Fort Collins police sued over excessive force in arrest, pepper spraying of man in 2021

Fort Collins Coloradoan - A Fort Collins man says his vision was permanently damaged when police sprayed him with pepper spray after he refused to accept a summons for petty trespassing from officers in Old Town Fort Collins in August 2021.

The man, Andru Kulas, filed a lawsuit last month against the city of Fort Collins and Fort Collins police officers Kevin Park and Avery Hanzlicek, nearly two years after the two officers arrested Kulas for allegedly trespassing on the rooftop of an Old Town bar. The lawsuit alleges Park used excessive force in pepper spraying Kulas and Hanzlicek failed in his duty to intervene when witnessing excessive force.

When the lawsuit was filed in late August, Kulas' attorneys also released edited and unedited body camera footage from the incident and the internal investigation report completed by Fort Collins Police Services following a complaint Kulas filed with the department. Fort Collins Police Chief Jeff Swoboda also issued a statement regarding the lawsuit, which included additional body camera footage.

The lawsuit claims Kulas has permanent vision impairment from Park's use of pepper spray so close to his face and that "a permanent haze had developed in his vision" after the incident.

Here's what we learned about this case from reviewing the lawsuit, internal investigation report and body camera footage:

Man pepper sprayed, arrested for refusing to accept summons for trespassing

In the early morning hours of Aug. 29, 2021, Hanzlicek responded to the corner of College and Mountain avenues to investigate a reported trespassing incident at a nearby bar, where a staff member said two men were climbing on the bar's roof. Hanzlicek identified Kulas and his friend as potential suspects, so Hanzlicek began speaking with them. Kulas provided his ID to Hanzlicek when asked, according to the lawsuit.

Hanzlicek identified Kulas and his friend as the suspects and was writing Kulas a summons for third-degree trespassing, a petty offense, when Park arrived as backup. Kulas was standing nearby asking questions, but Park — not knowing that Kulas was involved, he later told the internal affairs investigator — ignored his questions and asked him to step back.

When Hanzlicek started explaining the summons to Kulas and tried to hand it to him, Kulas refused to take it. Park took the summons from Hanzlicek and told Kulas he needed to take it or he wouldn't know when his court date would be and a warrant would be issued for his arrest.

When Kulas still didn’t take it, Park, "unable to contain his anger towards Mr. Kulas any longer," the lawsuit states, tried to force Kulas to take it, shoving the ticket at him. Kulas backed away, repeatedly saying “no" and trying to push away the summons, body camera footage shows.

Park is then seen taking Kulas to the ground by his jacket.

The internal affairs investigation report writer, Lt. Sara Lynd, said Park "aggressively shoved the citation into (Kulas’) chest and then grabbed his jacket and shoved (Kulas) to the pavement without any provocation,” according to the report released to the public by Kulas' attorney. Lynd also wrote that Kulas appeared to push or brush Park's hand away as the officer tried to force the citation into his pocket, and the contact was "incidental" and not an attempt to assault the officer.

The lawsuit alleges Park slammed Kulas' head into the sidewalk and used his forearm to choke him while restraining him on the ground. Other officers assisted Park in holding Kulas on the ground, and they asked him to roll from his back to his stomach, which he couldn't physically do while being restrained, according to the lawsuit.

In the body camera footage, Park is seen pulling out his pepper spray, pointing it at Kulas' face a few inches away and saying "comply or force will be used against you." Park then sprayed pepper spray “directly into the restrained and helpless Mr. Kulas’s eye … just 1-2 inches away from Mr. Kulas’s face,” the lawsuit states.

In the minutes following, Kulas asked officers for something to wash his eyes out as his face continued to swell, but “they ignored him and did nothing to alleviate his suffering,” the lawsuit claims. Kulas was wearing contacts when he was pepper sprayed, so the lawsuit claimed the particulates stayed trapped in his eyes longer, causing more damage.

