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Former Aurora police officer files motion to dismiss criminal charge against her

Francine Martinez was charged with failure to intervene after a use of force incident in July when another officer pistol-whipped a suspect.

AURORA, Colo. — A former Aurora police officer wants a criminal charge against her to be dismissed. She's accused of failing to intervene when another officer pistol-whipped a man they were serving a warrant on. 

Francine Martinez's attorneys are now arguing this charge against her is unconstitutional.

In July 2020, Martinez and officer John Haubert responded to a trespassing call in the 3100 block of South Parker Road. While responding to that call, the officers encountered Kyle Vinson, who had an active warrant out for his arrest.

Chief Vanessa Wilson at the time said she believed Vinson was unaware of the warrant when the officers approached him and attempted to take him into custody.

According to Wilson, Haubert pistol-whipped Vinson more than a dozen times. Martinez was fired, and Haubert resigned after the incident.

RELATED: Aurora officer who witnessed pistol whipping incident caught on body cam fired, department says

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Body camera video shows Haubert pointing his gun at Vinson. Martinez is nearby. Prosecutors charged Martinez for failing to intervene during the use of force incident. The statute is part of a new law that lawmakers passed in 2020 to hold police accountable. 

In March, Martinez's attorneys filed a motion to dismiss the charge because they believe the "failure to intervene" statute is unconstitutional. According to the motion, lawmakers failed to define the term "intervene."

"The problem is, what does intervene mean?" 9NEWS legal expert Scott Robinson said. "Does intervene mean a few harsh words? Does intervene mean physically restrain the other officer?"

Robinson said there isn't much guidance in criminal code right now on what is required of officers.

Martinez's motion called the statute "unconstitutionally vague" because her attorneys said it fails to define what it means for a police officer to intervene during a use of force incident. 

"There’s no question the lawmakers intend for this statute to prevent what happened in the George Floyd case, where other officers just stood idly by," Robinson said. "But each case is different, and the law of criminal consequences requires adequate notice to the people whose actions are being potentially criminalized."

For Vinson's attorneys, the body camera video makes it clear. Attorney Ciara Anderson said Martinez should have known to do more to stop the beating.

"The reason for SB-217 and the law was for police to be held accountable," she said. "By dismissing this case, it would go against holding police accountable."

According to Martinez's motion, she touched Haubert's arm and told him to move his hand when she saw Haubert's hand on Vinson's neck. Aurora police did not report she made those efforts to stop the use of force when they submitted documents for her arrest.

Since it became law, at least three officers in Colorado have been charged with failing to intervene. One of those cases was dismissed by a district attorney. If someone is found guilty, the person can no longer be a police officer in the state. 

The previous convictions could be tossed if the state Supreme Court finds the statute unconstitutional. 

An Arapahoe County district court judge will make a decision on Martinez's motion first. If the judge finds the statute unconstitutional, Robinson said the prosecution can file an appeal.

RELATED: Colorado's first 'failure to intervene' case led to $300,000 settlement

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