Investigating Police: Systemic Injustice Shields Officers from Accountability Kendall Godley1 Introduction Colorado Springs police officers Alan Van’t Land and Blake Evenson shot and killed De’Von Bailey.2 A grand jury decided that no criminal charges would be filed against Van’t Land and Evenson.3 Tulsa Betty Shelby shot and killed Terence Crutcher. A jury acquitted Shelby of all charges. St. Anthony (MN) police officer Jeronimo Yanez shot and killed Philando Castile.4 A jury acquitted Yanez of all charges.5 University of Cincinnati police officer Ray Tensing shot and killed Samuel Dubose. A Cincinnati judge dropped all charges6 and awarded Tensing nearly $350,000 in compensation for unfair dismissal by his employer.7 What common thread allows these individuals to kill other citizens with impunity and sometimes even reward? They were all police officers. Recently, kneeled on ’s neck until Floyd lost his life.8 Will Chauvin face criminal liability for his pernicious

1 Kendall Godley is an Associate Editor for the Denver Law Review and a J.D. Candidate at the University of Denver, expected to graduate in May 2021. 2 Krystal Story & Andrew McMillan, What’s Happened since Devon Bailey was Killed by two CSPD Officers, KRDO (Aug. 3, 2020, 1:32 PM), https://krdo.com/news/2020/08/03/whats-happened-since-devon-bailey-was-killed-by- two-cspd-officers/. 3 Id. 4 Mitch Smith, Minnesota Officer Acquitted in Killing of Philando Castile, THE NEW YORK TIMES (June 16, 2017), https://www.nytimes.com/2017/06/16/us/police-shooting- trial-philando-castile.html. 5 Id. 6 Judge dismisses charges against Ray Tensing at Monday morning hearing, WCPO 9 CINCINNATI (July 24, 2017, 6:24 AM), https://www.wcpo.com/news/local- news/hamilton-county/cincinnati/downtown/judge-to-dismiss-charges-against-ray-tensing- at-monday-morning-hearing. 7 University of Cincinnati Paying Ray Tensing More than $300K in Back Pay, Legal Fees, WCPO 9 CINCINNATI (Mar. 22, 2018, 4:12 PM), https://www.wcpo.com/news/local-news/hamilton-county/cincinnati/university-of- cincinnati-paying-ray-tensing-more-than-300k-in-back-pay-legal-fees. 8 Evan Hill, Ainara Tiefenthaler, Christiaan Triebert, Drew Jordan, Haley Willis & Robin Stein, How George Floyd Was Killed in Police Custody, THE NEW YORK TIMES: VISUAL INVESTIGATIONS (Last updated Nov. 5, 2020), https://www.nytimes.com/2020/05/31/us/george-floyd-investigation.html. 2 Denver Law Review Forum [25-Feb-2021]

crime against humanity, or will he be the next in a long line of bad actors to elude justice because they wear a badge?9

The United States has a disturbing history of police violence against citizens.10 Admittedly, police have a dangerous and challenging job regulating public safety and deterring criminal activity. However, the lack of criminal or civil liability for officers’ unnecessary has led to a lack of accountability for police officers and a decreased public trust in law enforcement. Several high-profile cases, viral police body-cam footage, and persistent protests have opened the public’s eyes to the horrifying reality that a family member could be the victim of a tragic misunderstanding or even a sinister hate crime because Black people are disproportionately affected by police officers’ abuse of power. The fear of abusive policing practices is legitimate and presents a significant challenge for local governments looking to restore public trust in law enforcement.

Several events in 2020 pushed this conversation to a tipping point. (BLM) protests exploded in popularity and active participation across the world.11 Peaceful protests organized by BLM and other activist groups increased public awareness and pressure on local governments to acknowledge and address . Mass protests and support for advocacy groups generated the necessary momentum for bold policy proposals that dismantle the processes enabling police brutality.

This Article argues that independent investigations of officer- involved shootings must be mandatory to protect citizens—especially Black citizens—from unlawful use of lethal force, to rebuild public trust in law enforcement, and to increase accountability for unjust law enforcement practices. Officers are afforded significant protections from criminal prosecution because the investigation process for an “officer-involved- shooting” is inherently biased and it is difficult to establish the elements for criminal misconduct in a case involving an officer-involved shooting. This Article examines the former of these two issues—the current procedures in

9 As of date of publication, Derek Chauvin had not yet been tried. 10 The History of American Police Brutality, THE NATIONAL TRIAL LAWYERS BLOG (July 27, 2020), https://thenationaltriallawyers.org/2020/07/the-history-of-american-police- brutality/. 11 Protests across the globe after George Floyd’s death, CNN WORLD (Last updated June 13, 2020, 3:22 PM), cnn.com/2020/06/06/world/gallery/intl-george-floyd- protests/index.html.

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place for officer-involved-shootings— critiques these procedures, and suggests a better alternative, independent investigations.

This Article proceeds in three parts. Part I provides background on the legal concepts governing police use of lethal force, examines the impact of these legal concepts on Black citizens, explains the process of the investigation into De’Von Bailey’s shooting, and outlines the current local policy for investigating officer-involved shootings. Part II provides an in- depth analysis of the current policies governing investigations of officer- involved shootings, points out their weaknesses, introduces the concept of independent investigations, and details the benefits of utilizing independent investigations. Part III recommends a new procedure that would yield improved results. Part I: Background 1. Police Use of Lethal Force

a. Legal Standard There are two major barriers to prosecuting police use of lethal force: (1) the legal standard for holding a police officer criminally liable for a lethal shooting and (2) local control of investigation procedures.12 The Court has struggled to develop concrete black-letter-law determining when to hold a police officer criminally liable for the use of lethal force.13 The Fourth Amendment of the Constitution limits police use of force by providing citizens’ the right to be secure against “unreasonable” seizures.14 The Supreme Court has largely refrained from providing a specific definition for “unreasonable,” so this limitation remains relatively indeterminate and ambiguous.15 However, two landmark Supreme Court cases delineate the interpretation of the Fourth Amendment and how it

12 Mitchell F. Crusto, Right to Life: Interest-Convergence Policing, 71 RUTGERS UNIV. L. REV. 63, 78 (2018). 13 Id. at 79. 14 Daniel B. Loehr, Lethal Force at Home and Abroad, 42 N.Y.U. REV. L. & SOC. CHANGE 495, 502 (2018). (Excessive force claims can also be brought under the Eighth and Fourteenth Amendment when they relate to force used against prisoners. See Shand v. Chapdelaine, No. 3:17-cv-1947, 2018 WL 279980 (D. Conn. Jan. 3, 2018) (citing Sims v. Artuz, 230 F.3d 14, 20–21 (2d Cir. 2000)). 15 Id.

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applies to cases where police are accused of excessive force: Tennessee v. Garner and Graham v. Connor.16 b. Tennessee v. Garner In 1985, the Court in Tennessee v. Garner defined and clarified rules for police use of lethal force.17 In Garner, the question before the Court was whether it is constitutional to use deadly force to prevent the escape of an unarmed suspect.18

Late in the evening on October 3, 1974, Memphis police officers Elton Hymon and Leslie Wright received a report concerning a burglar in someone’s home.19 Upon arriving at the scene, they met a bystander who told them she heard glass shattering and she believed someone was breaking into the home next door.20 Officer Hymon searched behind the house and saw someone run across the backyard.21 The fleeing suspect, Edward Garner, stopped after running toward a chain-link fence at the edge of the yard.22 Officer Hymon shined his flashlight on Garner and, after a brief inspection, determined that Garner was unarmed.23 While Garner crouched against the fence, Officer Hymon demanded that he stop moving.24 In response to the command, Garner attempted to flee by climbing the fence.25 Officer Hymon, believing that Garner would escape if he climbed the fence, shot Garner in the back of the head.26 Garner died in the hospital; the police found only ten dollars and a purse in his possession.27

Officer Hymon’s actions were deemed permissible under Tennessee law; the Memphis Police Firearm’s Review Board and a grand jury reviewed the incident—neither took any action.28 Edward Garner’s father brought an action against Officer Hymon, the Memphis Police Department

16 Tennessee v. Garner, 471 U.S. 1 (1985); Graham v. Connor, 490 U.S. 386 (1989). 17 Daniel B. Loehr, Lethal Force at Home and Abroad, 42 N.Y.U. REV. L. & SOC. CHANGE 495, 502 (2018). 18 Garner, 471 U.S. at 1. 19 Id. at 3. 20 Id. 21 Id. 22 Id. 23 Id. 24 Id. at 4. 25 Id. 26 Id. 27 Id. 28 Id. at 5.

