Analysis: What cops need to know about the changes to qualified immunity in Colorado

The legislation creates a $25,000 personal liability ceiling for officers found liable for state constitutional violations


On June 19, 2020, Colorado Governor Jared Polis signed a comprehensive police reform bill titled the “Enhance Law Enforcement Integrity Act” (SB 20-217). Among many other provisions, the new law takes aim at the qualified immunity defense available to federal, state and local law enforcement officers when sued in their personal capacity in federal court pursuant to federal law. [1]

SB 20-217, pursuant to the Bill of Rights found in Article 11 of the Colorado State Constitution, creates a new right to sue Colorado “Peace Officers” (i.e., defined under state law as police officers, deputy sheriffs and state patrol officers) in the state court system. 

No longer in Colorado are alleged victims of police unconstitutional conduct limited to bringing lawsuits in federal court pursuant to federal civil rights law. The new law creates a second legal liability avenue for alleged victims of police civil rights abuse to seek money damages and injunctive relief within the Colorado court system.

Abolition of Qualified Immunity

Section 13-21-131 (2)(b) of the new law states: “Qualified Immunity is not a defense to liability pursuant to this section.” Notwithstanding the abolition of qualified immunity, the law does provide valuable protection for law enforcement defendants. 

Section (4) states that a peace officer’s employer is required to indemnify the officer for any liability resulting from any judgment or settlement entered against the officer from a claim arising pursuant to the new law. However, the law contains an exception to the indemnity requirement that states: “If the peace officer’s employer determines that the officer did not act upon a good faith and reasonable belief that the action was lawful, then the peace officer is personally liable and shall not be indemnified … for five percent of the judgment or settlement or twenty-five thousand dollars, whichever is less.” 

The legislation thus creates a $25,000 personal liability ceiling for officers found liable for state constitutional violations.

One other provision of the statute requires mention. The law explicitly states, “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.” So apparently, at the discretion of the officer’s employer, indemnification of an officer is not mandated when the officer sued under this statute is also convicted of a crime arising out of the same subject matter as the suit.

what's next?

Forbes Magazine reports that “Colorado is the first state to enact legislation that bars qualified immunity as a defense to state constitutional claims.” [2]

Colorado legislators have created a way around the qualified immunity defense by establishing a new statutory remedy for alleged civil rights violations grounded in its state constitution. This permits civil rights litigants to bypass federal courts and the qualified immunity defense for officers created by the United States Supreme Court. 

On June 15, the Supreme Court declined to review eight lower federal appellate cases that contained qualified immunity issues. Passage of the new Colorado statute has no direct impact on federal lawsuits filed under federal civil rights laws. Federal lawsuits can still be filed in Colorado federal courts alleging federal civil rights violations, and police defendants will still be able to assert qualified immunity in its present form unless modified by the Supreme Court or the United States Congress. 

In my opinion, one thing is for certain: The Colorado approach to qualified immunity will be coming quickly to a state legislature and court system near you.

NEXT: Colorado law enforcement begin to implement sweeping police reform

References

1. State and local officers can be sued in federal court pursuant to 42 U.S.C. §1983 (The federal Civil Rights Act of 1871).  Federal officers can likewise be sued in federal court for civil rights violations under the so-called “Bivens” doctrine arising from a U.S. Supreme Court decision titled Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).

2. Sibilia N. Colorado Passes Landmark Law Against Qualified Immunity, Creates New Way to Protect Civil Rights. Forbes Magazine, June 21, 2020.

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