February 11, 2015

Randy Nelson,
Chief of Police
Thornton Police Department
9551 Civic Center Drive
Thornton, CO 80229
RE: Investigation of shooting and injury to Adams
County Sheriffs Deputy Michael Mike Robbins,
0320, in which Thornton Police Officer Brent Mullen,
95-9, fired shots on December 12, 2014, at 2614 W.
40th Avenue, Denver, CO.
Dear Chief Nelson:
The investigation into the shooting of Adams County Sheriffs Deputy Mike Robbins, in
which Thornton Police Officer Brent Mullen fired shots, has been completed. I conclude that under
applicable Colorado law no criminal charges are fileable against Officer Mullen. My decision, based
on criminal-law standards, does not limit administrative action by the Thornton Police Department,
where non-criminal issues can be reviewed, or civil actions where less-stringent laws, rules and legal
levels of proof apply. A description of the procedure used in the investigation of this officer-involved
shooting and the applicable Colorado law is attached to this letter.
STATEMENT OF FACTS
In the morning hours of December 10, 2014, a triple homicide was committed in Adams
County, Colorado. Adams County (AdCo) Sheriffs detectives quickly identified two suspects. In
the late afternoon of that same day, one of the suspects, Gabriel Flores, was arrested in Jefferson
County, Colorado, following a high speed chase. AdCo detectives also obtained an arrest warrant for
a second suspect, Furmen Lee Leyba, 7/27/84 (Lebya). A BOLO1 issued on December 11, 2014, in
conjunction with the arrest warrant included this alert: Triple Homicide Suspect; Considered
Dangerous.
On the morning of December 12, 2014, AdCo investigators received a crime stoppers tip
that Leyba might be in an apartment complex in Thornton, CO. As the address was in Thornton,
AcCo investigators contacted detectives with the Thornton Police Department so the two
agencies could work together. One of the AdCo investigators working the investigation was Det.
1

Be On Lookout.

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February 11, 2015

Mike Robbins, 0320.2 Det. Robbins met with Thornton P.D. Detective Sergeant Chris Fusetti,
69-32, and three Thornton officers, one of whom was Det. Brent Mullen, 95-9.
The investigators met briefly at a Walgreens near 88th Avenue and Washington Street
and set up a surveillance team at the apartment. Det. Robbins was driving an undercover van
outfitted for surveillance purposes; Sgt. Fusetti was driving an unmarked pick-up truck with Det.
Mullen in the passenger seat. The investigation team had obtained information about a phone
believed to be in Leybas possession and other investigators were working on establishing setting
up real time surveillance on that phone. Those efforts were successful. Investigators at the
Thornton location were advised the attempt to obtain geo-location information on Leybas phone
had been successful and investigators were getting location information.3 The first location
report investigators received suggested the phone was in the area of Yale and Zuni, in Denver.
The decision was made to leave a surveillance team at the Thornton location and other
investigators would respond to Yale and Zuni. Det. Robbins was among those who went to this
new location. When he arrived, AdCo Sheriffs Det. Daniel Monares, 0211, joined him as
passenger. Sgt. Fusetti was also dispatched to Yale and Zuni and he and Det. Mullen drove to
that location.
The phone information was being updated every 15 minutes. The information indicated
the phone was at a residence in this area. Det. Robbins told investigators they had set up in the
area and were about to contact Denver Police and coordinate efforts to apprehend Leyba, when
out of nowhere, a small motorcycle with two riders left the property they were focused on and
headed north. Det. Robbins stated he got on the radio and advised surveillance officers this
might be nothing, but we should follow it.
After Sgt. Fusetti and Det. Mullen arrived in the area, other surveillance officers, already
in place, advised they had observed a small motorcycle or minibike leave the area with two
male riders. Sgt. Fusetti and Det. Mullen were asked to attempt to catch up with the bike and
determine whether the suspect was one of the riders. Sgt. Fusetti told investigators that they
drove north on Zuni, looking in the area of Zuni and Evans, but were unable to locate the bike.
However, other members of the surveillance team were continuing the geolocation efforts on the
suspects phone. Sgt. Fusetti stated the phone was pinging about every fifteen minutes and
indicated the target was moving north. Based upon these facts, investigators concluded the
motorcycle they had seen leave the area was related to the phone they were tracking. The phone
surveillance information led them to 6th Ave. and Kalamath St., then to 36th and Vallejo St. and,
finally, to the northwest of 40th and Bryant where separate returns over a period of time
indicated the targets phone had gone to ground.
Sgt. Fusetti and Detective Mullen arrived in the area of 40th Avenue and Bryant Street
and set up surveillance in the area of 41st Avenue and Clay Street. AdCo detectives were also in
the area. Sgt. Fusetti recalled that about 15 minutes after he and Det. Mullen arrived, another
ping was received in the same area. The Thornton detectives drove down the alley west of
Bryant between 41st and 40th Avenues and, as they did so, they saw a black minibike parked by
2

Other members of the AdCo Sheriffs department involved in the surveillance operations were Sergeants Kevin Currier
and Jeremy Whytlock and Detectives Danial Monares and Mark Michieli.
3
Obtaining this information is often referred to as pinging a phone. The returns are similarly referred to as pings.

