The scale of the protests following George Floyd’s death at the hands of Minneapolis officers made the summer of 2020 unlike any other in Denver’s history.

Now the rallies being held in solidarity with protesters in Los Angeles, and the arrests earlier this week at a gathering some 2 miles from the state Capitol, raise the question: Could use-of-force violations happen again?

Denver Police Department officials say no, arguing their handling of recent protests show things have improved. Civil rights attorneys counter they are not so sure.

Many protesters are expected downtown on Saturday for the “No Kings” rally happening in cities nationwide.

Floyd’s death five years ago sparked protests — some peaceful, but many also violent and destructive in Denver — and calls to defund the police.

Hundreds of officers were deployed to respond to the protests in Denver, with police arresting more than 400 people. Nearly 50 of the arrests included weapons-related charges.

In the wake of the police response, more than 100 complaints were filed, alleging Denver police misconduct.

To date, the city has paid out more than $15 million in settlements stemming from the sustained protests that stretched into mid-June. Plaintiffs’ claims ranged from free speech violations to injuries resulting from excessive force and the use of less-than-lethal force, such as rubber bullets, tear gas, pepper spray and pepper balls, according to court documents.

Over the past five years, several judges have ruled Denver or its officers may be held liable for the use of excessive force or for First Amendment violations. They included a federal judge who last month said a case with 13 people who alleged they were the victims of police violence will have their claims decided by a jury trial.

Of the up to 500 Denver officers who worked the George Floyd protests on any given day, six officers were disciplined, according to a deposition last month of Commander Hans Levens, who oversees DPD’s Conduct Review Bureau (CBR). The CRB reviews completed Internal Affairs investigations, makes findings and issues penalty recommendations.

In response to the criticism in the aftermath of the police response, city officials tasked the Office of the Independent Monitor with evaluating DPD’s approach to crowd control and its use of force.

Use of force refers to the level of physical coercion officers can use to gain control of a situation, which can range from physical restraint and less-lethal tools, and, in some cases, deadly force.

While critics of law enforcement’s actions insisted that the majority of the protests were nonviolent, many were not peaceful.

The Denver Fire Department responded to more than 200 calls. Moreover, Denver’s independent monitor’s report noted the damage to the state Capitol building and city property was estimated at about $2.1 million, while DPD reported more than $75,000 in damages, mostly to police vehicles. Local businesses, too, reported roughly $2 million in damages, the result of broken windows, stolen goods and graffiti.

Former Denver Police Chief Paul Pazen, who led the department through the response, said the settlements — which often are cheaper than going to court — are not an indication of wrongdoing.

“There are plenty of settlements that take place that have nothing to do with fault,” said Pazen, who blamed “agitators.”

Pazen added: “Managing an unruly and disruptive crowd is not easy.”

‘Not proportional’

The heightened fears and uncertainty during the COVID-19 pandemic and the public’s frustration over the government-imposed shutdowns contributed to the unrest at the time, Pazen said.

He said he doesn’t believe Denver will endure a repeat of those conditions.

Civil rights attorneys said they aren’t as certain.

The monitor’s report identified “significant gaps” in DPD’s internal controls that undermined accountability and compliance with department policy — including failures to promptly report use-of-force incidents, track munitions, issue dispersal orders before engaging crowds, ensuring officers were properly trained and identifiable or activated body-worn cameras during encounters. Without tracking munitions, for example, it is nearly impossible to determine how much force was used, by whom and whether it was justified, the report said. 

The department has addressed these issues, DPD spokesperson Doug Schepman said in an email to The Denver Gazette. They included:

• Use and tracking of less-than-lethal munitions

• Processes for documenting the use-of-force during a protest response

• Affixing body-worn cameras and officer identification to officers’ protective equipment

• Improving dispersal orders

• Addressing concerns related to mutual aid partners

Schepman could not say how many less-lethal munitions were used Tuesday night because the staff member who tracks that information was unavailable on Friday.

The monitor’s report recommended the department create a roster to track which officers were present and the actions they took to be able to follow up on alleged misconduct. Schepman declined to say how many officers were dispatched to control the crowd at South Broadway and Exposition Tuesday, saying the department doesn’t release that information “for the sake of public and officer safety.” 

The report included the department’s past successes balancing the public’s First Amendment rights and maintaining order but also noted that previous protests differed in a significant way — those demonstrations were not about the police.

“Recent research has demonstrated that, in general, police tend to respond to demonstrations about police brutality more aggressively than they do to protests with other messages, making arrests and using force at greater rates,” the report said.

DPD officials cited Tuesday’s protest — where officers issued dispersal orders before using smoke and pepper balls on a crowd that blocked traffic — as evidence that DPD’s strategy reflects lessons learned from the George Floyd protests. The authorities made 18 arrests on charges ranging from failure to obey orders to assaulting officers to unlawful projectiles. Civil rights attorney, meanwhile, insisted almost all of them were ticketable offenses.

The department did not say how many officers were involved nor how long the dispersal lasted.

Andy McNulty, a Denver attorney, insisted this police action is worrisome because civil disobedience, he argued, is often the mechanism for creating change. He drew an analogy between the civil rights protest in the 1960s and today’s anti-deportation protests, both of which, he said, broke laws that prohibit blocking traffic. 

McNulty questioned the tactics Denver police have used during protests.

“The response is not proportional to the actions,” he said.

McNulty, who has represented George Floyd and pro-Palestine protesters, said officer depositions suggest a reluctance to admit their missteps. This, he said, includes a police culture that inflames public sentiment, such as the social media post by Officer Thomas McClay — who, clad in tactical gear with two others, captioned a photo with, “Let’s start a riot.” McClay was later fired.

“They will not acknowledge that any officer conduct was wrong,” McNulty said.

Milo Schwab, a Denver attorney also representing George Floyd protesters, agreed.

“If there weren’t mistakes, then how can we expect anything in the future to be better,” Schwab said.

Schepman said things are better, as evidenced by all the protests police have handled this year. 

Prior to Tuesday’s protest “DPD has managed nearly 30 demonstrations so far this year, which only resulted in a total of 11 arrests.”

“This demonstrates that DPD’s approach to demonstrations is to allow people to march or gather peacefully, and to conduct traffic control to help ensure safety,” he said. “It’s those assaultive, destructive, and/or highly dangerous behaviors that prompt police intervention.”

Denver Gazette reporter Deborah Grigsby-Smith contributed to this report.