The call, put out by the ACLU of Colorado along with the Greater Metro Denver Ministerial Alliance, the Denver Branch NAACP, and members of the family of Marvin L. Booker, came after the Denver Safety Manager found that there was no policy violation in the death of Mr Booker at the Denver City Jail. The death of Booker, an inmate, was ruled a homicide after sheriff’s deputies used  a “sleeper” hold on him and Tased him.

“The Denver Safety Manager’s finding that no policy violations occurred in relation to Marvin Booker’s death by restraint at the hands of five deputies is an admission that sheriff’s department policies sanction homicide and highlights the need for an independent investigation into a pattern or practice of civil rights violations by law enforcement in Denver,” said ACLU Legal Director Mark Silverstein.

Silverstein said legal efforts to call for the federal investigation will begin immediately with a letter to the Department of Justice.

ACLU Executive Director C. Ray Drew said a pattern is evident in Denver Police Department abuses. He pointed to a number of cases that resulted in bodily harm or death. Those cases included that of Booker in 2010; Alex Landau, Trudy Troutt and Michael DeHerrera in 2009; and Juan Vasquez in 2008. Drew said the pattern stretches all the way back to 2004.

“The majority of law enforcement officers are good, honest officers who are trying to do the right thing,” he said. “But a police department that can’t rid itself of rogue cops is by its own definition, a bad police force.”

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FBI media coordinator Dave Joly compared the mapping project to police agencies tacking thumbnail photos to a map and looking for crime patters. He said placing the legally obtained data onto maps helped agents make connections in their work.

ACLU representatives said the race-based investigations raised serious questions and called for details to be aired.

“There has been virtually no public discussion of the FBI’s newly claimed authority to collect and use information about race and ethnicity to focus on particular communities,” said Mark Silverstein, ACLU legal director. “With today’s FOIA request, ACLU affiliates around the country will uncover more information about a disturbing and heretofore unprecedented race-based law enforcement tactic.”

Joly defended the program.

“The sad truth is… certain terrorist and criminal groups are comprised of persons primarily from a particular ethnic community.  As we have said many times in discussing our efforts to transform the FBI into an intelligence agency, we must take that reality into account when trying to determine whether there are threats to the United States that we have not detected.”   

Michael German, ACLU policy counsel and former FBI agent, saw the program as antithetical to the American freedoms.

“Creating a profile of a neighborhood for criminal law enforcement or domestic intelligence purposes based on the ethnic makeup of the people who live there or the types of businesses they run is unfair, un-American and will certainly not help stop crime,” German said.

The ACLU argues that the FBI’s attempt to collect and map demographic data using race-based criteria invites unconstitutional racial profiling by law enforcement.

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Supporters of House Bill 1021packed the House Judiciary committee meeting Tuesday, where the bill passed on a party line vote after lengthy testimony. Witnesses took turns relating stories of intimidation and unlawful search procedures. 

Law enforcement representatives said the legislation would hamper the ability to prevent crime.

Others testified that the bill would actually increase efficiency by forcing police to find probable cause to conduct searches instead of wasting resources on voluntary consent, which often, they said, amounted essentially to fishing expeditions.

Organizations backing the bill include the Colorado Progressive Coalition, the ACLU, Colorado Immigrant Rights Coalition and the Colorado Latino Forum.

Opponents and supporters of the bill agreed it would raise awareness on all sides about the requirements of the nation’s Fourth Amendment, which guarantees the right to refuse unlawful search and seizure.

Joe Salazar, a civil rights attorney and the founding member of the Colorado Latino Forum, explained that he had been improperly treated in the past by police officers. He said he believed he had been the victim of racial profiling.

“The Supreme Court has interpreted the Fourth Amendment to mean that, where an officer does not have probable cause or suspicion– where there is no exigent circumstances to believe that a crime is being committed– the officer is simply not justified in searching homes, vehicles or belongings unless they ask,” said Salazar. “That is what House Bill 1201 does. It provides these individuals the right to say no. Officers have to ask: ‘I have no other reason to search your person but will you please allow me to search you.’ ”

County sheriffs and the District Attorneys Association were adamant that the bill would create increased litigation make it more difficult to gain consent from suspects. They said the bill would increase the risk police officers experience during routine stops.

Detractors also claimed the bill would give the verbal exchange over consent to search too great of prominence in considering cases arising from traffic stops.

Pete Holzinger, president of the Districts Attorneys Council, said the bill would impede his ability to fight drug trafficking in Mesa County and said that he unapoligetically used what he called “meth-dealer profiling” in fighting crime.

“We do not engage in racial profiling,” he said. “We do engage in meth-dealer profiling, and I will not apologize for doing that.”

Holzinger said that much of their success in fighting the meth industry comes from traffic stops.