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one of the houses. They provided that information to the AdCo surveillance team and then
returned to the north end of the alley, at 41st Avenue.4 Investigators now believed they knew
Lebyas location. At 3:17 p.m., an AdCo sergeant contacted Denver Police and requested
uniformed assistance and support at 40th Avenue and Clay Street.
Dets. Robbins and Monares had also relocated to the area of 40th and Bryant. They heard
the Thornton P.D. surveillance team state they saw the bike in the alley. Det. Robbins set up his
van on the south side of the alley at 40th and Bryant and waited for additional officers to get into
position. It was while they were waiting they heard one of the Thornton detectives radio that two
people were on a motorbike, headed down the alley. Det. Robbins then saw two people on this
little bike come out of the alley.
The call Det. Robbins heard alerting the surveillance teams to the fact the motorbike was
moving was made by Sgt. Fusetti. In his video-taped statement, Sgt. Fusetti told investigators
he heard someone on the surveillance team advise that there was some activity at the house under
surveillance. A few minutes thereafter, Sgt. Fusetti saw two people, in dark clothing, come out
of a house, enter the alley, and get on the minibike. He advised the other cars in the area of
this fact and that the motorcycle proceeded south, down the alley. It did not appear to him that
the marked Denver police cars had picked up the bike, so he decided to follow it until a marked
car [could] get behind it. At this point, Thornton detectives were to the north of the motorbike
and AdCo detectives to the south. The Thornton detectives were in an unmarked pick-up truck;
Sgt. Fusetti and Det. Mullen were both wearing civilian clothes.5
The bike came down the alley toward Det. Robbins. It crossed the street at 40th and
continued south toward 39th. Det. Robbins decided to parallel the bike. He drove his
undercover vehicle down to 39th and stopped in the intersection at 39th and Bryant. The
surveillance team was communicating by phone and on an Adams County tactical channel they
were not in direct contact with the DPD cars in the area. Det. Robbins stated that he aired were
on 39th, now. We need Denver cars here. As he waited there, he saw two DPD patrol cars
come into the area. At almost the same time, Det. Monares said, Mike! Hes right there! The
bike is right there! Det. Robbins looked to his right and saw the suspect stopped in the middle
of Bryant Street, about 20 yards away from the undercover van.
Det. Robbins got out of his vehicle and came around his car. There were two people with
the bike, both of whom had stepped off of it and let it fall to the ground. He recognized one of
them as Leyba; the other party he did not recognize and he could not tell whether the party was
male or female. Det. Robbins drew his handgun and began issuing commands: Police! Dont
Move! Police! Dont Move! Leyba ignored his commands and started running west, up a
driveway and toward the alley. Det. Robbins gave chase, with Det. Monares either next to or
4

A black Ford Explorer had pulled into the area and stopped. The detectives thought this was suspicious they and the
AdCo surveillance team started watching this car. Eventually, it circled around the block and stopped at or near the house
where the minibike was parked.
5
Both officers were also wearing tactical vests which have embroidered police badges on the front and the word
POLICE prominently displayed on the back. Det. Robbins, by contrast, was dressed in plain clothes, wearing
black slacks, a blue undershirt, a black sweatshirt-jacket and a dark blue Chicago Bears ballcap. Emblazoned on
the front of the sweatshirt, in silver was BROOKLYN. None of his articles of clothing identified him as a police
officer.

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just behind him. Det. Robbins told investigators he was gaining on [Lebya], and saw him trip
and fall in the driveway, jump back up and continue running. When Leyba fell, Det. Robbins
saw a handgun fall from Leybas possession and slide on the pavement. Leyba did not pick up
the gun. Leyba hook[ed] into the alley with Det. Robbins right on his heels, estimating he
trailed the suspect by about 10 yards.6 What Det. Robbins did not know was that Sgt. Fusetti and
Det. Mullen were in the alley to which he was heading.
As noted above, Sgt. Fusetti had been following the motorbike down the alley. At one
point, he and his partner lost sight of the bike (they did not realize the motorcycle had exited the
alley and was driving south on Bryant). The Thornton detectives crossed 40th and, as Sgt.
Fusetti told investigators, realized this alley is a dead end. This is not a good spot for us to be
in. He later explained his concern that this could be an ambush situation. Sgt. Fusetti told
investigators that as he was putting his truck into reverse,
I see a male subject run out from behind the fence, um, toward us. So, I go all the way into park,
I open my truck door [and] Im drawing my gun and I come out to the edge of the truck door and
I am, uh, drawing my weapon on him. Were yelling get down! Get down! Get down! At that
point, um, my truck hood is kind of blocking my vision, but I see this torso kind of go down
behind [in front] of my truck. Um, at that exact same time, I am here [demonstrating how he was
holding his handgun on the suspect in front of the truck] and I see, from my peripheral vision a, a
gun coming out from behind the fence. Um, and then I hear shots starting to be fired from my
right. And, as thats happening, um, I kinda look up and the figure comes out from behind the
fence and he, kind of, turns a little bit, and as he turns a little bit, I could see what I thought was a
badge on his, um, I dont recall if it was a coat or a shirt, but I thought a saw a badge there
[indicating the upper chest], so I started yelling at Brent, um, Cease fire! Cease fire! Cease fire!
Friendly! Friendly! Friendly! And then Im yelling at those guys, Crossfire! Crossfire!
Crossfire! And I start backing up, toward the rear of my truck. Uh, because at that point I was
afraid that if there were other officers behind that fence they might start returning fire toward us,
um, so I was trying to take cover.

The shots Sgt. Fusetti heard were indeed being fired by Det. Mullen from his position in
the front passenger seat. Det. Mullen confirmed he and Sgt. Fusetti were watching the address
in the area of 40th and Clay or Bryant when he saw someone in dark clothing pushing the
scooter out of the yard or driveway into the alley, they had they had pushed it out into the alley,
and then somebody else in dark clothing had come out and got on it. The two officers followed
the motorcycle down the alley and, as they crossed 40th,
It looked almost like the, the, the alley had turned left because [the suspects] kind of disappeared
[to the] left. And we go as we as we drove down and got closer we realized that that alley
actually comes to a dead end. Theres a, theres a fence there. The alley doesnt go through to
any street. And then theres a fence on the left and a fence on the right, and theres an opening
here and theres an opening there, but truly, theres nowhere to go if youre a car. And as we got
up to there, I said to Chris, to Sergeant Fusetti, I said, this doesnt go through. We need to back
up!

The first four photos attached to this letter show the motorbike dropped by Leyba, the driveway which led up to the alley
(taken in daylight hours), the handgun dropped by Leyba just before he got to the alley and a close-up of that pistol.

