Police Use Of Force A Balancing Act For Northern Colorado Law Enforcement

Larimer County Sheriff's Office deputies train on use of force with a simulator to mimic real-life scenarios. Saja Hindi

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The Coloradoan story about former Fort Collins police officer Ray Martinez on Nov. 7, 1977.(Photo: Coloradoan)Buy Photo

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The shooting took place almost 40 years ago, but Ray Martinez still remembers that night clearly.

It was 1:07 a.m. Nov. 7, 1977, when Martinez, then a Fort Collins police officer, shot a man at Poudre Valley Hospital in Fort Collins. It was the first time in at least 40 years that a Fort Collins officer had fired a weapon in the line of duty.

Martinez had been working for the Fort Collins police department for only three years prior to that night. He and Officer John Pino were dispatched to a call on a report of a patient who had pulled his gun from a leg holster and pointed it at a hospital attendant.

More: How Northern Colorado police train on use of force, deal with aftermath

Four officers arrived at the hospital with Martinez, who entered patient Jay Perry's room with Pino. The rooms surrounding the suspect were cleared.

The instant the officers “rushed the room,” Martinez said Perry pulled out his revolver and directed it right at him. Martinez had his gun drawn and told the man to drop his gun or he would shoot.

“I knew the gun was pointed right at my head because I could see the bullets in his cylinder,” Martinez said.

He could see the patient squeeze his own gun — “as crazy as it sounds, that’s how close I was” — and simultaneously, Martinez fired.

Forty years after Martinez's experience, some officers' cars are outfitted with dashboard cameras, and at least in Fort Collins, officers wear body cameras. Residents will sometimes record interactions with officers with their own cell phone cameras.

Even in a community that often supports its police department, questions around use of force exist — in Fort Collins, most recently, an off-duty officer’s arrest of a woman has been called into question. This comes a year after a video of an officer arresting a woman in Old Town went viral.

Family members of police shooting victims have questioned the justification for shooting their loved ones, despite district attorney reports clearing officers of criminal wrongdoing.

On Tuesday night, for example, a family member of a recent shooting victim spoke before the Fort Collins City Council to express her outrage about the police shooting death of her son.

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Students make signs at a rally Òfor police accountabilityÓ following the viral arrest video of CSU student Michaella Surat outside City Hall on Tuesday, April 18, 2017.  (Photo: Valerie Mosley/The Coloradoan)

Law enforcement and the public across the nation are grappling with questions: How much is too much force? What could officers have done to de-escalate situations?

Back in that hospital room in 1977, Martinez said he had a fraction of a second to calculate the risk and his options: It was a matter of life or death.

>“It was a calculated risk. But you can’t knock success. I got the gun away.””

Fort Collins councilman/former FCPS officer Ray Martinez

He pulled the trigger, aiming for what officers are taught: center mass, the largest area they can see of a suspect.

Martinez fired one shot, which hit Perry, who then curled up and dropped his gun between his legs, moaning.

The bullet had hit his chest.

And yet, Perry tried to reach for his gun again. Martinez commanded him to let it go or he would shoot again. Pino maintained his gun’s position directed at Perry, and Martinez got closer to the man and grabbed his gun.

“It was a calculated risk,” Martinez said. “But you can’t knock success. I got the gun away.”

Ultimately, with medical attention at the ready, the man survived the encounter that could have been deadly. He was lucky, Martinez recalls. 

He said today officers would probably have fired more rounds at a suspect like the one he encountered.

It was the only time he had to fire his weapon in about 25 years of policing, though he recalled drawing it at a suspect one other time. Despite the difficulty of the incident, he said if he were confronted with the same situation again, he wouldn't have done anything different.

With a rise in police shootings in Larimer County, Martinez has concerns about training and what he views as not enough of a focus on de-escalation methods.

Current Larimer County law enforcement agency representatives disagree, citing a concerted effort to train on de-escalation techniques that can be applied to all scenarios, especially critical incidents.

Use of force

Shootings are the most high-profile example of use of force, but officers use other forms in their interactions on a daily basis.

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Larimer County Sheriff's Office Deputy Mark Hecker takes a tactical position during a simulation at the Larimer County Sheriff's Office on Thursday, Oct. 26, 2017. The training tool is loaded with different scenarios that require different types of force from trainees. (Photo: Austin Humphreys/The Coloradoan)

The Loveland Police Department, Fort Collins Police Services and the Larimer County Sheriff’s Office all have use of force policies that are reviewed regularly

Policies:

Loveland Police Department: https://issuu.com/sajahindicoloradoan/docs/lpd_20use_20of_20force_20policy

Larimer County Sheriff's Office: https://issuu.com/sajahindicoloradoan/docs/lcsouseofforce

Fort Collins Police Services: https://www.fcgov.com/police/pdf/policy_manual.pdf

Officials take into account laws, surrounding agency policies, liabilities, and in some cases, community expectations.

