By a party-line vote of 7-4, the House Finance Committee advanced a sweeping police accountability bill one day after the upper chamber passed it with only a single dissenting vote.
Senate Bill 217 came in the wake of continued protests in Denver, the nation and the world over the slaying of George Floyd in Minneapolis police custody on May 25. The demonstrations evoked the memories of black Coloradans whom police had killed, and called for racial justice and police accountability.
“We’ve heard from folks saying, ‘Why this? Why now?’ ” said Rep. Serena Gonzales-Gutierrez, D-Denver. A sponsor of the bill, she was referring to observations that SB217, introduced one week ago, was moving exceptionally fast. "This is not a new issue ... I am a third-generation resident of Denver and six generations in Colorado. And I can tell you that my parents and my grandparents have been fighting these injustices before I was born.”
SB217 pieced together past ideas about policing reform, including mandatory body-worn cameras, a change to the use-of-force standard, and requiring officers to intervene when they witness misconduct.
The House committee approved a series of amendments on Wednesday:
- Expanding data collection and reporting to include instances of officers unholstering and discharging their firearms.
- Lengthening to 45 days the time for law enforcement agencies to release body-worn camera footage to the public.
- Excluding jails with video cameras from the mandatory body-worn camera requirement.
- Clarifying that deadly force against a fleeing felon is appropriate only if there is a substantial or immediate danger of death or serious injury.
An amendment backed by Denver District Attorney Beth McCann would require grand juries to make their reports public if they decided against indicting a police officer. McCann this week declined to pursue charges against a state Department of Corrections employee who killed Alexis Mendez-Perez, a teenager supposedly fleeing from a burglarized home.
Rep. Adrienne Benavidez, D-Denver, asked what the reports would have to look like, given that grand jury records are generally secret.
Rebecca T. Wallace, from the ACLU of Colorado, which helped to hone SB217, replied, “None of us know what is in a grand jury report. I guess we’re going to find out.”
Committee Chair Leslie Herod, another sponsor of SB217, opened the hearing by speaking about an early encounter with police after her family moved to Colorado Springs during her fourth grade year. She and her brother were at their new house when the boy who used to live there arrived.
“He came into our house and he called me the N-word. That’s the first time I’d ever been called that,” said Herod, D-Denver. The boy and her brother went outside and began fighting. Because their mother was not home, Herod called the police, thinking she was doing the right thing.
“Somehow, in mom’s way, she showed up around the same time law enforcement did,” she recalled. “And I just remember her being so upset with me — yelling at me, pushing my brother and me in the house and dealing with law enforcement.”
“If that ever happened again, never call the police,” her mother instructed. Because, she said, Herod’s brother “might not make it out. That my brother might be mistaken for the aggressor and he could die.”
Immunity for officers
The committee engaged in substantial back-and-forth about the section of SB217 that would end qualified immunity as a defense for officers in civil suits. The U.S. Supreme Court created the qualified immunity doctrine to shield government employees from being held liable for injuries they inflict while performing their jobs. Officers must have violated clearly established constitutional rights to have immunity waived.
Supporters of the bill tamped down concerns that officers would incur a significant financial blow if ordered to pay a victim.
“I sue officers for a living and I don’t sue them unless I think there is a legitimate claim,” said Mari Newman of Killmer, Lane & Newman, who helped draft SB217.
“The only time they would have to pay you out of pocket is if they acted with bad faith and their understanding of the law was unreasonable,” said Suzette Malveaux, a civil rights law professor at the University of Colorado. “If that is true then under those circumstances, they are only personally liable for up to $25,000 maximum for their unconstitutional behavior.”
Immunity for government entities and employees is one reason why efforts to hold officers accountable for their force have fallen short. A 1978 Supreme Court decision established that local governments needed to have policies or customs of violating constitutional rights in order to be legally liable.
However, on Tuesday, the U.S. Court of Appeals for the 4th Circuit, based in Richmond, overruled a lower court that granted qualified immunity to officers in the 2013 slaying of Wayne Jones, a black man experiencing homelessness in Martinsburg, W.Va. After officers put Jones in a chokehold and struggled with him while he held a knife, Jones eventually stopped moving. The five officers stepped back, then shot him 22 times.
