In De'Von Bailey's Case, Body Cameras Have The Power To Exonerate And Condemn Police
Police body camera video that shows the shooting of De'Von Bailey tells two stories. To a grand jury, it exonerated the actions of Colorado Springs police officers last summer. To Rep. Leslie Herod, a Democrat pivotal to the crafting of Colorado's expansive new police accountability law, it shows what the police did wrong.
"I don't believe that he should have been shot in the back. Period," Herod said. "He was running away. He should not have been shot."
Police approached 19-year-old Bailey, who is Black, and another Black man about a street robbery on Aug. 3. An officer ordered the men to put their hands up.
"We got a report of two people, similar descriptions, possibly having a gun. All right?" the officer said, according to body camera footage released 12 days after the incident amid public outcry. "So don't reach for your waist. We're just going to check and make sure you don't have a weapon."
As an officer approached from behind, Bailey turned and ran. An officer gave chase, yelling, "Hands up! Hands up!" and firing his gun. Four bullets hit Bailey, three in the back, killing him. Police found a gun on Bailey after they searched him.
After seeing police video, Bailey's family called the shooting an "unjustified killing." But, months later, on Nov. 13, Fourth Judicial District Attorney Dan May said a grand jury sided with the officers.
"Colorado's law is very carefully crafted that if the officer has a reasonable belief that the person has used a deadly weapon in a crime and is still armed, that they can use deadly force to prevent that person from being a fleeing felon with that deadly weapon," May said.
To Herod, who is Black, the term "fleeing felon" has a different meaning.
It's "a term that has a vestige in Jim Crow and slavery," she said. "Basically if you see a Black man running away from you, you can assume they're a felon and shoot them in the back."
Herod agreed with May on one point: footage from police body cameras was critical.
"It's the thing that sparked my work in this area, hearing what happened to De'Von Bailey," Herod said.
Under Senate Bill 217, which Gov. Jared Polis signed earlier this month, all local law enforcement agencies in Colorado, as well as the State Patrol, must wear body cameras if they are responding to a call or investigating a crime. Many agencies across the state already have body cameras. Those that don't will have until July 1, 2023, to get cameras in place.
The American Civil Liberties Union of Colorado is among groups praising the provision as one that will improve accountability across the state.
"As we have seen in some of police interaction with community, when there are allegations of excessive force — or deadly force, as it may be — the body cam has been very revealing," said Denise Maes, public policy director for the American Civil Liberties Union of Colorado.
The new law is also meant to end delays in the release of body camera footage to the public, which agencies could do by calling releases contrary to the public interest under the Colorado Criminal Justice Records Act.
Senate Bill 217 requires police videos be released to the public within 21 days of an allegation of misconduct or 45 days if an investigation is ongoing. It also requires departments to discipline officers, including firing them, if they purposely turn cameras off or try to hinder what they capture. Officers' Peace Officer Standards and Training certification could also be suspended for up to a year.
"When I initially wanted to run this bill in January, I didn't have a lot of support," Herod said.
As George Floyd protesters massed around the state Capitol in late May, that started to change, Herod said.
"I called it the punishment revenge bill," said Sen. John Cooke, a former Weld County sheriff. "I called it also, you know, 'I-hate-law-enforcement bill' and, to my friends, I said it's kind of like, 'F-the-police bill.'"
As the bill gained momentum among Democrats, Cooke and other Republicans sought to iron out differences. It passed with overwhelming bipartisan support. Cooke said body cameras show the difficulties of police work.
"I believe that body cams exonerate law enforcement far more than they indict them," he said. "So, I'm a big supporter of them."
The law also places a new light on old cases, like De'Von Bailey's, which was captured in stunning detail by police cameras.
For Herod, it inspired another provision in SB 217 that addresses the issue of when police can shoot or use other deadly force against suspected felons. Police may now only use deadly force against someone who, as they try to escape, pose an imminent threat to police or others.
"If this new police accountability law had been in play last August, or last July, before De'Von was killed, then charges could and should and would have been brought against these officers because there would be no defense," said Darold Killmer with the Killmer, Lane & Newman law firm in Denver.
Killmer has filed a civil suit in federal court in Denver on behalf of Bailey's family. It argues that Bailey was not an "immediate threat" to the officers' safety. That argument can be made at the federal level because of a 1985 U.S. Supreme Court decision (Tennessee v. Garner) that put limits on the use of force in cases where suspected felons flee.
"The Supreme Court said it is not better that people get shot than it is for them to get away so you have to use means less than deadly force to apprehend fleeing felons," Killmer said, adding, "Who is going to police the police? The answer is, almost always, no one."
Herod said the new law starts to answer that question; it aims to police the police. It prohibits use of force in minor cases and directs officers to intervene and stop any abuse of force by their colleagues. Should such safeguards fail, she said, the state's attorney general would be able to step in to hold officers accountable.
Footage from body-worn cameras, she added, is certain to guide the process.
KUNC's Adam Rayes contributed reporting to this story. Leigh Paterson contributed audio to the broadcast version of this story.