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COVER STORY: TRACK THE BLUE | There's a rising tide of law enforcement bills in this year's legislative session

It’s a buzzing undercurrent of the legislative session: the volume of law enforcement bills working their way through the General Assembly like a river carves a canyon.

One law enforcement official said he’s monitoring 40 bills, including about two dozen — more are coming — directly related to how law enforcement officers do their jobs.

So what’s driving the increase? The most obvious answer is tied to the deaths of George Floyd and Elijah McClain and the protests that followed during 2020. It was a vow from members of the Legislative Black Caucus that the conviction of Minneapolis police officer Derek Chauvin on April 20 was only a first step toward justice.

The answer is also a bit more nuanced, however.

“We’re picking up a lot of bills that died last year because of COVID,” said Rep. Kerry Tipper, D-Lakewood, who is sponsoring several of those bills.

Her list includes House Bill 1015, which would make private the personal information of corrections workers, public defenders and other “protected persons,” and HB 1057, which would make it illegal to provide information on an undocumented person to law enforcement as an attempt to extort the immigrant to do or not do something legal.

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“It’s possible that sometimes when we drive policy changes, it forces people to the table who hadn’t felt an urgency,” she said. Tipper attributed it in part to the 2020 session's police accountability bill, Senate Bill 217, which she said for better or worse, may have incentivized people to come to the table.

That’s the law passed last year that struck down qualified immunity, a tool that protected peace officers from being sued over potentially unlawful actions.

There’s also the nexus between mental health, substance abuse and the criminal justice system, Tipper said.

“What we have been doing hasn’t been working,” she said. 

Tipper calls the 2021 measures on law enforcement a turning point, one that is partly adversarial and partly collaborative, and that view is shared by those in law enforcement as well as lawmakers.

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Rep. Leslie Herod, D-Denver, addresses the crowd on the Capitol steps following the signing of landmark police reform on June 19, 2020.

Better outcomes

Rep. Colin Larson, R-Littleton, sides with those who want better training and outcomes for law enforcement officers. He has his name on two bills that deal with how officers do their jobs: one on first responder interactions with the developmentally disabled (HB 1122), and another on secure transportation for those in a behavioral crisis (HB 1085), which also has a law enforcement nexus.

Larson believes the push to deal with these issues is first tied to the events of last summer, as well as to a lot of rhetoric that he found troubling. “It created a dichotomy where there was a villainization of law enforcement and a tendency to identify them as the problem.”

There’s clearly a deficiency, but law enforcement is a partner in fixing that, Larson said. “They’re not the enemy." He added that the institution of law enforcement isn’t fundamentally wrong, but there are problems. “Why are interactions escalating to the point of violence, and what can we do to make better interactions?”

He’s hearing from law enforcement that they’re trained to enforce the law but instead are being called on to respond to people in mental health crises. That’s not necessarily a law enforcement issue, but they’re the ones who respond, Larson said. If officers have that kind of training, it's minimal, he said.

“Let’s get you better training,” Larson said, “because the way the system is set up, law enforcement will be the first responder in mental health crises, so let’s make sure those interactions end up better.”

Another bill that has law enforcement support would set Colorado law around what's known as Brady. Not the former press secretary of Ronald Reagan (and which led to gun control laws at the federal level), this is a 1963 U.S. Supreme Court decision known as Brady v. Maryland that set up prediscovery rules. A Brady list is one of those rules; it requires prosecutors to keep an updated list of law enforcement officers whose testimony might not be credible, including bias. 

Sen. John Cooke, R-Greeley, a former Weld County Sheriff, is the sponsor of Senate Bill 74, which would create a Colorado-specific Brady law. He said law enforcement agencies and district attorneys' offices are handling Brady rules differently, and that the state needs a clear standard. The prosecution has a duty to give exculpatory evidence to the defense, which includes witness credibility, including law enforcement witnesses. No one wants to work with a liar, Cooke said.

His bill would define what a Brady issue is, and district attorneys would have to come up with policies and procedures. Colorado could then become the first state to pass a law based on Brady, he said. 

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Denver police take a position as protests over the death of George Floyd take shape in downtown Denver's Civic Center park on May 29, 2020. 

Crisis response

Larson's second bill deals with secure transportation. A person in a mental health crisis who needs to go to a hospital has just two options: go in a police car or an ambulance. Both are incredibly inefficient use of dollars and not good for someone in a crisis, Larson said.

His bill would use an unmarked SUV with a little more reinforcement, but it’s discreet, he said; it shows up without throwing up a flag for the neighbors. “I love getting involved in these bills” as a collaborative approach with law enforcement rather than an antagonistic one, he said. 

