These are all of the law enforcement and corrections bills proposed in the 2021 session. Each bill has its own bill number, please use your browser search feature to find the bill you are interested in. Return to the Colorado home page to pick a different bill category.

None of the text is the opinion of Engage. Each bill's description, arguments for, and arguments against are our best effort at describing what each bill does, arguments for, and arguments against the bill. The long description is hidden by design, you can click on it to expand it if you want to read more detail about the bill. If you believe we are missing something, please contact us with your suggestion. Some of these bills have the notation that they have been sent to the chamber's "kill" committee. This means that the leadership has decided to send the bill to the State committee even though it does not belong there based on its subject matter. This committee, in both chambers, is stacked with members from "safe" districts and the idea is to kill the bill without forcing any less safe members to take a hard vote. It is possible for a bill to survive the kill committee, but it is very rare.

Prime sponsors are given after each bill, with Senate sponsors in () and House sponsors in []. They are color-coded by party.

Some bills will have text highlighted in pink or highlighted in orange or highlighted in yellow. Pink highlights mean House amendments to the original bill; orange mean Senate amendments; yellow highlights mean conference committee amendments. The bill will say under the header if it has been amended.

Each bill has been given a "magnitude" category: Mega, Major, Medium, Minor+, Minor, and Technical. This is a combination of the change the bill would create and the "controversy" level of the bill. Some minor bills that are extending current programs would be major changes if they were introducing something new, but the entire goal here is to allow you to better curate your time. Something uncontroversial likely to pass nearly unanimously that continues a past program may not be worth your time (and please remember, you can still read all of the minor bills!). Technical bills are here to round out the list. They are non-substantive changes.

HB21-1015 Security Protections Criminal Justice Personnel (Lundeen (R), Ginal (D)) [Carver (R), Tipper (D)]

PASSED

AMENDED: Technical

Appropriation: None
Fiscal Impact: None

Goal:

  • Expands previous privacy protections for personal information of law enforcement officials and certain human services workers to people in the department of corrections who have contact with inmates

Description:

Exact privacy protections are: class I misdemeanor to knowingly make the personal information of a state or county employee public on the Internet if the disclosure of the information poses a serious threat to the safety of the employee or their family and the individual disclosing it reasonably should know it would cause a serious threat. These employees can also request that other state or government officials remove personal information from the Internet if they feel their safety is threatened.

Additional Information: n/a

Auto-Repeal: n/a

Arguments For:

Bottom Line:

  • These protections are designed to help employees who work in charged situations where violence or retaliation are possible. It makes perfect sense to extend them to people with direct contact with prison inmates

Arguments Against: n/a

How Should Your Representatives Vote on HB21-1015

HB21-1030 Expanding Peace Officers Mental Health Grant Program (Buckner (D), Cooke (R)) [McCluskie (D), McKean (R)]

PASSED

AMENDED: Moderate

Appropriation: $1 million
Fiscal Impact: None beyond appropriation

Goal:

  • Expands an existing police officer mental health grant program to including funding for on-scene response services for calls relating to social service needs, and for calls that do not require a police officer at all for either mental health or social service reasons. Program is required to continue to spend the $2 million it had been receiving on its already existing mission. Extra money can go to the new mission. No extra money is appropriated $1 million extra money appropriated

Description:

The program already could use funds for on-scene response support (so having non-police officers along with police to assist, frequently behavioral health professionals) handling people with mental health disorders. The social service needs and the idea of supporting calls that don’t need police officers at all is new. Allows public safety organizations, behavioral health entities, county or district public health agencies, community-based social service and behavioral health providers. to apply for the on-scene response grants. Renames the program, which was called “Peace Officers Mental Health Support”, into “Peace Officers Mental Health Support and Community Partnership”. Bill also removes the program’s repeal date, which was September 2027.

Program can also use funds for supporting officer’s mental health who were involved in a shooting or fatal use of force, training and education to teach officers the symptoms of job-related mental trauma and how to prevent and treat it, and peer support programs.

Bill defines calls that don't use police as "community-based alternative response" which is defined as a response to people experiencing problems related to poverty, homelessness, behavioral health, food insecurity, and other social issues that direct certain calls for police service to more appropriate support providers instead of police.

Additional Information: n/a

Auto-Repeal: n/a

Arguments For:

Bottom Line:

  • We ask far too much of our police officers, who must respond to all sorts of situations that really don’t necessarily need a police officer. Recognizing this, many local communities have piloted programs partnering first responders with community organizations that are better equipped to handle calls dealing with mental illness or social service needs
  • Keeping calls that don’t need officers away from them reduces the likelihood of tragedy due to interactions gone wrong and keeps people out of the criminal justice system that don’t necessarily belong there
  • The bill doesn’t alter the funding stream for the existing program, so it will not take any money away from the mental health well-being of police officers

In Further Detail: We simply ask way too much of police officers. They are called to respond to people having mental health episodes, homeless people in distress, and other mental health or social service related issues that are not dangerous and do not require an armed police officer. Too often these encounters can spiral dangerously as officers untrained to deal with people with mental health issues don’t know how to deescalate tense situations. Many communities have recognized this and piloted programs to partner officers with community organizations. Taking things a step further, we know that some of these calls don’t need an officer at all. This also keeps people out of the criminal justice system that don’t belong there. All of that can greatly improve the mental health of our officers. The bill does not at all alter the funding stream for the existing program, so the money spent on police officer’s mental health will not be affected. The legislature is free to add funds later in the session as part of the budgeting process.

Arguments Against:

Bottom Line:

  • This really is a separate concept from taking care of the mental health of police officers and should be its own program, which will allow it to be constructed from the ground-up in a way that maximizes its effectiveness. This program already can't pay out all of the grant requests it receives

In Further Detail: This is a worthy concept but it doesn’t have much to do with taking care of the mental health of our police officers and so should be in its own program. When you mix disparate goals together like this, you end up with competing priorities. In this case, the thing we all agree is very important, providing more support to officers on certain types of calls and removing them altogether when appropriate, is getting the short end of the stick. In fact, that may already be happening here, as there are no restrictions on spending the money in this fund. Police officer mental health may get the shaft entirely. The legislature may provide extra funding to this program or it may not. As it is, this grant program already has far more requests than it can serve. And the structure of the program could get a more thorough treatment—including criteria for calls that don’t require an officer, procedures for the community program to follow when they are on a call without an officer, and reporting requirements that deal specifically with this issue.


Bottom Line:

  • Issuing relating to responding to calls are a local issue—police departments set their own policies and the governments they answer to should be the ones legislating on the issue, not the state

How Should Your Representatives Vote on HB21-1030

HB21-1122 First Responder Interactions Persons With Disabilities (Kolker (D), Ginal (D)) [Froelich (D), Larson (R)]

PASSED

AMENDED: Minor

Appropriations: $39,775
Fiscal Impact: Negligible next year too

Goal:

  • Create a commission to study existing training for first responders, in particular police officers, concerning interactions with people with disabilities. This is to be done in conjunction with the POST board (board that oversees police officer certification and training). Recommendations must be ready by February 2022 and accepted and implemented by POST board.

Description:

Commission is specifically to examine: whether existing training is included in basic training or not, and the number of hours required in each type (included or not); and the qualifications of the instructions providing the training. Commission must consider existing training offered by other organizations in Colorado and in other states and if any existing training could be used to train police officers or if it could be modified to train police officers.

Recommendations must include a training that is part of basic and part of annual in-service training. It must meet or exceed current training standards. And it must be able to be implemented with the least possible duplication of existing training and place the least amount of financial and administrative burdens on law enforcement.

Commission is also to study training of abuse and exploitation of at-risk adults and consider recommending curriculum that will satisfy existing requirements and consider the results of any audit that already examined this area. It also may identify and recommend existing training appropriate for other first responders.

After implementation the commission is to study how it is going and determine whether any changes should be made. The POST board does not have to accept the recommendations.

Additional Information:

Commission is composed as follows: 8 12 members appointed by attorney general:

  • Two people with a disability
  • Two parents of a child with a disability
  • Two first responders, at least one of which must be a One person who represents a statewide organzation of current and former police officers , one person from a statewide organization of chiefs of police, and one person from a statewide organization of county sheriffs
  • Two representatives from organizations that advocate for people with disabilities
  • One person who represents a disability community not already represented on the board

Appointments must ensure, to the greatest extent possible, that membership of the commission reflects the state's ethnic, gender, cultural, and geographic diversity. Commission also includes the vice-chair of the POST board and a member of the POST board’s curriculum subject matter expert committee. No compensation for serving on the committee but they do get reimbursement for expenses. Attorney general’s office to provide a staff member to assist with duties. Committee must meet by September October 15, 2021. In 2023 the attorney general is to include in its annual report to the legislature a recommendation on if the committee should continue or not.


