March 01, 2001 News » Cover Story

Police State 

Judges' findings of cops' reckless and untrue statements raise questions of credibility

Recent court rulings have implicated Colorado Springs police in cases where they violated citizens' civil rights while conducting arrests. And in some instances, reports indicate that Springs police have recklessly or deliberately lied about their cases under oath.

In one case, District Court Judge Steven Pelican ruled that a Colorado Springs cop's sworn testimony was less credible than the testimony of the man he had illegally busted for possession of drugs. The officer allegedly told a superior officer that when it comes to illegally searching someone for drugs, 'the ends justifies the means.'

In another case, District Court Judge Edward Colt found that a Colorado Springs cop had violated the constitutional rights of a Colorado Springs man he had busted for drugs. And in a recent third case, another district court judge, Peter Booth, ruled that the same cop, Officer Dale Huston, recklessly disregarded the truth when securing a no-knock warrant to raid a man's home looking for drugs.

But perhaps more chilling is the Colorado Springs police department's response that, despite the judges' rulings, officers are not being held publicly accountable for their actions.

Colorado Springs is among a growing minority of police departments nationwide that has no defined public process designed to weed out rogue cops and rein in out-of-control officers. Yet a growing number of public defenders, criminal defense lawyers and judges are seeing a rise in rogue cops here who are either deliberately or recklessly ignoring citizens' constitutional rights in their attempts to make busts.

"It's one thing where a cop makes one mistake, but it's a very different matter when there's a clear pattern," said attorney Edward LaBarre, who recently filed a lawsuit against Colorado Springs Police Officer Huston after a district judge ruled he had recklessly misstated facts surrounding his case.

And one nationally recognized criminal justice expert on police oversight suggests that Colorado Springs could invite a federal lawsuit for failing to adequately investigate cases of official misconduct.

"It sounds like Colorado Springs is stuck back in 1970s," said Sam Walker, a professor in the criminal justice department at the University of Nebraska.

By law, cops cannot pull over or detain people without a valid reason. And once contact has been made, they cannot force someone to let them search their person or their possessions without a search warrant or probable cause.

In January, District Court Judge Pelican issued a strongly-worded finding that Colorado Springs Police Officer Brian Strickland illegally conducted a search on a citizen.

Strickland had stopped Robert Brian Gartner as he was walking away from a house where the officer suspected drugs were being sold. Though he found nothing else suspicious about Gartner, Strickland searched him without his consent and found a small amount of illegal drugs on him. Then, after Gartner had invoked his Miranda rights, Officer Strickland persisted in asking him where he had received the drug and other related questions, though Gartner had "clearly asserted his right to remain silent," the judge ruled.

Judge Pelican concluded that the alleged criminal's version of events was more credible then the officer's. Strickland, the judge ruled, had been evasive in his sworn testimony, had provided inconsistencies and defended his method -- perhaps even to his own supervisors -- by arguing that "the ends justify the means."

"Officer Strickland's admitted flagrant violation of [the right to remain silent] as a part of his encounter with the Defendant in this case for the purpose of achieving his investigative goal leaves little doubt in this court's mind that in pursuit of that same goal, he employed the same method of operation in violating the Defendant's right to be free from unreasonable searches and seizures," Pelican wrote.

The Gibbs lawsuit

That case followed another in which criminal charges were dropped against a man after Colorado Springs police conducted what his lawyer terms a "terrorizing" no-knock search of his client's West Side home.

A year ago, a team of as many as 10 cops stormed the home of Colorado Springs resident Charles Gibbs. According to a lawsuit filed in federal civil court on Jan. 16, the officers rammed in Gibbs' front door and fired three noise and concussion grenades into his living room, one of which exploded within six inches of Gibbs' head, causing permanent hearing loss.

"Police officers then assaulted and battered [Gibbs], physically striking him several times, and held a gun to his head and threatened to summarily execute him if he did not immediately comply with their every request," the lawsuit claims. The lawsuit alleges that the cops similarly assaulted Gibbs' girlfriend, Robin Bingham.

