A grand jury will decide if two Colorado Springs police officers were legally justified when they shot and killed 19-year-old De’Von Bailey, the 4th Judicial District Attorney’s Office announced Friday.
The DA’s Office normally reviews officer-involved shootings and routinely clears the officers of wrongdoing.
Friday’s announcement comes nearly two months after Bailey, 19, was shot four times in the back as he was running from Sgt. Alan Van’t Land and Officer Blake Evenson as they repeatedly ordered him to show his hands.
The Aug. 3 shooting garnered national attention and sparked several protests across Colorado Springs. Relatives and supporters of the young black man demanded an independent investigation into his death, citing ties between the Police Department and El Paso County Sheriff’s Office, which investigated the shooting.
Mari Newman, an attorney for the Bailey family, said the DA’s decision to present the case to a grand jury came “too late” and would not ensure partiality in the investigation.
“The grand jury’s ability to make a decision is only as good as the information provided to it,” Newman wrote in a statement to The Gazette.
“The investigation by the El Paso County Sheriff’s department is already infected by many conflicts of interest within that office, and within DA Dan May’s office.”
She said she was concerned that local prosecutors are “too reliant” on local police in presenting evidence to a grand jury. That evidence, she said, would likely be presented in a way that would lead to no charges filed against the officers.
“We’ve always believed [the case] should be presented to a grand jury by the Colorado Attorney General’s Office or even a prosecutor from another jurisdiction that has no relation or ties to the 4th Judicial District or Colorado Springs’ DA Dan May, who has deep conflicts of interest in the matter,” she wrote.
In announcing the grand jury investigation in a tweet Friday, the DA’s Office said, “There will be no further comment.”
The two officers stopped Bailey and his cousin, Lawrence Stoker, while responding to a report of an armed robbery in southeastern Colorado Springs. Both suspects matched descriptions given by the caller, who also told police that Bailey had a gun.
After Bailey was shot, footage from a police body camera shows officers found a pistol in Bailey’s shorts. At demonstrations at police headquarters and City Hall, his supporters called his death “murder” — saying he didn’t threaten anyone nor present a danger to officers as he attempted to avoid arrest.
Gov. Jared Polis called for an independent review into the shooting, saying it “would maintain public trust and confidence.” But Mayor John Suthers, a former prosecutor, opposed the idea, saying Polis failed to cite “legal or ethical basis” for the district attorney to recuse himself, and accused the governor of being “politically motivated.”
It’s relatively rare for the DA’s office to call for a grand jury to investigate an officer-involved shooting in El Paso County. The last time it happened was in July 2018, when a secret panel looked into a police shooting in which no one was hurt.
The grand jury found that officer Gerald Bellow, Jr. acted “unlawfully” when he shot at an armed home-invasion suspect. Bellow was indicted on suspicion of attempted first-degree assault, a felony, and reckless endangerment, a misdemeanor, court records show.
Before that, a grand jury had not conducted such an investigation in about seven years.
Under Colorado law, grand juries consist of 12 to 23 people. At least nine jurors are required at each meeting to reach quorum.
A chief judge, with the advice of the district attorney, selects the grand jury members. The court can decide to keep all of the information that might identify the grand jurors confidential, to protect the process or the jurors’ security.
The grand jury only hears witnesses called by the prosecution and has the power to subpoena witnesses. Unlike police, they can charge witnesses who refuse to cooperate.
If at least nine jurors agree, the grand jury can issue an indictment, charging an person with a crime, or they can decide that no crime occurred.
District Attorney Dan May repeatedly has called them a valuable fact-finding tool in cases where people are reluctant to cooperate.
Nationwide, it’s rare for police to face trial for shooting deaths and even more rare to be prosecuted.
There are a lot of reasons to explain why police rarely face criminal charges, said David Rudovsky, a civil rights lawyer in Philadelphia, noting the law allows police to use deadly force when a suspect poses an imminent threat to the officers.
Even when the evidence is presented to a grand jury, it’s uncommon for officers to be charged, he told The Gazette during an August interview.
“Things are changing in this country, but the attitude of many people is that police are here to protect us,” he said.
“They have dangerous jobs. We authorize them to use deadly force if necessary unless there is overwhelming proof than an officer has used deadly force in circumstances in which there was no risk to him or others.”