After 2019 legislation made police internal affairs investigations public, the Coloradoan investigated how Larimer County agencies are complying.
A police accountability law passed in 2019 was lauded for making Colorado law enforcement agencies’ internal affairs investigation reports public for the first time.
However, a Coloradoan investigation found that loopholes and specific language in the law render an unknown number of these reports inaccessible to much of the general public, the media and government watchdogs seeking to learn how Colorado’s police are policing themselves.
Colorado Gov. Jared Polis’ signature put the law into effect on April 12, 2019, making agencies’ completed internal affairs investigation reports a matter of public record. However, a request for any such report must identify a specific incident of alleged misconduct by an on-duty officer involving a member of the public. If a request is missing an element such as the name of the officer or involved party, the department holding the record can deny the request.
In effect, departments can withhold completed internal affairs reports simply because the public doesn’t know whether they exist in the first place.
When Coloradoan journalists requested internal affairs reports completed by Fort Collins Police Services, Loveland Police Department and Larimer County Sheriff’s Office since the bill’s passage through Jan. 8, 2020, each request was denied. The law-enforcement agencies cited either a lack of specificity or loopholes created by specific language in the bill as reason for denial.
“That is the plain language of the bill, and there is some room for interpretation,” media attorney Steve Zansberg said. “If there’s an air of ambiguity, it gives rise to police departments and sheriff’s offices construing (the law) in ways that were not intended.”
The law also doesn’t specify a time frame in which successfully requested records must be made public.
The Coloradoan’s January request for internal affairs investigation records completed by the Loveland Police Department resulted in five months of deliberation, multiple denials and a cost estimate topping $2,000. Loveland declined to release records responsive to the Coloradoan’s request until receiving a letter from Zansberg, representing the news organization, that raised concerns about how members of the public would be able to obtain the documents without substantial resources.
While sponsors of the law say the it hasn’t been in effect long enough to see its benefits — and add that the state’s newly passed police accountability bill will strengthen police transparency measures already in place — there’s no existing remedy to prevent Colorado’s law-enforcement agencies from continuing to shield an untold number of their internal affairs investigations from public scrutiny.
How Northern Colorado agencies apply the law
Northern Colorado law enforcement agencies cited several reasons when denying requests completed internal investigations reports. Most denial letters received by the Coloradoan cite case law prior to 2019 that allows departments to complete a “balancing test” to deny the release of any record they feel would be “contrary to the public interest.”
Among the requests denied under that argument:
When requests for internal affairs reports were modified to cite specific incidents, most records have still not been released as police said investigations were either ongoing or didn’t fall under the scope of the new law.
Larimer County Sheriff Justin Smith said he was happy with the final version of this bill, which he said balances the need for privacy for the officers and victims involved in an incident and the public’s desire for transparency.
“The point to this I think was transparency for the community,” Smith said. “If they filed a complaint, they could see the report.”
Smith said he had initial concerns about being forced to release private, personnel information about their employees under this new legislation and that releasing internal investigation files would interfere with ongoing criminal investigations.
“I think we got down to the parts that are appropriate for public release,” Smith said. “In the end, the bill certainly ended up, we believe, a lot better than it started.”
There are specific details someone has to include in an internal investigation report request for it to fall under this legislation, including the name of a specific officer and incident. Smith said that while the sheriff’s office has received a few blanket requests for an unspecified internal investigation report, the specific language of the bill has “clarified this wasn’t a fishing expedition.”
In February, the Coloradoan requested internal affairs reports from the sheriff’s office: one regarding a Nov. 24, 2019, police shooting and another involving allegations of misconduct made against deputies who were booking an inmate into the county jail on Feb. 4, 2020. The Coloradoan received the 16-page report on the alleged misconduct of jail deputies Aug. 3, which cleared all deputies involved of any misconduct.
Loveland police denied the Coloradoan’s request made in February for internal affairs reports relating to three separate police shootings that occurred after the new law went into effect — the only incidents known to the Coloradoan at that time that named a specific officer engaged in a specific incident with a member of the public.
In its denial, Loveland Police Department said internal reports on the shootings did not fall under the purview of the new law because there was no “alleged misconduct” on the part of the officers involved. All were cleared of criminal wrongdoing by District Attorney Cliff Riedel.
DA clears all officers: Larimer County district attorney clears all officers in November 2019 police shootings
Several months after the Coloradoan’s initial request, Wheeler explained that Loveland does not always perform an internal investigation when officers fire their weapons. Instead, she reviews the report completed by the Critical Incident Response Team, a multiagency group charged with investigating officer conduct for criminal wrongdoing when a death or serious injury is involved.
Wheeler said she reviews the CIRT report for internal policy violations. She sends her summary to Chief Robert Ticer, who then decides whether she should conduct an independent internal investigation. The summary report she sends to Ticer is not considered an internal affairs record and is not subject to release under the new law because it’s not part of a formal investigation, Wheeler said.
“Just because we have a CIRT (investigation) doesn’t mean there’s an allegation of misconduct,” Wheeler said.
In 2019, Wheeler said she reviewed 28 external misconduct complaints involving Loveland officers. Of those, four were found to be in violation of department policy.
“I think we have a pretty good relationship with our public,” Wheeler said. “Ultimately, I think people know if they contact us then we’ll give them our attention and we’ll get to the bottom of whatever happened.”
After five months of communication with the Coloradoan, Loveland police released Wheeler’s summaries of the three shootings in question, which she said she created by reviewing the case reports and CIRT investigation reports. All policy violations mentioned were redacted from the documents. Only after the department received a letter from an attorney representing the Coloradoan did it release the documents without redaction.
The unredacted reports listed minor policy violations in two of the three cases. Wheeler said in those reports that the policy violations did not warrant separate internal investigations.