Loveland Police Department Sgt. Ryan Ertman said officers constantly have discussions about use of force, formally in every training the department conducts, and informally based on situations involving force in which officers were involved.

Ertman is one of the department’s defensive tactics coordinators, and he said the agency doesn’t just train techniques when it comes to use of force but also provides scenario-based training so officers are prepared and less likely to be caught off-guard in an incident.

Use of force is not only about lethal incidents, he pointed out. Even officer presence is considered a form of force, and at least at a local level, Ertman said police don’t take it lightly.

“You look at how critical some communities are of their police, and I look at police and how critical they are of themselves,” he said. “And so I know there’s no question you can ask me that I haven’t asked myself in a situation ... how can I do that better, how could I have kept that from going out of control?”

Ertman said officers aren’t out patrolling to get in fights, but they still have to be ready to respond when they do happen.

And they do happen.

Police accountability

When incidents occur, questions often surface.

In the Eighth Judicial District, a multiagency Critical Incident Response Team is activated to investigate incidents involving police that lead to serious injury or death. The team is activated for police shootings, and the District Attorney's Office releases a letter with findings after an investigation concludes. Following the criminal investigation, agencies also conduct their own internal affairs investigations.

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Law enforcement officers investigate the scene of a fatal officer-involved shooting. Both officers who shot Jeremy Holmes have been cleared of wrongdoing by the district attorney. (Photo: Cassa Niedringhaus/The Coloradoa, Cassa Niedringhaus/The Coloradoa)

Mark Silverstein, legal director of the American Civil Liberties Union's Colorado chapter, questions the validity of police investigating themselves in excessive force allegations because "in most communities in Colorado, the public doesn't have the confidence that the police will investigate fellow officers in a fair and balanced way."

Northern Colorado police agency officials reject that notion, saying they report when an action is out of line, even if it's about themselves.

Lt. Jan Burreson of the Loveland Police Department oversees the department's Professional Standards Unit, and he said investigators' focus is on fact-finding. When it comes to criminal allegations, the department has a duty to report issues to the district attorney. When it's a policy violation, it's considered a personnel matter.

Although some communities in bigger cities and other parts of the country have trust issues with their police departments, Burreson doesn't see it in Northern Colorado, especially Loveland.

"Never has there been a time here where transparency of the department wasn't in the forefront of our community," he said.

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Fort Collins Police Services has a citizens review board conducts independent reviews of police misconduct allegations and provides recommendations to the police chief. (Photo: Coloradoan library)

One way Silverstein suggests improving public confidence in police internal investigations is an independent civilian review board. 

Fort Collins has its own citizens review board that assesses allegations of police misconduct and provides non-binding recommendations to the police chief. In the past decade, the board has disagreed with police internal investigations three times.

>“The public would like the opportunity to see how is it that police investigate themselves.”

Mark Silverstein, legal director of Colorado's ACLU chapter

The other issue Silverstein finds with police internal investigations is that they aren't transparent to the public.

"The public would like the opportunity to see how is it that police investigate themselves," Silverstein said. But our open records laws have not been friendly to transparency when it comes to police internal affairs."

Often, police will cite exemptions to criminal justice records release because of what officials deem "contrary to the public interest" or because the issues deal with personnel matters.

However, because the policing agencies and DA's Office still regularly work together, Silverstein said, unless all documents pertinent to an investigation are released, "I'm not sure a DA's investigation of the police functions as an independent oversight that wins the public's confidence," he said.

Criminal charges are matters of public record, but police are not required to release their internal affairs investigations.

That protects the individual officer, who, as Loveland Police Sgt. Jeff Pyle puts it, is human and can make mistakes in a job like everyone else. One policy violation, he said, shouldn't define a person's professional career. And many times, Pyle contends, allegations levied against officers or the department end up being unwarranted.

In Loveland, Burreson said if a use of force is deemed outside policy, corrective action is required.

"The employee may be disciplined anywhere from counseling/coaching, written warning, suspension, up to termination," he said. "Discipline is unique to individual employees depending on past work history, past discipline, assignments, etc."

A constant in all of the incidents of policy violations, he noted, is some type of remedial or additional training.

But Silverstein stressed that just because an incident wasn't deemed outside of policy doesn't mean it wasn't wrong.

