As we await the verdict, these comments are ‘not helpful’
The pandemic, the death of George Floyd, the trial of Derek Chauvin and now the death of Daunte Wright have put the state of Minnesota and its people under a…
The state of Colorado has passed a law that will prevent police officers from escaping liability for their misconduct. The law does not do away with qualified immunity but allows citizens to bypass qualified immunity and sue police officers in the state court. Additionally, under the law, officers found guilty of excessive use of force will have their certification permanently revoked. Courts will also be required to award attorney fees to plaintiffs that win their case.
Under the civil rights act of 1983, citizens are allowed to bring federal claims against government officials, police officers included. This is section 1983 of the main federal civil rights statute. Colorado SB-27 law allows the same for individuals in the state of Colorado. It is in a way a state equivalent of section 1983.
While many are summarizing SB-217 as “ending qualified immunity” in Colorado, what the law formally does is permit individuals to bring claims against police officers who violate their constitutional rights under Colorado law. SB-217 is therefore a kind of “state analogue” to Section 1983, our main federal civil rights statute. Whereas Section 1983 creates a cause of action allowing individuals whose rights are violated under the federal Constitution to bring a lawsuit for damages in federal court, SB-217 allows individuals whose rights are violated under the state constitution to bring a lawsuit for damages in state court.
The law goes further and includes provisions that make it so that qualified immunity is not an escape from liability. The law bars the use of qualified immunity to constitutional claims.
Colorado, like most states, has a bill of rights that largely mirrors the federal Constitution (and in some ways is even more protective) so this means that SB-217 will cover things like excessive force claims, unlawful arrests, etc. And most importantly, SB-217 specifically provides that “qualified immunity is not a defense to liability pursuant to this section.” So, the law does not technically “eliminate qualified immunity,” insofar as we’re talking about the federal doctrine — if Coloradans bring Section 1983 claims in federal court, those claims will still be subject to qualified immunity. But the law does ensure, at least with respect to police officers, that Coloradans will have a robust alternative remedy to Section 1983 claims for violations of their constitutional rights.
This is a very important distinction. A lot of states have enacted similar laws that allow citizens to bring claims against government officials. But Colorado is the first state to “specifically negate the availability of qualified immunity as a defense through legislation“. For instance, the state of Massachusetts has a law that allows citizens to bring claims against police officers, which may include compensatory reward. However, qualified immunity still automatically applies to any of these cases brought in court.
It is highly possible that the law would incentivize some cops to quit, discourage others from doing their job, and deter would-be cops from entering the force. But the law has placed provisions which would minimize this impact.
To ensure that good cops are not deterred from doing their jobs, the law has added indemnification clauses that will not put officers on the hook for expensive legal fees or personal financial liability.
Defenders of qualified immunity often claim that it’s necessary to protect officers from financial ruin. To assuage those concerns, the Act will require law enforcement agencies to indemnify their officers, meaning that they won’t have to worry about being on the hook for potentially expensive legal bills.
Officers would be personally liable only in cases where they “did not act upon a good faith and reasonable belief that the action was lawful” or were criminally convicted for conduct that triggered the civil rights lawsuit. But even in cases where officers acted unreasonably or in bad faith they would only be responsible for paying 5% of the judgement or $25,000, whichever is less. In addition, officers who successfully defend themselves against “frivolous” lawsuits may recover attorney’s fees.