H. Michael Steinberg has 42+ years of experience practicing Colorado criminal law. Mr. Steinberg strives to stay current with the ever changing aspects of criminal law issues and updates resulting in his extensive knowledge of successful criminal defense as well as appellate work. He is also an active member of the National Association of Criminal Defense Lawyers, the Colorado Criminal Defense Bar Association, the Colorado Trial Lawyer's Association, and the Colorado and Arapahoe Bar Associations.
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Colorado Criminal Law – The Impact Of Police Body Cam Laws §24-31-902 CRS

by

Colorado-Criminal-Law-The-Impact-Of-Police-Body-Cam-Laws-24-31-902-CRS-By H Michael Steinberg Colorado Criminal Defense Lawyer

Introduction – The Use Of Body Cameras In The Investigation And Prosecution Of Crimes In Colorado

I have watched in amazement, over the few years, as police body cam footage has revolutionized law enforcement in ways that have impacted, not only the most serious criminal cases, but the least serious criminal charges. While it has been a quiet revolution – there is little question that body cam has greatly impacted the prosecution and defense of criminal cases.

Unlike the decades prior to the requirement of “body cam” – this technology for the first time provides in many cases the most objective and unbiased record of law enforcement interactions. Body cam footage has not only increased transparency and provided a new accountability in a troubled criminal justice system, it has provided a means of finding a new justice across a system that, prior to the mandated use of body cam, relied primarily on human recall and the kind of biased testimony that often remained unchallenged from other forensic sources.

Body Cam Footage Has Introduced A New Complexity To Tactical Criminal Defense

Body cam is, at this very moment, transforming police investigations at every level by capturing crucial evidence that can be used to exonerate a person accused of a crime – which evidence might otherwise have been missed or discarded. However, it must also be stated that the actual use of body cam footage in negotiations and at trial, can be complex. A criminal defense lawyer’s tactical use of the footage to defend against criminal charges … is very real but understanding how to incorporate body cam into the a lawyer’s defense of a case can be challenging.

Body cam footage permits the defense lawyer the ability to review events from multiple perspective. Footage of the actual statements made by witnesses is a powerful tool during trial proceedings, providing jurors “literally” the most accurate portrayal of statements attributable to key witnesses AND by the police – combating law enforcement’s traditional and historical reliance on the officer’s recall of what happened and “the spin” that almost always results in one sided biased testimony.

This evidence has significantly enhanced the “honesty” of the legal process, ensuring a more balanced and fair determination of the evidence pointing to guilt or innocence.

The visual and audio elements captured by body cameras provide an unbiased record of events. This documentation can serve justice and may serve to corroborate or challenge accounts provided by officers, witnesses, or suspects, presenting an objective perspective of incidents.

Body camera footage can help prevent wrongful convictions and protect the rights of the accused. It strengthens the overall credibility of the justice system again possibly offering concrete evidence that can be examined and evaluated by all parties involved – and especially the jury and the judge as finders of fact.

Deterring Police Misconduct

In addition to enhancing investigations and courtroom proceedings, police body cam has also played a role in deterring police misconduct. The police are now keenly aware that their statements and actions are being recorded. The result has been a sea change in human interaction between the police and the rest of the world.

In summary, as explored further below, police body cams have had a profound impact on the investigation and prosecution of crimes in Colorado.

What Are Body Warn Cameras? (BWC’s)

The term “body-worn cameras” (BWC) refers to compact digital video cameras that are powered by batteries and are attached to the uniform shirts or winter jackets of law enforcement officials. In order for the recording to commence, the officers are required to manually activate the record function on the camera.

When compared to the capabilities of human eyes and ears, the recording capacities of the cameras are comparable. The cameras rarely have any advanced recording skills, such as night vision, and their capacities are somewhat limited but the quality of the footage is usually excellent.

Police personnel are required to place their cameras at a docking station within their command at the conclusion of their shift. Recorded footage is then automatically transferred to a cloud-based storage solution once the camera is attached, and the battery of the camera is automatically replenished.

Body Worn Cameras And Colorado Senate Bill 20-217 – The (Colorado) Enhance Law Enforcement Integrity Act (The Act)

On June 19, 2020, Governor Jared Polis signed Senate Bill 20-217, which is also referred to as the Enhance Law Enforcement Integrity Act (The Act). The omnibus legislation includes provisions for civil, criminal, and professional sanctions, as well as personal culpability for law enforcement officials who are deemed “peace officers” under Colorado law (“officers”) and who violate the mandates of the law.

The purpose of this blog post is to identify, focus, and summarize the section of the law governing the use of so called “body cams.”

