Colorado Police Officer’s Qualified Immunity – What Changed after Juneteenth?

In the wake of national protests over racial (in)equality and police brutality, on Friday Colorado became one of the first states to implement a wide-ranging police reform bill, coincidentally signed into law on Juneteenth, the day commemorating the emancipation of those enslaved in the United States. This bill, known as the Enhance Law Enforcement Integrity Act, makes it mandatory for all police officers to use body cameras in interactions with the public and requires those recordings to be made available whenever misconduct is alleged, makes it unlawful to use or threaten physical force except in specified situations, makes certain uses of force such as chokeholds impermissible, and removes Colorado state officer’s defense of qualified immunity. While many of these changes are overdue and straightforward, perhaps the most important of these—and least understood—is the change to qualified immunity.

For a brief history lesson, qualified immunity arose in the 1960’s as a response to the idea that police officers deserved some type of protection from the myriad lawsuits that they may be subject to as a consequence of doing their jobs. For example, if every person a police officer ever put into handcuffs who turned out to be not guilty could sue for assault and battery, no one would want to be a police officer. Similarly, it was reasoned that if the police were merely an extension of the state, which enjoys absolute immunity, the police officers should equally be immune when they are doing their jobs properly. Thus, federal courts created a concept known as ‘qualified immunity’ to determine whether a police officer could be liable of violating someone’s civil rights: first, did the police officer actually violate a person’s civil rights and, if so, then second, did the officer violate “clearly established statutory or constitutional rights of which a reasonable person would have known?” Ideally, this would make officers responsible for the egregious violations while being protected for the ‘innocent’ violations of which could not be avoided or which are so technical that the officer could not have been expected to know about it at the time.

Unfortunately, this policy did not function as it was intended. Courts began dismissing complaints brought against police officers over and over again on the basis that there was no “clearly established” rights being violated because there was no prior case to rely upon. In other words, because this was a new test and there were no prior cases applying this test, nothing was clearly established for which a police officer could be liable. This catch-22 turned what was supposed to be a qualified, or partial, immunity into nearly absolute immunity for any civil rights violations committed while in uniform. Such was the status quo for nearly the last half-century.

This is what Colorado’s new reform bill seeks to change. Yet, as qualified immunity is a federal concept Colorado cannot merely demolish or revoke it. Instead, Colorado created a separate state cause of action that allows citizens of Colorado to bring a civil action against a police officer for a violation of Colorado’s constitution. The Act additionally specifies that qualified immunity may not be a defense to such an action. What this all means is that Colorado state courts will no longer ask the question whether the civil rights violation was “clearly established.” In this manner, those wronged by Colorado police officers who would not have been able to obtain justice in federal court now have a means to have their voices heard in state court where qualified immunity will not be an available defense to the police officer.

Of note, this new Act does not place liability entirely on the individual police officer(s), but on their employers. A police officer may be required to pay no more than 25% or $25,000 of any judgment against him, whichever is less, and only if the officer “did not act upon a god faith and reasonable belief that the action was lawful.” In this manner, it appears the Act attempts to strike a balance between granting victims of police misconduct a means to seek compensation for their losses and to prevent discouraging people from pursuing careers as police officers.

While these new causes of action still remain untested and time will tell what additional requirements will be imposed on such cases, it should now be easier for victims of police misconduct in Colorado to obtain justice and seek redress than it has been in the last fifty years. If you believe that your civil rights have been violated in an interaction with Colorado police officers, you may be able to be compensated for your loss. Call Elevated Law today for a free consultation with an attorney experienced in police misconduct and civil rights.  

–By Tony Nasser, Esq., Elevated Law

Tony Nasser is an attorney and founder of Elevated Law, licensed to practice law in Colorado and California.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm’s clients or any affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.