Fired Aurora police officer says new police reform law unconstitutional - Sentinel Colorado
AURORA | A former Aurora police officer facing criminal charges for failing to intervene in the violent assault of a man being arrested by another officer has filed a challenge in her case.
Francine Martinez was charged last year with a misdemeanor failure to intervene under a police reform bill the Colorado legislature passed in 2020. Part of the comprehensive measure requires officers to stop other officers from using excessive force and to report it after the fact.
Aurora Police allege Martinez did not comply with the new law during a July 23, 2021 incident.
On that day, Martinez and officer John Haubert responded to a trespassing call in the 3100 block of South Parker Road, where they detained 29-year-old Kyle Vinson and two other men. The other men reportedly had outstanding felony warrants.
At one point, the other men ran from the scene, and while Haubert was handcuffing Vinson he strangled, pistol-whipped and repeatedly threatened to shoot him, according to body camera footage of the incident, despite the fact that Vinson was unarmed and did not appear to behave aggressively toward Haubert.
On the body camera footage, Vinson can be heard telling Haubert “you’re killing me” and repeatedly asking the officer not to shoot him.
Vinson, who is Black, later told reporters that he feared for his life during the assault.
Haubert was charged with attempted first-degree assault, second-degree assault, felony menacing, official oppression and first-degree official misconduct in connection with the arrest. He resigned from the department six days after the body camera footage was released. His case is ongoing in the 18th Judicial District.
The department fired Martinez two weeks later, after an investigation determined she had violated several department policies. She is scheduled to have a jury trial in Arapahoe County in May. Now, her lawyer is asking a judge to throw out her case on the grounds that it is unconstitutional.
Attorney David Goddard, who is also representing two paramedics facing charges in the death of Elijah McClain, said in a March 18 motion filed in Arapahoe County Court that the law is unconstitutionally vague because the Legislature did not provide a definition of what it means to intervene, and that it has not been defined by the Peace Officer Standards and Training Board either.
“In fact, no definition of ‘intervene’ exists in (sic) anywhere in Colorado’s Criminal Code,” Goddard said.
Goddard said that during the arrest, Haubert placed his hand on Vinson’s neck and Martinez touched his arm and told him to move his hand, which he did. He argues that the law did not do enough to make it clear to Martinez that this was an insufficient level of intervention.
“The statute failed to provide Officer Martinez fair notice that a lack of opportunity to intervene in strikes that occurred without warning and in rapid succession or that touching another officer’s arm and directing that officer to move their hand was insufficient to comply with the statute,” Goddard said.
Goddard declined to comment on the case.
In an email, Rep. Leslie Herod (D-Denver), who spearheaded the police reform bill, said that the duty to intervene law is critical for safety and accountability in policing.
“Officers should not be able to simply stand by as their partners brutally and excessively beat someone,” Herod said. “This case is a prime example of why we included criminal penalties for failure to intervene in the Police Accountability Act, and we are confident that the law will be upheld in court. The language is clear, and Officer Martinez’s failure to intervene is unlawful.”
The Attorney General’s office, which runs Peace Officer Standards and Training, declined to comment on the motion.
Qusair Mohamedbhai, Vinson’s lawyer, said the motion sent the message that police would rather be the public’s “overlords” than their partners.
“The union’s desire to protect and serve themselves is shining through once again,” he said.
Mohamedbhai praised Wilson, who launched an expedited internal affairs investigation into the incident and harshly criticized the officers during a press conference, for her actions.
Wilson was fired as police chief this week after days of rumors she would be ousted. City Manager Jim Twombly said the firing was because of Wilson’s inability to carry out management duties in the department. Wilson’s lawyer contends the ouster is related to her stance on police reform in incidents such as this one.
“Vinson very much appreciated her calling out officers Hobart and Martinez for the unlawful behavior they engaged in,” he said.
Mohamedbhai said that Vinson is currently focusing on his rights as a victim of multiple crimes, but that legislation is being prepared for a potential lawsuit against the city.
source: https://sentinelcolorado.com/news/metro/fired-aurora-police-officer-says-new-police-reform-law-unconstitutional/
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