Auto-Repeal: January 2024

Arguments For:

Bottom Line:

  • People with disabilities make up the largest minority group in the country, so law enforcement officers are extremely likely to be in regular contact with them
  • People with disabilities are also more likely to be victims of crimes
  • We have a definite problem with how officers interact with people with disabilities: there is strong correlation between excessive use of force and disability

In Further Detail:  This is a population that law enforcement officers are going to come into regular contact with. Not only are they the largest minority group in the country, they are also more likely to be victims of crimes, seven times as likely. And this is leading to trouble. One of the strongest commonalities among those killed by police officers is a disability of some sort, a 2016 study found that half of people killed by police in the US had one. Officers are simply not properly trained on interacting with someone with a disability, who may not fully understand what is happening, who may not respond promptly to officer instructions, and who may get extremely upset in a tense situation. So we need to do a better job of training our officers so as to prevent tragedy in the future.

Arguments Against: n/a

How Should Your Representatives Vote on HB21-1122

HB21-1142 Eyewitness Identification Showup Regulations (Gonzales (D)) [Bacon (D)]

PASSED

AMENDED: Moderate

Appropriation: None
Fiscal Impact: Negligible this year

Goal:

  • Sets guidelines for police officers using “showup” identifications of suspects (this is when a single photo or person is presented to an eyewitness for identification as opposed to a spread of photos or lineup), which ban the use of a single photo except in cases of identity verification in a domestic violence case or to confirm identity of a suspect known to witness or victim (no strangers). In-person showups must follow strict guidelines (see Description) to avoid biasing the witness
  • Bars courts from introducing “showup” identifications of suspects in court unless the prosecution can prove that the showup was necessary because the police could not arrest the suspect and therefore use a lineup or photo array or because there were immediate potential harms if the identification was not made using a showup allowed under the terms of this bill and that the police followed the procedures laid out in this bill. Requires courts to consider if police followed procedures in this bill when showups are challenged in court. Showups can only be done when police have detained a suspect for a reported crime within minutes of the crime and near the crime scene, neither a lineup nor a live array are available under the circumstances, and the witness reasonably believes they can identify the victim, or in a domestic violence case or to confirm the identity of a familial relation

Description:

For in-person showups, the police must transport the witness or victim and the suspect separately to a location that is well-lit with an unobstructed view of the suspect. They should avoid showing the suspect in handcuffs or in the back of a patrol car except to prevent escape or harm to someone else. Witnesses and victims must be kept separated. Police must avoid verbal comments, computer screen data, or any other information about the suspect. They cannot require the suspect to put on any clothes, speak any words, or perform any actions. Only one witness allowed at a time. When there are multiple suspects, they must be separated and there must be separate showups conducted. If the witness or victim has limited English or is deaf or hearing impaired, the police must attempt to obtain an interpreter. Not having one doesn’t necessarily preclude the evidence from being used in court but the court must find that the identification is still reliable despite the language barrier. Before the showup, the police must inform the victim or witness that the person who committed the crime may not be the person they are about to see (there is a detailed statement they must read that is in Additional Information). Police must also photograph the suspect to show what they were wearing during the showup. If a victim or witness makes a positive ID, the police must ask their level of certainty: highly confident, confident, somewhat confident, neutral, or not confident. The police must take a clear statement in the witness or victim’s own words. All showups must be documented with the time and place by police and recorded in their entirety with a body camera.

The list of immediate potential harms that can allow a showup include: to prevent harm to any individual, prevent destruction of evidence, prevent escape, or some other consequence that would frustrate legitimate law enforcement purposes. The victim or eyewitness must believe they can reasonably identify the subject.

Requires all eyewitness identification procedures in local law enforcement agencies to be consistent with a set of model policies the attorney general, the Colorado District Attorney’s council, the state public defenders office, representatives of law enforcement, and an organization familiar with research around eyewitness testimony create (the requirement to create this already exists in law but previously local law enforcement had a choice between their own policies and the model policy).

Additional Information:

If the showup results in arrest, then all subsequent eyewitness or victim identification must be done through a lineup or photo array. If the suspect is not positively identified, then the police must obtain the person of interest’s name, date of birth, and address prior to releasing them.

The exact statement the police must read to the eyewitness or victim is:

In a moment I am going to ask you to view someone. The person who committed the crime may or may not be one of the people you are about to view. You should not feel you have to make an identification. It is just as important to clear innocent people from suspicion as it is to identify the suspect. The investigation will continue whether or not you make an identification. If you do select someone, please do not ask me about that person, as I am unable to share any information at this stage of the investigation. Because you are involved in an ongoing investigation, to prevent compromising the investigation, you should avoid discussing this identification procedure or its results. Keeping the results of this procedure to yourself is necessary to preserve the integrity of the procedure. You should not assume the person you are about to see has committed a crime. We could be showing you this person for many reasons, including to clear the person from the investigation. Keep in mind that eliminating people from an investigation serves an equally just purpose as identifying a person who might have been involved in criminal activity. No matter the result of you seeing this person, our investigation will continue, and we cannot discuss that investigation with you. The investigation of this matter will continue whether or not you make an identification. Apart from your individual assistance and cooperation with law enforcement in this investigation, we cannot discuss the investigation with you. Please do not discuss with any other eyewitnesses what you saw, said, or did during this procedure. Do you understand the instructions I have given you? Do you have any questions before we begin?


Auto-Repeal: n/a

Arguments For:

Bottom Line:

  • We know that eyewitness testimony is extremely unreliable and showup identifications are even worse. DNA has proven what social science experiments have repeatedly shown: most of our wrongful convictions occur because we put too much stock in witness or victim identification
  • Showups are extremely suggestive, lack alternatives to verify witness veracity, and frequently are done out of convenience, rather than necessity
  • The Supreme Court standard for including them in court cases is far too broad
  • Based on all of this, we need to mimic what three other states have already done and make showups a last resort in specific circumstances and make sure that if they do occur it is with the least amount of bias possible

In Further Detail: There is a mountain of evidence that eyewitness testimony is unreliable. Thanks to DNA evidence, we also have wrongful conviction data to further demonstrate the point. Studies have shown that faulty eyewitness testimony is the leading cause of wrongful conviction in this country and some have shown it is responsible for more (known) wrongful convictions than all other causes combined. Now if regular eyewitness testimony based on lineups and photo arrays is bad (like wrong more than 1/3 of the time according to some studies), then showup testimony is even worse. They are extraordinarily suggestive—since obviously the police would have a reason to show you this one person, who is frequently in handcuffs. They frequently occur soon after the crime and near the crime scene. So it is no surprise that one study found a 14% error rate in a lineup conducted 24 hours after exposure to the person (this was a study, so it was not a crime and we “knew” the right answer) versus a 53% error rate in showups. The further difficulty with showups is the lack of control options. In a lineup or array, a false identification shows the witness or victim is not a reliable eyewitness. The police know there is only one answer that could be correct, the rest must be wrong. In a showup, there is no control so any positive identification must be of the suspect. It is true that the Supreme Court has created a framework for admitting these showups into court, but it an easily surmounted barrier that results in very few showups from being excluded from court and is entirely based on perceived reliability of the witness, which is extremely dubious territory. Three other states already follow essentially this same format and there is no evidence that Massachusetts, New York, or Wisconsin have suffered from it. And if we are going to have showups, because of exigent circumstances, then we must take pains to remove all of the potential framing biases that can be inherent to the process. The suspect cannot be presented to the witness or victim in such a manner that demonstrates probable guilt. In essence, we must make the showup as lineup-like as possible.

Arguments Against:

Bottom Line:

  • This is a pretty heavy hand in the actions of law enforcement, who are trying to do investigative work in the field while time is short
  • The Supreme Court has set out a test for the admissibility of showups and we should allow our judges to use their discretion to follow it
  • If we find that the test is too broad, then we can follow the path of several other states to narrow it, rather than tossing out the procedure

In Further Detail: Criminal investigations don’t always allow for elaborate procedures for identification. Time is frequently a factor, as most investigators know the initial hours after a crime are critical if it is ever going to be solved. So putting such heavy restrictions on identifying suspects, in particular the near total disallowance of using a photo, will require a lot of time wasted on logistical issues and simply moving people around. That is why the Supreme Court, which weighed in on this subject in a series of cases in the 1970s, created a standard for considering if showups should be admissible in court. It all centers on the court’s judgment of the reliability of the witness: how likely it was that they could identify the suspect, how accurate their description was prior to seeing the suspect, how certain they were, and the length of time between the crime and the showup. Nearly all of the states in the country use this exact standard, which allows for our judges to do their jobs. Now, some states have found this is too wide, and if want to narrow it down a bit further like they have, to include if the identification might have been biased by the showup process itself, then that is certainly an avenue to explore. But we should not be taking the opposite view that all showups are bad and can only been done in very narrow circumstances and even then must be done in a precise, step-by-step manner.


