On June 19, 2020, Governor Jared Polis signed The Police Integrity Transparency and Accountability Act, also known as Senate Bill 217 (“SB217”) into law. SB217 was one of the country’s earliest police reform bills signed into law following the death of George Floyd in Minnesota and the ensuing protests across the nation. This new law will have far-reaching effects in Colorado. While both sides can argue the merits and ethics of this new law, it is here to stay and something that will inevitably impact policing in our state for many years to come.
Most provisions of SB217 went into effect on September 1, 2020, while other portions, such as the requirement for all local law enforcement agencies in the state and the Colorado state patrol to provide body cameras to its officers, do not go in effect until July 1, 2023. The most notable provisions of SB217 are discussed further below. Since SB217 was passed, lawmakers have introduced additional legislation that does not roll back SB217, but instead focuses on tweaking and clarifying terms within the law.
Prior to SB217, the doctrine of qualified immunity served as a partial shield against the personal liability of law enforcement officers committing misconduct while on duty. SB17’s most notable feature is that it has effectively put an end to this protection for state court actions against officers. Specifically, SB217 created a specific cause of action under C.R.S. § 13-21-131 and against individual police officers for violations of certain rights established in the Colorado Constitution. This cause of action extends to not only the offending officer, but also to officers who are aware of the alleged violation but who fail to intervene (duty to intervene discussed more below). To be held liable, an officer must have been found to have acted in bad faith and without a reasonable belief that the action was lawful.
The cost of a suit brought under C.R.S. § 13-21-131 will still fall primarily on the shoulders of the offending police officer’s employer, and therefore, in many cases, their insurer (potentially impacting insurance premiums and coverage). SB217 requires the employer of any police officer sued under C.R.S. § 13-21-131 to indemnify that officer unless the officer acted in bad faith, at which point the officer is liable for 5% of the final judgment, up to a cap of $25,000 (the employer does have the right to provide full indemnification regardless of whether bad faith is found). The employer or its insurer, however, remains liable if the officer cannot pay the full judgment. Despite requiring indemnity, SB217 does not include any provisions regarding defense or consent for settlement, which may lead to incentive conflicts between named police officers and the organizations required to provide indemnification.
State-employed officers (including campus police, wildlife officers, revenue agents, and attorney general investigators) are excluded from the qualified immunity portion of SB217 (meaning the qualified immunity defense is still available to them). The state-employed officers were excluded primarily because of fiscal concerns – i.e. the potential hit to the state budget would be too great from the anticipated increased litigation. The new law has also raised some concern that certain municipalities may be deemed uninsurable due to the anticipated increase in defending civil lawsuits, which could considerably impact budgeting for those municipalities.
Use of Force:
Prior to SB217, a police officer could use deadly force if they reasonably suspected that someone was a threat to themselves, other officers, or the public. Now, with SB17, the standard has become that an officer can only use deadly force if that officer faces an imminent threat of danger and there is a substantial risk that the suspect will hurt others. Additionally, officers cannot use deadly physical force to apprehend a person who is suspected of a minor or nonviolent offense.
Before the use of any physical force, and officer must first employ nonviolent tactics when possible, must only use a degree of force consistent with the minimization of injury to others, must ensure that medical aid and assistance are immediately rendered, and ensure that next of kin of the injured is immediately notified.
In its use of force provisions, SB217 also banned the use of chokeholds and carotid holds (where pressure is applied to someone’s neck to force them to comply). Moreover, during civil protests, an officer can no longer use tear gas on protesters without warning and prohibits officers from firing less-lethal projectiles (such as rubber bullets) indiscriminately into a crowd or in a manner that targets a protestor’s head, pelvis or back.
If any peace officer is convicted of or pleads guilty or nolo contendere to a crime involving the unlawful use or threatened use of physical force, or is found civilly liable for the use of unlawful physical force, the officer faces permanent decertification under P.O.S.T; the Board responsible for the certification and/or decertification of law enforcement personnel based upon standards, training, and conduct.
Duty to Intervene:
Under SB217, a police officer who witnesses misconduct by another officer now has a legal duty to intervene. This duty requires the witness officer to prevent or stop the subject officer from using physical force that exceeds the permitted degree of physical force, as detailed above.
The intervening officer is required to report the intervention to his or her immediate supervisor and may not face discipline or retaliation for making the report. An officer who fails to intervene as required commits, at a minimum, a class 1 misdemeanor. In addition to the potential criminal liability, the officer will be subject to discipline from his employer up to and including termination, along with permanent decertification under P.O.S.T.
While the use of body worn cameras has become increasingly more common throughout Colorado, it has never been mandated state-wide—until now. Beginning in July 2023, law enforcement agencies will be required to provide body-worn cameras for every police officer that interacts with the public. The officer must wear and activate the camera, or dash camera (if equipped), when responding to a call for service or during any interaction that the officer initiates with the public while enforcing or investigating law violations, except while working undercover.
If the officer fails to activate the body-worn camera or tampers with the footage, there may be a permissive inference in any investigation or legal proceeding that that the missing footage would have reflected the officer’s misconduct. Furthermore, there is a rebuttable presumption of inadmissibility in court proceedings for statements introduced through the officer that were not recorded (absent evidence of camera malfunction).
Importantly, if there is a finding that the officer intentionally failed to activate or tampered with the camera, the employer is required to impose discipline up to and including termination and the P.O.S.T. board must impose a suspension of not less than one year.
In addition to the key aspects of the bill discussed in this Article, there are other provisions, including collecting and reporting data requirements, that were included to promote transparency between law enforcement agencies and the general public.
There is no doubt that SB217 will have a significant influence on policing in Colorado moving forward. For this reason, it is important that both law enforcement and private citizens know and understand their rights and responsibilities under this new piece of legislation. Should you have any questions about how SB217 might affect you, the attorneys at FGMC are here to help.