Attorney: Colorado's "Fleeing Felon" Statute Is Unconstitutional

Last month, a grand jury declined to press criminal charges against two Colorado Springs police officers in the August 3 death of De'Von Bailey, nineteen, who was shot in the back while running away. However, an attorney representing Bailey's family questions the jurors' use of Colorado's so-called fleeing felon statute to justify the cops' actions and argues that the law as written violates the U.S. Constitution.

"Apparently Colorado Springs believes that statute gives them carte blanche to shoot anyone they think at some point has engaged in a felony with a gun," says Darold Killmer of Denver-based Killmer, Lane & Newman, LLP, whose firm has announced its intention to file a civil suit in the case. "That would be a breathtakingly unconstitutional view of the law."

On August 16, immediately following the release of body-camera footage from Sergeant Alan Van't Land and Officer Blake Evenson, the two law enforcers involved in the incident, we outlined the prospects for prosecution in our story "How Cops May Get Away With De'Von Bailey Homicide." As that piece noted, Bailey had a gun on his person at the time of the shooting — "deep within his basketball shorts," as Killmer told us in a previous interview. The weapon was retrieved by the officers who cut those shorts off Bailey after he hit the pavement on the 2400 block of East Fountain Boulevard in the Springs.

Bailey can be seen moving his hand toward his pocket at least twice during his interactions with Van't Land and Evenson — once while standing, and later while sprinting in the opposite direction. But he never came close to grabbing the gun, much less brandishing it. Moreover, the alleged crime that had prompted the initial call to police — a supposed armed-robbery attempt by Bailey and his nineteen-year-old cousin, Lawrence Stoker, of a man named Anthony Love — has been thoroughly discredited. When no robbery could be proven, Stoker was accused of misdemeanor assault, but on November 21, a jury took less than ten minutes to clear him.

Here's a video that compiles the body-camera footage of Van't Land and Evenson, preceded by 911 audio. The Van't Land material gets under way at around the ten-minute mark, while Evenson's starts at about 12:30.

Warning: The imagery is extremely graphic and may disturb some readers.


The investigation of the shooting was conducted by the El Paso County Sheriff's Office and the 4th Judicial District DA's office, agencies that Reverend Promise Lee, a Bailey family spokesperson, saw as being much too cozy with the Colorado Springs Police Department. And while the case was eventually presented to a grand jury, presumably as a sop to Governor Jared Polis, who called for an independent inquiry, Killmer believes District Attorney Dan May still managed to guide the process. He asserts that "the grand jury report was written by the DA."

The complete report is accessible below, but the following excerpt demonstrates how key the fleeing felon statute was to the decision to let Van't Land and Evenson skate:

In applying the law to the facts in this situation, there are two grounds upon which an officer is justified in using deadly physical force; one is commonly referred to as "fleeing felon," the other is self-defense and defense of others. The Grand Jury finds Sgt. Van't Land and Officer Evenson were legally justified on both grounds.

With regard to the "fleeing felon" statute, officers must have a reasonable belief that the suspect is committing, has committed or is about to commit a felony and is in possession of a firearm. These officers had a reasonable believe that Mr. Bailey had committed the felony of aggravated robbery and was in possession of a firearm. The law does not require that a suspect point a firearm at officers or others before they may use deadly force. Their obligation to protect the public is heightened in situations such as the one they faced on August 2, 2019, when the suspect was fleeing toward a public park and elementary school during daylight hours.

This passage doesn't acknowledge that it was the police who fired toward the latter locations. "There was a whole park loaded with people nearby and because [the officers] missed several times, the bullets were shot toward children," Killmer points out. "Ironically, they're the ones who created the imminent risk of serious bodily injury to the public, not De'Von."

Moreover, the second paragraph above broadly interprets the actual language of the statute, which doesn't mention concern about a potential future felony. The relevant section reads:

(2) A peace officer is justified in using deadly physical force upon another person for a purpose specified in subsection (1) of this section 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.

In Killmer's view, this edict runs afoul of U.S. Supreme Court precedent. He specifically references 1985's Tennessee v. Garner, which he describes as "a civil case in which the court held that, under the Fourth Amendment, when a law enforcement officer is pursuing a fleeing suspect, the officer may not use deadly force to prevent escape unless '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.' It was found that use of deadly force to prevent escape is an unreasonable seizure under the Fourth Amendment, in the absence of probable cause that the fleeing suspect posed a physical danger."

He adds: "The Tennessee statute that purported to authorize the police use of deadly force under those circumstances was ruled unconstitutional. To the extent Colorado Springs interprets the Colorado statute to justify the use of deadly force under these circumstances, that statute would be likewise unconstitutional."

That doesn't mean the statute would definitely be doomed should a court analyze it in the context of the Bailey shooting. "I believe the law is unconstitutional," Killmer reiterates, "but sometimes a federal judge will say, 'This law as applied to the facts would be unconstitutional,' but he doesn't necessarily strike the law down."

Still, he goes on, "I think it's a poorly written law that needs to be rewritten, especially if Colorado Springs and others think that it gives them permission to shoot someone under these circumstances."

Would that city consider settling a lawsuit from Bailey's family simply to preserve the law and the presumed protection it provides to officers who kill dashing suspects? "I don't know the answer to that," Killmer concedes. "Although I would like to think they would have an incentive to settle this case because of the tragedy and the loss inflicted, cities don't always think that way. But I'm sure police are in favor of this law. It broadens their authority to capture suspects and use their guns beyond what the Constitution allows."

To Killmer, the bigger picture is that "there was no reason these officers needed to shoot and kill De'Von Bailey. The worst-case scenario is that he gets away. And Tennessee v. Garner requires the police to have a reasonable belief of imminent risk or death to themselves or a third party — and the word 'imminent' is crucial. If De'Von had been walking around shooting people, there might have been a reasonable fear of imminent further carnage if he got away. But they had no basis to believe De'Von had shot a gun at anybody, and if he escaped, he wasn't going to randomly shoot people. In that circumstance, he might outrun them in that moment, but they could have arrested him the next day because they knew who he was and where he lived. It might have been annoying to them, and they might have been concerned, but that falls far short of the constitutional standard."

Earlier this month, the El Paso County Sheriff's Office released a cache of documents from the investigation that are also accessible here. Killmer and his colleagues are currently poring over them as they get ready for a civil suit, as they are in the case of Rifle resident Allan George, who was also shot and killed by police in August while jogging in the opposite direction; George was armed, but had only aimed the weapon at himself in an apparent suicide threat.

The officer in the George matter wasn't charged, either, and, Killmer says, "We expect they're relying on the same statute and the same interpretation of it. Mr. George was wanted for a felony, but it was a non-violent, non-gun-related crime. So when they shot him, it was only because he had a gun, even though he was running away."

In respect to the fleeing felon law, Killmer maintains that "police seem secure in shooting people running away not because other people are in danger, but because they're afraid they might get away no matter what the other crime might have been. That's why these two cases are a primer on why the law needs to be changed."

Click to read the grand jury report and the De'Von Bailey investigation documents.