How Jared Polis Changed the De'Von Bailey Police Shooting Investigation

A family photo of De'Von Bailey.
A family photo of De'Von Bailey. Family photo
The fatal police shooting of nineteen-year-old De'Von Bailey in Colorado Springs on August 3, captured in body-camera footage that shows officers shooting Bailey in the back as he fled, had already inflamed passions that could explode, according to Reverend Promise Lee, a family spokesperson. But August 22 brought two major developments to the case.

First, Governor Jared Polis made his initial statement about the incident, expressing his preference for an independent investigation into the matter. And then Lee and attorney Mari Newman of the Denver firm Killmer, Lane & Newman LLP held a press conference in the Springs that underscored their call for agencies other than the El Paso County Sheriff's Office and the 4th Judicial District DA's office to conduct the investigation, pointing out concerns about the video that the City of Colorado Springs has made public thus far. (The compilation, which Lee described to us as a "fabricated documentary," is shared below, along with the entire press conference.)

Polis's take prompted Colorado Springs Mayor John Suthers, a former Colorado attorney general, to accuse the governor of political motivation, and Michael Rourke, who is both the DA in the 19th Judicial District and the president of the Colorado District Attorneys' Council, to suggest in an extremely passive-aggressive way that the governor doesn't understand the law.

Lawyer Darold Killmer, Newman's colleague, is much more favorably disposed to Polis's remarks, given his complaints about the video and concerns over estimates that the inquiry could take between ninety and 120 days to complete. "The idea that a very slow investigation is necessary doesn't make sense to us or the family," Killmer says, adding that if dragging things out for three or four months is a tactic intended to allow the controversy to fade, it's going to fail.

"The community is very, very intensely concerned about these events," he says, "and the statement from the governor's office indicates that concern is ascending."

The police video includes edited footage from body cameras worn by Sergeant Alan Van't Land and officer Blake Evenson, and it shows the officers questioning Bailey and his nineteen-year-old cousin, Lawrence "Spazz" Stoker, after what was originally reported as a "personal robbery" on the 2400 block of East Fountain Boulevard in Colorado Springs. Bailey had a gun in one pocket of his basketball shorts, and while he can be seen reaching toward the opening on two occasions (once shortly after encountering the cops and again as he sprinted in the opposite direction), he never comes close to grabbing it, much less brandishing it at anyone. It appears that he was simply trying to get away when Van't Land and Evenson opened fire on him from behind.

Here's the clip, preceded by 911 audio. The Van't Land material begins at around the ten-minute point, while Evenson's starts at about 12:30.

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

In an interview with Westword last week, Killmer argued that the El Paso County Sheriff's Office and the 4th Judicial DA's Office have far too cozy a relationship with the Colorado Springs Police Department to look into the situation with total objectivity. Instead, he floated the idea of the Colorado Bureau of Investigation and the office of Colorado Attorney General Phil Weiser taking over. After Reverend Lee subsequently expressed his hope that Polis would endorse this notion, Westword reached out to the governor's office on August 20 in hopes of getting a comment, without success.

The governor's silence on the issue ended in a big way at a press conference yesterday. His statement reads:
Our nation is grappling with difficult challenges concerning race and how we treat one another. It is more important now at this moment in time that our law enforcement agencies go above and beyond to maintain public trust and confidence.

Fairness and objectivity are key to ensuring the public trusts the integrity of any investigation. Given how the events have unfolded surrounding the death of De’Von Bailey — the public details and video that have been shared and the questions that have been raised by the general public — I hope that El Paso county takes steps above those legally required to additionally maximize the public trust in the investigation.

I personally believe Colorado Springs residents would be best served by an independent review of the events surrounding De’Von Bailey’s death. An independent review would ensure the public’s confidence in the results, and maintain trust in law enforcement going forward. I encourage the El Paso County district attorney's office to consider turning the investigation’s findings over to another local jurisdiction for independent review, and if warranted, additional information gathering.
Killmer says he is generally pleased by Polis's position: "The family fully supports the governor's call for an independent investigation. I think any fair-minded person who looked at this would reach the same conclusion." And while he would have preferred that Polis specifically referenced the CBI and Weiser's office, Killmer doesn't reject the possible involvement of other agencies out of hand. But he does offer words of caution.

"What we want to avoid is any referral made to a friendly jurisdiction," Killmer says. "We don't think it can be done fairly within El Paso County or Colorado Springs, but we also don't want them to hand it over to someone like [18th Judicial District DA] George Brauchler or someone else they feel will give them a favorable decision. It would be almost fraudulent to make it look like it would be fair but then give it to someone for which the results would be fundamentally preordained."

