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A family photo of De'Von Bailey.
A family photo of De'Von Bailey.
Photo courtesy of the Bailey family

George Floyd Echoes in Lawsuit Over Fatal Shooting of De'Von Bailey

The August 2019 death of Elijah McClain after being accosted by Aurora police officers is hardly the only Colorado case involving a young African American male that echoes the tragic killing of George Floyd.

That same month, nineteen-year-old De'Von Bailey was fatally shot in the back by Colorado Springs police officers while he was running away — and while Floyd's name doesn't appear in a just-filed lawsuit over the incident, the parallels are chillingly clear.

Attorney Darold Killmer of Denver-based Killmer, Lane & Newman, LLP, the firm representing Bailey's family, emphasizes that "the timing of our filing isn't related to the George Floyd events. Our game plan had been to file around now all along, and the George Floyd events coincidentally occurred — although it's actually less than a coincidence, because this happens again and again and again."

He adds: "What happened to George Floyd has captured all of our attention, but the idea of a black man killed at the hands of a police officer is nothing new, and that's one of our biggest problems. Our country's become acutely aware of racially biased policing because of the events in Minneapolis, but this problem didn't just begin. It's happened for generations, and when De'Von Bailey was killed last August, he became yet another young black man in a line of police brutality victims."

Colorado Springs isn't commenting on the lawsuit.

Unlike the McClain matter, during which the body cameras of the officers involved were dislodged (accidentally, they insist, although lawyer Mari Newman, Killmer's partner, doubts that), there's video of Bailey's death as disturbing in its own way as the footage that caught Floyd's terrible final moments. But extenuating circumstances, including a concealed weapon, prevented the images from garnering the national attention they deserved.

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On August 3, Sergeant Alan Van't Land and officer Blake Evenson, both of whom are defendants in the lawsuit along with the City of Colorado Springs, responded to a soon-to-be-disputed report of an attempted robbery on the 2400 block of East Fountain Boulevard. There they encountered Bailey and his nineteen-year-old cousin, Lawrence Stoker, who was later cleared of any wrongdoing. During the exchange, Bailey took off running, likely because he had a gun "deeply embedded within his basketball shorts," as Killmer describes it.

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 point, while Evenson's starts at about 12:30. (Warning: The imagery is extremely graphic.)

In the clip, Bailey can be seen reaching for his pocket at least twice during his interactions with Van't Land and Evenson. Early on in the Van't Land footage, he shifts his hand in that direction and begins trying to snake his fingers into the opening in the fabric, only to immediately move both hands away from his body and then raise them over his head after being ordered to do so. In the Evenson material, Bailey appears to be moving a hand toward the pocket again while sprinting away from the officers, only to quickly abandon the effort when it becomes clear that getting access to it is impossible.

The bottom line: Bailey never came close to grabbing the gun, much less aiming it at Van't Land and Evenson. "They discovered he had a gun after they shot him and were searching him — and even they couldn't reach it. They had to cut it out," Killmer notes. "So it was happenstance that he had a gun, and it doesn't justify using deadly force. The courts are clear on this. If he had brandished the gun or threatened someone with it or even said, 'I have a gun and I'm going to shoot you,' that might have given the officers justification to use deadly force. But as it was, this was two African-American men and one of them ran away — and in order to stop him from getting away, they shot him, which is unconstitutional under clear case law."

Nonetheless, the U.S. Attorney's Office announced in March that it wouldn't criminally charge Van't Land and Everson for their actions. Hence the lawsuit.

"The nub of the case is that with somebody who didn't fit the profile of De'Von Bailey — a young black man — it's probable that police wouldn't have resorted to just pulling their guns and shooting him in the way they did," Killmer says. "Assumptions and stereotypes, even if they didn't consciously understand them, led them to immediately escalate to deadly force when he was running away from police. I think the cops immediately detected that they couldn't catch him, so to apprehend him, they shot him in the back three times, killing him. If it had been a person of another socioeconomic status — someone not African-American — it definitely would have turned out differently."

As for why Colorado Springs is also targeted in the complaint, Killmer points out, "The contrast between how authorities reacted in the George Floyd case could not be more stark. The officers in the George Floyd case were terminated the day after it happened, and although it took three or four days for charges to be filed against the officer most directly responsible, charges were filed and later enhanced — and the officers involved in helping that officer kill him have now also been charged."

In his view, "That's the way it's supposed to work: The people who killed George Floyd will be held criminally culpable if they meet the elements of the crime. But none of that happened in De'Von Bailey's case. In fact, the opposite happened. The district attorney and the city circled their wagons to protect the officers. They ducked and dodged and only provided the information they wanted the public to see. They still haven't provided us with all the information we've asked for. So it's been very much a whitewash — an unhealthy and, I feel, illegal response from the city. It's the opposite of what happened in Minneapolis."

The ongoing demonstrations over George Floyd's death and the public's reaction as a whole "gives me hope that people will realize that this systemic racism is baked into our law enforcement agencies," Killmer concludes. "That's not to say all police are racist. But it is to say many of them are, and the agencies' response to these kinds of tragedies has been woefully inadequate for generations. That's why we filed this suit."

Click to read the Estate of De'Von Bailey v. City of Colorado Springs, et al.

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