At 7:45 a.m. on Wednesday, January 16, the southern parking garage for Swedish Medical Center in Englewood was already busy. Staffers were arriving for morning shifts or leaving after working the previous night. People booked for early doctor appointments hurried in to get a jump on paperwork. And friends and family members of patients were arriving just ahead of visitation hours.
John Tolin believes his 26-year-old daughter, Chayley Tolin, fit into the latter category, since he had undergone a surgical procedure at Swedish the previous night. As a result of an infection, he’d had all the toes on one foot amputated.
She got to the parking garage in plenty of time, but Chayley, accompanied by her boyfriend, 37-year-old James Helms, never made it to her father’s room. Before she could make her way to the hospital, she was shot by a police officer while trying to flee the garage in a car that had been reported stolen.
John learned what had happened from his ex-wife and Chayley’s mother, Brenda Tolin, who only found out herself after her daughter’s roommate phoned.
“I confronted the hospital staff,” John recalls. “Of course they didn’t know anything about it until I asked to speak to the higher staff — hospital management or whatever. At first they denied everything. So I had to raise hell and told them I was going to go down and check the ICU. Then they told me she was there, but they wouldn’t tell me anything about how she was or if she would make it.”
She did, but it was a close call. “She was shot through the chest,” John reveals. “The bullet went through her lung and exited out the back. It missed her heart by three-eighths of an inch.”
Chayley, who’s now 27, faces sixteen charges, topped by attempted first-degree murder. But looming over her journey through the legal system, which includes a preliminary hearing scheduled for Thursday, March 28, is the question of whether she should have been shot in the first place.
Experts on police shootings argue that officers should not fire into a moving car unless the driver or passengers are using deadly force beyond the vehicle itself, such as a gun. Blasting away without such a precursor, they believe, unnecessarily risks the lives of cops, suspects and bystanders, often over car theft, which is viewed as a relatively minor crime. “Almost no one even goes to jail for stealing a car anymore,” says Chuck Wexler, executive director of the Washington, D.C.-based Police Executive Research Forum, a nonprofit, independent policing think tank.
The mandate against shooting into a moving vehicle isn’t a radical new theory. Wexler notes that it has been “the gold standard, one of the guiding principles in the use of force, for more than forty years. Yet there are still departments that haven’t changed this policy.”
The Englewood Police Department is one of them. A department spokesperson rebuffed a request to talk about the EPD’s tactical approach in even a general way that made no reference to the Tolin incident. But while the “Shooting at or From Moving Vehicles” section of the department’s policy manual admits that “shots fired at or from a moving vehicle are rarely effective,” it falls short of a ban. The operative line reads: “An officer should only discharge a firearm at a moving vehicle or its occupants when the officer reasonably believes there are no other reasonable means available to avert the threat of the vehicle.”
By shooting in a bustling parking garage (where — disclosure — a window of my wife’s car was shattered, likely by a bullet caroming off it), John feels the Englewood officers created other dangers, and not just to his daughter. “There were multiple shots, and there were so many people around at that time of the morning,” he says. “And Chay was unarmed. They had no weapons in the car whatsoever. I just don’t get it.”
Chayley Tolin remains in custody at the Arapahoe County Detention Center. According to her attorney, Deputy Public Defender Danielle Touart, corresponding via email, she “does not wish to be interviewed by any media outlets at this time.” Likewise, Helms, who as Chayley’s passenger faces no accusations related to the January 16 incident, hasn’t responded to Westword’s outreach.
That leaves Chayley’s arrest affidavit as the only publicly available account about what happened in the parking garage. Like most police reports, it’s written in a way that tends to justify the officers’ actions, and it casts Chayley in a harsh light.
The first person mentioned in the document’s narrative is L. Morales, an off-duty officer with the Pueblo Police Department. She is said to have been “conducting personal business” in Englewood when she observed what’s described as a “suspicious vehicle” with two occupants — Chayley and Helms — on the sixth floor of the Swedish parking garage. She called her dispatch center and provided the license plate number. Moments later, she learned that the car had been listed as stolen by authorities in Lakewood.
The Pueblo officer subsequently dialed 911 to inform Englewood police dispatch about the stolen dark-blue 1996 Ford Crown Victoria, and the affidavit confirms that several members of the local department responded. The first, Officer D. Smith, drove up to the car in a marked EPD sport utility vehicle, while the others approached on foot. But as Officer Smith stepped out of the SUV, the report states, “the female driver immediately drove out of the parking spot and narrowly missed hitting [his] patrol car as she drove away at a high rate of speed.”