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and its director, and the mayor and city of Memphis, seeking damages under 42 U.S.C. § 1983 claiming that the shooting violated the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments of the Constitution.29

The district court and the court of appeals found that Officer Hymon’s actions were authorized under a constitutional Tennessee statute because he acted in good-faith reliance on the statute, which meant his actions were protected by .30 However, the court remanded the case on the issue of liability against the city of Memphis because the Tennessee statute did not adequately account for the Fourth Amendment’s authority over incidents involving a “seizure.”31

The U.S. Supreme Court heard this case on appeal by the state of Tennessee to determine the constitutionality of the statute.32 The Court in Garner held a police officer may not use lethal force against a fleeing suspected felon unless “it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.”33 Per the holding in Garner, the legal standard requires that police officers issue a warning when feasible to a fleeing suspected felon.34 c. Graham v. Connor In 1989, the Court in Graham v. Connor created a standard for all use of force cases, not just the lethal force against a fleeing suspect addressed by Garner.35 In Graham, the Court considered which constitutional standard governs a free citizen’s claim that law enforcement officials used excessive force against them while making an arrest, investigatory stop, or other

29 Id. 30 Id. 31 Id. at 6. 32 Id. at 7. 33 Loehr, supra note 14, at 502. 34 Id. 35 Id.

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“seizure” of his person.36 In this case, Dethrone Graham, sought damages for the injuries he sustained during an investigatory stop.37 On November 12, 1984, police officers injured Graham during an investigatory stop.38 Graham had diabetes, and in an attempt to avoid insulin shock, he asked his friend William Berry to take him to a nearby convenience store to get some orange juice.39 Once he entered the store, Graham saw a long line of patrons waiting to checkout.40 Due to the urgency of his medical situation, he quickly left the store and asked Berry to drive him to a friend’s house to address his health concern in a timely fashion.41 Officer Connor of the Charlotte Police Department observed Graham’s quick entrance and exit from the store and became suspicious.42 In an attempt to quell his suspicions about Graham’s actions, Officer Connor followed Berry’s vehicle, pulled him over, and conducted an investigative stop.43 Officer Connor demanded that Berry and Graham wait in the vehicle while he determined what happened at the convenience store that made Graham’s errand so brief.44 When Officer Connor called for back-up from his patrol vehicle, Graham exited the car, ran around it twice, sat on the curb, and then passed out briefly.45 In response to Officer Connor’s call, several backup officers arrived at the scene.46 Upon arrival, these officers rolled Graham, who was already passed out, onto his back and handcuffed him while Berry begged the officers to give his ailing friend sugar.47 In response, one of the officers said, “I’ve seen a lot of people with sugar diabetes that never acted like this. Ain’t nothing wrong with the M.F. but drunk. Lock the S.B. up.”48 The

36 Graham v. Connor, 490 U.S. 386, 388 (1989) (The fourth amendment protects individuals’ regardless of citizenship. However, the word “free” is used here to delineate between imprisoned and free individuals). 37 Id. 38 Id. 39 Id. 40 Id. 41 Id. at 389. 42 Id. 43 Id. 44 Id. 45 Id. 46 Id. 47 Id. 48 Id.

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officers then proceeded to lift Graham, carried him to Berry’s car, and placed him face down on the hood of the car.49 When Graham regained consciousness, he requested that the officers search his wallet for a diabetic decal that he carried with him at all times.50 In response to Graham’s request, one officer told him to “shut up,” and slammed his face on the hood of the car.51 The four officers threw him headfirst into a police vehicle.52 A friend of Graham’s brought orange juice to the car, in an effort to help Graham, but the officers refused to let him have it.53 After Officer Connor received confirmation Graham was not suspected of any criminality at the convenience store, the officers drove him home and released him.54 Graham sustained the following injuries from the officers’ actions: a broken foot, cuts on his wrists, a bruised forehead, and an injured shoulder.55 Graham also claimed that he developed a loud ringing in his right ear that persisted long after the incident.56 Graham alleged officers violated his rights afforded to him by the Fourth Amendment and 42 U.S.C. § 1983.57 To determine the 1983 claim, the district court considered the four-part test from Johnson v. Glick: (1) the need for the application of force; (2) the relationship between that need and the amount of force that was used; (3) the extent of the injury inflicted; and (4) whether the force was applied in a good faith effort to maintain and restore discipline or maliciously and sadistically.58 The district court found that the amount of force used by the officers was appropriate under the circumstances, that the force inflicted no discernable injury, and that the excessive force was used in a good faith effort to maintain order during a dangerous situation.59

49 Id. 50 Id. 51 Id. 52 Id. 53 Id. 54 Id. 55 Id. at 390. 56 Id. 57 Id. 58 Id. 59 Id.

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The Court of Appeals for the Fourth Circuit affirmed this decision.60 One of the dissenting judges argued that the Supreme Court’s decisions in Terry v. Ohio and Tennessee v. Garner required that excessive force claims be analyzed under the Fourth Amendment’s “objective reasonableness” standard.61 This standard involves two inquiries: (1) whether the officer's action was justified at its inception, and (2) whether it was reasonably related in scope to the circumstances which justified the interference in the first place.62 The circuit judge found the police acted reasonably in making an investigative stop, but there was a clear question for the jury about whether the stop was carried out in a reasonable manner.63 Upon granting certiorari, the Supreme Court evaluated whether the Johnson v. Glick “substantive due process” test is the proper test for excessive use of force by government officials.64 The Supreme Court concluded that the circuit court applied this standard indiscriminately to all excessive force claims without considering whether the claim should be governed by a specific constitutional right and, thus, an alternative standard.65 The Court held that in most instances, excessive use of force by police would involve a violation of the Fourth Amendment’s prohibition against unreasonable seizures of the person, or a violation of the Eighth Amendment ban on cruel and unusual punishments.66 In this decision, the Supreme Court explicitly held what Garner only implied: all claims alleging that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other “seizure” of a free citizen should be analyzed under the Fourth Amendment and its “reasonableness” standard rather than under a “substantive due process” approach.67 However, the Court also noted that Fourth Amendment case law recognizes the officers’ authority to use some level of physical coercion to effectuate an arrest. For future cases, the “reasonableness” of a particular use of force by a police officer was to be

60 Id. at 391 (the majority endorsed the four-factor test used by the district court as generally applicable to all claims of “constitutionally excessive force” against government officials). 61 Id. at 392; see generally Terry v. Ohio, 392 U.S. 1 (1968); Tennessee v. Garner, 471 U.S. 1 (1985). 62 Graham v. City of Charlotte, 827 F.2d 945, 950-52 (4th Cir. 1987). 63 Id. 64 Graham, 490 U.S. at 392. 65 Id. 66 Id. at 394. 67 Id. at 395.

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evaluated from the perspective of a reasonable officer on the scene rather than with the benefit of applying hindsight to the incident.68 The objective reasonableness standard considers the totality of the circumstances.69 In applying this standard, the Court stated that an officer with “evil intentions” would not be found to have violated the Fourth Amendment if the excessive force could qualify as objectively reasonable.70 Essentially, this holding eliminated the examination of an officer’s good faith efforts or malicious intent from consideration when analyzing investigatory stops.71 As a result, the courts are now to consider the following relevant factors: the severity of the crime at issue; whether the suspect poses an immediate threat to the safety of the officers or others; and whether they are actively resisting arrest or attempting to evade arrest by flight.72 This shift undercut Garner by reducing the emphasis on the danger presented by the suspect, relegating it to a non-dispositive factor to be balanced, among other considerations.73 In Graham, the Court established a legal standard that weighs in favor of the police at the expense of the people.74 d. Impact of Precedent on the Treatment of Black Citizens On August 24, 2019, three Aurora police officers wrestled Elijah McClain to the ground and applied a “carotid control hold” to his neck even though he presented no danger and did not commit any crime.75 During the altercation, McClain was handcuffed and vomited multiple times; on the way to the hospital, he suffered cardiac arrest and was declared brain dead three days later.76 Shortly after midnight on March 13, 2020, Louisville police officers, executing a “no-knock” search warrant, broke into Breonna

68 Id. at 396. 69 Loehr, supra note 14, at 502. 70 See Connor, 490 U.S. at 397. 71 Id. 72 Loehr, supra note 14, at 503. 73 Id. 74 Mitchell F. Crusto, Right to Life: Interest-Convergence Policing, 71 RUTGERS UNIV. L. REV. 63, 80 (2018). 75 Kevin Beaty & Ana Campbell, Rally in Memory of Elijah McClain Shows Police Brutality Protests are Moving Closer to Home, DENVERITE (Jun. 06, 2020, 8:15 PM), https://denverite.com/2020/06/06/rally-in-memory-of-elijah-mcclain-shows-metro-police- brutality-protests-are-moving-closer-to-home-george-floyd/. 76 Id.

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Taylor’s apartment with a battering ram.77 After entering unannounced, the officers shot Taylor five times.78 On May 25, 2020, a police officer with a history of abusing power, Derek Chauvin, pinned George Floyd, an unarmed Black man, to the ground and kept his knee on Floyd’s neck for eight minutes and forty-six seconds.79 Chauvin intentionally pressed his knee into Floyd’s neck even after Floyd lost consciousness. Why is there no liability or accountability when police beat and kill men and women—especially Black men and women—with impunity? How could the lives of Oscar Grant, Michael Brown, Charleena Lyles, Stephon Clark, Tamir Rice, and many others be cut short by people who are employed to protect their lives, without any acceptable justification? Most of this discretional authority is a direct result of the Graham v. Connor opinion.80 According to Graham, courts are to evaluate all claims of police violence, deadly or otherwise, under the Fourth Amendment to the U.S. Constitution, which prohibits unreasonable searches and seizures.81 When the Supreme Court ruled that the intent of an officer had no bearing on the analysis of an excessive use of force claim,82 it opened the door for abuse of police discretion in investigatory stops. UCLA Law Professor Devon Carbado concluded that, “the Supreme Court has interpreted the Fourth Amendment to protect police officers, not [B]lack people,” and NPR journalist Kelly McEvers noted, “cops view Graham as journalists see the First Amendment.”83 These quotes attest to the constitutional protections provided to police officers when they abuse citizens.

