Grand jury finds officers justified in shooting death of De'Von Bailey in Colorado Springs

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COLORADO SPRINGS, Colo. (KKTV) - A grand jury found the officers who shot and killed a man in Colorado Springs while he was running from them were justified in doing so.

Still from the CSPD body-camera footage released Aug. 15, 2019

District Attorney Dan May made the announcement about the grand jury's decision in the case of De'Von Bailey on Wednesday.

"The family is very disappointed," Maury Newman the lawyer for the Bailey family told 11 News over the phone. "It's no surprise, it's the exact result you can expect when a tainted investigation is presented by a biased prosecutor. This is precisely the reason we have been calling for an independent investigation and an independent prosecutor from the very beginning."

The shooting happened on Aug. 3 of this year.

Colorado Springs Police Department spokesperson Lt. Jim Sokolik told reporters the night of the shooting that it started with a call for service on Fountain Boulevard near Circle Drive around 6:45 p.m. The caller said they had been robbed.

"[The officers] contacted the victims there, who pointed out two suspects," Lt. Sokolik stated. "Officers then made contact with the suspects, while detaining or attempting to detain those suspects."

During the confrontation, Sokolik said one of the suspected robbers, later identified as Bailey, appeared to reach for a gun. That's when officers opened fire. Bailey was shot three times in the back and once in the arm. The El Paso County Sheriff's Office investigated the shooting.

You can watch body camera footage from police at the top of this article. WARNING: the video contains graphic content.

The video shows officers initially talking to Bailey and another man about an armed robbery that was reported nearby. Bailey runs away when one officer tells the men they are about to be searched for a gun.

The officer can be heard yelling "hands up!" three times before firing multiple times.

A lawyer for the family, Darold Kilmer, said the footage doesn't show Bailey with a weapon in his hand at any time or with a weapon when he was shot.

"Colorado law is very carefully crafted that if an 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," District Attorney Dan May explained on Wednesday. "The grand jury is an absolute independent body. This is their investigation. This is their report."

Police say they found a gun on Bailey. You can see them cutting the pants off Bailey in the video before revealing what appears to be a handgun.

Click here to read a letter sent out by Chief Vince Niski of the Colorado Springs Police Department on the shooting and the grand jury's decision.

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The autopsy report was released just hours after the body camera footage several months ago. The report states Bailey was shot in the back three times and in the right arm once. He was hit in the heart, left lung, diaphragm and spleen. Click here to read the report provided to 11 News by Killmer, Lane & Newman, LLP.

The family of Bailey has been calling for an independent review, and Colorado's governor agrees. The mayor of Colorado Springs believes the governor's stance is politically motivated.

In September, Colorado Springs Mayor John Suthers Tweeted the following in regards to the investigation of the officer-involved shooting of De'Von Bailey:
"I would point out that the FBI and DOJ have jurisdiction to review the matter and it’s my understanding that they are doing so."

The Tweet came hours after multiple citizens attended a city council meeting and requested an independent investigation, outside of El Paso County. The El Paso County Sheriff's Office turned their investigation over to the 4th Judicial District Attorney's Office.

11 News reached out to the FBI to confirm their involvement in the investigation. Special Agent Amy Sanders, the media coordinator for the FBI Denver Division, sent the following response, "The FBI Denver Division is reviewing the facts surrounding the August 3, 2019 shooting incident in Colorado Springs, Colorado. The FBI has a responsibility to review all instances of officer-involved shootings, and is doing so in communication with Colorado Springs Police Department, El Paso County Sheriff's Office, and the District Attorney's Office to independently collect and review evidence in determining if there has been a federal civil rights violation."

The full series of Tweets from the mayor on Tuesday are as follows:
"We heard today from members of the community who are experiencing a great deal of emotion around the officer involved shooting of De’Von Bailey, and I empathize with all impacted. Regardless of the circumstances, the loss of a young life is very sad. It’s not an outcome that is ever desired, and it’s not an easy thing to process. I know there are very different perspectives on the incident itself and feelings of grief, anger and questioning that come from these different perspectives. As we await a legal resolution of this case, I urge our community to embrace a spirit of healing. As for calls for an independent investigation, as the Mayor, I do not have the authority to take the case from the elected DA. I also have no reason to urge it, as there is no legal or ethical conflict of interest that I am aware of. I would point out that the FBI and DOJ have jurisdiction to review the matter and it’s my understanding that they are doing so."

A rally was held on Aug. 22 by the family and community members, you can watch it at the top of this article.

On Aug. 22, Governor Jared Polis released the following statement on the investigation of De’Von Bailey’s Death:

“Our nation is grappling with difficult challenges concerning race and how we treat one another. It is more important now at this moment in time that our law enforcement agencies go above and beyond to maintain public trust and confidence," said Governor Jared Polis.