In the course of the next several hours, cops damaged Gibbs' house as well. They found a loaded gun, nearly $13,000 in cash and 44.5 grams of methamphetamine, an illegal narcotic.

The cops' case against Charles Gibbs began in January 2000, when an anonymous caller allegedly called Huston's supervisor, Sgt. Michael Sand, and reported observing drug activity involving Gibbs.

No notes of that phone call ever surfaced, said Mark Rue, a Colorado Springs attorney who represented Gibbs in his criminal case.

A month before, Huston had pulled Gibbs over on a traffic stop and found a crack pipe. After he allegedly received the anonymous tip about Gibbs, Huston sent a third officer, William Burruel, to Gibbs' home for a two-hour surveillance. Then, Huston used the information from what the officer said he observed to secure a no-knock search warrant to raid Gibbs' West Side home.

In his affidavit justifying his request for a no-knock search, Huston made several statements that, Rue said, were misleading, untruthful and contained substantial omissions of fact.

First, Huston claimed that, during the officer's surveillance, he saw two cars pull up to the home and suggested its occupants spent 10 minutes at Gibbs home.

The assertion clearly suggested people had gone to Gibbs' house to buy drugs; however, the cop did not mention that the cars' occupants were not actually seen entering or leaving Gibbs' house. In fact, one of the cars belonged to Gibbs' neighbor, which Huston failed to note in his report.

"[The police] had to have known it was the next-door neighbor's because when you run a check on a car, the address of the car comes up," Rue pointed out. "Yet [Huston] included it anyway without pointing out it was the neighbor's because it helps it sound like a bad guy warrant."

The other car that officers identified couldn't have pulled up to Gibbs' house, because at the time, that car, a brown Toyota, was sitting in a junkyard, dismantled, inoperable and crushed beneath another car.

It is unclear how the police officer identified a car that could not have been at the scene, Rue said. "Dale Huston was at a loss [in court] when asked to explain how or why [the officer] saw that."

In addition, Huston also insisted that during Officer Burruel's surveillance, three people arrived at the house on foot. In court, Rue said that Officer Huston could not describe them, could not substantiate when the three allegedly arrived, that they were not observed actually entering the house or where they went after they left.

In his affidavit, however, Huston indicated that the three pedestrians stayed at Gibbs' house about 10 minutes each. "Based on [my] experience in narcotics related activities, short-term duration of visits can be indicative of drug activity," Huston wrote.

But in court, Officer Burruel, who conducted the surveillance, said he did not recall the three people on foot, leading Rue to conclude that Huston had simply made them up.

"We've got a next-door neighbor coming home, and a phantom car and three phantom people who may or may not have gone to the [the house]," Rue said. "This is pretty scary stuff, if you ask me."

Walking crime spree

In his affidavit, Huston also portrayed Gibbs as a repeat criminal, listing numerous past arrests. However, Rue pointed out that his client had been convicted of only one of those charges, a point that Huston ignored.

"Officer Huston made it look as though Charles Gibbs was a walking crime spree with serious criminal convictions in cases involving drugs and guns," Rue complained in court documents. "By failing to elaborate about the dispositions of the 'arrests,' it is clear Huston intended to create a misleading impression."

According to police reports, La Barre noted, although a multitude of officers were involved in the raid of the tiny, 650-square-foot house, Officer Huston found the methamphetamine out in the open, two hours after the search began.

"Huston claims to have found the drugs two hours after they arrived, and the drug was supposedly in clear sight," LaBarre said. "That just has to make me wonder, did he bring the drugs with him or did he find them there?"

In criminal court, Rue argued that Huston had provided statements that were misleading and bogus in his effort to get a judge to approve the search warrant.

Judge Peter Booth agreed. He threw out the charges against Gibbs because Huston's false and misleading statements, once stricken from the record, left his sworn affidavit bare-boned and unsubstantiated.

"The judge said that, based upon the evidence, the officer either intentionally or recklessly misled or provided misleading or fictitious information," Rue said.

After the criminal charges against him were dismissed, Gibbs subsequently hired lawyer LaBarre to sue Officer Huston for nearly $1 million in compensatory and punitive damages. Last week, at the advice of the city attorney's office, the City Council agreed to defend Huston in federal civil court.