77Richard A. Oppel Jr., Derrick Bryson Taylor & Nicholas Bogel-Burroughs, What to Know About Breonna Taylor’s Death, THE NEW YORK TIMES (Jan. 6, 2021), https://www.nytimes.com/article/breonna-taylor-police.html. 78 Id. 79 Evan Hill, Ainara Tiefenthäler, Christiaan Triebert, Drew Jordan, Haley Willis, & Robin Stein, How George Floyd Was Killed in Police Custody, THE NEW YORK TIMES, https://www.nytimes.com/2020/05/31/us/george-floyd-investigation.html (last updated Aug. 13, 2020). 80 Michael Banerjee, Police Violence Against Civilians 30 Years after Graham v. Connor Charlotte Court Case on use of Force Still Relevant, THE CHARLOTTE POST (May 15, 2019, 1:10 PM), http://www.thecharlottepost.com/news/2019/05/15/opinion/police- violence-against-civilians-30-years-after-graham-v.-connor/. 81 Id. 82 Graham v. Connor, 490 U.S. 386, 397 (1989). 83 Banerjee, supra note 80. See also Devon W. Carbado, Blue-on-Black Violence: A Provisional Model of Some of the Causes, 104 GEO. L. J. 1479, 1505 (2016); Mr. Graham and the Reasonable Man, MORE PERFECT, Season 3 (Nov. 30, 2017), https://www.wnycstudios.org/podcasts/radiolabmoreperfect/episodes/mr-graham-and- reasonable-man.

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The United States consistently registers high levels of police violence. On average, police officers kill an estimated 1,000 people and wound more than 50,000 people each year.84 Further, in 2017, at least 987 people were shot and killed by law enforcement officers, more than 300 of whom were fleeing from officers when they were shot.85 Even though there are approximately 1,000 lethal police shootings per year in the United States, only 80 officers were arrested between 2005 and April 2017 on murder or manslaughter charges for on-duty shootings.86 When placed in a global context, the rate of police shootings in the United States is dramatically higher than other developed countries.87 For example, one study indicated the United States has an average of 3.11 police killings per million persons; in contrast, Australia, the developed country with the next highest number of police killings, has only .21 police killings per million persons.88 This epidemic of violence has consistently gone uninhibited, due to the holding in Graham. The police violence implicitly authorized by the Supreme Court thirty years ago in Graham has harmed thousands of U.S. citizens. However, these effects are disproportionately detrimental to Black men and women.89 Since this decision, Black communities have been plagued by strikingly frequent and extremely violent interactions with those tasked with promoting their safety. A recent study found that Black men and women face a higher lifetime risk of being killed by police than white men and

84 Pagan Kennedy, Why are Police Officers More Dangerous Than Airplanes?, NEW YORK TIMES (Aug. 11, 2017), https://www.nytimes.com/2017/08/11/opinion/sunday/traffic-stop-police-accident.html. 85 John Sullivan, Zane Anthony, Julie Tate & Jennifer Jenkins, Nationwide, Police Shot and Killed Nearly 1,000 People in 2017, THE WASHINGTON POST (Jan. 6, 2018, 6:43 PM), https://www.washingtonpost.com/investigations/nationwide-police-shot-and-killed- nearly-1000-people-in-2017/2018/01/04/4eed5f34-e4e9-11e7-ab50- 621fe0588340_story.html. 86 Madison Parks, Police shootings: Trials, Convictions are Rare for Officers, CNN (last updated Oct. 3, 2018), https://www.cnn.com/2017/05/18/us/police-involved-shooting- cases/index.html. 87 Developed meaning that the country has a relatively mature, sophisticated, and high- performing economy when measured by gross domestic product and average income per resident. Developed County, BDC, https://www.bdc.ca/en/articles-tools/entrepreneur- toolkit/templates-business-guides/glossary/developed-country. 88 Kuang Keng Kuek Ser, When it Comes to Police shootings, the US doesn’t Look like a Developed Nation, PRI: JUSTICE (July 12, 2019, 11:00 AM), https://www.pri.org/stories/2016-07-12/when-it-comes-police-shootings-us-doesnt-look- developed-nation. 89 Banerjee, supra note 80.

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women.90 Despite representing only about thirteen percent of the total U.S. population, Black Americans were the victims of twenty-six percent of all police shootings in 2015, twenty-four percent in 2016, and twenty-three percent in 2017.91 These disparate results are even more jarring when considering police killings of young Black men. In 2015, Black men between the ages of fifteen and thirty-four only made up two percent of the total U.S. population, however, they comprised more than fifteen percent of all deaths related to police use of deadly force—a rate five times higher than that of their white male counterparts.92 When analyzed from official government mortality data, these statistics indicate that roughly one in every sixty-five deaths of a young Black man in the United States is due to death caused by the police.93 Despite several high-profile cases and with video evidence, police officers are rarely convicted, indicted, or even charged for shooting and killing Black men.94 In fifteen separate cases of police killings of unarmed Black men from 2014 to 2016, only three officers were criminally convicted.95 Seven of these officers who killed an unarmed Black man were never even charged.96 The impact of unfettered abuse of police discretion against Black men and women in the United States is a globally recognized problem. The United Nations Human Rights Committee announced its concerns relating to excessive use of force in Chicago and called for comprehensive reform.97

90 Frank Edwards, Hedwig Lee, & Michael Esposito, Risks of being killed by police use of force in the United States by age, race–ethnicity, and sex, 116.34 PNAS 16793, 16794 (July 2019). 91 See Fatal Force: 2016, THE WASHINGTON POST (last visited Feb. 21, 2021), https://www.washingtonpost.com/graphics/national/police-shootings-2016/; see also Fatal Force: 2015, THE WASHINGTON POST (last visited Feb. 21, 2021), https://www.washingtonpost.com/graphics/investigations/police-shootings-database/. 92 Jon Swaine, Oliver Laughland, Jamiles Lartey & Ciara McCarthy, Young Black Men killed by US Police at Highest Rate in Year of 1,134 deaths, THE GUARDIAN (Dec. 31, 2015, 1:00 PM), https://www.theguardian.com/us-news/2015/dec/31/the-counted-police- killings-2015-young-black-men. 93 Id. 94 Marcus R. Nemeth, How Was That Reasonable? The Misguided Development of Qualified Immunity And Excessive Force By Law Enforcement Officers, 60 B.C. L. REV. 989, 990 (2019). 95 Id. 96 Id. 97 INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, HUMAN RIGHTS COMM., CONCLUDING OBSERVATIONS ON THE FOURTH PERIODIC REPORT OF THE UNITED

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The Committee on the Elimination of Racial Discrimination expressed outrage about police brutality and excessive force against Black men and women.98 The United Nations’ Working Group of Experts on People of African Descent has likewise expressed concern over “alarming” levels of police brutality and excessive use of force by law enforcement officials.99 Fueled by judicial authorization, this national epidemic has impacted many communities, and Colorado’s localities are no exception. 2. De’Von Bailey De’Von Bailey was a 19-year-old-boy from Colorado Springs. On August 3, 2019, two Colorado Springs police officers killed him when they shot him four times, three times in the back, and once in the arm.100 The officers were investigating a report of an armed robbery when they stopped Bailey.101 Bodycam footage from the Colorado Springs Police Department shows that Bailey was fleeing from the officers when they discharged their

STATES OF AMERICA, at p. 11 (Apr. 23, 2014), available at: https://digitallibrary.un.org/record/771176?ln=en#record-files-collapse-header. 98 INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION, COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION, CONCLUDING OBSERVATIONS ON THE COMBINED SEVENTH TO NINTH PERIODIC REPORTS OF THE UNITED STATES OF AMERICA, at p. 17 (Sept. 25, 2014), available at: https://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2FPPRiCAqh Kb7yhspzOl9YwTXeABruAM8pBAK1Q%2FDZ6XAqlyobgts1zwlHPkQhsSqMrVxuS6b rQbHYpDYGXBUCX1bgRtTg3HaweAr5PBs9soaesD5KdByekI9OS. On border violence and cross-border use of force; see also Camille Mott, A Supreme Court Conundrum: A Federal Agent Standing on U.S. Soil Shot and Killed Someone Across the Border in Mexico. Was the Shooting Unconstitutional?, SLATE (Feb. 20, 2017) https://slate.com/news-and-politics/2017/02/an-interview-with-deepak-gupta-the-attorney- in-hernandez-v-mesa.html; Supreme Court Sends Cross-Border Shooting Case Back To Lower Court, NPR (June 26, 2017) https://www.npr.org/sections/thetwo- way/2017/06/26/533968647/supreme-court-sends-cross-border-shooting-case-back-to- lower-court.). 99 U.N., REPORT OF THE WORKING GROUP OF EXPERTS ON PEOPLE OF AFRICAN DESCENT ON ITS MISSION TO THE UNITED STATES OF AMERICA, p. 20-26 (Aug. 18, 2016), available at: https://digitallibrary.un.org/record/848570?ln=en#record-files-collapse-header. 100 Vandana Ravikumar, De’Von Bailey’s Family Calls his Death 'Wholly Unjustified' after Colorado Springs Police Release Bodycam Footage, USA TODAY: NATION (Aug. 15, 2019, 11:25 PM), https://www.usatoday.com/story/news/nation/2019/08/15/devon- bailey-running-police-shot-four-times-video-shows/2025477001/. 101 Mark Hanrahan, De'Von Bailey shooting: Police Will Not face Charges in Colorado Man's Death, ABC NEWS (Nov. 14, 2019, 7:55 AM), https://abcnews.go.com/News/devon-bailey-shooting-police-face-charges-colorado- mans/story?id=67001965.

