constitutional right of privacy of law enforcement officers, and the state’s "official information" privilege. In the alternative, if this Court finds a compelling state interest in disclosure of some material in the IAB file, then NAPO suggested to the court a remand of the case for an in camera document-by-document review, with specific directives.
Footnote: As of November 6, 1998, the Court has not yet ruled on NAPO’s motion for leave to file a brief amicus curiae. Accordingly, under Rule 29, Colorado Appellate Rules, this amicus brief was filed conditionally. The National Association of Police Organizations (NAPO) is a coalition of police unions and associations from across the United States that serves in Washington, DC to advance the interests of America’s law enforcement officers through legislative and legal advocacy, political action and education. Founded in 1978, NAPO now represents more than 4,000 police unions and associations, 250,000 sworn law enforcement officers, 3,000 retired officers and more than 100,000 citizens who share a common dedication to fair and effective crime control and law enforcement.###