Yesterday, the Colorado legislature introduced new amendments to the Act that officers need to be aware. As this bill is progressing quickly, and will likely be voted on late this week, we are going to try to keep you up to date with the changes. These are not all the changes or provisions, but the ones that most directly affect law enforcement officers themselves.
Under the new version of this bill, the amount of personal liability an officer can be exposed to has been reduced. Under this current rendition, a peace officer is personally liable for five percent of any award up to a cap of $25,000 when the officer’s agency determines that the officer did not act upon a good faith and reasonable belief that their action was lawful. Additionally, if the officer must personally pay a judgment, but the plaintiff cannot collect from the officer (likely because the officer has insufficient means to may payment), the agency or an insurance policy will pay the full amount.
Further, the current version of the bill waives all other statutory immunities or limitations on liability, damages and attorney fees. While both the Peace Officers Act and Colorado Governmental Immunity Act currently put caps on liability for claims like these, these waiver exposes the defendants to uncapped liability.
For background on the removal of qualified immunity and civil liability, see Front Line Law’s original breakdown of this bill, posted June 8.
COMPLETE REWRITE OF A PEACE OFFICER’S JUSTIFICATION FOR USING FORCE
Colorado’s law creates a justification for the use of “violence” by a peace officer (we refer to this as a use-of-force). This justification is written at C.R.S. § 18-1-707. Currently, this justification simply authorizes peace officers to use “reasonable and appropriate physical force” when necessary to arrest or prevent the escape of a someone under arrest, or to defend himself or a third party from unlawful force. A peace officer can use deadly force to arrest or prevent the escape of someone when 1) suspect has used a deadly weapon in a felony; 2) is using a deadly weapon to escape; 3) likely to endanger human life if not apprehended without delay; or 4) to defend against the imminent use of deadly force by the suspect.
This Act completely rewrites the section. The justification will read (if passed) that peace officers must use “nonviolent means” when possible, before resorting to physical force. An officer cannot use physical force unless “nonviolent means would be ineffective.”
Next, the bill outlaws the use of deadly force to apprehend a person suspected of a minor or nonviolent offense; the force must be consistent with the minimization of injury to others; the officers must provide medical aid as soon as practicable; and must notify next of kin when a suspect has sustained death or serious bodily injury.
Most drastically, the Act makes deadly force legal only when “all other means of apprehension are impractical;” AND the arrest is for a felony conduct that includes the use or threatened use of deadly physical force; AND there is substantial risk that that the person to be arrested will cause death or serious bodily injury if not immediately apprehended; AND the force does not create a substantial risk of injury to innocent persons.
This law would also require peace officers to announce their intention to use a firearm or other deadly force beforehand, unless it would “unduly place peace officers at risk of injury, would create a risk of death or injury to other persons, or would be clearly inappropriate or ineffective under the circumstances.”
Also under this Act, chokeholds are completely prohibited.
BODY CAMERA UPDATES
The amendments to this Act require the officer to be issued a body camera and for the officer to activate the camera to record any and all citizen contact. The officers are allowed to deactivate the camera for anything not case related. Undercover officers are exempt from body camera requirement.
If an officer fails to activate the camera, then there is a presumption that any off camera statements sought to be introduced in court through that officer are inadmissible.
The Act makes it mandatory for the agency to discipline the officer up to and including termination for failure to activate a body camera.
If a court, judge or internal affairs investigation finds an officer intentionally failed to record or deactivated the camera with the intent to conceal unlawful or inappropriate actions or obstruct justice, the POST board must suspend the officer’s certification for at least one year. In the event this occurs, and the incident resulted in a civilian death, the officer’s certification must be permanently revoked.
FORCE AGAINST PROTESTORS
This Act prohibits certain force against “peaceful protestors.” Officers may not: 1) use projectiles to target the head, pelvis, or back; 2) discharge projectiles indiscriminately into a crowd; or 3) use chemical agents before issuing an order to disperse in a manner so that it is heard, and sufficient time and space to allow compliance.
In the end, the law creates many more hurdles that officers must use in their calculus when making the decision to use force. It also makes the justification for use of force, especially deadly force, a field of landmines the officer must navigate in order to be cleared of civil and criminal liability when they are forced to make a split-second, life or death decision.
It is more important now than ever before to have attorneys that are experienced in defending peace officers when they are forced to make that decision. The attorneys at Front Line Law are former police officers, military and prosecutors, and have defended numerous law enforcement officers in shootings and other use-of-force incidents. We are ready to defend you if you need.