“When we say ‘you’re the problem’ rather than ‘we’re all in this together and how do we make this better,’ ” Larson said it results in people picking teams. People end up screaming at each other to score points, and problems don’t get solved, he said. That doesn’t work for law enforcement, which people and businesses in every community rely on to keep safe.

The narrative of “police are bad, you should be wary of interacting with them” doesn’t help anyone.

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He saw another measure — a school discipline bill that has now been withdrawn — in that same light, as potentially setting up an antagonistic relationship with school resource officers rather than fostering interactions between students and police that can be positive. 

“I think there are more hostile bills coming,” Larson said. “It’s too important an issue to sit on the sidelines. Let’s acknowledge these real problems,” which includes people of color being treated differently than white people by police, he said. “We need to fix it but the way to fix it is to not eliminate the police; it’s to get them better training.”

The school discipline bill (Senate Bill 182) was introduced by Democratic Rep. Leslie Herod of Denver and Sen. Janet Buckner of Aurora to restrict harsh punishment against nonviolent students, including prohibiting handcuffs on elementary school children. Students of color are disproportionately the recipients of such enforcement, they said.

The legislation also would have required school districts to adopt policies for the selection of school resource officers and create an evaluation process.

"While we have been disappointed by the divisive and inaccurate rhetoric around this bill, we remain committed to lifting up the voices of students and families who have faced the consequences of harsh discipline tactics," according to the statement the lawmakers released when they scuttled the bill.

Larimer County Sheriff Justin Smith, who heads the County Sheriffs Association of Colorado, said the proposal would create “sanctuaries on school property for criminal offenses.”

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Ru Johnson addresses Denver City Council members during a public comment session on June 4, 2020, on behalf of the Denver Creative Industries Alliance, which aims to “provide recommendations and demand action around reform and police brutality."

Reform revisited

Much of the uneasiness and, sometimes, acrimony is rooted in last year's SB 217.

On April 21, the House Judiciary Committee took another look at the reform measure, with a 2021 bill to tighten some of the language, including a definition of “exoneration,” clarifying the law around body-worn cameras and adding the Colorado State Patrol to the law enforcement agencies covered under the statute.

Herod, one of the sponsors of SB 217, said the cleanup bill provides more clarity.

House Bill 1250 is continued work from last year, and the state patrol is ready to join the ranks, Herod said. There were also questions about the use-of-force and reporting requirements, an issue Herod said was raised by Attorney General Phil Weiser. “We’re working to bring that consistency and clarity to the public.”

Smith compared the changes to being in the middle of a professional sports game where the rules change every quarter.

“The legislation is not the quality we should be getting,” he said.

Smith said he appreciates the effort to clarify the law around body-worn cameras, as well as the additional $2 million put into next year's budget for those cameras, but when mandates come in without resources, that could result in layoffs.

One of the major players in the compromise that became SB 217, Cooke said he would prefer to wait a year before making any more changes to the law.

"Things need to settle down a bit, and we need to see what that does," he said, acknowledging that the speed in which the bill raced through the General Assembly led to some of the cleanups. 

But changing the use-of-force language, less than a year after the passage of SB 217, when officers have just finished training on its requirements, is unnecessary, he said. "We need to slow down, look at what do we have, give 217 an opportunity to work and the data it produces," especially given that the entire law has not taken effect. 

In some ways it's an overreaction, Cooke said, adding "we don't know what we're doing yet."

Antagonistic talks

The word "antagonistic" comes up a lot in discussions about law enforcement measures in the current session. Herod has taken a lot of verbal abuse for her efforts on law enforcement accountability, including death threats, she said.

“I do think it has been somewhat antagonistic,” Herod said.

She’s tried to have stakeholder meetings, she said, bringing people to the table to let them know what she’s working on ahead of time. Herod said there’s also been efforts to undermine the measures, that are different from the face-to-face conversations. 

“That’s become increasingly problematic,” she said, and that includes the threats and intimidation. But it also goes to why the changes need to be made, she said. “It’s important that law enforcement is held accountable and is held to a standard where we can respect their influence in the community and how they’re interacting with community members.”

SB 217 was a start, Herod said. Everyone came to the table with additional ideas last year, and as lawmakers try to incorporate those ideas into law this year, “we’re getting pushback from those who brought those ideas in the first place. The conversation is at times disingenuous.”

Misinformation and fearmongering tactics are at an all-time high, more than she’s ever seen, going back to her days in the Ritter administration, Herod said, adding “We’re having to deal with an opposition that won’t even acknowledge the facts.”