"Fairness and objectivity are key to ensuring the public trusts the integrity of any investigation. Given how the events have unfolded surrounding the death of De’Von Bailey -- the public details and video that have been shared and the questions that have been raised by the general public -- I hope that El Paso county takes steps above those legally required to additionally maximize the public trust in the investigation.

"I personally believe Colorado Springs residents would be best served by an independent review of the events surrounding De’Von Bailey’s death. An independent review would ensure the public’s confidence in the results, and maintain trust in law enforcement going forward. I encourage the El Paso County district attorney's office to consider turning the investigation’s findings over to another local jurisdiction for independent review, and if warranted, additional information gathering.”

The mayor sent a response to the message sent by Governor Polis.
Below is a statement from Colorado Springs Mayor John Suthers.
“The Fourth Judicial District protocol for investigating an officer involved shooting is in accordance with the law passed by the legislature, and the governor cites no legal or ethical basis that should cause the fourth judicial district (which includes El Paso and Teller Counties) district attorney charged with the responsibility to make a charging decision to recuse himself. In this instance the governor appears politically motivated. Of note, he does not take the position that every district attorney in every judicial district in Colorado, including Denver, Boulder and Pueblo, should recuse themselves from making decisions in officer involved shootings in their districts.

I'm concerned that he suggests a precedence with impacts he has not yet considered and does not understand, to include undermining the will of the people, who elected the public officials charged with carrying out legal responsibilities.

Some in our community are experiencing a great deal of emotion. I recognize that and empathize with all impacted. But this is a time for healing and allowing legal processes to run their course and not to act with political expedience.”

CSPD's account

Colorado Springs Police Department spokesperson Lt. Jim Sokolik told reporters the night of the shooting that it started with a call for service on Fountain Boulevard near Circle Drive around 6:45 p.m. The callers said they had been robbed.

"[The officers] contacted the victims there, who pointed out two suspects. Officers then made contact with the suspects, while detaining or attempting to detain those suspects."

During the confrontation, Sokolik said one of the suspected robbers reached for a gun.

"One of them reached for a firearm in their waistband. At least one of the officers involved did fire. The suspect was struck at least one time and has been transported to a local hospital."

Authorities confirmed Sunday morning that the suspect died at the hospital. His body is currently at the county coroner's office; an autopsy is pending.

The second suspect was reportedly taken into custody. Sokolik says no officers were injured.

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Witness accounts

But the family argued Bailey was misidentified and wasn't doing anything wrong that night.

"He was minding his own business with a friend of his and was just in the wrong place at the wrong time. Mistaken identity," stepmother Jacqueline Johnson told 11 News. "... From what we’re hearing from the witnesses there, that there was no robbery. This is what we’re hearing from the witnesses that was there, that De’Von was just there minding his business with his friend.”

Elizabeth Powell said she was hosting her daughter's birthday party in the neighborhood near the shooting scene and rushed to the nearby park as soon as she saw a police car pass by.

"As soon as we saw the squad car, we knew some of our kids were at the park. So, we went to go try and find our kids and as I was walking up the street the first squad car that we saw had pulled up on two young black, male, individuals and they were questioning them."

Powell said she watched as the confrontation unfolded.

"The next thing I know, the male in the black shirt turned around and he just started running. He didn’t have anything in his hands he did not brandish any type of weapon. The police officer did not try and chase him, did not try and tase him. He took out his gun and he shot him.”

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"We need justice and answers

Protesters took to the streets twice in the days immediately following the shooting.

"The excessive force that they used and, you know, police brutality, needs to stop and that’s the biggest reason we’re out here," protester Angelyna Reed told 11 News at a rally held Aug. 10.

"We are against gun violence in our city like we don’t want police shootings. We don’t want gun violence," said Shayana Dabney, president of CSU-Pueblo's Black Student Union.

The protests were intended to be peaceful, but police had to intervene during a protest on Aug. 5 when two bail bondsman drove up on motorcycles and showed their weapons.

"They did have guns on their hips. They approached the crowd. There was some sort of verbal exchange with the crowd, and then a physical altercation broke out with those individuals. During that fight, one if not both of those individuals did draw their sidearms," Sokolik said. “Officers did respond to that. There continued to be some altercation in the crowd, the police did respond. They did take those individuals into custody. And they have been arrested at this point.

"... It’s very concerning. It’s a constitutional right to peacefully protest and address the government when you’re upset. And that’s what we’re here to do, is to protect people’s civil liberties and their constitutional rights."

