By: Tom Walton, Associate, Sutton | Booker | P.C.
On June 19, 2020, Governor Jared Polis enacted sweeping law enforcement reforms in Colorado with the signing of Senate Bill 20-217 (the “Bill”). While the full, practical impact of the Bill will take time to be fully understood, the immediate effect is the creation of an individual cause of action against police officers for violations of certain rights established in the Colorado Constitution, completely exempt from the doctrine of qualified immunity. Interestingly, this cause of action extends to not only the offending officer, but also to officers aware of the violation who fail to intervene. In the longer term, the Bill also mandates statewide use of body cameras for all police officers and implements extensive new law enforcement reporting requirements.
The cause of action created under the Bill bears a striking resemblance to the cause of action created by Section 1983, the statue which creates a cause of action for violating the federal constitution. 42 U.S. Code § 1983. One notable difference, however, is that while Section 1983 reaches any civil rights violation, the new C.R.S. § 13-21-131 creates a cause of action only for a deprivation of “individual rights that create binding obligations on government actors secured by the bill of rights.” It is not readily apparent how this language will interact with the 30 sections of enumerated rights set forth in Article II of Colorado’s Constitution.
Colorado is not the first state to pass a version of Section 1983, but it is the first state to explicitly remove the doctrine of qualified immunity as a defense against suits under such a statute. That key difference is the most dramatic aspect of the Bill.[i]
Qualified immunity is a common law concept which essentially says that a police officer acting with a reasonable, good faith belief that his or her actions are legal is immune from suit. The Supreme Court recognized the doctrine in Pierson v. Ray, 386 U.S. 547, 555, 87 S. Ct. 1213, 1218 (1967), and, Colorado recognized Pierson in Espinoza v. O’Dell, 633 P.2d 455, 465 (Colo. 1981), although the doctrine existed in Colorado prior to that. In practice, qualified immunity has made it very difficult for cases against police officers to advance beyond a simple motion to dismiss, let alone secure a positive outcome for plaintiffs.
The Bill makes it clear that qualified immunity is not a defense against a case brought under C.R.S. § 13-21-131 (and only cases brought under C.R.S. § 13-21-131). Not only does qualified immunity not apply, but neither does the Colorado Governmental Immunity Act, any other statutory immunities, or any limitations on liability, damages, or attorney’s fees. In fact, the Bill creates a mandatory award of attorney’s fees to any successful plaintiff. A defendant, by contrast, may only recover attorney’s fees if the court finds the action frivolous.
The cost of a suit brought under C.R.S. § 13-21-131 will fall primarily on the offending police officer’s employer, and therefore, in many cases, their insurer. The Bill requires the employer of any police officer sued under C.R.S. § 13-21-131 to indemnify that officer unless the officer acted in bad faith, at which point he or she is liable for 5% of the final judgment, up to a cap of $25,000. The employer remains liable if the officer cannot pay the final judgment, however. Despite requiring indemnity, the Bill does not include any provisions regarding defense or consent for settlement, which may lead to incentive conflicts between named defendants and the organizations required to indemnify them.
The Bill also takes steps to promote police accountability, requiring all police officers in the state, with limited exception, to use body worn cameras by 2023. This mandate is enforced by creating a permissive inference of police misconduct in cases where body worn cameras are not used, and in more extreme circumstances, creating sanctions for police officers up to a complete disqualification from working as a police officer in the state. Additional provisions also create new reporting requirements for police interactions with individuals, prohibit choke holds, set new restrictions on how police may respond to protests, and establish requirements for public disclosure of body worn camera footage in incidents of police misconduct.
While clearly untested at this point, the Bill presents a significant financial risk for local governments and their insurers. The removal of qualified immunity will open the proverbial flood gates of new cases against police officers and the creation of an affirmative duty to intervene serves to multiply the world of possible defendants in any single incident. This is exacerbated by the exemption of C.R.S. § 13-21-131 from all damage caps and the mandatory granting of attorney’s fees in any successful action, which is all but guaranteed to encourage a wave of cases to test the bounds of the new law. Additionally, the incorporation of mandatory, nearly unqualified indemnification and with relatively low personal liability thresholds may create a dangerous conflict of incentives between police officers sued C.R.S. § 13-21-131 and their employers.
It may take time to fully understand the nuances of Senate Bill 20-217, but what is clear right now is that its impact will be far reaching and expensive. Local governments and their insurers need to act quickly to prepare for the inevitable rise of C.R.S. § 13-21-131 litigation, particularly the sweeping indemnity requirements that will accompany it.
Read the full text of Colorado Senate Bill 20-217 here.
[i] Schweikert, Jay; Colorado Passes Historic, Bipartisan Policing Reforms to Eliminate Qualified Immunity, Cato at Liberty, https://www.cato.org/blog/colorado-passes-historic-bipartisan-policing-reforms-eliminate-qualified-immunity, June 22, 2020