Smith radioed that the driver was leaving the scene as the other officers scurried down the parking garage’s stairwell to the fourth floor, where their vehicles were parked. Among the latter group was Officer M. Creaghe, who told the affidavit’s author that he and his fellows emerged from the stairwell at about the same time the Crown Victoria came around a corner, “headed down towards them.”
The officers reportedly “began giving loud verbal commands for the vehicle to stop,” and it nearly came to a halt before “the driver of the stolen car revved the engine and suddenly accelerated at the group of officers.” Officer Creaghe contended that Chayley had room to zoom past the cops and out of the garage but “deliberately turned the vehicle towards the closest officer.”
No officers were hit by the car, yet the near-miss prompted “several shots.”
Immediately thereafter, Officer Creaghe heard screaming from Chayley. Even though she’d been hit, the document says, she kept driving, making contact with both a vehicle headed up the ramp from the third floor and another descending it before stopping on the second floor.
After Chayley was transported to Swedish emergency facilities for her gunshot wound, Helms agreed to speak to police about the events. He’s quoted as saying that he and Chayley met each other several years earlier and were “in a relationship.” After adding that they were “regular users of heroin and other drugs,” Helms told the investigator that Chayley obtained the Crown Victoria three days earlier, informed him that it was stolen, and volunteered earlier in the day “that if the police tried to stop them, she would not stop.”
One reason for this might have been an active warrant out of Gilpin County in her name; on January 14, she’d failed to appear for a hearing about a controlled-substance offense. Englewood police originally said Helms had been arrested on a Gilpin warrant, but a representative of the county’s courts says no one with Helms’s name or birth date is listed in the system, whereas Chayley is.
The dialogue in Helms’s telling is vivid. Once she spotted Officer Smith dismounting from the Englewood police SUV, the report claims, Chayley said, “Here we go,” and peeled out as he supposedly expressed profane dismay: “What the fuck?,” “No, no, no” and “Fucking stop!” Rather than taking his advice, Chayley “hauled ass,” in Helms’s words, causing officers to leap out of the way. Helms characterizes her as “fucking crazy” in the report, though he suggests that rather than trying to run down an officer, she was simply trying to “get away.”
This portrait of Chayley could hardly be more different from the one painted by her parents.
“She’s got a beautiful spirit,” says Brenda. “She was a very bubbly, smiley kid who made friends easily. She was always that kid who tried to be friends with the underdogs, the kids who got picked on. She befriended them and stuck up for them. She played the bass in orchestra and rode for the Westernaires for years.”
“Chay was a big-time lover of animals,” John stresses. “We had dogs and cats, and she trained the dogs to do all kinds of tricks. She wanted to be a veterinarian or a vet tech. She loves music, and she’s a good artist, too. She was actually doing some tattooing for a while. My son drew a Denver Broncos symbol on my arm and she tattooed it. She was always really social — just a happy girl.”
As the years went by, however, Chayley’s sunny world grew cloudier. She was diagnosed with lupus, a disease in which the immune system turns against the body. Organs, blood cells and joints can all be affected.
“She would wake up in extreme pain, especially in her shoulders,” Brenda recalls. “She would take medication for that — opiates. I can’t say for sure that she was addicted to opiates. But then she lost her insurance. She had Medicaid at one point, but she always got jobs — she worked as a waitress, a bartender and did home health care — that don’t offer insurance. Then someone introduced her to heroin, telling her it would take care of the pain and it was cheaper. She turned to heroin because she couldn’t obtain the medication she needed legally to help her get through her pain. And that became out of control.”
Accompanying these struggles were brushes with the law. Chayley’s first criminal charge came in 2012, and dozens more followed in later years. But many of the offenses were misdemeanors, and none prior to the parking-garage shooting were violent, with most pertaining to either narcotics use or identity theft. Typical were accusations from Lakewood of shoplifting and possessing drug paraphernalia. Helms’s Colorado Bureau of Investigation rap sheet contains two contempt-of-court beefs related to the violation of a protection order back in 2011.
As for the incident at Swedish, “I don’t know what happened,” Brenda concedes. “There are only a few people who know the truth. But I think what I’m angriest about is the way it was handled. I feel like they had time to plan the situation, but yet they didn’t plan it so that it would only be on one floor. Regardless of the circumstances, they allowed this to go on through an entire parking garage, risking, in my eyes, multiple situations. What if someone had been sitting in their car? What could have happened to them?”
