Trooper felt ill-trained in search law, investigator testifies in fatal shooting
A Colorado State Patrol trooper on trial in the shooting death of Jason Kemp said he received “very little if any” training on Fourth Amendment law and general issues respecting lawful search and seizure, an investigator testified on Tuesday in the trial of Trooper Ivan “Gene” Lawyer.
Mesa County Sheriff’s Department investigator Jim Hebenstreit told a jury Lawyer made the training-related admissions during interviews in the aftermath of the July 20, 2010, death of Kemp, 31, who was gunned down in the doorway of his home at 103 Glade Park Road, Unit B.
Described by Denver defense attorney Eric Fenster as a mild-mannered Christian and a trooper “who doesn’t use swear words,” Lawyer at the time of the shooting was at the end of his three-month probationary period after being hired back after a three-year hiatus, according to testimony. Lawyer, after his return, was assigned to work under Cpl. Kirk Firko.
Lawyer worked for the Mesa County Sheriff’s Department as a detention deputy for three years, then for the Colorado State Patrol for nine years before leaving the agency for a private-business opportunity. He returned to the State Patrol in the months leading up to Kemp’s shooting.
Hebenstreit testified Lawyer and Firko told mostly similar accounts of the incident with Kemp, with one notable exception: The troopers blamed each other for escalating the situation, saying the other one started kicking at the front door first.
District Attorney Pete Hautzinger showed the jury the unhinged front door that once stood at Kemp’s home, splintered on one side, blood-stained and with black shoe prints from the troopers’ kicks as prosecutors argued the Fourth Amendment to the U.S. Constitution is the central issue in the trial
Kemp, in various profane verbal exchanges from behind the door, told them to get a search warrant.
“Jason Kemp died demanding his constitutional rights be honored,” Deputy District Attorney Todd Hildebrandt said during opening statements. “And the only force he (Kemp) used was trying to prevent them from coming inside his home.”
Kemp would have been justified that day in defending his home with deadly force as allowed under the doctrine of Colorado’s Make My Day law, the prosecutor said.
“That force can be applied against a police officer,” Hildebrandt said.
Approximately 40 people, including members of Kemp’s and Lawyer’s families, sat in on opening statements in District Judge Richard Gurley’s courtroom. Among the onlookers was Maj. Barry Bratt, the commanding officer of the Colorado State Patrol district that includes Mesa County. Bratt and Lawyer shook hands in a brief exchange before opening statements.
Kicking and pounding
Lawyer pleaded not guilty to charges of criminally negligent homicide, second-degree assault, illegal discharge of a firearm and first-degree criminal trespass, plus misdemeanor charges of prohibited use of a weapon and criminal mischief.
Lawyer’s trial is scheduled through Friday, although it may run into next week. Firko is slated for trial starting July 16.
Lawyer and Firko were investigating a non-injury accident in which Kemp was suspected of driving drunk, and they engaged Kemp in a struggle at the front door, kicking and pounding as Kemp leaned against it.
Fenster told the jury that Firko at some point told Kemp, “We’re not coming in ... but you’ve got to come out.”
Fenster said Lawyer’s actions at 103 Glade Park Road were lawful. Fenster said during opening statements one law enforcement expert will testify that Lawyer’s handling of the situation was proper, and “any law enforcement officer would do the same.”
Kemp’s autopsy showed a blood-alcohol level of 0.281 percent, more than three times Colorado’s standard for DUI.
Lawyer told investigators he saw Kemp’s right hand raise up as the front door flew open and saw a flash before he fired once and fatally wounded Kemp, who was unarmed.
Fenster on Tuesday suggested a metal bracelet worn on Kemp’s right arm may have accounted for the flash.
“Gene did the best he could in an explosive situation,” Fenster said. “And it all happened in less than two minutes.”
Lawyer later told an investigator, “I thought one of us was going to get shot, and it wasn’t going to be me.”
Hautzinger, during questioning of Hebenstreit, the only witness to testify Tuesday, repeatedly suggested the troopers unreasonably escalated the situation.
Kemp was living in unincorporated Mesa County, and the State Patrol routinely handles traffic accident investigations in unincorporated Mesa County, Hebenstreit said. Hebenstreit testified it would have taken an hour to 90 minutes to obtain a search warrant for Kemp’s home.
“Are you aware of any physical or tactical reason why (troopers) couldn’t have pulled back and let the Mesa County Sheriff’s Office take over?” Hautzinger asked Hebenstreit.
“No,” the investigator replied.
Hautzinger continued, “In your 22 years in law enforcement, what would you have done?”
The investigator didn’t answer when Gurley sustained a defense objection.