2020 Leg Session, Civil Liberties, Constitutional Law, Criminal Justice, Featured, Legal, Original Report, Politics, Scott Weiser, Uncategorized

DA Brauchler: Rushed police accountability bill not all bad, problem parts need fixing

DENVER–The sweeping “Enhance Law Enforcement Integrity” bill, Senate Bill 20-217, is moving through the state legislature at a rapid clip. It was introduced on June 3, amended and passed June 4 by the Senate State, Military and Veterans Affairs committee,  passed by the Senate Appropriations Committee June 6 and is currently scheduled to be heard on the Senate floor Tuesday, June 9.

In a Friday radio interview with 630 KHOW host Ross Kaminsky, 18th Judicial District Attorney George Brauchler said that while there are “some good and important parts of this bill,” there are also serious problems in a bill being rushed through the process that he would like to see addressed.  “It’s not that this this bill is all bad, I would love for them to fix the things that need to be fixed so that I can come out and say yes,” said Brauchler, adding that “I think you’d find that all 22 DAs would come out and say yes, we want to support this.”

The bill requires, among other things, that all local law enforcement officers wear body cameras that must be activated “at any time when interacting with the public.” It requires detailed reporting by local law enforcement on:

  • All use of force by its officers that results in death or serious bodily injury;
  • All instances when an officer resigned while under investigation for violating department policy;
  • All data relating to stops conducted by its peace officers; and
  • All data related to the use of an unannounced entry by a peace officer.

A searchable database of this information must be created by the state division of criminal justice and be available to the public.

It requires that any local law enforcement officer who is “convicted of or pleads guilty or nolo contendere to any inappropriate use of physical force or a crime involving the unlawful use or threatened use of physical force, or for failing to intervene to prevent inappropriate use of physical force” be fired and have their state peace officer certification permanently revoked.

“I’m a big fan of what this bill does when it tries to create a central by database for cops who are liars. We don’t have that right now,” Brauchler told Kaminsky. “This is why these guys end up bouncing around to other jurisdictions within the state and seem to get on the job again. That isn’t good for anybody. I want there to be a centralized database. This thing does that, so I appreciate it.”

The bill also removes qualified immunity from local law enforcement officers, which includes district attorneys and their deputies, sheriff’s and their deputies, jail guards and all city police officers or town marshals. It also creates a state civil cause of action for persons claiming they were deprived of their rights.

But it doesn’t remove qualified immunity from state law enforcement officers including the Colorado State Patrol, the Attorney General or state university police departments like the University of Colorado.

“This is another thing that I find incredibly hypocritical and and really disrespectful of the idea that this is based on principle not politics. They take qualified immunity away, they take away the good faith defense for law enforcement, but not across the board,” Brauchler said. “In order to avoid a crippling fiscal note because they’re in the hole 3.2 billion bucks, they exempt state law enforcement. Doesn’t apply to the AG’s office. Doesn’t apply to State Patrol. Doesn’t apply to prison guards. It only applies to local prosecutors and local law enforcement.”

Qualified immunity is a legal principle created by the U.S. Supreme Court saying that law enforcement officers are immune from being held personally liable for their actions unless they knew, or reasonably should have known that what they were doing was unlawful.

Ordinarily police officers are covered by liability insurance held by their agency to pay for civil judgments even if they are found guilty of a violation of someone’s civil rights. This protects taxpayers from either losing public safety services or having to backfill public safety budgets for civil lawsuit settlements.

The bill expressly removes the liability coverage for the first $100,000 or 5% of the judgment for the officer if the officer does not have “a subjective good-faith basis that the officer’s actions were lawful and that it was objectively reasonable for the peace officer to have that belief.” That part would come directly out of the officer’s pocket.

It also requires that the first $200,000 of any judgment covered by the agency’s liability insurance come first out of the “political subdivisions public safety budget,” or if the budget is less than $200,000, at least 25% of the public safety budget must be appropriated towards the settlement before liability coverage would kick in.

“Not only did this bill do away with qualified immunity, at the time I testified on it yesterday it did away with any potential defense by a law enforcement officer related to a good faith mistake of fact,” Brauchler said. “They could have believed that they were doing something lawful. They could have been following even a warrant signed by a judge that ultimately is determined to be invalid and they would have been personally liable.”

Brauchler says that the sanctions are so punitive that he is afraid that many qualified law enforcement professionals will quit and find other work due to the unprecedented uninsurable liability for even good-faith mistakes.

“I’ve got people in my office, fantastic prosecutors, the kind you would want on your neighbor’s case if your neighbor was victimized by someone,” Brauchler said. “They’re saying, ‘I don’t know how much longer I can do this.’ These are moms with small kids, dads, families. I’ve got senior members of law enforcement who I think are the bomb reaching out to me and saying, ‘My troops are beside themselves, guys talking about early retirement.’ Not bad cops, good cops.”

Brauchler also fears that this bill, which he said was written by the ACLU, will compromise the ability of departments to attract new police officers.

“They are going to continue the downward spiral which we’re already on of quality recruits seeking to make law enforcement a career.”

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