- By Elena Trapp with assets from shutterstock.com
De’Von Bailey’s story — that of a Black 19-year-old who died in August after Colorado Springs Police Department officers shot him multiple times as he sprinted away — is a very local example of use of force by police being pushed to its limits.
CSPD’s Sgt. Alan Van’t Land and Officer Blake Evenson removed a gun from Bailey’s shorts as he lay on the ground bleeding. A grand jury declined to indict the officers on criminal charges.
Some continue to fight for what they see as justice.
Even more recently, controversy has erupted over the death of Rayshard Brooks by Atlanta police officers. Brooks was shot and killed after firing a Taser he took from police during a scuffle. And much of the country united over the death of 46-year-old George Floyd, a Black man from Minneapolis, after video showed a police officer kneeling on his neck for nearly nine minutes. Brooks. Bailey. Floyd. Those names and the names of others with stories like theirs are invoked by protesters as part of a list of Black people and people of color who’ve been killed in recent years by law enforcement.
Earlier this month, Colorado lawmakers passed a wide-ranging police accountability bill that supporters say grew out of renewed momentum for reform sparked by protests. Senate Bill 217 aims to increase transparency in law enforcement and make it easier for members of the public alleging officer misconduct to win in court.
As the bill moved through the Legislature, Bailey’s family filed a lawsuit against Van’t Land and Evenson in federal court. To win a judgment against the officers (or even a settlement), they must overcome legal challenges that tip the scales in favor of law enforcement.
Would the changes included in SB217 (if it had been passed before the lawsuit was filed) have made it any easier for Bailey’s family to hold the officers accountable in court?
That’s one of the questions that comes up when examining other recent lawsuits filed against CSPD officers, very few of which have ended in settlements over the past several years.
- Faith Miller
- CSPD is fighting several lawsuits alleging excessive force.
And the number of lawsuits involving the department — both successful and unsuccessful — is dwarfed by the total number of complaints of excessive use of force by officers, which are addressed through an internal administrative process.
When someone seeks to sue a law enforcement officer who has violated their civil rights, they usually file a case in federal district court. But plaintiffs must fight an uphill battle to get officers and their employing agencies to pay up.
That’s in large part because government employees can use the “qualified immunity” defense, which protects them from liability except in very specific circumstances.
To overcome the qualified immunity test, the plaintiff must prove that an officer violated their constitutional rights and that those constitutional rights were “clearly established,” generally through case law.
“It’s arguable that what the United States Supreme Court means by ‘clearly established’ is that you, the plaintiff, have to show that whatever it is you’re complaining about that the cop did, that another court ... has held that that conduct was unconstitutional,” explains Ed Farry, a local attorney who’s represented parties on both sides of lawsuits against government employees. “As you might imagine, that’s pretty hard to do.”
Senate Bill 217 would do away with the “clearly established” stipulation of qualified immunity. So, a plaintiff wouldn’t have to find another case in which a judge determined that the same type of conduct committed by an officer violated someone else’s civil rights.
It’s important to note, though, that SB217 doesn’t affect federal lawsuits.
In federal court, “qualified immunity is still a significant barrier to holding police accountable,” says Alan Chen, a constitutional law professor at the University of Denver’s Sturm College of Law.
“But having said that,” he adds, “...[SB217] gives people who are injured by the police or have their constitutional rights violated by the police ... an alternative way to seek accountability going through state court instead of federal court.”
- Lily Reavis
- A memorial for De’Von Bailey.
Both Chen and Farry agree that more civil lawsuits against police officers will be filed in state court as a result of the law’s passage, but say it’s unclear exactly how many more.
And even though the state bill weakens qualified immunity, Farry points out, it’s still pretty hard for lawyers to get past the remaining hurdle — that a constitutional right was violated in the first place.
An early draft of SB217 would have eliminated the “good faith” defense, another way that officers can respond to accusations of misconduct. However, the drafters took that portion out.
