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:

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.

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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.

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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.

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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.