Police could take home 'spy files'

'98 memo outlined ways for officers to get rid of records

By Kevin Vaughan, Rocky Mountain News

January 4, 2003

A 1998 order to get rid of old "spy files" gave Denver police officers the option of taking the documents home to get rid of them, according to a memorandum introduced Friday in federal court.

The memo, written Nov. 2, 1998, by Denver police Lt. Joe Black, was used by attorneys for the American Civil Liberties Union in an effort to demonstrate that they still have many unanswered questions about the files, which were compiled for decades by detectives in the department's intelligence bureau.

The memo told the bureau's officers to "shred, toss or take home" all files dated before 1994 to protect the department's integrity and ward off lawsuits.

"We now know that files are being carted off to officer's homes," said Lino Lipinski, an ACLU attorney.

The ACLU has sued the city on behalf of several groups and individuals, claiming that the gathering of information in the spy files violated the First Amendment rights of scores of people. The suit has pointed to instances in which files were compiled on people who had no criminal records but had participated in peaceful protests.

In some cases, groups were labeled "criminal extremists" even though they had broken no laws.

Denver Police Chief Gerry Whitman declined to comment.

Depositions have painted a picture of a bureau where officers were given wide discretion to gather information about people, up to the point of writing down license plate numbers of cars parked in the vicinity of a protest.

Those same depositions showed that even though some written policies had been drafted to govern the intelligence bureau's activities, they were either not implemented or not followed.

The existence of the memo came to light during a hearing called in the wake of an ongoing discovery dispute between attorneys for the ACLU and the city.

Lipinski has accused the city of failing to produce documents. For example, he said, city officials have copied scores of files onto computer discs but have not provided him with the software to read them.

Thomas Rice, an attorney retained by the city, said he already has produced 22,684 pages of documents and accused the ACLU of abusing the discovery process.

For example, he pointed to a request for information about all Denver police officers who had gone near "expressive" activities, such as demonstrations and protests.

"To what end?" Rice asked. "What are we going to do here? We're going to generate a list of every officer who ever went near a so-called expressive activity for God knows how long and then what are we going to do, depose them all?"

Magistrate Craig Shaffer told attorneys for both sides that he found the management of the case a study in inefficiency.

To that end, he took control of the discovery process, ordering the attorneys to meet with him every two weeks.

He cancelled all depositions, saying he would not consider rescheduling them until after Feb. 14.

And he gave the two sides until March 7 to resolve all the disputes.

"That gives you basically two months to scour the corners of the Earth and find all relevant documents," he said.

Later, Shaffer told the attorneys he put the "onus" on them to "clean up this mess."