SB20-217 Enhance Law Enforcement Integrity (Garcia (D), Fields (D)) [Herod (D), Gonzales-Gutierrez (D)]

AMENDED: Moderate

SIGNED INTO LAW

Appropriation: None
Fiscal Impact: $1.7 million in year one, $1.2 million in year two. Unknown local impact but could be up to $1 million for larger agencies for body cameras

Goal: Remove qualified immunity as a defense for police officers accused of violating civil rights and open up the ability to sue officers individually with the officer on the hook for some damages; ban the lethal use of force in most evasion and escape scenarios; ban the use of chokeholds; require automatic termination discipline, possibly including termination of any officer involved in inappropriatea crime involving use of force (including bystander officers) and automatic permanent decertification; require all law enforcement to wear body cameras, have courts assume that any missing footage shows officers engaging in misconduct, and require all unedited footage, minus appropriate redactions, to be released to the public within 1421 days of an incident; create a public database of all officer uses of force, stopscontacts, unannounced entries, and resignations under investigation; allow the Attorney General to sue agencies and individuals who engage in systematic denial of citizen’s rights, and require the state to investigate all police officer deaths to recommend changes to police officer training. ban some of the uses of rubber bullets and chemical sprays to counter protests or demonstrations.

Description:

• Removes qualified immunity as a defense for police officers accused of depriving anyone of their civil rights and allows for police officers to be sued individually. Standard good faith belief in the lawfulness of the defendant’s action, Statutory immunity and statutory limitations on damages, liability, or attorney fees do not qualify for these lawsuits, unless the officer has a subjective, good-faith basis that their actions were lawful and it was objectively reasonable for the officer to have that belief. Loser pays attorney fees but only if the court finds the charges were frivolous in the case of the defense winning. Officers are personally immune from paying judgment or settlement claims again unless it is found that the officer did not have a subjective, good-faith belief that their actions were lawful, in which case the officer is liable for 5% or $100,000 $25,000 of the money owed, whichever is less. Agencies do not have to give indemnity to any officer convicted of a criminal offense, but it is their choice. The officer is therefore responsible for at most $100,000 $25,000 personally and if the officer cannot pay, the money can be collected from the officer's employer or insurance. The agency the officer works for must take the first $200,000 it owes from its own budget, unless its budget is less than $200,000 in which case it must use at least 25% of its budget. State-based agencies are exempt (only applies to local agencies). Lawsuits must be filed within two years of the alleged action
• Bans the use of lethal force to stop someone trying to escape them if the officer believes they committed a felony, or attempted to, with a deadly weapon, possesses a deadly weapon but is not using it, or merely indicates they are likely to endanger others. Bans the use of lethal force for corrections officers to prevent escape of a prisoner in jail for a felony. Leaves lethal use of force to stop someone attempting to escape using a deadly weapon or imminently likely to endanger others unless apprehended without delay. Must not endanger innocent bystanders. Must give verbal warning of intent to shoot unless doing so would endanger someone, including the officer
• Bans the use of chokeholds entirely. Requires officers to use non-violent means when possible before resorting to physical force, which can only be used if non-violent means would be ineffective in making an arrest, preventing an escape, or preventing imminent threat of serious injury or death to another person or the officer. Deadly force may not be used to stop someone who is suspected of a non-violent or minor offense. Officers must use the degree of force consistent with minimizing injury and must ensure that medical aid is given as soon as practicable. All officers have the duty to intervene to stop excessive physical force and must report any such intervention to their superiors within 10 days. They cannot be retaliated against for their intervention, report, or failure to follow what they believed was an improper order
• Any police officer convicted of or who pleads guilty to any inappropriate crime involving the use of force or a crime involving the unlawful or threatened use of force, or for failing to intervene to prevent unauthorized use of force, or is found civilly liable for excessive use of force must be fired immediately and must have their certification permanently revoked by the state. An officer who fails to intervene to prevent the improper use of force that results in serious injury or death must be disciplined, which can include termination, and the board must decertify them. The bill defines this failure as a class 1 misdemeanor. The board may, but is not required to, revoke the certification of an officer who fails to satisfactorily complete required training, but must give 30 days warning. All decertified police officers must be kept in a database that also includes information relating to an officer’s truthfulness, repeated failure to follow board training requirements, and termination for cause
• Requires all law enforcement agencies in the state to wear body cameras that must be on anytime an officer initiates interaction with a member of the public or responds to a call for service, unless they are undercover, by July 2021 2023. If an officer fails to turn on their camera or tampers with it, there is a rebuttable assumption permissive inference in non-criminal court that the missing footage would have shown misconduct by the officer. In this case any statements the prosecution seeks to introduce through the police officer when the camera was not recording are presumptively inadmissible. If a court or internal investigation finds the officer tampered with the camera on purpose, they must be disciplined, which can include termination and the board must suspend their license for at least one year. If the incident resulted in the death of a civilian, the officer must have their license permanently revoked. All unedited video and audio recordings of an incident with a member of the public must be released to the public within 14 21 days when there is an allegation of police misconduct, unless it would jeopardize an ongoing investigation in which case they have 30 45 days. When there is a death police must show video to family at least 24 72 hours prior to public disclosure. All video must give civilian victims the opportunity to have input on appropriate redactions and must be redacted or blurred to protect certain privacy concerns (see Additional Information). A witness, victim, or defendant can waive their privacy right.
• All law enforcement agencies must report all uses of force by its officers to the Attorney General, including officer names, demographic information on the subject of the force, type of force used, any injuries suffered, if there was an investigation and its outcome, and if there was a citizen complaint and its outcome; all instances when a police officer resigned while under investigation; all data related to stops contacts conducted by police officers, including the reason for the stop contact, its duration, the suspected crime, the result of the stop, and the actions the officer took during the stopcontact, including if the officer unholstered and if the officer fired their weapon; and all instances of unannounced entry by a police officer, including the date, time and location of the entry, the perceived demographic information of the subject of the entry. The Attorney General is report all of this information each year, beginning next July, aggregated by law enforcement agency, as well as maintain a publicly available and searchable database. Any law enforcement agency that does not comply is subject to having its funding suspended. Contacts must be initiated by the officer to be reportable and officers do not have to report routine interactions with the public
• Allows the Attorney General to take civil action against any governmental agency or individual who the Attorney General believes is engaging in a pattern or practice of conduct that deprives people of rights, privileges, or immunities protected by federal or state law and the US or Colorado Constitution. Must give warning and 60 days for the offending agency or individual to change or eliminate the behavior. Requires the Division of Justice, in conjunction with the state licensing board, a post-investigation evaluation of all police officer involved deaths to determine and propose improvements and alterations to training
• In response to a demonstration or protest, bans the use of kinetic impact projectiles (like rubber bullets) and all other non-lethal or less-lethal projectiles in a manner that targets the head, pelvis, or back; bans firing kinetic impact projectiles indiscriminately into a crowd; and bans use of chemical agents or irritants, including pepper spray and tear gas, prior to issuing a clearly audible order to disperse and warning, followed by enough time and space for people to comply

