The Boulder police officer who confronted a black Naropa student picking up trash outside his residence in March was found in violation of department policies and is resigning following an internal investigation.

The officer was identified today as 40-year-old John Smyly, a 14-year veteran of the department with no prior disciplinary action.

Smyly, who had been on paid administrative leave since the incident, resigned prior to the conclusion of the disciplinary process, but police indicated the process would have likely resulted in suspension or termination.

While the department said it could not support a claim of racial profiling in Smyly’s March 1 encounter with Zayd Atkinson, he did violate two department policies: police authority and public trust and conduct.

As part of a settlement with the city, Smyly will resign from the police department today but will remain under city employment until February 2020 as he exhausts accrued holiday, sick and administrative leave.

“Concluding the investigation allows the city to release all of the information relating to the incident, allowing community members to form their own opinions based on all of the available information,” Boulder City Attorney Tom Carr said in a statement. “The exchange between Officer Smyly and Mr. Atkinson does not represent the professionalism of the Boulder Police Department nor the community Boulder desires to be. While we have no proof that racial bias was a motivating factor, the internal affairs investigation resulted in sustained violations of police policies.”

Atkinson’s attorney Siddhartha Rathod said he was disappointed Smyly was not fired and instead was allowed to resign and remain on the city’s payroll until 2020.

“If you or I did what Officer Smyly did to Zayd Atkinson, not only would we be immediately fired, we would be criminally prosecuted,” Rathod said. “The city of Boulder is paying this officer nearly $80,000 for violating the constitutional rights of Zayd. The citizens of Boulder should be outraged that Boulder either doesn’t have the ability or the will to fire this officer and root out discrimination from this police department.”

Boulder officials did not immediately return a request for how much Smyly would be paid during his time on leave. But Carr did elaborate on the decision not to fire or suspend Smyly in the statement.

“A disciplinary appeal process required by the police collective bargaining agreement likely would have overturned a termination of the officer, and he would have returned to duty after extensive additional delay,” Carr said in the statement. “The settlement allowed the city to provide the community information more quickly, and it transitioned Officer Smyly out of a law enforcement career.”

According to a summary of the investigation released by Boulder police Chief Greg Testa, Smyly was conducting extra patrols on March 1 in the area of Folsom Street and Arapahoe Avenue due to recent crime in the area.

At about 8:20 a.m., Smyly was in his patrol car when he saw Atkinson “from a distance” at 2333 Arapahoe Ave. “manipulating an unknown object in his left hand.” Smyly drove closer and observed Atkinson for a minute and saw him seated on a bench in a patio area that had a sign that said “private property.”

Smyly decided to approach Atkinson on foot, and saw that he was using a long metal claw to pick up trash and put it in a bucket.

According to the report, Smyly asked Atkinson if he lived there. Atkinson said he did, but did not elaborate when Smyly asked him what unit he lived in. Atkinson gave Smyly his Naropa student ID, but it did not have his address or date of birth.

When Smyly asked for an address and date of birth, Atkinson walked away and began to pick up trash again. At this point, Smyly called in for a cover car and told Atkinson he was obstructing a police officer and was detaining him and investigating him for trespass.

According to the report, Atkinson “raised his voice” and Smyly “felt threatened by the trash grabber” and drew his stun gun. He can be heard saying in the body cam video, “You’re probably going to get tased in a second, because you have a weapon.” Smyly then drew his handgun, telling police he believed the stun gun would not be effective because Atkinson was wearing a heavy coat.

In the body camera footage, Atkinson can be seen several times walking away from Smyly, with Smyly following after him and ordering him to sit down. Smyly can be heard saying, “You have a dangerous object in your hand and you are failing to put it down.”

When Atkinson points out “you are holding a gun,” while he has a trash grabber, Smyly says, “I feel threatened because you are not putting it down.”

Atkinson at several points asks for Smyly’s supervisor and says, “You’re not going to get away with murder. Not today.”

Smyly told dispatchers Atkinson was “failing to comply and had a blunt metal object,” which resulted in eight officers and a sergeant responding to the scene. One of the other officers arrived with a handgun drawn but holstered it, while another had a stun gun drawn. The report indicated none of the officers, including Smyly, ever pointed a gun or stun gun at Atkinson.

Officers were able to talk to Atkinson and a Naropa employee who responded to the scene and confirmed Atkinson was a student and lived in the building, which is housing for the university.

A video of the incident was posted to social media, and in it Atkinson can be heard telling police he is on his own property and is just picking up trash.

A person can also be heard telling Atkinson he was likely racially profiled, but police determined that was said by the Naropa employee, not any of the officers.

The report concluded Smyly violated department policy during the encounter with Atkinson.

“The subject officer’s decision to attempt to detain Mr. Atkinson was not supported by reasonable suspicion that Mr. Atkinson was committing, or was about to commit a crime, therefore he did not have authority to detain Mr. Atkinson,” the report read. “When Mr. Atkinson walked away, continuing to pick up trash, the subject officer believed he had probable cause to charge Mr. Atkinson for obstructing a police officer. The subject officer did not have probable cause to charge Mr. Atkinson with any crime. The contact evolved into a stop and detainment that caused multiple officers to respond. 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.”

While it found Smyly violated department policy, the report indicated there was not enough evidence to support racial bias being a factor. Smyly told the department he could not tell what race Atkinson was when he first saw him.

The other responding officers were cleared of any wrongdoing by the report, but the department said the encounter has uncovered the need for further training.

“Based upon this investigation and concerns it raised, the Boulder Police Department will be initiating additional officer training concerning effective de-escalation of incidents,” the department wrote in a release.

The incident has resulted in Boulder City Council forming a committee to explore a police oversight committee, while the incident is still under an independent review.