A Brief Primer On The Actual Use Of Body Cameras In Colorado

Turning The Cameras On

Under the Act, police officers are required to wear and activate a body-worn camera when:

Responding to a call for service;

During any interaction with the public initiated by the officer;

and

When enforcing the law or investigating possible violations of the law.

Turning The Cameras Off

An officer will be allowed to turn off a body-worn camera only to:

Avoid recording personal information that is not case related;

When working on an unrelated assignment;

When there is a long break in the incident or contact not related to the initial incident;

and

In administrative, tactical, and management discussions.

While almost every police department in Colorado has written policies for the production and use of body cam footage – what follows is an example – an excerpt – from a detailed list of the use of body cam while on duty.

The source is the Colorado State Patrol policy manual providing real world examples of some of the kinds of investigations where turning the cameras (BWC) on is required. Some PD’s have stricter protocols than others: (A link to the entire document is here Body Worn Camera Policy 9-12-22).

Colorado State Troopers will ensure their BWC is activated when conducting:

Crash investigations;
Investigative detentions;
A protective frisk for weapons;
Any kind of search (consensual or otherwise);
Arrests;
Suspect interviews, including Miranda advisements;
Victim and witness interviews;
Custodial interrogations of suspects;
Transporting suspects or other members of the public;
Handling and inventorying currency;
Building and vehicle searches, including execution of a warrant; and
K-9 searches.

Troopers will activate their BWC as soon as practical when involved in a crash involving a state-owned vehicle.

Troopers will activate their BWC when a non-initiated contact rises to the level of investigating possible violations of the law;

Troopers will activate their BWC when involved in any planned or spontaneous crowd control situation and actively engaged with an individual or group.

An Incident Commander has authority to direct activation of BWCs during civil unrest disturbances.

Troopers will activate their BWC when responding to active threat situations.

Troopers have the authority to activate their BWC in any situation where a trooper believes the use of the BWC would be appropriate or would provide valuable documentation, if not already activated per policy.

Troopers will activate their BWC when directed to by a supervisor.

Troopers may use discretion in activating their BWC in instances where public contact is not likely, such as removing road debris. Troopers will document the rationale for non-activation in CAD when clearing the event

A Look At Some Of The Exceptions To The Requirement To Turn On Body Cameras

Undercover Operations

An officer is not required to wear or activate a body camera if the officer is working undercover.
To safeguard ongoing investigations and protect the identities of confidential informants, officers may be exempt from using body cameras when interacting with such individuals.

Camera Malfunctions – Excluded

Notwithstanding any other provision of law, the new law does not apply if the body-worn camera was not activated due to a malfunction of the body-worn camera and the peace officer was not aware of the malfunction, or was unable to rectify it, prior to the incident, provided that the law enforcement agency’s documentation shows the peace officer checked the functionality of the body-worn camera at the beginning of his or her shift.

Consensual Encounters With The Public

Under the law, police officers are not required to activate their body cameras during consensual encounters with individuals. These interactions typically occur when an officer engages in casual conversations or informal interviews where there is no reasonable suspicion or probable cause for arrest.

Crimes That “May Require Privacy”

Colorado law also recognizes that victims of certain crimes (a mental health crisis for example) may require privacy protection due to the sensitive nature of their cases. In such instances, officers have discretion over whether to activate their body cameras when interacting with victims during interviews or other related activities.

Healthcare Facilities And Medical Emergencies

In situations involving medical emergencies or interactions within healthcare facilities, officers may choose not to activate their body cameras in order to respect patients’ privacy rights and comply with HIPAA regulations governing patient confidentiality.

To protect victims of domestic violence from further harm or intimidation, officers are given discretion over whether they should record interactions on their body cameras during incidents involving domestic violence calls or related circumstances.

Juvenile Cases

Colorado law acknowledges that juveniles require additional privacy protection due to their age and vulnerability. Consequently, officers have the discretion to deactivate their body cameras when interacting with juveniles who are not suspected of committing a felony offense.

Part I: Failing To Activate (Turning On) The Body Cam – Sanctions – (The “Teeth” Of The Law)

The Act requires different types of sanctions (penalties) for failing to activate a body camera or dash camera or where the officer tampers with a body camera or footage.

By July 1, 2023, the Act requires all local law enforcement agencies and the Colorado state patrol have issued body-worn cameras to their officers. All recordings of an incident be released to the public within 21 days after an agency receives a complaint of misconduct.