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Det. Mullen told investigators that almost simultaneously with his making that statement, he
saw a guy, wearing a black jacket, come through the break in the fence and run towards them. He told
investigators the party was running at the passenger side of the truck. Det. Mullen was still in his seat.
He was aware Sgt. Fusetti had gotten out of the truck on the drivers side. From his position in the
truck, he drew his hand gun, but he was able to see the subject has
got nothing in his hand. And he goes down right, which would be like right in front of the truck to the
right. He goes down. And as hes down and I could hear Sergeant Fusetti over hear shouting Let me
see your hands! Let me see your hands! Out of the corner of my eye, I see the, the, the second person
come around what I believe was the second person come around that wooden fence. And I, and I from
here [demonstrating] and I come up here and I see a silver handgun and I know [this second party] is
not wearing a uniform. I, I know theres no uniform. I just see the handgun and I know its not a police
uniform.

Unbeknownst to Sgt. Fusetti and Det. Mullen, although the two people on the motorcycle who
were confronted by Dets. Robbins and Monares both ran, they ran in different directions. Leyba ran
west toward the alley with Robbins in close pursuit. The second party, later identified as Vanessa
Sanchez-Lopez, 1/31/82, took off in different direction. She was apprehended by police after she
forced her way into a residence and attempted to hide. The occupants of that residence, which was in
the 2500 block of 39th Avenue, alerted the police to her presence.7
Det. Mullen stated that when he saw a second person, dressed in dark clothing and armed with
a handgun, come around the corner close on the heels of the person who had gone to the ground in
front of the truck, he thought
were getting ambushed. This is the second guy this is the second guy who just got off the scooter.
Were getting ambushed. And [the second party] comes and he takes, I dont know it was one step or
two steps. I dont know. It happened it happened extremely fast.
He comes toward me and Im thinking, Im going to hear bullets hit the windshield because
hes got his gun out like this as he comes running, just like this guy did. And I dont know the distance
I would say its no more than, I dont know, 8 to 15 feet between where Im at and where hes
charging. And, as I come up [on target], I remember thinking hes going to start shooting me through
the windshield! Hes going to start shooting me through the windshield! And I, I start shooting
through the windshield, and as Im shooting, I hear Sergeant Fusetti say, Friendly! Friendly!
Friendly! And I immediately stop.8

Leyba was still down on the ground in front of the pick-up. Det. Mullen stepped out of the
truck and held Leyba at gunpoint while Sgt. Fusetti took him into custody. Lebya was not struck by
any of the rounds fired. Officers also alerted the Denver police dispatcher that shots were fired
officer down. This broadcast was aired at 3:53 p.m.
As was stated earlier, Det. Robbins was in close pursuit of Leyba when he ran up the driveway
and into the alley. Det. Robbins told investigators that when he came around the fence into the
alley, he saw Leyba skid to a stop. He then saw Leyba had stopped directly in front of a big
7

Sanchez-Lopez was charged by my office for crimes relating to her uninvited entrance into the residence.
Photo # 5 shows the front windshield of the pick-up truck. Photograph # 6 shows the view down the alley from the
passenger seat of the pick-up truck. A yellow evidence marker in the left center of the alley is positioned at the fence break
through which Leyba and Det. Robbins entered the alley.
8

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truck he knew to be a Thornton police vehicle. Det. Robbins had his police radio in his left hand
and his pistol in his right hand. He pointed his gun at Leyba and yelled Police! Get on the
ground. At that point thats when I hear rounds . . . round start coming. Det. Robbins first
thought he was caught in a crossfire. He told investigators he heard Leyba yelling, Im down!
I give up. At about the same time he realized he had been hit by a bullet. He went down to one
knee to check on his arm and said to Det. Monares, who he knew was behind him, Im hit.
Det. Robbins saw Leyba taken into custody but his role as part of the arrest team had
ended. An ambulance was called for him and he was transported to Denver Health Medical
Center, suffering from a gunshot wound to his lower left arm. He was advised by attending
physicians the bullet had fractured a bone in his arm.
Det. Robbins was armed with a silver/chrome .45 caliber Sig Sauer semi-automatic
pistol. He did not fire. Det. Mullen was armed with a .40 caliber Smith & Wesson M&P
Compact. This firearm may be loaded with ten rounds in the magazine and carried with an
additional round in the chamber. It was fully loaded with ammunition issued by the Thornton
Police Department. Firearms examiners and crime scene investigators recovered evidence
indicating Det. Mullen fired seven times.
The handgun dropped by Leyba was recovered by Crime Scene investigators. It was
determined to be a Taurus, 9mm semi-automatic pistol. There was no evidence this firearm was
discharged during this incident. It was delivered to AdCo Sheriffs investigators for analysis
relating to the triple homicide under investigation by that agency.
Leyba was the only witness to the shooting incident other than the officers whose
statements are discussed above.9 He was interviewed by investigators and, insofar as concerns
this shooting investigation, gave no information which contradicted or called into question the
statements of the officers. As he is being prosecuted in Adams County, it would be inappropriate
for us to provide details of any statements he made to law enforcement.

LEGAL ANALYSIS
Criminal liability is established in Colorado only if it is proved beyond a reasonable doubt that
someone has committed all of the elements of an offense defined by Colorado statute, and it is proved
beyond a reasonable doubt that the offense was committed without any statutorily-recognized
justification or excuse. While knowingly or intentionally shooting another human being is generally
prohibited as assault or homicide in Colorado, the Criminal Code specifies certain circumstances in
which the use of physical force or deadly physical force by a peace officer is justified. In this
investigation, the evidence establishes Officer Mullen intentionally fired the shots which wounded
Deputy Robbins. The determination whether Officer Mullens conduct was criminal is primarily a
question of legal justification.

Officers and investigators contacted numerous citizens who lived in the neighborhood. Several heard shouts and gunshots
and one or two saw the initial foot chase but none indicated they saw the actual shooting.