Additional Information:

• Report to Attorney General on use of force must also include date, time, and location of use of force, information on whether identified officers were involved with the use of force or not, if the police officer suffered any injuries, and if the police officer was on duty
• Report to the Attorney General on stops must also include: if it was a traffic stop and if so, the information collected on the driver; what any warnings, citations, property seizures, or arrests were made and the underlying violation or offense if applicable; actions taken during the stop include if the officer asked for consent to search the person and if the consent was granted; if a search was made, the basis for the search and any contraband or evidence discovered; and if any property was seized the type of property and basis for seizing it. The bill also specifically requires police officers to report all of this stop information to their employing agency and have an objective reason for making the stop
• The name, address, social security number, or any other identifying information of the subject of the use of force or stop or unannounced entry may not be reported by the police.
• Any law enforcement agency that cannot comply with the body camera mandate may apply for a one-year exemption from the Attorney General. That exemption will not be granted if the agency has not complied with the rest of this bill. The Attorney General may bring criminal charges against any individual or agency that violates the bill in a wanton or willful manner or impose fines.
• Officers may turn off body cameras to avoid recording personal information that is not related to the case, when working on an unrelated assignment, when there is a long break in the incident or contact that is not related to the initial incident or contact, and in adminstrative, tactical, and management discussions.
• Privacy concerns that cause redaction or blurring include: nudity, a sexual assault, a medical emergency, a mental health crisis, a victim interview, a minor, any personal information for someone not arrested or cited, signficant and gruesome injury (unless it was caused by the police officer), or the interior of a home or treatment facility

Auto-Repeal: None

Arguments For:

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. The best data on much of this comes from studies done with the data collected by Project Zero, which includes all deaths (not just those shot). We’ll be referring to them throughout.