In the court’s decision, Judge Henry F. Floyd wrote that “Although we recognize that our police officers are often asked to make split-second decisions, we expect them to do so with respect for the dignity and worth of black lives. Before the ink dried on this opinion, the FBI opened an investigation into yet another death of a black man at the hands of police, this time George Floyd in Minneapolis. This has to stop.”
Judge Floyd added: “To award qualified immunity at the summary judgment stage in this case would signal absolute immunity for fear-based use of deadly force, which we cannot accept.”
Victims’ families speak, as do officer spouses
Lawmakers needed no reminder about the stakes of SB217 as family members of deceased men and women — names that appeared and reappeared in headlines — painstakingly recounted how their loved ones met the same fate as Floyd at the hands of a police officer.
“Our family member has suffered and was tortured and his killers are still out living life,” said Natalia Marshall. Her uncle, Michael Marshall, died in November 2015 after Denver sheriff personnel restrained him as he choked on his vomit.
“Thirteen years later, Jason, if they didn’t know your name then, you'll know his name now: Jason Gomez,” said Vicki Trujillo, crying. Trujillo was the widow of Gomez, who was shot to death in December 2007 after a Denver officer believed Gomez was reaching for a gun (it was a lighter).
“Parte de mi corazón murió con Jessica,” said Laura Rosales, the mother of Jessica Hernandez. Denver officers shot Hernandez in her car after they perceived that she was accelerating toward them.
Rep. Tom Sullivan, D-Centennial, whose son, Alex, died in the 2012 Aurora theater massacre, became emotional after hearing family members describe their pain.
“It’s too late for those people and the parents and the brothers and the sisters and the children who are trying to get by the next day from this,” he told his colleagues. Raising his voice, Sullivan yelled, “You're never going to understand what that’s like. It is our solemn duty to stand up and do our best and tell you about it.”
No one testifying opposed SB217 outright, although numerous law enforcement representatives suggested changes. Boulder Sheriff Joe Pelle said he would like to see a longer timeline for training officers on new use-of-force standards than this September.
“We can’t reteach thousands of peace officers across Colorado in a couple months. We need some time,” he said, adding that “I’m tired of the headlines….I’m ready for change as well.”
Brittany Iriart said she worked at the Public Integrity Division of Denver’s Department of Public Safety, which investigates the sheriff department. She alleged that she saw conclusions of reports altered to find no fault with employees.
“I’m seeing that more and more, officer misconduct is being covered up,” Iriart testified. “I have seen that officers who engaged in conduct that warrants discipline...are being absolved of all wrongdoing. These officers are being returned to their posts interacting with the public, learning they can act with impunity.”
She added: “What’s going on has been weighing on me for months.” Hours after her testimony, The Denver Post reported that the city placed Iriart on administrative leave for leaking details of a deputy’s misconduct to the media.
Legislators also heard from two wives of police officers, the first of whom had married her husband less than a month ago.
“I will never have a blue line on my car. I will never have a flag outside my house. And I will never tell an acquaintance what he does for a living,” she said, because of the anti-police sentiment in the country.
“I’m scared of what lawmakers and the media will do next to demonize the good men and women who do uphold the law,” she said.
During the second woman’s testimony, Rep. Rod Bockenfeld, R-Watkins, puzzled over how few direct complaints about the bill he received from officers themselves, and how feedback seemed to come by proxy.
“The communications I've gotten up to this point are only from law enforcement family and wives. The officers are trying to communicate through family to me as a legislator to give their side of the story,” he said. “Why is it I’m only hearing from wives and family of law enforcement officers?”
“I can’t answer that question,” the witness replied.
Republican representatives who voted against the bill indicated their desire to see what amendments the House as a whole would add before deciding whether to ultimately support SB217.
Rep. Terri Carver, R-Colorado Springs, was concerned about the reach of the body camera mandate. A former prosecutor for the military, she also wondered about changing a law enforcement culture that discouraged reporting of misconduct.
“The only way you are going to get meaningful compliance is imposing a legal obligation, a duty, to report. But not just to report: to actively intervene when there is a violation of civil rights or use of force and then within the leadership hierarchy of the police department, you make it real," Carver said, adding that it was important to empower rookie officers to call out their superiors.
Bockenfeld and Reps. Matt Soper, R-Delta, and Shane Sandridge, R-El Paso County, were the other no votes.