Suthers, for his part, is clearly insulted by the idea that agencies based in his community can't be trusted with this responsibility. He states:
The Fourth Judicial District protocol for investigating an officer involved shooting is in accordance with the law passed by the legislature, and the governor cites no legal or ethical basis that should cause the fourth judicial district (which includes El Paso and Teller Counties) district attorney charged with the responsibility to make a charging decision to recuse himself. In this instance the governor appears politically motivated.

Of note, he does not take the position that every district attorney in every judicial district in Colorado, including Denver, Boulder and Pueblo, should recuse themselves from making decisions in officer involved shootings in their districts.

I'm concerned that he suggests a precedence with impacts he has not yet considered and does not understand, to include undermining the will of the people, who elected the public officials charged with carrying out legal responsibilities.

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.
The emotion to which Suthers refers was in full display at yesterday's press conference with Bailey's family, seen here courtesy of 9News.

In his response to Polis's statement, Rourke, representing the Colorado District Attorneys' Council, doubled down on Suthers's allusion to state law (see link below):

Earlier [on August 22], Governor Polis issued a statement regarding the ongoing investigation into the officer-involved shooting of De’Von Bailey. In the statement, the Governor calls for a transparent, objective, and thorough investigation. The elected District Attorneys in this State agree that our goal in every officer-involved incident is to reach the right result and ensure public trust in the investigative process. The Governor may be unaware that the Colorado District Attorneys’ Council worked successfully with the Legislature to create a framework for how investigations such as these must be conducted. The result of that work was Senate Bill 15-219, now codified as 16-2.5-301(1). That bill, which the District Attorneys actively supported, requires the creation and utilization of multi-agency, independent investigative teams to investigate officer-involved shootings. It further requires the posting of these critical incident team protocols on agency websites for public access. Finally, it requires the District Attorney to post their findings and make them available to public. The intent of this law was to guarantee professionalism and transparency in response to these highly publicized incidents and to give the public a measure of trust in the outcome of the investigations.

The Colorado Springs investigation has been done by such a team, an officer-involved shooting response team known as DFIT, Deadly Force Investigations Team. This team was formed in response to SB15-219 and is fully compliant with those statutory requirements.

Once the investigation is complete, it is the responsibility of the elected District Attorney for that jurisdiction to review it, and to make an independent determination as to whether criminal charges, against any person, are legally and ethically sustainable under Colorado law. It is not the duty of an elected District Attorney to simply transfer investigations or cases to another DA simply because they are difficult, complex, or the subject of media coverage. We have complete confidence in the integrity, competence, and professionalism of 4th Judicial District Attorney Dan May and his staff. There has been no reason given, in the Governor’s statement or otherwise, to doubt the ability of Dan May to represent his community in this investigation and review.

Clearly the Governor felt the need to respond to the media attention that this investigation has received, but the elected district attorneys and our law enforcement partners handle these investigations routinely and do so with the utmost professionalism.
Neither Suthers nor Rourke mentioned criticism of the video released by the City of Colorado Springs, but Killmer thinks it demonstrates why agencies elsewhere should take charge of the investigation. When asked how local authorities have reacted to the request that raw, unedited body-camera footage be made available, the attorney notes that "we've been given no explanation whatsoever — and that only increases our distrust in the fairness of this process. Colorado Springs released to the public and the family only edited, selected portions of the evidence. Why won't they give us the entirety of the body-camera footage, the entirety of the dash-cam footage, the entirety of the 911 call?"

The reason they won't, he suggests, "is because they want to define the narrative favorably to themselves. They edited the video. They enhanced portions. They slowed down certain actions, and there are repetitions of things they want people to focus on. That's why we want them to release the raw footage, which would let us see things the way the officers on the scene did rather than having commentary off to the side."

Right now, there's no indication that authorities will acquiesce on this point, but Killmer isn't ready to wave the flag of surrender. "This isn't going away," he says. "The community of Colorado Springs, the broader community of Colorado and even the national community are going to keep these events in the public eye. I don't think it will work for the investigators and prosecutors to run out the clock, so to speak. I think people are going to keep the pressure on, as they should, until there's a full and fair investigation and a fair determination of what's to be done. And the governor wants that, too."

Click to read Colorado Senate Bill 15-219.
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Michael Roberts has written for Westword since October 1990, serving stints as music editor and media columnist. He currently covers everything from breaking news and politics to sports and stories that defy categorization.
Contact: Michael Roberts