Under fire for 24 years
Denver Police Department training remains deficient, a federal lawsuit says, despite calls for change since 1983. The police chief cites improvements but concedes his orders haven't always been followed.
By Christopher N. Osher Denver Post Staff Writer
Posted:04/24/2007 01:00:00 AM MDT
Updated:04/24/2007 06:27:52 AM MDT
An officer trains on a program that uses computer-generated images and lasers to test officers' instincts.
One law enforcement group deems such training insufficient. (Courtesy of Denver Police Department)
In 1983, Denver's top prosecutor became so alarmed by six deadly clashes between police and civilians in six weeks that he sent a letter to the police chief urging an overhaul of police training.
Now, 24 years later, a federal lawsuit asserts that Denver's retraining of its officers remained deficient despite former District Attorney Norm Early's warnings.
Until this year, the city did not consistently conduct annual retraining on such basics as when an officer can resort to using force against a suspect. That retraining is a requirement for accreditation by the Commission on Accreditation for Law Enforcement Agencies. It also is urged by the International Association of Chiefs of Police.
Court documents show that the city also did not begin documenting which officers actually were tested on their reflexes and split-second decisionmaking on when to shoot until 2005 or 2006. And that testing was on computer simulation models rather than using live ammunition.
Police Chief Gerry Whitman said in January that the department added a review of its use-of-force policy, which covers when an officer can use deadly force, to every-three-month marksmanship training. While that review had been previously ordered, Whitman said it was not always happening.
Change came after suit
The recent improvements came only after the city settled for $1.325 million a lawsuit from the family of 15-year-old Paul Childs, a developmentally disabled boy shot to death by police July 5, 2003, while wielding a kitchen knife.
"Before John Hickenlooper became mayor, I don't think some of these things were even on the table," said Timothy Rastello, the lawyer who represented the Childs family.
In the interim:
More than 168 civilians were shot by Denver police officers. That is a pace that ranked Denver sixth among the 51 largest police agencies in the nation in the rate of fatal shootings by police per resident, according to a 2001 Washington Post survey.
In 1988, a member of the department's elite Metro Special Weapons and Tactics Bureau testified that the city's training for when officers should shoot a suspect remained inadequate. His bosses demoted him for his testimony, a jury later found.
In 1989, a police detective testified in a wrongful-death lawsuit that the city had ignored Early's warnings and done nothing to improve standards.
In that same trial, a top criminologist, who went on to head the training of New York's police officers, testified that Denver's training was "far below the generally accepted police custom and practice."
In the aftermath of Childs' death, the city rewrote its use-of-force policy to encourage officers to find ways other than deadly force to resolve a dangerous situation. The city also created the office of police monitor, who reviews misconduct allegations against Denver police.
Despite that, a 2005 federal lawsuit on behalf of Frank Lobato, who was shot after an officer mistook a soda can for a weapon, argues that the city's training standards were so inadequate they constituted indifference to the constitutional rights of Denver's citizens.
Costs delayed training
Whitman, in a sworn statement he signed Jan. 16 of this year in connection with that lawsuit, stated he was aware the Commission on Accreditation for Law Enforcement Agencies and the International Association of Chiefs of Police recommend periodic, mandatory retraining of officers on use-of- force policy and law, but costs delayed the implementation of those recommendations.
It's training that other police departments have in place, including those in Seattle, Las Vegas, St. Louis, Phoenix and Austin, Texas, as well as Colorado Springs, Golden and Aurora.
"There are, unfortunately, significant cost implications for such retraining in a department as large as ours, which employs approximately 1,400 sworn officers," Whitman said in the statement.
He said that he decided to incorporate that retraining into the mandatory firearms marksmanship shooting every Denver police officer must take every three months. In addition, the city established a mandatory eight-hour handgun course in 2006, which every officer must take each three years, he added.
"Implementing those changes has taken longer than expected," he said in the statement.
Whitman said in a recent interview that the department's retraining of officers on when to shoot suspects and when to withhold fire have improved significantly, but he said he recently found that his orders weren't being followed in all aspects.