“The police officer’s ‘good faith’ belief that this conduct was lawful is still a defense,” Farry notes. He’s doubtful that the final version of the bill will make it a great deal easier for plaintiffs to succeed in court.
Another important point: The qualified immunity provision of SB217 applies only to local law enforcement agencies, and excludes statewide agencies such as the Colorado State Patrol. In order to hold a state trooper civilly liable, plaintiffs still have to prove that a “clearly established” constitutional right was indeed violated.
Local attorney Josh Tolini believes the statute change would have made a difference for Ronald Brown, the retired Army sergeant whose condominium was destroyed in 2012 after officers set off tear gas and explosives in an attempt to get Brown — wanted on felony menacing charges that were later dropped — to exit his home. Brown suffered a broken leg and other injuries in the eight-hour standoff.
Brown’s civil lawsuit against CSPD and the officers involved in that incident was settled by the city for $160,000 in 2018. That’s the second-largest settlement the city paid in a case alleging excessive use of force by police within the last five years, according to the Indy’s reporting.
Tolini (who was part of Brown’s legal team), thinks the outcome could have been better for his client without the burden of qualified immunity — which the city’s attorneys cited as a defense for the officers, to some success.
“We [had] all of the charges dismissed against the officers individually, because there wasn’t a case ... where another officer had used an explosive on an individual at home and crippled them,” Tolini says. “So it’s that specific.”
Under SB217, if a judge determines that officers violated the plaintiff’s constitutional rights, officers can be individually liable for up to $25,000 or 5 percent of the judgment in a state civil case. (Federal cases don’t have such monetary limits, but it’s rare they get that far before they’re settled or dismissed.)
Over the last five years, around two dozen lawsuits accused CSPD and/or individual police officers of violating constitutional rights of members of the public, according to quarterly reports published by the city attorney’s office.
- Colorado Springs Police Department
- De’Von Bailey, 19, was shot and killed by police in August.
However, the Indy found just a handful of cases that ended in settlements during that time frame, and none (to our knowledge) resulted in a finding that officers had violated a clearly established constitutional right of any member of the public through excessive force.
(For this story, we chose to focus on CSPD rather than the El Paso County Sheriff’s Office or Colorado State Patrol given the relative availability of information from the police department, but that by no means implies that other agencies escape scrutiny in the courts.)
Under CSPD’s current policy, any time an officer uses “less-lethal force” (defined as physical force or the pointing of a firearm, which does not result in death) against a member of the public, the officer must fill out a report and the incident is reviewed by the officer’s supervisor.
“Every time an officer uses force, that [officer’s] sergeant will look at that use of force, they’ll read all the associated reports and then they’ll watch all the associated body-worn camera,” says CSPD spokesperson Lt. Jim Sokolik. “And then they will balance that against our policies, whether that was a justified use of force.”
The sergeant sends the recommendation to their supervising lieutenant, who makes their own recommendation and sends it to their commander.
“During that, what they’re looking at is: ‘Is this use of force within our policies?’” Sokolik explains. “If it’s outside of our policies and recommendations is usually when it is going to be that we initiate an Internal Affairs investigation.”
- Colorado Springs Police Department
- De’Von Bailey, 19, was shot and killed by police in August.
Cases that are determined to be criminal matters, Sokolik adds, are investigated by CSPD’s Violent Crimes Unit.
SB217 also makes changes at the policy level, aiming to restrict officers’ use of force so that theoretically, there would be fewer lawsuits.
In comparison to qualified immunity, though, the changes are relatively small.
Before the passage of SB217, which was signed into law by Gov. Jared Polis June 19, CSPD’s use-of-force policy did not completely ban chokeholds. Rather, officers were permitted to use chokeholds in situations where they were authorized to use deadly force against a suspect.
(Colorado Springs Police Department actually incorporated SB217’s chokehold ban into their policy June 8, while the bill was still being debated at the state Capitol.)
