Kyle Vinson, left, stands with his attorney, Qusair Mohamedbhai, on Wednesday, Aug. 4, 2021, in Denver. Aurora Officer John Haubert was arrested Monday on suspicion of attempted first-degree assault, second-degree assault and felony menacing charges following a criminal investigation into the arrest last week of Vinson, who is biracial and identifies as Black. (AP Photo/David Zalubowski) 
John Haubert 
Aurora Police body cam screen grabs that investigators say show Aurora Police Officer John Haubert pistol whipping and strangling a trespassing suspect July 23, 2012. Haubert and another officer face criminal charges in the incident. 
Aurora Police body cam screen grabs that investigators say show Aurora Police Officer John Haubert pistol whipping and strangling a trespassing suspect July 23, 2012. Haubert faces felony charges in the incident. 
Aurora Police body cam screen grabs that investigators say show Aurora Police Officer John Haubert pistol whipping and strangling a trespassing suspect July 23, 2012. Haubert faces felony charges in the incident.
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.
As I have explained many times, the police reform bill is so flawed in its wording that officers have no idea what use of force will be allowed. I have spoken to attorneys and many officers. No one can tell me what the wordings mean. The officers I have spoken to have said that their departments can’t tell then what the wordings mean and can only read it to them. The fact that chiefs are not speaking up about the vague language and uncertain situation that it leaves officer in speaks poorly for their professionalism. The Supreme Court gave law enforcement clear guidelines long ago. Those guidelines have now been thrown out the window in Colorado. The police knew that what Officer Chauvin did to George Floyd was wrong. They did not need a knee jerk, badly flawed reform bill. Bodycams are good. Transparency is good. Uninformed, vague guidelines on use of force are a real problem for officers who are trying to do their jobs. When you add the punitive part of the bill to the vague guidelines on use of force, you have a real chilling effect on police work in Colorado. Many officers I know have told me that they no longer do police work and that stops are too dangerous. Many good officers left the job as a result of the police reform bill. No one responsible for this bill will stand up and debate it. Since virtually everything is defined as a use of force, the officers do not know what they can do to arrest or just to protect themselves. Throw in the lack of training officers receive and you have a very real problem. Even the definition of the chokehold is flawed. It includes a part that seemingly makes it unlawful to kneel or lie on a suspect’s back during a fight. Neck restraints have saved more lives than they have cost. There is a video right now out that shows an officer shoot a suspect while he is on his back. A neck restraint would have been appropriate and likely would have protected the officer and the suspect. I personally used a neck restraint to render a man with a knife unconscious. I could have just shot him. Later, he thanked me. Now, officers are being charged for just putting their arm around someone’s neck in a struggle. But, to not even know if you are going to be prosecuted for falling on someone during a struggle is absurd. The collective cowardice of the chiefs to address these major problems speaks poorly about what kind of politicians we are choosing for the chief’s position.
Let us address Mr. Vinson and his arrest for a moment. Whatever you think about the officer hitting Vinson with his gun, you should still look at what was happening there. If you slow down the video and really listen to what is happening you will see that, like many cases, Mr. Vinson contributed greatly to how force was used. Mr. Vinson is getting up to run like the other two suspects did. The officer has his gun in his hand, which is appropriate when you are approaching three wanted suspects who suddenly jump up. When you have your gun in your hand, your options are more limited. Mr. Vinson clearly resists the efforts of the officers to arrest him. He even says at one point that he can’t go to jail. During the struggle, his hand can be seen reaching toward the officer’s gun. The officer has him by the throat. When you only have one hand free and you can’t allow the suspect to get your gun, it is reasonable to grab the suspect by the throat to push him away. For those of you who are not forced to fight with people as part of your job, try to understand that your world is different. I have grabbed suspects by the throat in close encounters when my gun was in my hand. I have taught other officers how to do it. Sorry, but you must give them some option other than just shooting the suspect. You cannot allow them to grab your gun. To charge an officer doing his job with felony menacing is ridiculous. I question the motivation behind this. Chief Wilson certainly looked like the crusader in her instant condemnation of her officers. Hitting the suspect with your gun is not something that we teach officers. However, it has been necessary many times when officers are involved in a fight and have their gun in their hand. Mr. Vinson will make a lot of money because the chief and the city have already rolled over. He was smart enough to yell that the officer was killing him while continuing to fight. The trend now is to run and fight whenever you are confronted by the police. If you are black, there is a reward for it.
Let us look at the officer who failed to intervene. If you watch her efforts to assist her fellow officer, you can see that she is poorly trained and almost completely ineffective. That has some bearing on the necessity to hit Vinson. Further, you can see that she has very limited time to intervene in what is a quick series of strikes. Further, she is involved in the struggle and has limited ability to see that the other officer is hitting Vinson. Time to perceive and ability to intervene have always been a factor. I was pulling officers off of suspects long before these legislators came up with their vague guidelines. I am fully aware of the factors involved. From the police standpoint, it is always important to look at facts. The current trend to use vague guidelines and to be judged by emotional, uninformed people is a death knell for any effective law enforcement. I welcome public review of all police actions. But, let us listen to those who do the job and know something. A jury will decide the fate of the officers involved. It should be an informed jury.
This provision of the law is a good one and is the ONLY way there is going to be reform. It has to come from the officers themselves doing the right things. Otherwise, they will never regain our trust and respect.
I suppose we could nitpick every law all the way to unconstitutionality and never make advancements.
So a defense attorney files a motion, which is what defense attorneys are supposed to do, and Vinson’s lawyer pretends like this attorney speaks for the police in general and the police unions.
Former Ofc. Martinez is entitled to due process and to legal representation. She can have her day in court, and she can speak for herself (or her attorney can speak for her), but blaming every cop for whatever position she takes is divisive and stupid.