It could mean that the policies need to be changed, he said.

Use of force investigations

Fort Collins Police Services

Data show Fort Collins Police Services investigated 17 incidents between 2011 and 2017 for alleged excessive force, according to Lt. Jerrod Kinsman. Injury data was not collected before 2011.

Incidents involving use of force deemed out of policy:

  • 2011: 1 (27 incidents resulted in injury or claim of injury)
  • 2013: 1 (57 incidents resulted in injury or claim of injury)

Larimer County Sheriff's Office:

The data is a compilation of various records systems the Sheriff's Office has used over the years, according to Sgt. Benjamin Hess.

Incidents involving use of force deemed out of policy:

  • 2007: 1 (7 incidents recorded for injury)

    This incident was not an allegation of excessive force but was a violation of use of force policy: a deputy pointed a Taser at an inmate

  • 2009: 1 (68 incidents recorded for injury)
  • 2012: 1 (8 incidents recorded for injury)

Loveland Police Department

Injury data was not recorded in an electronic system before 2013, according to Lt. Jan Burreson.

Incidents involing use of force deemed out of policy:

  • 2013: 5

    Only 1 was tied to the use of force itself

  • 2014: 1
  • 2015: 2

    None were tied to the use of force itself

  • 2016: 1

    This incident was not tied to the use of force itself

Lawsuits

Outside of criminal actions brought against police on allegations of excessive force, which are rare, members of the public have another remedy if they feel their rights have been violated: civil lawsuits.

Civil lawsuits brought against Northern Colorado law enforcement agencies show  allegations of excessive force are not new, and agencies spend tens of thousands of dollars fighting them — and in a few cases, ultimately settling them.

For example, in the past decade, Loveland has settled one civil lawsuit alleging excessive use of force. Another was dismissed and yet another is pending. On the criminal side, Sgt. Justin Chase faces charges of misdemeanor assault and harassment related to an incident alleging excessive force. His trial is set to begin on Tuesday.

As of July, the city spent $336,702 on attorney's fees that don't include a $125,000 settlement, according to records from the City Attorney's Office. That's just on cases alleging excessive force, not all city-related or police-related lawsuits.

Fort Collins and the Sheriff's Office also have current pending civil lawsuits against them on allegations of excessive force.

But all three agencies have had more dismissals of excessive force lawsuits than cases they've settled.

Silverstein said the ACLU chapter receives far more reports of police misconduct than it can investigate and litigate, but that doesn't mean the cases aren't there.

In some cases where an internal affairs investigation might have concluded an officer didn't commit an act of wrongdoing, cities will still end up settling for large amounts of money if faced with a civil lawsuit. However, oftentimes cities will include in their settlement agreements that the payment is not an admission of wrongdoing.

"It shouldn't be that citizens need to go to federal district court in order to achieve accountability that ought to be achieved at the police department level," Silverstein said.

A decade of settlements

  • Loveland Police Department:

    - $125,000 to plaintiff Jeremy Myers, in which he alleged his rights were violated from a no-knock search warrant in September 2007 on suspicion of a methamphetamine laboratory. The substance in question turned out to be sugar. The case was settled early this year.

  • Fort Collins Police Services:

    - $18,000 to plaintiff Ernie Savannah, a state prison inmate, who alleged in 2011 excessive force by two officers and their use of a police dog. The case concluded in 2014.

    - $27,000 to plaintiff James Harness, who alleged that officers used excessive force to control him while he was in custody and being booked into jail in 2011.

    - $113,000 to plaintiff Stanley Cropp, who alleged in 2013 that he was unlawfully arrested while walking on a public sidewalk at night in a neighborhood near his home. Cropp faced charges of resisting arrest and obstructing a peace officer, both of which were dimissed.

    - $150,000 to plaintiff Joseph Heneghan, who alleged his rights were violated when an officer entered his residence, pepper-sprayed him in the face and arrested him in 2016.

  • Larimer County Sheriff's Office:

    - $35,000 to plaintiff Bryan Matz, who alleged a civil rights and excessive use of force violation against him by a deputy and employee of Sundance Steakhouse Saloon who were involved in an altercation with another patron. Matz alleges he was wrongfully assaulted and arrested on charges he didn't commit, which were later dismissed.

    - $12,500 to plaintiff Charles Kettering in 2007, who alleged his rights were violated, he was denied adequate medical care and that sheriff's deputies assaulted him while Fort Collins officers watched while he was in jail.