Questions like these arose in New York City back in 1972 — and the repercussions of the death that instigated them continue to be felt in Colorado and beyond.
On August 15 of that year, as reported by the New York Daily News, ten-year-old Ricky Bodden was a passenger in a stolen Pontiac being chased and shot at by police. After the car stalled, Bodden and two other occupants abandoned it, with one winding up in a crouched position that made an officer think he was about to open fire — so he beat the suspect to the trigger.
That crouch resulted in fourteen-year-old William Graham being shot in the shoulder. Bodden, who unknowingly ran into the line of fire, was hit in the back and killed.
Bodden’s death led most immediately to two days of rioting. But the Police Executive Research Forum’s Wexler says it also persuaded the New York Police Department to thoroughly examine its policies and procedures, “and they realized that a high percentage of their officer-involved shootings were into moving vehicles. After looking into it, they decided they were going to prohibit it unless the force used was something other than the vehicle.”
This move was “significant and controversial,” Wexler grants. “Some people were afraid it was going to get police officers hurt or killed. But they did it anyway, and the number of officer-involved shootings started dropping right away.”
These comments are documented by John Timoney, former First Deputy Commissioner with the NYPD, in the Police Forum’s “Guiding Principles on Use of Force.” In 1972, Timoney writes, there were 994 shooting incidents involving the department’s officers. The next year, after the implementation of the regulations about moving vehicles and other reforms, the shootings fell by about a third, to 665. And since then, the figures have dipped much further, with the number of officer-involved shootings falling below 100 in recent years.
These statistics are incontrovertible in the view of Samuel Walker, a retired professor of criminal justice for the University of Nebraska Omaha and author or co-author of fourteen books, including New World of Police Accountability, whose third edition was published in January. But decades later, the policy isn’t in place everywhere.
“For the most part, I was under the impression that most police departments had developed defense-of-life standards for the use of deadly force,” Walker says. “But in the last number of years, when there’s been so much controversy about shooting into moving vehicles, it’s clear that all of them didn’t. And any department that doesn’t ban it is dangerously out of step with best practices.”
Denver was in this situation until a few years ago. And, as is all too common, it took a tragedy — the death of seventeen-year-old Jessica Hernandez — to effect change.
Between 2 and 3 a.m. on January 26, 2015, Hernandez and four friends fell asleep in a stolen Honda Civic parked in an alley. A few hours later, around 6:30 a.m., a neighbor called police, reporting a “suspicious vehicle” with its windows fogged. Two Denver police officers arrived just shy of 7 a.m., parked nearby and determined that the car had been swiped. Shortly thereafter, one of the teens spotted the police cars and awakened the others. “They’re starting to get hinked up and moving around a lot,” one of the cops radioed to supervisors. Two minutes later, after the car started rolling, shots were fired. Hernandez was killed.
As was the case with Bodden’s death decades earlier, controversy raged over Hernandez’s death, and it flared up again months later, on June 5, 2015, when the Denver District Attorney’s Office declined to criminally charge the officers. Then, on June 8, under prodding from the city’s Office of the Independent Monitor, which advocated in favor of the tactics backed by Wexler and Walker, the Denver Police Department announced that it had amended its use-of-force policy: “Firearms shall not be discharged at a moving or fleeing vehicle unless deadly force is being used against the police officer or another person present by means other than a moving vehicle.”
The similarity of this language and that in the Police Executive Research Forum’s guiding principles is no coincidence. After Hernandez was killed, Wexler reveals, “Denver’s police chief, R.C. [Robert] White called me up and talked to me about it. They thought they had an ironclad policy, but they wound up changing it, because their old policy didn’t work.”
Walker offers an explanation for what’s wrong with the old-school way of thinking.
“One of the reasons against it is that it’s difficult to hit a moving target,” he maintains. “You can’t be sure you’re going to achieve your goal of shooting that person. And the bullet could go astray and hurt some bystander, because it could ricochet. That’s the reason for no warning shots, no shots to wound. That’s pure Hollywood: It’s difficult to hit somebody in the shoulder and the shoulder only. The standard is, you use deadly force only when there’s an imminent threat to someone’s life, and you shoot to kill to protect life.”
