Colorado Government Dumps Qualified Immunity For Cops

from the still-leaning-on-the-taxpayers-though dept

Since qualified immunity isn’t actually a law — but rather a Supreme Court construct — states are under no obligation to adopt this doctrine and apply it to lawsuits against law enforcement officers. But most states have, with Iowa’s top court being the latest to inflict this atrocity on the populace.

The Supreme Court has fine tuned qualified immunity over the years, turning it into a speedy way to dispense with lawsuits brought by people whose rights have been violated. As long as the rights violation was committed in a novel way, cops are free to go. And as long as lower courts never have to address the question of whether or not a rights violation was committed, no new precedent is established that would put officers on notice that their rights violations are actually rights violations.

Legislation has been introduced that would end qualified immunity at the federal level. There’s basically no chance it will pass, not with Senator Mitch McConnell deciding what bills get voted on. That leaves it up to the states, which are free to eliminate this SCOTUS construct at any time.

That’s what has happened in Colorado. The governor has signed into law a rejection of law enforcement’s favorite “get out of lawsuit free” card.

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.

The law says officers cannot raise qualified immunity as a defense to civil actions. It’s part of a set of police reforms that includes mandated body cameras (with sanctions for failing to activate them), expanded reporting on officer-involved killings and officers who resign while under investigation, limits on force deployments during peaceful protests, and a ban on chokeholds. It also gives the state more options for decertifying officers, including the stripping of certification for failing to intervene when other officers are using unlawful force.

But there’s a lot of bad news to go along with this good news. First, ending qualified immunity at the state level does not prevent officers from using this defense in federal cases. Unfortunately for state residents, most civil rights lawsuits are handled at the federal level.

The deterrent effect is further muted by the law’s refusal to actually hold officers accountable for their own misconduct. Cops may no longer have qualified immunity to protect them in state lawsuits, but they’ll still have the state shielding them from the consequences of their actions.

The bill requires a political subdivision of the state to indemnify its employees for such a claim; except that if the peace officer’s employer determines the officer did not act upon a good faith and reasonable belief that the action was lawful, then the peace officer is personally liable for 5 percent of the judgment or $25,000, whichever is less, unless the judgment is uncollectible from the officer, then the officer’s employer satisfies the whole judgment .

Sure, some departments may fire a judgment-proof cop after they’ve been asked to open up their wallets a few times. But indemnification means cops can do bad things and expect someone else — state taxpayers — to pay for it. At the very most, an officer will be out $25,000. But collecting that judgment will be a rarity. Government employees know all the best ways to game a system and it will be the rare misbehaving cop that will have $25k laying around where litigants can find it.

It’s better than the nothing governments have done for years when asked to deal with systemic police misconduct. Acting like disappointed parents rather than responsible overseers of the public trust has turned many departments into receptacles for bad apples. Taking away a bad cop’s favorite shield is a start. More states should do the same thing. Maybe then the Supreme Court might be willing to take another look at its enabling of rights violations and remove this blight from the federal landscape.

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Comments on “Colorado Government Dumps Qualified Immunity For Cops”

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37 Comments
Anonymous Coward says:

Re: Re: judgment proof

there are always way to ‘hide’ money and property.

What are they gonna do, ask the police payroll department to pay them under the table and report $0 in income to the IRS and the courts? Even by police-corruption standards that would be extreme.

The average Colorado police officer apparently gets about $55,000/year, or $40,000/year after taxes and deductions; 25% of that can be garnished, or $10,000/year. Unless they’ve got other garnishment already happening, like child support or a prior civil rights liability, it should be difficult to avoid paying.

Upstream (profile) says:

There’s basically no chance it will pass, not with Senator Mitch McConnell deciding what bills get voted on.

Another fine example of the extremely damaging effects of having let our government devolve to the point where just a few individuals are in near total control of the Federal shit-show.

a set of police reforms that includes. . .

It will be interesting to see if any of these minor half-measures will have any noticeable effect. Somehow I doubt it.

But there’s a lot of bad news to go along with this good news.

Government once again engaging in one of it’s favorite distraction techniques: Pass laws that will generate favorable headlines and soundbites, but don’t really do much of substance.

Paul B says:

Re: Re:

Most people sue because it’s easier to point to the constitution and say you broke something in the bill of rights. Which to my knowledge the feds have more or less said apply to the states.

