Failing to intervene

Police officers’ ‘duty to intervene’ is enshrined into law. But will it prevent killings like Christian Glass?

As one Colorado deputy faces a murder charge in the killing of Christian Glass – who was fatally shot after calling 911 in June 2022 – six more are being prosecuted for failing to intervene. Another has already pleaded guilty. New laws are casting a wider net across law enforcement in excessive force cases – with broader implications for policing, reports Sheila Flynn

Friday 08 December 2023 18:16 GMT
<p>Christian Glass smiles with his parents, Sally and Simon Glass</p>

Christian Glass smiles with his parents, Sally and Simon Glass

Seven officers from a half-dozen agencies crowded around a car just after midnight on June 11, 2022 near a tiny old mining town in Colorado. Behind the wheel was Christian Glass, a scared 22-year-old who’d called 911 after his car became stuck on rocks; he was having some type of mental health crisis, repeatedly telling officers he was afraid to get out of the car.

He’d committed no crime, but Clear Creek Sgt Kyle Gould, supervising remotely, gave his deputies permission to breach the vehicle. They first alternated between coaxing and sternly ordering Christian out, and then, about an hour after they arrived and joined by officers from other agencies, more aggressively demanded that he exit.

Officers swarmed the car as Christian became more terrified in the driver’s seat. One jumped on the hood, and two more deployed tasers – as Christian cried, prayed and screamed, thrashing around inside the vehicle while clutching a small geological knife he’d earlier offered to toss out of the car.

The man who’d told him not to throw it, Clear Creek deputy Andy Buen, fired five shots into the vehicle, killing. Christian had never left the car.

“Oh my god,” one officer can be heard saying in the body camera footage. “What did we do?”

Christian loved art, sports, geology and had a passion for social justice, his family say; he had trained as a chef and was looking at coding programmes

Within months, Buen was charged with second-degree murder, official misconduct and reckless endangerment; his next court date is days before Christmas. Gould pleaded guilty on 16 November to duty to intervene and report excessive force – agreeing never to serve again as a security or law enforcement officer.

Now the additional six officers at the scene have been charged with the same offence – a development Christian’s family has been pushing for since his killing. The officers are being prosecuted under legislation passed by Colorado lawmakers in 2020, in the wake of the killings of George Floyd, Elijah McClain and similar incidents of violent police brutality across the country.

At least 17 other states have also mandated duty to intervene laws in the same time period, according to the National Conference of State Legislatures, and what happens in Colorado with these officers may indicate how the laws play out across the nation. Successful prosecutions – and punishments that could permanently end law enforcement careers – mark a new step in increased and more proactive self-policing, but prosecutors are also faced with choosing just how wide to cast the net.

Now, it is spelled out explicitly in statutes that officers must intervene if witnessing the use of excessive force by another – and if they’re convicted of failing to do so, then their careers in law enforcement are over.

“What we need is the force of the law to ensure that there is some sense of justice and some ability to prosecute when wrongdoing happens,” Herod said.

Fifth Judicial District Attorney Heidi McCollum acted on that ability last month, when she announced duty to intervene charges against Georgetown Police Officer Timothy Collins; Idaho Springs Officer Brittany Morrow; Colorado State Trooper Ryan Bennie; and Division of Gaming Officers Mary Harris and Christa Lloyd; and Georgetown Marshal Randy Williams, who is also charged with third-degree assault.

There have historically been other legal recourse for charging officers not directly involved in excessive-force incidents – charges such as conspiracy, or aiding and abetting, to which two officers pleaded guilty following the death of George Floyd.

Body camera footage shows officers talking with Christian for more than an hour, trying to get him to leave his trapped vehicle although he’d committed no crime, before the situation escalates within minutes and the 22-year-old is shot dead

But “when it comes specifically to their role as law enforcement officers and not intervening for when excessive force is being used, this is the first and only law that would apply” said Rep. Herod, whose own father spent decades in law enforcement.

“The work that we have done has been ground-breaking,” she told The Independent of the new laws, which also include strict body camera, accountability and transparency requirements. “But we’re not done.”

In the meantime, the new duty to intervene legislation is more aggressive and provides another avenue for prosecutors.

“What these misdemeanours do is they give prosecutors a choice between doing nothing and prosecuting the person for a manslaughter offence and sometimes even a murder offence when they weren’t directly responsible for the death,” Boston College law professor R. Michael Cassidy told The Independent.

An expert in prosecutorial ethics, he says that, “instead of prosecuting for the death, you don’t have to prove that he caused the death; you’re just proving that he knew that another officer was using excessive force and didn’t intervene and report.”

The first Colorado conviction of an officer on the duty to intervene charge came earlier this year, when a jury in April found former Aurora cop Francine Martinez guilty of failing to stop another officer from choking and beating a veteran with a gun during an arrest.

On the night Christian Glass called 911, several officers tried various tactics to coax him from the vehicle before Buen, the only one to fire his gun, pulled the trigger.

As they were milling about, discussing their options, Idaho Springs Officer Brittany Morrow chatted with Christian about his interests in geology, watching as he formed a heart shape with his hands through the window.

“We love you too,” she told Christian. “We just want you to be safe.”

Officers offered Christian food, a cigarette and tried to establish rapport – but at one point, a Colorado State Patrol supervisor questioned the determination to remove Christian from his car.