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firearms.102 The officers will not face any charges in connection with the fatal shooting of Bailey.103 Bailey’s death prompted protests in Colorado Springs, and Governor Jared Polis called for the El Paso County District Attorney’s Office to recuse itself from investigating the case and permit another local jurisdiction to investigate the shooting.104 Within hours of the Governor’s announcement, Colorado Springs Mayor John Suthers responded with a memo that strongly disapproved of the Governor’s position, calling it “politically motivated.”105 Further, in his statement, the Mayor said, “[s]ome in our community are experiencing a great deal of emotion. I recognize that and empathize with all impacted. But this is a time for healing and allowing legal processes to run their course and not to act with political expedience."106 Reliance on the existing legal processes did not yield justice; rather, it further substantiated beliefs that the existing legal processes are designed to negatively impact Black men. Initially, Bailey’s death was investigated by the El Paso County Sheriff’s Office and was then referred to the District Attorney’s Office for review.107 Bailey’s family adamantly contested this investigation procedure, claiming that an independent investigation was necessary because the involved law enforcement agencies were “too close”—meaning too closely tied to the law enforcement agency to provide an impartial investigation.108 On October 4, 2019, the 4th Judicial District Attorney’s Office announced that it referred the case to a grand jury.109

102 Ravikumar, supra note 100. 103 Mark Hanrahan, De'Von Bailey shooting: Police will not face charges in Colorado man's death, ABC NEWS (Nov. 14, 2019, 7:55 AM), https://abcnews.go.com/News/devon-bailey-shooting-police-face-charges-colorado- mans/story?id=67001965. 104 Alex Scoville, Gov. Polis Calls For Independent Investigation Into De’Von Bailey’s Death; Colorado Springs Mayor Says The Move Is ‘Politically Motivated’, CPR NEWS (Aug. 22, 2019), https://www.cpr.org/2019/08/22/gov-polis-calls-for-independent- investigation-into-devon-baileys-death/. 105 Id. 106 “Some in our community are experiencing a great deal of emotion. I recognize that and empathize with all impacted. But this is a time for healing and allowing legal processes to run their course and not to act with political expedience." Id. 107 Samantha Grasso, Officers Shot and Killed a Black Teen. They won’t be Charged Because of a “Fleeing Felons” Law, VOX (Nov. 15, 2019, 7:10 AM), https://www.vox.com/identities/2019/11/15/20965435/devon-bailey-fleeing-felons- colorado-police. 108 Id. 109 Jesse Paul, Gov. Polis Meets with Family of Colorado Springs Teen De’Von Bailey, who was Fatally Shot by Police in August, THE COLORADO SUN (Oct. 4, 2019, 5:10

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Kilmer, Lane & Newman, the law firm representing the family of De’Von Bailey, expressed its belief that the decision was far too little, too late.110 On November 13, 2019, the grand jury unanimously decided that there was not enough evidence to criminally charge the police officers who shot Bailey. Further argument on Bailey’s behalf did not persuade U.S. Attorney Jason Dunn, whose office released a statement on March 27, 2020, that it would not pursue criminal charges against the officers.111

AM), https://coloradosun.com/2019/10/04/gov-polis-meets-with-family-of-colorado- springs-teen-devon-bailey-who-was-fatally-shot-by-police-in-august/. 110 DA refers De’Von Bailey Shooting to Grand Jury, KKTV 11 NEWS (Oct. 4, 2019), https://www.kktv.com/content/news/BREAKING-Grand-562192781.html (stating "Unfortunately, the decision to have the local DA’s office present the case to the grand jury at this point is too little too late. The grand jury‘s ability to make a decision is only as good as the information provided to it. The investigation by the El Paso County Sheriff’s Department is already infected by many conflicts of interest within that office, and within DA Dan May’s office. I fully anticipate that the case presentation by a conflicted local district attorney will be biased in favor of the local police. Our concern is that the local prosecutors are too reliant on local police to make an independent presentation to the Grand Jury. They will likely present the matter in a way to cause charges to not be filed. The Grand Jury should be led by an INDEPENDENT Prosecutor. We’ve always believed it should be presented to the Grand Jury by the Colorado Attorney General’s office or even a prosecutor from another jurisdiction that has no relation or ties to the 4th Judicial District or Colorado Springs DA Dan May, who has deep conflicts of interest in the matter. The local police are simply too close to the local prosecutors to give confidence that the presentation to the Grand Jury will be truly impartial."). 111 Michael Roberts, COVID-19 Buries Big Development in De’Von Bailiey Police Shooting, WESTWORD (Apr. 2, 2020, 8:03 AM), https://www.westword.com/news/covid-19-obscures-major-development-in-devon-bailey- colorado-springs-police-shooting-11677790 (stating that “The Federal Bureau of Investigation is charged with reviewing shootings by police officers to determine if there is evidence of federal criminal civil rights violations in connection with such shootings. Officer-involved shootings constitute federal criminal civil rights violations only when officers willfully deprive people of their constitutional rights to be free from unreasonable seizures or the application of unreasonable force." Consistent with this duty, the release continues, "the FBI’s Denver Field Office reviewed the facts and circumstances surrounding the shooting of Devon Bailey on August 3, 2019. Following the FBI’s review, the U.S. Attorney’s Office also reviewed those facts and circumstances to make a prosecution determination. Both offices concluded that the fatal shooting of Mr. Bailey, although undoubtedly devastating to his family, friends and community, did not result from any willful violation of Mr. Bailey’s constitutional rights. Therefore, the U.S. Attorney’s Office will not pursue criminal charges. The FBI and the U.S. Attorney’s Office have notified Mr. Bailey’s family of their conclusion.").

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Mari Newman, an attorney representing the Bailey family, stated, “[t]his is the exact result that the process was designed to yield,”112 and “this is what you can expect when a tainted investigation is presented by a biased prosecutor.”113 Unfortunately, this legal process, that yields unjust results, is supported by local government policy. 3. Local Control of Officer-Involved Shooting Investigations a. Current Policy It would seem that federal involvement in local police shootings would be constitutionally and statutorily mandated because the Constitution protects against government infringement against one’s life without due process.114 Further, the U.S. Department of Justice has the statutory authority to investigate violations of civil rights.115 However, in most cases of police use of excessive force, local governments hold exclusive control over the investigation and prosecution of the incident.116 The most plausible explanations for this local government authority are the principles of comity and federalism that grant local prosecutors jurisdiction over fatal shootings, under local or state laws.117 b. Colorado Rules The Colorado legislature grants local governments the right to determine how they will investigate officer-involved shootings.118 In Colorado, each police department, sheriff’s office, and district attorney participate in a multi-agency team to investigate officer-involved shootings.119 This team must include at least one other police department or

112 Grasso, supra note 107. 113 Sam Tabachnik, Colorado Springs Police Officers Justified in Shooting of De’Von Bailey, Grand Jury Determines, THE DENVER POST: CRIME & COURTS (Nov. 13, 2019, 5:07 PM), https://www.denverpost.com/2019/11/13/colorado-springs-devon-bailey- officer-involved-shooting-grand-jury/. 114 Crusto, supra note 74, at 78; U.S. CONST. amend. V (“No person shall ... be deprived of life, liberty, or property, without due process of law ....”); U.S. CONST. amend. XIV, § 1 (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall ... deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”). 115 Crusto, supra note 74, at 78. 116 Id. 117 Id. at 79. 118 S.B. 219, 70th Gen. Assemb., 1st Reg. Sess. (Colo. 2015). 119 Colo. Rev. Stat. § 16-2.5-301(1) (2015).

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sheriff's office, other than the jurisdiction involved in the incident, or the Colorado Bureau of Investigation, in conducting any investigation, evaluation, and review of an incident involving the discharge of a firearm by a police officer that resulted in injury or death.120 The law enforcement agencies participating can but need not be from the same judicial district.121 Each law enforcement agency must post its protocol on its website or, if it does not have a website, make it publicly available upon request. Colorado’s peace officer-involved shooting investigations protocol went into effect on December 31, 2015.122 Following state law, the Colorado Springs Police Department (CSPD) posted its use of deadly force investigation policy on its website123 In 2017, this policy became active.124 CSPD ensures that a neutral, impartial, and thorough investigation of deadly force incidents will be conducted.125 The purpose of this investigation is to reconstruct and determine the facts surrounding the incident.126 All deadly force incidents are investigated by the El Paso County Sheriff’s Office (EPSO), in conjunction with a Deadly Force Investigation Team, which consists of members of the Colorado Springs Police Department, El Paso County Sheriff’s Office, and the District Attorney’s Office, with a liaison from the involved agency participating in the investigation.127 The EPSO has primary authority over the investigation of whether the use of deadly force is legally justified.128 CSPD personnel will closely coordinate all significant investigative activities with assigned EPSO personnel.129 Once the EPSO evaluates the incident, they forward the case to the 4th Judicial District Attorney, who ultimately decides whether to prosecute the case.

