Bill designed to provide objective oversight of officer-involved shootings not always followed 

Cops watching cops

click to enlarge Rep. Joseph Salazar sponsored Senate Bill 219, which he says requires independent probes. - COURTESY JOSEPH SALAZAR
  • Courtesy Joseph Salazar
  • Rep. Joseph Salazar sponsored Senate Bill 219, which he says requires independent probes.
In 2015, the Colorado General Assembly passed Senate Bill 219, changing how officer-involved shootings are investigated.

Rather than having prosecutors investigate and render findings of whether the shootings are justified, the legislators wanted to “guarantee thorough and objective reviews” by requiring multi-agency investigations that would then be forwarded to the district attorney’s office.

The idea was to lend transparency and objectivity to the investigations in order to bolster public confidence in the findings.

But several agencies on the Front Range aren’t abiding by the spirit of that bill, including the Colorado Springs Police Department and the El Paso County Sheriff’s Office. In fact, law enforcement agencies’ protocols adopted in response to the bill vary widely across several judicial districts.

In at least two cases locally since SB219 went on the books, the agencies whose officers shot people were the ones that investigated those very cases, including the Feb. 5 shooting that killed El Paso County Sheriff’s Deputy Micah Flick and the suspect, wounded three officers and gravely injured an innocent bystander.

“The purpose behind the bill was to ensure they did not investigate themselves,” Rep. Joseph Salazar, D-Thornton, who sponsored the bill, says in an interview. “That’s why we had outside independent agencies investigate. That was the whole purpose of the bill.”

Needless to say, the goal of lending credibility to the investigations is undermined if agencies that take part in the shootings then investigate those shootings, Salazar says.

“Sounds like the Legislature is going to have to address this again next year,” he adds.

SB219 was one of several measures adopted during the 2015 legislative session regarding law enforcement issues amid heightened scrutiny of police actions across the country. Others included encouraging use of officer-worn body cameras, bolstering the public’s right to record police activity, and changes to training.

The bill says that by utilizing “outside assistance,” agencies can produce “a better and more complete investigation before turning the matter over to the district attorney for a decision on whether or not the shooting was justified.”

Moreover, the bill states, using outside agencies “promotes and encourages a level of transparency and objectivity that provides increased credibility to the final outcome,” and “eliminates any biases, whether real or perceived, which in turn strengthens public confidence in the outcomes of such investigations.”

But while some agencies do rely on outside investigative help, some do not.

The 18th Judicial District, which covers Arapahoe, Douglas, Elbert and Lincoln counties, turns to outside agencies for the lead investigator, who “has the ultimate responsibility for report writing and for collecting reports from other agencies,” the protocols state. It also turns to outside agencies for forensic laboratory personnel who handle evidence. But the district also allows so-called employer agencies — those who employed the officer who shot someone — to “assist in all other functions.”

Judicial District spokesperson Vikki Migoya says the district relies on four team coordinators — one each from the District Attorney’s Office, Arapahoe and Douglas sheriff’s offices and the Parker city police — who “work together to select the lead investigator on each incident.”

Their protocols say the investigation should be “performed in a manner that is indicative of a thorough, fair, complete and professional investigation, which is free of conflicts of interest.”

Pueblo’s Tenth Judicial District DA Jeff Chostner says the directives for such investigations in Pueblo County bar an agency whose officers took part in a shooting from investigating that incident. “We have had a situation where both the city and county officers were involved, and we asked the CBI [Colorado Bureau of Investigation] to investigate,” Chostner says. “We would never let the same agency that’s involved in the shooting be involved in the investigation.”

The Aurora Police Department, in the Second Judicial District, taps the employer agency as the “primary” investigative agency, while an outside agency serves as the “support” agency. If an Aurora officer shoots someone, the Denver Police Department’s Major Crimes Division is called to serve as the support agency, says Aurora PD’s spokesperson Officer Bill Hummel.

While Aurora officers investigate their fellow officers, Denver investigators essentially look over their shoulder. “That’s the whole intent of it [protocol],” Hummel says.

Likewise, Denver calls upon Aurora police for support in Denver officer-involved shootings, Hummel says, noting both agencies are large and have staff to engage in such investigations, Hummel says. “Quite frankly,” he adds, “if we partnered with Littleton it would be incredibly taxing to their agency” because it’s a much smaller department.

