Five years ago, Colorado lawmakers passed a bill that banned police departments and sheriff’s officers from investigating themselves without any outside assistance after one of their officers or deputies shoots someone.
But here’s the hitch: the legislation, Senate Bill 219, specifically states “shooting,” meaning it doesn’t apply if someone dies at the hands of law enforcement because of a chokehold or any other death not involving a firearm.
So when Elijah McClain died last year after an encounter with officers from the Aurora Police Department, the Aurora Police Department technically didn’t have to ask for help — even though it did.
“The focus at that time was expressly officer-involved shootings,” said Tom Raynes, head of the Colorado District Attorneys’ Council, who worked on the measure.
The prime sponsor of the bill, Republican Sen. John Cooke of Greeley, says, after being contacted by The Colorado Sun about the oversight, that he supports changing the law to encompass all officer-involved deaths.
“Is there room to add all deaths? Yeah, absolutely,” said Cooke, a former Weld County sheriff. “That’s something we may look at next sesion.”
He has the backing of the state’s prosecutors, both Democrats and Republicans, who also agree it’s time for a change.
“I am incredibly supportive of the idea that whenever there’s a death in the custody of law enforcement, some other agency ought to take it over,” said 18th Judicial District Attorney George Brauchler, a Republican. “From an optics standpoint and a political- trust standpoint, I think it’s absolutely necessary.”
Brauchler, in fact, said sheriff’s offices and police departments can and should make the policy change “right now” — before a change in state law is made.
Boulder County District Attorney Michael Dougherty, a Democrat, said he agrees, “both in terms of the integrity of the investigation but also the community trust that the ultimate decision reached is the right one.”
Many law enforcement agencies in Colorado already treat all law enforcement-involved death investigations as if they fall under Senate Bill 219, the Aurora Police Department included. But there are also reporting and transparency issues around not having in-custody deaths that aren’t shootings fall under the statute.
The law requires district attorneys to post information on their websites about why they did or didn’t decide to file criminal charges in connection with the shooting. It also requires law enforcement agencies to report to the state every incident so it can be included in an annual report that’s compiled and released by the Colorado Division of Criminal Justice.
Since non-shooting deaths aren’t covered under the policy, district attorneys technically don’t have to make their decision-making public and law enforcement agencies don’t have to report them to the state.
Cooke and others who worked on Senate Bill 219 said limiting the measure to shootings was not intentional.
At the time, the nation was focused on the shooting death of Michael Brown, an unarmed, 18-year-old Black man, in Ferguson, Missouri, and not other law enforcement-involved fatalities, such McClain and George Floyd, who died after a Minnesota police officer kneeled on his neck for nearly 9 minutes.
The 2015 law is also facing scrutiny for other reasons, and prosecutors and at least one state lawmaker are calling for changes to those parts of the measure too.
A closer look at the policy reveals that it doesn’t fully require law enforcement agencies to hand off investigations into officer-involved shootings to another police department or sheriff’s office. It simply requires them to include another agency in the investigation.
Here’s what the legislation says: “Each police department, sheriff’s office and district attorney within the state shall develop protocols for participating in a multi-agency team, which shall include at least one other police department or sheriff’s office of the Colorado Bureau of Investigation in conducting any investigation, evaluation and review of an incident involving the discharge of a firearm by a peace officer that resulted in injury or death.”
Aurora, for instance, teams up with other agencies to investigate officer-involved deaths, but does not recuse its officers from those probes. In the case of McClain’s death, Aurora officers teamed up with Denver police — at least three detectives, according to prosecutors — and Adams County’s chief trial deputy on the probe.
In fact, the district attorney’s letter declining to file charges against the Aurora officers and paramedics involved in the encounter that led up to McClain’s death says an Aurora Police Department detective was the one who “presented the factual findings of the investigation” to Adams County prosecutors.
Aurora police defended the practice in an interview with The Sun.
“We bring in other agencies to have that transparency,” said Detective Faith Goodrich, an Aurora police spokeswoman. “The other agencies come in and they assist and they make sure that we are doing all the things that we need to be doing, which is the way that the bill is written.”
The Denver Police Department also does not completely recuse itself from officer-involved death investigations. They bring in officers from Aurora and partner with local prosecutors, but do not completely step away from the case, department spokesman Doug Schepman said.
But many law enforcement agencies in the state do step aside when one of their officers or deputies is involved in a fatality, including in jurisdictions surrounding Aurora.
Brauchler’s office oversees the Arapahoe County half of Aurora, and he says all other agencies in his jurisdiction fully recuse themselves from investigations into deaths involving their officers. They use a judicial districtwide “critical-incident response team.”
When a law enforcement agency that’s part of the team has an officer-involved death, the agency sits out the investigation.
“I think that the law doesn’t go far enough in mandating that every officer-involved shooting and, frankly, every officer-involved death ought to be completely investigated by outside agencies,” Brauchler said. “I don’t think we have to wait for a change in the law. I think police departments and sheriff’s offices can adopt this right now. Why wait until next legislative session? Let’s do it.”
17th Judicial District Attorney Dave Young, who oversaw the prosecutorial review of the McClain case, said that he suggested to two former Aurora Police Department chiefs — Dan Oates and Nick Metz — that the agency should not investigate itself.
Brauchler said he also told the Aurora Police Department that he didn’t like them investigating themselves on officer-involved shootings or presenting the investigations to his office.
“I agree that an independent police agency or investigators from my office should investigate deaths that occur and the officer’s involved agency should not conduct the investigation by themselves,” Young said in a statement.
Dougherty, the Boulder County district attorney, says all of the law enforcement agencies in his jurisdiction recuse themselves from the investigation when one of their officers is involved in a fatality.
He said the reason is to “prevent the appearance of bias.”
Mari Newman, an attorney for the family of Elijah McClain, said she has been alarmed that the Aurora Police Department was investigating itself since the inquiry into McClain’s death began.
McClain 23, was stopped by police officers responding to a report of a suspicious person on Aug. 24. A struggle ensued and officers subdued him with a carotid-pressure hold, which cuts off blood to the brain. A responding paramedic then gave McClain an injection of ketamine, a powerful tranquilizing drug, after which McClain stopped breathing and no longer had a pulse. He died on Aug. 30.
“I know that Aurora can’t effectively investigate itself,” Newman said. “Police don’t police themselves. Aurora will tell you that they brought in somebody from Denver to participate in the investigation with them, but that hardly creates independence.”
Cooke, the state senator who brought the 2015 bill, said the policy was written in a way to get buy-in from law enforcement and that he never heard objections from prosecutors.
“It was a pretty big leap to go from an agency investigating their own shooting to having another agency be a part of or be the lead,” he said.
Cooke said he’s still not sure that an agency involved in a death should be totally cut out from an investigation.
“I think the agency should have some buy-in or at least some part of it, because they are going to have to do an internal (investigation) as well,” he said. “I don’t see a problem, to be quite frank, with the agency involved in the shooting to have some role in it. … I think, at the very least, they probably should not be the lead.”
State Rep. Leslie Herod, a Denver Democrat who led the push for a recently passed, sweeping police accountability bill, vowed to try to change the law in the coming legislative session. She says it should be a requirement that agencies completely firewall themselves from any investigation into a death at the hands of one of their officers.
“I think the law needs to be cleared up,” Herod, who has helped lead police brutality protests in Denver in recent weeks, said after being contacted by The Sun.
Furthermore, Herod said, law enforcement agencies should not wait for the law to be fixed and should, as soon as possible, change their policies to remove themselves from investigating their own after a death.
“They should know — common sense will tell you they need to step back a bit,” she said.
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