UNDISCIPLINED: Rogue Cops in Colorado, Part Two

PHOTO: Colorado Rep. Leslie Herod addresses supporters at her watch party on election night when she was a candidate for Denver mayor, in Denver, April 4, 2023. Photo by Kevin Mohatt for Colorado Newsline.

This story by Susan Greene, Colorado News Collaborative, and Andrew Fraieli, The Sentinel in Aurora, appeared on Colorado Newsline on October 19, 2023. We are sharing, slightly abridged, it in two installments.

Read Part One

A sweeping reform package passed by the Colorado legislature ordered POST to create a public database to, for the first time, flag officers who’ve lost their certification The legislature required departments to use the database to check job applicants’ disciplinary records. The assumption was that the information in the database would be complete and accurate. It is neither. In several ways, the information on POST’s database raises more questions than answers.

In 2016, Denver sheriff’s deputy Waylon Lolotai resigned while under investigation for excessive use of force.

The Boulder Police Department hired him about a month after that. Within three years, that department had launched its own use-of-force investigation against Lolotai for arresting Sammie Lawrence, a disabled Black man, by grabbing his walking aid and forcing him to the ground. Boulder ultimately paid Lawrence a $95,000 civil settlement for that arrest. While that inquiry was underway, Boulder Police launched another internal affairs probe against Lolotai — this time because he called for “use-of-force Fridays” on Instagram.

He resigned during that investigation in September 2020.

None of those investigations into Lolotai’s conduct, nor his resignations during them, show up on the POST database. Lolotai, whom we could not locate, remains certified to work as a police officer in Colorado.

Likewise, the POST database has 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 Elijah McClain. Responding to a complaint that the 23-year-old Black massage therapist and violinist looked “sketchy,” officers Randy Roedema, Nathan Woodyard and Jason Rosenblatt wrestled him to the ground before Woodyard put him into two dangerous carotid holds. They’ve each been indicted in connection with McClain’s homicide. Roedema was convicted and Rosenblatt exonerated by a jury earlier this month, and Woodyard’s trial started Oct. 16. None, however, showed up as subjects of criminal investigations because, as with Lolotai, their alleged misconduct took place before January 1, 2022, the date POST launched its database.

Most disciplinary actions that would land Colorado officers in the database don’t in fact show up if, like the cases above, the incident in question happened prior to 2022.

It’s not that POST doesn’t have that older information. The office keeps police discipline data dating as far back as 1979.

Nor do the laws that created the database expressly prohibit POST from listing records dating before 2022. Limiting the time frame never came up during 17 hours of public testimony about the 2020 bill, nor in the nine hours of testimony on the 2021 bill.

Colorado State Rep. Herod said she expected POST to include pre-2022 records when the database launched — and for a time it did. But the office deleted most of that information earlier this year after we asked about the timeframe of the misconduct listed.

The result: The vast majority of Colorado officers who have disciplinary actions taken against them or who quit or were fired during misconduct investigations have effectively had their disciplinary records shielded from public view. And, more importantly, those “bad apples” remain eligible to carry weapons of deadly force, and a badge, on public streets throughout the state.

POST Director Erik Bourgerie would not comment on the deletion of the pre-2022 data — nor, for that matter, on anything related to the office he has run for almost six years. He referred all questions to the office of Attorney General Phil Weiser, who chairs POST’s board and has led efforts to crack down on bad cops since taking office in 2019.

Weiser campaigned for his seat as Colorado’s top law enforcer partly on a call to create the database. He says the 2020 session — with its short bursts of activity amid COVID-19 recesses — sped by so fast he doesn’t remember if he or anyone else discussed the database’s time frame.

Weiser’s spokesman Lawrence Pacheco says the pre-2022 information never should have been visible to the public because the reforms that mandated the database did not specify what years should be included. Without that guidance, he says, the office relied upon state law that says new statutes are “presumed to be prospective” rather than retrospective.

“POST can only operate with the authority it has in statute,” Pacheco says on behalf of Weiser. Asked whether providing the public with information prior to 2022 would “violate” any law, he wouldn’t directly answer.

Herod makes a point of noting it was the AG’s office, not lawmakers, that decided not to include pre-2022 information.

With only 21 months of misconduct visible to the public, experts in police discipline say it could take at least a decade before POST’s database reflects the real scope of officer misconduct in Colorado. There were about 13,000 active officers in the state in 2022 and the database shows only 186 — or roughly 1.5% — with disciplinary actions against them. The percentage of currently active officers would be much higher if pre-2022 data were included.

In the meantime, victims of police abuses predating 2022 say the omission whitewashes their experiences at the hands of abusive officers.

“(The short timeframe) helps erase the accountability that I and many other people fought for,” says Sammie Lawrence, who calls Lolotai’s appearance of having a clean record in the public POST data a “farce.”