120 Colo. Rev. Stat. § 16-2.5-301(1) (2015). 121 Colo. Rev. Stat. § 16-2.5-301(1) (2015). 122 Colo. Rev. Stat. § 16-2.5-301(2) (2015). 123 Colorado Springs Police Department General Order 815, COLORADO SPRINGS POLICE DEPARTMENT (last visited Feb. 21, 2021), https://coloradosprings.gov/sites/default/files/go_815_deadly_force_investigations.pdf. 124 Id. 125 Id. 126 Id. 127 Id. 128 Id. 129 Id.

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Part II: Analysis Understanding Common Procedure Each year in the United States, somewhere between 900 to 1,000 people are shot and killed by the police.130 This is hard to reconcile against the arrest and prosecution rate of officers involved in these shootings because since 2005, fewer than 100 non-federal law enforcement officers have been arrested in connection with fatal, on-duty shootings according to the Police Integrity Research Group.131 Typically, police use of lethal force incidents are subject to a two-tiered internal investigation.132 The purpose of the first investigation is to determine whether the officer committed a crime.133 For larger agencies, like Colorado Springs, the investigation is conducted internally by detectives from a homicide squad or by a use of force investigation team.134 This team is responsible for gathering evidence, locating witnesses, and conducting interviews of the witnesses.135 During this process, the suspected officer is also interviewed, but they can invoke their right to remain silent.136 Upon conclusion of this investigation, the case is forwarded to the local prosecutor.137 The purpose of the second investigation is to determine whether the officer violated department policies or procedures when they killed the person.138 During this phase of the criminal investigation, the involved officer can be compelled to provide a statement, but these statements cannot be used against them in a criminal proceeding.139 There are several critiques of this system of internal criminal investigation, including significant structural issues that limit its ability to provide just results. Part II of this Article analyzes: (1) the issues presented by police investigating police; (2) the issues presented by local prosecutors

130 Janell Ross, Police Officers Convicted for Fatal Shootings are the Exception, not the Rule, NBC NEWS (Mar. 13, 2019, 9:56 AM) https://www.nbcnews.com/news/nbcblk/police-officers-convicted-fatal-shootings-are- exception-not-rule-n982741. 131 Id. 132 Walter Katz, Enhancing Accountability and Trust with Independent Investigations of Police Lethal Force, 128 HARV. L. REV. F. 235, 237 (2015). 133 Id. 134 Id. at 238. 135 Id. 136 Id. 137 Id. 138 Id. 139 Id.; Garrity v. New Jersey, 385 U.S. 493, 500 (1967).

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investigating police; (3) the rationale for these methods; (4) the shortcomings of these methods; and (5) the application of independent investigations. 1. Police Investigating Police Internal investigation of officer-involved shootings cannot produce impartial results because there is insurmountable pressure to achieve a result that legitimizes the actions of the involved officer.140 Even well-intentioned police investigators find substantial difficulty in properly investigating an officer-involved shooting.141 When the investigator and the subject of investigation are members of the same organization or occupation, the investigator may interpret evidence in a biased fashion due to social pressures.142 This bias often leads to the (a) preferential treatment of officers during the investigation process; (b) sheltering of information that disrupts investigation procedures; and (c) inclusion of outside agencies that are likely to perform biased investigations. a. Preferential Treatment of Police Officers During the Investigation Process In criminal investigations, police officers receive preferential treatment.143 In his critique of the Police Department, Erwin Chemerinsky found several notable distinctions between the investigation of an officer who may have committed a crime and the investigation of a civilian who may have committed a crime.144 He highlighted that the officer involved in a shooting is not investigated as someone who may have reason to fabricate evidence and lie during their statement.145 Further, he found that the policies in place allowed the involved officers to remain together, return to the station, wait together, meet with the same attorney together, then go back to the scene of the shooting with the same lawyer who initially provided counsel to all of the officers.146 This process allows officers to

140 Merrick Bobb, Civilian Oversight of the Police in the United States, 22 ST. LOUIS U. PUB. L. REV. 151, 156 (2003). 141 Id. 142 See generally Dan M. Kahan, The Supreme Court, 2010 Term-- Foreword: Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law, 125 HARV. L. REV. 1 (2011). 143 Erwin Chemerinsky, The Role of Prosecutors in Dealing with Police Abuse: The Lessons of Los Angeles, 8 VA. J. SOC. POL’Y & L. 305, 321 (2001). 144 Id. 145 Id. at 322. 146 Id.

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conduct a walk-through, discuss evidence and compare stories, and ultimately develop a comprehensively scripted version of the facts.147 The aforementioned “statement” occurs after this story-building process has taken place.148 This process is substantially different than the investigation procedure of a civilian. Civilian defendants are arrested, handcuffed, taken to the station, separated, and tape-recorded without the opportunity to discuss the facts with co-defendants and without hours to review the evidence at the scene of the crime.149 The police investigation into the shooting of Michael Brown in Ferguson, Missouri, exemplifies this preferential treatment. Officer Wilson, who shot Brown multiple times, was permitted by his supervisor to leave the murder scene without being questioned or processed for evidence, and allowed to return to the police station unescorted, to wash the blood from his hands, and to put his murder weapon in an evidence bag.150 It is inconceivable that a civilian shooter would receive such privilege under any circumstances.151 The investigation of Wilson magnifies an inescapable problem: the inherent conflict of interest when police officers investigate other officers, and a structural impediment for investigations of police shootings.152 In criminal investigations, particularly police shootings, the suspect needs time to, “get his story straight . . . ” before being interrogated about the details of the crime, especially if it is in the suspected officer’s interest to cast the victim as the villain and the shooting as a justifiable and reasonable use of deadly force. For example, an officer claims the victim reached at his waistband for what appeared to be a gun and subsequently shot him.153 This allowance of extra time to “get the story straight” is found in the Colorado Springs Police Department’s policy and procedure for investigating officer-involved shootings. The officers offered the same “he’s got a gun!” justification for shooting Bailey, and after review of the

147 Id. 148 Id. 149 Id. at 323. 150 Blange Bong Cook, Biased and Broken Bodies of Proof: White Heteropatriarchy, The Grand Jury Process, and Performance on Unarmed Black Flesh, 85 UNIV. MO. KANSAS CITY L. REV. 567, 593 (2017). 151 Id. 152 Id. 153 Id.

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evidence, the grand jury found this justification convincing and acquitted Officer Evenson. b. The “Blue Wall” of Silence Another barrier to effective internal investigations is the tendency of officers to close ranks or protect their co-workers by sheltering information during the investigation process.154 Police officers are reluctant to vigorously pursue investigations of their colleagues’ misconduct, often following an unofficial code of silence intended to frustrate the investigator’s purpose.155 This disruptive phenomenon is known as the “blue wall” of silence.156 The “blue wall” of silence is an implicit agreement between officers that is enforced by intimidating any officer who shows a willingness to cooperate with investigators or accuse other officers of improper conduct.157 The pervasive existence of some form of this code across departments is well documented in court opinions,158 scholarly literature,159 news reports, and police investigatory commission reports.160 Once a code of silence is

154 Merrick Bobb, Civilian Oversight of the Police in the United States, 22 ST. LOUIS U. PUB. L. REV. 151, 157 (2003). 155 John V. Jacobi, Prosecuting , 2000 WIS. L. REV. 789, 803 (2000). 156 Merrick Bobb, Civilian Oversight of the Police in the United States, 22 ST. LOUIS U. PUB. L. REV. 151, 157 (2003). 157 Id. 158 See Spell v. McDaniel, 824 F.2d 1380, 1392-95 (4th Cir. 1986) (affirming jury verdict imposing municipal liability for arrestee's injuries from excessive use of force; evidence of code of silence and force training was sufficient to demonstrate municipal custom and usage); United States v. Ambrose, 740 F.2d 505, 521 (7th Cir. 1984) (appendix to case, reprinting remarks of Grady, J., of the United States District Court for the Northern District of Illinois, made at sentencing hearing of defendant, who stated that “it is a fact ... that there is a code of silence [in the Chicago Police Department], and that most policemen observe it”); Myatt v. City of Chicago, No. 90-C-03991, 1991 WL 94036, at *7 (N.D. Ill. May 23, 1991) (determining that allegations by plaintiff in police brutality case, including, inter alia, admission of officers of existence of code of silence, were sufficient to withstand motion to dismiss). 159 David S. Cohen, Official Oppression: A Historical Analysis of Low-Level Police Abuse and a Modern Attempt at Reform, 28 Colum. Hum. Rts. L. Rev. 165, 190-92 (1996) (recognizing the existence of “the infamous blue code of silence,” and asserting that abuse of police authority cannot be alleviated by providing for mandatory additional officers on the scene because of the code). 160 Gabriel J. Chin, The “Blue Wall of Silence” as Evidence of Bias and Motive to Lie: A New Approach to Police Perjury, 59 UNIV. PITT. L. REV. 233, 238 (1998).

