State lawmakers have made policing in Colorado more transparent and accountable. New reporting by COLab shows why additional reforms are needed.

By Jeffrey A. Roberts
CFOIC Executive Director

Powerful new reporting by the Colorado News Collaborative (COLab) and news organization partners shines a light on gaps and weaknesses in Colorado’s recent legislative efforts to make law enforcement more transparent and accountable in our state.

Without a doubt, reforms beginning with the 2019 passage of a law that opened many records of completed internal affairs investigations have made it easier for journalists and the public to scrutinize police activities and examine how police discipline themselves.

Before House Bill 19-1119, nearly all police departments and sheriff’s offices in Colorado routinely denied requests for records of officers investigated for allegations of misconduct, either with a blanket policy or a finding that disclosure would be “contrary to the public interest.” Before Senate Bill 20-217 and House Bill 21-1250, agencies could withhold body-worn camera footage indefinitely and there was no way for the public to check an officer’s certification status without combing through agendas and minutes of the Peace Officer Standards and Training (POST) board or asking POST staff.

But the COLab stories make it clear that additional legislative reforms and agency fixes are needed to adequately ensure police transparency and accountability in Colorado.

The first story in a series called “Undisciplined,” by journalists Susan Greene and Andrew Fraieli, focuses on a searchable public database, maintained by the POST board since the start of 2022. It is supposed to flag problem officers — those who’ve lost their certification, become the subject of a criminal probe, were found to be untruthful, resigned or retired while under investigation, or were fired for cause.

Required by sweeping legislative reforms enacted in the wake of George Floyd’s murder in Minneapolis and Elijah McClain’s death in Aurora, the database is used by agencies and the public to check the backgrounds of officers. But it is “beset with glitches,” as well as inaccuracies and omissions, COLab found, and aside from officer de-certifications, it only includes allegations of misconduct since Jan. 1, 2022. That presents merely a snapshot — nowhere near a complete picture — of officers who have been disciplined or those who quit or were fired while under investigation.   

For example, the POST database includes “no information about the involvement of three Aurora police officers in one of the most high-profile excessive force cases in state history” — the 2019 killing of McClain, the story notes. Nor does it include information about a former Denver sheriff’s deputy who resigned from the Boulder police force in 2020 while being investigated for calling for “use-of-force Fridays” on Instagram. It says nothing except “CERTIFIED” about a former Greeley police officer who took a plea deal after being charged for using excessive force. Similarly, it just says “CERTIFIED” about a former Denver police officer who, according to an internal affairs report, “made it known that he had zero regard for human life.”

POST, which is chaired by state Attorney General Phil Weiser and housed in the AG’s office, maintains police discipline data back to 1979. Asked why POST reveals no pre-2022 records besides decertifications, AG spokesman Lawrence Pacheco told COLab the legislation mandating the database provided no guidance as to what years should be included so POST relied on state law that says new statutes are “presumed to be prospective” rather than retrospective. 

But for those officers who do show up in the 2022-2023 data as having had disciplinary or untruthfulness issues, it is challenging to find out the circumstances of the allegations against them. The database lists dozens of officers who were “terminated for cause,” but it doesn’t mention the cause. Nor does it tell you why some officers resigned while under investigation or “in lieu of termination.” Many officers listed as “CERTIFIED” actually have lost POST certification.

The COLab project journalists dug deeper by requesting internal investigation records, complaints and disciplinary actions from 103 law enforcement agencies. That’s how they uncovered shocking details about the Denver officer who bragged to coworkers about his killings. But their reporting was stonewalled to some degree by a loophole in HB 19-1119 that lets agencies keep certain IA records confidential.

Although the 2019 law requires the public disclosure of records on completed IA investigations initiated after April 12, 2019, it only pertains to investigations that examine “the in-uniform or on-duty conduct of a peace officer … related to an incident of alleged misconduct involving a member of the public.” If an IA investigation concerned some other type of misconduct, such as domestic violence, an agency can withhold the records under the Colorado Criminal Justice Records Act by claiming disclosure would be “contrary to the public interest.”    

“For some of the cases where we were stonewalled, we were able to shoe-leather report on what happened,” Greene told the Colorado Freedom of Information Coalition. “But a member of the public might not have the time, skills or resources to do that.” 

Because of IA records denials, we don’t know why two employees of the Monte Vista Police Department, for example, resigned on the same day “in lieu of termination for cause.” We don’t know why a Mesa County sheriff’s deputy resigned while under investigation, another resigned “in lieu of termination for cause” and two more were the subject of credibility reports. We don’t know why the marshal of Bayfield in southwestern Colorado “retired while under investigation.” 

The state legislature in 2021 made a needed adjustment to the 2019 IA records law, removing a phrase that allowed agencies to withhold files if a requester didn’t identify a specific incident of alleged misconduct by an officer. It could further improve the statute by opening records of all completed IA investigations — not just those concerning incidents “involving a member of the public” — so that the public and journalists seeking to inform the public can learn details about problem officers listed in the database. 

Lawmakers should require POST to add older records to the database, at least the ones it already can access digitally. And they could further enhance transparency by declaring that POST’s more extensive set of records on certified and decertified officers is subject to disclosure under the Colorado Open Records Act, rather than the more-restrictive criminal justice records law. 

In a case brought by The Gazette and the Chicago-based Invisible Institute, the Colorado Court of Appeals recently ruled that the fuller database is off-limits, thwarting efforts by the press and public to monitor the state’s oversight of officers with troubled pasts, especially those who get hired by other departments. The news organizations have asked the Colorado Supreme Court to review and reverse the ruling.

The COLab project doesn’t address the body-worn camera footage aspect of Colorado’s new police transparency laws, but a loophole in that provision needs fixing as well. Following three recent officer-involved shootings, CFOIC recently reported, news organizations were denied body-cam footage because there had been no formal “complaint of peace officer misconduct.”

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