YouTube video

AURORA |The American Civil Liberties Union says a graphic video of a black Aurora man Tased in the back by police illustrates a serious misuse of force by Aurora police.

And the fact that a department review cleared the officer shows the department needs to update their policies or fix their investigations, said Mark Silverstein, legal director of the ACLU of Colorado.

“If what you saw on video is compliant with Aurora police policies, the policies need to be changed,” he said.

The edited video, which may be upsetting to some readers, graphically depicts the incident. Police have not immediately disputed the video or any of its contents.

According to a court motion filed by the ACLU, the incident happened in February on Dallas Street near East Colfax Avenue when officers were racing to a report of a man who allegedly pointed a gun at a 6-year-old child.

Police had no description of the suspect’s race, age or size, the ACLU said, only that the person with a gun was a man.

Officers spotted two black men —  Darsean Kelley and another man who was not named in the motion — walking along Dallas arguing with each other, the motion said.

On the video, the officers demand that Kelley and the other man sit on the ground, but Kelley says he can’t sit because of a groin injury. It’s unclear from the video whether the officers held the pair at gunpoint, but the ACLU said an officer had a Taser pointed at the pair.

Kelley raises his hands in the air and continues to argue with the officers, demanding to know why he is being detained.

While Kelley has his back to the officers and his hands up, he drops his right arm slightly, at which point an officer shoots him in the back with a Taser.

In their motion, the ACLU says Kelley had a right to know why he was being stopped and posed no threat to the officers.

“The officer asserts that Mr. Kelley dropped his right hand toward his chest and the officer believed Mr. Kelley might have been reaching for a weapon,” the motion said. “This alleged belief was patently unreasonable.”

After being Tased, Kelley falls to the ground, wailing in pain. When Kelley begins to recover, he asks to talk to the officer’s supervisor.

“Hey, look right here,” the officer responded while pointing what appears to be his body camera at Kelley.  “It’s all on video, sweetheart.”

Kelley was charged with misdemeanor disorderly conduct, the ACLU said, but those charges were dropped last week. A few days after charges were dropped, the ACLU released video of the incident.

Police never reported the incident to the public, but the incident was reviewed by the department’s new Police Force Review Board, according to police.

In a statement posted to the department’s page shortly after the ACLU shared the video, Aurora police Chief Nick Metz said that board cleared the officer, whose name has not been released.

“The (board) determined the force applied in this incident was within policy,” Metz said.

The incident will get another review though, Metz said, this time from the department’s Incident Review Board. The boards, which are made up of four police officers and four Aurora residents, look at high-profile cases and make a recommendation for discipline to the chief.

In the past, the department has used an IRB to review a botched undercover sting that left a knife-wielding man dead in 2011 and the department’s controversial investigation of a 2008 car crash that left three dead at an ice cream shop.

“The Aurora Police Department is committed to a partnership with our community,” Metz said in the statement. “The IRB process is designed as a means of involving community input as it pertains to the disciplinary process of Aurora Police Department personnel.”

Officer Diana Cooley, a spokeswoman for the department, said that while officers are immediately placed on administrative leave when they fire a gunshot, that’s not the case with a Taser. The officer who Tased Kelley was not placed on leave, she said.

When asked whether Kelley or the ACLU would sue the city, Silverstein said he couldn’t “talk about lawsuits that haven’t been filed.”

The ACLU says the officers were abusive and that Kelley’s Fourth Amendment rights, precluding wrongful search and seizure, were violated.

“We all have the Fourth Amendment right to be free from excessive and unreasonable force by the police,” the ACLU wrote. “ No one should be punished for knowing and asserting their rights.”

Silverstein said that if the department’s policies allow for officers to Tase people who aren’t violent, the policies need to be updated.

“They absolutely must,” he said. “And most departments now know that the use of a Taser to overcome passive noncompliance is excessive force.”