Teller sheriff can’t explain deputy’s use of body camera
TELLER COUNTY» Four months after a deputy’s undeclared use of a bodyworn camera caused a mistrial in Teller County, no one has been disciplined and the Teller County Sheriff’s Office hasn’t investigated, Sheriff Mike Ensminger confirmed.
Ensminger told The Gazette an internal investigation was stymied in part by a judge’s gag order barring anyone at the sheriff’s office from discussing the case, even among themselves.
But that gag order was lifted Oct. 7, court records show.
The sheriff said he wasn’t aware the order had been lifted until Dec. 19, when he contacted the judge directly after a follow-up inquiry by the newspaper.
“My hands were tied until I found that information out,” Ensminger said, acknowledging that the lack of an investigation means he can’t answer how widespread the practice had become under his watch.
The sheriff acknowledged that he had heard through “third parties” that the judge had lifted the gag order in recent weeks, but that he hadn’t received written notice and couldn’t act without it. Information about the gag order’s lifting was readily available in a court document called a minute order, which summarized the judge’s order rescinding it, the newspaper found.
Body cameras and the footage they capture became part of the national debate over police tactics after a series of well-publicized deaths of primarily minority suspects or members of the public in confrontations with law enforcement officers.
The outcry those deaths generated induced a push by departments across the U.S. to add body-worn cameras to their repertoire to better document police encounters, for the benefit of those on both sides.
But the effort to introduce body-worn cameras in the Pikes Peak region has met with numerous snags, ranging from the inadvertent destruction of footage in more than 1,000 cases at the Fountain Police Department to delays in the Colorado Springs Police Department’s effort to supply them to about 600 officers.
The lack of an investigation by the Teller County Sheriff ’s Office over the undeclared body cam use comes despite indications that more than one deputy used a body camera in some capacity.
In a Sept. 19 e-mail obtained by the newspaper, Teller County prosecutor Chris Sutton acknowledged that “deputies with Teller County Sheriff ’s Office may have obtained body camera footage during some criminal investigations which may have been not retained or (turned over) to defendants.”
Sutton’s e-mail did not provide further details, saying the issue was under investigation, and he couldn’t be reached for comment.
Lee Richards, a spokeswoman for the 4th Judicial District attorney’s office, did not respond to an e-mail sent Friday afternoon.
Under Colorado evidentiary laws, footage gathered by officers equipped with body-worn cameras must be preserved and turned over to the defense. Failure to do so can lead to mistrials or cases being dismissed.
The Teller County Sheriff’s Office doesn’t have a means to store and distribute body camera footage, and department policy has for years prohibited their use, Ensminger said.
The problem first came to light in late August after Deputy Sanel Lilic testified at a trial that he wasn’t wearing a body camera during his arrest of Cole Simmons on charges of vehicular theft.
Lilic, who was hired in January 2014, made the denial on the opening day of Simmons’ jury trial. When he retook the stand later that day his account changed — Lilic testified he’d forgotten he had been wearing a camera.
Lilic described being fitted with the camera on the day of Simmons’ arrest as part of a “trial run by the agency” to see if the cameras were effective at night, the transcript shows.
He told the court that he recorded footage of Simmons’ arrest and handed it over to a corporal, who in turn handed it to a commander, who ordered that the footage be destroyed because deputies could be heard using obscenities, a trial transcript shows.
The evidence violation led 4th District Judge Theresa Cisneros to declare a mistrial and spawned questions by Simmons’ attorney, Cynthia McKedy, over the scope of body camera use by the office.
“How long have they been wearing body cams? Have they been destroying the footage?” McKedy asked. “How many other cases in Teller County have this issue?”
The deputy’s revised testimony that the sheriff ’s office was testing cameras as part of a “trial run” was disputed by Ensminger, who told the newspaper in September that he wasn’t aware of any such program.
“No deputy of mine has ever been authorized to wear a body camera,” Ensminger told The Gazette. “We don’t have a pilot program and never have.”
A Teller County sheriff ’s commander, Mark Morlock, issued a similar denial when contacted by the newspaper in the fall.
Court filings in the Simmons case identify the commander who ordered that the footage be destroyed as 19-year veteran Jason Mikesell, who left the office April 15. Mikesell couldn’t be reached for comment.
The documents — a legal motion filed by Sutton — say that Lilic had no input into the decision to destroy the footage he had collected.
Lilic said the camera had been lent to the sheriff ’s office by Cripple Creek police, and Mikesell mentioned that the camera had to be returned to Cripple Creek before ordering that the footage be destroyed, court records show.
In his follow-up interview this month, Ensminger said Mikesell’s departure had nothing to do with the case and that no deputies had been disciplined.
Ensminger said he believes that at least two deputies were wearing privately owned cameras for training purposes but that he wasn’t in a position to confirm a number or say how many cases might be involved.
In the wake of the Simmons case, Ensminger said he called a halt to the practice by reasserting the sheriff’s office’s policy that no one is to use body cams.
Whether evidence was destroyed in other cases will be part of the focus of the investigation, Ensminger said.
“Now that we have a release from court, we’re going to do our investigation,” he said.
Asked when the investigation would begin, Ensminger said: “We’re talking about that now as a command staff. The court case is going on right now and we don’t want to do anything to interrupt the court case.”
Court records show that an arrest warrant was issued for Simmons on Nov. 21 after he failed to appear at a scheduled hearing.
While Colorado law requires law enforcement agencies to preserve evidence in ongoing criminal cases, state law doesn’t otherwise guide the use of body cameras. The question of how to use body cameras, and the legal obligations to maintain the footage, fall to agencies that elect to use them, Patricia Billinger, a spokeswoman for the Colorado Department of Public Safety, said.
Ensminger said his office can’t afford to purchase cameras for its deputies in part because they don’t have the technological capability to preserve the footage.