Christian’s parents, Simon and Sally Glass, had been pushing for charges against the additional officers since the beginning; the family won an historic $19m settlement earlier this year

“If there’s no crime and he’s not suicidal or in grave danger, then there’s no reason to contact him,” the supervisor said to State Trooper Ryan Bennie over the radio, 9news reported.

The parents of Christian have maintained since the start that all officers at the scene should be charged, a lawyer for the family summing up their feelings at a press conference in the hours after the district attorney’s announcement.

“Simply being kind to a kid for a couple of minutes before your buddy kills him is not sufficient for intervening,” attorney Qusair Mohamedbhai said. “You need to save this man’s life. He called for help. And they should have actively done something … simply doing nothing is insufficient.”

It’s a lesson that may be taught more frequently in courtrooms across the country as new laws are utilised by prosecutors.

“Over time, if more states enact these duty to intervenes, then you will see more prosecutions,” Prof Cassidy tells The Independent. “And hopefully, one of the benefits of the prosecution will be the deterrence value; it will encourage police officers to intervene.”

He likens the new laws to legislation put in place about reporting child abuse.

“Twenty years ago, we implemented mandated reporting for people who deal with children and saw child abuse,” he said. “And the idea was that, yes, you might not be responsible for the child abuse, but you have a duty to report it if you’re a particular type of caregiver. This is kind of an extension of that. It is putting the onus on other police officers on the scene to do something to prevent misconduct by other officers.

“So I think it holds great promise, but I don’t think we’re there yet.”

Laws like these have a “much broader brush” and stem from “the thought that, if you hold a lot of these officers at risk of themselves being prosecuted, they’re going to be  a lot more careful to be watchdogs of each other and make sure that the other one doesn’t engage in excessive force,” said criminal law professor Aya Gruber, who taught on the University of Colorado Law School faculty for more than a decade before joining USC this year.

Many cops are already more proactively policing their fellow officers, watching as their counterparts face charges and the possible ends of their careers, according to one Colorado expert with decades of experience in both law enforcement and the courtroom who asked to remain anonymous.

As part of the settlement for the Glass family, officers will receive crisis intervention training; Christian’s parents have repeatedly stated they do not want any other family to suffer as theirs has

“In today’s world, it is helping, if nothing else, making people cognizant,” he told The Independent.

In Colorado, officers found guilty of the duty to intervene charge will lose their certification from the Peace Officer Standards and Training board – effectively ending their law enforcement careers. Other states have implemented similar practices.

But Prof Gruber from USC is sceptical of the laws’ efficacy in practice – as well as prosecutors’ willingness to use them against departments that help them close cases.

“I actually don’t harbour a lot of hope, just based on my research, that these kinds of broad criminal prosecutions are going to do much of anything to stop police use of excessive force,” she told The Independent. “I think it’s just a lot of post hoc … these terrible things occur, some of them catch fire and are on the media, and we want a lot of heads to roll.”

The new laws are not enough to stop police killings, says Prof Gruber.“I think that police departments need to make commitments to how they train and hire and recruit officers,” she said.

In the Christian Glass case, his parents’ advocacy has ensured those training changes are already happening. They won a $19m settlement in May – the largest in Colorado history – which also mandated crisis intervention training for officers.

“CSP has this entire training where they’re showing a video of this family to all their troopers saying, ‘This is your duty to intervene,’” Siddartha Rathod, a lawyer for the Glass family, told reporters in the hours after the announcement of additional charges. “They’re going to create a VR training program based upon Christian Glass’s scenario so that other officers can say, ‘Hey, where can I step in and intervene?’”

Sally clutched a heart-shaped rock Christian had in his car on the night he was killed as she addressed reporters.

“Those six officers didn’t pull the trigger, but they had an absolute duty or responsibility to stop that rogue cop,” Sally told reporters, adding: “Every one of them should have said ‘Stop.’ And they all had a duty to do that. That’s part of wearing the uniform. It’s something we’ve really campaigned for.”

The Glasses and their lawyers, however, were not pleased by the reactions of the charged officers’ departments.

Col. Matthew Packard, chief of the Colorado State Patrol, released a statement saying he was “shocked” by the charge against his officer and “found no indication that Trooper Bennie violated any Colorado State Patrol policy or training.”

Idaho Springs Police Chief Nathan Buseck released a statement saying: “I strongly believe that Officer Morrow was not in a position to intervene in the tactical decisions of the two Clear Creek County Sheriff’s Office deputies and Georgetown Marshal. It was their direct actions, over approximately 90 seconds, that led to the shooting of Christian Glass.”

The Glasses’ lawyer Mohamedbhai pointed to those statements as proof of how “law enforcement looks in the mirror and says: ‘We’ve done nothing wrong.’”

He continued: “It’s going to take a district attorney, and likely a jury, to tell law enforcement what their duty to intervene actually means –  because they don’t seem to understand.

“And that’s why this is so important. And that’s why Simon and Sally Glass’s advocacy and persistence – and constant, ‘Just please charge everyone’ – is so important.”

State Rep Herod, three years after passing through the very legislation that led to these prosecutions, says she too hopes the laws continue to strengthen law enforcement’s self-policing – but that, again, the work is not over.

“I think a lot of folks believe that, after 2020, we’ve done all that we can do to ensure that policing is the upstanding profession that it should be,” she told The Independent. “And I just don’t think we’re quite there. While, yes, I am proud of the progress in Colorado, we’ve got to do more. We can’t rest on that.”

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