Police accountability in Denver hampered by lack of documentation during protests

20 of the over 100 alleged police misconduct complaints from summer protests dismissed because investigators couldn’t ID officer

By: - December 16, 2020 2:07 pm

A firework explodes behind a line of police officers next to the Colorado state Capitol as protests against the death of George Floyd occur on May 30, 2020, in Denver. (Michael Ciaglo/Getty Images)

When Nick Mitchell, Denver’s independent law enforcement watchdog, received a formal request from City Council in June to conduct an investigation into the Denver Police Department’s aggressive crowd control methods during the summer protests for racial justice, he wasn’t surprised.

“I was already engaged in discussions with a lot of people, including city officials, who had concerns about what was happening,” said Mitchell, who was appointed by Denver Mayor Michael Hancock in 2012 as the city’s independent monitor for the Denver police and sheriff departments. 

To conduct the investigation, Mitchell and his team at the Office of the Independent Monitor reviewed hundreds of hours of video and audio footage, conducted dozens of interviews with law enforcement officers, and examined existing documents and reports compiled during the actions.

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The highly anticipated report, which was published on Dec. 8, outlines serious deficiencies in the Denver Police Department’s policies and practices around use of force during the first five days of the summer protests. The assessment also highlighted a significant lack of documentation by the department, which limited the scope of Mitchell’s investigation and will impact whether individual officers will face disciplinary action in the future.

“Much of the necessary information for that analysis was simply not collected by the DPD,” Mitchell wrote in the report. “The untracked munitions, the lack of officer rosters, the (body worn camera) footage gaps, the untimely and often vague Use of Force Statements, and the gaps in recording dispersal orders were an obstacle to our full after-the-fact analysis.”

“There was no way for police managers or command staff to evaluate whether particular teams of officers were running through less lethal munitions at disproportionate rates. (This) made it incredibly difficult for us to do that kind of analysis after the fact.” – Nick Mitchell, Denver’s independent monitor 

The police department’s Internal Affairs Bureau opened over 100 investigations in response to community complaints of police misconduct during the protests. As of Tuesday, 56 of the complaints were closed, with 20 being dismissed because investigators could not identify the officer involved.

So far, no officers have been formally disciplined as a result of the investigations.

“So for those cases, there’s no one to hold accountable,” Mitchell said.

“There are other reasons why an investigation may not be able to meet that preponderance of evidence threshold,” he said. “But that doesn’t necessarily mean that there wasn’t a problematic interaction or problematic use of force, it just means that the evidentiary burden couldn’t be met.”

More than 50 internal investigations still pending

During a media briefing on Dec. 8, Denver Police Chief Paul Pazen and Denver’s Executive Director of the Department of Public Safety Murphy Robinson publicly committed to implementing the 16 recommendations outlined in the report. 

“We take this report very, very seriously,” said Robinson, during the remote call. “We will use it, and its contents, to remedy policy operational practices and hold officers accountable when necessary.” 

During the call, Pazen would not answer multiple questions from a Denverite reporter about whether he would ask anonymous officers to come forward about misconduct. “The investigation process continues and we will hold our folks accountable,” he told the reporter.

Police officers walk through a cloud of tear gas as they try to disperse people protesting against the death of George Floyd in front of the Colorado State Capitol on May 30, 2020 in Denver, Colorado. (Photo by Michael Ciaglo/Getty Images)

On Nov. 20, Mitchell sent the police department additional videos that his team reviewed, separate from the community complaints, for further investigation.

“There were things that we saw while we were doing this investigation, that were not being investigated by internal affairs, but needed to be,” Mitchell said. “So we referred them to the department, saying, essentially, we think you need to open an investigation into these incidents.”

Denver police did not respond to a question on Friday about whether investigations related to these videos have been opened. A spokesperson said in an email that they are being reviewed.

Limitations to the independent investigation

During Mitchell’s investigation, he was denied access to evidence.com — an online database that houses the department’s body camera footage. Instead, the department selected videos from the database to send to Mitchell.

“It would have been better for us to have evidence.com to be able to look at the audit trails and the back end of that database and see all of the footage with our own two eyes,” Mitchell said. 

He said it’s unclear why he was denied access, adding that it’s his understanding that the city charter allows him access to law enforcement documents and databases. 

A police officer wears a body camera while responding to a call on Oct. 25, 2019. (Tony Webster via Flickr under license CC BY-SA 2.0)

A spokesperson for the DPD would not elaborate on why Mitchell was denied access to evidence.com.

“Allowing the OIM access to evidence.com would give access to all law enforcement sensitive information contained in that system, such as sexual assaults, homicides, etc,” the spokesperson said in an email. “We continue to work with the OIM and provide what is needed for their review, both proactively and upon their request.”

A patchwork of documentation during the first few days of the protests also inhibited Mitchell’s investigation. One issue: Denver officers were not required to fill out use of force reports during the protests until a lawsuit was filed in June seeking a temporary restraining order.

“(The reports) allows us in my office to provide some scrutiny over each use of force incidence and allows the police department to track uses of force,” Mitchell said.

On June 6, officers who had worked during the protests were asked to create use of force reports dating back to May 28. The effort resulted in over 400 reports, but Mitchell said they were insufficient in a number of ways.

