Colorado ACLU: If Aurora Police Taser use complied with policy, then the policy must change

You’ve probably seen the video already. More than 700,000 people have.

It goes like this: It’s February 19, and Darsean Kelley is walking near East Colfax in Aurora with his cousin, Izear Brown. An Aurora Police Department squad car pulls up beside the two men and the officers demand that they sit down.

Both Kelley and Brown tell the officers about injuries that prevent them from sitting. Brown’s assertion is accepted, but Kelley’s is challenged. “You can sit down,” one officer retorts.

The officers order both men to turn around. Brown turns, but Kelley balks. “For what?” he asks, raising both arms high in the air, feet slightly spread, still facing the officers. “For what? For what?”

Brown tells his cousin to “just turn around,” but Kelley stands firm. “No, I know my rights,” he says. “For what?”

The video cuts. Kelley now has his back to the officers, arms still spread wide. One of the officers quietly says what sounds like “perp uncooperative.”

Kelley asks again, shouting this time. “What are we being detained for? Answer my question, officer!”

Another officer says what sounds like, “No, we’re not going to.” Kelley, pointing at his own chest now, yells again, “I know my rights!”

A Taser gun goes off. It hits Kelley in the back. He falls, stiff and heavy, landing on the ground with a thud. Then he screams.

That night, officers arrested Kelley and charged him with disobeying a lawful order.

In March, the Colorado ACLU took up the case and fought the charges on Kelley’s behalf. ACLU attorney Dan Recht represented Kelley, and the Aurora Municipal Prosecutor dismissed the charges on September 2. A review from the Aurora Police Department’s internal Force Review Board has found that the officers were compliant, and that “the force applied in this incident was within policy.”

But six months after Kelley was stopped, the incident is still not going away. Last week, ACLU Nationwide uploaded a shortened version of the police body camera footage from the incident, which Kelley had requested from the Aurora Police. As of this writing, it has almost 720,000 Facebook views.

The Colorado Independent spoke with ACLU Colorado Legal Director Mark Silverstein about the February incident, the video’s popularity and how police body cameras do and do not affect police work.

In the incident in question, says Silverstein, the Aurora Police did not actually have reasonable suspicion to stop Kelley and Brown. They were responding to another call — about a suspect reportedly pulling a gun on a child — for which they had no description of the suspect. “Darsean was doing nothing wrong. [The police] stopped these men while they were on their way.”

And that, Silverstein says, is illegal. “We believe this was an unjustified stop. It was an unjustified seizure, which is in violation of the Fourth Amendment, and an unjustified use of force, which is in violation of the Fourth Amendment. It was a violation of civil rights.”

One problem, Silverstein says, is that police in Colorado are not actually required to tell citizens why they’ve been stopped. There is no federal law guaranteeing citizens such a right. “But there should be,” says Silverstein.

“I think that it’s good police practice to inform a citizen of the reason for the stop. I think there are some police departments that require that a police officer explain why they’ve stopped a citizen.” The Colorado Springs Police, he says, has such a policy.

Silverstein says that when police don’t inform citizens of the justification for their stop, it only makes things worse. “The refusal to do that aggravates the situation. It has the potential to frustrate a citizen who feels he is unjustly stopped and has no reason for it.”

And things can deteriorate from there: “An officer that sees a citizen getting angry is likely to get angry himself, and then you have an escalating situation.”

Silverstein says the video with Kelley could be used as an exhibit in police de-escalation training. “It could show the police what not to do.”

He also dismisses the idea that Kelley’s movement — he touches his chest as he emphasizes that he knows his rights — could be interpreted as aggressive.

“If an officer wanted to claim he thought Darsean was reaching for a weapon, that is objectively unreasonable,” Silverstein says. “He had his hands in his air, and he was wearing a fitted T-shirt. There’s no way he could have been reaching for a weapon.

“… If this kind of action complies with police department policy,” Silverstein says, “then they need to change their policy.”

In a statement on its Facebook page dated September 8, the Aurora Police Department announced that Police Chief Nick Metz has directed its Independent Review Board (IRB) to review the incident. The board, a nine-member panel comprised up of a facilitator, two members of the police department, two “peers of the subject member” and four Aurora citizens, “may be used to review incidents that attract significant community interest.”

The statement says the IRB process is designed to involve the community in the disciplinary process of Aurora Police Department personnel.

Silverstein says the further review is important, but imperfect. “I wouldn’t call it an independent review. They choose a couple community members to participate, but I would hardly call it an independent review. Police are investigating themselves, that’s hardly an independent review.”

The Colorado Independent also asked Silverstein about the fact that this incident occurred despite the use of body cameras. At the end of the ACLU’s video, after Kelley asks to speak to a supervisor, one officer tells a then-seated Kelley to look up at the camera. “It’s all on video, sweetheart,” the officer says confidently.

The statement seems to go against the common public perception that body cameras encourage good behavior. But without the camera, Silverstein says, “we would have to rely solely on the narrative reports written by officers after the fact. The video still provides a mechanism for accountability. It could be evidence for a future civil rights action. For an incident like this, we are better off that there’s video.”\

Still, the video in question had to be requested by Kelley and his attorney, and until the ACLU intervened, it appeared the Aurora PD had concluded its investigation.

“It’s certainly good that they are taking another look at this,” Silverstein says, “but the police should have procedure in place to catch an outrageous use of force like this without it going to a video that’s shown to half a million people.”

Photo credit: Scott Davidson, Creative Commons, Flickr 

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