Landmark police reform law from 2020 would get a boost under follow-up legislation

Colorado Reps. Herod, Gonzales-Gutierrez want to expand body camera use, clarify when officers can use force

A firework explodes behind a line of police officers next to the Colorado state Capitol as protests against the death of George Floyd occur on May 30, 2020, in Denver. (Michael Ciaglo/Getty Images)

Last June, as protests in Denver, Minneapolis and across the nation highlighted police violence and racial injustice, the Colorado General Assembly passed landmark legislation aimed at holding law enforcement officers accountable for wrongdoing.

Now, that 2020 law’s Democratic House sponsor, Rep. Leslie Herod of Denver, is following up with another wide-ranging bill. With House Bill 21-1250, Herod is working with Rep. Serena Gonzales-Gutierrez, another Denver Democrat, to address a variety of issues with last year’s Senate Bill 20-217.

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The pair also hope to strengthen that 2020 law — also sponsored by Senate President Leroy Garcia — with new provisions. They include expanding the circumstances in which officers must turn on their body cameras and opening up the Colorado State Patrol to potential lawsuits over officer misconduct, in the same way SB-217 added civil liability for local law enforcement agencies.

HB-1250 passed its first hurdle in the House Judiciary Committee on April 21, the day after former Minneapolis police officer Derek Chauvin was found guilty of second-degree unintentional murder, third-degree murder and manslaughter in the death of 46-year-old George Floyd. Less than a week earlier, Brooklyn Center, Minnesota, police shot and killed Daunte Wright, 20, during a traffic stop.

“At the end of the day, my goal here today, and I think our goal, is to ensure that we stop seeing hashtags, that we don’t know anyone else’s name because they are dead, and instead be able to know them and judge them and love them for who they are alive,” Herod said.

On a party-line vote of 7-4, the Judiciary Committee referred HB-1250 to the House Appropriations Committee.

Ending qualified immunity for State Patrol

In one major change, HB-1250 would bring the state’s law enforcement agency up to the same legal standards that SB-217 imposed on local police departments and sheriff’s offices.

The 2020 legislation already prohibited “qualified immunity” as a defense in civil lawsuits against local law enforcement agencies, opening up an avenue for people to sue over officer misconduct in state court. In such lawsuits where a judge finds an officer violated someone’s constitutional rights, the officer is individually liable for up to $25,000 or 5% of a judgment, whichever is less.

A fiscal analysis of HB-1250 anticipates that ending qualified immunity for the Colorado State Patrol would cost the state $2 million a year to settle lawsuits over alleged trooper misconduct.

This year’s bill would prohibit local law enforcement agencies and the State Patrol from presuming an officer was innocent in all cases where the officer used force, and it would require multiagency investigations in these cases. If passed, the legislation would cost the Department of Public Safety, which includes the State Patrol, around $650,000 a year to help rural law enforcement agencies conduct such use-of-force investigations, according to the fiscal analysis.

State Rep. Leslie Herod poses for a portrait in Denver’s City Park on Aug. 16, 2020. (Moe Clark/Colorado Newsline)

Expanding the use of body cameras

Last year, SB-217 required law enforcement agencies to acquire enough body-worn cameras for every officer on their force who interacts with the public by July 1, 2023. Many police departments and sheriff’s offices already use the cameras.

The 2020 legislation also imposed requirements for when the cameras must be turned on: when responding to a call for service, or during any interactions with members of the public to enforce the law or conduct investigations.

HB-1250 would clarify that agencies must comply with the law’s requirements as soon as they acquire the cameras, even if that’s before 2023, and it would add welfare checks to the list of circumstances where officers must turn on body cameras. Welfare checks might include situations where someone is having a mental health crisis and a family member calls the police for help.

“There are a lot of situations when law enforcement is doing a welfare check and those situations can really get out of control pretty quickly,” explained Denise Maes, public policy director for the American Civil Liberties Union of Colorado, which supports the bill. “We just thought that was important enough to capture on video.”

Rep. Serena Gonzales-Gutierrez
Rep. Serena Gonzales-Gutierrez, D-Denver, serves as the House assistant majority leader. (Colorado General Assembly photo)

The bill also specifies that officers must have their body camera turned on when entering a building to respond to a call or conduct law enforcement activity.

“I think it works in law enforcement’s favor to be more proactive with regards to the body cams than not,” Gonzales-Gutierrez told Judiciary Committee members.

Last year, a provision of SB-217 that allows an absence of body camera footage to be used in court as a “permissive inference” suggesting misconduct occurred raised concerns for Rep. Terri Carver, a Colorado Springs Republican, she said.

Carver noted during the committee hearing that Maryland, which recently passed its own police accountability law, only allows the permissive inference to be used when the officer is found to have intentionally turned off their body camera, not when they forget to turn it on. Current Colorado law allows officers to turn cameras off to avoid recording personal information, during a long period of downtime when responding an incident, and during tactical or administrative discussions. But in other instances when the footage is missing, a plaintiff alleging police misconduct could infer that the missing footage would have shown the officer violating someone’s constitutional rights.