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ingrained in a police department’s cultural matrix, it may be difficult or even impossible to eradicate.161 Cops don’t tell on cops. And if they did tell on them, just say if a cop decided to tell on me, his career's ruined. He's going to be labeled as a rat. So if he's got fifteen more years to go on the job, he's going to be miserable because it follows you wherever you go . . . . [H]e's going to have nobody to work with. And chances are if it comes down to it, they're going to let him get hurt.162 In many police departments, an officer who breaks the code of silence can expect brutal retaliation from their colleagues. Minor retaliatory behavior includes labeling violators of the code as a “rat” or a “snitch.”163 Verbal harassment and other forms of ostracism may follow an officer even after they transfer to a new unit. This code of silence has been attributed to the cover up of gross police mistreatment of individuals. For example, in the Abner Louima case, a Black man was tortured and humiliated with a broken broom handle in a police station.164 The police union was alleged to have conspired amongst police officers to frustrate the investigation.165 The “blue wall” of silence within police departments significantly impacts the results of an investigation by intimidating officers and discouraging proper justice. c. Inclusion of “Outside” Agencies With Likelihood of Bias Outside agencies with significant ties to the police departments are often considered “impartial” investigators. The El Paso County Sheriff’s Office investigating the Colorado Springs Police Department is a prime example of an interested agency passing itself off as an agency capable of an “impartial” investigation. Following the grand jury decision of De’Von Bailey’s case, CSPD Police Chief Vincent Niski released a statement that, “this incident, like all other officer-involved shootings, was handed over to a professional outside

161 Id. at 253. 162 Id. at 256-57 (quoting the testimony of Bernard Cawley, former New York City police officer). 163 White-Ruiz v. City of New York, No. 93-CIV.-7233 (DLC) (MHD), 1996 WL 603983, at *2 (S.D.N.Y. Oct. 22, 1996) (discussing label of “rat” and “cheese-eater” for officer reporting theft of money by fellow officer from body of deceased person at a crime scene). 164 Merrick Bobb, Civilian Oversight of the Police in the United States, 22 ST. LOUIS U. PUB. L. REV. 151, 157 (2003). 165 Id.

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law enforcement agency, the El Paso County Sheriff’s Office (EPSO), which follows Colorado law.”166 Although this statement is factually true, it is misleading because the EPSO is entangled with the CSPD. EPSO Undersheriff Pete Carey joined the CSPD as an officer in 1984 and was formally appointed CSPD Chief of Police in January of 2012.167 This substantial connection ties the two agencies in a way that undermines the separation of these agencies for impartial investigative purposes. Coercion, social pressure, and the code of silence are all likely when agencies are so closely connected. 2. Prosecutors Investigating Police Prosecutors cannot effectively investigate and prosecute these cases because they have inherent conflicts of interest and face immense political pressure. a. Inherent Conflicts of Interest Prosecutors, although not a part of the same organization, have similar tendencies for bias in favor of police. Prosecutors and police are part of the closely-knit profession of law enforcement.168 They have a mutually beneficial relationship and stand on the same side of the adversarial wall.169 Prosecutors and police feed on each other’s desire and resources to win cases.170 Almost no criminal case exists without police as the first contact point.171 Generally, police ensure the integrity of an investigation, while prosecutors use the evidence officers produce to secure the merits of the adjudication.172 Prosecutors and police officers frequently operate with a sense of fraternity, trust, and kinship because they rely on the integrity of

166 Abigail Beckman & The Associated Press, No Charges For CSPD Officers In Shooting Death of De’Von Bailey, KRCC (Nov. 14, 2019), https://www.krcc.org/post/no-charges-cspd-officers-shooting-death-devon-bailey. 167 Undersheriff Pete Carey Biography, EL PASO COUNTY SHERIFF’S OFFICE, https://www.epcsheriffsoffice.com/users/undersheriff-pete-carey (last visited Sept. 30, 2020). 168 Blange Bong Cook, Biased and Broken Bodies of Proof: White Heteropatriarchy, The Grand Jury Process, and Performance on Unarmed Black Flesh, 85 UMKC L. REV. 567, 592 (2017). 169 Id. 170 Erwin Chemerinsky, The Role of Prosecutors in Dealing with Police Abuse: The Lessons of Los Angeles, 8 VA. J. SOC. POL’Y & L. 305, 315 (2001). 171 Kate Levine, Who Shouldn’t Prosecute the Police, 101 IOWA L. REV. 1447, 1465 (2016). 172 Blange Bong Cook, Biased and Broken Bodies of Proof: White Heteropatriarchy, The Grand Jury Process, and Performance on Unarmed Black Flesh, 85 UNIV. MO. KANSAS CITY L. REV.567, 592 (2017).

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the other to protect and ensure successful investigations, prosecutions, and convictions of guilty defendants.173 Ultimately, cops want to “put the bad guys away” and prosecutors help them do just that. Prosecutors not only trust the police to bring them sound cases, free of unconstitutionally derived evidence, like forced confessions, but rely on officers' credibility, ability to testify about the investigation and evidence, and ability to withstand cross-examination.174 Police officers are an indispensable part of a prosecution.175 The mutual dependency between police and prosecutors presents an inherent conflict of interest when prosecutors prosecute their “brothers” accused of excessive use of force.176 Ultimately, cooperation between prosecutors and police officers is likely the most important element of any criminal prosecution. There is a well-established connection between the number of convictions a prosecutor secures and their likelihood of promotion.177 Thus, maintaining positive relationships with individual officers and police departments is key to a prosecutor’s ability to obtain convictions and professional success.178 b. Political Pressure Police unions tend to assert their power over prosecutors at election time.179 More than ninety-five percent of local district attorneys are elected, but the lack of transparency in prosecutorial decision-making shields elected prosecutors from the accountability one would typically expect for an elected official.180 This lack of accountability, among other factors, leaves citizens generally uninformed and disinterested in the election of district attorneys.181 Conversely, the police are well-informed and interested in the outcome of district attorney elections.182 Police unions also have the influence and financial power necessary to push their interests. For example, when a powerful police union states that a politician or elected official is “soft on crime,” it can dramatically

173 Id. 174 Id. 175 Id. 176 Id. 177 Kate Levine, Who Shouldn’t Prosecute the Police, 101 IOWA L. REV. 1447, 1471 (2016). 178 Id. at 1469–70. 179 Id. at 1476. 180 Id. 181 Id. 182 Id.

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decrease that official’s chances of election or reelection.183 These unions can also organize their members and exploit their numbers to defeat district attorneys that vigorously prosecute police defendants.184 Therefore, it is a real possibility that a district attorney will not be reelected if they counteract the interests of powerful police unions.185 Even the most well-intentioned district attorney struggles to escape pressure from a highly mobilized and well-informed group of constituents in their jurisdiction, such as the police union.186 3. The Rationale for Internal Investigations Despite inherent biases in current processes and public outcry for an independent investigation into the shooting of De’Von Bailey, local policies justify internal investigations. Mayor Suthers relied on compliance with state legislation to rationalize moving forward with an investigation using closely related local agencies, and local authorities relied on their investigative expertise to rationalize the merits of their method. a. Permitted Under Current State Law In response to the shooting of De’Von Bailey, Colorado Governor Jared Polis stated that he hopes El Paso County goes above and beyond what is legally required to maximize public trust in the investigation process.187 Further, Governor Polis suggested that the El Paso County District Attorney’s office should turn the investigation’s findings over to another local jurisdiction for independent review.188 In response, Mayor of Colorado Springs John Suthers stated that the 4th Judicial District protocol for investigating an officer-involved shooting was in accordance with the laws passed by the state legislature.189 By relying on the existing legislature, Mayor Suthers effectively dodged accountability for ensuring an impartial investigation in a manner that was constitutional, yet lacking in realistic impartiality. b. Expertise of Investigation Groups

183 Id. 184 Id. 185 Id. 186 Id. 187 Mayor Suthers responds to Gov. Polis Call for Independent Investigation of Shooting, KOAA NEWS5, https://www.koaa.com/news/covering-colorado/mayor-suthers-responds- to-gov-polis-call-for-independent-investigation-of-shooting (last updated Aug. 22, 2019, 2:09 PM). 188 Id. 189 Id.; Ravikumar, supra note 100.

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Despite the issues with internal police investigations, the contention that the police department is the best institution to investigate these incidents has some merit. Police officers, with many years of investigation experience, have the necessary knowledge, skills, and abilities to conduct a competent investigation.190 Officer-involved shootings have notoriously complicated facts because they often involve a victim who allegedly committed some wrong act, and the stakes of these cases are so high that involving incompetent investigators would do police a severe injustice.191 Allegations of police misconduct may include actions that resulted in death or severe injury.192 Police argue that no other government entity is regularly engaged in crime investigation, so no civilian investigator has the necessary experience to perform a complex criminal investigation.193 This Article does not dispute the contention that police officers are well-equipped to conduct criminal investigations. Instead, this Article provides a recommendation that accounts for the need for expertise in the investigation process while equitably distributing justice in a manner that promotes public trust and ensures . The need for transformational change is evidenced by the glaring shortcomings of current procedures. 4. Glaring Shortcomings of Current Procedures The current procedures for the investigation of officer-involved shootings must be adjusted because they (a) disregard and pervert the rule of law; (b) provide no accountability for the officers involved in the shooting; and (c) diminish public trust in the local agencies that are tasked with holding police officers accountable. a. Disregard and Perversion of the Rule of Law When the police break rules such as department regulations and state and federal law forbidding unreasonable force against civilians, they directly violate the rule of law.194 Regulations and laws governing police misconduct do not offend the core characteristics of the rule of law:

190 David MacAlister, Final Report, Police-Involved Deaths: The Failure of Self- Investigation, B.C. CIVIL LIBERTIES ASS’N 63 (2010), http:// bccla.org/wp- content/uploads/2012/05/20101123-McAllister-Report-Police-Involved-Deaths-The- Failure-of-Self-Investigation.pdf. 191 Id. 192 Id. 193 Id. 194 Alexa P. Freeman, Unscheduled Departures: The Circumvention of Just Sentencing for Police Brutality, 47 HASTINGS L. J. 677, 701 (1996).

