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Colorado is in the minority of states keeping comprehensive police officer data secret

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Colorado is in the minority of states keeping comprehensive police officer data secret

Sep 20, 2023 | 5:30 am ET
By Sam Stecklow
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Colorado is in the minority of states keeping comprehensive police officer data secret
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(Scott Olson/Getty Images)

This commentary was originally published by the Invisible Institute and the Colorado Freedom of Information Coalition.

After the 2020 murder of George Floyd by Minneapolis police, Colorado lawmakers passed a bill requiring the state’s Peace Officer Standards & Training (POST) board to publish a public database containing some basic disciplinary information about police officers.

But Colorado still refuses to release a more extensive database of all law enforcement officers whom the state has certified to arrest people and carry a gun, and where they have worked.

The refusal to release this information makes Colorado one of just 15 states that keep this type of police officer data secret, according to a nationwide reporting project, preventing the press and public from adequately monitoring the state’s oversight of wandering or second-chance officers.

In other states where such databases are disclosed, reporters and researchers have shown significant gaps in state oversight systems that have allowed officers with troubled pasts to be shuffled to school district departments and passed around tiny suburban departments. Departments have failed to notify criminal defendants about officers’ histories of misconduct, and officers have continued to work in law enforcement even after criminal convictions. In Florida, researchers showed that wandering officers are not only more likely to be fired at their new departments, but also rack up even more citizen complaints.

“I don’t understand why it’s something that our state would want to keep from people,” said University of Colorado law professor Ann England. “Nobody wants officers that are getting fired from one agency to be able to go to another agency with impunity, with nobody knowing.”

Second-chance cops

In 2014, Rocky Ford Police officer James Ashby killed Jack Jacquez in one of the few on-duty police shootings in Colorado for which prosecutors have ever brought criminal charges. As the trial — which eventually resulted in a 16-year conviction — played out, Ashby’s status as a “second chance cop” was revealed.

He had been fired as a Walmart security guard in Pueblo. His personnel file from the Walsenburg Police Department revealed allegations of making vulgar remarks to female coworkers and excessive force complaints, one of which led to his resignation from the force.

Still, he ended up at the Rocky Ford department, which then-Denver Post reporter Chris Osher showed was a destination for “second chance cops,” also known as “wandering officers” — those who leave one police department after committing misconduct and simply find work at another.

Osher reported a series in 2015 showing how POST’s lax regulations allowed officers accused of serious misconduct to wander between departments — usually small, rural ones like Rocky Ford without large hiring budgets. This extended to officers who came from out of state and were granted training waivers by POST based on their previous certification elsewhere.

He did all this without the benefit of the comprehensive data POST maintains about police employment histories: POST refused his requests. Although the legislature then passed a modest reform law requiring police departments to at least review the histories of officers they hire from other agencies, it did nothing to ensure better public access to data that could show the true extent of the problem in Colorado — or require the state to track wandering officers.

Colorado’s stance puts it in the minority

More than 30 states make this type of information public, a coalition of news organizations found, including Colorado’s neighbors Arizona, Wyoming, New Mexico, Nebraska, and Kansas.

That group used to include Colorado — the state released its certification data at least once before, in 2004, records show. But now Colorado POST, which certifies and oversees police officers in the state, claims that releasing this basic information could reveal undercover officers to criminals and that it would be technologically impossible to provide electronic data.

Questions have been raised around both claims, but a Denver District Court judge and a panel of Colorado appellate court judges upheld POST’s denial of its database to Osher — now an investigative reporter and editor with the Gazette newspapers — and my organization, the Chicago-based Invisible Institute. We have petitioned the Colorado Supreme Court to take up the case, represented by Reporters Committee for Freedom of the Press attorney Rachael Johnson.

CORA or CCJRA?

The lower courts upheld a central claim by Colorado’s attorney general that POST, as a licensing agency for law enforcement officers, is itself a “criminal justice agency” and thus subject to the far more restrictive Colorado Criminal Justice Records Act (CCJRA) rather than the Colorado Open Records Act (CORA).

CORA entitles requesters to copies of public records kept in “sortable” formats (like databases) minus any fields of information that must not be released under state law. But the criminal justice records law has no such provision, and the standard to overturn a CCJRA denial is whether an agency abused its discretion in withholding the records.

Abuse of discretion?

In deciding that question, Denver District Court Judge J. Eric Elliff found that POST’s records custodian, Deputy Attorney General Natalie Hanlon Leh, had properly weighed the interests on both sides of the argument, even though there was no paper record showing she had considered the public benefit to releasing the data at all.

He also gave weight to her claims that POST’s enterprise database software, made by a company called Benchmark Analytics, could not query the data held within it to produce the information sought by The Gazette and Invisible Institute. “My understanding is you can’t just export data from these databases,” Hanlon Leh testified.

Elliff found there was “credible evidence” that fulfilling the request would be an “undue burden” for POST. But records POST released after this decision showed this is not the case. POST’s own RFP that Benchmark responded to stated clearly that the ability to query data was a feature POST was seeking in its software.

Benchmark’s bid submission went into more detail on its ability to meet this need: “Our reporting tool allows permissioned users to export reports in a variety of formats,” according to Benchmark. The tool can produce “a fully editable file that can be saved or manipulated by users” in multiple formats.