This doesn’t apply in criminal proceedings, and a police officer who is a defendant in a misconduct lawsuit can object to the inference based on a lack of footage.

Sarah Schielke, an attorney speaking on behalf of the Colorado Criminal Defense Bar, stressed that the law should not give officers any more exemptions for when they can have their cameras turned off.

A lack of camera footage “something that makes jurors very mad, and I think we should really trust the gut of our citizenry on this,” Schielke testified. “Most people assume that the recording always has to be going on.”

Speaking on behalf of the Arapahoe County Sheriff’s Office and County Sheriffs of Colorado, attorney Erin Powers testified that the bill’s biggest challenges related to body cameras were the data storage and reporting requirements for local agencies.

Local governments had been anticipating that they would not have to implement SB-271’s provisions around body-worn cameras until 2023, she said, and the legislation as written would accelerate that date, coming with high financial costs.

Clarifying when officers can use force

Another major provision of HB-1250 would more clearly dictate when officers can use force — including guns, Tasers, chokeholds or any other physical contact — to enforce the law.

“A law enforcement officer shall not use physical force upon another person,” the bill says, “unless the officer has exhausted all reasonable de-escalation tactics and techniques and, based on the totality of the circumstances, such force is proportionate and necessary to effect an arrest, prevent an escape, or prevent an imminent threat of harm to the peace officer or another person.”

This would require force to be “necessary and proportional to the end result — to what exactly the police officer’s objective is,” Maes told Newsline.

When Aurora police responded to a call in August 2019 that ended in the death of Elijah McClain, the decision to use force did not match the context of the situation, said Mari Newman, a Denver-based civil rights and employment law attorney representing McClain’s family.

“This is a young man who is just walking down the street,” Newman said in an interview. “The 911 caller says he sees somebody who looks suspicious, but that nobody’s in danger, there’s no weapon involved.”

After being violently detained by officers, McClain, 23, was given a large dose of ketamine without being evaluated by paramedics. He suffered cardiac arrest and was taken off life support days later. An independent report released by the city of Aurora in February found that police officers and paramedics mishandled the encounter that led to McClain’s death at every critical point.

Officers are generally trained not to use force unless absolutely necessary, and to use “less-lethal” force — such as a baton or Taser — before deadly force, but HB-1250 would clarify the expectations for officers under state law.

Ronald Sloan, director of the Colorado Association of Chiefs of Police, expressed concern about the requirement to train officers on the new use-of-force definitions and technicalities.

“There is a significant manpower shortage in many departments,” Sloan told the committee, adding that the additional training requirements would take officers off the streets.

Meanwhile, Newman argued that the definition changes in HB-1250 would make it easier for officers to know how they’re allowed to respond in a given situation, and easier for courts to determine whether or not officers did something wrong.

“We’re talking about real people and real families who are in pain because their loved ones have been killed for legally unjustified reasons,” she said. “And the goal of (SB-217) from its inception was to avoid this scourge of brutality, and particularly racist brutality, by creating additional accountability — and if that means that bad cops decide that law enforcement’s not for them, great.”

HB-1250 also speeds up the timeline for when agencies must begin releasing public data on the use of force, from Jan. 1, 2023, to Jan. 1, 2022. The bill clarifies that the data must include reports on every instance when an officer uses any type of weapon, from a Taser to a gun to nunchucks. Reports must be filed every time an officer unholsters a weapon, brandishes a weapon or fires a gun.

Providing a second chance

SB-217 required the Peace Officer Standards and Training Board, or POST Board, to permanently decertify any officer who failed to intervene in a situation where another officer used unlawful force on a member of the public, causing death or serious injury. This was meant to keep officers from simply moving from department to department and continuing the same bad behavior — or condoning it from their colleagues.

Under HB-1250, officers who failed to intervene would have their certification suspended for just one year instead.

An amendment to the bill, which the Judiciary Committee passed, would also provide whistleblower protections for officers who reported misconduct in their own agencies.

Only one law enforcement agency, the El Paso County Sheriff’s Office, had a representative testify at the hearing in opposition to HB-1250. Several witnesses representing law enforcement associations wanted to amend the bill. The Colorado Association of Chiefs of Police, County Sheriffs of Colorado, Colorado Fraternal Order of Police and Arapahoe County Sheriff’s Office were among those organizations pushing for major changes.

“If anybody wants to meet on this bill or talk about their concerns, my door is open and I will have those meetings, along with my co-prime sponsor,” Herod said before the committee vote, referring to Gonzales-Gutierrez.

“The fact of the matter is, law enforcement is not the only stakeholder that is interested in law enforcement accountability and reform, and their voice is not the only voice that matters,” Herod said. “So it is important to note that we have had to walk a very narrow line in crafting a bill that addresses the concerns of all parties here.”

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