By Elise Schmelzer
The Denver Post
DENVER — Protesters demanded changes to policing. State lawmakers ordered it. Now Colorado law enforcement must implement the sweeping changes amid a global pandemic that has crippled budgets while also quelling fears amid rank-and-file officers about their new liability.
And there are deadlines for getting it done.
Colorado law enforcement spent the last week figuring out new training procedures, data collection tools and, for some departments, how to afford the hundreds of body cameras required by the state’s new laws. The laws will not change the bulk of officers’ day-to-day work because they mostly address how and when they can use force, especially when it is lethal. In the coming months, though, the public will know more about the work police officers do because of added transparency the law puts in place. And police officers must accept there are harsher repercussions for those who use excessive force in the line of duty.
“I think this is the start of a cultural change for law enforcement in Colorado and across the country,” said Rob Pride, national trustee for Colorado’s Fraternal Order of Police union and a sergeant at the Loveland Police Department. “I think no matter what side of the discussion you’re on, we all have to agree that change is afoot.”
The vast majority of Colorado’s law enforcement leaders applaud the changes, though some of the rank and file are worried about a section of the legislation that says they could be personally liable in cases of egregious force.
The bill signed into law Friday by Gov. Jared Polis — the first of its kind in the country — is one of several sweeping changes made in Colorado in the past month as a result of protests and a resurgent civil rights movement. Multiple major city police departments swiftly adopted substantial changes to their use of force policy. The Denver Public Schools Board voted to phase out its contract that puts police in schools. A Denver neighborhood decided to change its name.
And more change is on its way as public safety leaders set their sights on the broader criminal justice system.
“This bill is the first step of necessary change,” said Gary Creager, Broomfield police chief and president of the Colorado Association of Chiefs of Police. “Now we have to focus on the how.”
Training and new liability
Implementing some sections of the law will be straightforward as the changes codify policies that many, but not all, departments had on the books for years, such as officers’ responsibility to stop each other from wrongdoing and the ban on chokeholds, Creager said.
But one of the most difficult parts of implementation will be developing a use-of-force training curriculum, finding instructors and conducting training before a Sept. 1 deadline set by the legislature. Getting the training done will be a scramble for many departments, Pride said, especially since coronavirus prevention prohibits the gathering of large groups of people.
“Training equals money,” Pride said. “And people right now are already reeling with their budgets.”
One of the changes to use of force requirements is that officers are required to give a warning, when possible, before using deadly force. Enforcing that law could be tricky, however, because it’s hard to reconstruct every aspect of a situation to see if the officer could have given a warning, Boulder District Attorney Michael Dougherty said.
Another of the law’s biggest changes is how it alters qualified immunity for police. Under Colorado’s new law, police officers and deputies are responsible for 5% of the costs of the damages, up to $25,000, if the officer’s employer finds the officer “did not act upon a good faith and reasonable belief that the action was lawful.” If the cop can’t pay the sum, however, insurance or an employer will be on the hook.
“We have some younger officers in my own agency who talk about moving to another state so they can live out their dream of being a police officer elsewhere,” Pride said. “Many of them are feeling like it’s a risk for them to stay on the force.”
But union and agency leaders believe officers’ fear of financial ruin can be quelled with more accurate information.
“If you follow the policy and follow the law, that section of the law is never going to affect you,” said Douglas County Sheriff Tony Spurlock, past president of the County Sheriffs of Colorado.
The state Fraternal Order of Police is working to create a plan or fund that would help protect officers, Pride said.
It remains unclear how the law will affect retention and recruitment. Many law enforcement agencies are struggling to remain fully staffed, Spurlock said.
“I don’t think the bill is going to be the driving source of why we lose a lot of police officers,” he said. “I think it’s going to be more about the way people think about them and treat them.”
Body cameras and data
Other major sections of the law deal with collecting more data on who police stop and who they use force against. It also requires statewide use of body cameras and sets rules on when footage must be made public.
Departments have until 2023 to buy the equipment for all their public-facing officers and implement policy regarding their use. The law’s fiscal note estimates departments would pay approximately $2,250 for each camera and an additional $1,200 a year, per camera, to store data.
“For an agency requiring 100 cameras, first-year costs would total $345,000 and second and future year costs would be $120,000,” the fiscal note states.
The difficulty of implementing new data collection requirements for depends on the size of the department.
The 29 officers of the Steamboat Springs Police Department will be manually entering the data into an Excel spreadsheet until the agency can figure out a solution with their technology provider, Chief Cory Christensen said.
Making that data collection change in larger departments is more complicated. The traffic unit of the Douglas County Sheriff’s Department makes about 20,000 stops a year, Spurlock said.