Bottom Line:

  • This is well-meaning but flawed on several levels. First, it paradoxically makes the more innocent seeming person, the one who cannot be arrested, more exposed to the error-filled procedure that is showups. Second, courts in the three states that have versions of this law have demonstrated ample appetite for finding all sorts of loopholes in the exigent circumstances exception, including the idea that because it is better for the public safety to know if we’ve caught the right person more quickly, a showup is warranted because it is faster than a lineup or photo array. Without much tighter language in the exception area, including explicitly removing the 4th Amendment and convenience or speed in knowledge of the outcome of the identification, it is reasonable to assume that Colorado courts will also enforce such wide loopholes as to essentially make banning showups in most situations moot. As for the issue with probable cause, the easy solution here is to allow the suspect the right to request a lineup or photo array instead of a showup

How Should Your Representatives Vote on HB21-1142

HB21-1143 Protect Survivors' Rights To Rape Kit Evidence (Danielson (D)) [Froelich (D), Soper (R)]

PASSED

Appropriation: None
Fiscal Impact: None

Goal:

  • Require medical evidence collected in alleged sexual assault cases to be kept for the duration of the statute of limitations for the alleged crime. Cannot destroy this evidence without informing the alleged victim, who then has 60 days to object. If they object, the evidence must be kept for another 10 years. In cases where there is no conviction or guilty plea, the state must also notify the victim, upon their request, the status and location of the medical evidence as well as testing and test results
  • Also requires licensed doctors or nurses who collect medical evidence in alleged sexual assault cases to inform the patient of the contact information for the nearest sexual assault victim’s advocate and that any evidence collected will be kept until after the statute of limitations runs out and that the victim must be notified prior to its destruction.

Description:

Specifically the victim has the right to request notification of: the evidence being submitted to an accredited crime lab, the results of DNA analysis and if those results matches anyone in state or federal databases, any change in status of the case, and to receive a physical document identifying these rights after the exam has been completed.

Previous requirement under law was to store this evidence for at least two years.

Additional Information: n/a

Auto-Repeal: n/a

Arguments For:

Bottom Line:

  • Our current process around this evidence is poor: it is opaque, prone to individual decisions made to test or not test the evidence and whether or not to destroy it, and it does not help victims heal or serve justice
  • Victims sometimes change their minds about prosecution, we need this evidence for the duration of the statute of limitations. Evidence can also be used in other cases to prove patterns
  • Best practices from the federal department of justice precisely mirror this bill: keep the evidence for at least the length of the statute of limitations, inform the victim prior to destruction, and let them object and honor the objection

In Further Detail: Direct DNA evidence is one of the most powerful tools in prosecuting sexual assault cases. When we have this evidence, it must be kept even if the victim decides not to press charges at this time. Because that victim may change their mind. And in that case, if the statute of limitations has not expired, then the victim has the right to press charges. Sadly it is also true that sometimes these kits aren’t even tested before they are destroyed, sometimes because the police don’t believe there was a case or make the determination that there was no crime. Think about that, the evidence didn’t even get tested. The recommended best practices for this from the federal department of justice are: to at a minimum keep this evidence for the length of the statute of limitations, to inform the victim prior to destroying evidence, and to allow the victim to object and then honor that objection. Just like this bill does. There is also evidence that just being able to track the status of their kit helps victims heal. The evidence can be used in other cases to prove patterns, unless of course it is destroyed. So there can be benefit to keeping it if the victim wants. Multiple other states have similar systems and it is time to bring it to Colorado.

Arguments Against:

Bottom Line:

  • Other states have online tracking systems for victims, that would preferable and put less onus on them to manage all of these notifications themselves

How Should Your Representatives Vote on HB21-1143

HB21-1182 Missing Child Emergency Electronic Location Info (Cooke (R)) [Lynch (R)]

KILLED BY BILL SPONSORS

Appropriation: None
Fiscal Impact: None

Goal:

  • Require phone companies to give law enforcement location information on the cell phone of a missing child without a court order if an emergency exists because the time required to obtain a court order would impede safe recovery of the child or if the request is made by the missing child’s parent or legal guardian. No parent or legal guardian who has an active protection order against them will have such a request honored nor if the law enforcement agency has reason to believe there is an unresolved custodial issue

Description: Nothing to add

Additional Information: n/a

Auto-Repeal: n/a

Arguments For:

Bottom Line:

  • When a child is missing time is of the essence. Because most children have cell phones we have a tool that can help locate them but it can be hard in a missing person case to get a warrant immediately because there is no immediate crime
  • The bill contains protections against potential abuse and custodial dispute situations

In Further Detail: When a child goes missing, time is of the essence to return them safely. Every minute matters. And thanks to modern technology and the ubiquitousness of cell phones, many children have a tracking device that in many cases can help us locate them. The problem is that it is pretty hard to get a warrant when there is no crime, and when a child is simply missing there is no crime yet. The current system relies on cell phone companies to voluntarily cooperate and while they do sometimes, they have the right to say no. The bill does contain protections against sending children back into the hands of abusers or from inadvertent interference in custody disputes.

Arguments Against:

Bottom Line:

  • This could send children right into the hands of their abusers, a lot of whom will not have protection orders
  • Cell phone providers generally already cooperate with law enforcement when it can be proved there is exigent danger

In Further Detail: Many abusers will not have protection orders against them and a child trying to escape this situation could be sent right back into it. It is also unclear how police will on the one hand have the time to sort out custodial arguments but on the other don’t have time to go through normal channels. Also cell phone providers will generally cooperate now with law enforcement so long as law enforcement can prove there is immediate danger.

How Should Your Representatives Vote on HB21-1182

HB21-1201 Transparency Telecommunications Correctional Facilities (Gonzales (D)) [Gonzales-Gutierrez (D), Tipper (D)]

PASSED

AMENDED: Significant

Appropriation: $259,251
Fiscal Impact: None beyond appropriation

Goal:

  • Require the state public utilities commission to set a maximum per-minute rate for in-state debit, prepaid, and collect calls to or from correctional facilities. These facilities are required to contract with the qualified vendor that proposed the lowest per-minute rate, not to exceed the maximum set by the commission. Beginning in January 2022 all in-state debit, prepaid, and collect calls to or from correctional facilities must abide by rate caps set by the federal communications commision. State public utilities commission is given explicit authority to regulate rates and charges, correct abuses, and prevent unjust discrimination
  • Require all telecommunications providers for jails to keep detailed records of their charges to these jails and submit this information quarterly to the state. This includes: total number of calls and minutes from jail, revenue collected for services provided, summary of all other financial remuneration or gift or exchange or fee received for providing these services, all rates and fees charged, and copies of the contract with the jail and the company’s unclaimed funds policy

Description:

Rates must include in- and out-of-state charges for first minute and for subsequent minutes. Fees must include any applicable fees for making a call, depositing money into the incarcerated person’s telecommunication account, any fees associated with the account, for receiving a refund, for receiving a paper bill, or for using a third-party company to make payments. If any of this information has not changed since the previous quarter, the telecommunications company doesn’t have to provide it again. Underlying telecommunications providers that just connect the wires do not have to report any information, just the directly contracted entities. State must publish this information on its website in a format accessible to the public within 30 days of receipt.

Public utilities commission also to conduct trial tests of penal telecommunications services to ensure quality, document the results and any subsequent remedial actions taken, and consolidate the results into an annual report on its website. Tests must include trial calls to staff phone numbers not already in the provider’s system and must be conducted once every two years.

Additional Information: n/a

Auto-Repeal: n/a

Arguments For:

Bottom Line:

  • The monopolistic prison phone industry is a $1.2 billion behemoth and it just isn’t right to profit off people in prison in this manner
  • It is about more than just money, studies show that family contact and communication reduces the likelihood of reoffense when released
  • Colorado is slightly below average nationwide for cost per minute and it is appropriate to use the public utilities commissionfederally mandated rate caps to ensure we have reasonable maximum rates. The government is in middle of a process to lower those rates right now
  • We also need to see under the hood better to understand how fees and other aspects of these phone charges are being handled

In Further Detail: The simple fact is that we are fleecing inmates and their families for doing something that has become dirt cheap for the rest of us: making a phone call. The prison phone industry has become a $1.2 billion behemoth and it just isn’t right. And this is about more than just money, numerous studies have shown that family contact and communication reduces likelihood the offender will commit additional crimes when released. This sad reality exists because there is an extreme monopoly in this industry, in Colorado one company contracts for the entire state. Prisoners here are at least charged a middle of the road amount at the moment, $0.12 a minute, and there are no kickbacks to prisons (instead the state receives $800,000 a year to let the company operate the program). But we need to ensure maximum rates are reasonable (that $0.12 a minute rate is 29th in the country, Rhode Island charges 0.029 cents per minute. We also need to see under the hood to understand exactly how this company is profiting (and they most certainly are) off our prisoners to see what further reforms may be needed, particularly in the area of fees charged just for using aspects of the program.

Arguments Against:

Bottom Line:

  • These are specialized phone services that are recorded so we can ensure people in jail for committing crimes aren’t planning fresh ones
  • We should not be dictating prices for these services and certainly not force choosing the lowest priced option: sometimes the cheapest option is not the best
  • We can always negotiate policies into a contract but we shouldn’t open up their business for the public to see, that is not the way to build a lasting partnership

In Further Detail: We have to use specialized phone companies for these services because this isn’t like someone sitting in their living room calling their mother. Calls are recorded and this surveillance gives the state assurances that people who are literally in jail for committing crimes are not plotting new ones or finding ways around prison rules around banned items like drugs. We should not be interfering at the state level by dictating price ceilings for this service and certainly not forcing choice of the lowest bidder. In many procurement processes price is indeed a prime consideration and that should be no different here. But you can also run into trouble by always forcing choice of the lowest price option. Sometimes you get what you pay for and we don’t want a terrible service that doesn’t work well, particularly if we knew in advance it could be a problem. We also should not be forcing public disclosure of all of this information. If we don’t like policies the company we contract with are using, then we should negotiate that into the contract. But opening up their business for the public to see online isn’t the way to build a partnership that will last.