Herod says she “would be very much interested” in finding a way to require POST to include pre-2022 disciplinary actions. State Sen. Rhonda Fields (D-Aurora), another co-sponsor of the reform bill, agrees, calling it a “shame” that information is missing.

“These people are allowed to exist under the radar,” she says.

POST relies on police and sheriffs departments to report the disciplinary actions they take against their officers. But our reporting identified several that haven’t — and with impunity.

The Denver Police Department is one of them. Mary Dulacki, Denver’s deputy safety director, says the city forgot to inform POST that Denver Officer Shane Madrigal resigned while being investigated for his comments and actions around the 2021 shooting of carjacking suspect Cedrick Vick.

POST could withhold funding or impose fines on Denver and other departments for not reporting, but it has chosen not to.

Weiser says he prefers to educate rather than sanction local departments as they adjust to the new reforms. And he says POST has no statutory authority to conduct an audit to determine which departments aren’t reporting nor to investigate officer misconduct on its own. Asked whether any law prohibits POST from doing so, his office wouldn’t comment.

Rather, POST’s sole investigator — a job that has been vacant for five months — tracks criminal cases against officers so the office is aware of de-certifiable convictions, and reviews departments’ reports about officers’ untruthfulness to make sure decertification is warranted.

POST boards in other states have investigators actively combing for police abuses. Michael Becar, executive director of the International Association of Directors of Law Enforcement Standards and Training, says he used keywords in a digital news clipping service to sniff out bad cops when he was the POST director in Idaho.

“You just have to be proactive…”

POST is the only state agency that regulates law enforcement. But, Weiser says it doesn’t have the power to investigate or discipline officers whose departments have ignored their misconduct, leaving no other government agency to do so.

Weiser defends what he calls POST’s “federated approach” to police discipline as consistent with the state’s long tradition of local control. He says state government counts on local departments to handle misconduct internally and isn’t set up to police police more aggressively.

“I start from a position of trusting local and regional actors to act appropriately.” Asked why he would maintain that trust in the face of documented instances of non-reporting, Weiser wouldn’t comment.

“I try not to worry about things I can’t control,” he told us.

Colorado State Public Defender Megan Ring is frustrated with the status quo. “Public defenders see the same officers in multiple cases. We learn pretty quickly who the bad actors are and do all we can to identify them. Yet these bad officers show up over and over again in our cases. Clearly, not enough is [being] done to root them out.”

National law enforcement researchers say it’s naive for state regulators to count on police departments to self-report. They point to years of academic research into the so-called “blue wall of silence” — a well-documented unwillingness among law enforcers to report or punish officers for abuses of power. Police of all ranks have so much to lose in their jobs, social circles and community standing by reporting or punishing wrongdoing in their departments that, research shows, they tend to keep quiet.

“I can confidently say that there’s much more misconduct than what gets [reported] to the POST board in Colorado or any state,” says Rachel Moran, a professor at Minneapolis’s University of St. Thomas School of Law who studies police discipline. “What does, that’s just the tip of the iceberg.”
The power of prosecutors

Legislatures in five states have given their POST boards authority to decertify officers for any type of misconduct.

Colorado isn’t among them.

Powerful police unions long have argued that a fireable offense shouldn’t necessarily be a decertifying one. In most states, unions successfully have pushed to hinge decertification on criminal convictions rather than on police standards or other potentially subjective assessments of officers’ conduct.

There is no national database for the public to see if officers who have left police jobs under a cloud have gone on to work in law enforcement in other communities and states.

Attorney General Weiser calls creating such a national database “the next step” to improve police discipline, but civil rights advocates say he needs to focus on fixing what’s wrong with the system in Colorado before doing so nationally.

“We need to make sure state agencies like POST and the AG’s office are fully enforcing existing laws and creating a culture where Colorado’s law enforcement agencies go above and beyond to ensure maximum integrity,” Taylor Pendergrass, advocacy director for the ACLU of Colorado, says. “We also need to take a hard look at additional legislative solutions right now, especially small changes tightening up the law that might make a big impact on ensuring rogue officers are not sneaking into our police departments and out on the streets.”

“Clearly, as this reporting shows, there is a long way to go,” adds public defender Ring.

But several lawmakers say no one really wants to push for more police discipline laws this upcoming session — let alone refine ones already on the books from 2020 and 2021. Leaders in both parties say political interest in police reform has waned without any high-profile police killings in the headlines, at least for now.

The Sentinel in Aurora provided fellowship assistance to help make Andrew Fraieli available to the reporting team. Former Rocky Mountain Public Media Producer Brittany Freeman and Rocky Mountain Public Media Reporter Alison Berg contributed to this story. The Colorado Media Project’s Watchdog Fund provided grants to COLab and Rocky Mountain Public Media to help offset costs for public documents used in this reporting.