In response to nationwide protests against racism and police brutality, Colorado lawmakers succeeded in passing a bill to improve accountability in law enforcement and give victims of unconstitutional treatment more power to seek legal recourse.
“This historic bill stands as a testament to the tireless work that advocates, protestors and justice-seeking Coloradans have done for generations,” bill sponsor Rep. Leslie Herod, D-Denver, said in a statement following the bill’s House passage. “We’ve come a long way and we still have a long way to go. But today I’m proud to say [we] took action to enact sweeping reform and correct the injustices that Black and Brown communities have suffered at the hands of law enforcement for far too long.”
Gov. Jared Polis, a Democrat, signed the bill into law on June 19.
At the national level, efforts are underway to pass similar legislation in Congress, though it’s too soon to say whether Democrats in the U.S. House and Republicans in the Senate will ever be able to agree on a bill.
Colorado’s political climate is more amenable to Democrats, who’ve pushed for more drastic change in law enforcement. They enjoy a trifecta of power in the Colorado House, Senate and governor’s office, meaning they can override the objections of Republicans to pass legislation. But Senate Bill 217 garnered considerable bipartisan support.
In the Colorado Senate, the bill passed by a 32-1 vote with the support of all El Paso County senators, most of whom are Republicans.
In the House, Senate Bill 217 passed by a 52-13 vote, though some El Paso County Republicans (Reps. Terri Carver, Larry Liston, Shane Sandridge and Dave Williams) were among those opposed.
The new Colorado law, sponsored by four Democrats — Sens. Rhonda Fields of Aurora and Leroy Garcia of Pueblo, along with Reps. Herod and Serena Gonzales-Gutierrez of Denver — requires local law enforcement and Colorado State Patrol officers to activate body-worn cameras or dashboard cameras during most enforcement-related contacts with the public. In cases of alleged misconduct, the agency must release body camera footage to the public within three weeks — except in ongoing investigations, which have a 45-day deadline.
Another provision of the bill requires law enforcement agencies to start reporting extensive data on officers’ use of force by Jan. 1, 2023. This data must include the suspect’s demographic information, plus the name of the officer, in all incidents where an officer uses force that results in the serious injury or death of a member of the public. Other details of the interaction, such as the type of force used and whether a complaint was filed, must also be reported.
In cases where an officer is convicted of unlawful use of force — or of failing to intervene when a peer unlawfully uses force — the officer’s Peace Officer Standards and Training (POST) certification must be revoked. This will prevent officers from moving to a different department after being held accountable for violence, the bill’s supporters say.
Taking into account a federal judge’s recent order restricting the Denver Police Department’s use of tear gas and rubber bullets, the bill also restricts the use of such “less-lethal” methods against protesters.
Specifically, it bars police from using tear gas before issuing an order to disperse, and from indiscriminately firing projectiles into a crowd or from firing them at peoples’ heads, pelvic areas or backs.
Perhaps the most contentious section of the bill is one that deals with civil action against law enforcement officers. It prohibits the use of the “qualified immunity” defense in Colorado civil court cases where an officer is determined to have clearly violated a person’s constitutional rights. Under this provision of the bill, officers would be individually liable for up to $25,000 or 5 percent of the total judgment in a civil case.
This part of the bill excludes the Colorado State Patrol and other statewide agencies such as the Department of Corrections, which runs the state’s prisons.
On the House floor, some Republicans raised concerns that making officers personally liable in lawsuits would hurt well-intentioned members of the rank-and-file. They said they’d received emails from concerned spouses of police officers, who were worried the legislation would hurt their family members financially or in other ways.
“If something as egregious as what happens to Black men in this country, and not just George Floyd, had happened to me, would you be making a decision on this bill because you are afraid of an election?” Rep. James Coleman, a Democrat from Denver who is Black, countered June 11. “I would be shocked, because of the relationship I have with each of you ... if you didn’t take up the responsibility to say that, ‘We’ve got to do something about this.’”
The bill’s sponsors, meanwhile, said they worked extensively with law enforcement stakeholders to find a version they could agree on.
“Many of the policies included in Senate Bill 217 are already in place at the local level, but we are glad to have statutory support for changes that law enforcement can implement uniformly statewide,” the Colorado Association of Chiefs of Police and County Sheriffs of Colorado said in a joint statement following the bill’s signing.
“Other parts represent a significant change in the way officers do their jobs,” the statement continued. “Amid COVID restrictions and social distancing requirements, departments statewide face the challenge of training officers in the quick timelines required; and they are already hard at work to inform and train officers in a thorough and safe manner.”
Another provision of SB217 aimed at increasing transparency: In cases where a district attorney’s office declines to pursue a criminal case against officers accused of misconduct, the district attorney must release a report explaining the factors that led to that determination. Likewise, grand juries must release a report to the public when they decline to indict an officer in a death investigation.
The bill also empowers the state attorney general’s office to sue law enforcement agencies for patterns of misconduct.
Other sections of the bill include prohibitions against specific types of force, such as: a ban on chokeholds, and a requirement that deadly physical force can only be used when an officer is making an arrest for a violent felony charge and when the officer reasonably believes that deadly force is the only means of preventing the suspect from inflicting death or serious injury on another person.
The bill will cost the state $700,000 for the fiscal year beginning July 1 and $2.6 million the following year, according to a fiscal note created by legislative staff.
How far does the bill go?
SB217 won’t have the wide-reaching impact of some past reforms, such as policy requiring law enforcement agencies to increase minority representation on their force, said Jonathan Caudill, a criminal justice professor at the University of Colorado at Colorado Springs.
Caudill praises the bill’s reporting requirements, but shares the concerns of some Republicans that other sections could have unintended consequences.
In particular, he said, the provision ending the use of qualified immunity in civil cases could hurt communities by leading to a “slowdown in proactive contacts with police officers.”
“I think we’ll see lower morale among officers,” Caudill said. “Nobody’s going to look to excel and exceed expectations in this environment, so the quality of the work could diminish.”
With lower morale, officers might use sick time more often, and departments will have a harder time recruiting qualified applicants, Caudill said. This, he says, would disproportionately hurt “poor, urban areas that are already plagued by violence and crime.”
A better way of effecting reform, in Caudill’s opinion, might be this: If lawmakers don’t like the way officers use force, they should change the statute defining what constitutes a crime.
“Policing doesn’t occur in a vacuum,” he said. “If we task the police department with arresting people that are possessing drugs … we’ve put the police in a situation of conflict.”
Alan Chen, a constitutional law professor at the University of Denver’s Sturm College of Law, thinks it’s still too early to say whether significantly more lawsuits will be filed against police officers as a result of the bill.
“Even in the best of circumstances, it’s hard to bring a lawsuit,” Chen said. “You still need to find a good lawyer who’s going to bring the case for you. You have to have a good case, you have to have some evidence. And so I think there will be an increase, but I don’t necessarily know that there will be a huge increase.”
SB217 doesn’t affect federal lawsuits, “where qualified immunity is still a significant barrier to holding police accountable,” he said. Only Congress can change that.
The national debate
At the national level, the Republican-controlled Senate and the Democrat-controlled House have both introduced legislation they say will improve law enforcement accountability, though the two parties are at an impasse. Neither proposal has any support from the opposite party.
Both parties’ proposed reforms aim to make body-worn cameras ubiquitous across law enforcement and make lynching a federal crime.