Bottom Line:

  • We definitely should not be relying on the federal government to fix this issue, there is no guarantee the cap will fall below what we are actually paying right now. The federal cap is currently at $0.21 a minute (we are already at $0.12). Taking out the ability for us to set maximium rates may result in no change at all

    How Should Your Representatives Vote on HB21-1201

HB21-1203 Detention Facilities Identification Processing Unit [Ortiz (D)]

KILLED BY BILL SPONSORS

Appropriation: None
Fiscal Impact: Likely around $700,000 in year one and $380,000 in year 2 (although many of these costs already exist) assuming state waives license fees

Goal:

  • Require the department of revenue to develop a unit that processes and issues driver’s licenses or ID cards to eligible individuals scheduled to be released from prison. Department of revenue can work with the department of corrections, local corrections officials, and volunteers to assist inmates in getting their licenses or IDs. Currently this exists as more of an informal partnership
  • Creates the Department of Corrections and Jail Identification Processing Unit Fund to administer this program. Can accept gifts, grants, and donations (and of course state money can be appropriated to it)

Description:

State is allowed to waive fees for the licenses or IDs. Both departments and county corrections officials are required to develop effective and cost-efficient procedures for administering the program.

Additional Information: n/a

Auto-Repeal: n/a

Arguments For:

Bottom Line:

  • Identification is almost essential to modern life, with a whole range of activities such as opening a bank account or securing a credit card requiring one, so it benefits the state to help those who need it obtain one and it particularly helps to ensure recently released offenders have them so they have the best chance of reintegrating into society and not reoffending
  • The more informal program this makes into law has been extremely effective since it began about 10 years ago. Enshrining this in law protects the program from future administration changes and helps us reach even more offenders

In Further Detail: The list of things you cannot do with a valid government issued ID is long. You cannot open a bank account. You cannot obtain a credit card. There are many jobs you could not obtain without one. You cannot rent an apartment. It is literally essential to living in the United States in 2021. Yet many people do not have an ID and it is actually pretty hard to get one if you are missing some key documents, like a birth certificate. Many forms of ID require some other form of ID to acquire, and so people are left with a difficult web to untangle. We want to give recently released offenders every chance at successfully rebuilding their lives and becoming productive members of society. Sending them out without valid ID is counterproductive in the extreme. So spending some state time and effort on helping them is worthwhile as is waving state fees. This program has already been extremely successful: in 2013 23% of offenders were released with state ID and in 2019 we reached 79% (2020 saw a slight drop due to COVID issues). Giving it foundation in state law ensures it is protected from future executive branch changes and has a more secure funding position. It also may help us push to get as much of the remaining 20% IDs as possible by streamlining the process.

Arguments Against:

Bottom Line:

  • It appears there are more systematic problems with the remaining group that might require expansion or work with an outside non-profit
  • This bill is very similar to SB153 but does not contain as robust a process as 153

In Further Detail: According to the department of corrections, of the 1,315 people in 2019 who were released without an ID, only 488 were not eligible for the program. Those people should be helped by this bill. Just 158 refused, they would be unaffected. That leaves 669 people, or ½ of the group, who were unsuccessful in obtaining their ID. That indicates a problem that simply putting this into law will not solve—and it is likely due to the factors discussed in Arguments For: missing birth certificates can be extremely hard to replace, so much so that there are non-profits that only exist to help people obtain government-issued IDs. So we might need to partner with one of those non-profits to help for these harder cases. We also already have a bill, SB153, that does something similar (enshrine this informal arrangement into law) but with more vigor: by specifically requiring the state to assist in this process, do an annual review of inmates to determine eligibility, work with the federal government, and post results online

How Should Your Representatives Vote on HB21-1203

HB21-1250 Measures to Address Law Enforcement Accountability (Fields (D), Gardner (R)) [Herod (D), Gonzales-Gutierrez (D)]

PASSED

AMENDED: Very Significant

Appropriation: $1,739,917
Fiscal Impact: Lawsuits against the state, the bill estimates average of $3.7 million a year

Goal:

Make some changes to the enormous police accountability bill passed last year, including changing the requirements around use of physical force to require officers to do so as a last resort and after exhausting de-escalation techniques, requiring departments to investigate if an officer acted in good faith or not, decreasing the penalty on officers who fail to intervene, make it illegal to retaliate against officer whistleblowers, and expanding civil liability to the state patrol, along with other smaller tweaks and changes. Also create two studies: one on best practices for use of force and harm reduction and prevention and one on no-knock warrants.

Description:

Requires police officers to use de-escalation techniques prior to use of physical force and requires physical force use to be proportionate and necessary to effect an arrest, prevent an escape, or prevent an imminent threat of harm to the officer or another person and only for as long as necessary to accomplish this goal. Use of force to prevent self-harm is not justified nor is use of force due to the officer's biased-based fear. Officers must immediate modulate the use of force as the threat diminishes and cease use once the justification is gone, including that the person is no longer a threat, is under the officer's control, or that force will no longer accomplish the officer's objective. De-escalation tactics include: verbal persuasion, warnings, slowing down the pace of an incident, waiting out a person, creating distance between the officer and the threat, and requesting additional resources to resolve the incident, including but not limited to calling in medical or mental health professionals.

Moves up requirement that all law enforcement in the state wear body cameras from July 2023 to July 2022. Appropriates $2 million to the fund that helps departments comply with this requirement.

Bill defines imminent threat as when a reasonable officer, based on the totality of the circumstances and their own training, would believe that a person has the present ability, opportunity, and apparent intent to cause immediate death or physial injury to the officer or another person and that this threat must be immediately confronted to prevent that death or injury. Bill explicity states that fear of future harm is not a sufficient reason.

Requires police employers to conduct an investigation prior to determining that an officer acted in good faith. This is important because good faith in the only exemption for personal liability for police officers for depriving someone of their civil rights (the big bill last year removed qualified immunity in all other cases). If someone believes the employer has violated this requirement, they can submit a complaint to the POST board which must refer the matter to an administrative law judge. If the judge determines the employer did violate this provision, they forfeit any money from POST for one year.

Changes penalty for failure to intervene by a police officer in an excessive use of force case from permanent revocation of credentials by POST board (oversees police officers) to a one year suspension.

Expands ability to bring civil lawsuits against individual officers to the Colorado state patrol.

Makes it illegal for a police department to retaliate against an officer who disclosed information that showed mismanagement, waste of resources, danger to public health or safety, or a violation of the law by another officer. Retaliation would include denying a promotion, transferring or reassigning an officer, disciplining or demoting an officer, discriminating or threatning an officer, or of course, firing an officer.

Requires all employing agencies to check POST records for misconduct prior to hiring a police officer. If the employer hires the officer anyway, the agency must notify POST.

Includes conducting welfare checks, except for motorist assistance as activities where officers must document all aspects of contact with a member of public (this was required by last year’s big police reform bill and includes most public contacts while on duty but not routine interactions with the public at points of entry or exit from a controlled area). Adds exemption for officers working undercover or inteactions in a jail. Adds reporting requirements to data relating to these contacts with the public, which must also include entries into a residence, by adding a requirement to state if the officer searched a vehicle, the basis for the search and what if anything was discovered. The start date for the reporting of all of this contact information is changed from 2023 to 2022.

Requires all government entities that encrypt their radio communications to allow access to unencrypted communciations to media members.

Adds a definition of exonerated, which the bill defines as a not guilty verdict in a criminal prosecution, a finding of no liability in a civil action, a finding of no culpability or liability in an administrative proceeding, or being cleared by an internal investigation. If you cleared in an administrative hearing or by an internal investigation and later found guilty or liable in a criminal or civil prosecution, that does not count as exonerated. This is important because all of the punishments in the big bill last year could be overturned or did not apply if the officer was exonerated. The bill last year also didn’t include administrative or internal affairs proceedings, this bill adds those.

Adds some reporting requirements to the existing requirements for incidents where use of force results in death or serious bodily injury, including if an ambulance was called to the scene and if someone was transported to a hospital, and if the non-officer exhibited a weapon leading up to the use of force and if so what type and was it discovered before or after force was used. Adds requirement to all unannounced entries into a residence, with or without a warrant, for number of officer-involved civilian deaths.

Tweaks some of the information POST must keep in its database. This includes changing “repeated failure” to follow POST training requirements to three or more failures within 10 consecutive years, requires a reason for basis of revoking officer credentials, a notation placed to any officer’s termination by cause if the case is being appealed and that the termination must be removed if the termination is overturned or reversed, and resignation or retirement of an officer while under investigation. Bill also sets a fine, amount to be determined by POST board, for failure to report any of the required information (not just what this bill is adding but all of it) to the POST board. Fine also for knowingly or intentionally providing inaccurate data to the POST board and if this involves an individual officer, that officer is subject to suspension or revocation of credentials.

