A first-in-the-nation Colorado law aimed at police accountability has activists celebrating and officers worrying.
July 17, 2020I n Loveland, Colorado —the nation’s self-proclaimed “Sweetheart City,” about an hour’s drive north of Denver—a young police officer paused earlier this month as he was arresting a pregnant woman who had outstanding warrants. Should he handcuff her, the officer asked his supervisors, or, under a new Colorado policing law, would that now be considered excessive force?
To officers like Rob Pride, a Loveland patrol sergeant who relayed that example to me last week, that kind of hesitation is the most worrisome part of the first-in-the-nation police-reform law that Colorado enacted on June 13. To the bill’s supporters, however, the young officer’s pause is precisely the goal.
Barely a month has passed since Colorado legislators raced to approve the Enhance Law Enforcement Integrity Act as protesters marched and chanted outside the state capitol in Denver. The demonstrators demanded justice for George Floyd, a 46-year-old Black man killed by police in Minneapolis, and for Elijah McClain, a 23-year-old Black man whose death at the hands of police nine months earlier in a Denver suburb attracted no national outcry at the time, but has received fresh attention this summer. Many of the new law’s provisions—banning choke holds, overhauling the use of force, and significantly expanding the use of body cameras—won’t formally take effect for months, or even years. But policing in Colorado is already changing.
The legislation is the first in the country that allows victims of police violence to sue officers under state law. “I’m worried for my guys,” Pride, a national trustee of Colorado’s Fraternal Order of Police, told me in a phone interview. They’ve been trained not to hesitate: “When we hesitate,” he said, “there’s a good chance that we don’t go home at the end of the day.” But, Pride suggested, if they’re saddled with the fear of potentially losing their life savings, in addition to their job, how can they not?
The authors of the new law in Colorado say this reaction from officers on the street—call it an extra note of caution or restraint, if not hesitation—is healthy. What if, for example, the officers who confronted Elijah McClain in Aurora had hesitated before they placed him in a carotid hold and cut off the blood flow to his brain, or before the paramedics they called to the scene injected him with the sedative ketamine, after which he went into cardiac arrest and later died?
“If officers are rethinking [their career] because of a law of integrity and accountability, then they shouldn’t be in the profession as a police officer,” Colorado State Representative Leslie Herod, who wrote the new law, told me. “Their duty is to serve and protect, not kill. It is very important that law-enforcement officers think before they act.”
Herod first tried to overhaul policing laws earlier this year, in response to McClain’s death. She initially wrote a narrower bill to ban choke holds and limit when police could fire on fleeing suspects, but Democratic leaders told her she’d have to try again next year, once she could gather some support from law enforcement. In fact, it was only because of the coronavirus pandemic that the Colorado legislature—which had postponed work from earlier in the spring—was even in session when the George Floyd protests erupted in Denver at the end of May.
As it happened, Herod, a Democrat and a Black woman, had joined protesters outside the state capitol when a gunman fired several shots into the crowd. State patrol officers rushed her back inside to safety, she told me in a phone interview last week. On a call later with fellow Democrats, her colleagues offered support and asked how they could help. Frustrated, Herod replied: “I don’t want a card. I don’t want any niceties. I want a bill, and I need your support to get a bill introduced that addresses these concerns.”
Democratic leaders allowed Herod to write a new police-reform bill, and, she said, gave her “carte blanche” to make it as broad as she wanted. In another big shift, the state Senate president, Leroy Garcia, agreed to work with Herod and move the proposal, which became known as Senate Bill 217, through the legislature’s more closely divided upper chamber, where law-enforcement groups had blocked previous police-reform measures in the past.
Lawmakers were working under a tight time frame; the legislative session that began after Memorial Day was scheduled to last just three weeks. All the while, the protests continued outside the capitol. “Every day we would go into the capitol, and by about noon, we would start to hear chants from the crowd,” Herod recalled. “Pass 217! I can’t breathe. [Then] eight minutes, forty-six seconds of silence.
“That gets in people’s minds,” she told me.
In Colorado, police unions have fewer collective-bargaining rights and, as a result, less political clout than they do in places like New York City, where the unions have seemingly had veto power over even the most progressive mayors. Outside liberal cities like Denver and Boulder, Colorado is more rural and more red politically, with a large evangelical population and a big military presence connected to the Air Force Academy in Colorado Springs. Still, the state has trended bluer in the past decade, and Democrats now control the governor’s mansion and both state legislative chambers.