He said he was surprised to learn that use-of-force policy instructions weren't being given in connection with the marksmanship shooting every officer must pass every three months.
"That was directed to be done a long time ago," Whitman said. "And I checked to see if that was being done and got the answer that sometimes it was being done."
"They didn't do it consistently, but they are doing it consistently now in the live fire," Whitman said.
DA's letter surfaced in '89
Early's letter to the former chief surfaced in a 1989 wrongful-death lawsuit against the city and Officer Frederick Spinharney, who critically wounded 26-year-old Leonard Zuchel on Aug. 6, 1985, on the 16th Street Mall. Spinharney said Zuchel was armed with a knife. It turned out to be fingernail clippers.
Zuchel's family sued, and a jury eventually ordered the city of Denver to pay $330,000.
Early's letter was read in the trial. In the letter, Early urged expanded training on "strategic skills development: how to analyze situations, develop options, and select the option that minimizes the likelihood of a violent confrontation."
He urged the establishment of "periodic target course 'shoot- don't shoot' live training under street conditions, particularly for officers on the front line."
Early, in an interview on Monday, said he thought the Police Department took his suggestions about expanded training to heart, but court records and testimony reveal otherwise.
During the 1989 trial, then- Denver police Detective Ronald Wolf testified that Denver ignored Early's recommendations.
The trial also included the testimony of Dr. James Fyfe, a well- known criminologist who would go on to become deputy commissioner of training for the New York Police Department before his death in 2005.
Fyfe excoriated Denver's training standards on decisional shooting as "grossly inadequate," pointing out that it basically involved a training film for recruits. He testified that shoot- don't shoot instruction should involve more than whether to pull a trigger at the critical moment, and should include how to avoid getting into the predicament in the first place.
Fyfe further added that without the periodic live range training recommended by Early, "the standards of the Denver Police Department were far below the generally accepted police custom and practice at the time."
The 10th U.S. Circuit Court of Appeals upheld the jury's verdict after the city appealed, citing Fyfe's testimony and Early's letters.
Spinharney went on to become involved in two additional shootings. The city fired Spinharney after his third shooting in 1997 when he shot at the rear of a tire as a car pulled away. Spinharney said he thought the car was stolen, but it wasn't.
During Spinharney's March 12, 1998, civil service hearing contesting his firing, another officer, Robert Schneider, a member of the Metro Special Weapons and Tactics Bureau, labeled inadequate the city's retraining of officers on "decisional shooting," or when to shoot or not shoot a suspect.
Schneider would later contend in his own lawsuit that his testimony about inadequate training prompted his superiors to demote him. He won a $75,000 award from a federal jury on his claim of a retaliatory transfer.
Insufficient training tool?
Since 1987, the principal method for retraining officers on decisional shooting has been computer simulation models. The first computer program the city bought, the Firearms Training System, dubbed FATS, rotated among the district stations until the late 1990s.
A new version was bought in 1999, but it wasn't until 2003 that the city began rotating that version to the department's district stations for retraining of officers.
Capt. Steve Carter of the police academy said it was not until late 2005 or early 2006 that the department actually began documenting which officers received the retraining on the simulation programs, which rely on computer-generated images and lasers to test officer's instincts.
The Police Department also leaves it up to district commanders to enforce who receives that retraining, unlike the mandatory qualifying and training programs that are run at the police academy.
"District commanders should just require their staff to go through it," Whitman said. "That's just a common-sense thing."
Even so, the Commission on Accreditation for Law Enforcement Agencies says such programs are good training tools but ultimately insufficient.
"There is a high chance of liability and good possibility for death or injury in this work," said James Brown, associate director of the commission. "If you're carrying real bullets, you're going to practice with real bullets."
In 2005, the Police Department started requiring all officers who carry a handgun to go through an eight-hour refresher course on handgun protocol, including decisional shooting standards, Whitman said.
He added that a surge of new police recruits also has received enhanced training on decisional shooting during improved academy classes.
"Our ultimate goal is one- week, in-service training for every officer, but it's very expensive," Whitman said.