Requires the state to contract with a nationally recognized research and consulting entity that is an expert in data-driven, evidence-based policing for an independent study on best practices. Specifically the study must explore: use of force strategies, standards, and training that value sanctity of life, promote de-escalation, provide clarity to police and communities, and minimze harm to offenders; harm reductions strategies centered around high-risk people and places, including racial and ethnic bias in policing with focus on prevention while improving safety and police-community interactions; initiatives to use resources other than police for response to lower-level offenses and calls for service; use of non-traditional policing methods to engage with vulnerable and underreprsented communities, in particular those with mental illness and experiencing homelessness; ways to increase police officer receptivity to practices that reduce harm; innovative approaches to officer mental health, recruitment, and retention to address trauma and ensure readiness to engage with community; and analysis of recruitment and qualification standards for officers to attract diverse candidates and decrease and identify signs of problematic behavior. The bill sets up an advisory committee to steer the process of identifying and selecting an independent consultant and digest the report and recommend any legislative or policy changes. Interim report due by end of year and final report due by July 2022.

Requires the attorney general to convene a study group to examine no-knock warrants and forced entry. Group is to survey evidence-based policy and national best practices on no-knock warrants and forced entry, review efficacy of no-knock warrants and forced entry, survey current procedures across the state, gather stakeholder feedback, and make recommendations for potential legislation. Report due during the 2022 legislative session.

Additional Information:

Clarifies that body cameras do not need to be turned on while en route to a call for service but must be during an administrative, tactical, or management discussion if civilians are present.

For the report on use of force, state is to use a request for proposal process. The advisory committee is to find three different companies the state must approach and ask to submit a proposal. The consultant may seek input from: national organizations of social and civil justice, Colorado district attorneys and the district attorney's council, a statewide organization representing cities, a statewide organization representing counties, national organizations representing law enforcement, and national organizations representing local governments. The committee consists of 12 members. Five appointed by president of Senate: representative from non-profit advocate for policing reform and civil liberties, representative from community-based criminal justice organization, someone negatively impacted by law enforcement or the criminal justice system, a representative of an organization that advocates for juvenile justice, and a member of the Senate. Four appointed by speaker of House: representative of county sheriffs recommended by director of statewide association representing county sheriffs, representative of chiefs of police recommended by director of statewide association representing chiefs of police, representative of police officers recommended by director of statewide association representing police officers, and a member of the House. The final three members are: executive director of the department of public safety, one member of the Senate appointed by Senate minority leader, and one member of the House appointed by House minority leader.

The study group for no-knock warrants is to include: representative of district attorneys appointed by state district attorney's council, representative of county sheriffs appointed by director of statewide association representing county sheriffs, representative of chiefs of police appointed by director of statewide association representing chiefs of police, representative of police officers appointed by president of statewide association representing police officers, state public defender, criminal defense attorney appointed by statewide association representing criminal defense attorneys, two representatives of statewide organizations advocating criminal justice or sentencing reform appointed by attorney general, and one legislative member each appointed by majority and minority leaders in Senate and House.


Auto-Repeal: July 2022 for study group

Arguments For:

Bottom Line:

  • Requiring force to be proportionate, used only after exhaustion of de-escalation tactics, and as a last resort should be non-controversial. It is exactly how we want officers to behave and puts more onus on officers to try to de-escalate first. The ability to use force to prevent imminent harm remains of course
  • Police departments in the state are already trying to make a mockery of last year’s bill by saying they will give all of their officers a blank check on good faith—that is no matter what they do the department will say it was in good faith. This is ludicrous and cannot be allowed to stand
  • It was not appropriate to treat the perpetrator and bystander in the same manner when it came to police certification and this bill fixes that
  • It is worth remembering why we passed the bill in the first place last year: police kill citizens at an unacceptable rate and disproportionately kill and hurt citizens of color. Body cameras, bans on chokeholds, strict limits on physical force, requirements to intervene, civil liability, removal from the police force, removal of certification, all of this is designed to bring long-needed accountability and sharper rules and mandates for officers when dealing with the public

In Further Detail: The biggest change here is reworking the rules around use of force from last year’s big bill that took a different tack on the subject. This bill requires force to be proportionate, only used after exhaustion of de-escalation tactics, and as a last resort. This should all be fairly non-controversial as it pretty much describes exactly how we want law enforcement to act. The previous standard of “only if non-violent means would be ineffective” puts a little less onus on officers to try to de-escalate situations first. Remember, officers can always use force if there is imminent threat of harm, so what we are trying to remove are situations where officers escalate the situation and then are “forced” to use physical force to control another individual. Yes, this does require a bit of nuance on the part of the police officer, to decide when they have reached the last resort and decide what is proportionate. But this is all really just common sense. It is not proportionate, for instance, to shoot someone who has no weapon but is wrestling with police. It would be proportionate to use physical fighting techniques to subdue the individual, but once they are subdued it would not be proportionate to kick them. The bill also provides some guidance around imminent threat that should be a standard we can apply. You can never create rules for every situation of course. The second major item is requiring a department to investigate if an officer used good faith. This is necessary because Greenwood Village has stated they will not investigate officers and will grant all of them the good faith exception in all circumstances. That makes a mockery of the intention of opening up officers to individual immunity. Speaking of which, it was not appropriate to exclude the state patrol from this requirement, so the bill fixes that too. It also relaxes a bit the punishment for failure to report or intervene from being essentially the same as the actual perpetrator (lifetime ban) to a one-year suspension. That is a more proportionate response, much in the same way we have different degrees of crimes and aiding and abetting is not treated the same as the underlying crime. Much of the rest is clean-up work from things missing or needing clarification in the big bill last year. It is worth remembering why we implemented this bill in a sweeping bipartisan manner as the trial of George Floyd’s killer, Derek Chauvin takes place. In general there is no need to go overboard describing the problem: we all know it and see it in dead and injured citizens, frequently people of color and even more frequently black, at the hands of police. In Colorado, that was 189 shot by law enforcement and killed (so this does not count a situation like George Floyd or Elijah McClain), the fifth highest rate in the entire country. All of the changes in the bill last year were designed to explicitly ban excessive force in many situations and to put skin in the game for officers themselves, who previously were essentially immune from any consequence for excessive force unless the case was extraordinarily egregious (and even then…look at what happened to the officers who killed Elijah McClain, nothing). Body cameras, bans on chokeholds, strict limits on physical force, requirements to intervene, civil liability, removal from the police force, removal of certification, all of this is designed to bring long-needed accountability and sharper rules and mandates for officers when dealing with the public. For the majority of officers who do their jobs, none of this is a problem. For the departments honestly committed to a reduction in police violence, this is not a problem. Of course for those people and departments who aren’t, it is. And that is the entire point. We can have public safety and a reduction in police violence and increased police accountability. For radio encryption access, historically these types of radio communications have been available to the public, and the news media in particular has relied on them for reporting leads. Advances in technology have eroded this setup. This isn’t about listening in to tactical operations, it’s about the historically used method of listening in to dispatch.

Arguments Against:

Bottom Line:

  • We should be tossing last year’s bill out, not tweaking it
  • Qualified immunity is a long-standing principle of American government and jurisprudence and removing it could open up officers and departments to numerous lawsuits that could severely hinder their ability to do their job
  • Simple malfunctions or jostled body cameras resulting in lack of footage should not be treated the same as deliberately turning them off
  • It asks way too much to ask officers to detail so much of their interaction with the public, which again could turn into breeding grounds for lawsuits

In Further Detail: Instead of tweaking last year’s bill we should rescind it altogether. Qualified immunity is a long-standing piece of American government and jurisprudence. While there are examples of this policy gone wrong, there are also examples of how removing qualified immunity could go wrong too. The 4th amendment prohibition against unreasonable search and seizure is quite vague and notoriously finicky. Officers can make good faith errors in search or other gray areas without realizing they are making an error. This is because we do not expect our governmental agents to be constitutional experts up on all of the latest case law. Many of the instances of failed accountability held up by opponents of qualified immunity should in fact be handled by the appropriate agency. This could also open up quite the Pandora’s Box of lawsuits. There is lack of a gradient problem with the body cameras, where simple malfunction or a camera falling off is treated the same as deliberating turning the camera off. We are also forcing the department to release body camera footage in all cases with no exceptions, which could endanger active cases, people’s safety, and the privacy of minors. The opening up of law enforcement interactions with the public, including uses of force but also all stops officer-initiated contacts, is another potential Pandora’s Box. Lawyers may comb through those records looking for any patterns they can stretch to find in order to bring lawsuits. All of this may result in officers who are more cautious in doing their jobs, in ways that are bad for public safety. This includes more reluctance to actively patrol, actively pursue subjects, and investigate cases. All for fear of lawsuits that may come down heavily on smaller agencies throughout the state, some of which are also going to have to foot the bill for body cameras without any help from the state.