LaBarre said Gibbs does not want to speak to reporters before the trial and wants all inquiries to go through him. "[Gibbs is] afraid of retaliation and doesn't want to make this into a publicity thing," he said.

Some local attorneys expressed fear of being quoted by name for this story as well, noting their own fear of retaliation.

"[Huston is] well-known around our office; we deal with this same officer all the time," said one public defender who asked his name not be used for fear of his own personal safety.

A walking constitutional violation

Officer Dale Huston has been on the Colorado Springs police force for two years, and the Gibbs case is not the first time that he didn't let the Constitution get in the way of a good bust. In January 2000, criminal charges were dropped against another Colorado Springs man, Arthur Buycks, after Huston yanked him out of his car in a known high-crime area and searched his car.

District Court Judge Edward Colt ruled that Huston had no reasonable suspicion for his stop and cited the 1979 court case, Brown vs. Texas, as part of his decision.

"A history of past criminal activity in a locality does not justify suspension of the constitutional rights of everyone, or anyone, who may subsequently be in that locality," Colt noted.

Last year, Public Defender Jonathan Walker said he sent an e-mail around to his colleagues after he began routinely hearing about Officer Huston's aggressive behavior.

Clients, as well as other lawyers, had been swapping stories about Huston's penchant for pulling people over for minor traffic infractions (like failing to turn on a turn signal) or a minor mechanical problem (like a busted-out taillight) and then searching them and their vehicles without their permission, Walker said.

The response from his colleagues was immediate. "I started getting these e-mails back, saying, 'Yes, I've got one,' and another saying, 'Yeah, I got one, too' " and then another and another involving complaints about Huston. A pattern just started happening," said Walker, who in court documents has called Huston "a walking constitutional violation."

The public defender's office has subsequently compiled a dossier documenting Huston's real and alleged recklessness.

Meanwhile, among the criminal defense bar, Huston has established a similar reputation of manufacturing evidence, misstating facts and omitting information.

"He has a reputation for being fast and loose with the truth and the reputation of not following the constitutional requirements that other police officers adhere to when they stop and contact citizens in this community," said Pat Mika, a Colorado Springs lawyer who successfully represented Gibbs' girlfriend, Robin Bingham, in her court case.

"Long before we had criminal statutes we had a document called the Constitution," Mika said. "Huston has been a law enforcement officer in this community who has little regard for the citizen and little regard for the purpose of the Constitution and the protection for which the Constitution affords us; that is, the right to privacy and [the right to be] free from unreasonable search and seizure in your home without fear of being invaded.

"In our case we established he did not present a truthful affidavit to the magistrate, whose job it is to weigh the [evidence] to see whether it's enough to warrant a search of one's home."

Mika, who has practiced criminal defense for 19 years, said that the vast majority of law enforcement personnel are extremely professional, well-educated and considerate -- and the public depends on them for protection.

Deal and I'll let you go

The district attorney's office has not appealed Judge Booth's ruling that led to the dismissal of charges against Charles Gibbs.

But, in the wake of the Gibbs case, relying on testimony from a untrustworthy cop may prove increasingly difficult for the DA's prosecutors, Rue said.

"What this guy does is outrageous," the lawyer said. When he was in the midst of the Gibbs case, another client -- who had no connection to the case -- came into his office one day. The client, upset, recounted a troubling story about being pulled over by Officer Huston. When the client revealed he was driving with a revoked license, he said Huston indicated that if he was willing to turn over the name of a drug dealer, he would not pursue the charge.

"[Huston is] making all these decisions that are supposed to be made by the DA or the court system and saying, 'I'll find this guy and build my own case and the prosecutor and the judge will never know about it,' " Rue said.

Rue refused to reveal the name of his client, citing attorney/client privilege. However, the next time he was in court, Rue said he made a point of telling a deputy district attorney about the deal that Huston had offered to his client -- while the officer was present. After that, Huston left the man alone, Rue said.

