Published: May 17, 2017 By

This piece is the opinion of its author, an attorney and a journalist

It is extremely rare for Colorado law enforcement to be charged with a crime after shooting people in the line of duty.

Supreme Court

Colorado's Supreme Court Building

On June 23, 2016, a jury convicted former Rocky Ford police officer James Ashby of murder in the second degree for shooting and killing 27-year-old Jack Jacquez in the line of duty. It is the only conviction of the kind in living memory. Ashby was the first officer since 1992 to even be charged with murder in the line of duty. Before that was a case in 1977. In both previous cases, the officers were acquitted.

As a former criminal defense attorney who has spoken to colleagues who have experience with these cases, I have come to discover these cases are very hard to prosecute.

Colorado law gives law enforcement a certain amount of leeway when it comes to use of force. The relevant statute, C.R.S. 18-1-707, reads:

A peace officer is justified in using deadly physical force upon another person… only when he reasonably believes that it is necessary:

(a) To defend himself or a third person from what he reasonably believes to be the use or imminent use of deadly physical force; or

(b) To effect an arrest, or to prevent the escape from custody, of a person whom he reasonably believes:

(I) Has committed or attempted to commit a felony involving the use or threatened use of a deadly weapon; or

(II) Is attempting to escape by the use of a deadly weapon; or

(III) Otherwise indicates, except through a motor vehicle violation, that he is likely to endanger human life or to inflict serious bodily injury to another unless apprehended without delay.

The “reasonably believes” language is the most problematic for prosecutors. Even if there are contradicting witness statements, prosecutors are required to take the officer’s subjective belief of danger into account if it seems at all reasonable under the circumstances.

If a suspect reaches toward their pockets or waistband, or makes any other sudden move, or has any type of object in their hands, an officer can claim they perceived a danger and took a shot to prevent it. Prosecutors cannot contradict that claim without sufficient evidence, such as video.

Even if a prosecutor decides to file charges, they must prove guilt beyond a reasonable doubt. That burden is made harder when juries are often made up of people who are raised to believe law enforcement are “the good guys” and therefore less likely to see them as murderers.

Prosecutors specifically cited this statute when they refused to bring charges against officers involved in the shooting death of Jessie Hernandez and Naeschylus Vinzant. In the case of Jessie Hernandez, officers claimed that she attempted to run them over with her vehicle, while in Vinzant’s case officers claimed he merely lowered himself into “an athletic posture or fighting stance.”

In both cases, prosecutors found the officers were justified in their belief that their lives were in danger.

Officer Ashby’s case was exceptional in that his version of events provided no reason to believe that he or anybody else was in immediate danger. His version of events also contradicted the physical evidence as well as statements made by his own partner and the deceased man’s mother. Ashby also had a checkered history of internal affairs investigations and misconduct claims, which lowered his credibility in the prosecutor’s eyes.

The other issue is use of force policy for police officers. After paying out $14.5 million over just three years for civil settlements involving use of force, Denver police have been undergoing a series of reforms to their use of force policy, encouraging de-escalation of situations to prevent use of deadly force.

However, the policy has received criticism from police unions who say input from officers was not taken into account, as well as criminal justice experts who found some of the language to be unclear or providing loopholes through which unjustified force can still be used. The lack of consistency and clarity in use of force policies, as well as training procedures that mandate officers shoot to kill whenever they feel threatened, create great confusion for officers who make life or death decisions within seconds. That is asking for disaster.

The law needs reform to give prosecutors the tools and ability to do their job when an officer truly does go rogue and needlessly takes lives. However, reform is also needed on the policy side, so there is less ambiguity for officers when they put their lives on the line. The Final Report of the President’s Task Force on 21st Century Policing is a good basis upon which departments can push reform, and it should see more acceptance among the rank and file as it encourages input from officers themselves instead of forced adaptation to new rules.