Editor's note: In July 2017, the City of Aurora agreed to pay $110,000 to settle a lawsuit filed by Darsean Kelly in regard to his tasing by an Aurora police officer, as described in the following post. Continue to read our previous coverage.
"I know my rights," Darsean Kelley announced to Aurora police officers during a February stop.
As he spoke these words, Kelley was facing away from the cops with his hands up — a pose that clearly made him no danger to anyone in the vicinity. But an instant later, he was shot in the back by a Taser and fell heavily to the ground.
The officer in question seems to have felt he had proof his response was justified, telling Kelley, "It's all on video, sweetheart" — a reference to his body camera, which was recording throughout the incident.
But the images didn't turn out to be as benign as this comment suggests. Indeed, the clip, which has been viewed well over half a million times at this writing (see a version of it below), is at the center of an Aurora Police Department analysis prompted by the ACLU of Colorado, which helped clear Kelley of any misconduct and is now considering its options in regard to the case.
"We don't talk about lawsuits that aren't filed," notes Mark Silverstein, the organization's legal director. "Our focus was on defending Mr. Kelley from criminal charges, which have been dismissed. But, of course, we'll be looking [to see] if there are additional things we can do to vindicate his rights."
On the night in question, the Aurora officers were in search of a man who'd reportedly pulled a weapon on a youngster. The ACLU maintains that the law enforcers had no description of the suspect, yet they decided to roust Kelley and his cousin anyhow, even though they were simply strolling along a sidewalk — a decision that smacks of racial profiling given their African-American ancestry.
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"They were doing nothing wrong," Silverstein stresses. "The police were on their way to a call when they stopped and detained these two young men, and that's when the video starts — with the police issuing orders to the young men. They ordered them to sit, and Darsean Kelley couldn't sit because of a medical condition" — in the video, he tells the officer he's suffered an injury to his groin — "but he put his hands in the air and asked, 'Why are we being detained, officer?'"
Instead of providing an answer, one of the cops ordered Kelley to put his hands on his head. Kelley responded by continuing to ask questions with his hands raised.
"The officers had seen him from both sides, and he was wearing a tight-fitting T-shirt, so it was obvious he didn't have a concealed weapon," Silverstein points out. "But when he said, 'I know my rights' and moved his hand to his heart, the officer tased him and he fell, hitting his head on the pavement."
In the end, Kelley was arrested and subsequently charged with failure to obey a lawful order — a move the ACLU was determined to fight.
"We met with the prosecutor early in the summer in an effort to persuade her to dismiss the case," Silverstein recalls. "When that didn't succeed, we filed a detailed motion with legal authority, asserting that the detention of the two men violated the Fourth Amendment and that there should be a hearing on our motion. Then, the Friday before the hearing, the prosecutor called and said she was dismissing the case."
As for the officers in question, the Aurora Police Department release reveals that a Force Review Board determined the actions against Kelley were "within policy."
The finding leaves Silverstein slack-jawed. "If this use of force was within policy, then the Aurora Police Department's policies need to be changed. And there's another way to look at it. If the use of force actually wasn't within policy, but Aurora is covering for the officers, the police department ought to have some internal mechanism to catch incidents like this and hold officers accountable without there having to be a video that's now had hundreds of thousands of views."
In the wake of the clip going viral, Aurora Police Chief Nick Metz authorized the department's Independent Review Board to look into the incident. After studying pertinent documents and quizzing the assorted parties, the panel, which includes an IRB facilitator, one police captain or commander, one police lieutenant, two "peers of the subject matter" and four Aurora citizens, promised to hold a hearing to determine whether discipline is warranted, then pass along a recommendation to Metz.
In October (update), the board shared its answers in regard to two questions: "Do you agree with the Force Review Board’s Findings in this matter that the force used was reasonable, appropriate, and within policy?" and "Is there anything in this incident that you think warrants additional awareness, action and/or investigation by the department?"
The answer to question one: "The IRB agreed unanimously with the findings of the Force Review Board that the use of force in this instance was reasonable, appropriate and within policy."
The answer to question two: "The IRB does not believe there is anything in this incident that warrants additional awareness, action or investigation."
Police chief Metz accepted the findings and is said to consider the matter closed. Nevertheless, Silverstein sees the procedure as a positive step.
"Sure, it's good for police departments to decide they need to review incidents of force — especially incidents of force like this, where the initial stop was unjustified from the get-go," he says. "These were two young men who were doing nothing wrong, but they were detained. And the situation escalated into something where police used what I think was unjustifiable force in making an arrest."
Here's the ACLU's treatment of the video.
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Editor's note: The original version of this post stated that the independent review board had not yet issued its recommendations about the incident. However, the information wasn't made public until after our report was published.