Under SB217, deadly force is permitted only during the arrest of someone suspected in a violent felony, and when officers have reason to believe that the suspect would kill or seriously injure another person unless they were stopped.
The bill also creates a new misdemeanor charge for officers convicted of failing to intervene when a fellow officer uses excessive force. If that force results in serious injury or death, officers who failed to intervene must have their Peace Officer Standards and Training (POST) certification permanently revoked, so their career as an officer is over.
Other provisions of use-of-force policy remain unchanged. See sidebar for some highlights from CSPD’s current policy.
It was difficult for plaintiffs to overcome qualified immunity in lawsuits against police officers, but the city of Colorado Springs has paid hundreds of thousands of dollars in settlements over the past five years.
“The City is self-insured and has a 1 million dollars SIR (self-insured retention) on any liability claim,” city spokesperson Kim Melchor explains in an email, when asked where the money comes from.
“The excess insurance carrier will pay the claim after the SIR is met,” she adds. “Most of the time the SIR comes out of the General Fund.”
Besides the $160,000 settlement for Ronald Brown (whose condo was blown up), another relatively large payout recently went to Alexis Acker, who sued after a 2013 incident involving former Officer Tyler Walker.
Walker slammed then-18-year-old Acker onto a hospital floor while she was handcuffed.
Acker ended up with a $100,000 payment from the city in a May 2016 settlement.
In another case, Grant Bloomquist sued nine Colorado Springs Police Department officers over a July 2013 incident outside Cowboys Nightclub, in which he alleged officers violated his constitutional right to free speech and arrested him without cause.
According to Bloomquist’s complaint, filed in 2015 in federal district court, Bloomquist left the nightclub on July 4, 2013, to find CSPD Officers Nathan Johnson and Jordan Leffler “brutally beating” a 21-year-old Black man.
Bloomquist claimed he had no physical contact with the officers but verbally asked them to “get off the young man.” But Officers Jeremy Sheldon, John Ireland and Johnson arrested him at the order of Sgt. Rafael Chanza, according to Bloomquist’s lawsuit.
During the arrest, Sheldon struck Bloomquist in the nose and knocked him unconscious.
“While Mr. Bloomquist was unconscious and convulsing on the ground, Defendant Sheldon flipped him over onto his stomach — placing one of his knees onto Mr. Bloomquist’s head,” the lawsuit says.
Other officers named in Bloomquist’s lawsuit failed to restrain their fellow officers, he alleges.
In a memo to City Council, Assistant City Attorney Shane White contradicts Bloomquist’s description of events. He wrote that Bloomquist “did not ask the Officers to get off the man.” Rather, he “inserted himself into the situation, went over the back of an Officer, grabbed the man and began pulling the man away from the Officers.”
The city attorney’s office, which represented the officers, argued in an answer to his complaint that Bloomquist was arrested because he broke the law, and that the arresting officers used force against him “for the protection and defense of themselves and others.”
The city’s answer also cited the “qualified immunity” defense, which prohibits law enforcement officers from being held personally liable for misconduct unless the plaintiff can prove they violated a “clearly established constitutional right.”
In November 2016, the case ended in a settlement and the city paid Bloomquist $25,000.
In 2017, the city also settled a wrongful arrest case involving brothers Benjamin and Ryan Brown for $212,000.
That case stemmed from a 2015 incident in which the Brown brothers, who are Black, were allegedly driving home when they were pulled over by CSPD officers, ordered to leave the car at gunpoint and arrested without cause.
Officer David Nelson suspected the brothers were involved “in some drug activity or some kind of criminal activity,” according to CSPD’s internal investigation of the incident, which determined the officer’s actions were justified.
According to that investigation, after Benjamin, the driver, rolled down his window only a few inches, Nelson ordered them out of the car. Benjamin complied but Ryan did not. Nelson pulled Ryan out of the passenger seat, slamming him onto the snow-covered ground and holding him down to handcuff him.
