Brothers and Sisters,
This year has been incredibly difficult as a Peace Officer. Recent events in Minnesota may have turned it into the most negative historical year any of us will experience in our careers. Some of you may be feeling lost while we traverse the political landscape and community backlash a horrific use of force tragedy has created. Reform will happen, it should happen.
As each of you is aware a hastily written bill has been introduced into the Colorado General Assembly proposing sweeping changes that significantly impact our profession and the public’s safety. And although the sponsors of this bill may have had well-meaning intentions, there will clearly be unintended consequences if it becomes law in its current form.
Since receiving the first draft of this bill on Tuesday, June 2nd the Colorado FOP has been working around the clock with our coalition of Colorado law enforcement partners developing strategies to fight this legislation and hopefully mitigate through amendments the damage this bill would bring to our members, cities & counties, and the general public. Those partners include both the Chiefs and Sheriffs Associations, CML and CCI, the District Attorney’s association, and the Attorney General’s office.
The bill was introduced into the Colorado Senate as Senate Bill 20-217 which aims to fast track sweeping reform in Colorado; however, it appears to have been drafted without input from the industry practitioners, experts, and theorists. While many of us may agree with certain portions of this Senate Bill 20-217, and we all agree the criminal justice system could be improve, this is not the appropriate response.
The first hearing on this bill was held on Thursday, June 4th and the Colorado FOP along with others from the law enforcement community and some everyday citizens provided testimony to the Senate State Affairs Committee expressing our concerns about the legislation and the problems it presents in its current form.
In the current form, the bill includes concerning language that does not account for the split-second decisions we all are charged with making on a daily basis. Furthermore, it does not appear to account for basic action/reaction science and would prefer Peace Officers shift priorities from protecting life to protecting liability.
An example would be the proposed statute 24-31-902 which states all law enforcement agencies must issue body worn cameras and those cameras must be activated in every public interaction regardless of context. With appropriate funding body cameras would be a reasonable effort to increase transparency with the public, however, the consequences of not complying with the statute are not reasonable.
In section (1)(a)(III) it states “THERE IS A REBUTTABLE PRESUMPTION IN ANY INVESTIGATION AND LEGAL PROCEEDING, WHETHER CRIMINAL OR CIVIL, THAT THE MISSING FOOTAGE WOULD HAVE REFLECTED MISCONDUCT BY THE PEACE OFFICER” (page 4, line 8 - 11 of SB20-217 as of 06/04/2020).
The obvious concern with this is the physiological response based on human factors to rapidly evolving situations. In short, the act of initiating a body camera may be physiologically overruled by the individual response to an immediate threat.
In addition, body cameras have limitations. Battery life, malfunction, and inadvertent deactivation or destruction during an encounter. To allow civil suits the privilege of a “rebuttable presumption “for missing footage as an indication of misconduct is an attack on Peace Officer integrity and the profession. Amended language to mandate missing footage be reasonably justified would be more appropriate.
Proposed statute 13-21-131 eliminates qualified immunity and the good faith exception to civil liability. Further, it holds Peace Officers personally financially responsible for five percent, up to one hundred thousand dollars, for any civil suit involving the deprivation of individual rights afforded by the State Bill of Rights.
Additionally, neither a public entity (employer) or insurance carrier may indemnify a Peace Officer for this financial responsibility. To my knowledge, no other profession has this level of restriction in their response to civil liability. This level of punitive concern has a high likelihood of creating hesitation and uncertainty that can have fatal consequences for any Peace Officer in the performance of their duties.
Amended language to allow Peace Officers to retain their qualified immunity and good faith exception while holding Peace Officers who clearly act without good faith accountable would be more appropriate.
Further, allowing Peace Officers to carry liability insurance to protect the financial welfare of their family should be allowed in a similar manner as it is allowed for medical malpractice and many other professional fields.
In addition, this bill could be expanded to address other root issues not highlighted in the current text. Additional staffing, multiple officer response, increased training budgets, and mandated realistic training programs would all go a long way in improving the response to each call. Communities across the nation agree with the need to improve Peace Officer performance.
The Senate State Affairs Committee passed the bill on a 3 to 2 vote on party lines. The bill will next be heard in the Senate Appropriations Committee where it is expected to pass and then will move to the Senate floor for debate and vote. Once up for floor debate the bill can be amended, and we will be working hard on offering amendments to the bill. If the bill, amended or not, passes the Senate it will then be sent to the Colorado House of Representatives and the same process will begin there.
The primary goal of the Colorado FOP and its coalition of law enforcement partners will continue to urge the Colorado General Assembly to consider moving this bill to the 2021 legislative session to allow the Law Enforcement profession an opportunity to stand in solidarity with the community for progressive and lasting change. If this is not possible then we will be working very hard with the Colorado General Assembly to consider a significant redaction and amended version of this bill move forward in 2020 while other issues (such as the concerns with statute 13-21-131 and 24-31-902) be addressed again in 2021 with more foresight and discussion.
The Colorado Fraternal Order of Police needs you to be the voice of Colorado Law Enforcement during these trying times. We need you, your family members, and your friends to immediately reach out to both your State Representative and State Senator for your district via phone call and email expressing your individual concerns with this bill. We have provided a link below that lists every State Senator and State Representative’s contact information for you to use.
Now is not the time to sit idle or turn to social media to argue opinion in the public domain. Now is the time to offer logical reasoning to the political domain so we can prevent a bill that is being fast tracked against the best interest of Peace Officers and the Citizens they serve.
Stay safe and continue to have educated conversations about progress and evolution with your family, friends, and community. Avoid the emotional response and maintain a unified effort during the next few weeks.
Front Range FOP Lodge 62 President Kyle Cooksey contributed a large portion of this article and we thank him for his work on this.