CREATION OF A STATE INVESTIGATION UNIT TO INVESTIGATE POLICE USE OF FORCE INCIDENTS
This bill creates a new investigation unit, under the direction of the Attorney General, that is solely responsible for the investigation of police use-of-force that results in death or serious bodily injury. This new unit will exist solely to “police the police.”
Currently, Colorado has a multi-jurisdictional approach to investigating officer-involved-shootings (OIS’s). Under the current law, every law enforcement agency must join with at least one other law enforcement agency and form a multi-jurisdictional investigation team. This was meant to prevent an agency from “investigating their own” and have an outside jurisdiction involved to prevent coverups and other appearances of impropriety. The current law only requires activation of this team to investigate critical incidents where an officer fires his weapon, but the practice has been to activate the team whenever there is a death in law enforcement custody.
Uses-of-force that fall below that threshold are generally investigated by the agency’s Internal Affairs unit, or sometimes by an outside agency.
This new bill requires that when a citizen is either killed or has “serious bodily injury” (which includes any broken bones) during a law enforcement encounter, the new Attorney General investigation unit must be notified AT THE TIME OF THE INCIDENT and will investigate the police officers involved. This means that any time there is an OIS or other serious use-of-force, it will the Attorney General’s office that will conduct the investigation in the officers’ conduct.
The investigation unit must also be activated if an agency receives an “after-the-fact” complaint of force that resulted death or serious bodily injury, or an allegation that an officer’s force violated Colorado or Federal law. This provision will essentially make any use of force complaint a criminal investigation against the officer, no matter how absurd the allegation.
Additionally, this investigation unit will be notified and activated whether the officer’s actions were conducted on-duty or OFF-DUTY. It is unclear whether this provision would only apply if the officer takes off-duty enforcement action, or whether it would cover any personal matter the officer may be involved with in his/her personal life.
The investigation unit will determine if the officer used force in violation of the law, and/or if officers failed to intervene. If the unit determines there was a violation, and the Attorney General agrees (based solely on the unit’s report) then the Attorney General SHALL INDICT the officer(s) and institute criminal proceedings. This is a mandatory prosecution of any officer when the Attorney General’s office believes (by the low standard of probable cause) there is unlawful force.
This is a drastic change from the current standard. Now, prosecution of an officer is at the determination of the District Attorney of the district where the act occurred. That DA makes a determination whether probable cause exists, and also whether there is a reasonable likelihood of a conviction at trial. The DA uses his prosecutorial discretion whether charges should be brought, and can bring the case before a Grand Jury if the DA believes it is appropriate. This bill removes discretion on charges, forcing an indictment whenever there is probable cause. The closest analogy is the way Colorado treats domestic violence, where if there is probable cause of a crime, the law mandates the arrest of the offender.
Additionally, the law requires the agency to place the officer(s) on unpaid administrative leave until the end of the proceedings.
Now more than ever is it important for the good men and women in law enforcement to have knowledgeable legal representation when they find themselves accused. The landscape for the policing profession has never been so difficult. The attorneys at Front Line Law have backgrounds as police officers, in the district attorney’s office, and military. We stand ready to help you when you need us.