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External affair

Colorado Springs police forced to release results of internal investigation into brutality claim


On an early July morning nearly two years ago, two Colorado Springs police officers stopped three men in a 1991 Chevy Caprice because it was missing a front license plate.

The men had just left La Jazz Affair, a nightclub not far from the corner of Fountain Boulevard and Doniphan Drive. Officer K.D. Hardy discovered passenger Delvikio Faulkner had hidden his ID card in a seat cushion to avoid being identified.

When Hardy confronted Faulkner, Faulkner tried to spin away. Hardy responded by striking Faulkner several times with his metal flashlight. Faulkner fell to the ground, bleeding from his head as he was handcuffed.

A three-month internal affairs investigation would find that Hardy abused his authority and used excessive force in subduing Faulkner, and that Hardy should be suspended without pay.

Police historically have prevented the public from viewing results of such investigations, including conclusions and disciplinary action, maintaining that they are personnel matters.

But pursuant to a judge's ruling earlier this month, details surrounding the Hardy investigation have been released, providing a glimpse into the department's secretive disciplinary process.

Other options

The city of Colorado Springs had filed a lawsuit to prevent the American Civil Liberties Union of Colorado, which sought the files, from gaining access, but lost. District Judge Larry E. Schwartz concluded the public's interest in obtaining the 234 pages of reports, officer and witness interviews, photos and memos trumped the department's privacy concerns.

The documents, which the Independent viewed at police headquarters last week (and subsequently obtained a copy of, from the ACLU), indicate that the officers were on gang patrol on July 2, 2005, in the wake of recent murders. Hardy's partner, officer Jackson Andrews, noted in documents that the objective was to "stop as many cars as we can ... look for guns, contraband ..."

The officers pulled over a car containing three black men, including Faulkner.

Andrews told an investigator that as Faulkner appeared to spin away from Hardy, Hardy delivered "at least three hits" to the back of Faulkner's head.

A sergeant would conclude Hardy's actions were unjustified and that other tactics, such as a leg sweep, could have been employed. Or that Faulkner could have been allowed to flee.

"It could even be argued that since Faulkner was now identified, he could be arrested at a later time," the sergeant wrote.

In an Oct. 10, 2005, memo, Deputy Chief David Felice wrote to then-Chief Luis Velez that Hardy's actions violated several department policies pertaining to use of force and treatment of offenders.

Felice recommended Hardy be suspended for 200 hours without pay, lose his status as a baton instructor and undergo a psychological fitness examination.

No blue wall

Hardy could not be reached for comment, but documents show he disagreed with the disciplinary actions and appealed his punishment to a departmental board.

Hardy was fired in 2006, and the department never stated why. But a Feb. 1, 2006, letter attached to the Hardy investigation said a "final disposition" on the case was never rendered because of Hardy's "termination in another investigation."

Documentation shows four other internal affairs investigations of Hardy and seven alleged policy transgressions between January 2000 and February 2005. Of those, four dated Aug. 3, 2000 were "sustained," including actions that involved "preventing escape" and "discretionary judgment," resulting in a written reprimand.

Mark Silverstein, the ACLU's legal director, said blows to the head from an officer's flashlight could kill a person. He said officers appeared to respond appropriately when Faulkner was injured.

"This does not appear to be a case where what's called the blue wall of silence winds up shielding officers from the consequences of their misconduct," Silverstein said.

He added that statements in the documents raise questions about the department's gang patrol activities.

In 2006, the department sustained one violation of its use-of-force policy, which includes physical, psychological and verbal harm to suspects, said Lt. Rafael Cintron, a police spokesman. Three other cases from 2006 await an outcome.

In 2005, three cases were sustained.

Cintron said the department takes seriously such cases, but is doing "really good," given that officers respond to about 100,000 traffic stops each year and some 250,000 calls, including 911 calls.

Faulkner, 26, told the Independent last year that he was experiencing recurring headaches since the incident and was struggling to pay a $2,500 hospital bill for the several staples that sealed his wounds ("Brutal questions,"

He is currently at Buena Vista Correctional Complex serving on charges including theft.

Police report costs hundreds of dollars

The Colorado Springs Police Department's copying and inspection fees appear designed to prevent the public from finding out about government, according to the American Civil Liberties Union.

"There's a real danger that government agencies will attempt to discourage the public from viewing government records by charging exorbitant fees for copying and inspection," says Mark Silverstein, ACLU-Colorado's legal director. "I think some of those fears are realized in the Colorado Springs schedule of fees."

Colorado Springs police billed the ACLU $384 for a 234-page internal affairs investigation that a judge ordered released this month. The bill included a $150 charge for five hours of "research and redaction time" and a $1-per-page copying fee.

The Independent was charged $30 to view the documents at police headquarters for one hour following a free 30-minute session.

Senate Minority Leader Andy McElhany (R-Colorado Springs) has introduced a Senate bill that would reduce the maximum allowable fee for copies in Colorado from $1.25 to 10 cents. The bill also would cap research fees at $15 an hour and only allow them in certain cases where extensive work is needed.

The Colorado Press Association is supporting the bill, which is expected to go to a vote this week.

Yet the bill doesn't specifically single out internal police investigations, which are considered criminal justice records, a different kind of document, Silverstein notes. Nor does it address viewing fees like those imposed on the Independent.

"I have been dealing with requests under various open records laws for 20 years now," Silverstein says. "I have never heard until now of a government agency charging for merely inspecting public records."

The department also charges $30 an hour to view or listen to video and audio.

Michael de Yoanna

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