Colorado Gov. Jared Polis and a leading statehouse Democrat are working together to identify potential changes to the way law enforcement-involved deaths are investigated.
But their tentative plans are already drawing skepticism from the top prosecutor in the state’s largest judicial district and county sheriffs.
“We need to make sure that when law enforcement kills somebody that there is a process that’s transparent, that’s accountable, that people can put their faith in,” said state Rep. Leslie Herod, D-Denver. “Right now, I don’t think we have that.”
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Some of the ideas being floated include implementing citizen review commissions — which other states have done — or handing investigations over to the state’s attorney general or the statewide Colorado Bureau of Investigation. Herod stresses that she hasn’t committed to a specific route and that she’s still working with stakeholders to find the best policies to pursue.
Currently, law enforcement-involved deaths are investigated by neighboring or overlapping agencies and then reviewed by prosecutors in the same jurisdiction.
Herod said Polis is “very interested” and that she’s already working with fellow lawmakers to identify what alterations can be made.
“We need to ensure that the investigation is truly independent,” she said. “We need to ensure that there is integrity within the process and that if we have something that happens in one jurisdiction, that it’s not that same jurisdiction, or that law enforcement entity, or friend of that law enforcement entity being the ones that makes the decision or doing the investigation. We need to ensure that it’s truly independent, and that’s what we are looking at for statute next year.”
A Polis spokesman told The Colorado Sun that the governor is “open to have a discussion to identify ways to improve public trust in our criminal justice system and will work with anyone who is willing to engage in that conversation.”
Herod, vice-chair of the Colorado House Judiciary Committee, said she was moved to action by the August death of 19-year-old De’von Bailey, who fatally shot by Colorado Springs police.
The El Paso County Sheriff’s Office investigated the killing and handed its investigation over to county prosecutors, who are now presenting the case to a grand jury.
But that’s not before Polis urged El Paso County District Attorney Dan May to send the case to another judicial district for an independent review. He said doing so would “ensure the public’s confidence in the results, and maintain trust in law enforcement going forward.”
The law enforcement community was quick to push back on Polis’ comments. Colorado Springs Mayor John Suthers released a statement saying: “I’m concerned that he suggests a precedence with impacts he has not yet considered and does not understand, to include undermining the will of the people, who elected the public officials charged with carrying out legal responsibilities.”
The governor has since met with Bailey’s family and told their attorneys that he is open to examining how police-involved deaths are investigated.
“Too many law enforcement officers are acting outside of what we believe they should be using their badge for and not being held accountable,” Herod said. “… I think that we can agree that across the state, and across many states, the process lacks integrity. People no longer have faith.”
But Douglas County Sheriff Tony Spurlock and 18th Judicial District Attorney George Brauchler caution that changing the way law enforcement-involved deaths are investigated usurps citizens who elected leaders in their communities to review those cases.
“District attorneys in the state of Colorado historically are tasked with, and elected to, prosecute violations of the state criminal code that take place within their jurisdiction. Really, without exception,” said Brauchler, a Republican. “Whether the person accused of committing that crime is ‘Joe Lunchpail’ or a multiple-time convicted felon or a law enforcement officer.”
Brauchler said he thinks the movement to change how law enforcement-involved deaths are investigated is anti-law enforcement. “This idea that law enforcement can’t be trusted or district attorneys can’t be trusted because they are too chummy? Point to it,” he said. “Point to the case where that happened.”
Spurlock, a Republican who has been one of Democrats’ top allies at the legislature on policing issues, says he thinks the process right now works “very efficiently and very effectively.” He says that handing off an investigation into police-involved death to a state agency could be problematic because they don’t have the expertise or manpower to handle such cases.
“Judicial districts, in my opinion, are the very best because they work and serve for the community that is subject to this,” said Spurlock, who leads the County Sheriffs of Colorado association. “They know that community best.”
Brauchler also pointed out that citizens can ask a judge to compel a prosecution in a case if they don’t think their district attorneys are taking enough action, a process that he feels is an added layer of accountability ensuring that the public’s voice is heard. He said he plans to be a vocal opponent of any attempt to change the system at the Capitol next year.
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Herod said she is also interested in examining Colorado’s laws allowing police officers to use deadly force against a person they suspect is fleeing the commission of a felony. “Are the standards the right standards?” she said. “Are we holding law enforcement accountable at the right level? Where is the burden of proof? Those are things that we are looking at.”
Bailey, the Colorado Springs teenager, was approached by officers the day he was fatally shot as they investigated reports of an armed robbery. Police shot him in the back as he ran away from a pat-down. A handgun was later found in his shorts, police body camera footage of the incident shows.
If Colorado lawmakers do debate changes to how police-involved deaths are investigated in the 2020 legislative session, it would mark the second time in recent years that they’ve taken up the issue.
In 2015, the Colorado General Assembly passed a series of reforms to how police-involved deaths are investigated. Those came in the wake of protests about the fatal police shooting of Michael Brown in Ferguson, Missouri.
Senate Bill 219, approved that year, requires law enforcement agencies to have public protocols in place to investigate such deaths and dictates that the investigations be handed to an outside agency. It also mandates district attorneys to release an explanation of their decision should they decide not to charge officers.