Updated: Jan 8, 2021
The murder of yet another Black man by police – this time George Floyd – has mobilized not just the nation, but the entire world. Law enforcement violence against people of color is nothing new; it has plagued this country for centuries. And alarmingly, Colorado law enforcement is among the most brutal in the nation. See, e.g. Elise Schmelzer, We tracked every police shooting in Colorado last year. Here’s what we learned, The Denver Post, February 2, 2020; Corey Hutchins, MEDIA: Colorado police shoot people more than almost anywhere else—and local news orgs ask why, The Colorado Independent, February 7, 2020. Countless Colorado families have suffered devastating losses at the hands of brutal and racist law enforcement, and Colorado taxpayers have paid millions in excessive force verdicts and settlements.
The Law Enforcement Integrity Bill, SB20-217, championed by Colorado Rep. Leslie Herod, Rep. Serena Gonzales-Gutierrez, Sen. Leroy Garcia, and Sen. Rhonda Fields, and signed into law by Governor Polis on June 19, 2020, is a sweeping law that explicitly addresses Colorado’s own troubling history of brutality, racism, and lack of accountability, as exemplified in my own civil rights cases seeking justice for people murdered by Colorado law enforcement:
Mandates body-worn cameras, creates penalties for deactivation & tampering, and requires timely public disclosure of video. Body-worn cameras provide objective evidence of interactions with the public, benefitting both civilians and officers who follow the law. But some officers seek to avoid this accountability, like the Aurora police officers who tackled Elijah McClain, a Black, 23-year old massage therapist and pacifist – who was unarmed and had done nothing wrong – as he was walking home from the corner store last August. All three officers caused their body cameras to fall off, and when the cameras were later picked up by others, insisted that the cameras be turned off or moved away as they continued to brutalize Elijah McClain. SB20-217 requires that all officers have body-worn cameras and record interactions with members of the public. Failure to record permits a judge or jury to infer that the officer engaged in misconduct, and officers who don’t activate body cameras or tamper with them face penalties, including potential loss of certification to work in law enforcement.
Even where there is video of an officer involved killing, law enforcement hide behind the excuse of seemingly endless “investigations” to withhold video. In the case of Marvin Booker, a black, homeless street preacher killed by Denver Sheriffs, Denver refused to release the video of his murder for 10 months, leaving his family without answers and infuriating the community. When Denver eventually relented, it tried to force the Bookers to sign a non-disclosure agreement, and ultimately gave the Booker family just an hour notice before the video was on the news. SB20-217 prevents such opaque and callous practices by mandating timely public release of the video of any officer involved killing, with a 24-hour advance release to the victim’s family.
Reins in use of force. Last year, Colorado Springs police shot a young, black man named De’Von Bailey in the back as he was running away. Having seen countless examples of police abuse, it is not hard to understand why a young black man might get scared and run; this should not be a death sentence. SB20-217 prohibits law enforcement from using deadly force on a fleeing suspect who poses no immediate threat to the officer or others. SB20-217 also bans the chokeholds that have killed many civilians, including Elijah McClain and Marvin Booker.
More fundamentally, SB20-217 changes the use of force rubric to start from the premise that force must be avoided unless absolutely necessary, rather than the current assumption that force will be used, and setting forth parameters of what kind. It also strengthens the criminal legal standard to hold police officers criminally accountable for using excessive force.
Requires Officers to Intervene to Stop Excessive Force. When three Aurora Police tackled Elijah McClain and inflicted multiple kinds of force on him for 15 minutes, multiple others stood by watching, but never stepped in to stop the torture. As Elijah lay on the ground vomiting, one joked about not letting the vomit get on him, and another threatened to bring in a dog to bite Elijah, who apparently wasn’t still enough as he labored to breathe under the weight of multiple large officers holding him down in a pool of vomit. Even the sergeant, who later admitted that he was increasingly concerned about Elijah’s medical state, never told his subordinate officers to stop using force.
Michael Marshall, a peaceful Black man with mental health issues who was killed by Denver Sheriffs, could also have been saved if any one of the several sheriffs standing by had intervened. Although Denver’s internal investigation concluded that the captain on scene stood leaning against the wall in light conversation as Michael Marshall was crushed to the floor by multiple officers as he aspirated on his own vomit, his punishment was a mere 10-day suspension.
SB20-217 creates an explicit duty for officers to intervene and stop excessive force, prohibits retaliation against officers who intervene, and makes failure to intervene by an officer a criminal offense and a basis for decertification.