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generality, equality, impartiality, certainty, constitutionality, and morality.195 The current investigation protocol allows police officers to disregard the already favorable laws governing police brutality because it provides a framework for officers to easily escape the repercussions of using unjustified deadly force. Further, it allows for the unfettered and continued use of illegitimate force against civilians.196

This counterproductive collaboration between the investigation procedure and police interests also facilitates the perversion of the rule of law by giving police additional rights.197 First, it enables police to use force in excess of the power given to them.198 Second, it allows officers to temporarily change careers to judge, jury, and executioner without providing victims due process.199 Advocates for police use of force cite the difficulty of making “split-second” decisions, but the normal adjudicative process requires the exact opposite. Third, given the extent that police shootings disproportionately impact poor communities and communities of color, this framework violates the principle of impartiality.200 Finally, this collusion of investigative method and police interest leads to the undeterred killing of unarmed individuals, which offends the norms of a democratic society. b. Lack of Accountability Police officers have the difficult job of maintaining order and control with limited means and may have to resort to physical coercion at times.201 The power to use force and the exercise of individual judgment and discretion naturally leads to misjudgment and abuse of discretion.202 This gratuitous discretionary power and use of violence require institutionalized accountability.203

195 THE RULE OF LAW AND ITS VIRTUE, IN LIBERTY AND THE RULE OF LAW 3, 7-11 (Robert L. Cunningham ed., 1979) (asserting that laws are valid when they conform to the following principles: they are ‘prospective, open, and clear,‘ ‘relatively stable,‘ general, applied by an independent judiciary that is easily accessible, and not ‘perverted‘ by too much prosecutorial or law enforcement discretion). 196 Freeman, supra note 194 at 702. 197 Id. 198 Id. 199 Id. 200 Id. 201 John V. Jacobi, Prosecuting Police Misconduct, 2000 WIS. L. REV. 789, 802 (2000). 202 Id. 203 Id.

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Most incidents of police brutality never reach a recorded deposition or trial in criminal court.204 Even when seemingly damning evidence supports prosecution or even conviction, officers rarely see any repercussions for their actions.205 The lack of accountability can embolden officers that should be punished for criminal behavior. Continuing these methods of investigation will not produce the results necessary to curtail police abuse in deploying lethal force in a search or seizure. Failure to hold police accountable for abuse of power perverts the rule of law, makes citizens distrustful of law enforcement and encourages police officers to continue lawless behavior.206 c. Diminished Public Trust Public trust in law enforcement institutions is central to the legitimization of procedural justice.207 Research demonstrates that public perception of the fairness of the justice system in the United States is more imperative in determining its legitimacy than the perceived effectiveness of these institutions.208 Thus, when the public trusts the process of the justice system, it will confer legitimacy on the institutions that comprise the justice system.209 The public has lost trust in local law enforcement agencies because of their perception of biased investigations of deadly-force incidents.210 Diminished public trust in law enforcement led to global protesting in 2020. Following George Floyd’s death, protests erupted in all fifty states and countries such as Britain, France, Germany, and Italy.211 The majority of the protests were peaceful, but some exploded with unrest and outrage.212

204 Freeman, supra note 194 at 712. 205 Kami Chavis Simmons, Increasing Police Accountability: Restoring Trust and Legitimacy Through the Appointment of Independent Prosecutors, 49 WASH. UNIV. J. OF L. & POL’Y 137, 139 (2015). 206 Jacobi, supra note 201 at 803. 207 Walter Katz, Enhancing Accountability and Trust with Independent Investigations of Police Lethal Force, 128 HARV. L. REV. F. 235, 237 (2015). 208 Id. 209 Id. 210 Id. at 235. 211 Zamira Rahim & Rob Picheta, Thousands Around the World Protest George Floyd’s Death in Global Display of Dolidarity, CNN WORLD (June 1, 2020), https://www.cnn.com/2020/06/01/world/george-floyd-global-protests-intl/index.html. 212 Catherine E. Schoichet, Protests are Erupting over Police Brutality. And some Officers are Responding to the Outcry with Force, CNN US (June 5, 2020), https://www.cnn.com/2020/06/02/us/police-protests-use-of-force/index.html; Zamira Rahim & Rob Picheta, Thousands Around the World Protest George Floyd’s Death in

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Police officers responded with increasingly violent crowd control methods like firing tear gas canisters and rubber bullets—sometimes directly at protestors—striking protestors with batons, and shoving protestors to the ground.213 One graphic example of the increased police violence comes from viral footage in Buffalo, New York, where police shove Martin Gugino to the ground. Gugino, a 75-year-old protestor, was pushed by two officers, fell over, and cracked his skull on the concrete.214 As Gugino was bleeding profusely from his head, officers walked by him, and one officer even stopped another bystander from helping him.215 Incidents like this have only stoked the flames and decreased trust in police. Further, the lack of trust in law enforcement is racially segmented. Policing plays a crucial role in the maintenance of the structural inequalities that exist between white people and people of color in the United States.216 In a study conducted by Gallup, between 2015 and 2017, sixty-one percent of white respondents said they have a “great deal” or “quite a lot” of confidence in the police.217 Only thirty percent of Black respondents agreed with this sentiment.218 These figures illustrate the deep racial division that exists in the perceived legitimacy of the criminal justice system in the United States.219 Independent investigations of officer-involved shootings can play a critical role in restoring public trust in law enforcement institutions for all demographics and hold local police officers accountable for shooting and killing citizens without justification. 5. Independent Investigations

Global Display of Solidarity, CNN WORLD (June 1, 2020), https://www.cnn.com/2020/06/01/world/george-floyd-global-protests-intl/index.html. 213 Schoichet, supra note 212. 214 Jacqueline Rose & Eric Levenson, Buffalo protestor Martin Gugino has a Fractured Skull and Cannot Walk, CNN US (June 16, 2020), https://www.cnn.com/2020/06/16/us/martin-gugino-protester-skull/index.html. 215 Id. 216 Frank Edwards, Hedwig Lee & Michael Esposito, supra note 90 at 16793. 217 Jim Norman, Confidence in Police Back at Historical Average, GALLUP (July 10, 2017), https://news.gallup.com/poll/213869/confidence-police-back-historical- average.aspx. 218 Id. 219 Kami Chavis Simmons, Increasing Police Accountability: Restoring Trust and Legitimacy Through the Appointment of Independent Prosecutors, 49 WASH. UNIV. J. OF L. & POL’Y 137, 147–8 (2015).

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While the police have historically internally investigated all allegations of wrongdoing, in recent decades, there has been progress towards external investigations of police misconduct.220 For example, the city of Aurora, Colorado commissioned an Independent Review Panel to review the events leading to Elijah McClain’s death.221 The three-person panel included a civil rights, law enforcement, and emergency medical services expert.222 None of the members of the panel had a historical or current relationship to the Aurora Police Department, any individual Aurora Police, or any member of the McClain family or their counsel.223 The panel’s report found insufficient legal basis for the officers’ decision to stop, frisk, and choke McClain and recommended major changes to Aurora Police Department’s handling of use of force cases.224 There are several variations of the procedure for police-involved- shooting investigation that range from internal investigation to complete independence by a non-police agency.225 These variations are broken into seven distinct groups: (1) internal, where police are investigated by officers from within the same agency; (2) quasi-internal, where police are investigated by the same agency with investigative oversight by officers from another police agency; (3) hybrid-quasi-internal, where police are investigated by police from a nearby police agency with investigative oversight from the original agency; (4) hybrid, where police are investigated by police from a nearby police agency; (5) hybrid-quasi-external, where police are investigated by a civilian-led agency with support from a nearby police agency; (6) quasi-external, where police are investigated by a civilian-led agency using a nearby police agency and civilian investigators;

220 David MacAlister, Final Report, Police-Involved Deaths: The Failure of Self- Investigation, B.C. CIVIL LIBERTIES ASS’N 36 (2010), http:// bccla.org/wp- content/uploads/2012/05/20101123-McAllister-Report-Police-Involved-Deaths-The- Failure-of-Self-Investigation.pdf. 221 See generally Investigation Report and Recommendations, CITY OF AURORA, COLORADO (Feb. 22, 2021), https://www.auroragov.org/UserFiles/Servers/Server_1881137/File/News%20Items/Inve stigation%20Report%20and%20Recommendations%20(FINAL).pdf. 222 Id. at 12. 223 Id. at 15. 224 Id. at 7-8. 225 David MacAlister, Final Report, Police-Involved Deaths: The Failure of Self- Investigation, B.C. CIVIL LIBERTIES ASS’N 36 (2010), http:// bccla.org/wp- content/uploads/2012/05/20101123-McAllister-Report-Police-Involved-Deaths-The- Failure-of-Self-Investigation.pdf.

