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ACLU challenges police policy of keeping internal investigations from the public

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Delvikio Faulkner is reminded of his brief encounter with former Colorado Springs Police Officer K.D. Hardy every time he gulps down a couple Motrin to ease a headache.

"He hit me so hard in the head that I was just dazed," Faulkner said in a phone interview from the El Paso County jail last week. "I just stood there for a second. Then he hit me again and again."

The incident, documented in police reports, occurred in the early hours of July 3, 2005, just minutes after Faulkner and two buddies left La Jazz Affair nightclub on Fountain Boulevard. Their gray 1991 Chevy Caprice was pulled over at Doniphan Drive because its front license plate was missing.

Hardy and his partner, Officer Jackson Andrews, on gang-patrol duty, asked Faulkner, a passenger, and the others to exit the car after learning the driver was wanted on a warrant.

Faulkner says he provided the officers with a fake name and hid his driver's license between seat cushions, fearing he had a warrant for his own arrest.

But Hardy found it. And when he confronted Faulkner, Faulkner tried to spin away.

Hardy then swung his metal flashlight "very hard," striking Faulkner's head, and cursed, "Don't you try fucking running from me," according to Andrews' police report.

Although Faulkner appeared too stunned to move, Hardy hit him with the flashlight five more times, including twice in the head, according to the report.

"While the strikes were being delivered, I saw Mr. Faulkner standing with no indication that he was still trying to escape," Andrews wrote. "At no point did Mr. Faulkner try to fight with officers and made no comments."

When it was over, Faulkner lay on the ground, face down, quiet and motionless as blood flowed from the back of his head. He was handcuffed and taken to Memorial Hospital, where seven staples sealed the wound.

Now the 26-year-old Faulkner, who blames his recurrent strong headaches on the blows he received, is fighting from jail to find out how, or if, Hardy was disciplined for the incident.

But Colorado Springs police won't release the results of an internal affairs investigation, presumably meant to determine whether Hardy's actions were excessive.

click to enlarge CSPD reports indicate that Delvikio Faulkner, seen - speaking by phone in jail, needed seven staples to close - a head wound opened by a flashlight-wielding officer. - MICHAEL DE YOANNA
  • Michael de Yoanna
  • CSPD reports indicate that Delvikio Faulkner, seen speaking by phone in jail, needed seven staples to close a head wound opened by a flashlight-wielding officer.

Hardy was "terminated" on Feb. 1 after nearly nine years on the force, says police spokesman Lt. Rafael Cintron. But Cintron won't answer why Hardy was fired, in keeping with a long-standing department practice of protecting officer privacy, including withholding internal affairs documents that surround allegations of police brutality. Hardy could not be reached for comment.

The American Civil Liberties Union of Colorado asked for the results of the investigation in May under the Colorado Open Records Act, which states that "all" documents "kept by a criminal justice agency" are open to the public.

But police records custodian Lt. Robert Driscoll denied the request in a May 25 letter, arguing the documents are a "personnel record" exempt from the act. He also stated that the "release of these records would be contrary to the public interest."

When the ACLU kept pursuing the records, the city sued, saying releasing personnel records could be considered a criminal action, according to Gregory Garland of the City Attorney's Office.

A hearing in state court is expected within the next two months and could set a precedent for future pursuits of other internal affairs records.

In 2005, the department investigated 84 possible police abuse cases. Three were found to be valid, says Cintron. Yet he would not name the officers who acted wrongly, or state whether Hardy was one of them.

Mark Silverstein, the ACLU's legal director, says the records should be open for anyone to see.

"There's a strong public interest in disclosure about how police investigate allegations of serious police misconduct, and there's a public interest in the disclosure of the results of those investigations," Silverstein says.

Three times in recent years, the ACLU has taken Denver police to court in strikingly similar cases and won the release of internal affairs documents.

Meanwhile, Faulkner says he may pursue a brutality lawsuit against the city.

Charges stemming from the incident resisting arrest and false reporting to an officer were dropped.

Yet he remains in jail for several other offenses, including trespassing and burglary. Faulkner also is facing assault, harassment and other charges that could leave him in state prison for several years.

"I just got caught up in foolish mistakes and decisions," Faulkner insists, adding that he hopes to pursue automotive technical school when he is released.

He expects a tough time financially when he is released. "The hospital says I owe them $2,500 for treating my head injury."

  • ACLU challenges police policy of keeping internal investigations from the public

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