Colorado Passes Landmark Law Against Qualified Immunity, Creates New Way To Protect Civil Rights
by Nick SibillaSenior Contributor | Source
In a fitting tribute to Juneteenth, Colorado Gov. Jared Polis signed a sweeping law enforcement reform bill on Friday that marks one of the most significant changes to policing amidst the protests over the brutal killing of George Floyd. Among the new law’s many reforms, which include banning chokeholds and the use of deadly force for nonviolent offenses, the Enhance Law Enforcement Integrity Act (SB20-217) allows plaintiffs to bypass “qualified immunity,” one of the biggest barriers to holding government agents accountable in court.
Ever since Congress enacted the Civil Rights Act of 1871 to combat the Ku Klux Klan, people who have had their rights violated by local and state government officials could sue them for damages in federal court. But in 1982, the U.S. Supreme Court created qualified immunity, which shields officers from any legal liability, unless the rights they violated were “clearly established.” Thanks to qualified immunity, countless victims have been unable to vindicate their civil rights in federal court.
“Qualified immunity means that government officials can get away with violating your rights as long as they violated them in a way nobody thought of before,” explained Institute for Justice Attorney Anya Bidwell. “And that means that the most egregious abuses are frequently the ones for which no one can be held to account.”
In order to bypass this “unlawful shield,” the Colorado law creates a new “civil action for deprivation of rights,” which will allow Coloradans to sue officers for damages in state court, if those officers violate the Colorado Constitution’s Bill of Rights or “fail to intervene” when those rights are violated.
Critically, the Act explicitly states that “qualified immunity is not a defense to liability” and also exempts this new cause of action from the Colorado Governmental Immunity Act. SB20-217 applies to all local law enforcement officers, sheriff’s deputies, and Colorado State Patrol officers.
Colorado is the first state to enact legislation that bars qualified immunity as a defense to state constitutional claims. Prior to Colorado, a handful of state high courts had imposed additional limits on granting qualified immunity to officers who violate civil rights under their state constitutions.
The Montana Supreme Court even rejected the idea of adopting qualified immunity outright, declaring in a 2002 opinion that it would be “inconsistent with the constitutional requirement that courts of justice afford a speedy remedy for those claims recognized by law for injury of person, property or character.”
To be clear, the new Colorado law doesn’t end the doctrine of qualified immunity; Section 1983 claims filed by Coloradans in federal court would still be subject to qualified immunity. Only the U.S. Supreme Court or Congress has the power to alter or abolish qualified immunity, though prospects are mixed at the moment.
Last week, the U.S. Supreme Court refused to hear eight separate cases involving qualified immunity; expressing “strong doubts” about the doctrine, only Justice Clarence Thomas would have granted one of the cert petitions.
In Congress, Rep. Justin Amash (L-MI) has sponsored the tripartisan End Qualified Immunity Act, which would eliminate qualified immunity for all state and local government officers. Meanwhile, the Justice in Policing Act (with 230 cosponsors in the House of Representatives) would also remove qualified immunity, but only for law enforcement. However, President Trump and several Senate Republicans have called ending qualified immunity a “non-starter.”
Given inaction and relentless gridlock on the federal level, it will be particularly pressing that state legislatures hold government agents accountable. Nevertheless, Colorado’s reform is still a landmark law and could blaze a trail for other states to follow.
“We cannot wait any longer to knock down institutional racism,” Gov. Polis declared at Friday’s bill signing ceremony. “This legislation specifically contains landmark evidence-based reforms that not only protect civil rights, but will help restore trust between law enforcement and the communities they serve.”
As an additional deterrent to police misconduct, under the Colorado law, officers who are found civilly liable for using excessive force or failing to intervene when excessive force was used, will have their certification permanently revoked. Moreover, since many victims of police brutality are working-class and lack the means to defend themselves in court, in order to better expand access to justice, the Act will require courts to award attorney’s fees to plaintiffs who win their cases.
However, the Act doesn’t extend to government officials who don’t work in law enforcement or to state law enforcement officers (besides the Colorado State Patrol), which leaves more than 1,300 law enforcement agents employed by the state exempt. Earlier this year, a similar bill would have applied to all government officers and municipalities in Colorado, but it died in committee.
That makes the overwhelming passage of the Enhance Law Enforcement Integrity Act and its lightning-fast approval (it was first introduced on June 3) all the more remarkable.
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.
SB20-217’s approach to indemnification codifies long-standing practices that are already routine for many agencies. A 2014 study from UCLA Law Professor Joanna Schwartz examined the indemnification practices for 44 of the nation’s largest law enforcement agencies (including the Denver Police Department) and found that “officers paid just .02% of the dollars awarded to plaintiffs in police misconduct suits.”
By bypassing qualified immunity, but paying out judgments assessed against the officers, Colorado’s new law ensures that victims are made whole and that good cops aren’t deterred from doing their jobs.
“Generations of Coloradans and communities across the country have been waiting far too long for this historic moment,” declared Rep. Leslie Herod, who sponsored the Act in the House. “Together, we’ve made real change to address the violence and brutality that Black and Brown communities have endured at the hands of law enforcement.”