Colorado to strip its police force of qualified immunity: Countless officers discussing resigning.

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Editor note: Law Enforcement Today has received countless messages over the past few days from officers in Colorado.  Many have asked for resources finding police jobs out of Colorado – many others have said they plan on leaving the field altogether.

This is just the beginning.  Here’s why.

COLORADO – New criminal justice reform has been passed to the governor’s desk in Colorado, and it tightens the screws on law enforcement officers across the state.

The Denver Post reported this comprehensive package in the wake of protests following the death of George Floyd in Minneapolis, MN.

As of Friday, June 19, the legislation has been signed into law.

Denver civil rights attorney Qusair Mohamedbhai said:

“This is, in my estimation, the largest single advancement of individual civil rights and liberties for Coloradans in a generation.”

The bill is sponsored by Senator Leroy Garcia, Senator Rhonda Fields, Representative Leslie Herod. Representative Serena Gonzales-Gutierrez and the American Civil Liberties Union worked together with Colorado legislators to draft the bill.

In this bill, SB20-217 Enhance Law Enforcement Integrity, choke holds are banned, along with a few additional key enhancements:

  1. Deadly force must be used as a last resort
  2. No rubber bullets can be used
  3. Body cameras must be turned on during interaction with the public
  4. Qualified immunity is not a defense in the civil action
  5. A Statewide database must be created

This bill, which takes effect July 1, 2023, according to the drafted proposal, adds more burdens on law enforcement officers across the state of Colorado.

While raising the use of force threshold in certain cases, it also removes qualified immunity should the officer commit a crime, as deemed by this new law, in the course of his or her duty as a peace officer.

SB20-217 places the burden of civil lawsuit settlements on law enforcement officers if they allegedly violate any part of this new law, and states:

“[The] peace officer is personally liable for 5% of the judgment or $25,000, whichever is less, unless the judgment is uncollectible from the officer, then the officer’s employer satisfies the whole judgment.”

Across the nation, the demands to “defund” law enforcement have gained momentum, and in some places, department budgets have been impacted or they are forecast to be impacted. SB20-217 takes a great deal of control and consideration out of the hands of local law enforcement and puts it in the hands of the state.

It is unclear where the funds for the body cameras will come from, or the new database as required in this new proposed law. You can read the bill in its entirety here.

Broomfield Police Chief Gary Creager, the chair of the Colorado Association of Chiefs of Police, said in a statement:

“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. We look forward to continued partnership with our communities and the Legislature to ensure policing in Colorado is transparent and fair.”

One such piece of language in this bill is the requirement of officers to have a “legal basis” for making a “contact.”

The bill states:

“A peace officer shall report to the peace officer’s employing agency that information that the agency is required to report to the division of criminal justice.”

It should be noted, law enforcement officers have always been required to have reasonable suspicion, or as stated here, “a legal basis,” before initiating contact with a person, unless the contact was solely consensual, in which case the person could simply walk away if they so choose.

Sponsors of SB20-217 worked with law enforcement agencies and the ACLU to craft what they believe to be one of the most aggressive reforms in law enforcement. We would tend to agree.

Many cities are working on similar police reform, but Colorado is the first to announce a piece of legislation removing qualified immunity from officers  heading to the governor’s desk for signature.

At least two dozen other cities have announced some degree of police reform in the past few weeks.

 

While Colorado attempts to strip qualified immunity from its police, the Supreme Court has recently said they will do no such thing.

Here’s Law Enforcement Today’s recent report on that.

At least the Supreme Court is still on the side of law and order…at least for now. The high court on Monday refused to give reconsideration to immunity from lawsuits, otherwise known as qualified immunity, given to police officers as well as other public officials who are accused of misconduct.

The decision by the justices not to hear cases on qualified immunity during their next term comes on the heels of the George Floyd death, who died in police custody last month in Minneapolis. Floyd’s death has led to some peaceful protests across the U.S., but also a large number of violent riots that led to looting and widespread damage in cities from New York to Los Angeles.

