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Boulder officer resigns, investigation complete after officer tries to detain man cleaning outside home

Boulder PD releases body camera footage, reports
Posted at 11:16 AM, May 16, 2019
and last updated 2019-05-17 08:06:29-04

BOULDER, Colo. — The investigation into a Boulder police officer who tried to detain a black man cleaning trash around his home has been completed, and the police department has released all related body camera footage and reports.

On Thursday morning, the city of Boulder announced the investigation had closed and the officer, who had already resigned, had not racially profiled the man.

The incident happened on March 1 on the 2300 block of Arapahoe Avenue in Boulder.

That morning, John Smyly, a Boulder police officer, was driving around the area of Folsom Street and Arapahoe Avenue to help provide extra patrol units after a few crimes — including bike theft, burglary and trespassing at an orthodontics office — had been reported in the area, according to the executive summary of the internal affairs investigation.

Around 8:20 a.m., he saw Zayd Atkinson, 26, of Boulder outside a building. After noticing a “Private Property” sign near where the man was sitting, Smyly asked if he lived there. Atkinson, who was holding a trash grabber and bucket, said he did. When Smyly asked for his unit number, Atkinson said, “I don’t think I actually have to tell you that.” He provided his school ID, which read that he studied at Naropa University.

Smyly insisted on confirming he did in fact live at the building, and when Atkinson walked away and continued picking up trash around the property, he followed from a distance. He repeatedly asked Atkinson to sit down and told him that he was obstructing a police officer by walking away. Atkinson continued to respond that he lived in the building.

As Smyly explained that Atkinson was being detained so he could verify his address, he also asked that Atkinson put down the trash grabber.

“Sit down… You have a dangerous object in your hand,” Smyly is heard saying in body camera footage.

“I have a dangerous object? I’m picking up trash,” Atkinson responded.

Smyly again asked Atkinson to sit down and said he was being detained. At this point, Smyly had his Taser in his hand.

“Your hand is on your weapon and you're gonna shoot me?” Atkinson said. “That's what you’re gonna do, officer? You're gonna shoot me on this property for picking up trash? That's what you're going to do, officer?”

At one point, Atkinson raised his voice and Smyly reported that “he felt threatened by the trash grabber and drew his Taser and later transitioned to his handgun. Both weapons were pointed in a downward direction in front of the officer,” according to the report. Smyly would later say he drew his handgun because Atkinson was wearing a heavy coat and he didn’t know if it would be effective.

“That's a gun,” Atkinson said, according to the body camera footage. “I'm picking up trash. I'm picking up trash and you're holding a gun.”I’m

He asked if Smyly would shoot him if he didn’t put the trash grabber down.

“If you use that weapon against me then yes, that is a consideration,” Smyly responded.

Smyly requested backup, indicating the subject was being uncooperative and was unwilling to put down a blunt object, and eight other officers and a supervisor responded. They formed a perimeter around Atinson and tried to talk to him to deescalate the situation. A few officers had a Taser or handgun out when they arrived, but all of them put the weapons back in their holsters within a few seconds.

One of the other officers gained access to the building and confirmed with residents that Atkinson did live there. At that point — around 8:52 a.m. — officers cleared the scene.

The entire interaction lasted about 22 minutes.

After a YouTube video surfaced of part of the incident, the police officer was accused of racial profiling and police misconduct. The police department launched an internal affairs investigation shortly afterward and the city hired an outside investigator to review the incident.

The Boulder Police Department released the body camera videos, police report and dispatch tapes related to the incident Thursday morning after completing the investigation.

The investigation found that Smyly, who had been with the department for 14 years with no prior history of disciplinary action, violated two police department policies, but the report did not find evidence of racial profiling, according to the department. He also did not have probable cause to charge Atkinson with obstructing a police officer, or any other crime. The other officers who responded to Smyly’s call for assistance were cleared of any wrongdoing.

“The subject officer should have ended his contact with Mr. Atkinson as soon as Mr. Atkinson provided his name, address and a brief explanation of what he was doing,” according to the report.

READ MORE: Activists call for citizen review board after Boulder officers detain black man

The two policies he was in violation of were, as described in the executive summary, as follows:
· Department rule 5 (Police authority and public trust): Members are entrusted to effectively, helpfully, and non-abusively use the authority and public trust vested in them.
· Department rule 8 (Conduct): Members use reasonable judgment and refrain from conduct which reflects unfavorably on the department.

Smyly resigned on May 15, before the conclusion of the disciplinary process. The findings likely would have resulted in suspension or possible termination, according to the department.

As part of his resignation agreement, Smyly will officially end his employment with Boulder on Feb. 9, 2020 after using his accrued floating holiday leave, sick and permitted administrative leave. He is not allowed to be reinstated to the Boulder Police Department.

Atkinson's attorney, Denver-based civil rights attorney Siddhartha Rathod, said that Boulder was using taxpayer dollars to reward Smyly for racially profiling his client and putting Atkinson in fear for his life.

"Boulder is paying this officer nearly $80,000 in taxpayer money, giving him a year's paid vacation for what he did," Rathod said, adding that if any other citizen had done what Smyly did, they would be fired from their job and charged criminally.

He said Boulder either lacks the ability or will to root out racism from this police department.

The city was being "disingenuous with the public" and "using taxpayer dollars to pay this officer," he added.

"If they don't have the ability to terminate racist officers, that's Boulder's problem — not taxpayers' problem," Rathod said, pointing to new data that showed black and African-American people in Boulder were more than twice as likely to be arrested during a routine police stop than their white counterparts.

Atkinson echoed Rathod's remarks in an interview with Denver7.

"That just pisses me off — that my tax money is going there to this guy to hang out for a year after breaking the law and breaching my rights," Atkinson said. "That means you can do whatever you want and break the law and get away with it."

City Attorney Tom Carr said the exchange between Smyly and Atkinson does not represent the professionalism of the department.

“The settlement allowed the city to provide the community information more quickly, and it transitioned Officer Smyly out of a law enforcement career,” he said.

An independent review conducted by former U.S. Attorney for the District of Colorado Bob Troyer will be released once it’s complete, which is expected to be next week.

Based on the investigation, the Boulder Police Department will start additional training on de-escalation efforts for officers. The Boulder City Council has also created a task force to study police oversight.