The Larimer County Sheriff’s Office’s Professional Standards division handles all formal complaints against agency employees, and there are multiple levels to which a complaint or allegation can be assigned. That assignment designates who in the agency will lead the internal investigation, and the final report is sent to the sheriff and division commander for review.
“Nine times out of 10, most people will call in on the comment line unhappy about what a deputy did, and if it’s something a supervisor can handle,” it won’t rise to a full-scale internal investigation, said Sgt. Matt Cherry, who works in the Professional Standards Division.
Cherry said the sheriff’s office would, as the law states, release completed internal affairs reports, but not information about a complaint that was sent straight to a supervisor, which might not even be formally recorded by the Professional Standards division.
Coloradoan editorial: Colorado’s police agencies should make all IA reports public
Both Cherry and Volesky said their department’s policy is to review cases undergoing CIRT investigations concurrently but separately from that body, unlike Loveland police.
Law enforcement officers in Larimer County have shot at civilians four times since the law changed to require completed internal investigation be public. Three shootings involved Loveland police, and internal reviews of the CIRT investigation file found minimal policy issues in two of the shootings, according to documents released to the Coloradoan. Those issues did not affect the outcome of the incidents, according to the reviews. In the third incident, no policy violations were uncovered in the review of the CIRT investigation.
The fourth shooting involved Larimer County Sheriff’s Office deputies in November 2019. The internal affairs report, obtained by the Coloradoan Sept. 18, concluded that the deputy involved followed policy.
A ‘groundbreaking change’ with some loopholes
Colorado joined at least a dozen other states in making police internal affairs reports public when the 2019 bill became law. But it wasn’t as far-reaching as some supporters had wanted — and it wasn’t intended to be, one of its legislative sponsors said.
On Feb. 19, 2016, Darsean Kelley was stopped by Aurora police officers who were responding to a suspected crime in the area. While detaining Kelley, officers deployed a Taser on his back. The American Civil Liberties Union successfully defended Kelley, the criminal case against him was dismissed, and the police department paid a $110,000 settlement to Kelley in June 2017.
But initial attempts to get the results of the Aurora Police Department’s internal investigation of the officers involved revealed to the public — even to Kelley and his family — were stonewalled by the agency.
Kelley, 26, is currently jailed without bond on suspicion of fatally stabbing his sister, Marnee Kelley-Mills, earlier this year. His mother told the Denver CBS station that her son suffers from schizophrenia and managing his condition proved impossible.
Colorado Rep. James Coleman, D-Denver and one of the sponsors of the bill, said citizens like Kelley and his family who are involved in police use of force investigations should be able to find out how the department investigated and disciplined any officers involved — especially when taxpayer funds are being used to pay settlements. Before the bill’s passage, he said, that wasn’t happening.
“If a case is closed and there’s no ongoing (criminal) investigation, and you have been found to have participated in misconduct on your job, we want to find out how to prevent that in the future,” Coleman said.
Coleman said the purpose of this bill was to shed light on specific incidents of misconduct, not general issues within a department.
“This wasn’t about speculation,” Coleman said. “We’re not trying to ‘gotcha.’ We support our law enforcement for the good work that they do.”
Coleman said his intention with the bill was to see how agencies are policing themselves when there is an allegation of misconduct, whether misconduct is found, whether a settlement is reached or what any criminal investigation reveals.
“We also take serious even allegations of misconduct,” Coleman said.
But the law’s language remains open to interpretation. Colorado Freedom of Information Center Executive Director Jeff Roberts said Loveland police’s response to the Coloradoan’s request indicated that the department does not consider a review of a CIRT investigation to be an internal investigation, so any documents involved in that review leading to the summary sent to the chief are not deemed releasable.
“We might be able to classify this as a loophole in the law,” Roberts said.
While Roberts called the law change “groundbreaking,” he admits there are inconsistencies in its application across the state.
In looking at Loveland’s response to the Coloradoan’s requests, Roberts said he hadn’t heard of another agency making similar claims about review of employee conduct involving the public being exempt from the law.
“Whenever there is an internal affairs investigation that involves an officer’s on-duty interaction with the public, like an officer-involved shooting, that new law should apply,” Roberts said.
The Denver Police Department, on the other hand, has been releasing summaries of its internal investigation reports to the public for several years, Roberts said, which is something he’d like to see other agencies adopt.
“Denver doesn’t view it as a fishing expedition, they view it as something the public ought to know about,” Roberts said.
Coleman said a database detailing officers’ prior misconduct will help identify officers who need additional intervention or “who shouldn’t be on the force.”
With the recent police accountability bill, Zansberg is not sure when the time will come to expand upon this legislation, though he doesn’t think Coloradans will lose interest in police accountability efforts anytime soon.
“There’s certainly room for improvement,” he said.
Internal investigations per agency in 2019
Fort Collins Police Services
Larimer County Sheriff’s Office
Loveland Police Department
How a complaint is handled
Every law enforcement agency has a slightly different procedure for when a resident files a complaint with a police department of sheriff’s office. Here’s how the process generally works for Northern Colorado’s agencies:
Internal investigations are handled separate from any criminal investigation that might occur, like when an officer is involved in a shooting.
How to file an open records request
Records maintained by Colorado’s government agencies are available for anyone in the public to request, with some limitations, under the Colorado Open Records Act. Law enforcement agencies are allowed additional discretion under the Colorado Criminal Justice Records Act.
Anyone can request public records from a government agency. Here are some tips from the Colorado Freedom of Information Coalition on how to get the public records you’re looking for:
Sady Swanson covers crime, courts, public safety and more throughout Northern Colorado. You can send your story ideas to her at firstname.lastname@example.org or on Twitter at @sadyswan. Support our work and local journalism with a digital subscription at Coloradoan.com/subscribe.
This content was originally published here.