Bottom Line:

  • This breaks a hard won compromise on the use of force restrictions passed just a year ago and forces the police to again retrain to a new standard, which is far too broad. Last resort may mean very different things to different people, be extremely difficult to determine in the heat of the moment, and untangling that web may prove difficult. Proportionate response is a similar problem. If someone attacks an officer with a knife, it is disproportionate to shoot them? Both can be deadly weapons but of course a gun is much deadlier than a knife.

Bottom Line:

  • The good faith defense is still here and it is still going to cause problems in actual lawsuits. It is the primary way police who managed to get charged with anything get off, as juries find it extremely difficult to question their judgment. No one should be too sanguine about how hard departments will investigate themselves to prove good faith.
  • The amended definitions of imminent threat are exactly what law enforcement uses all of the country to evade responsibilty: the notion of the actions any reasonable officer would take in the same situation. Juries just cannot accept that officers have any recourse other than shooting someone when they are scared The removal of the new defintions for use of force, which were simple common sense, are too much to keep supporting the bill.

Bottom Line:

    • Previous versions of the police decryption for media bills have exempted tactical or investigative operations but this bill does not, which would allow media members to argue they should be allowed to listen in. There is also no carveout balancing public interest with law enforcement safety. Media members can also get in the way of law enforcement if they are racing them to the scene. We need to let the police do their jobs before we worry about who else should be listening in.

How Should Your Representatives Vote on HB21-1250

HB21-1251 Appropriate Use Of Chemical Restraints On A Person (Fields (D), Gonzales (D)) [Caraveo (D), Herod (D)]

PASSED

AMENDED: Significant

Appropriation: $132,488
Fiscal Impact: None

Goal:

The bill wants to greatly restrict the use of chemical restraints, in particular ketamine or other similar chemicals where dosage greatly depends on the person’s weight, outside of hospitals and ban police officers from using them or compelling others to use them. It also wants to tweak the board that oversees emergency medical personnel to bring more people onto it with experience in drugs.

Description:

Bans the use of chemical restraints ketamine in non-justifiable emergencies to subdue, sedate, or chemically incapacitate to punish or facilitate the arrest, detention, restraint, or transport by law enforcement officers for alleged or suspected criminal, delinquent, or suspicious conduct. Excited delirium or any subsequent similar term not defined in the DSM is not considered an emergency.

If these restraints or any medication that is severely dependent on the weight of the individual, are ketamine is administered outside a hospital, bill requires there to be trained medical personnel to monitor the vital signs of the patient and weigh the individual to ensure accurate dosage. If the individual cannot be weighed, at least two people trained in weight assessment must agree on a weight estimate and the EMS personnel must obtain authorization from their medical director or their designee, unless there is a verifiable reason they cannot make an outgoing phone call. No medical personnel can adminster ketamine unless they have specific training in its adminstration, training in advanced airway support techniques, equipment available to manage apnea, and equipment to immediately monitor vital signs. Individual must be immediately taken by ambulance to a hospital and all complications recorded.

Bill also bans police officers from compelling or forcing emergency medical personnel from using a chemical restraint ketamine unless the officer is also an EMT and the use is indicated based on their training and expertise. EMS personnel are required to report any such violation to the POST board (oversees police officers) within 10 days, including the date, time, and place of the incident, the identity of the participants (if known) and a description of the events and chemical restraint used. Police officers are banned from retaliating against EMS personnel for reporting this information.

Police officers are required by the bill to report any such violation to the POST board, again within 10 days with all the same information EMS personnel must provide but a copy of the police report can be used as a substitute if it has all of the required information. Failure to report is a class 1 misdemeanor, which is the same penalty for failure to report excessive use of force.

Police officers are also required to intervene without regard to chain of command to stop unlawful use of chemical restraint ketamine and must report the intervention to their immediate supervisor, again within 10 days and with all the same information. Failure to intervene is also a class 1 misdemeanor. Bill bans law enforcement from retaliating against any officer who reports and/or intervenes in one of these cases.

Bill requires the POST board to permanently revoke its certification of any officer who failed to intervene in one of these cases and the incident resulted in the serious death or injury of another.

Tweaks the membership of the emergency medical practice advisory council board by removing some physicians and EMS personnel and adding an anesthesiologist, a nurse practitioner or physician’s assistant, a clinical pharmacist trained in emergency services and a clinical psychiastrist and requires the board to report to the legislature anytime it recommends authorizing the use of any chemical restraint, including the reasoning for the recommendation. This board is tasked in law with providing guidance on the scope of practice for EMS personnel.

Requires chemical restraints given in a hospital to only be given after all other alternative de-escalation methods have failed.

Chemical restraint is defined by state law (not changed by the bill) as giving an individual medication involuntarily for the purpose of restraining that individual. It does not include the involuntary administration of medication to those found not guilty of crimes by reason of mental incapacity or for voluntary or life-saving medical procedures.

For the medication severely dependent on weight, the bill does mention ketamine and haloperidol specifically.

Additional Information:

Police officers also banned from asking other people to administer chemical restraints ketamine (non-EMS).

In cases where a district attorney charges a police officer with offenses based on use of chemical restraint but does not charge any of the other police officers at the scene, the DA must prepare a written report explaining why they are not charging the other officers and release it publicly on their website (or if they don’t have a website, make it publicly available). DAs can hang on to the report for 45 days it releasing it would damage an on-going investigation.

Any police officer who knowingly makes a material false statement related to this bill commits the crime of false reporting to the authorities.

The advisory council membership is expanded from 11 to 12 members by adding an EMS provider certified or licensed at an advanced life support level who practices in urban counties (there already is one EMS provider with the same credential requirements on the council, the bill adds the requirement that they practice in rural or frontier counties as part of a search and rescue team). The bill also removes one of the physicians serving as an EMS medical director in rural or frontier counties (was two), and adds a clinical psychiatrist appointed by the office of behavioral health. Bill removes the EMS provider certified at basic life support level and replaces with a nurse practitioner or physician’s assistant at same level. Bill replaces another EMS provider certified at any level to a clinical pharmacist trained in provision of emergency services and emergency psychiatric care. Bill changes one of the physician directors of EMS service anywhere in the state to an anesthesiologist. Net change: 6 physicians down to 3 plus 1 anesthesiologist, 3 EMS down to 2. Bill also requires all members of the advisory council not have any conflicts of interest in their employment, memberships, or affiliations or be current or former members of the state department of health and environment. No more than 5 members of the board may by members of, or affiliated with, the National Association of EMS Physicians.


Auto-Repeal: n/a

Arguments For:

Bottom Line:

  • This is what killed Elijah McClain: too much ketamine administered in a situation that did not call for it by EMS personnel who simply accepted the police officers’ word that McClain had excited delirium, which in and of itself is a controversial medical diagnosis
  • A statewide investigation found 902 chemically sedated by EMS personnel over 2 ½ years for excited delirium and 17% of those people developed complications before reaching a hospital. Once at the hospital, 20% required intubation. We are probably lucky only McClain died, people have died in other states from ketamine
  • This is clearly out of control and being administered as a catch-all by unqualified police officers giving diagnosis to EMS personal who aren’t bothering to properly calibrate doses of a very dangerous drug. Body camera footage clearly shows officers in multiple cases simply reaching for ketamine in situations where there is any resistance at all
  • No more chemical restraint unless it is a true emergency (and “excited delirium” does not count), be absolutely sure the right dose is being given if we are outside a hospital, and mandatory reporting and duty to intervene, which changes culture and data shows causes a drop in police killings
  • The board in this case seems uninterested in reform, so we need more people on it with better knowledge of these dangerous drugs

In Further Detail: Among many factors, this is the primary one that killed Elijah McClain. Once the Aurora police instigated the fight with McClain and subdued him, a paramedic sedated him with ketamine, claiming McClain was showing signs of excited delirium (he of course was not, as the body camera footage later revealed). The ketamine caused a heart attack, in part because McClain received way too much of it for his body size. The EMS personnel also simply accepted the word of the police officers on the scene that McClain needed to be sedated. An investigation by KUNC found that medics sedated 902 people in two and a half years for “excited delirium” and in 17% of those cases, people developed complications before even arriving at a hospital and upon arrival, 20% of these people had to be intubated in order to breathe. One in five! One of the guys who helped come up with the term excited delirium says he would expect around 57 uses in those two and half years. We had 902, and this is from someone who defends the use of ketamine to treat this disputed condition. We are actually probably fortunate that the only known death is McClain’s. Excited delirium is very much a disputed medical condition. It is not recognized by the World Health Organization, the American Psychiatric Association, or the American Medical Association and therefore does not appear in the DSM of mental disorders. In many cases it seems to be used as a simple excuse to give someone a very dangerous injection with far too little oversight. So we need to step in here. There is no excuse for chemically sedating someone absent a true emergency and the police are not qualified to making medical judgments. Body camera footage of several of these incidents (beyond just McClain) shows officers are clearly just reaching for ketamine whenever they meet any resistance at all. Excited delirium is clearly not an emergency situation that requires chemical sedation. If we are going to use any of these dangerous drugs outside of a hospital, then we better be giving the right dose. For the bystander and failure to intervene provisions, this follows along the path laid out by last year’s mammoth reform of police use of force. It attacks the culture that views these acts as permissible (and it is quite simply the right thing to do). It also shows results in data. For excessive use of force, places with a duty to intervene in a similar manner to this bill showed a 9% drop in police killings. On the board changes, in the wake of McClain’s death the current board saw fit to just rubber stamp existing EMS practices around chemical restraint. This is clearly unacceptable and we need more voices on this board with expertise in drugs. It is clear the EMS personnel and physicians stand mostly alone in their belief that widespread use of chemical restraints is justified (and note that these are not trained psychologists or psychiatrists). Note that the bill still allows the use of chemical restraints in clear emergency situations.

