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This past Juneteenth holiday, I came across this tweet by the ACLU of Colorado, which claims the state had officially ended qualified immunity. On its face, the tweet appeared to make a fundamental error given that qualified immunity is a federal court-created defense that cannot be overturned by state legislatures. The more I delved into the new Colorado law, however, the more I came to appreciate the law’s ambitions in regard to bypassing the notorious federal immunity.
To be sure, in many other ways outside of bypassing federal qualified immunity, Colorado’s newly signed Enhance Law Enforcement Integrity Act lives up to its title. For example, the law’s provisions establish limits on when an officer may use deadly force and prohibits officers from using dangerous tactics like the chokehold. Even more encouraging, the law creates a statewide database listing officers who have been convicted of using such inappropriate force, or who are found untruthful, or fired for cause. Anyone placed in this database would be ineligible to be rehired as a peace officer in Colorado.
When it comes to the issue of qualified immunity in particular, the Colorado law in effect bypasses the federal immunity by creating a state cause of action that recognizes no such defense: the new law creates a right for every resident of Colorado to sue any state police officer who deprives them of their rights in a state court where the federal defense of qualified immunity will not apply. Moreover, in cases where an officer “did not act upon a good faith and reasonable belief that the action was lawful” the Colorado law establishes that the officer will be personally liable “for five percent of the judgement or settlement or twenty-five thousand dollars, whichever is less.”
As Nick Sibilla points out, at the state level, wholesale indemnification of police officers who commit abuses or constitutional violations is a routine practice. The problem with taxpayers footing the entire bill, however, is it does not appear to offer any deterrence to such abuse or lead to accountability of bad actors despite the incredible amounts states and municipalities have had to pay out in damages. By making individual officers personally liable (even if only for 5% of the damages) Colorado has taken an extraordinary and unprecedented step toward personal accountability within law enforcement.
Of course, a strong argument can be made that officers should be indemnified, at least to some degree. After all, a single police officer is unlikely to have the personal wealth required to pay out significant damages. Making victims whole or satisfied would therefore require that an entity with deeper pockets cover most of the expenses.
Another remarkable feature of Colorado’s Enhance Law Enforcement Integrity Act is that it was introduced and passed in an astonishingly little amount of time — 16 days. Perhaps even more astonishing is how the legislation “picked up substantial Republican backing along the way” with only 15 of the state’s 100 lawmakers voting “no” in the end. Then again, maybe this bipartisanship is not astonishing at all and merely a product of the times we are living in where we have seen extraordinary movement in regards to public perception of policing.
Here is where it should also be said that Colorado’s new law is not without some potentially glaring flaws. For one thing, the law leaves the determination of whether an officer acted unreasonably or with bad faith (thus triggering an officer’s personal accountability) up to the “officer’s employer.” It probably does not need to be said at this point that systems where police are only held accountable to themselves have not led to meaningful oversight or accountability. Moreover, juries make determinations as to “reasonableness” and “bad faith” all the time, so it is not as though it would be impractical to allow juries to make these conclusions.
Time will certainly tell whether Colorado’s new law will have the intended effect its most ardent proponents want. Nevertheless, Colorado has taken the most significant progress toward enacting personal accountability within law enforcement than arguably any other state. At this point, I suppose we can all look to Colorado with hope in that any chance at accountability, even just a 5% one, is better than none.
Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.