Over recent years, the court has set a rather high bar for the pursuit of lawsuits stemming from official misconduct. MSN reports that in order to do so, an officer’s conduct must violate “clearly established” laws or constitutional rights, which courts have found seldom happens, specifically because almost every allegation is different.

Judges in lower courts, however as well as legal experts from both sides of the political spectrum have questioned the principle of qualified immunity, which they claim creates an impossible standard for victims to meet, and which they claim offers near “blanket immunity for those accused of misconduct.”

Ironically, one of the most conservative justices on the high court, Associate Justice Clarence Thomas dissented from the decision not to hear a new case on the doctrine. The case involved a burglar who had surrendered and was bitten by a police dog.

“I have previously expressed my doubts about our qualified immunity jurisprudence,” he wrote. “Because our…qualified immunity doctrine appears to stray from the statutory text, I would grant this petition.”

Chief Justice John Roberts typically prefers smaller steps to big changes in court precedent. The fact that the court refused to hear this particular case is not necessarily an indication that it may not revisit qualified immunity down the road and either abolish it completely or scale it back significantly.

Prior to the most recent event in Minneapolis, justices had considered numerous petitions involving qualified immunity for public officials.

For example, the case cited above involved a man in Tennessee who was sitting with his hands in the air when he was bitten by a police K9.

Yet another case involved a 10-year-old Georgia boy who was shot while in his backyard while police were pursuing an unarmed criminal suspect.

Finally, in the third incident in California, police who were searching for a known gang member used tear gas grenades to try to flush the man out, as opposed to using a house key that provided to them by his ex-girlfriend.

 The ACLU chimed in about qualified immunity, highlighting both the court’s decision on police accountability and the responsibility of Congress to abolish the doctrine.

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Murdered officer's grave desecrated before headstone even placed

David Cole, national legal director for the ACLU said, “We have seen the deadly consequences play out on the streets, and Black Americans have largely paid the price. Recent events demonstrate the urgent need for Congress to stand up for the rule of law and abolish qualified immunity—for anyone acting under color of law—to close the loophole allowing government officials to escape accountability for violating constitutional rights.”

The conservative leaning Supreme Court has been generous to police and public officials and has offered significant leeway where their conduct has come into question.

  • This past February, the court ruled that the family of a Mexican teenager shot and killed by the U.S. Border Patrol cannot seek damage because of the border that was between them (agents were on U.S. side, teenager on Mexican side).
  • In 2017, the court ruled officials from the Bush administration could not be held liable for the detention and harsh treatment of illegal immigrants in the days after the 9/11 terrorist attacks.
  • In 2015, the justices said that California police were entitled to immunity after they forcibly entered the room of a woman with a mental disability and shot her.

A University of Chicago Law School professor, who specializes in qualified immunity, found that 30 cases spanning three decades showed that the Supreme Court had only found that official misconduct violated clearly established law only two times.

Thomas, clearly the court’s most conservative member has said that the qualified immunity doctrine has no historical basis, and in a 2017 case, he said the court routinely substitutes “our own policy preferences for the mandates of Congress.”

On the opposite end of the spectrum, Associate Justice Sonia Sotomayor, who represents the liberal wing of the court said in 2015 that the court’s “one-sided approach to qualified immunity transforms the doctrine into an absolute shield for law enforcement officers.”

House Democrats have proposed eliminating qualified immunity in its recent criminal justice reform bill, called the Justice in Policing Act of 2020. The bill comes on the heels of the George Floyd case.

Meanwhile, Republicans are expected to introduce their own proposal in the coming weeks. That bill is expected to address use of force, de-escalation tactics and improvements to federal data collection. That portion is expected to mirror part of the Democrats plan which is looking to create a national database to log police misconduct complaints. Qualified immunity has not been mentioned in any discussion of Republican plans.

White House Press Secretary Kayleigh McEnany has said that the elimination of qualified immunity for police is a “non-starter” for President Trump.


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