Now at least in Colorado you need to make sure your lawsuit uses a state law and perhaps point out if the state law is in violation of the constitution if necessary instead of going directly to the bill of rights.

Paul B says:

Re: Re: Re: Re:

Also many many court cases, including the takings clause at the heart of some guy who lost his truck for 10 years.

https://www.cbsnews.com/news/supreme-court-civil-forfeiture-case-tyson-timbs-40k-suv-seized-over-400-drug-sale/

He had to go to the top court simply because it was not established that "The Eighth Amendment’s ban on excessive fines did not apply to the states"

Once you can show the Bill of Rights applies to the states you can keep your case in state as opposed to making a federal case.

That One Guy (profile) says:

Loophole big enough to throw tankers through

The bill requires a political subdivision of the state to indemnify its employees for such a claim; except that if the peace officer’s employer determines the officer did not act upon a good faith and reasonable belief that the action was lawful, then the peace officer is personally liable for 5 percent of the judgment or $25,000, whichever is less, unless the judgment is uncollectible from the officer, then the officer’s employer satisfies the whole judgment.

Because as current and historical events have shown the best people to make determinations on whether a cop thought they were in the right is other cops. Cap that off by setting an absolute maximum penalty of twenty-five thousand, which would require a civil lawsuit with a penalty of half a million dollars and while the bill is certainly an improvement and has some good ideas it’s also got some huge holes in it.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Loophole big enough to throw tankers through

And there’s at least one Denver suburb that has passed a resolution saying they’ll never find that an officer didn’t act in good faith – https://www.usnews.com/news/best-states/colorado/articles/2020-07-09/denver-suburb-vows-to-protect-police-from-lawsuit-costs

Nutty what some people will promise to defend cops from consequences.

This comment has been deemed insightful by the community.
Paul B says:

Re: Re: Loophole big enough to throw tankers through

Person: The cop walked into my house, said Fat Tony sends his regards, and shot my husband in the back of the head.

Judge: Sorry, there is no clearly established rule saying a cop can’t also be a hitman for the mob. Case dismissed.

Anonymous Coward says:

Re: Re: Loophole big enough to throw tankers through

It sounds like this is opening the city up to a lawsuit when a cop who should obviously have been found to act in bad faith ends up violating someone’s rights. The city is admitting that it’s not holding police accountable for civil rights violations which should make it liable for increased damages.

Now we need a law saying city officials who try to block cops from being held liable should be held personally liable too…

That One Guy (profile) says:

Re: Re: Loophole big enough to throw tankers through

I am shocked, shocked I say… that someone was not only stupid enough to make it public knowledge that they are so utterly corrupt and that it took them so little time to do so. I imagine that, barring equally corrupt judges any cases that go to court might not work out so well once the plaintiffs point out that the local government passed a legal resolution stating that they are anything but unbiased, and therefore cannot be trusted to give an honest assessment.

Still, nice of them to highlight the fatal flaw in the law, and while normally I am staunchly against police corruption and abuse of power so long as they are declaring that police will never foot the bill I can’t help but hope that the police take them up on that, as maybe watching all their money drain away into settlements will get the message across.

Ben (profile) says:

They really missed a trick here. One of the most lucrative insurance markets is that for medical malpractice insurance cover for clinicians. They could have established a precedent for cops to have to have malpractice insurance as well. I suppose they’ve just decided that the state is willing to underwrite all such claims, whilst loading the dice against the victim as usual.

Upstream (profile) says:

Re: Re:

Requiring cops to have malpractice insurance isn’t a new idea. This article takes a look at it. One key line to pay attention to:

Most of the country’s larger cities “self-insure,” meaning they simply pay out awards and settlements from public funds.

This problem, where the taxpayers pay for the cop’s crimes, is a big part of the whole out-of-control cop problem. Most taxpayers think that when "the city" pays a settlement, that means someone else, not them. This is the same blindness / stupidity that has most taxpayers thinking they do not pay any Federal income taxes. They don’t grok "withholding." They actually think the Federal government pays them a magic bonus every year! And they love it! As I have said before, if each American had to write a check every month for all of their taxes (like they do with most other bills) within two months there would be a tax revolt in this country the likes of which the world has never seen before.

Anonymous Coward says:

Re: Re: Re:

This is the same blindness / stupidity that has most taxpayers thinking they do not pay any Federal income taxes. They don’t grok "withholding."