Mark Silverstein, legal director for the ACLU, said the bill did not interfere with the ability of the police to conduct those kinds of searches. He pointed out that law enforcement had raised similar concerns when Miranda rights were first discussed decades ago. He also said this bill would not give informed consent some intrusive priority of place. Judges will be asked to look at search consent as a part of the whole, the same way that they do now. 

Holzinger said that he didn’t believe that strengthening informed consent procedures would stop racial profiling.

“Voluntary consent has nothing to do with racial profiling,” he said.

Silverstein disagreed and pointed to studies that show that the point in a traffic stop where a police officer asks if they can conduct a search are most dramatically disparate where ethnicity comes into play. He said consent searches need to be regulated the way probable cause searches are regulated.

“[Law enforcement officials] need to be armed with facts that would convince a person that there is a chance that contraband will be found,” Silverstein said. ”To ask ‘Can I look in the trunk?’ they need no facts. They need no reasonable suspicion. They need only a hunch, a whim is good enough. And whenever you have total discretion that is unguided by any standards, that is when impermissible factors that have plagued police community relations [come into play] — race, color, ethnicity.”

Silverstein explained that most people do not know that they have a constitutional right to say “No officer I do not want you to search my car.” He  recalled one of is own law classes where over half the students were unaware of that fact.  

A number of other states, including New Jersey, Minnesota, Rhode Island,  California and Arizona have similar regulations on voluntary consent searches, some considerably more restrictive.

Advocates for the bill at the hearing said the new law would compel police officers to conduct more effective searches that would bring about better results.

Rep. Middleton said she was pleased the bill was moving forward.

“We worked collaboratively with both the coalition and members of law enforcement to try and reach some agreement… I’ve had an open door about this, and I have worked with all of the stake holders to make it a good bill.”

Art Way, civil rights organizer for the Colorado Progressive Coalition who testified in favor of the bill, said he felt it would improve relations between law enforcement and the community of color and “provide uniformity for police in an area where there has been no regulation.”

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Pregnant personhood (mahalie; cc Flickr)

“Clyburn survived but suffered a stillbirth as a result of the fall. She was arrested on homicide charges and is still being held without bail,” attorney Lynn M. Paltrow, founder and executive director of National Advocates for Pregnant Women told The Colorado Independent.

If the Colorado Personhood Initiative were to pass next year, Paltrow said the state will see a host of new criminal offenders like Clyburn and a growing docket of personhood crimes. Coloradans should brace themselves, she said, for “Carolinafication.”

Sponsored by pro-life activist organization Personhood USA as part of a national campaign, ballot initiative 25 would amend the state constitution in more than 20,000 places, granting even the cells of a fertilized egg full legal rights while working to effectively limit the rights of pregnant women. Legal experts say the law would lead to outlandish and oppressive applications.

“Constitutional jurisprudence is all about weighing interests,” former Planned Parenthood attorney Kevin C. Paul of Heizer Paul LLP told The Colorado Independent. “If you’re creating a new interest, one that hadn’t existed previously, then that interest is going to have to be weighed against [those of] anybody else. And if you take the position that an unborn fetus is to be legally treated just the same as a woman, then those two interests clash.”

Should the personhood initiative pass, he said, it’s clear women could be held by the state to ensure the safety of a fetus.

Mark Silverstein, legal director in Colorado of the American Civil Liberties Union, said the law would apply to women unaware they’re pregnant.

“Let’s say a woman is sexually active and she has a drink. If a drink is determined to harm a potential human life, well wouldn’t it be considered reckless endangerment to have that drink — or to engage in some other type of activity that would pose a risk to a fetus?”

Erik Maulbetsch, also with the ACLU in Colorado, wrote in an email that although the way fetal abuse and women’s rights issues interact are certainly a concern, in his eyes, the immediate threat of “outlawing hormonal birth control, in vitro fertilization and stem cell research, are the most dangerous and intrusive aspects of the proposal.”

Silverstein said the ACLU would actively campaign against Initiative 25, the “son of 48,” referring to the failed Initiative 48, last year’s version of the Colorado Personhood initiative.

Deal with ramifications later

The legal questions surrounding the initiative at this point are not a priority to Personhood USA, which lawyers like Paul see as a problem.

“It’s just a bad idea to try to amend the basis of all other law when the answer to the question ‘What will happen when I do this?’ is simply ‘I really don’t know.’ It is very hard to predict the difficult and even absurd results.

“The term ‘person’ has been legally defined,” he added, “but ‘the beginning of biological development’ has no definition yet.” Paul said the change in language would affect “our fundamental due process rights, the provision to inalienable rights, access to our courts and a right to justice.”

Presented with some of the hypothetical legal and rights issues related to the initiative, Keith Mason, co-founder of Personhood USA and one of the proponents of Initiative 25, said he didn’t want to speculate on the particulars of the bill.