Qualified immunity basically says that officials who violate the civil rights of individuals where the law was not previously settled are immune from consequences. The idea is that the officer may have been acting in good faith but just did not know that what they were doing violated someone's civil rights. Unfortunately this has now devolved into the absurd, where because the courts had only determined that you could not sic a police dog onto a suspect who had surrendered and was lying down, a case where a dog was set onto a suspect who surrendered and was sitting down was thrown out. Solely because of the difference between sitting/lying down. This is one of many examples that makes accountability nearly impossible to come by. The good faith clause is more controversial but it is critical. Even in the miraculous cases where officers are charged with crimes it is extremely hard to get a conviction because of the ease of making the claim the officer was acting in good faith and just made a mistake. Remember that you still have to prove you actually had your rights violated. Allowing officers themselves to be sued and requiring automatic termination for those found guilty does some extremely important: it puts skin in the game for officers. Right now officers face very little personal consequences even if they are found guilty: the state pays for their lawyers, pays any settlements that come out, and it is extremely hard to fire a police officer (and have it stick) and even if you do manage that, they frequently pop up in another agency. And anyone with eyes can see how this plays out. Police officers act like they have little fear of facing any consequences for their actions. They know they are being recorded and still kill people. They know they are being recorded and still attack members of the press. All of that just happened in the last week. That behavior is likely to dramatically change if the officer knew they would permanently lose their ability to do the job in Colorado if found guilty. Jaime Ceballos was shot and killed by Thornton police while in the midst of a mental health crisis and holding a baseball bat. He refused to drop the bat and told the police to shoot him when they advanced on him with guns raised (he was threatening no one and near no one). They did, from 20 feet away. The courts awarded nearly $2 million to the Ceballos family after litigation. The Thornton police department gave the officers medals and the officer who shot and killed Ceballos is still on the force. As for the duty of bystander officers to intervene or face losing their jobs. First, it’s just the right thing to do and attacks the culture that views these acts as permissible. Second, the data here shows a 9% drop in police killings when there is a duty to intervene.

The use of force changes are equally obvious. The question here is: what would someone you love have to do to make it acceptable for the police to kill them? Simply escaping is not an acceptable answer, there needs to be an immediate threat of harm. De’Von Bailey ran from police last year and was shot in the back and killed. He did not have a weapon and was not warned. The officers who shot him were cleared entirely and are still on the force. Chokeholds are obviously far too dangerous to be employed and officers can find other ways of subduing people. The data shows that banning chokeholds and strangleholds can lead to a 22% reduction in police killings. We also have numerous examples from around the country of body cameras mysteriously being off when misconduct is alleged, this bill should help those officers keep their cameras on (and make sure they all have them, right now about 20 departments in the state do not). It is also a rebuttable presumption, so it can be rebutted in court. Almost all of these points tragically come together in the killing of Elijah McClain last year. There were problems with the body cameras being dislodged (all at the same time) so we cannot see the incident in full. A chokehold was used. And the police and city were far short of transparent with McClain’s family and the public immediately following his death. The officers were not charged and not even disciplined. They are still officers today.

As for the data collection, there is nothing like a little sunlight to burn out the rot in a system. A big part of holding agencies and officers accountable is keeping a written record of their actions so we can find patterns of abuse if they exist. Right now the data is extremely hard to get, with multiple agencies across the state withholding quite a bit of information about even the officer-involved shootings. The data shows that requiring all use of force to be reported leads to a 25% drop in police killings. And of course we need a way to act when we do find those patterns, the bill allows the Attorney General to bring suit if necessary to force change. In all, these changes will 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 will be a problem. For the departments honestly committed to a reduction in police violence, this will not be a problem. Of course for those people and departments who aren’t, it will be. And that is the entire point. We can have public safety and a reduction in police violence and increased police accountability.

Arguments Against:

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. But not for the state of Colorado itself, which is exempt from this provision. Qualified immunity is for civil cases and the court system, but keeping a job is a different matter. And the bill goes too far in the automatic dismissal and effective end of someone’s career for a wide range of circumstances that include simply not stopping another officer from using excessive force. No change of rehabilitation whatsoever and no scale at all applied to account for the exact nature of the crime here. An officer who watches another officer shove a member of the public at a protest and does nothing is treated the exact same as an officer who unlawfully shoots and kills a member of the public. Obviously there are much different legal consequences involved but when it comes to if that officer can work in the state of Colorado in the future it is the exact same for both. A lifetime ban with no possibility of reconsideration. There is a similar lack of 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 during an economic cataclysm.

This bill has been too watered down. The automatic firing for excessive force is gone, as is the inability to use good-faith belief as a defense, which is the primary way cops who manage to get charged get off, as juries find it extremely difficult to quesiton their judgment. The body camera provision has been watered down with some added loopholes, and the duty on bystanders to intervene has been lightened.