Hanlon Leh’s claims of technical inability were in service of POST’s larger claim that determining who is an undercover officer, in order to remove them from release, would be too difficult. Experts have questioned the premise of the argument. According to former Salt Lake City Police Chief Chris Burbank, the deep undercover policing that POST’s denial seems to anticipate just doesn’t happen anymore.

“When you look at these officers that they claim are undercover, they’ve been in uniform assignments the year before, or there’ll be a uniform assignment a year from now, and their names are already a part of the record,” he said in an interview. At the same time, during the time while they are undercover, officers use assumed identities, in his experience: “Any undercover officer who’s using their true identity is not really undercover.”

Upheld again — absurdly

The Colorado Court of Appeals upheld Eliff’s rulings and seemed to go beyond what POST had asked for. A three-judge panel found that essentially any public body that maintains criminal background investigations on employees could be covered under the CCJRA.

This throws decades of CORA practice and case law out the window, according to the Colorado Supreme Court petition filed to challenge this appellate opinion. Because many regulated bodies are required to maintain criminal background checks, “under the court’s ruling, every one of those governmental entities is no longer subject to CORA,” First Amendment attorney and Colorado Freedom of Information Coalition president Steve Zansberg said when the appellate opinion was released. “That is absurd and cannot stand.”

“It’s an absurd result,” RCFP’s Johnson agreed. “An agency could essentially say, ‘Oh, well, wait a minute, we review criminal records information, and we keep it. And therefore, we’re a criminal justice agency, so we no longer need to comply with CORA. We’re under the CCJRA.’”

Fighting for access

Since the Gazette and Invisible Institute’s lawsuit was filed in 2021, we have joined a national coalition of news organizations seeking police certification and employment history data in every state. Members of the coalition, convened by Big Local News, a program of Stanford University’s Journalism and Democracy Initiative, are fighting for data in some states where records were denied.

Besides Colorado, legal appeals have been filed in New York, Michigan, and Utah.

Access to police certification and employment history data is “definitely critical” for not only the public and media, but also wrongful conviction and criminal defense attorneys, said CU Boulder law professor England, a former public defender who directs the law school’s Korey Wise Innocence Project and its criminal defense clinic.

“You’re looking at the credibility of this particular officer, based on what role they played in the investigation. Those records can be helpful also because you can say, ‘Oh, they got fired after or they failed their training after they worked on the case.’”

A new database, with less information

In January 2022, the Attorney General’s office launched a different database, one it’s required to maintain for the public by the wave of reform legislation passed after George Floyd’s murder and the killing of Elijah McClain by Aurora police. It mostly exists to house information about disciplinary actions taken by POST, and down the road, some other kinds of records about misconduct by individual police departments and prosecutors’ offices.

But it also allows users to check the certification of any current officer — much of the information The Gazette and Invisible Institute are seeking, except for data about past employers and officers who weren’t decertified but are no longer actively employed. POST also established a way for officers, including those who may be undercover, to remove their names from the lookup tool.

So what prevents the state from releasing the rest of the data being sought in our request: the employment history of officers and data about officers who are no longer currently employed but were not decertified?

The state’s attorneys have argued in their own brief to the Supreme Court that the creation of the public-facing POST database was tantamount to the General Assembly “express[ing] a policy preference” for the particular information included in the law creating that database to be public — implying that lawmakers meant that nothing else should be. (State Rep. Leslie Herod, a prime sponsor of the bill, did not respond to requests for comment.)

But that is not how public records laws work in Colorado — not even the CCJRA. In 2005, the Colorado Supreme Court ruled that responses to requests for most criminal justice records must consider both the public and private interests at play — not simply go by the preferences of the records custodian, or use some process of elimination based on separate records that the legislature expressly made public.

“An agency can’t hide information from the public because they don’t want it to be known,” Johnson said in an email. “That would completely defy the purpose of CORA, the CCJRA, and it’s clearly not what the legislature intended by creating public records laws in the first place.”

POST won’t do it and won’t let us, either

While POST’s refusal to release its more comprehensive database makes it difficult to track wandering officers, some recent examples have come to light.

Jon Geiger, a Georgetown police officer decertified by POST in 2018 after a conviction in an excessive force case, got his certification back on appeal and was hired as interim chief for the tiny department in Nunn near Fort Collins.

Tim Collins, the Clear Creek County sheriff’s deputy seen in bodycam footage standing on the hood of Christian Glass’ car before Glass was shot by Collins’ fellow deputies, was hired in April by the nearby Georgetown Police Department.

Despite continuing examples of wandering officers in Colorado, POST has no program to track them. And the agency’s new online database will only include future terminations and resignations of officers while under investigation.

What’s more, police officials nationwide have said they fear an officer hiring shortage — also impacting Colorado — could allow for more opportunities for officers with histories of misconduct or poor entrance exams to find work in law enforcement.

“Every agency is screaming for more police officer applicants and so that makes hiring and the acceptance of officers who may have questionable backgrounds a problem for us,” said Patrick Solar, a former police chief in Genoa, Ill., and a criminal justice professor at the University of Wisconsin-Platteville. “To hire people to fill the ranks, we may intentionally or inadvertently lower our standards. It brings in the opportunity for officers who may run into trouble moving from one agency to the next.”

Without public access to POST’s data, “there’s nothing that the community can do to push back if that happens, because we don’t know,” said CU Boulder law professor England. “It’s a public safety issue. Who do we want on our streets, who do we want giving our tickets, who do we want running around and doing the work they’re doing?

“It’s part of the public’s right to know and feel safe in their community.”