That wasn’t good enough for Abe Saur, associate editor at lefty grab-bag politics and criticism site The Awl. He asked Mason whether clinically obese pregnant woman, who have a 30-percent higher risk than non-obese women of giving birth to children with heart disease, could be convicted of abuse or murder.

Will we be criminalizing the pregnant obese? Saur asked.

“I can’t answer that because it’s a hypothetical,” said Mason. “It’s like asking what would happen if a Martian came down and impregnated a woman on Earth. Let’s talk about real issues.”

Mason said he would “worry about the [legal] details later,” after the bill had passed.

Losing one’s personhood

“We know, based on hundreds of cases across the country, some of them in Colorado, that if, as a matter of law fetuses are described as separate persons, essentially pregnant women lose their Personhood,” Paltrow said.

The ACLU’s Silverstein said that although it would take numerous court cases to determine specifically how personhood would affect Colorado law, the effect of providing an unborn child personhood rights would unquestionably restrict the civil rights of women.

But Personhood Colorado director and the initiative proponent Gualberto Garcia Jones said the law is designed not to infringe rights but to extend them. Initiative 25 is slightly updated to be more inclusive than last year’s Initiative 48. We’ve changed “the initial marker for the beginning of life from fertilization to the beginning of the biological development of a human being,” he said.

“It’s intended to account for human beings who may be created through asexual reproduction in laboratories and used as raw material for research, organs, or stem cells. Fertilization would not have properly applied to asexually reproduced humans, but even asexually reproduced human beings have a definite biological beginning.”

It’s not that simple, said Silverstein. Presently, Colorado Code defines homicide, for example, as “the killing of a person by another.” The code also says that a person is someone who has been born and is alive at the time of the homicidal act. “If personhood applies to the criminal code, then you have homicide involving persons who have not even been born — to persons who might be a single cell,” Silverstein said.

Paltrow said that all it would take is one child welfare worker, one doctor, one individual to decide that a woman is endangering the life of her unborn child and she could be arrested and taken away.

“Colorado like every state has a civil commitment law. Civil commitment is a process established under mental health laws to confine individuals believed to pose a danger to themselves or others. If the [personhood] measure succeeds and the unborn are defined as having full constitutional rights, the state could commit a pregnant woman from the moment of fertilization if she is perceived to pose a danger to the fertilized egg.”

Carolinafication

The South Carolina Courts in 1997 ruled that fetuses that can survive outside the womb are persons under child abuse rules. As a result, 90 women have been arrested there, including Clyburn.

Another is South Carolinan, Regina McKnight, who smoked crack cocaine in 1999 while she was pregnant. Her unborn baby died in the eighth month. Twenty-four-year-old McKnight, who had three other young children at the time and was pregnant again, was convicted of murder and sentenced to a 12-year prison term.

“Once a personhood measure passed there would be no limit” to the controls the state could place on a suspect pregnant woman, said Paltrow. “Civil commitment laws could be used to keep a woman from, say, working in certain jobs, taking a wide range of medications, or even leaving town so she could have a vaginal birth after a c-section,” which can be seen as endangering the fetus.

These cases aren’t theoretical.

Paltrow described the experience of Angela Carter, who was undergoing treatment for severe cancer. Carter was forced by doctors concerned with the health of the fetus to have a cesarean section. Both Carter and the fetus died. The C-section was listed as one of the causes for the mother’s death . Although the courts found that the hospital acted outside of its legal rights at the time, Paltrow said the personhood amendment would make such actions common place.

“Once you have defined a fetus as a separate person from the mother, the state has the power to literally take custody of a pregnant woman from the moment she conceives.”

Jonathan Van Blerkom, a University of Colorado at Boulder professor of molecular, cellular and developmental biology, agreed that zygotes in fertility clinics would be protected. He said not only researchers involved in embryonic stem cell research but also individuals looking to participate in in-vitro fertilization programs would be affected.

“We are talking about embryos in the one cell stage … What happens when a liquid nitrogen tank, which keeps embryos frozen in storage, is damaged? It happened during an earthquake in California. Concrete fell on a tank and all of the embryos were destroyed. Is there criminal liability there?”

Like others, Silverstein sees the personhood drive as misguided and a sweeping end run around the legal right to abortion. The proposed initiative simply has not been thought through, he said.

“If a woman has a beer while she is pregnant is she furnishing alcohol to a minor?”

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The plaintiffs, according to the Post, include “a legal observer for the People’s Law Project, a journalist, students documenting the protest and onlookers.” Lawyers for the ACLU will be representing the eight individuals in the suit.

“With regard to policing protest during the DNC, Denver police sometimes got it very right, for which they deserve credit,” Mark Silverstein, ACLU Legal Director told the Denver Post. “On this evening, however, Denver police got it wrong, very wrong.”

Silverstein said that of the 106 individuals arrested that evening, 54 did not accept a plea bargain and 38 of those were exonerated.

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