Colorado Law Places New Limits and Controls on Law Enforcement Power

By H. Michael Steinberg Colorado Criminal Defense Lawyer

On June 19, 2020, Colorado Governor Jared Polis signed into law Senate Bills 20 -217, a sweeping police accountability bill and SB 20 – 127 is otherwise referred to as An Act Enhance Law Enforcement Integrity (the Act).

The new law, enacted in the wake of the George Floyd murder, – Colorado Senate Bill SB 20-217 has, and will have, a massive impact on the Colorado law enforcement community. The new Act (Act) has different effective dates – different provisions are effective on different dates from 2021 – to 2023.

Here are the Most Significant and Key Provisions of the Act

Use of Body-Worn Cameras

The new law requires all police and sheriffs and the Colorado state patrol to wear body-worn cameras to their officers. There are exceptions – law enforcement personnel:

● Working in jails,
● Working as administrative or civilian staff,
● Working for the executive detail of the state patrol, and
● Those working in courtrooms.

Mandatory Activation of Body-Worn Cameras

In addition, the Act requires that peace officers wear and activate a body-worn camera when responding to a call for service or during any interaction with the public initiated by the peace officer when enforcing Colorado criminal law or when investigating possible violations of that law.

The Act also holds officers accountable if they fail to record or activate the cameras; and outlines timelines for the release of the footage.

There are major exceptions to the body camera activation requirement:

● Peace officers may turn off a body-worn camera to avoid recording personal information that is not case related;
● When police officers are working on an unrelated assignment;
● When there is a long break in the incident or contact that is not related to the initial incident;
● During administrative, tactical, and management discussions.
● If the peace officer is working in an undercover capacity.

Recordings of Police Related Contact – Complaints

The Act requires that recordings of an incident be released to the public within 21 days after the local law enforcement agency or Colorado state patrol receives a complaint of misconduct unless the recording is withheld by select redaction or even complete non-release of the recording to the public if there is a specified privacy interest at stake.

Required Disclosures – Reports of Officer Involved Force

Each local law enforcement agency and the Colorado state patrol that employs peace officers are now required to report to the Colorado State Division of Criminal Justice:

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

The division of criminal justice will use that information to create and maintain a statewide database with data collected in a searchable format and publish the database on its website.

Loss of POST Certification for Convictions

If any peace officer is convicted of or pleads guilty (or no contest) to a crime involving the unlawful use or threatened use of physical force o

or the failure to intervene in another officer’s use of unlawful force
or is found civilly liable in either case, the P.O.S.T. board shall permanently revoke the peace officer’s certification unless the peace officer is found not guilty in a court.

The P.O.S.T. board shall not, under any circumstances, reinstate the peace officer’s certification or grant new certification to the peace officer unless exonerated by a court.

The requirement of a Peace Officer Acts Data-base

Beginning January 1, 2022, the Act requires the P.O.S.T. board to create and maintain a database containing information related to a peace officers:

● Untruthfulness;
● Repeated failure to follow P.O.S.T. board training requirements;
● Decertification; and
● Termination for cause.

The Use of Force at Protests – Demonstrations (24-31-905)

The Act states that in response to a protest or demonstration, a law enforcement agency and any person acting on behalf of the law enforcement agency shall not:

● Discharge kinetic impact projectiles and all other non- or less-lethal projectiles in a manner that targets the head, pelvis, or back;
● Discharge kinetic impact projectiles indiscriminately into a crowd; or
● Use chemical agents or irritants, including pepper spray and tear gas, prior to issuing an order to disperse in a sufficient manner to ensure the order is heard and repeated if necessary, followed by sufficient time and space to allow compliance with the order.

Loss of Immunity – New Civil Action for Deprivation of Rights (13-21-133)

The Act allows a person who has a constitutional right secured by the bill of rights of the Colorado constitution that is infringed upon by a peace officer to bring a civil action for the violation.

A plaintiff who prevails in the lawsuit is entitled to reasonable attorney fees, and a defendant in an individual suit is entitled to reasonable attorney fees for defending any frivolous claims. Qualified immunity is not a defense to the civil action.

Anyone using their position as a police officer to deprive someone of their Constitutional rights, or anyone acting as a police officer who fails to stop another officer from depriving someone of their Constitutional rights, is liable for the injuries they cause another.

Restrictions on Damages Paid Out by Peace Officers – Reimbursement

The act requires a political subdivision of the state to indemnify its employees for such a claim; except that if the peace officer’s employer determines the officer did not act upon a good faith and reasonable belief that the action was lawful, then the peace officer is personally liable for 5 percent of the judgment or $25,000, whichever is less, unless the judgment is uncollectible from the officer, then the officer’s employer satisfies the whole judgment.

A public entity does not have to indemnify a peace officer if the peace officer was convicted of a criminal violation for the conduct from which the claim arises.

Changes to Use of Force Standards and Reporting of Same

The act creates a new use of force standard by limiting the use of physical force and limiting the use of deadly force when force is authorized.

● The Act prohibits a peace officer from using a chokehold.
● The Act requires a peace officer to intervene when another officer is using unlawful physical force and it,
● Requires the intervening officer to file a report regarding the incident. If a peace officer fails to intervene when required, the P.O.S.T. shall decertify the officer.

The Act also makes it unlawful for any governmental authority to engage in a pattern or practice of conduct by peace officers that deprives persons of rights, privileges, or immunities secured or protected by the constitution or laws of the United States or the state of Colorado.

Whenever the attorney general has reasonable cause to believe that a violation of this provision has occurred, the attorney general may in a civil action obtain any and all appropriate relief to eliminate the pattern or practice.

The Act allows the P.O.S.T. board to revoke peace officer certification for a peace officer who has failed to complete required peace officer training after giving the officer 30 days to satisfactorily complete the training.

The Act gives the P.O.S.T. board the authority to promulgate rules for the enforcement of the provisions related to peace officer certification.

The Colorado Attorney General may also now bring criminal charges for violations of the provisions related to peace officer certification if the violation is willful or wanton, or impose fines upon any individual officer or agency for failure to comply with the provisions related to peace officer certification.

Report of Police Contact With Citizens

Finally, the Act requires a peace officer to have a legal basis for making a contact. After making a contact, a peace officer shall report to the peace officer’s employing agency information that the agency is required to report to the division of criminal justice.

• Deadly physical force can only be used to make an arrest when all other means of apprehension are unreasonable given the circumstances AND:
• The arrest is for a felony involving conduct including the use or threatened use of deadly physical force;
• The suspect poses an immediate threat to the peace officer or another person;
• The force employed does not create a substantial risk of injury to other persons. (18-1-707(3)).

Also, even when a grand jury decides not to indict the officer under investigation, the panel is required to issue a report explaining its findings.

ABOUT 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 – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly defend your case.