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Moment of truth

Fountain shooting is first to fall under new state law mandating objective investigations


CSPD will lead officer-involved investigations in El Paso County. - SHUTTERSTOCK
  • Shutterstock
  • CSPD will lead officer-involved investigations in El Paso County.

When Jonathan Kay applied for a job with the Fountain Police Department last Dec. 1, the application asked if he'd be reluctant to shoot someone in the line of duty. He checked the "no" box.

Called to a home for a disturbance on Sept. 24, Kay shot 17-year-old Patrick O'Grady, who reportedly was armed with a firearm. The incident makes Kay, on the job since Feb. 10, the first in the area to fall under new requirements for officer-involved shooting investigations spelled out in a recently passed law.

Senate Bill 219 requires shootings be examined by a multi-agency team for which protocols must be established by Dec. 31. If the officer isn't charged, the bill says, the district attorney must issue a report to the public explaining the basis for that decision. The bill was one of five measures — part of the "Rebuilding Trust Package" put together by Democrats — that passed unanimously in the Colorado House and Senate earlier this year.

Fourth Judicial District Attorney Dan May says local agencies haven't finalized new investigative rules, so the O'Grady investigation relies on a mix of old and new methods, starting with the DA's investigators not being the lead agency for the first time in years.

Instead of departments investigating their own, SB 219 requires that multi-agency teams work together, which the bill says "promotes a better and more complete investigation" and "encourages a level of transparency and objectivity that provides increased credibility to the final outcome."

That's important amid deteriorating public confidence in police nationally after several high profile fatal shootings placed cops' use of force under the microscope.

While protocols haven't been finalized, May says, one thing has been decided: Either the El Paso County Sheriff's Office or Colorado Springs Police Department will serve as the lead agency on future officer-involved shooting investigations in El Paso County. That new policy also will encompass Teller County, May says, and the law allows agencies to cross over into other jurisdictions.

CSPD spokeswoman Lt. Catherine Buckley says via email the city and El Paso County are operating under a "verbal agreement" struck in July to comply with SB 219 until new protocols are adopted.

With the DA's office standing aside, the El Paso County Sheriff's Office is in charge of the O'Grady case, May says. (Sheriff Bill Elder's having served as Fountain's deputy chief prior to becoming sheriff doesn't pose a conflict of interest, an Elder spokesman has said.)

But whether it's Springs police or county deputies, is it really an independent look?

No, says Bill Scott, a local author whose son, Erik, was shot and killed by police in Las Vegas in 2010 (read more at "Senate Bill 219 is a good start, but falls short of truly independent, third-party investigations," Scott says in an email. "Although 'multi-agency teams' sounds good, officer-involved shooting cases will still be plagued by the current shortcoming: cops investigating cops and reporting to cops."

Scott suggests Colorado adapt protocols used in the aviation industry, which relies on a separate agency, the National Transportation Safety Board, for crash investigations.

But Rick Brandt, president of the Colorado Association of Chiefs of Police, says he doesn't know of a better way.

"I get the argument: It's police investigating police," he says. "That's making the assumption that the investigators have some motivation to protect someone who made a bad judgment on a shooting. We do not want to protect an officer who made a bad judgment. You need trained experts to conduct the investigation who understand how to conduct those very complex investigations, and I don't know anybody better suited to do that than state and local law enforcement."

Brandt, police chief in Evans (near Greeley), says SB 219 allows the Colorado Bureau of Investigation, which he calls "an independent state agency separate from local law enforcement," to be part of the investigative team. The The law doesn't specify how the CBI is to be called in but does authorize its involvement.

SB 219 also requires prosecutors to issue reports, including "the basis for the decision," and post them to their websites if officers aren't charged. If the case is referred to a grand jury, the bill requires prosecutors to publicly announce "the general purpose" of the grand jury's investigation. Before SB 219, no such disclosure was necessary.

May says he's always issued detailed reports of his findings, unless the officer is charged, in which case his office merely announces that charges have been filed. But that hasn't happened in more than 10 years. Since 2004, the DA's office has investigated 44 incidents in which officers' use of force resulted in serious bodily injury. Of those, three didn't involve a firearm, seven involved an officer firing a gun but missing, and 22 resulted in a suspect's death. None of the officers involved in the 44 incidents was charged, according to the DA's Office.

A companion measure, Senate Bill 217, required the state's more than 300 law enforcement agencies to report all officer-involved shootings from 2010 through June 30 this year to the Division of Criminal Justice by Sept. 1. Annual reports are required thereafter. The data will allow officials to spot trends and better understand shooting incidents.

Agencies must report date, time and location of an incident; basis for initial contact; basis for the shooting; whether the officer issued a verbal warning before firing; age, gender, sexual orientation, race, ethnicity and disability of the person shot at; outcome of the shooting; other circumstances of the shooting, such as whether a search was conducted prior to the shooting with or without consent or a warrant; whether drugs were found; the officer's agency, age, gender, race and ethnicity.

Kim English, research director for the Division of Criminal Justice's Office of Research and Statistics, says her office hasn't yet begun analyzing the data. She's due to present a report to the Legislature by March 1.

According to her office, the CSPD reported 10 shootings during the five-year span; the Sheriff's Office reported three. Neither Fountain nor Manitou Springs submitted reports, although the DA's Office investigated two shootings by Fountain officers: In 2012, two Fountain officers fired four rounds each, striking a suspect in the wrist. The suspect then shot and killed himself. In 2013, two officers shot a Fort Carson soldier who pointed a gun at them.

  • Courtesy City of Fountain
  • Chris Heberer

Fountain Chief Chris Heberer was surprised to learn his department hadn't filed the required report and vowed to follow up. "We want to be sure we meet all our commitments," he says.

Heberer acknowledges the recent shooting is a "test case" for SB 219, as well as body cameras. "Through this process, we're going to learn a lot and work collaboratively for lessons learned," he says. "I'm big on after-action reviews."

He promised to share issues from a debrief this week on training and equipment issues, notably regarding Kay's body cam, which Kay thought was turned on but wasn't.

Kay activated the camera after the fatal shot was fired.

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