Arguments Against:

Bottom Line:

  • The American College of Emergency Physicians does accept excited delirium as a condition and ketamine is the best way to treat it. That is because one of the hallmarks of excited delirium is attempts at violence with unexpected strength and ketamine works fast
  • Elijah McClain died because the Aurora police dramatically escalated a situation they had no business involving themselves with in the first place and EMS personnel improperly administered the drug. In the same way we would not through out anesthesia because an anesthesiologist improperly administered it we should not toss out ketamine
  • In all of those cases cited in Arguments For, McClain’s is the only death, so perhaps what we need it better training, not bans on use
  • The justifiable emergency clause in the bill is vague and may cause confusion. Because whatever you call it, there are situations where police and EMS are dealing with someone being violent who will not listen to reason. What are we supposed to do, especially considering weapons are involved?

In Further Detail: Excited delirium is accepted by the American College of Emergency Physicians and one of the hallmarks of someone experiencing it is attempts at violence with unexpected strength. That of course is precisely the kind of thing that can put police officers in danger and why they can seem to be afraid of someone like Elijah McClain, who was quite slight in stature. Ketamine is an extremely effective sedative because it acts quickly compared to other alternatives and speed is essential when someone is out of control. Because whatever you call it, there are most definitely instances where police and EMS are involved with someone who is aggressively violent and not responsive to reason. Elijah McClain died because the Aurora police dramatically escalated a situation they had no business being involved with in the first place. He died because EMS personnel did not perform their jobs properly and gave the wrong dose. He did not die because ketamine itself is a killer drug or because chemical sedation is a killer practice. If someone dies because an anesthesiologist gave an improper dose of anesthesia, we wouldn’t blame the anesthesia and ban its use. We’d blame the anesthesiologist and try to ensure such a thing does not happen again through rules and systematic procedures. Maybe EMS personnel need better training, but note that in the statistics cited in Arguments For about the use of chemical sedation, McClain’s is the only death. That suggests that the practice may need more supervision but should not be tossed out as inherently dangerous. The justifiable emergency clause in the bill is vague and may lead to confusion: is a suspect fighting with officers and refusing to calm down justifiable? Remember we’ve got weapons in these scenarios, what if that person gets ahold of an officer’s gun?

How Should Your Representatives Vote on HB21-1251

SB21-031 Limits On Governmental Responses To Protests (Bridges (D)) [Cutter (D)]

KILLED BY BILL SPONSORS

Appropriation: None
Fiscal Impact: None

Goal:

  • Prevent police and other state or local officials from breaking up protests by not allowing them to order the protest to disperse or deem it unlawful unless a significant number of people acting in concert pose an imminent threat of using force or violence to cause personal injury or significant property damage. In these cases every effort must be made to distinguish between the people posing the threat and those who continue to engage in peaceful, lawful assembly. The peaceful people must be allowed to continue their protest.

Description: Nothing to add

Additional Information: n/a

Auto-Repeal: n/a

Arguments For:

Bottom Line:

  • Last summer was proof that police showing up to protests to battle the protesters only escalates an already tense situation and makes it easier for it to spiral into violence
  • The first amendment protects all Coloradans right to peacefully protest and neither the content of the protest nor a vague fear of what might happen is reason enough to deny that right
  • Of course the police must defend themselves and others and property, but only against the people actually threatening it

In Further Detail: What we saw last summer all around the country, and in Colorado, was that the police approached protests like a war zone with enemy combatants. Instead of de-escalating tense situations, far too often the police ratcheted up tensions with angry crowds and attempted to use force to disperse groups that were not actually doing anything wrong. This made the situation worse and interfered with people’s first amendment right to peacefully protest. In fact in Denver the protests became much calmer and more peaceful once the police decided to back off. We also saw situations where people who were not associated with the main protest showed up with the intent to battle police and to destroy property. No one is saying this is easy, but the job of the police in this situation is to remove the troublemakers, not crack down on the entire protest. This bill ensures that police officers don’t break up protests because they don’t like the content of the protest or because of a few people with bad intentions or because they fear it will later become violent. Neither of those reasons are sufficient to deny Coloradans their first amendment rights. Of course if people or property is in danger then the police need to act, but they need to act to protect and serve the community, not to engage in battle with large groups of protestors, many of whom remain peaceful. And of course if the police have specific intelligence that a protest will turn into a riot, with specific threats made against people and property, like in Washington in January, they can act proactively to mitigate the threat. That is not at all what this bill is about.

Arguments Against:

Bottom Line:

  • This interference in public safety operations may force police to wait too long to protect people and property, letting things spiral out of control before it can be stopped
  • It is way too hard once things do get out of control for the police to distinguish between the good peaceful protesters and the bad riotous protesters. The police simply need to regain control of the streets at that point

In Further Detail: This is broadly conceived interference in public safety operations. Last summer we all knew what was going to happen once it got dark: people were going to start to try breaking things and maybe attack a few police officers too. The police should not have to wait until this starts in earnest to act broadly. Protests can have tipping points where it might be too late to get control over the situation. We also saw a recent example of what can happen when the police, for whatever reason including simple fear and unpreparedness, are too passive in the face of an angry protest. The insurrectionists in Washington were treated much more lightly and the result was chaos, death, and over a hundred injured officers. This is not to say that this specific situation is normal, people don’t attempt to assassinate elected officials in normal protests. It is to show what can happen when the police take a deliberately passive approach in the face of provocation. Sometimes when they decide it is time to intervene things have gotten too far out of hand. And when things start to get out of hand, it is extremely hard, and too much to ask, for police to neatly separate the good guys in the protest from the bad guys.

How Should Your Representatives Vote on SB21-031

SB21-174 Policies For Peace Officer Credibility Disclosures (Cooke (R), Ginal (D)) [Bird (D), Carver (R)]

PASSED

AMENDED: Moderate

Appropriation: None
Fiscal Impact: $280,000 this year, $125,000 next year

Goal:

  • Require law enforcement agencies to notify district attorneys when the agency initiates an internal investigation or determined there is a substantiated finding that an officer: knowingly made false statements or omitted material facts in an official criminal justice record, while testifying under oath, or during an internal affairs or administrative investigation and disciplinary process; demonstrated a pattern of bias based on race, religion, ethnicity, gender, sexual orientation, age, disability, national origin, or any other protected class; committed a felony or a crime involving dishonesty or is charged with one; intentionally violated the constitutional or statutory rights of others; or tampered with or fabricated evidence Creates a committee to create a statewide model policy for police officer credbility disclosure (disclosure to the legal system when an officer's credibilty has been compromised) by December. This model must include prompt notification to the district attorney when an officer is substantiated to have: knowingly made a false statement or omitted a material fact in a criminal justice proceeding or during an adminstrative or internal affairs proceeding, demonstrated a pattern of bias based on any protected class (race, gender, etc.), been convicted or charged of a felony or any crime involving dishonesty, violated any law enforcement policy regarding dishonesty, violated the constitutional or statutory rights of someone else, or fabricated evidence. Must also include policy for notification when an officer is a potential witness in a case where someone has been formally charged and the officer is under investigation for their actions in the case where the result of the investigation would require disclosure if the officer was found guilty. The POST board (which certifies officers, must keep in their database a record of all disclosures
  • Each district attorney and law enforcement agency must adopt written policies and procedures consistent with the model policy by 2022 for receiving these disclosures, maintaining a record of all notifications which distinguishes between allegations and findings, describe how members of the public can access the database of officers subject to these notifications, establish a process to notify defense attorneys or defendants pursuant to state rules, and remove any notifications that are found to be inaccurate or false

Description:

Law enforcement agencies must also inform district attorneys when a police officer who is a potential witness in under a concurrent criminal or administrative investigation regarding an allegation related to the case. In all cases where notification is required, if the law enforcement agency learns of additional information subject to disclosure it must pass this on to the district attorney. This includes closing of investigations without any findings being made (the officer being cleared).

The credibility disclosure must include: the officer’s name, name of the law enforcement agency, and an exact statement (see Additional Information). No material from the officer’s personnel file may be included in the disclosure. This disclosure must be provided to the police officer involved first, at least seven days prior to be sent to the district attorney. If a pending case is imminent or it is determined to be in the interests of justice the disclosure can be sent immediately. In that case the officer must receive it within two days unless this would compromise an ongoing investigation.

District attorneys must review their policies every five four years to ensure compliance with federal and state law case interpretations (see Additional Information)

Additional Information:

Statement in the credibility disclosure must say: “This notification is to inform you that there may be is information in the law enforcement agency’s possession regarding [name] that may affect the peace officer’s credibility in court.”