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and (7) external, where police are investigated by a civilian agency that is led and staffed by non-police civilians.226 State legislators may improve investigation policies where courts, police, and prosecutors have proven to be ineffective.227 To prevent further deterioration of the public trust and promote officer accountability, state legislatures, including Colorado, must move the investigation of police- involved shooting deaths to independent agencies.228 This proposal necessitates shifting the internal investigation model to a hybrid-quasi-external model, at minimum. Although this change would be a great undertaking, other countries have developed their own models of independent investigation.229 Further, surveys conducted in Europe suggest that residents of countries with independent investigation structures have a higher opinion of their criminal justice systems than similar American surveys have shown about its justice system.230 These survey results also show that respondents identifying as a group that experiences discrimination in their respective countries had greater confidence in the police than the amount of confidence similar groups in the United States have in their police.231 Benefits of Independent Investigations Independent investigation of officer-involved shootings increases the accountability of local police officers and promotes public trust in law enforcement institutions. This method of investigation requires funding, resources, and the cooperation of professionals with expertise in criminal investigations. Increased Officer Accountability Law enforcement is delegitimized when it treats civilians unfairly, and the public is left to draw the conclusion that police are not held accountable232 for poor decision-making or malicious conduct. Rare

226 Id. at 37. 227 Walter Katz, Enhancing Accountability and Trust with Independent Investigations of Police Lethal Force, 128 HARV. L. REV. F. 235, 241 (2015). 228 Id. at 237. 229 Id. at 241 (These alternative models, adopted in the United Kingdom, Norway, and Canada, are completely independent from the involved agency and, in some cases, even from the local prosecutor.) 230 Id. at 242. 231 Id. at 243. 232 Id. at 235

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prosecutions of police shootings support the perception that police are above the law and above reproach because police are rarely charged or punished.233 Independent investigation of officer-involved shootings is a necessary remedy because when the public sees that there are systems in place to enforce police accountability, they are more likely to view the police as legitimate. Increased Public Trust

Trust is defined as assured reliance on the character, ability, strength, or truth of someone or something.234 Large groups of citizens across varying demographics have lost trust in local law enforcement agencies due to their perception of biased investigations of deadly-force incidents.235 Independent investigations would likely improve public trust in institutions of justice.236 When the public knows that police-involved deaths are subject to the scrutiny of an entity without close ties to local police departments, the public will likely have more confidence in the legitimacy of the proceedings. The following recommendation is an actionable proposal to increase officer accountability and public trust in Colorado by utilizing the Colorado Bureau of Investigation and the state Attorney General.

Part III Recommendations

To be effective, an independent investigative body must exhibit foundational characteristics. The agency must have the ability to investigate potential criminal wrongdoing by officers and make recommendations for prosecutions.237 These recommendations must then be evaluated by special prosecutors who are not affiliated with the local law enforcement agencies.238 The independent investigative agency should be open and transparent, independent of the agency being investigated, but have unrestricted access to officer and agency records.239 The agency must also

233 Kami Chavis Simmons, Increasing Police Accountability: Restoring Trust and Legitimacy Through the Appointment of Independent Prosecutors, 49 WASH. UNIV. J. OF L. AND POL’Y 137, 146 (2015). 234 Trust, MERRIAM-WEBSTER ONLINE DICTIONARY, https://www.merriam- webster.com/dictionary/trust (last visited Sept. 30, 2020). 235 Walter Katz, Enhancing Accountability and Trust with Independent Investigations of Police Lethal Force, 128 HARV. L. REV. F. 235, 235 (2015). 236 Id. at 245. 237 Id. at 72. 238 Id. 239 Id. at 72-73, 76.

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be endowed with a sufficient budget, power to issue subpoenas and search warrants, and a well-defined jurisdiction.240 Investigators should also be granted all the powers of a police officer for the duration of the investigation.241 These are baseline characteristics, and the state legislature should determine any additional details through careful consideration of their individual situation.

Colorado Springs can provide an impartial and independent investigation of police shootings by utilizing the state Attorney General, Colorado Bureau of Investigation (CBI), and/or a civilian-led review board to investigate these incidents. This could be a two-tiered process where the Attorney General and CBI would investigate contentious incidents that require their investigative expertise, and the civilian-led review board would investigate egregious incidents, similar to the murder of De’Von Bailey. Local governments need to enact legislation requiring this new method.

Under this new investigation procedure, the CBI or civilian-led review board would perform the role that the El Paso County Sheriff’s Office once had, and the state Attorney General would step in for the local district attorney. The CBI or civilian-led review board would investigate potential criminal wrongdoing by local law enforcement officers and provide a recommendation for prosecution to the Colorado Attorney General’s Office. The Attorney General’s office would then assign special prosecutors, who have no ties to the local law enforcement agencies, to evaluate the CBI’s investigation. When the potential criminal wrongdoing of an officer is not supported by police department policy and procedure, or appears reckless or willful, the civilian-led review board will investigate and provide a recommendation for prosecution to the Colorado Attorney General’s Office. Upon evaluation of the case, the Attorney General’s Office will release a comprehensive public statement explaining its decision to move forward with prosecution or drop the case. The CBI is responsible for the management and oversight of state law enforcement, so it has access to officer and local law enforcement agency records.242 Further, the CBI has the statutory authority to initiate investigations that transcend local

240 Id. at 74-76. 241 Id. at 76. 242 COLORADO BUREAU OF INVESTIGATION, https://www.colorado.gov/cbi (last visited Sept. 30, 2020).

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jurisdictional boundaries, giving them the capability to respond to police misconduct in various communities.243

By utilizing the CBI, the state Attorney General, and civilian-led review boards, Colorado Springs, and other similarly situated cities can significantly improve their investigation of officer-involved shootings. Additionally, a civilian-led review board can develop critical investigative skills working alongside the CBI and Attorney General.

Police departments and local prosecutors will likely have strong objections to losing control of these investigations.244 However, it is overwhelmingly apparent that police cannot be trusted to properly investigate themselves.245 Allowing these internal investigation procedures is no longer a viable option because inherent bias, bad actors, and the surreptitious code of silence prevent internal investigations from yielding acceptable results.246 Further, local prosecutors cannot effectively investigate police criminal misconduct because substantial conflicts of interest preclude them from effective prosecution. Thus, the only reasonable response is to create and utilize independent investigative bodies to remedy the abuse of discretion that has been persistent in police practices.

Conclusion Statewide adoption of independent agencies that investigate police misconduct is a necessary improvement to the current systems.247 This shift in state and local policy is justified by (1) the urgency of resolving police use of excessive force, (2) the proven ineffectiveness of the current investigation policies and procedures, (3) the advantages associated with independent investigations, and (4) the practicality of deploying independent investigation procedures. 1. Urgency of Resolving Police Misuse of Lethal Force

243 Investigations, COLORADO BUREAU OF INVESTIGATION, https://www.colorado.gov/pacific/cbi/investigations-0 (last visited Sept. 30, 2020). 244 Id. 245 David MacAlister, Final Report, Police-Involved Deaths: The Failure of Self- Investigation, B.C. CIVIL LIBERTIES ASS’N 36 (2010), http:// bccla.org/wp- content/uploads/2012/05/20101123-McAllister-Report-Police-Involved-Deaths-The- Failure-of-Self-Investigation.pdf. 246 Id. 247 Walter Katz, Enhancing Accountability and Trust with Independent Investigations of Police Lethal Force, 128 HARV. L. REV. F. 235, 245 (2015).

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Police abuse of the power to exercise lethal force is a national issue that has received international attention. All citizens are impacted by this epidemic, but it disproportionately impacts Black communities. Without a reliable solution, officers will remain unaccountable for crimes against citizens, and public trust in the institutions designed to protect citizens will continue to wane. If unaddressed, this issue will persistently plague Black communities and perpetuate racial inequality across the United States. 2. Proven Ineffectiveness of Current Investigation Policies The current investigation procedures used in Colorado Springs and many other cities are inherently flawed. Local police officers are tasked with investigating their colleagues, which leads to preferential treatment in the investigation process, enforcement of codes of silence, and the involvement of entangled local law enforcement agencies. Local prosecutors cannot effectively prosecute these cases because they are personally, professionally, and politically obligated to maintain a positive relationship with local law enforcement. The alignment of interests between police officers and prosecutors negatively impacts the investigation process. The result is a tainted investigation, which reduces public trust and enables police misconduct. 3. Advantages of Independent Investigations Where internal investigations fall short, independent investigations can certainly make up ground. Properly executed independent investigations of officer-involved shootings can improve the public trust and enhance officer accountability. Further, independent investigation procedures can be modified to fit the jurisdiction that seeks to employ them. As long as the procedure meets the characteristics outlined in this Comment, each jurisdiction can modify its plan to best fit the needs of its constituency. 4. Practicality of Deploying an Independent Investigation Procedure Most states already have sufficiently disinterested law enforcement agencies that can execute a fair investigation. Colorado could utilize the CBI, Attorney General, and a civilian-led review board to provide an impartial investigation. These agencies would need to be granted this authority by legislative change, but once change is made, they would have broad authority to provide impartial investigations into officer-involved shootings. As protestors continue to advocate for justice for George Floyd, Breonna Taylor, and countless others, it is important for Coloradans to be

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aware of the injustices perpetrated by our local law enforcement. Elijah McClain’s mother, Sheneen McClain, stated, “I cannot speak on George’s death because Colorado didn’t care about Elijah’s death. Selective Protesting. Colorado fails in accountability for their own residents but urges justice for someone in a different ZIP Code.”248 I join her sentiment that Colorado’s criminal justice system is stained with unjustified police brutality. This Article illuminates systemic issues that threaten access to justice when police officers kill individuals in our community, especially Black people.

248 Elizabeth Hernandez & Noelle Phillips, Protestors gather to remember Elijah McClain, killed in encounter with Aurora police, THE DENVER POST, https://www.denverpost.com/2020/06/06/protesters-gather-to-remember-elijah-mcclain/ (last updated June 9, 2020, 11:57 AM).