    - $100,000 to Timothy Mathis' estate and $232,497.60 in 120 monthly payments to Mathis's daughter, who alleged excessive use of force when Mathis died after Sheriff's Office deputies shot him with a Taser in 2005.

Community expectations

Although use of force policies have changed over time as policing methods develop nationally and equipment techniques and needs change, the overall gist of those policies has remained constant, said Ertman. And that is using only the amount of force necessary for compliance as well as to protect the officer, members of the public and even the suspect.

“You’re looking for the best possible policy to show your officers and to show your community that you want to protect them, but you also want to stand up for their rights and maintain their rights against unreasonable search and seizure, unreasonable excessive force ...,” he said.

What has changed drastically since he began teaching defensive tactics courses, however, is public perception, Ertman said, which sometimes leads to officer hesitation when it shouldn’t.

“All we want to do is bring control to a situation that’s out of control, and we want to de-escalate every situation we’re involved in; sometimes, de-escalation requires force,” he said.

Fort Collins Police Services Training Officer Jerrod Hardy said both escalation and de-escalation require conscious and controlled responses to a suspect who is resisting police, so the type and amount of force is dependent on the risks and the situation.

Still, winning back public trust will require more from police agencies, Silverstein said, including reviewing best standards for policing and working to better police-community relations to achieve good rapport among communities.

And Hardy recognizes that.

>“Let’s not pretend there’s not an issue. If the community says there’s an issue, let’s talk about it.”

FCPS training officer Jerrod Hardy

That's why, he said, Fort Collins and other Larimer County law enforcement agencies focus on community relationships outside of just policing.

Though Fort Collins residents often back their police, Hardy is also interested in having the difficult discussions about issues surrounding policing nationally, from allegations of systemic racism to excessive force to police feeling attacked.

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Fort Collins Police Department motorcycle officer David Kaes sports a smiley face sticker before leading the parade, Saturday, September 2, 2017, during the Tour de Fat parade in Fort Collins, Colo. (Photo: Timothy Hurst/The Coloradoan)

“Let’s not pretend there’s not an issue,” he said. “If the community says there’s an issue, let’s talk about it.”

He wants Fort Collins to become the model of how to have those discussions and make positive change.

Hardy acknowledged that topics surrounding use of force, especially lethal, are at the front of people’s minds, and the best way to address them is to have those tough discussions and focus more on education.

Also interested in discussion is an interfaith group of religious leaders that has met with Fort Collins Police Services on numerous occasions and hopes to continue doing so after a new police chief is hired.

Rev. Joseph Moore of Buckhorn Presbyterian Church said the group wants to see more than just progressive policies; it wants to see an attitude shift.

“As citizens of the community, we have the right to demand that (incidents) should have been handled differently,” Moore said.

That includes responding differently to suspects with mental health issues, not immediately moving to lethal force when confronted with someone with a knife and publicly admitting when mistakes happen.

Moore recalls a time after a police shooting when he was talking to a former Fort Collins police chief, and the chief didn’t express remorse, but rather stressed the shooting was justified. That did not sit well with the group.

Police consistently say their use of force is relative to the behavior they are presented with, but Moore believes that’s the wrong approach.

“That’s not leadership; that’s a reaction,” he said.

And like Hardy, Moore wants to have the difficult discussions involving racial tensions and policing.

Moore doesn’t believe the issue is with training but instead the policies in place and leadership attitudes.

Moore cited a controversial policing model in San Francisco, California, that aims to reduce police shootings and regain community trust. It includes policy, training and philosophical changes, such as not allowing officers to use force against someone who could hurt him or herself, not using choke holds, not shooting at vehicles and equipping officers with more less-lethal options and body cameras.

Martinez, the former Fort Collins police officer and now a City Council member, echoed the notion that there needs to be an attitude shift.

“It’s a little unsettling with me that I know we’re supposed to shoot to kill. That’s what they tell us, but maybe that’s not the right message,” he said.

But Ertman said officers employ de-escalation in every situation, regardless of the type of calls to which they’re responding. Police are de-escalating situations even in instances that just involve a person who is upset. And they're de-escalating after use of force is used and a suspect complies.

"Some people look from the outside and think use of force is a very small piece of our job, our education, our training, and I would say quite to the contrary, that use of force is the biggest part of what we do; it is the most training that we do," he said.

More:How Northern Colorado police train on use of force

Reporter Saja Hindi covers public safety and local politics. You can follow her on Twitter @BySajaHindi or email her at shindi@coloradoan.com.

 

 

 

Source : http://www.coloradoan.com/story/news/2017/11/10/police-use-force-balancing-act-northern-colorado-law-enforcement/821541001/

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