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February 11, 2015

C.R.S. 18-1-707 defines the circumstances under which a peace officer can justifiably use
physical force and deadly physical force in Colorado. In pertinent part, the statute reads as follows:
(1) Except as provided in subsection (2) of this section, a peace officer is justified in using
reasonable and appropriate physical force upon another person when and to the extent that he
reasonably believes it necessary:
(a) To effect an arrest or to prevent the escape from custody of an arrested person
unless he knows that the arrest is unauthorized; or
(b) To defend himself or a third person from what he reasonably believes to be
the use or imminent use of physical force while effecting or attempting to affect
such an arrest or while preventing or attempting to prevent such an escape.
(2) A peace officer is justified in using deadly physical force upon another person only
when he reasonably believes that it is necessary:
(a) To defend himself or a third person from what he reasonably believes to be the use
or imminent use of deadly physical force; or
(b) To effect the arrest or to prevent the escape from custody of a person whom he
reasonably believes:
1. Has committed or attempted to commit a felony involving the use or
threatened use of a deadly weapon; or
2. Is attempting to escape by the use of a deadly weapon; or
3. Otherwise indicates, except through a motor vehicle violation, that he is
likely to endanger human life or to inflict serious bodily injury to another
unless apprehended without delay.
Section 18-1-901(2)(e) of the Colorado Revised Statutes defines the terms Deadly weapon
and Deadly physical force as follows:
Deadly weapon means any of the following which in the manner it is used or intended to be
used is capable of producing death or serious bodily injury: (I) A firearm, whether loaded or
unloaded; (II) A knife; (III) A bludgeon; or (IV) Any other weapon, device, instrument,
material, or substance, whether animate or inanimate.
Deadly physical force means force, the intended, natural, and probable consequences of
which is to produce death, and which does, in fact, produce death.
Officers are entitled to rely on the doctrine of apparent necessity so long as the conditions
and circumstances are such that a person would reasonably believe, erroneously or not, that action was
necessary. See, People v. La Voie, 155 Colo. 551, 395 P.2d 1001 (1964), People v. Silva, 987 P.2d
909 (Colo. App. 1999). It is immaterial whether the individual shot by the officer was actually trying
to injure the officers or another, so long as a reasonable person, under like conditions and
circumstances, would believe the appearances were sufficient to require the action taken.
It is fundamental that the law of self-defense, which is emphatically a law of necessity,
involves the question of ones right to act upon appearances, even though such appearances

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February 11, 2015

may prove to have been deceptive; also the question of whether the danger is actual or only
apparent, and as well the fact that danger is not necessary, in order to justify one in acting in
self-defense. Apparent necessity, if well grounded and of such a character as to appeal to a
reasonable person, under like conditions and circumstances, as being sufficient to require
action, justifies the application of the doctrine of self-defense to the same extent as actual or
real necessity. Young v. People, 107 P. 274, (Colo. 1910).
As the shots Det. Mullen fired did not result in the death of another person, the force he used is
characterized as physical force, rather than deadly physical force. The test in determining whether an
officers use of physical force to defend himself or another individual was appropriate is whether the
nature and degree of force used is objectively reasonable after considering the totality of the
circumstances.
The question presented in this case is whether, at the instant Det. Mullen fired his handgun, he
reasonably believed his actions were necessary to defend to himself or a third person from what he
reasonably believed to be the use or imminent use of physical force directed against him or Sgt.
Fusetti. In order to establish criminal responsibility for an officer knowingly or intentionally causing
injury to another, the state must prove beyond a reasonable doubt that the officer doing the shooting
either did not really believe in the existence of these requisite circumstances, or, if he did hold such
belief, that belief was, in light of all available facts, unreasonable.
CONCLUSION
In order to determine the reasonableness of Det. Mullens actions, we must consider what he
knew (or should have known) at the time he fired the shots, in light of his training and experience. As
the United States Supreme Court has made clear, [t]he reasonableness of a particular use of force
must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight. Graham v. Connor, 490 U.S. 386, 396 (1989).10
The investigators were attempting to apprehend Fermin Leyba, a dangerous felon suspected in
a triple homicide in which handguns were the weapons of choice. Det. Mullen had every reason to
believe Leyba was one of the two people on the motorcycle he and his partner were following and
every reason to believe Leyba was armed. There were two people on the motorcycle and, because,
Sgt. Fusetti and Det. Mullen had lost sight of the motorcycle briefly, Det. Mullen had no basis for
knowing the two people who came through the fence break were not the same two individuals who he
and his partner had been following. Det. Robbins was not wearing anything which readily identified
him as a police officer and he, like the second person on the motorcycle, was dressed in dark clothing.
Det. Mullens belief that he and his partner were at risk of being shot was, in light of these facts,
objectively reasonable. As such is the case, we would not be able to disprove, beyond a reasonable
doubt, the affirmative defense established by C.R.S. 18-1-707.

10

Officer-involved shootings, locally and nationally, are and should be a subject of great scrutiny. However, to the extent
that observers and commentators fail to understand the constitutional prism through which they must be viewed and focus
more on what the community learns later, rather than what the officers knew or should have known at the time of the
incident, those observers and commentators do a grave disservice to public understanding.

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February 11, 2015

It is worth noting that each of the officers involved in this incident were courageous in their
attempts to apprehend a violent and dangerous criminal. We are gratified they were successful in that
effort and grateful the injuries Det. Robbins sustained were not life threatening.

As in every case we handle, any interested party may seek judicial review of our decision
under C.R.S. 16-5-209.
Very truly yours,

Mitchell R. Morrissey
Denver District Attorney
cc: Det. Brent Mullen; Donald Sisson, Attorney at Law; Det. Michael Robbins; Michael Hancock, Mayor; All City Council Members;
Scott Martinez, Denver City Attorney; Stephanie OMalley, Executive Director, Department of Safety; David Quinones, Deputy Chief of
Police; Mary Beth Klee, Deputy Chief of Police; Ron Saunier, Commander of Major Crimes Division; Greggory LaBerge, Crime Lab
Commander; Lt. Ron Thomas, Commander of Internal Affairs; Lieutenant Matt Clark, Major Crimes Division; Sgt. James Kukuris,
Homicide; Sgt. Ed Leger, Homicide; Detective James Meoni, Homicide; Detective Randall Denison, Homicide; Lamar Sims, Senior Chief
Deputy District Attorney; Doug Jackson, Senior Chief Deputy District Attorney; Nicholas E. Mitchell, Office of the Independent Monitor;
Rev. William T. Golson, Jr.