I’m curious whether there’s really so much misunderstanding. 44% of people actually pay no federal tax. They’re mostly retired or poor, so may well be getting money from the government—though, of course, the retired will mostly be getting back money they’d paid years earlier.

As I have said before, if each American had to write a check every month for all of their taxes (like they do with most other bills) within two months there would be a tax revolt in this country the likes of which the world has never seen before.

Maybe. While I think they’d view taxes differently, I’m not sure it would be so bad as to cause a revolt. The top rate is only 37%, not too bad compared to other countries or to previous American rates, which were as high as 94% (only for two years—but the top rate was 70% or higher from 1936 to 1980, and above 90% for 15 of those years).

Upstream (profile) says:

Re: Re: Re: Re:

You are just talking about income taxes. I said all of their taxes. Big difference.

Add in sales taxes, property taxes, licensing fees, gas tax, phone tax, airline tax, etc etc and myriad other even more well hidden taxes that really only show up (to most people) in the form of increased prices for all goods and services, and you are talking about a completely different, and much larger, ball of tax.

And with a 74,608-page-long federal tax code, the tax rate, and the amount of income that is actually taxed at that rate, often bear little relationship to someone’s actual income (not just what is defined as income / taxable income in those 74K+ pages).

Also, given the outraged response when the price of gasoline goes up, or when a local jurisdiction tries to increase the millage rate for property taxes, I think the only questions about a tax revolt would be "How fast?" and "How violent?"

Anonymous Coward says:

Re: Re: Re:2 Re:

Add in sales taxes, property taxes, licensing fees, gas tax, phone tax, airline tax, etc etc and myriad other even more well hidden taxes that really only show up (to most people) in the form of increased prices for all goods and services

That’s true of sales taxes in most non-US countries. In the USA, taxes are usually added to the bill only at checkout time; it’s pretty obvious when they want more than $2 for a "$2" item.

Do Americans not get property-tax bills for real property they own? That’s common elsewhere.

I don’t know what "licensing" means here. Motor vehicle licensing fees are pretty obvious.

Gas, phone, and airline taxes might be more hidden, but we’re getting into increasingly smaller amounts here. (By the way, refusing the phone excise tax is apparently pretty easy, with low risk of IRS complications.)

restless94110 (profile) says:

Operational Ability

The doctrine of qualified immunity allows law enforcement to function, something you should know since you write hundreds of articles per year about nuisance lawsuits and anti-SLAPP legislation.

Curiously, the thought of Joe Blow, police officer, being sued every time he makes an arrest that the family didn’t like or that anyone didn’t like or that in hindsight the media thought was wrong afterthefact, doesn’t seem to provoke you to understand that your anti-SLAPP stuff is exactly the same as having qualified immunity.

You aren’t thinking this through. Cops will stop enforcing the law without it. And who would want to take that job? They’ll be sued into oblivion at the first chance.

It is literally flabbergasting that you can shout about anti-SLAPP and then get all mad about qualified immunity. Really amazing the pretzel logic.

Anonymous Coward says:

Re: Operational Ability

Cops will stop enforcing the law without it

Yeah, like the time the cops promised not to enforce the law after Ferguson… and yet the place didn’t turn into the hellhole that the cops swore it would if they chose not to get involved. Funny, that.

It is literally flabbergasting that you can shout about anti-SLAPP and then get all mad about qualified immunity

Because anti-SLAPP applies to everyone, not a privileged minority armed to the teeth with military-grade surplus weapons.

Really amazing the pretzel logic.

Fuck up your privileges enough by killing enough unarmed, non-violent offenders, and get those privileges taken away. This happen to everyone else no matter what their job is. It’s amazing you think the police need to be allowed to shoot naked, fleeing, unarmed people in the back without repercussion.

Anonymous Coward says:

Re: Operational Ability

"The doctrine of qualified immunity allows law enforcement to function"

  • Because not committing crimes is just too difficult for law enforcement to comprehend much less adhere to.

"police officer, being sued every time he makes an arrest "

  • Because he did not follow procedure and committed a crime.

"anti-SLAPP stuff is exactly the same as having qualified immunity."

  • The phrase "exactly the same" now means "not really the same but I want it to be" sorta like the word literally now means figuratively …… thanks a lot.

"Cops will stop enforcing the law without it"

  • Then they should re evaluate their career choices.

"Really amazing the pretzel logic."

