The Colorado Springs and El Paso County tradition — having one local law enforcement agency investigate the other — has come under intense fire since police shot a 19-year-old man to death Aug. 3.
Observers are questioning how the county Sheriff's Office can impartially investigate the police shooting of De'Von Bailey when its undersheriff is former Police Chief Pete Carey, who served more than 30 years with the Colorado Springs Police Department.
Andrew James, who is leading the Sheriff’s Office investigation, is also a 30-year CSPD veteran who once headed its violent crimes unit. And before he joined the Sheriff’s Office last year, he was investigations chief for three years at the 4th Judicial District Attorney’s Office, where he oversaw officer-involved shootings.
When the Sheriff's Office completes its investigation, expected at the end of this week, it will present its findings to that District Attorney's Office, which will rule whether the shooting was justified.
But, said sheriff's spokeswoman Natalie Sosa: “Commander James and his team are sworn to conduct a fair and thorough examination of the facts for each case with professionalism and impartiality." Brad Shannon, a bureau chief with the Sheriff's Office, also is leading the investigation and never worked for CSPD, Sosa said.
The connections between the agencies don’t necessarily jeopardize the investigation, said Rich Rosenthal, who was independent monitor of Denver police misconduct investigations for seven years.
“The problem is perception,” Rosenthal said. “Unless you have someone independently reviewing the investigation, you can never be sure. You never know the answer to that question.”
Most large police departments investigate their officers' shootings internally, said David Rudovsky, a 30-year civil rights lawyer. In such situations, independent investigators in the department complete the probe, Rudovsky said.
The challenge is to have credible internal affairs units that fairly investigate police misconduct, he said. Even when a separate law enforcement agency is investigating, as with the Sheriff’s Office in Colorado Springs, questions can be raised, he said.
In Denver, the Office of the Independent Monitor oversees police investigations and reports its findings to the public twice a year.
A Citizen Oversight Board then assesses whether that process was effective, said board Chairwoman Katina Banks.
“It adds another level of oversight and to check if the monitor was effectively monitoring cases the way the community would expect,” Banks said.
The board, made up of volunteers appointed by the mayor and city council, meets twice a month. At least three times a year, it meets in communities across the city, said Banks. The board can address community concerns in its quarterly meetings with the police chief, sheriff and state public safety director, she said.
The goal is to improve policing and enhance trust between the community and law enforcement, Banks said, and in many ways it’s working.
Over the past four years, shootings in Denver’s suburbs have tripled while those in the city remained steady, according to an analysis by The Denver Post. While many factors can explain the surge in violence in smaller cities, experts pointed to the lack of oversight as part of the issue, The Post reported.
Problems arise when the monitor and investigators don't see eye to eye, Banks said, because the monitor can't change policies or impose discipline.
“There are some community members who have been unabashed about wanting the system to be modified for the monitor to have more authority,” she said. Even so, current Monitor Nick Mitchell has helped change Denver's use-of-force policies.
In 2015, Mitchell worked with the police department to revise its policy on vehicle shootings, after officers fatally shot a 17-year-old girl who they say was driving a stolen car with four other teens inside. The new policy prohibits officers from shooting at a moving car unless someone in it is shooting at them.
Rosenthal, a former 15-year prosecutor, said the monitor’s report helps the community make intelligent and informed decisions on how accountable the department is and how it is holding its officers accountable. He said the transparency, in some ways, is the “most important part.”
“When there is a problem is when there is no public reporting or transparency, and the public doesn’t know what happened,” he said.
But members of a citizen oversight board "are often lacking necessary expertise," said Colorado Springs Mayor John Suthers, and the board can be "inconsistent and prone to politicization."
But he said he does support the city's Civil Service Commission. It aims to "facilitate open communications between the Commission and the City's civil service employees," the city's website says. How that relates to police shootings wasn't explained by the mayor's office.
City Council President Richard Skorman said he supports the idea of a citizen oversight board to serve as an “outside pair of eyes” on police shootings. But more research is necessary before deciding whether it would be right for Colorado Springs, Skorman said.
He said the idea came up when he was vice mayor more than 10 years ago, but the council then wasn't willing to explore it.
“I think it is a great opportunity to assure the public that we have a checks and balance,” Skorman said, as it could assure the public that the investigation was fairly done.
A shift toward civilian oversight committees
Denver's civilian oversight approach is spreading in Colorado.
Aurora created an independent review board to help the police chief determine appropriate discipline for officers involved in misconduct, the city’s website states. To serve on the board, citizens must complete the Aurora Citizens Police Academy or equivalent training.
Boulder is forming a task force to help create a community oversight board for police investigations, according to its website.
The call for the task force comes after a video that went viral. It shows a Boulder police officer pulling a gun on a black man who was picking up trash outside his home. Applications to serve on the task force are reviewed by the city council and the Boulder County NAACP.
Rosenthal said there are is no “best practice” for police oversight, but it should depend on the city's needs.
“They are almost like fingerprints. They really depend on culture, the history and the needs of the individual agency, and the political will to create an oversight agency,” he said.
“If there becomes a lack of faith and the ability of the department to investigate, that’s when people start to ask for civilian oversight.”
No agency in the country allows a civilian-led group to independently investigate police misconduct, Rosenthal said, but many jurisdictions use a “review-focused model.” Such boards, made up of citizen volunteers, can review the quality of completed police internal affairs investigations and can make recommendations on the findings.
This type of oversight also allows the community to voice its concerns and facilitates communication between the police and community.
"Is anyone doing a systematic, comprehensive review to evaluate the quality of the critical incident investigations in Colorado Springs?" Rosenthal asked. "If the answer is no, that is a potential problem."