September 3, 2019 — New laws soon to go into effect will overall help law enforcement agencies increase public transparency and protections, local officials said.
House Bill 1119, signed into law in April, opens up certain departmental internal investigation findings to public view.
Under the new law, when there is an internal affairs investigation of an officer for on-duty or in-uniform conduct involving a member of the public, citizens can request a copy of the investigation’s summary, once it is complete.
The requester can thereafter also file another request for the full file pertaining to the investigation, although the document would be redacted of sensitive security and personal information.
The file can be withheld when it is associated with a criminal case, until that case is resolved.
“The basic idea here is, if there is an investigation of peace officer misconduct of some kind while that officer is in uniform or on duty, and related to a member of the public, then the results of the internal affairs investigation should be open and available to the public,” District Attorney Dan Hotsenpiller said.
Not all IA investigation results are subject to the new law. An officer may, for instance, be investigated for internal policy violations that do not involve a member of the public, such as falsifying his or her time card. In that scenario, the IA finding would constitute a personnel matter.
“The intent of the law was to try to increase transparency with law enforcement agencies and the public,” Montrose Police Chief Blaine Hall said.
“The Montrose Police Department, however, has always been transparent with citizen complaints and when a citizen gives us a call or makes a formal complaint with our agency, we take it very seriously.”
The agency routinely notifies the complainant of the results of its IA investigation, he said.
“This law will require us to do a few extra steps, which are, if the citizen wants a summary of the complaint, then law enforcement agencies will be required to produce a summary,” plus, subsequently, the full file upon request, Hall said.
Like Hotsenpiller, Hall said the law does not apply to all IA investigation results, for instance, when one peace officer files a complaint against another officer for workplace conduct not involving the public or illegal activity.
Hall and the DA support the new law.
“I’m all for transparency, as far as police officer conduct,” Hotsenpiller said, adding that prosecutorial conduct is also subject to public scrutiny.
“I think it’s important to show to the public that police officers are almost always doing their jobs at a high level of ethics, efficiency and effectiveness. It’s important that we investigate complaints about peace officers.”
The passage of the new law doesn’t mean no such investigations took place before.
Hotsenpiller’s office and other agencies are actively engaged in probing officer conduct, including via the Critical Incident Investigation Team. Under the team’s umbrella, agencies within the 7th Judicial District look at police conduct when someone is hurt or dies during a law enforcement contact.
Once the district attorney receives and reviews the findings, and issues a determination as to whether what happened was justified, the CIIT information become public.
Hotsenpiller’s office also investigates when officers are accused of committing crimes, such as in the recent indictment on an alleged sex offense of a former Ouray County undersheriff, Richard Herman.
“That case is just beginning. He’s presumed innocent until proven guilty. We understand that, but the point is that we’re investigating officers, and law enforcement agencies routinely investigate officer misconduct,” Hotsenpiller said.
“We want to demonstrate to the public that we hold officers accountable. They can have confidence that officers will be held accountable if they engage in illegal activity or misconduct.”
A second recent law, Senate Bill 166, requires agencies to inform the Peace Officers Standards and Training (POST) board when an investigation determines an officer was knowingly untruthful as part of his or her official duties.
If, after an appeals process, that determination is upheld, POST is now required to revoke the officer’s certification, meaning that person cannot be a sworn officer in the state of Colorado.
“That’s a good thing,” Hall said.
“That’s probably going to mean more than just a report that ‘I didn’t like the way the officer treated me during a traffic stop.’ Most agencies are going to try to figure out what happened, but not launch an internal investigation,” said Hotsenpiller.
“What we’re talking about is receiving some credible evidence that the officer made an untruthful statement in or on an official criminal justice record; while testifying under oath, including in an affidavit, or during an internal affairs investigation.”
Most agencies already investigate reports of official lack of candor; the new law requires them to complete that investigation, regardless whether the subject officer remains employed at the agency.
“That is a good thing, because what had happened in the past is, the officer who was the subject of an investigation would resign or reach an agreement to leave the department,” Hotsenpiller said.
“That generally stopped the investigation. … You now have to complete the investigation.”
Law enforcement agencies also have to employ “clear and convincing” standards in making their determination.
The POST board is currently developing procedures for appeal rights; additional federal and state due process laws also apply.
“That’s important as well,” the DA said. “We don’t want a situation where an officer who is simply not liked in a department is removed from employment by finding he or she was untruthful, but also then ends up losing their profession.
“We want to make sure the officer has due process rights to review the finding.”
It was possible before the law for an agency to seek POST-certification revocation if an officer was found to have committed a crime, or to have lied in his or her official capacity, but, said Hall, the new law solidifies the steps and processes by which it can happen.
“The intent overall is good,” he said. “We want to make sure our profession is one where if, through due process, there is a law enforcement officer found to have lied or committed a serious criminal violation — I don’t think you want those individuals serving in your community.”