Stiff and unapproachable

Huston did not return phone calls seeking comment for this story, at the advice of Colorado Springs Assistant City Attorney Lori Miskel, who is representing him in the federal civil lawsuit.

Last year, he was honored for pulling a suicidal man from a three-story building. According to his employee evaluations, for the two years he's been a Colorado Springs cop, Huston has rated an "effective" assessment in all categories, which include communication, customer service, initiative, teamwork and leadership. The Colorado Springs police department does not require more thorough evaluations of its officers be made public.

However, prior to his hiring, Huston spent a decade working for the El Paso County Sheriff's Office, where much more thorough performance evaluations were conducted. A review of those evaluations, chronicling Huston's tenure as a sheriff's deputy, shows his conduct was not always as effective as his Colorado Springs evaluations suggest.

When he was hired by the Sheriff's Office, Huston had just finished a stint in the U.S. Marine Corps. In 1977, while serving in Guantnamo Bay, Cuba, Huston was court-martialed for firing an M-16A1 rifle at targets. He was charged with the unauthorized use of a weapon and the improper use of deadly force, which did not endanger human life. He pled guilty and was fined, demoted and incarcerated for 36 days.

In his yearly evaluations, particularly in his early years as a sheriff's deputy, Huston was consistently cited for his initiative and aggressiveness, and for his high number of busts. In August 1995, Huston was named employee of the month, in part, for leading the department in the number of DUI arrests.

However, Huston was also criticized for complaining about his job and submitting reports that lacked "crucial" information. One example, taken from Huston's 1995 evaluation, noted the deputy had not obtained a critical piece of evidence in a menacing case. "When I had to testify on his behalf, I was extremely embarrassed about the quantity and quality of his report," his supervisor noted.

Huston was also consistently criticized for his lack of tactfulness with the public, his abrupt attitude and the impression of having a superior attitude among co-workers.

"He is stiff and sometimes unapproachable as he exudes a hardened image and treats everybody with indifference," one supervisor wrote in 1995.

Huston began his career working in the county jail, and moved his way into the patrol division, where he served with the K-9 unit for a time. In his 1995 evaluation, the supervisor noted the deputy's desire to become a member of the metro Vice Narcotics and Intelligence unit.

The Sheriff's Office claims it no longer has a copy of Huston's 1996 evaluation, but the following year, his last year on the force, he was inexplicably transferred back to the far-less-favored prison duty. The following year, he went to work for the CSPD where, despite the court's findings that he misstated facts in the Gibbs case, he remains on active duty patrolling the West Side, central and south-central Colorado Springs.

Still on duty

Colorado Springs Police Lt. Skip Arms said an internal affairs investigation has been launched to investigate Huston's actions and indicated the inquiry will likely be completed after the outcome of the civil case against him.

Assistant City Attorney Lori Miskel said that the three-member civil action investigative committee unanimously recommended that, under the Peace Officer Liability Act, the city defend him. The committee, composed of representatives from the police, attorney's and city claims departments, determined that Huston was acting in the scope of his employment when he conducted the no-knock bust on Gibbs' house.

"Cases get thrown out of court all the time, and the fact that [this] case was dismissed doesn't convince me there was any wrong-doing," Miskel said.

And though a district judge ruled that Officer Huston falsified information in a search warrant affidavit, Miskel argued that the judge's ruling does not mean the officer intentionally falsified the truth when he applied for the search warrant.

Miskel declined further comment on the city's planned defense of the officer.

Blue wall of silence

Like most local attorneys, Mark Rue said that, in his 20 years practicing law from California to Rhode Island, "99 percent of the cops out there are very professional."

"But," he said, "when you have a bad cop -- and Dale Huston is a bad cop -- you remove him."

In Colorado Springs, all investigations into police misconduct are conducted by its internal affairs department. But because they are being investigated by fellow officers, critics liken the practice to the equivalent of the fox monitoring the chicken coop.

LaBarre, a criminal defense attorney with more than 30 years practicing in Colorado Springs, said he knows of no disciplinary actions ever taken against an officer who was accused of violating a citizens' civil rights -- with one exception. About 20 years ago, he said, a police officer was disciplined after the son of a police captain claimed the cop beat him up.

