On May 26, 2021, the Town of Carbondale released a statement that the Town had “retained Powers Police Consulting and Investigations of Grand Junction to perform an independent administrative investigation of the Town of Carbondale Police Department’s handling of the arrest incident that occurred at City Market in Carbondale on the evening of December 24, 2020.”
Carbondale resident Michael Francisco was the subject of that arrest, whose charges of obstruction of government operations, disorderly conduct, and resisting arrest were dropped on May 18, 2021 as part of a deferred sentence agreement.
According to Town records, obtained by The Sopris Sun pursuant to the Colorado Open Records Act, the Colorado Criminal Justice Records Act and C.R.S. § 24-72-303(4)(a), the Town paid a total of $3,200 (including a retainer of $2,500 on May 21, 2021) to Natasha Powers to conduct the investigation. She began her research in June and finished the report by Sept. 1, 2021, which is when the Town paid her an additional $700 for her work. But, a year and a half later, despite assurances from the Town, the draft report of the investigation, which Chief Wilson welcomed and looked forward to reading, has not been released.
So, where is the report?
According to a summary from Town Clerk and records custodian Cathy Derby, who responded to the records request and who retired March 1, 2023, the draft report was provided only “to the Town’s attorneys in anticipation of litigation in this matter” including Mark Hamilton. The report is protected under attorney/client privilege so is off-limits to anyone else, including Carbondale Town Trustees.
The anticipated litigation part of this remains unclear. Then-Mayor Dan Richardson told The Sopris Sun in a recent email that the litigation warning came from Michael Edminister, who was Francisco’s attorney in 2021. But, Richardson would not comment on whether a lawsuit was imminent at that time.
On May 19, 2021, shortly after Francisco’s charges were dropped, Edminister told the Aspen Daily News, “Now that the case has been dismissed, it’s my position that we would be free to pursue a civil remedy, and I would advise my client to pursue those remedies against the Town of Carbondale.” Edminister did not make himself available to The Sopris Sun for comment, stating that he no longer represents Francisco.
The first — and so far only — lawsuit was filed in federal District Court against City Market and Tia Walker on Dec. 21, 2022 — 19 months after Francisco’s Carbondale case was dismissed and 15 months after Natasha Powers completed her draft investigative report. Francisco is now represented by Michael P. Fairhurst and Darold W. Killmer of Killmer, Lane, and Newman LLP, a Denver civil rights firm with an office in Carbondale. In a February 2023 interview, Fairhurst told The Sopris Sun that the lawsuit does not include the Town of Carbondale or the Carbondale Police Department.
Fairhurst explained that all legal claims Francisco has or might have against Carbondale and the police, stemming from the Dec. 24, 2020 arrest, will be part of a mediation. Claims include wrongful arrest and a First Amendment retaliation claim, excessive force and race discrimination when it comes to contracts. “It’s a statute from the 1800s civil rights law,” Fairhurst explained.
Under this law, Francisco has legal claims related to what would be considered a retail contract. “You have what’s considered to be a contract with the grocery store where they give you groceries and you pay them,“ he said. “The police interfered with that by removing [Francisco] from the store after he had picked up — but not yet purchased — the groceries.”
Fairhurst would not say who approached whom with the idea of mediation but he said that both sides agreed. Denver-based Leland Anderson, a retired Colorado District Court judge, will be the mediator via Zoom on March 9.
During mediation, explained Fairhurst, both parties will have separate virtual rooms. The Town of Carbondale and the police department will be represented by Denver-based attorney Eric Ziporin, who was hired as outside counsel in case Francisco sued the Town and whom Town records show also received a copy of the 2021 Powers report.
“The mediator will go back and forth between [the rooms] and attempt to find common ground when it comes to the terms of a settlement agreement,” said Fairhurst. “He has the ability to recommend that the sides do certain things but he doesn’t have the power to require anything.” It’s ultimately up to both sides to agree on a resolution.
Fairhurst did not discuss what a settlement might look like but stated, “We want to see [the police] take accountability for the serious harm that they’ve inflicted on Mr. Francisco by subjecting him to the blatant racism that they did.” He added that Francisco is prepared to litigate if mediation is not successful.
According to Town records, the 2021 Powers report also contains “administrative investigation information involving [the Carbondale Police Department] that could be contrary to the public interest if disclosed.” It is likely, since both Hamilton and Ziporin received copies of the report in 2021, that they knew about this information before agreeing to the mediation. Hamilton declined comment due to attorney-client privilege. Jay Harrington and Chief Wilson also chose not to answer any questions.