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State senator, district attorney say improved police accountability act still has flaws to address

DENVER–Governor Polis signed Senate Bill 20-217, the Law Enforcement Integrity Act, into law Friday, June 19, bringing to a close a hurried legislative effort that 18th Judicial District Attorney George Brauchler says was “driven by what takes place outside of Colorado.”

The complicated and sweeping police accountability bill, introduced June 3, was heavily amended as it rushed through the process in the final weeks of the 2020 legislative session, which ended June 15. Brauchler, as well as State Senator John Cooke, R-Greeley, both say that while the new law is a big improvement over the original bill, there are still flaws that will need to be addressed down the line.

“The problem is twofold; one, we had the Devon Bailey case down in El Paso County that became super-politicized and high-profile,” Brauchler told Complete Colorado in an interview Friday. “The other part of this is when you have high-profile police misconduct and things like shooting fleeing felons in other places, it tends to show up under our gold dome. Why, I have no idea. But it seems there’s this urgent need to pass laws to address problems that we don’t really have in the same way here that they have another part of the country.”

The law mandates that all local law enforcement agencies provide their street officers with body cameras that must be activated “when responding to a call for service or during any interaction with the public initiated by the peace officer, whether consensual or nonconsensual, for the purpose of enforcing the law or investigating possible violations of the law.”

Brauchler says the camera mandate was probably unnecessary because most larger departments have been working towards them for some time.

“I can only think of two out of all the Arapahoe and Douglas County agencies who don’t have body cams. But they are working towards them and it is a matter of finances,” Brauchler said.

Senator Cooke agrees, saying the camera mandate will most adversely affect small towns and counties.  Cooke is also the former sheriff of Weld County, and was heavily involved in seeing the bill amended in the Senate.

“There is a grant program that law enforcement agencies can apply to help with the purchase of body cams. I don’t know how much is in there, it’s not probably enough to cover every agency, but I think it’s a good investment on their part,” Cooke told Complete Colorado Monday. “We extended the date out to 2023 for agencies to have the time to prepare and start saving for it, and they need to.”

Cooke and Senator Bob Gardner, R-Colorado Springs, were aghast at the original draft of the bill.

“I mean it just was horribly drafted. It was what I called a revenge or punishment bill, or the anti-law enforcement bill, as it was introduced,” Cooke said. “I think what happened was the bill sponsors just threw a whole bunch of stuff up on the wall to see what would stick.”

Brauchler agrees.

“If you asked me to guess, my guess is the ACLU drafted the bill, and by the way someone at the ACLU who’s not an attorney, because there was so much stuff in there that didn’t make any sense,” Brauchler said.

But he also acknowledged that Democrats, including the bill’s primary sponsors Senators Leroy Garcia, D-Pueblo and Rhonda Fields, D-Aurora, came together during the rapid-fire process to substantially amend the bill into something that gained bipartisan support and approval from the Chiefs of Police and County Sheriff’s Associations in the end.

“My hat’s off to Senator Gardner and Senator Cook and Senator Fields and Garcia for being able to come together when they didn’t have to,” Brauchler said. “The Dems had every single vote they need to have passed it without any input from the Republicans, and yet they didn’t do it that way. They took some constructive criticism and they worked together to try to make a very difficult, initially mean-spirited bill and turned it into something I think ultimately is actually going to have more positive than negative for the state.”

But problems remain that will need to be addressed in future legislative sessions, say both Cooke and Brauchler.

One sticking point is the exclusion of all state law enforcement officers including the Colorado State Patrol, Attorney General’s investigators, state university police officers, prison guards, wildlife officers and juvenile detention officers from the threat of civil lawsuits that now applies to all local law enforcement.

“I’m not here to tell you that they should be because of who they are, I’m saying if this is a matter of principle and best practice it makes no sense to exempt the state from it,” said Brauchler.

Another oversight has to do with the way that the failure of a fellow officer to intervene to stop the use of excessive force by an officer is handled. The law allows an agency to discipline the officer “up to and including termination, to the extent permitted by applicable constitutional and statutory personnel laws and case law.”

But the section then says that the Peace Officer Standards and Training (POST) board “shall permanently decertify the Peace Officer upon receipt of notice of the peace officer’s discipline.”

This appears to mean that even if an officer is merely subject to internal department discipline that would allow the officer to remain employed, the officer would necessarily lose his or her job because their POST certification must be revoked. Law enforcement officers must hold state POST certifications.

Cooke thinks that’s wrong.

“It does seem to be kind of a Catch 22,” Cooke said. “If you fail to intervene on say the use of force that is minor in nature and you get disciplined by a written reprimand or maybe a day suspension you shouldn’t lose your job over that. That might be something that has to be looked at next year.”

Brauchler said, “If we’re going just off of the words in the statute I think that’s a conclusion that can be reached. We’re going to find out the hard way whether we went too far.”

Cooke also has concerns about the new reporting requirements for police contacts and the publicly-available database that will be created.

“I think it’s a lot of data collection. It’s going to add a lot of time to every contact, and then it doesn’t say who’s going to evaluate all the data,” Cooke said. “So, you stop 100 black people. What does that mean? What does that tell you? Somebody has to analyze the data that’s going into the database. So out of 10,000 contacts an agency has 9,000 that are Anglo-Saxon Protestant, what did that tell you? They might be from Weld County or they might be from an area where a lot of minorities don’t live, so someone’s trying to analyze, but who is that?”

There is no requirement that the data be analyzed by the state in the new law, although the Division of Criminal Justice in the Department of Public Safety must create an annual report on the data.

“It’s going to be the ACLU or some of these other groups,” Cook said. “But the problem is they’ll probably cherry-pick what information they want and come up with their own conclusions. Whether it’s valid or not is yet to be seen.”

“They’re trying to prove a narrative that law enforcement is pulling over minorities,” Cooke concluded.

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