Gets rid of bad officers and prevents them from being hired in other departments. In 2014, a federal jury found that five Denver sheriffs who killed Marvin Booker inflicted excessive force with such reckless disregard of his federally protected civil rights as to warrant an award of millions of dollars in punitive damages. Unbeknownst to the jurors, one of those Denver sheriffs had been instrumental in causing the in-custody death Emily Rae Rice several years earlier, ending a young woman’s life and costing taxpayers millions of dollars. She didn’t get fired then, and she didn’t get fired for killing Marvin Booker, either. She left and went to work for the Colorado State Patrol. The others who killed Marvin Booker are still working as Denver sheriffs, including one who was recently caught drag racing with a van full of handcuffed detainees.
Denver didn’t fire the sheriffs who killed Michael Marshall either. The worst actors were sanctioned with a few weeks unpaid leave, and one particularly terrible sheriff was actually nominated for a so-called “lifesaving” award for resuscitating Mr. Marshall so he remained on life support for several days before he finally died. The one officer who did leave the Denver Sheriffs Department resigned while under investigation, and was then hired by Denver Police Department. These examples are not at all unique; indeed, none of the officers in any of the cases I describe was fired.
SB20-217 eliminates bad officers by revoking their certification when a court or internal investigation finds that they used unlawful force or are convicted of a violent offense, tampered with body camera footage to cover up misconduct, or failed to intervene to stop unlawful use of force that results in serious bodily injury or death. Those found untruthful, terminated for cause, or decertified will be listed in a publicly available statewide database to prevent them from moving from one department to another, where they continue to do predictable harm.
Allows justice for victims of police violence by ending qualified immunity. Until now, it has been impossible enforce Colorado’s constitutional protections, and officers have persistently avoided liability for claims brought under federal law with the shield of qualified immunity. SB20-217 allows victims to bring claims for the violation of their Colorado constitutional rights and eliminates unfair protections that have historically allowed officers to get away with bad conduct and deny justice to victims and their families.
Protects protesters from police use of tear gas and projectiles. According to a federal judge, “the Denver Police Department has failed in its duty to police its own” by allowing police to violate the constitutional rights of protesters. SB20-217 prohibits all Colorado police from shooting rubber bullets indiscriminately into a crowd or targeting a person’s head, torso, or back, and prohibits the use of tear gas without first warning the crowd and giving people time and a route to disperse.
Targets racial profiling and requires public reporting on policing. It is well documented police stop people of color more often and inflict more force, as compared with white civilians. Aurora police stopped Elijah McClain after a 9-1-1 call reporting that he was acting strange, because he was wearing a mask and swinging his arms as he listened to music on his walk home from the corner store with some iced tea. The 9-1-1 caller made clear that he did not suspect criminal activity, no one was in danger, and Elijah didn’t have a weapon, but police stopped and tackled Elijah without reasonable suspicion or any other legal justification. Expert statistical analysis revealed that in 2017 Aurora Police Department’s (APD) Use Of Force per person was 5.5 times greater against African Americans than other races – a truly alarming disparity. APD’s tendency to respond to minor or non-existent infractions committed by African Americans with dangerous, excessive force has been well-documented. Sadly, Aurora is not unique.
In order to combat the implicit – or explicit – racial bias that is so often the basis police contacts, SB20-217 requires that officers provide a legal justification for stopping members of the public, and that all departments track and publicly report data on all stops, searches, unholstering or discharging weapons, forced entries into homes, and uses of force – including the demographic information of the civilians they target.
Allows Attorney General lawsuits against bad departments. As is apparent from the discussion above – and as will become even more obvious through the mandatory data collection required by this bill – certain departments have persistent, deep rooted histories of brutality and discrimination. SB20-217 authorizes the Attorney General to bring lawsuits to force bad departments to change and to bring criminal charges against bad officers.
I am not naïve enough to believe that passing a new law will fix a broken system rooted in a centuries-old tradition of racism and brutality. Ultimately, it is clear that police are not appropriate first responders for many (or even most) calls, including mental and physical health crises, homelessness, and 9-1-1 calls reporting black men who are just going about their daily lives. But I do believe that laws can change behavior, even while individuals and systems are still struggling to acknowledge how they have abused their supremacy and power, and while Colorado communities work toward reimagining the role of police. For the families of those killed by enforcement, these changes come too late. But when the delegation of the Colorado House stood up before their final vote, and turned around to face Elijah’s mom, Sheneen McClain, with their hand on their hearts and tears in their eyes, she knew that her son’s legacy might save someone else’s. NOTE: This piece was originally published as a guest commentary in The Denver Post on June 25, 2020.
Mari Newman is a partner at Killmer, Lane & Newman, LLP. She is a civil rights and employment law attorney who has dedicated her entire career to advocating on behalf of the underdog and disenfranchised against the entrenched power of government and corporations. She has received numerous awards for her work.