2021 Leg Session, Civil Liberties, Criminal Justice, Featured, Legal, Local, Original Report, Scott Weiser, Uncategorized

Problems with police accountability act concern Colorado cities, towns; legislative changes sought

In the January edition of Colorado Municipalities, the Colorado Municipal League (CML) expressed serious concerns about last year’s Senate Bill 214, the “Law Enforcement Integrity Act” (Act), which was signed into law by Governor Polis after being rushed through the final weeks of the 2020 legislative session.

The CML is a member-based association of cities and towns in Colorado that includes 270 municipalities. “People often ask what I equate it to,“ Kevin Bommer, executive director of the CML told Complete Colorado. “It’s like a chamber of commerce, only instead of businesses our members are municipalities.”

“While the final version was improved from the originally proposed bill, SB 20-217 introduced ambiguous language and conflicting terms into various sections of the Colorado Revised Statutes (C.R.S),” says the CML analysis. “Municipal legal advisors must navigate uncertainties created by the new legislation.”

CML says it wants to work with lawmakers to “clarify these ambiguities” and “address the significant legal liability” created by the law.

The Act fundamentally changed how local law enforcement officers throughout the state do their jobs by imposing restrictions and policies on everything from mandating body cameras to the use of force to making officers individually liable in lawsuits.

The provisions that mandate all local law enforcement officers wear and use body cameras by 2023 are fairly uncontroversial because many  municipal police departments are already on the path towards requiring them.

However, the law allows a “permissive inference in any investigation or legal proceeding, excluding criminal proceedings against the peace officer, that the missing footage would have reflected misconduct by the peace officer.” This means that failing to activate a body camera, even inadvertently, means an investigation that presumes misconduct by police.

Onerous reporting requirements oblige officers to fill out a detailed report on every contact they initiate with the public, whether consensual or non-consensual “for the purpose of enforcing the law or investigating possible violations of the law.”

One of the specific reporting requirements is that an officer disclose the “perceived” race, ethnicity, sex, and approximate age of a person contacted “based on the observation and perception of the peace officer making the contact.”

“We’ve spent years telling officers and other members of government not to dig into people’s national origin…You know, their race, their perceived sexual identity…And now all of a sudden we have codified a requirement that you want cops to guess at these things,” former 18th Judicial District Attorney George Brauchler told Complete Colorado in June, 2020. “I think it’s highly suspect. I don’t think it lends itself to any degree of accuracy at all in understanding an officer’s intentions.”

When it comes to the use of force by police officers, the new law introduced confusion and ambiguity as to when officers are entitled to use force, which is among the concerns of CML.

A new provision, C.R.S. 18-1-707(1), says a peace officer, “may use physical force only if nonviolent means would be ineffective in effecting an arrest, preventing an escape, or preventing an imminent threat of serious bodily injury or death to the peace officer or another person.”

The CML article says, “This language is problematic because it permits an officer to use physical force to defend themselves or another person only from an imminent threat of serious bodily injury or death. As written, the language essentially precludes an officer from using any force to defend themselves from anything other than a deadly force assault. The new law would provide that a police officer may not defend themselves from a simple assault, such as a punch, kick, or shove.”

A conflicting existing statute explicitly authorizes anyone, including police officers, to use reasonable force to defend themselves or a third person from “the use or imminent use of unlawful physical force by another.” It’s not clear which statute prevails, but the CML article says that some recently issued district attorney decision letters have stated “this [new] statute is now the appropriate standard.”

Adding to the elements that may encourage police officers to do less serving and protecting is the section that makes officers personally liable for up to $25,000 of any damages awarded in a lawsuit if the officer’s department determines that he “did not act upon a good faith and reasonable belief that the action was lawful.”

The law further says that the Colorado Governmental Immunity Act (CGIA) does not apply to civil actions against police officers, agencies or municipalities. The law removes all CGIA caps and limits on liability, damages or attorneys fees, leaving municipalities in the position of facing potential judgments that can bankrupt an entire town.

“CML has consistently stated that allowing for unlimited damages and attorney fees is inappropriate as municipalities are funded by finite taxpayer dollars,” continues the article.

Bommer says the CML is in discussions with legislators about possible amendments during this legislative session, but says there are no firm commitments or draft legislation on the table at this time.

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