  • Please explain your pretzel logic as it really does not make any sense.
    1) Qualified immunity is the result of a judicial decision, anti slapp is legislation. How are these then exactly the same when they are clearly not.
    2) Qualified immunity is applicable to law enforcement being given a pass on their crimes, anti slapp is limiting the ways in which one is allowed to use the law as an offensive weapon. How are these then exactly the same when they are clearly not.

I doubt your post was /s

Paul B says:

Re: Operational Ability

It was taken to far. Civil rights and the bill of rights are all ignored and unless you can find very specific case law saying something is illegal then cops get off on stuff that would otherwise be amazingly illegal.

The only reason this is happening is because cameras are so common that we capture abuses that were otherwise ignored unless the cops really did something stupid like when they beat up an FBI agent or a Judge (with official uniform on) at a protest.

Qualified immunity was never meant to protect officers from outrageous and clear violations but at this point judges think it does.

Anonymous Coward says:

Re: Operational Ability

Cops will stop enforcing the law without it.

Then their stupid asses should get fired, like any other lazy shitbag that refuses to do the job they were hired for. Plain and simple. That’s the job. Don’t like it? Fuck off and go sling burgers.

And who would want to take that job? They’ll be sued into oblivion at the first chance.

Perhaps someone with the appropriate level of character required to do it.

Someoneinnorthms says:

Re: Operational Ability

Please. Really? You didn’t think this comment through, did you?

If someone violates the law, there ought to be a remedy under the law to address the injury. If a police officer does something illegal or unlawful and has to pay a judgment, that means, ispo facto, THAT PERSON DID SOMETHING UNLAWFUL OR ILLEGAL. Why should some people be able to violate the law and other people should not?

I think you might be suggesting that an easier standard for plaintiffs to meet will encourage more lawsuits, perhaps many of them frivolous. Well, guess what? Frivolous lawsuits get filed all the time. Furthermore, no officer who is sued for actions under color of law ever pays a lawyer a penny to represent him. The governmental entity that employs the officer provides the defense (with a very few odd exceptions). So why does the increase in the number of lawsuits trouble you?

If an officer does something wrong, he’ll pay. It used to be that if an officer does something wrong, the city/county/state will pay. The officer doesn’t ever pay for a lawyer. Under this particular law he will pay $25,000 or 5% of the judgment, whichever is lower. Only sadistic, purposefully-ignorant, domestic enemies of the Constitution will complain about NOT being able to get away with violating someone’s legal and constitutional rights.

When I joined the United States Marine Corps 30 years ago I swore I would protect the Constitution from scumbags like that. They actually swear something similar in most jurisdictions when becoming law enforcement officials. And apparently you think it’s okay they lied through their teeth when they did it.

Anonymous Coward says:

Re: Operational Ability

Easy, they just have to do their jobs right, like everyone else.

Doctors risk being sued every time they do something. They also risk being sued every time they do nothing. In fact, each patient is a risk for them.

Engineers or architects are the same, and they are responsible for job others did, at least until they can prove it wasn’t their fault.

What do they do? Keep working. And do their jobs properly.

Someoneinnorthms (profile) says:

Operational Ability

Please. Really? You didn’t think this comment through, did you?

If someone violates the law, there ought to be a remedy under the law to address the injury. If a police officer does something illegal or unlawful and has to pay a judgment, that means, ispo facto, THAT PERSON DID SOMETHING UNLAWFUL OR ILLEGAL. Why should some people be able to violate the law and other people should not?

I think you might be suggesting that an easier standard for plaintiffs to meet will encourage more lawsuits, perhaps many of them frivolous. Well, guess what? Frivolous lawsuits get filed all the time. Furthermore, no officer who is sued for actions under color of law ever pays a lawyer a penny to represent him. The governmental entity that employs the officer provides the defense (with a very few odd exceptions). So why does the increase in the number of lawsuits trouble you?

If an officer does something wrong, he’ll pay. It used to be that if an officer does something wrong, the city/county/state will pay. The officer doesn’t ever pay for a lawyer. Under this particular law he will pay $25,000 or 5% of the judgment, whichever is lower. Only sadistic, purposefully-ignorant, domestic enemies of the Constitution will complain about NOT being able to get away with violating someone’s legal and constitutional rights.

When I joined the United States Marine Corps 30 years ago I swore I would protect the Constitution from scumbags like that. They actually swear something similar in most jurisdictions when becoming law enforcement officials. And apparently you think it’s okay they lied through their teeth when they did it.

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