“If there was an officer-involved shooting where officers from Denver and Aurora fired, we would still partner on that investigation,” Hummel says.
In the Fourth Judicial District, which covers El Paso and Teller counties, protocols don’t specifically state that the employer agency takes part in the investigation. Rather, the Memorandum of Understanding among CSPD, EPSO and the DA’s office says, “A Deadly Force Investigation Team (“DFIT”) comprised of either CSPD or EPSO investigators will conduct a neutral, impartial and thorough investigation of all peace officer involved shootings...”

Fourth Judicial District Attorney Dan May says the DFIT team, composed of both agencies, investigates officer-involved shootings, with the lead investigator being chosen from the non-involved agency. So if CSPD’s officer fired, an EPSO deputy is the lead investigator, and vice versa, and both agencies investigate all officer-involved shootings, he says.

“A lot of the conversation came down to experience and size of the agency,” May says, noting that CSPD and EPSO are large, well-trained, sophisticated and professional departments equipped to handle such investigations.

He also notes that SB219 doesn’t specifically bar agencies from investigating themselves, noting the bill says, “Many law enforcement agencies in Colorado either participate in locally formed multi-agency critical incident teams or seek out assistance from the Colorado Bureau of Investigation or a neighboring law enforcement agency in these situations. This approach is both pragmatic and laudable.”

Based on that language, May contends that the DFIT model “was set up by the state, and it is one recognized by the state — it’s right there in the statute.”

The bill, however, then states that “utilizing outside agencies ... promotes a better and more complete investigation... .”

Since SB219 was enacted, in at least two instances, CSPD and EPSO investigated incidents involving officers from both departments.

On Oct. 22, 2016, Demetrius Moore fired at sheriff’s deputies, who fired back, hitting Moore, who was later killed by a CSPD officer. Both agencies investigated the shooting before forwarding their report to May’s Office, which ruled on March 30, 2017, that the officers were reasonable and justified in their use of deadly force.

On Feb. 5, the CSPD and the Sheriff’s Office took part in a multi-agency team known as the Beat Auto Theft Through Law Enforcement (BATTLE) unit, part of a State Patrol program that combats auto theft.

Contrary to what some officers and experts say are normal police procedures, none of the officers on scene had their guns drawn, were wearing visible police insignia, or identified themselves as police officers to the suspect, Manuel Zetina, 19, according to reports to the Independent from officers and witnesses at the scene and officers with knowledge of the operation. When Flick grabbed Zetina from behind, the sources said, he was shot in the neck by Zetina, who then fired six unanswered rounds. According to a Feb. 6 news release, three officers returned fire. Zetina was killed, a CSPD officer and two sheriff’s officers were wounded, and Thomas Villanueva, 28, who was walking through the parking lot where the incident occurred, was shot through the spine.

The investigation was led by CSPD with the Sheriff’s Office assisting. The report was submitted in mid-April to the DA’s Office, which hasn’t issued a finding.

Police Chief Pete Carey didn’t respond to a request for a comment on how the protocols square with the intent of SB219, and the Sheriff’s Office declined to comment.

“Ultimately,” May says, “it gets turned over to our office. It becomes our case, so we have the ability to ask agencies to further investigate or turn it over to the grand jury.” In previous shootings, May says, he has sought additional investigation or asked the CBI to run ballistics analysis or referred the matter to the grand jury.

“We don’t rubber stamp what the CSPD sends us. If we need to further investigate, we will,” May says, noting his finding is limited to whether the shooting was justified, not tactics used.

The idea of agencies investigating themselves is precisely what SB219 aimed to tamp out, Sen. Michael Merrifield, D-Manitou Springs, says. Asked specifically about the Flick example, Merrifield says, “The sheriff and CSPD should not be investigating themselves. That was not the intent of the bill.” Citing the bill’s language, he adds, “‘Outside’ is the important word in that phrase.”

Oddly, the bill contains no enforcement or oversight mechanism. Salazar says he proposed placing the Attorney General’s Office in charge of all officer-involved shootings statewide, but that was “shot down.”

“What we have seen since 2015 is law enforcement has completely disregarded what the legislative intent was, and they have developed their own policies,” Salazar says. “That’s so typical of law enforcement. We have the power to tell them to do things, but it seems to me they’re flagrantly and blatantly ignoring what we’re talking about in that bill.”

The Senate sponsor of the bill couldn’t be reached for comment.

Jacque Montgomery, a spokesperson for Gov. John Hickenlooper, who signed SB219 into law, says the governor signed the measure “with the expectation that it would improve investigation protocols.”

But she notes that lawmakers failed to include an enforcement mechanism and also failed to include funding for state oversight. Hence, no state agency has reviewed agencies’ protocols for compliance. “If they felt oversight was necessary,” Montgomery says, “they would’ve included it in the bill.”

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