The precise rulings the district attorneys must keep in mind are Brady v. Maryland, Giglio v. United States, Kyles v Whitley, and its progeny, and well as the Colorado rules of criminal procedure.

The committee must include: a representative of the state district attorneys' council, a representative from an organization representing police officers, a representative from an organization representing chiefs of police, a representative from an organization representing county sheriffs, a county attorney designated by an organization representing counties, and a city attorney represented by an organization representing cities. Members to be appointed by their respective organizations.


Auto-Repeal: n/a

Arguments For:

Bottom Line:

  • Justice is at stake here, if law enforcement is aware that a police officer could be a compromised witness the district attorney must know and by the rules of evidence, the defense must know as well. No trying to hide things and hope they never come out
  • This also benefits district attorneys from being blindsided later if the information does come out, which could jeopardize convictions depending on the circumstances

In Further Detail: This is about basic justice. If law enforcement knows a police officer could be a compromised witness, our system demands that both the district attorney and the defense are aware of these facts so that if the case is brought to trial, the trial is fair. No trying to hide things and hope it never gets out. This also helps district attorneys, who can decide if a police officer has compromised a case, or if they need to avoid using particular officers to avoid jeopardizing the case. Finally, it prevents district attorneys from being blindsided by information coming out later, which could jeopardize convictions in some circumstances.

Arguments Against:

Bottom Line:

  • We need to have better distinction here between accusations under investigation and actual findings. Both are reported in the same manner with the same result but this makes it too easy for false accusations to end up tying up the ability for a district attorney to successfully prosecute a case

In Further Detail: The bill treats accusations under investigation and closed investigations with findings of fault the exact same. Same notification requirement to the district attorney who must then of course share this information with the defense. In effect that could close off the ability to use key police officers as witnesses and perhaps prevent some cases from being tried at all. For a case where fault was found, fine, but in cases where there is no determination yet, this could be a problem. Particularly clever defendants could try to get investigations going on false accusations that make it extremely difficult for a prosecution to proceed.

How Should Your Representatives Vote on SB21-174

SB21-183 Law Enforcement Support And Accountability (Lundeen (R))

KILLED BY BILL SPONSORS

Appropriation: None
Fiscal Impact: About $2.6 million per year (mostly lawsuits)

Goal:

Loosen some of the provisions of the big police accountability bill passed last year, by tweaking the definition of when police can use physical force to a standard of preventing unlawful force against a person, removing some contacts with the public from reporting requirements, and excusing officers who mistakenly forget to turn on their body cameras. Also expand civil liability to include state officers.

Description:

Changes rules on when police officers can use physical force from, among other things the bill does not touch, preventing an imminent threat of serious bodily injury or death to someone to preventing another person from using unlawful physical force against someone. Changes part of the justification for using deadly force from someone posing immediate threat to imminent threat.

Changes the definition of contact, which requires the reporting of a lot of information from any contact with someone while enforcing the law or investigating potential violations of the law (has to be initiated by the police officer) to requiring the contact to be with someone who is the subject of the investigation. Then specifically excludes non-investigatory and consensual interactions with the public.

Expands ability to bring civil lawsuits against individual officers to members of the Colorado state patrol and the state bureau of investigation.

Allows police officers to turn off body cameras if requested by someone the officer reasonably believes is a witness or victim and the request is documented. Loosens the definition of misconduct for officers and body cameras that are not turned on to exclude unintentional failure to activate the camera or failure due to an unforeseen emergency or exigent circumstance that was not caused by the officer.

Adds some more detail to the requirements for officers to intervene when another officer is using illegal force. Right now it just says an officer who fails to intervene to prevent the unlawful force. Bill changes this to an officer who observes the unlawful use of force, knows that another officer is using or about to use unlawful force, has a reasonable opportunity to act to prevent the harm from occurring and fails to do so is guilty of the offense.

Bill requires that all of the punishments associated with this bill (body camera failure, unlawful force, failure to intervene) that have to do with the officer’s certification to be a police officer wait until the officer has exhausted all internal, contractual, and legal rights to review, challenge, and appeal the underlying decision.

Additional Information: n/a

Auto-Repeal: n/a

Arguments For:

Bottom Line:

  • The best standards are clear and easy to follow. Our current standard for use of force requires too much heat of the moment calculation. The bill substitutes a simple directive: use force only to stop someone from hurting someone else
  • The contact reporting requirements are quite onerous, so they need to be tuned properly. The idea is to find officers who are not carrying out their duties appropriately, so that naturally extends just to suspects
  • We should not be treating officers who make a mistake with their body cameras the same way we do officers who are doing something malicious
  • The current requirement to intervene doesn’t take actual ability to do so into account
  • All officers deserve the right to appeal and have that appeal heard before being tossed out of their jobs

In Further Detail: The standards that are the easiest to follow are those that are clear. This changes the unlawful use of force standard to be much clearer: stop someone from harming someone else. That’s it, no need to calculate imminent threat of serious injury or death in the heat of the moment. For contact reporting, the interest here is in making sure officers are carrying out their duties appropriately and without bias. That relates directly to suspects in investigations, not others, and because the reporting requirements for contacts are so onerous, we need to make sure they are tuned just right. It made no sense to exclude state officers from the exposure to civil liability that local officers are now exposed to, the bill fixes that. The body camera requirements are far too strict right now and don’t take into account intent by the officer. An honest mistake should not bring down the hammer the same way intentional rule-breaking should. Similarly the requirement to intervene is too wide right now and doesn’t take into account if the officer could even do anything about it. Finally, the right to appeal is a cornerstone of our system and we should extend that right to officers before depriving them of their jobs.

Arguments Against:

Bottom Line:

  • The use of force standard change, like much of the bill, opens new loopholes for police to worm through. Preventing any harm is much more anticipatory (and thus still not so simple) and allows officers to claim they thought an individual was about to punch or strike or kick someone else to justify the officer’s use of force
  • The concept behind contact reporting is to find officers behaving badly and it is easy to see how an officer may do such a thing when interacting with someone who is not a suspect, but the officer wants information out of
  • The body camera provision is a large loophole we basically closed. We want intent taken out because once intent comes in it is all too easy to just claim you didn’t mean to do it, like all of the Aurora police officers who didn’t mean to dislodge their cameras during the altercation with Elijah McClain
  • Right to appeal is already in the bill: if you are exonerated your punishment is lifted. That is how our system works, not if you want to appeal then we withhold punishment until the appeal is over. Once you are found guilty you are guilty until proven otherwise

In Further Detail: It is not so clear cut to say that the standard proposed by this bill is simple. In fact, like much of the rest of the bill, it is a subtle erosion of the accountability we put in place last year which creates loopholes for officers to worm through. Preventing someone from harming someone else is actually quite a broad street. I can say I thought you were going to punch someone else, so that meant I had to tackle you to the ground. The precise thing we are trying to avoid and get rid of. The current standard would allow such a thing because a punch is not going to inflict serious bodily injury or death. Similarly with the contact reporting, the idea is to find officers who are behaving badly, period, and it is easy to see how an officer could do so in contacts with people who are not actual suspects but the officer wants information out of for an investigation. The body camera provision is another such loophole. The idea behind the bill last year was to remove intent. Because when we bring intent into this the story always becomes that they didn’t mean to do it. The Aurora police didn’t mean to dislodge all(!) of their body cameras at the critical moment during the Elijah McClain altercation and death. It was just a collective oops. As for the right of appeal, yes that is a cornerstone of our society and the bill already includes it. Anyone exonerated has their punishment removed. Just like in our criminal courts. If you appeal a case you don’t get sent home while the appeal works its way through the system. You are then guilty and treated as such until proven otherwise.

How Should Your Representatives Vote on SB21-183

SB21-192 Housing Mentors In Youthful Offender Facility (Gonzales (D)) [Amabile (D)]

SIGNED INTO LAW

Appropriation: None
Fiscal Impact: None

Goal:

  • Allows offenders sentenced to the youthful offender program to be housed in facilities with inmates over 25 years-old if the purpose is facilitate participation in a program to mentor youth offenders approved by the department of corrections. This must still be in a youthful offender facility. The over 25-year-olds must not be on close custody level or higher supervision and cannot have a sex offense conviction

Description:

Current law does not allow anyone over the age of 25 to be housed in a youth facility.

Additional Information: n/a

Auto-Repeal: n/a

Arguments For:

Bottom Line:

  • We have a mentor program to help youthful offenders (under 25 year-old adults) but it is hard to have true mentorship if the older inmates who are supposed to be the mentors are not in the same facility. Obviously we do not want to put the youthful offenders into the main facility, so it makes sense to do things the other way round. This type of mentoring not only helps the youthful offender but it also helps the mentor build toward a successful post-release life

Arguments Against:

Bottom Line:

  • Better to err on the side of caution and use released ex-inmates who have clearly turned their lives around than someone who is still in prison and could still return to a life of crime upon release. Obviously the mentor program is screened to try to avoid this situation, but putting an older inmate in with all of these impressionable youth could cause a lot of damage if the older inmate is not truly sincere

How Should Your Representatives Vote on SB21-192