The introduction to the statute makes clear that turning on the body cam is NOT an option in the first section of the law (Colo. Rev. Stat. § 24-31-902)

(A) Except as provided in subsection (1)(a)(II)(B) or (1)(a)(II)(C) of this section, a peace officer shall wear and activate a body-worn camera or dash camera, if the peace officer’s vehicle is equipped with a dash camera, when responding to a call for service, entering into a premises for the purposes of enforcing the law or in response to a call for service, during a welfare check except for a motorist assist, or during any interaction with the public initiated by the peace officer, whether consensual or non consensual, for the purpose of enforcing the law or investigating possible violations of the law.

The body-worn camera or dash camera does not need to be on when en route to a call for service, but should be turned on shortly before the vehicle approaches the scene.

Part II: Failing To Activate (Turning On) The Body Cam – Sanctions – (The “Teeth” Of The Law) Colo. Rev. Stat. § 24-31-902

Sanctions For Failing To Activate A Body Cam

(III) If a peace officer fails to activate a body-worn camera or dash camera as required by this section or tampers with body-worn – or dash-camera footage or operation when required to activate the camera,

….there is 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.
If a peace officer

…fails to activate or reactivate his or her body-worn camera as required by this section or

…tampers with body-worn- or dash-camera footage or operation when required to activate the camera,

[then]

…any statements or conduct sought to be introduced in a prosecution through the peace officer related to the incident that were not recorded due to the peace officer’s failure to activate or reactivate the body-worn camera as required by this section

[or]

…if the statement or conduct was not recorded by other means…

…creates a rebuttable presumption of inadmissibility.

What IS A Rebuttable Presumption?

The Act creates a rebuttable presumption of inadmissibility for any statement the prosecution seeks to introduce through the officer where the statement is unavailable due to an officer’s failure to activate a body camera.

What exactly is meant by the term “rebuttable presumption”?

The term “rebuttable presumption” is used to describe an assumption or conclusion that is made by a court or a legal system and must be considered as true until it is demonstrated that it is not true.

In its operation, a rebuttable presumption is based on the idea that particular facts or circumstances are generally true until evidence is produced to present evidence that challenges them. The opposing party is responsible for providing evidence that contradicts or rebuts the original assumption.

The presumption sets the burden of proof on their side of the issue.

Presumptions that can be refuted are extremely important to the functioning of the legal system because they are potent weapons that can be used to establish specific facts or to shift the burden of proof in relation to legal processes. But it must be noted here – rebuttable presumptions can be disproved by giving evidence that contradicts them, in contrast to irrefutable presumptions, which cannot be contested.

Where The Actions Of Law Enforcement Can Be Shown To Be INTENTIONAL – Sanctions For Mishandling Body Cam Footage

Under the law – the certification of a police officer shall be revoked or suspended if a peace officer intentionally fails to activate their Body Worn Camera or Dash Camera with intent to conceal unlawful or inappropriate actions.

Here is the relevant section of the law:

(IV) (A) In addition to any criminal liability and penalty under the law, if a court, administrative law judge, hearing officer, or a final decision in an internal investigation finds that a peace officer intentionally failed to activate a body-worn camera or dash camera or tampered with any body-worn or dash camera, except as permitted in this section, the peace officer’s employer shall impose discipline up to and including termination, to the extent permitted by applicable constitutional and statutory personnel laws and case law.

(B) In addition to any criminal liability and penalty under the law, if a court, administrative law judge, hearing officer, or a final decision in an internal investigation finds that a peace officer intentionally failed to activate a body-worn camera or dash camera or tampered with any body-worn or dash camera, except as permitted in this section, with the intent to conceal unlawful or inappropriate actions or obstruct justice,

….the P.O.S.T. board shall suspend the peace officer’s certification for a period of not less than one year and the suspension may only be lifted within the period of the suspension if the peace officer is exonerated by a court, administrative law judge, or internal affairs investigation.

( C ) In addition to any criminal liability and penalty under the law, if a court, administrative law judge, hearing officer, or a final decision in an internal investigation finds that a peace officer intentionally failed to activate a body-worn camera or dash camera or tampered with any body-worn or dash camera, except as permitted in this section, with the intent to conceal unlawful or inappropriate actions, or obstruct justice, in an incident resulting in a civilian death or serious bodily injury,

…the P.O.S.T. board shall permanently revoke the peace officer’s certification and the revocation may only be overturned if the peace officer is exonerated by a court, administrative law judge, or internal affairs investigation.

If a court, administrative law judge, hearing officer, or internal investigation determines the officer intentionally failed to activate his or her body camera, the law enforcement agency must discipline the officer.