 Page 10

Photograph # 1

Photograph # 3

Photograph # 5

February 11, 2015

Photograph #2

Photograph # 4

Photograph # 6

OFFICER-INVOLVED SHOOTING
PROTOCOL
2015

Mitchell R. Morrissey
Denver District Attorney

he Denver District Attorney is a State official and the

Denver District Attorneys Office is a State agency.
As such, although the funding for the operations of
the Denver District Attorneys Office is provided by the City
and County of Denver, the Office is independent of City
government.
The District Attorney is the chief law
enforcement official of the Second Judicial District, the
boundaries of which are the same as the City and County of
Denver. By Colorado statutory mandate, the District
Attorney is responsible for the prosecution of violations of
Colorado criminal laws. Hence, the District Attorney has
the authority and responsibility to make criminal charging
decisions in peace officer involved shootings.
The Denver Police Department was created by the Charter
of the City and County of Denver. Under the Charter, the
police department is overseen by the Office of the Denver
Manager of Safety, headed by the Executive Director of the
Department of Safety. The Executive Director of the
Department of Safety (Executive Director), and the Chief
of Police are appointed by and serve at the pleasure of the
Mayor of Denver.
The District Attorney has no
administrative authority or control over the personnel of the
Denver Police Department. That authority and control
resides with City government.
When a peace officer shoots and wounds or kills a person
in Denver, Colorado, a very specific protocol is followed to
investigate and review the case. Officer-involved shootings
are not just another case. Confrontations between the police
and citizens where physical force or deadly physical force is
used are among the most important events with which we
deal. They deserve special attention and handling at all
levels. They have potential criminal, administrative, and
civil consequences. They can also have a significant impact

on the relationship between law enforcement officers and the

community they serve. It is important that a formal protocol
be in place in advance for handling these cases. The
following will assist you in understanding the Denver
protocol, the law, and other issues related to the
investigation and review of officer-involved shootings.
For more than a quarter century, Denver has had the most
open officer-involved shooting protocol in the country. The
protocol is designed to insure that a professional, thorough,
impartial, and verifiable investigation is conducted and that
it can be independently confirmed by later review. The fact
that the investigative file is open to the public for in-person
review at the conclusion of the investigation and review
process, permits not only formal legal reviews to occur, but
also allows for any citizen to review the case. This, perhaps
more than any other single factor, helps to insure that the
best possible investigation is conducted by all involved
parties.
When an officer-involved shooting occurs, it is
immediately reported to the Denver police dispatcher, who
then notifies all persons on the call-out list. This includes
the Major Crimes Commander, Senior Chief Deputy District
Attorney, Division Chief of Patrol, Captain of Crimes
Against Persons Bureau, Homicide Unit personnel, Director
of the Crime Lab, Crime Lab Technicians, and others.
These individuals respond first to the scene and then to DPD
headquarters to take statements and conduct other follow-up
investigation. The Denver District Attorney, Executive
Director, and Chief of Police are notified of the shooting and
may respond.
The criminal investigation is conducted under a specific
investigative protocol with direct participation of Denver

11

Police Department and Denver District Attorney personnel.

The primary investigative personnel are assigned to the
Homicide Unit where the best resources reside for this type
of investigation. The scope of the investigation is broad and
the focus is on all involved parties. This includes the
conduct of the involved officer(s) and the conduct of the
person who is shot. Standard investigative procedures are
used at all stages of the investigation, and there are
additional specific procedures in the Denver Police
Departments Operations Manual for officer-involved
shootings to further insure the integrity of the investigation.
For example, the protocol requires the immediate separation
and sequestration of all key witnesses and all involved
officers. Involved officers are separated at the scene,
transported separately by a supervisor to police
headquarters, and sequestered with restricted visitation until
a formal voluntary statement is taken. Generally the officers
speak with their attorney prior to making their voluntary
statement. A log is kept to document who has contact with
the officer. This is done to insure totally independent
statements and to avoid even the appearance of collusion.
In most cases, the bulk of the criminal phase of the
investigation is concluded in the first twelve to twenty-four
hours. Among other investigative activities, this includes a
thorough processing of the crime scene; a neighborhood canvass
to identify all possible witnesses; the taking of written statements
from all witnesses, and video-taped statements from all key
witnesses and the involved officer(s). The involved officer(s),
like any citizen, have a Constitutional Fifth Amendment right
not to make a statement. In spite of this fact, Denver officers
have given voluntary sworn statements in every case, without
exception, since 1979. Since November of 1983, when the
videotape- interview room was first used, each of these
statements has been recorded on videotape. No other major city
police department in the nation can make this statement.
Officers are trained to properly secure their firearm after
an officer-involved shooting. The protocol provides for the
firearm to be taken from the officer by crime lab personnel
for appropriate testing.
The officer is provided a
replacement weapon to use pending the completion of the
testing. The protocol also allows for any officer to
voluntarily submit to intoxicant testing if they chose. The
most common circumstance under which an officer might
elect to do so would be in a shooting while working at an
establishment that serves alcohol beverages. Compelled
intoxicant testing can be conducted if there are indications of
possible intoxication and legal standards are met.
The Denver Chief of Police and Denver District Attorney
commit significant resources to the investigation and review
process in an effort to complete the investigation as quickly
as practicable. There are certain aspects of the investigation
that take more time to complete. For example, the testing of
physical evidence by the crime labfirearm examination,
gunshot residue or pattern testing, blood analyses, and other