The antagonism, Smith said, is due in part to two factors: lack of convening affected parties, called stakeholding, on SB 217 and fiscal impacts not factored into the law.

There are lawmakers Smith said he can count on from both sides of the aisle. But “some individuals who carry a lot of weight in the Capitol don’t do the stakeholding and don’t listen,” the sheriff said. “We continue to find those who will listen.”

The sheriffs’ association also isn’t wild about Senate Bill 62, which removes cash bail in a number of circumstances. It’s too broadly written, Smith said, and codifies who can and can’t be arrested based on one year of the pandemic.

Smith also pointed to HB 1211, which would eliminate solitary confinement in jails. The bill’s purpose is not to over-classify people (primarily those with mental health illnesses), but the challenge is that some of the bill’s requirements simply cannot be done, Smith said. “If the measure passes without significant changes it will conflict with our duty to protect and could push those [with mental illnesses] into other jail populations.”

Restricting ketamine

Another bill limits the use of ketamine, the powerful tranquilizer that was blamed in part for the death of Elijah McClain, the Aurora man subdued by police in August 2019.

Rep. Yadira Caraveo, D-Thornton, a medical doctor, said there is a proper use for ketamine, but not in law enforcement situations.

“Our main concern is that those decisions [to use ketamine] seem not to be based on a medical diagnosis or condition,” Caraveo told Colorado Politics. She wants to be sure that direction from law enforcement on use of ketamine is limited “while still maintaining a medical professional’s ability to use it for a medical condition.”

Could a law enforcement professional still call for use of ketamine? It’s a gray area, Caraveo said, but one where the decision should solely be left to medical professionals.

Herod, who is a co-sponsor on House Bill 1251, said the bill as introduced requires an accurate weight on the individual who might receive ketamine, which did not happen in McClain’s case. Reports indicate he received a dose double what should have been administered for a person of his size.

Herod said checking weight before administering ketamine is a standard in hospitals. “What we are really focused on is the proliferation of the use of ketamine. It has increased across the state substantially, as well as the medical impacts. If you’re an EMT and someone is combative, step back. If they’re refusing care, step back. If law enforcement has to arrest someone, they can do it without the use of ketamine.”

It’s not a gentle drug, Herod said, but a dangerous one that has led to paralysis and death.

There are already laws on the books that prohibit law enforcement from directing the use of ketamine, Herod said. But it’s been consistently ignored, so that’s why the weight is required; it provides a barrier. If an officer breaks the law, they can lose their POST certification.

Use of ketamine has to be in a more controlled environment, with close to an accurate weight and close monitoring of vital signs, since it has a high intubation rate, according to Caraveo. She acknowledged that the ability to weigh someone on-scene is limited at best.

The bill was scheduled for its first hearing on April 21 but was pulled from the schedule to allow for additional work. Caraveo said it isn't always possible for an EMT to weigh a person in a behavioral health crisis, due to lack of beds that can do that or other logistical issues, so they're looking more to training. 

“There are other medications you can use that are not weight-based,” she said.

Counting costs

The fiscal impacts of the bills on municipal and county governments aren’t being accounted for, Smith said. He blames a lack of time to come up with those costs, stating that local officials often are given just 24 hours to add it up.

The mandates also drive up costs for risk management, including insurance, he said.

Some insurers are leaving the state, Smith said. Others are raising rates and lowering coverage, which he said isn’t based on lawsuits as much as a fear of the unknown. That will result in one of two things: either raising taxes or reducing services.

The other cost is less tangible, and that’s in staff time for fulfilling reporting requirements. There are 45 areas that sheriffs have to report on to the state, Smith said.

“It feels like creating more reports than protecting the community,” and he questions whether those reports are even being read.

Smith said he’d love to see some discipline, perhaps adding sunset reviews, to those reporting requirements.

And Smith said there are issues that should be addressed, including hiring and supporting the “right kind” of peace officers and improvements on training.

The one bill that passes muster is House Bill 1030, which Smith said relies on best practices and expands the grant program for mental health for law enforcement.

He said officers go through the same trauma as dispatchers or firefighters.

“There’s a lot of chronic trauma that goes on through the years,” and that leads to suicide, which he called “too prevalent.” Mental health support saves careers, Smith said.

However, while the bill allows for more law enforcement agencies to participate in the grant program, from 350 to 680, its meager funding, $2 million per year, would be unchanged.

Smith’s message to lawmakers: Instead of creating a bill that addresses a perceived problem in a punitive way, "let’s look at best practices in the field."

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