Kulas was treated by emergency medical services professionals on scene and then transported to the jail, where he was detained for 36 hours, according to the lawsuit. While in the jail, he was “functionally blind and in complete agony from continued burning, swelling, tearing, and filled with terror” that the damage would be permanent, the lawsuit states.

Two years later, Kulas continues to have cloudy vision, the lawsuit claims.

On top of the third-degree trespassing allegation, Kulas was charged with obstructing a peace officer and resisting arrest. The 8th Judicial District Attorney's Office outright dismissed the "unsupported" obstructing and resisting charges, spokesperson Brianna Jones said, and the third-degree trespassing charge was dismissed after Kulas completed a class.

Officers exonerated despite critical internal review

In October 2021, Kulas filed an excessive force complaint with Fort Collins Police Services against Park. The complaint triggered an internal investigation into the incident.

The internal investigator, Lynd, found that Park did violate department policy, but Swoboda — who makes the final call regarding disciplinary or corrective action needed — exonerated the officer.

Department policy requires officers to use nonviolent means to gain compliance when possible before using force, but “Internal Affairs does not believe that all the available nonviolent means had been attempted prior to the use of force," Lynd wrote in the internal investigation report.

“Officer Park, through his behavior and actions, caused a poor interaction to develop," Lynd wrote in the report, later adding, "I believe that Officer Park could have found alternate means to issue the summons.”

The department's policy does not specify any distance pepper spray should be deployed at, but the department's "Defensive Tactics" training directive states "it should be applied no less than 3 feet away as it could pose additional injury to an individual," though "there are certain circumstances where a closer application of (pepper) spray may be appropriate," officer Brandon Barnes told the Coloradoan in an email.

The department's "Defensive Tactics" team is responsible for the teaching and training of deploying pepper spray, and the curriculum it uses has been reviewed and approved by the Colorado Peace Officer Standards and Training board. While the state requires police officers undergo a minimum of one hour of training on this topic annually, Fort Collins police requires 12 hours, and officers are required to take an annual refresher training on utilizing pepper spray, Barnes said.

Since the incident involving Kulas occurred, Barnes said the department has undergone "additional training to ensure that we are consistent in how we respond to such incidents."

Swoboda defended his decision to exonerate Park from any policy violations in a statement posted on social media after the lawsuit was filed, stating that it "couldn't be further from the truth" that a full investigation into this complaint was not conducted.

The Citizen Review Board — which is comprised of residents tasked with independently reviewing certain internal investigations conducted by Fort Collins police — sided with Swoboda, unanimously agreeing during a March 2022 meeting that Park should be exonerated from any wrongdoing.

More:Fort Collins' Citizen Review Board sides with police in most use of force cases. They say that's good.

The review board recommended “additional role player scenarios, like this incident, be provided to all officers in basic and continued training” and “an additional refresher course on hold techniques for the officers involved in this incident," according to the memo from their meeting.

Swoboda said that he and other city officials received a letter in July asking for $750,000 in "quiet compensation" in this case, and if the city agreed this case would not be shared with the public, but the city did not agree.

“We want you to see the entire incident,” Swoboda said. “Our officers found someone committing a criminal offense in our downtown area who refused to accept a criminal summons and was taken into lawful arrest. ... We don’t quietly give money out in the hopes that cases don’t make it to the public.”

In a news release, attorney Sarah Schielke said "the assault on Mr. Kulas is horrifying," and that the fact that the internal investigator identified misconduct but Swoboda and the review board "ignored" those findings and exonerated the officer "is even worse."

"FCPS's Internal Affairs investigators found numerous policy violations and no justification for the officers' use of force," another attorney representing Kulas, Matthew Haltzman, said in a statement to the Coloradoan. "... This type of conduct by FCPS is toxic, destructive and erodes our public trust in the police and their leadership."

See the original article here: https://www.coloradoan.com/story/news/2023/09/14/fort-collins-police-sued-for-excessive-force-in-2021-old-town-case/70730173007/