testing commonly associated with these cases. In addition,

where a death occurs, the autopsy and autopsy report take
more time and this can be extended substantially if it is
necessary to send lab work out for very specialized
toxicology or other testing. In addition to conducting the
investigation, the entire investigation must be thoroughly
and accurately documented.
Officer-involved shooting cases are handled by the
District Attorney, and the Senior Chief Deputies District
Attorney specifically trained for these cases. At least two of
these district attorneys respond to each officer-involved
shooting. They are notified at the same time as others on the
officer-involved shooting call-out list and respond to the
scene of the shooting and then to police headquarters to
participate in taking statements. They are directly involved
in providing legal advice to the investigators and in taking
video-taped statements from citizens and officer witnesses,
and from the involved officer(s). They continue to be
involved throughout the follow-up investigation.
The Denver District Attorney is immediately informed
when an officer-involved shooting occurs, and if he does not
directly participate, his involved personnel advise him
throughout the investigative process. It is not unusual for
the District Attorney to personally respond and participate in
the investigation. At the conclusion of the criminal
investigation the District Attorney personally makes the
filing decision.
If criminal charges are not filed, a brief decision letter
describing the shooting is sent to the Chief of Police by the
District Attorney, with copies to the involved officer(s), the
Mayor, City Council members, other appropriate persons,
and the media. The letter is intentionally brief to avoid in
any way impacting the integrity and validity of the Denver
Police Department administrative investigation and review,
which follows the criminal investigation and review. This
represents a 2005 change from the very thorough decision
letters that have previously been written by the District
Attorney in these cases.
This change has been made because the Executive
Director now writes an exhaustive letter at the conclusion of
the administrative review of the shooting. The Executive
Directors letter can include additional facts, if any,
developed during the administrative investigation.
Therefore, the Executive Directors letter can provide the
most comprehensive account of the shooting. In contrast to
the criminal investigation phase, the administrative process
addresses different issues, is controlled by less stringent
rules and legal levels of proof, and can include the use of
investigative techniques that are not permissible in a
criminal investigation. For example, the department can,
under administrative rules, order officers to make
statements. This is not permissible during the criminal
investigation phase and evidence generated from such a
statement would not be admissible in a criminal prosecution.

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The Executive Director has taken a more active role in

officer-involved shooting cases and has put in place a more
thorough administrative process for investigating, reviewing,
and responding to these cases. The critical importance of the
administrative review has been discussed in our decision
letters and enclosures for many years.11 As a result of the
positive changes the Executive Director has now instituted
and that offices personal involvement in the process, we
will not open the criminal investigative file at the time our
brief decision letter is released. Again, we are doing this to
avoid in any way impacting the integrity and validity of the
Department of Safety and Denver Police Department
ongoing administrative investigation and review. After the
Executive Director has released her letter, we will make our
file open for in-person review at our office by any person, if
the City fails to open its criminal-case file for in-person
review. The District Attorney copy of the criminal-case file
will not, of course, contain any of the information developed
during the administrative process. The City is the Official
Custodian of Records of the original criminal-case file and
administrative-case file, not the Denver District Attorney.
THE DECISION
By operation of law, the Denver District Attorney is
responsible for making the criminal filing decision in all
officer-involved shootings in Denver. In most officerinvolved shootings the filing decision and release of the brief
decision letter will occur within two-to-three weeks of the
incident, unless circumstances of a case require more time.
This more compressed time frame will allow the Denver
Police Department administrative investigation to move
forward more quickly.
The same standard that is used in all criminal cases in
Denver is applied to the review of officer-involved
shootings. The filing decision analysis involves reviewing
the totality of the facts developed in the criminal
investigation and applying the pertinent Colorado law to
those facts. The facts and the law are then analyzed in
relation to the criminal case filing standard. For criminal
charges to be filed, the District Attorney must find that there
is a reasonable likelihood that all of the elements of the
crime charged can be proven beyond a reasonable doubt,
unanimously, to twelve jurors, at trial, after considering
reasonable defenses. If this standard is met, criminal
charges will be filed.
One exception to the Denver District Attorney making the
filing decision is if it is necessary to use the Denver
Statutory Grand Jury. The District Attorney will consider it
appropriate to refer the investigation to a grand jury when it
11

See the Conclusion statement in the Decision Letter in the December 31,
1997, shooting of Antonio Reyes-Rojas, where we first pointed out issues related
to the importance of the Administrative review of officer-involved shootings.
Subsequent letters continued to address this issue.

is necessary for the successful completion of the

investigation. It may be necessary in order to acquire access
to essential witnesses or tangible evidence through the grand
jurys subpoena power, or to take testimony from witnesses
who will not voluntarily cooperate with investigators or who
claim a privilege against self-incrimination, but whom the
district attorney is willing to immunize from prosecution on
the basis of their testimony. The grand jury could also be
used if the investigation produced significant conflicts in the
statements and evidence that could best be resolved by grand
jurors. If the grand jury is used, the grand jury could issue
an indictment charging the officer(s) criminally. To do so,
at least nine of the twelve grand jurors must find probable
cause that the defendant committed the charged crime. In
order to return a no true bill, at least nine grand jurors
must vote that the probable cause proof standard has not
been met. In Colorado, the grand jury can now issue a
report of their findings when they return a no true bill or do
not reach a decisiondo not have nine votes either way.
The report of the grand jury is a public document.
A second exception to the Denver District Attorney
making the filing decision is when it is necessary to have a
special prosecutor appointed. The most common situation is
where a conflict of interest or the appearance of impropriety
is present. As an example, if an officer involved in the
shooting is related to an employee of the Denver District
Attorneys Office, or an employee of the Denver District
Attorneys Office is involved in the shooting. Under these
circumstances, there would exist at a minimum an
appearance of impropriety if the Denver District Attorneys
Office handled the case.
THE COLORADO LAW
Criminal liability is established in Colorado only if it is
proved beyond a reasonable doubt that someone has
committed all of the elements of an offense defined by
Colorado statute, and it is proved beyond a reasonable doubt
that the offense was committed without any statutorilyrecognized justification or excuse. While knowingly or
intentionally shooting and causing injury or death to another
human being is generally prohibited as assault or murder in
Colorado, the Criminal Code specifies certain circumstances
in which the use of physical force or deadly physical force is
justified. As there is generally no dispute that the officer
intended to shoot at the person who is wounded or killed, the
determination of whether the conduct was criminal is
primarily a question of legal justification.
Section 18-1-707 of the Colorado Revised Statutes
provides that while effecting or attempting to effect an
arrest, a peace officer is justified in using deadly physical
force upon another person . . . when he reasonably believes
that it is necessary to defend himself or a third person from
what he reasonably believes to be the use or imminent use of