Per the terms of the settlement, CSPD had to make multiple policy changes. Those include more explicit constitutional language about when an officer may conduct a pat-down search, the removal of non-cooperation as probable cause for arrest, and protections for the public’s right to record the police.
Tolini’s firm, Barker & Tolini P.C., is also representing Kelvin Tivis in another federal lawsuit that’s pending against the city.
In Tivis’ complaint, he alleges unconstitutional conduct by CSPD Officers Robert Comstock, Ronald Carter, Brian Manofske and Korey Hutchison.
On March 22, 2017, Tivis called the police “requesting assistance.” When multiple officers arrived at his home, Tivis claims they “forced their way” inside “despite that he continually told them they were not welcome and asked them to leave.”
After conversing for about 30 minutes, the complaint continues, officers tackled Tivis and tased him “almost half a dozen times.”
While Tivis was never charged with a crime in the incident, he suffered permanent injuries, according to his lawsuit.
The city moved to dismiss Tivis’ lawsuit in April 2019, partly on the grounds that the complaint doesn’t define which of the named defendants tackled and tased Tivis: “The collective group is alleged to have ‘attacked’ and ‘violently thrown [Plaintiff] to the ground,’” the city attorney’s office says.
Meanwhile, in the lawsuit over Bailey’s death, his family’s attorneys cite the case of Jeffrey Melvin in laying out an argument that CSPD espoused “customs, practices, and policies of engaging in and tolerating racially-biased policing” and failed to discipline officers for misconduct.
Melvin, 27, died days after being tased by police officers at a Colorado Springs apartment complex in April 2018.
Officers Daniel Patterson and Joshua Archer arrived at the apartment complex on East Fountain Boulevard in the early morning hours of April 26, according to court documents in a lawsuit filed by Melvin’s estate. The officers were responding to a resident’s report that he’d heard a fight inside the unit.
When Patterson and Archer arrived, they were greeted by Jordan Bruno, who told them “an altercation had occurred earlier between him and a friend, but the situation was under control and that his friend had since left,” according to court documents from both Melvin’s estate and the city of Colorado Springs.
About 20 minutes later, while the officers were still on the scene, Melvin opened the door and hastily closed it behind him — briefly separating Archer, who was inside, from Patterson, who was out in the hallway.
- Heidi Beedle
- Police line up in riot gear during a June protest.
“Officer Archer began aggressively yelling at and grabbing Mr. Melvin in the small entryway,” the documents say. Both officers grabbed Melvin, began choking him and threw him to the ground.
Archer fired his Taser at Melvin, who ripped the prongs out of his skin and ran across the street. The officers caught up with Melvin and handcuffed him. He was taken to the hospital and placed in a medically induced coma, and died a few days later.
Both the city and Melvin’s estate agreed upon the basic circumstances of officers’ encounter with Bruno and Melvin on April 26. But they disagree over whether Melvin’s estate has a viable case.
The complaint goes into more detail about what allegedly happened. After Melvin ran across the street, he collapsed to the ground and “began slurring his words, clearly needing medical attention,” it says. “The repeated electrocutions, use of chemical weapons, and excessive beating by Officers Patterson and Archer had taken a devastating toll on Mr. Melvin’s body.”
Melvin’s estate alleges discriminatory treatment by the officers, who are white, against Melvin, who was Black.
But in its motion to dismiss, the city cites the qualified immunity defense as protecting the officers from liability, and says the plaintiffs don’t adequately prove a pattern of racial discrimination by the Colorado Springs Police Department.
The lawsuit is still pending — and since the suit was filed in federal court, the plaintiffs couldn’t have taken advantage of SB217’s new provisions unless they’d gone the state route.
In any case, the legal system is set up to make it “incredibly difficult” to fight local law enforcement agencies in court, Tolini says.
“I think this bill is going to change a lot of stuff,” he says of SB217. “...It’s not saying to open up the floodgates, but it’s a way to allow cases with real grievances to go forward and let a jury determine them on their merits rather than by the qualified immunity precluding that from even happening.”