Law-enforcement groups like Colorado’s Fraternal Order of Police and the County Sheriffs of Colorado saw that a bill was going to pass. So instead of opposing it outright, they stayed officially neutral and pushed for changes. “Some form of this bill was going to pass,” Pride told me, “and we just wanted to be a part of that discussion and be at the table, since our members are going to be the ones affected by it.”
The law contained a raft of changes that reformers have long sought, but the most significant provision is one that no state has successfully passed before, and the change that cops fear most: Police officers can now be sued, they can no longer claim “qualified immunity” from civil damages if they knowingly violate the law on the job, and they could personally be on the hook for up to $25,000 in penalties stemming from a lawsuit. Colorado’s removal of this protection could give momentum to similar legislative efforts across the country, such as in New York and Massachusetts, and at the federal level.
The law-enforcement groups who participated in negotiations did win some concessions. The personal-liability cap for officers was lowered from $100,000 to $25,000, making the “qualified immunity” provision a bit easier for law enforcement to swallow. Data-collection requirements aimed at eliminating racial profiling were revised, and rules governing the use of body cameras were tweaked to address privacy concerns. Reform advocates dropped demands for an independent oversight board and a ban on the sale of military-style equipment to police departments. But the core provisions of the proposal stayed in. “The bill was never watered down,” Denise Maes, the public-policy director for Colorado’s chapter of the American Civil Liberties Union, told me.
Pride said that just in the few weeks since the bill was signed, on June 19, several officers have already put in for early retirement. “Officers are very afraid that even if they are out here trying to do the right thing, making the best decision they can with the information they are presented at the time, that they are now open to personal liability and it’s opening their families up to personal liability,” he said. “We’ll never agree with that piece of the bill.”
In Douglas County, Sheriff Tony Spurlock, who has worked in law enforcement for nearly four decades and is a former director of the state sheriff’s association, told me the worries extended to younger cops. They include his 27-year-old son, an officer in Douglas who recently confided to him that the new law had caused him to rethink a career in law enforcement. “From his perspective, it’s like, Well, wait a minute: If I make a mistake, then I’m going to be held liable?” he said.
Pride and Spurlock worry about retention and recruitment—applications for jobs in law enforcement have been dropping nationwide since long before Floyd’s death brought even more negative attention to policing. Yet they’re also concerned about the law’s subtler, but potentially more dangerous, impact. “There are some things in this bill that are going to cause hesitation,” Pride said.
Despite their opposition to the loss of qualified immunity and other aspects of the bill, both Pride and Spurlock told me they thought the law would do a lot of good. Law-enforcement groups wanted the ability to more easily banish “bad cops,” Pride said, and they supported efforts to require officers to intervene when they see a colleague using excessive force, as the officers who stood idly by in the Floyd killing did not do. “We are about being professional,” Spurlock told me. “We are about being ethical and supporting our communities. And we’re also about getting rid of people that don’t want to conform to these high standards.”
Politically, law-enforcement groups have to balance their role in protecting the interests of their members with a desire to improve the public’s image of the police. Pride said incidents like the Floyd murder and McClain’s killing have made it harder for police to do their job well. “There is a mutual interest in getting bad cops out of our profession,” he told me. “We cannot effectively police our communities unless we have their trust, and incidents like that just destroy that and take us years to rebuild.”
Herod’s work isn’t done, either. Acknowledging how fast the law came together, she said lawmakers would tweak its language next year if needed.
I asked if she believed that Colorado’s law-enforcement agencies would implement the law in the spirit in which lawmakers intended. “I feel conflicted about that,” she replied. She noted that one small town had already passed a resolution aimed at shielding their officers from ever being personally liable for their actions on the job. “Resistance to the bill does not make it not the law, and people will be held accountable to the standards in 217,” Herod said. “I know that there are bad actors and I know that there are departments that want to shield their officers or continue with practices that are not in line with 217. For them I say, we will be watching.”
Other states are watching, too. New York enacted police reforms following the George Floyd protests, including banning choke holds. But it has not opened rank-and-file officers to civil penalties for violence on the job. A bill advancing in Massachusetts would also ban choke holds and limit officers’ legal protections. Advocates and lawmakers there and across the country will surely draw lessons from Colorado, both in the cultural shift already under way, and in the months ahead. They’ll look to see how agencies and officers alike react to this new accountability, this incentive for restraint—and whether the changes written into law are carried out in practice as well.