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An independent investigation

Colorado law calls for an outside law enforcement agency to investigate officer-involved shootings. Traditionally, the investigating agency is a neighboring one. In most CSPD cases, the El Paso County Sheriff's Office has been the investigating agency, and then the findings are passed on to the 4th Judicial District Attorney's Office.

Representatives of the Bailey family have argued this arrangement will not allow for impartiality.

"The very notion of due process in our country and our constitution requires a fair and partial investigation, and it cannot be done by the city itself. And I’m here to tell you it cannot be done by El Paso County either," said attorney Darold Killmer. "... The family of De’Von Bailey is entitled to rely upon the honesty and the forthright and thorough impartial investigation. And that’s what we’re demanding.”

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Mayor calls for patience

Prior to the release of the body-cam footage, Mayor John Suthers called on the public to wait for investigators to release their findings before reaching a conclusion.

"There is a great deal of evidence being gathered, and you really cannot come to any conclusion until all of the evidence is gathered. What you're applying is a Colorado statute that says under what circumstances police officers can use deadly force, and it has to do with whether they reasonably believe they're in imminent fear of bodily injury or death.

"... You can't look at a snippet such as the [surveillance video] in which a person's -- something's transpired and the person's running from it. You can't tell when the shots are fired or whether the shots have already been fired, and you have no clue looking at that what transpired to that, and that's going to be very vitally important evidence."

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El Paso County Sheriff's Office releases statement

The sheriff's office announcedthey would be releasing the footage earlier than usual. Typically, body-camera footage has been released after the 4th Judicial District has reached a decision on charges.

"The nation is grappling with difficult issues. Our community is not immune. The El Paso County Sheriff’s Office and the Colorado Springs Police Department have received multiple requests for the body-worn camera footage from the officers involved in the shooting last weekend. The Board of County Commissioners has also heard concerns from citizens throughout the County.

In order for the community to heal and come together, the investigation must be done correctly. To that end, we support transparency and the release of the footage. While CSPD is the ultimate releasing authority, we agree the release of the footage should be done at a time when it will not compromise the integrity of the investigation.

We are sensitive to the desire for the community to have all the facts and we ask for patience during this difficult time.

“The fabric of our community is strong and working together in difficult times will make us even stronger,” said El Paso County Commissioner Longinos Gonzalez. “While we wait for answers, I urge everyone to come together and show the nation that El Paso County can get through these tough times the right way.”

About 30 minutes after El Paso County sent out the statement, Colorado Springs Police sent a release stating the body-worn camera footage is expected to be released by the end of next week.

"Following the Sheriff’s Office’s announcement on the pending conclusion of its investigation in the Devon Bailey case next week, CSPD anticipates releasing body-worn camera footage from two responding officers at that time," a statement from the City of Colorado Springs read. "The footage scheduled for release captured the moments leading up to, including and immediately following the shooting. As the releasing authority, CSPD has committed to releasing the footage only at such a time when it will not jeopardize or compromise the investigative or judicial process. We thank the community for its patience as we work through the process required to effectively investigate an officer-involved shooting."

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Bailey family attorneys release statement

Killmer released a statement about an hour after the footage was released.

Today the City of Colorado Springs released some of the video evidence in the shooting death of De’Von Bailey on August 3, 2019. Many members of the media have inquired as to whether the family of De’Von Bailey has a statement in reaction to these videos.

Today at 2:00 p.m. the lawyers for the Bailey Family will hold a press conference to provide such a statement. The family is devastated at having seen this evidence of the wholly unjustified killing of their beloved family member. Since the wake for De’Von Bailey is today and the funeral is tomorrow, and given the circumstances, the parents of De’Von will not be available for public comment today, as they are grieving and attending to the burial of their son. We request that the media and the public respect their privacy during this profoundly difficult time.

The law of Colorado and the United States Constitution prohibit a law enforcement officer from shooting and killing a fleeing suspect unless the officer has probable cause to believe the suspect is imminently about to cause death or serious bodily injury to the officer or a 3rd party.

AS THE UNITED STATES SUPREME COURT HELD OVER 30 YEARS AGO:

“The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.”

Tennessee v. Garner, 471 U.S. 1, 11, 105 S. Ct. 1694, 1701 (1985)

The video evidence released today demonstrates that De’Von was not presenting any threat to the officers who shot and killed him while he attempted to flee. In addition, there is not a shred of evidence that De’Von presented an imminent threat or risk that he was imminently about to use a gun to harm anyone else. Instead, it is clear that he was merely trying to get away from the situation. Even if the officers had legitimate concern that a suspect might escape, the law strictly specifies that it is only when the officers have evidence that a person is in imminent risk of death or serious bodily harm may that officer use deadly force – a gun – to stop a person from fleeing.