Policing the police: A controversial bill intended to hold law enforcement accountable could have unintended consequences
STEAMBOAT SPRINGS — As protests across the nation demand sweeping reforms in law enforcement, Colorado lawmakers are making their own attempt to fix a system many claim has been broken for decades.
On Thursday, the state legislature began fast-tracking a bill, SB20-217, known as the Law Enforcement Integrity and Accountability Act. Its proponents see it as a way to address problems in criminal justice and hold officers more accountable for misconduct.
Its critics, from law enforcement officials to public prosecutors, agree with the intent of the bill but raise serious concerns over unintended consequences it could have, not only for those enforcing the law but for the people the law is meant to protect.
Lawmakers developed the bill following more than a week of protests that sparked after George Floyd, a black man from Minneapolis, died while in police custody. Videos from bystanders surfaced of a white police officer pressing his knee against Floyd’s neck for 8 minutes and 46 seconds, a time that has become a poignant symbol at rallies and at Floyd’s own memorial.
The officer, Derek Chauvin, initially was charged with third-degree murder and second-degree manslaughter. On Wednesday, prosecutors charged Chauvin with the more serious crime of second-degree murder. His bail has been set at $1 million, according to news reports.
Three other officers at the scene, J. Alexander Kueng, Thomas Lane and Tou Thao, have been charged with aiding and abetting second-degree murder. All four of the men have been fired from the Minneapolis Police Department.
While peace officers rarely are convicted over their use of lethal force, Minnesota Attorney General Keith Ellison said he is confident the facts of this particular case support the charges against the men.
“George Floyd mattered. He was loved. His family was important. His life had value,” Ellison said in an announcement of the new charges against Chauvin on Wednesday. “We will seek justice for him and for you, and we will find it.”
But the protests are not just about demanding justice for Floyd. The rallies that originally erupted in the wake of his death have grown more organized, calling for fundamental changes to biased policing that disproportionately kill and incarcerate people of color.
Since 2015, the Washington Post has maintained a database to track and document every fatal shooting in the United States by a police officer in the line of duty. According to that database, police kill black Americans at a rate more than double that of white Americans, despite black people accounting for just 13% of the country’s population. Findings also show that police shoot and kill Hispanic Americans at a disproportionate rate.
This is evidence of widespread, systemic biases in how officers enforce the law. Matt Karzen, district attorney for the 14th Judicial District, which includes Routt County, described a culture among certain law enforcement agencies that creates an “us versus them” mentality. Many officers are taught to treat all citizens as potential threats and to be prepared, even in nonviolent situations, to use lethal force.
“For domestic law enforcement function in America in 2020, that is a recipe for disaster,” Karzen said.
Holding police accountable
In light of these issues, Colorado’s Law Enforcement Integrity and Accountability Act seeks sweeping reforms aimed at ridding agencies of bad cops and increasing public transparency.
Among its many provisions would be a requirement for all peace officers to wear body cameras while on duty. Except in certain circumstances, law enforcement must make public all recordings of an incident within 14 days of the incident occurring.
Officers could use deadly force to arrest someone or to prevent a suspect from fleeing only if that person is using a deadly weapon or likely to cause imminent danger.
The bill establishes a database of police misconduct and requires agencies to compile annual reports to the attorney general. The reports would include information on every time an officer used force that resulted in death or serious bodily injury, all instances when an officer resigned while under investigation for violating department policy, all data relating to stops conducted by peace officers and every instance when an officer conducted an unannounced entry.
Viewpoints of Routt County sheriff
On these points, Routt County Sheriff Garrett Wiggins generally agrees. His deputies already use body cameras, and he said a database on officers’ misconduct would be a helpful tool to enforce policies and prevent agencies from hiring people with a history of violations.
As president of the County Sheriffs of Colorado, Wiggins sees a need for reform and supports the intent of the bill.
“I do believe there are always ways we can improve how we interact with the public and our policies and procedures,” he said.
But Wiggins has his concerns about the bill’s language and some provisions he said could make it harder for officers to do their primary job of protecting the public.
With regards to the restrictions against using deadly force, the sheriff worried that it could cause a delay in an officer’s response who is trying to assess if a suspect has a weapon or could cause imminent danger. Those moments of hesitation could let a suspect flee or cause harm to civilians and officers.