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deadly physical force. Therefore, the question presented in

most officer-involved shooting cases is whether, at the
instant the officer fired the shot that wounded or killed the
person, the officer reasonably believed, and in fact believed,
that he or another person, was in imminent danger of great
bodily injury or death from the actions of the person who is
shot. In order to establish criminal responsibility for
knowingly or intentionally shooting another, the state must
prove beyond a reasonable doubt that the person doing the
shooting either did not really believe he or another was in
imminent danger, or, if he did hold such belief, that belief
was, in light of the circumstances, unreasonable.
The statute also provides that a peace officer is justified in
using deadly physical force upon another person . . . when
he reasonably believes that it is necessary to effect an arrest .
. . of a person whom he reasonably believes has committed
or attempted to commit a felony involving the use or
threatened use of a deadly weapon; or is attempting to
escape by the use of a deadly weapon; or otherwise
indicates, except through motor-vehicle violation, that he is
likely to endanger human life or to inflict serious bodily
injury to another unless apprehended without delay.
In Colorado, deadly physical force means force the
intended, natural, or probable consequence of which is to
produce death and which does in fact produce death.
Therefore, if the person shot does not die, by definition, only
physical force has been used under Colorado law.
GENERAL COMMENTS
The following statement concerns issues that are pertinent
to all officer-involved shootings.
The great majority of officer-involved shootings in
Denver, and throughout the country, ultimately result from
what is commonly called the split-second decision to shoot.
It is often the culmination of a string of decisions by the
officer and the citizen that ultimately creates the need for a
split-second decision to shoot. The split-second decision is
generally made to stop a real or perceived threat or
aggressive behavior by the citizen. It is this split-second
time frame which typically defines the focus of the criminalreview decision, not the string of decisions along the way
that placed the participants in the life-or-death final frame.
When a police-citizen encounter reaches this split-second
window, and the citizen is armed with a deadly weapon, the
circumstances generally make the shooting justified, or at
the least, difficult to prove criminal responsibility under the
criminal laws and required legal levels of proof that apply.
The fact that no criminal charges are fileable in a given case
is not necessarily synonymous with an affirmative finding of
justification, or a belief that the matter was in all respects
handled appropriately from an administrative viewpoint. It
is simply a determination that there is not a reasonable

likelihood of proving criminal charges beyond a reasonable

doubt, unanimously, to a jury. This is the limit of the
District Attorneys statutory authority in these matters. For
these reasons, the fact that a shooting may be controversial
does not mean it has a criminal remedy. The fact that the
District Attorney may feel the shooting was avoidable or
does not like aspects of the shooting, does not make it
criminal. In these circumstances, remedies, if any are
appropriate, may be in the administrative or civil arenas.
The District Attorney has no administrative or civil authority
in these matters. Those remedies are primarily the purview
of the City government, the Denver Police Department, and
private civil attorneys.
Research related to officer-involved shootings indicates
that criminal charges are filed in approximately one in five
hundred (1-in-500) shootings. And, jury convictions are rare
in the filed cases. In the context of officer-involved
shootings in Denver (approximately 8 per year), this ratio (1in-500) would result in one criminal filing in 60 years. With
District Attorneys now limited to three 4-year terms, this
statistic would mean there would be one criminal filing
during the combined terms of 5 or more District Attorneys.
In Denver, there have been three criminal filings in
officer-involved shootings in the past 40 years, spanning
seven District Attorneys. Two of the Denver officerinvolved shootings were the result of on-duty, work related
shootings. One case was in the 1970s and the other in the
1990s. Both of these shootings were fatal. The cases
resulted in grand jury indictments. The officers were tried
and found not guilty by Denver juries. The third criminal
filing involved an off-duty, not in uniform shooting in the
early 1980s in which one person was wounded. The officer
was intoxicated at the time of the shooting. The officer pled
guilty to felony assault. This case is mentioned here, but it
was not in the line of duty and had no relationship to police
work. In 2004, an officer-involved shooting was presented
by the District Attorney to the Denver Statutory Grand Jury.
The Grand Jury did not indict. A brief report was issued by
the Grand Jury.
Based on the officer-involved shooting national statistics,
there is a very high likelihood that individual District
Attorneys across the country will not file criminal charges in
an officer-involved shooting during their entire tenure. It is
not unusual for this to occur. In Denver, only two of the past
seven District Attorneys have done so. This, in fact, is
statistically more filings than would be expected. There are
many factors that combine to cause criminal prosecutions to
be rare in officer-involved shootings and convictions to be
even rarer. Ultimately, each shooting must be judged based
on its unique facts, the applicable law, and the case filing
standard.
The American Bar Associations Prosecution Standards
state in pertinent part: A prosecutor should not institute,

14

cause to be instituted, or permit the continued pendency of

criminal charges in the absence of sufficient admissible
evidence to support a conviction. In making the decision to
prosecute, the prosecutor should give no weight to the
personal or political advantages or disadvantages which
might be involved or to a desire to enhance his or her record
of convictions. Among the factors the prosecutor may
properly consider in exercising his or her discretion is the
prosecutors reasonable doubt that the accused is in fact
guilty. The National District Attorneys Associations
National Prosecution Standards states in pertinent part:
The prosecutor should file only those charges which he
reasonably believes can be substantiated by admissible
evidence at trial. The prosecutor should not attempt to
utilize the charging decision only as a leverage device in
obtaining guilty pleas to lesser charges. The standards also
indicate that factors which should not be considered in the
charging decision include the prosecutors rate of
conviction; personal advantages which prosecution may
bring to the prosecutor; political advantages which
prosecution may bring to the prosecutor; factors of the
accused legally recognized to be deemed invidious
discrimination insofar as those factors are not pertinent to
the elements of the crime.
Because of the difference between the criminal,
administrative, and civil standards, the same facts can fairly
and appropriately lead to a different analysis and different
results in these three uniquely different arenas. While
criminal charges may not be fileable in a case,
administrative action may be very appropriate. The legal
levels of proof and rules of evidence that apply in the
criminal-law arena are imprecise tools for examining and
responding to the broader range of issues presented by
officer-involved shootings. Issues related to the tactical and
strategic decisions made by the officer leading up to the
split-second decision to shoot are most effectively addressed
by the Denver Police Department through the Use of Force
Review Board and the Tactics Review Board process and
administrative review of the shooting.
The administrative-review process, which is controlled by
less stringent legal levels of proof and rules than the
criminal-review process, provides both positive remedial
options and punitive sanctions. This process also provides
significantly broader latitude in accessing and using
information concerning the background, history, and job
performance of the involved officer.
This type of
information may have limited or no applicability to the
criminal review, but may be very important in making
administrative decisions. This could include information
concerning prior officer-involved shootings, firearm
discharges, use of non-lethal force, and other conduct, both
positive and negative.
The Denver Police Departments administrative review of
officer-involved shootings improves police training and

