The union representing Aurora’s firefighters could be allowed to join the litigation between the city and the state that resulted in a consent decree addressing unlawful police and paramedic behavior, Colorado’s second-highest court ruled last week.

The agreement to reform the city’s policies came after Attorney General Phil Weiser released a report in 2021 documenting a pattern and practice of excessive force and racial bias among Aurora’s police. The findings also implicated Aurora Fire Rescue, whose use of the sedative ketamine was excessive and in violation of protocols.

Although the International Association of Firefighters Local 1290 was not part of the consent decree negotiations, it sought to intervene in the case on the grounds that the required reforms could alter its members’ rights under their collective bargaining agreement. A three-judge panel for the Court of Appeals determined Local 1290 may be able to insert itself in the litigation at the trial court’s discretion, but it had no automatic right to join as a party.

“Although the Union speculates that the consent decree ‘may conflict with’ the CBA, it does not identify any particular conflict,” wrote Judge David H. Yun in the June 8 opinion. Union members will implement the consent decree’s reforms, he acknowledged, but “so, too, will many other City employees. Allowing all employees affected by the decree to claim a legally protectable interest would create an unmanageably large number of potentially intervening parties.”

The panel declined to say whether the consent decree should be rescinded in the absence of Local 1290’s participation. If the union is not ultimately able to join the litigation, Yun explained there will be no need to withdraw the agreement.

Case: Colorado v. Aurora

Decided: June 8, 2023

Jurisdiction: Arapahoe County

Ruling: 3-0

Judges: David H. Yun (author)

Anthony J. Navarro

David J. Richman

Background: Attorney general, Aurora to announce tentative consent agreement for changes to city’s police, fire departments

Following the 2020 police murder of George Floyd in Minneapolis, Colorado lawmakers enacted sweeping new requirements on law enforcement – addressing chokeholds, body-worn cameras and the ability to hold officers legally liable for violating people’s rights.

The law also enabled the attorney general to investigate a “pattern or practice” of illegal behavior in government agencies. Based on the 2019 death of Elijah McClain at the hands of Aurora police and paramedics, some of whom are currently facing criminal charges, Weiser used his newly granted authority to launch an investigation in Aurora.

In September 2021, Weiser announced the results: Officers had a pattern of using excessive force and disproportionately targeting people of color, while paramedics improperly used chemical restraints on suspects in the absence of medical emergencies.

After the required 60-day window for negotiating with the city, Weiser’s office filed a civil lawsuit against Aurora in Arapahoe County, asking a judge to approve the parties’ consent decree requiring Aurora to refrain from its unlawful conduct.

Shortly before a judge signed off on the decree, Local 1290 sought to enter the court case.

“The Attorney General has accused the Union’s members, as a group, of civil rights violations, and it and the City now propose a settlement that will guide and control the current and future behavior of Aurora firefighters,” lawyers for the union wrote. “The Union is concerned that the very same Consent Decree this Court is called upon to approve will violate the contract between Local 1290 and Aurora, and seeks to ensure that does not happen.”

Both the city and the state opposed Local 1290’s attempt to join as a party, insisting that nothing in the agreement altered the collective bargaining contract. Further, the union’s involvement could undermine the negotiated reforms on chemical sedatives and other protocols.

District Court Judge Elizabeth Beebe Volz agreed the union had no interest in the consent decree itself. Changing city policy “is an interest that belongs the city,” she wrote.

The Court of Appeals panel agreed with Volz in part. Although the police accountability law did not forbid third parties from intervening in pattern-or-practice lawsuits, the rules of civil procedure did not give Local 1290 the right to insert itself.

The “changes contemplated by the consent decree do not affect the Union’s collective bargaining rights and cannot justify its intervention,” wrote Yun, adding that the union had other recourse if, in fact, there is a violation of its bargaining agreement in the future.

However, Volz did not address whether she should allow the union to join in her own discretion, which the procedural rules do allow. Therefore, the panel returned the case to Volz for another ruling.

According to a report from the independent monitor overseeing the consent decree, Aurora was in “substantial compliance” as of mid-February with new requirements on the use of chemical restraints. The bulk of reforms, affecting the police department, are incomplete.

The case is Colorado v. Aurora.