“They were often extremely vague,” he said. “We would see the same narrative repeated by officers, day after day. Not often but in some cases it appeared to be boilerplate text. And officers themselves expressed concern in some of those documents about being asked to go back in time and record uses of force.”

There was also no effective tracking system for the number of less lethal munitions used against protesters during the first few days, according to the report.

“There was no way for police managers or command staff to evaluate whether particular teams of officers were running through less lethal munitions at disproportionate rates,” Mitchell said. “(This) made it incredibly difficult for us to do that kind of analysis after the fact.”

Without the necessary data, he was not able to quantify the volume of munitions deployed, but using purchase invoices, he determined that the department spent $200,000 on less lethal munitions during the first five days of the protests.

Mikayla Hinton yells into a megaphone as thousands of people rally next to the Colorado State Capitol to protest the death of George Floyd on May 30, 2020, in Denver. (Photo by Michael Ciaglo/Getty Images)

Another issue: The Denver Police Department wasn’t keeping track of who was working during the first four days of protests. On June 1, the first day a roster was completed, approximately 150–200 officers were working during the protest, but only 38 body camera videos were produced. On the same day, 124 arrests were made, according to the report.

Given the lack of body camera footage, Mitchell’s team was not able to determine if the appropriate dispersal orders were given to protesters before less lethal munitions were deployed. 

“They were not routinely documented in audio, video or in writing by the police department,” Mitchell said, adding that it is standard protocol to document dispersal orders. “In only a significant minority of those interactions did we see dispersal orders being provided by the police department, and in some cases when they were provided, they didn’t really comply with the policy or the national standards.”

Improving community outcomes depends on access to law enforcement data

For Andrea Borrego, an associate professor of criminal justice and criminology at Metropolitan State University of Denver, one of the biggest takeaways from the report was the need for state and local governments to step in and implement laws that require better reporting procedures for law enforcement agencies. 

“Without data on this stuff, we can’t inform police how to better improve their practices,” said Borrego, who’s taught at MSU since 2015. “It really all comes down to lack of documentation, which is really hindering the improvement of police departments and the improvement of police relationships with the community.”

It really all comes down to lack of documentation, which is really hindering the improvement of police departments and the improvement of police relationships with the community.”Andrea Borrego, associate professor of criminal justice and criminology at MSU Denver 

Borrego said law enforcement agencies are typically “protective” of their internal data, often seeing public inquiries as unwarranted investigations.

“But the goal here is public safety, and to achieve public safety, we have to have trust,” she said. “If you’re always protecting your data, how can you have those honest discussions? That lack of openness creates these tensions that we see play out.” 

Borrego said that historically, disciplinary action is rare in these cases due, in part, to lack of documentation.

Demonstrators march east on 14th Avenue in Denver on May 28, 2020, as part of the George Floyd protests. (Quentin Young/Colorado Newsline)

“These protests aren’t something new,” Borrego said. “It’s something that police agencies have to be ready for and have to have a plan implemented.”

“They need to have plans based on historical data, data within their own department, data in their communities, on how they’re going to respond to such things,” she said.

Borrego said a big part of improving these outcomes is requiring more robust training for law enforcement officers, transparency around accountability measures and clearer lines of communication from commanders — recommendations also made in the report.

“Police are meeting peaceful protesters with more force than they should be, we see that over and over and over again,” Borrego said. “The police officers are the professionals in this situation. They are the front lines, they get paid to do this.” 

“Accountability is up to police officers and local governments to solve these problems,” she said. “It is not on the community, and it shouldn’t be taken out on the community when they’re following their constitutional rights to express frustrations.”

Mitchell said he will be following how the police department implements his recommendations, and how officers behave during future protests.

“I expect that there would be, if not another report, then a chapter in a future annual report that includes an assessment of what the department has done to implement the changes,” Mitchell said, adding that if similar protests arise in the future, he will be watching closely. 

Summary of key recommendations outlined in the report

Changes to DPD’s Operations and Crowd Management Manuals:

  • Implement a tracking system for the use of less-lethal munitions
  • Complete rosters of all officers assigned to crowd control events
  • All officers must wear body-worn cameras regardless of rank. Supervisor regularly compare rosters with the BWC database to identify any gaps
  • Create use of force reports promptly and have supervisors review them frequently to identify issues

Use of Force:

  • Supervisor routinely issue multiple dispersal orders before using force to disperse crowds (when time and circumstances permit)
  • Record crowd dispersal orders and document them in writing 
  • Display badges and badge numbers on uniforms or protective gear at all times
  • Only officers with certifications are allowed to use pepper balls and 40mm launchers 
  • Ban the use of rubber-ball grenades and limit direct-fired applications of pepperball 
  • Provide specific standards for when noise flash diversionary devices may be used

Mutual Aid Agreements:

  • Develop mutual aid agreements with neighboring jurisdictions 
  • Require partner agencies to adhere to DPD’s Use of Force Policy
  • Participate in periodic joint trainings and exercises with mutual aid partners to ensure a unified and consistent response

Convene internal stakeholders:

  • Evaluate possible operational issues that arose during the protests, including addressing concerns raised by supervisors and officers, such as: improving guidance for officers from the on-the-ground field commander; overcrowded and inaccessible radio channel; and need for increased investments in crowd control and field force training.

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Moe Clark
Moe Clark

Reporter Moe Clark covers criminal justice, housing and homelessness, and other social issues for Colorado Newsline.

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