New Colorado Law Kills Qualified Immunity for Cops
As part of a police reform bill introduced by Colorado Governor Jared Polis, called “Enhance Law Enforcement Integrity Act,” the new law says “qualified immunity is not a defense to liability pursuant to this section.” It also bans chokeholds, limits when police can shoot at fleeing suspects, and requires police to use body cameras and make the footage available to the public.
Qualified immunity, a hot topic lately, is a commonly used affirmative defense protecting law enforcement from lawsuits arising from alleged civil rights violations by officers committed in the line of duty. It was created by the U.S. Supreme Court in Pierson v. Ray, 386 U.S. 547 (1967), where a group of men filed a federal civil rights lawsuit after they were arrested and convicted in Mississippi for violating a state segregation law by mixing races in a bus terminal. When the Supreme Court later declared the law unconstitutional, they filed their lawsuit. The Supreme Court ruled that the police weren’t expected to “predict” that the law was unconstitutional and therefore they weren’t liable for the illegal arrests. Qualified immunity stems from the idea that unless “clearly established” law exists prohibiting an officer’s conduct, he’s immune from liability, no matter how egregious his actions may be.
Colorado’s law disqualifying qualified immunity, however, only applies to state lawsuits. “What Colorado did in this bill, which I think is really creative,” says Benjamin Levin, an associate professor at Colorado Law, “it creates a state cause of action in Colorado State courts, for people whose rights have been violated under the Colorado State Constitution.”
University of Denver law professor Alan Chen adds, “the importance of this is that it gives Colorado citizens a credible vehicle for enforcing their state constitutional rights against law enforcement officers.”
Critics of limiting or abolishing qualified immunity for law enforcement officers say it’s needed to ensure protection for officers’ split-second decisions in life-threatening situations. But “that doesn’t mean that the police are going to lose every [lawsuit] just because they don’t have qualified immunity,” says Chen. “There are other reasons why the plaintiffs might not necessarily prevail.” And the new law’s supporters have said as much, noting the change in law in Colorado only creates a lane for relief and doesn’t guarantee the outcome.
The new law goes into effect on July 1, 2023.