performance, helps protect citizens and officers, and builds

public confidence in the department.
Where better
approaches are identified, administrative action may be the
only way to effect remedial change. The administrative
review process provides the greatest opportunity to bring
officer conduct in compliance with the expectations of the
department and the community it serves. Clearly, the
department and the community expect more of their officers
than that they simply conduct themselves in a manner that
avoids criminal prosecution.
There are a variety of actions that can be taken
administratively in response to the departments review of
the shooting. The review may reveal that no action is
required. Frankly, this is the case in most officer-involved
shootings. However, the department may determine that
additional training is appropriate for all officers on the force,
or only for the involved officer(s). The review may reveal
the need for changes in departmental policies, procedures or
rules. In some instances, the review may indicate the need
for changing the assignment of the involved officer,
temporarily or permanently.
Depending on the
circumstances, this could be done for the benefit of the
officer, the community or both. And, where departmental
rules are violated, formal discipline may be appropriate. The
departments police training and standards expertise makes it
best suited to make these decisions.
The Denver Police Departments Use of Force Review
Board and the Tactics Review Boards after-incident,
objective analysis of the tactical and strategic string of
decisions made by the officer that lead to the necessity to
make the split-second decision to shoot is an important
review process. It is clearly not always possible to do so
because of the conduct of the suspect, but to the extent
through appropriate tactical and strategic decisions officers
can de-escalate, rather than intensify these encounters, the
need for split-second decisions will be reduced. Once the
split-second decision time frame is reached, the risk of a
shooting is high.
It is clear not every officer will handle similar situations
in similar ways. This is to be expected. Some officers will
be better than others at defusing potentially-violent
encounters. This is also to be expected. To the degree
officers possess skills that enhance their ability to protect
themselves and our citizens, while averting unnecessary
shootings, Denver will continue to have a minimal number
of officer-involved shootings. Denver officers face lifethreatening confrontations hundreds of times every year.
Nevertheless, over the last 20 years officer-involved
shootings have averaged less than eight annually in Denver.
These numbers are sharply down from the 1970s and early
1980s when there were 12-to-14 shootings each year.
Skill in the use of tactics short of deadly force is an
important ingredient in keeping officer-involved shootings
to a minimum. Training Denver officers receive in guiding

15

them in making judgments about the best tactics to use in

various situations, beyond just possessing good firearms
proficiency, is one of the key ingredients in minimizing
unnecessary and preventable shootings. Denver police
officers handle well over a million calls for service each year
and unfortunately in responding to these calls they face
hundreds of life-threatening encounters in the process. In
the overwhelming majority of these situations, they
successfully resolve the matter without injury to anyone.
Clearly, not all potentially-violent confrontations with
citizens can be de-escalated, but officers do have the ability
to impact the direction and outcome of many of the
situations they handle, based on the critical decisions they
make leading up to the deadly-force decision. It should be a
part of the review of every officer-involved shooting, not
just to look for what may have been done differently, but
also to see what occurred that was appropriate, with the
ultimate goal of improving police response.

CONCLUSION
The protocol that is used in Denver to investigate and
review officer-involved shootings was reviewed and
strengthened by the Erickson Commission in 1997, under the
leadership of William Erickson, former Chief Justice of the
Colorado Supreme Court. The report released after the 15month-long Erickson Commission review found it to be one
of the best systems in the country for handling officerinvolved shootings. We recognize there is no perfect
method for handling officer-involved shooting cases. We
continue to evaluate the protocol and seek ways to
strengthen it.

Mitchell R. Morrissey
Denver District Attorney

RELEASE OF INFORMATION
Officer-involved shootings are matters of significant and
legitimate public concern. Every effort must be made to
complete the investigation and make the decision as quickly
as practicable. The Denver Protocol has been designed to be
as open as legal and ethical standards will permit and to
avoid negatively impacting the criminal, administrative, or
civil procedures. Fair TrialFree Press standards and
The Colorado Rules of Professional Conduct limit the
information that can be released prior to the conclusion of
the investigation.

CONTACT FOR INFORMATION

S. Lamar Sims, Senior Chief Deputy District Attorney,
Denver District Attorneys Office, 201 West Colfax
Avenue, Dept. 801, Denver, CO 80202 720-913-9019

Officer-involved shooting cases always present the

difficult issue of balancing the rights of the involved parties
and the integrity of the investigation with the publics right
to know and the medias need to report the news. The
criminal investigation and administrative investigation that
follows can never keep pace with the speed of media
reporting.
This creates an inherent and unavoidable
dilemma. Because we are severely restricted in releasing
facts before the investigation is concluded, there is the risk
that information will come from sources that may provide
inaccurate accounts, speculative theories, misinformation or
disinformation that is disseminated to the public while the
investigation is progressing.
This is an unfortunate
byproduct of these conflicted responsibilities. This can
cause irreparable damage to individual and agency
reputations.
It is our desire to have the public know the full and true
facts of these cases at the earliest opportunity, but we are
require by law, ethics, and the need to insure the integrity of
the investigation to only do so at the appropriate time.

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