“That’s a lot,” Spurlock said. “That’s not just done with a pencil and an eraser and a Big Chief pad. We have to change our technology.”
The Denver Police Department’s attempt at racial data collection illustrates how complex it can be. The department spent two years developing a pilot program after years of criticism that officers were profiling black and brown drivers, and all Denver police officers have been recording demographic data on their discretionary contacts since January 2019
That data is being analyzed by the Center for Policing Equity and a report has not yet been issued. There is no timetable for when a report analyzing the data will be released, Denver Public Safety records analyst Andrea Webber said in an email.
Broader power for the Colorado Attorney General
In the wake of the killing of De’Von Bailey by Colorado Springs police officers, people called for the state’s attorney general to investigate. Although the new police law still would not allow the office to look into an individual case, the state’s top lawyer can sue agencies with a pattern of misconduct.
Colorado Attorney General Phil Weiser said he is still looking at how to handle that responsibility. The office’s Special Prosecutions Unit, which works complex investigations such as tax fraud, will handle the cases, he said.
Weiser said he didn’t know what kind of evidence he would need to determine if a department was routinely abusing its powers, though he pointed to the Ferguson Police Department as an example of an agency that needed to be investigated. The U.S. Department of Justice investigated the Missouri agency after the killing of Michael Brown and found a pattern of unconstitutional policing.
The new law also mandates the Colorado Peace Officer Standards and Training Board, overseen by Weiser’s office, create a database of all officers who have lost their certification because they lied or were fired for cause. The database is something Weiser said he’s wanted since he took office.
“I’m a big believer in that sunlight is one of the best disinfectants,” Weiser said.
The measure expands on a law passed in 2019 that mandates that officers caught lying must be decertified by the state’s Peace Officer Standards and Training Board. So far, no officers have been decertified under that law, said Lawrence Pacheco, the attorney general’s spokesman.
“What we’re doing now may not be enough”
Even with all the new requirements, more change is likely imminent.
Weiser said he is working with the POST board to reconfigure what are considered core competencies for police officers. He also plans to announce changes related to police in schools.
“If all you have is a hammer, everything looks like a nail,” Weiser said. “And some of our school resource officers are very proactive about citing teenagers.”
Creager, the Broomfield police chief and president of the chief’s association, said he is intrigued by the movement to defund police.
“When we say defund, or shifting resources to other places, I’m fascinated by that,” Creager said. “What that’s going to look like, I don’t know, but I think there’s value in that conversation.”
Officers’ roles and responsibilities have expanded over the last decades and Creager said that while officers can be trained on a specific topic, like mental illness, there’s only so much they can do.
“There was a lot of change that came after Rodney King, but not enough,” Creager said. “There were a lot of changes that came after Ferguson, but not enough. If history tells us anything, what we’re doing now may not be enough so we have to be open to that.”
Here are some of the major changes included in the 25-page law:
- Body cameras: Nearly every public-facing officer in the state will have to use body cameras by July 1, 2023, and officers could face charges for tampering or purposely failing to activate their cameras. Footage will be required to be released within 21 days after an allegation of misconduct, or within 45 days if the release could jeopardize a criminal investigation.
- Use of force: Effective immediately, police are banned from using chokeholds and carotid control holds. Effective Sept. 1, officers can only use force if absolutely necessary and deadly force can’t be used against someone for a minor or nonviolent offense. Officers can only use deadly force against someone fleeing from police if they pose an immediate risk to the officer or others.
- Failure to intervene: An officer who fails to try to stop another from using excessive force could face charges.
- Fired cops: Officers who plead guilty to or are convicted of an inappropriate use of force, failing to intervene, or found civilly liable for excessive force or failure to intervene will lose their certification permanently. The POST board will create a database of decertified, fired and lying officers beginning Jan. 1, 2022.
- Qualified immunity: People who allege civil rights violations will be able to sue officers in their individual capacities. Officers determined not to have acted in good faith or with a reasonable belief that what they did was legal can be held personally liable for 5% of a judgment or settlement, up to $25,000.
- Police prosecutions: The state attorney general has the authority to prosecute persistently bad departments and officers.
- Protester protections: Officers are prohibited from shooting rubber bullets indiscriminately into a crowd or targeting someone’s head, torso or back. It also prevents officers from using tear gas before announcing it and giving time to for people to disperse.
- Data tracking: Law enforcement agencies will have to send the state data, including demographic information, on their use of force resulting in serious injury or death as well as stops, unannounced entries and use of firearms.
- Grand jury reports: A grand jury must issue a report if the group declines to bring charges against an officer for lethal force.
Additional reporting contributed by Saja Hindi.