He likens the limitations on shooting at moving vehicles to the evolving way that police handle vehicular chases. “There are some incidents where you do pursue,” Walker acknowledges. “But there are some incidents where you don’t, like when there’s the lack of a serious crime.”
The same theory should apply when weighing whether to shoot into a moving vehicle, he feels. “Unless there are some exigent circumstances, such as the person firing or pointing a weapon, the officer should probably just move out of the way. The officer knows the make and model of the vehicle and can probably get the license plate number even after stepping aside, so the odds of apprehending these people would be pretty high. There’s no public-safety rationale for shooting.”
Wexler emphasizes the benefits for cops, too: “A big part of this policy is the idea of officers not putting themselves in a position where they can get hurt. If you stand in front of a car, take out your gun and bark orders, you’re risking your life. And over what? A stolen car. An officer shouldn’t endanger his life over a stolen car. And killing someone over a stolen car is just morally reprehensible.”
Over the three-plus years since the Denver Police Department enshrined the shooting-into-moving-vehicles policy, the most prominent incidents of this type in the city have been exceptions to the rule.
In April 2016, for instance, unarmed bank robbery suspect Dion Damon was shot and killed in his car, but the vehicle wasn’t moving; it was parked near the Denver Art Museum. (Two years later, a wrongful-death lawsuit was filed in the Damon case.) Then, in February, Robert Martinez was killed and Sandra Pacheco injured in an officer-involved shooting into their moving vehicle, which also held two toddler-age children who weren’t hurt. But while the gunplay happened in Denver, a Jefferson County deputy assigned to a federal task force trailing Martinez, and not a member of the DPD, was the shooter.
The DPD declined to comment on the regulation change. “Due to recent cases of this nature, we think it would be inappropriate to speak about the policy, even in generalities,” a spokesperson wrote via email.
Wexler, for his part, wishes more departments that have adopted such policies would help spread the word. “One of the problems with policing is that there are no national standards in the United States,” he says. “We issue our guiding principles in the use of force, and you can look those up. But you often have smaller agencies that may not necessarily hear about these changes, and they wind up with policies that have been proven not to be effective.”
One way of instituting a more universal standard, at least on a statewide level, would be “if the legislature would take it up,” Walker points out. “There could be a legislative policy across the state to address the question: ‘Should the State of Colorado adopt a law that requires police departments to have deadly-force policies and a shooting-at-vehicles standard?’”
No such measures have been proposed in Colorado during the 2019 legislative session, and as a result, the current patchwork lingers, much to Walker’s chagrin. “It can sometimes get very depressing going to work given how many departments don’t adopt the best practices. We have 18,000 local police department agencies: 15,000 city police departments, and 3,000 sheriff departments in counties,” he notes. “And there’s no central controlling authority apart from Supreme Court decisions or, in the case of employment practices, federal legislation. So it can be very hard to develop professional standards that apply to absolutely everything, and you get the usual bureaucratic inertia until there’s some crisis.”
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That Chayley lived after being shot in Englewood prevented her from becoming the latest casualty of a nationwide scourge. According to a Washington Post database of police shootings, 161 people across the country died in officer-involved shootings while “fleeing by car” in 2018.
Still, Chayley didn’t have a smooth recovery from her chest wound. “I don’t think they kept her long enough in the hospital,” says John. “She got infected — she got MRSA [a bacterial infection] and then she got pneumonia, on top of battling withdrawal from heroin that was making her have seizures. She had to make several trips from the jail to the hospital because of all these medical problems.”
Chayley has stabilized medically in recent weeks, and John is hopeful that the attempted-first-degree-murder charge and the other fifteen accusations (eleven of them felonies) piled up by prosecutors won’t permanently bar her from redemption. “She’s looking at 48 years max in a penitentiary, and if she gets that, she’ll be 75 when she gets out — so her life would be pretty much over,” he says. “But the minimum sentence is sixteen years, and if she does what she needs to do, she could probably be out in half that time. Then she’d still have a long life ahead of her, especially if she’s proactive about bettering herself while she’s inside.”
Brenda still grapples with the shooting. “I understand to some extent that somebody’s life could have been in jeopardy because of what happened, and I don’t want to see an officer, or anybody, get hurt by a car or a person,” she says. “But we changed the rules about high-speed chases, because the risk to the community was just too great. And in my daughter’s situation, it’s not like she was in an open field. One of those bullets almost killed her. And it could have killed an innocent bystander, too.”