"Besides this cop (Huston), there are a couple others on the Colorado Springs Police force who are bad cops, but I'm not aware that the city is interested in doing anything about it," LaBarre said.

Colorado Springs Police Department spokesman Lt. Skip Arms said he believes that "the community at large is comfortable with how the Colorado Springs Police Department deals with issues both internally and externally."

"It's always been our position that we know that certain officers are human and they will make judgment errors from time to time," Arms said. "We take those very seriously, because it affects the ethics and integrity of the department."

Arms was unaware, however, of the recent court ruling against Strickland, the police officer who defended his unconstitutional actions as acceptable because, as he allegedly told his own superiors, "the ends justifies the means."

He said that if a cop is suspected of wrongdoing, any disciplinary actions are taken by the officer's chain of command, or by internal affairs. When citizens file complaints against an officer, they are notified of the outcome of the internal investigation.

By law, Arms said, the police department is not required to and does not compile statistics on the number of complaints of officer misconduct they receive every year.

Even without any credible statistics to back his claim, Arms insisted that, "we have so few people who get complaints, it's really not a problem here."

A few bad cops

Arms said that cops meet regularly with community leaders, and he maintains that a lack of any public outcry alleging a pattern of police misconduct shows that the Colorado Springs Police Department does not have the kind of rogue cop problems that have plagued communities around the country.

However, Sam Walker, a professor at the University of Nebraska who teaches and has written several books on criminal justice and police misconduct, said that the problem of a few bad cops tainting the pool is not limited to big cities.

Walker has been a consultant to the U.S. Justice Department in several investigations into police misconduct nationwide. His most recent book, Police Accountability: The Role of Citizen Oversight, details the importance of public input in law enforcement.

Unlike Colorado Springs, Walker said, many police organizations take proactive steps to target potential troublemakers and be publicly accountable. Successful early warning systems are currently in place in Miami/Dade, Fla., in San Jose, Calif., and in Pittsburgh, Penn.

Walker praised the program in Minneapolis, where every other week, the top cop command meets to review citizen complaints and scrutinize officers who are involved in questionable practices on the job.

When a pattern is noted, the problem cop is then dealt with accordingly. The cop might have personal problems and need counseling; or he might have a bad attitude and need to be told more clearly that his behavior is not consistent with the values of the department. Sometimes an officer may need retraining in certain areas of the job. And sometimes the actions of police officers are so atrocious that they need to be fired, or moved to a dead-end job where their assignment will send a clear message that "that type of behavior will not be tolerated," Walker said.

Another common approach to public accountability has been community oversight programs, where citizens' boards independently investigate complaints of misconduct and monitor police investigations. Those citizens' groups have varied in their success, however, because many of them, including the one in Denver, are not given the authority to effectively operate.

Looking for a lawsuit

Still other cities -- including Los Angeles and New York -- have failed to swiftly respond to police credibility problems and have been scandalized by their inability to adequately investigate rogue cops. Some cities, like Pittsburgh, have been ordered by the Justice Department to enact programs to adequately investigate police misconduct after they failed to deal with repeated problems.

When the police department and the city refuse to address the problem, Walker said, the problem no longer lies with the individual officer but with the entire agency that refuses to address the problem.

"Clearly they are failing in their responsibility," Walker said of Colorado Springs. "By inadequately investigating misconduct they are inviting a federal lawsuit."

Walker was incredulous when told of the details of the Gibbs case -- and of the complaints against Huston and other officers that are being mounted by the public defender's office.

"Why hasn't he been fired?" Walker asked. "If the public defender knows about this person then clearly the police department should know about him too.

"Clearly there is a problem if you have a public official -- in this case public defenders -- who say that 'in the course of our work we have one officer with recurring problems.' "

Historically, cops maintain what Walker calls a "blue wall" when their colleagues screw up. The problem across the country, as in Colorado Springs, is that a few bad cops who repeatedly abuse their positions poison the well of an otherwise strong force. Still, their colleagues tend to offer their protective code of silence.

"They circle the wagons and don't want to admit that they make any mistakes," Walker said.

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