Discipline may include termination. If the officer is determined to have intentionally failed to activate his or her body camera with the intent to conceal unlawful or inappropriate acts or to obstruct justice, the P.O.S.T. Board is required to suspend the officer’s certification for a minimum of one year. If the officer fails to activate a body camera during an incident resulting in a civilian death, the P.O.S.T. Board is required to permanently revoke the officer’s P.O.S.T. certification.

How Long Must Colorado A Law Enforcement Agency Keep Body Cam Footage?

The law requires law enforcement agencies to establish and follow a retention schedule for body camera recordings, release unedited body camera footage in response to a complaint, and protect the privacy of individuals depicted in the footage.

Agencies may delay the release of the video for up to forty-five (45) days if the release would jeopardize an ongoing investigation or prosecution; however, the prosecutor must prepare a written explanation justifying the delay.

The Colorado Open Records Act And Body Camera Footage

The Colorado Open Records Act “CORA” requires that most public records be available to the public. However, there are some exceptions concerning records made available under CORA.

From: Guide to Colorado’s Open Records and Open Meetings Laws

Prior to the enactment of Senate Bill 20-217 and the July 2021 effective date of body-worn camera footage provisions in House Bill 21-1250, local law enforcement agencies and the Colorado State Patrol could treat body-worn camera and dashboard camera footage like other criminal justice records. Footage or portions of footage could be withheld or redacted if an agency determined disclosure would be “contrary to the public interest.” C.R.S. § 24-72-305(5).

For a very recent and excellent source of information on this issue please follow this link:

[21 Day Delay Rule]

Under the new amendments mentioned above, all unedited video and audio recordings of incidents “in which there is a complaint of peace officer misconduct … through notice to the law enforcement agency involved in the alleged misconduct” must be released to the public no later than 21 days after a request is made. C.R.S. § 24-31-902(2)(a).

[45 Day Delay Rule]

An agency can delay the release of video until 45 days from the date of an allegation of misconduct if the video “would substantially interfere with or jeopardize an active or ongoing investigation.” A prosecuting attorney must explain in writing why the delayed release is justified; that statement will have to be released to the public when the video is released. C.R.S. § 24-31-902(2)(b)(III).

[Criminal Charges]

If criminal charges have been filed against any party to the incident of alleged officer misconduct, the party may file a constitutional objection to the release of the recording before the 21-day period expires. “The court shall hold a hearing on any objection no later than seven days after it is filed and issue a ruling no later than three days after the hearing.” C.R.S. § 24-31-902(2).

[Redactions]

Redactions are allowed if a video “raises substantial privacy concerns” for criminal defendants, victims, witnesses, juveniles or informants. This could include video depicting nudity, a sexual assault, a mental health crisis or a medical emergency. Unredacted footage cannot be released without written permission from the victim or, if the victim died or is incapacitated, the victim’s family. C.R.S. § 24-31-902(2)(b)(II)(A). If a recording depicts a death, it must be provided to the victim’s family, if requested, at least 72 hours before it is made public. C.R.S. § 24-31-902(2)(b)(I).

Summary And Conclusion – Colorado Criminal Law – The Impact Of Police Body Cam Laws § 24-31-902 CRS

Body cam is here to stay in Colorado. It has changed everything. Although these devices are intended to provide an unbiased record of events, questions regarding admissibility, authentication, and potential tampering are very real. Courts are as these words are being written, establish rules governing the use and presentation of this evidence in court that are intended to ensure its reliability while trying to safeguard against manipulation or misinterpretation.

Body cameras can insure, in many cases for the first time, police officer accountability and act as a deterrent against police misconduct. They can create an objective record of encounters, and facilitate the review and analysis of individual officer performance.

I submit that after over 40 years on both sides of the courtroom, I believe that the objective documentation provided by body cameras enhances the integrity of the legal process, ensures a fair determination of guilt or innocence, and protects both the police and the target of their investigations.

Colorado Criminal Law – Colorado Criminal Law – The Impact Of Police Body Cam Laws § 24-31-902 CRS

The reader is alerted to the fact that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article appearing above was accurate at the time it was drafted but it cannot account for changes occurring after it was uploaded.

BEST-STANDING-CHOICE-200x300ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at: hmsteinberg@hotmail.com

A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – please call 720-220-2277.

“A good criminal defense lawyer is someone who devotes themselves to their client’s case from beginning to end, always realizing that this case is the most important thing in that client’s life.”

Putting more than 40 years of Colorado criminal defense experience to work for you.

You should be careful to make a responsible choice in selecting a Colorado Criminal Defense Lawyer. We encourage you to “vet” our firm. Over the last 40 years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, to include Colorado criminal law and procedure and trial and courtroom practice.

H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law and he hopes this article helps you in some small way.