“Law enforcement officers have to make millisecond-split decisions. Until you’ve been in that situation, it’s really hard to understand what law enforcement officers go through,” Wiggins said.
His other major disagreement is over a section of the bill that would strip peace officers of qualified immunity. This protection has been in place to safeguard officers from frivolous lawsuits alleging they violated a plaintiff’s rights.
Currently, it is not enough for an officer to violate someone’s rights for that person to file a lawsuit. A plaintiff has to prove an officer violated a “clearly established” law, such as the current case against the officers involved in Floyd’s death.
Under the original version of the bill, the officer would have no immunity to these types of lawsuits and would be required to pay 5% or up to $100,000, whichever is less.
Recruiting new peace officers has been a challenge in recent years, Wiggins said. Agencies across the country are having trouble keeping and hiring positions. If officers lose their qualified immunity and are liable for such hefty lawsuits, Wiggins worried it could cause a mass exodus among law enforcement officials.
Overall, he wants lawmakers to take more time reviewing the bill and considering its effects rather than let heightened emotions lead to knee-jerk action.
Others support the elimination of qualified immunity. The American Civil Liberties Union of Colorado started a petition to garner support for the bill. The stock message that the ACLU asks petitioners to sign and send to state senators describes qualified immunity as a legal doctrine that “prevents the community from holding police responsible when they violate laws, policies, and community trust.” It states that people of color should not have to live in constant fear of the officials meant to protect them.
Viewpoints from Routt County’s district attorney
An amendment to the bill would protect officers from lawsuits as long as they believed their actions were lawful and that belief was “objectively reasonable.” As Karzen explained, this means an officer would remain immune to a lawsuit if he or she could prove that his or her actions were appropriate and a reasonable person would agree.
This amendment to the bill gives Karzen more confidence that law enforcement would be held to a higher standard while continuing to protect peace officers that act in good faith. Still, it opens up officers to more litigation and punishment, even in cases where lethal force is not used.
“Without (the amendment), the job of law enforcement would have been effectively impossible,” Karzen said in an email.
The good-faith approach has legal precedent among civil rights cases, Karzen explained. He recalled a case from Georgia in which he represented a client who argued the local sheriff had violated the client’s Fourth Amendment right during a search of his home without a warrant. Karzen was able to prove that the sheriff did not have an objectively reasonable cause to search his client’s home, awarding the client an $85,000 jury verdict.
The district attorney has other concerns.
The bill, as currently written, only applies to local and county peace officers — not state law enforcement, such as Colorado State Patrol or the Colorado Bureau of Investigation. That exclusion confuses Karzen, who does not understand why one type of officer should be held more accountable than another.
“It shows (certain state legislators) will go a long way to protect themselves, but not cities and counties,” Karzen said, adding that they effectively customized the legislation to protect their interests, namely the state budget.
The district attorney worried the rules requiring the release of body camera footage could harm due process in criminal trials by publicizing sensitive information, such as confessions, before a judge has a chance to review them. The footage also could include information on juvenile suspects or of victims who do not want their interviews to be public, such as survivors of sexual assault. While the bill allows the redaction of nudity or “highly personal circumstances,” it does not clearly define what circumstances would qualify.
While Karzen is supportive of the bill’s intent, these and other lingering issues might not survive constitutional challenges, he said.
Next steps of the bill
The Law Enforcement Integrity and Accountability Act has only just begun its journey through the state legislature, and more amendments are likely in the days ahead.
Rep. Dylan Roberts, a Democrat who represents Routt and Eagle counties, signed on as a co-sponsor of the bill. Two of the bill’s original sponsors, Sens. Leroy Garcia and Rhona Fields, did not respond to requests for comment.
“I agree that the legislation should be proposed, and we need to debate it here,” Roberts said, adding that the protests make it particularly timely.
He plans to continue conversations with colleagues and stakeholders, from law enforcement officials to civil rights groups, on making further changes. Many of the provisions are not new concepts, Roberts said, and have long been priorities for him and his colleagues.
“There may be a perception that this bill is moving fast, but these are conversations we have been having for years,” Roberts said.
As a lawmaker, he wants to use his position of power to create more a more equitable criminal justice system that protects, not endangers, Coloradans. The issues will not be solved overnight, but Roberts believes the state cannot wait any longer to seek substantial change.
“Given the national unrest and many events that have led us to this point, I think it has called us as legislators to action to get something done,” he said.
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