The sweeping police accountability bill that the Colorado Senate passed nearly unanimously on Tuesday had its roots in a mid-August conversation between Mari Newman and Leslie Herod.
Newman had just become the lawyer for the family of De’Von Bailey, a black Colorado Springs teenager killed while running away from two officers on Aug. 3.
“I told her about the fact that the Colorado statutes actually were out of sync with what the United States Supreme Court held in Tennessee v. Garner, that they have to be an imminent threat,” Newman said, referring to the 1985 decision about the use of lethal force on a suspect. “That the person who’s fleeing is going to kill somebody or do serious harm just before an officer is permitted to use deadly force against them.”
Herod, a Democratic state representative from Denver, went to high school in Colorado Springs and knew many former classmates who were susceptible to the same type of deadly encounter.
“I talked to her immediately about how we could help at the state level,” Herod said. A few months later, she met with law enforcement representatives. They told her that nothing statewide needed to change. Herod said she also began quietly meeting with officers who did not want to speak publicly, for fear of retaliation.
While law enforcement knew that Herod was interested in legislation, “I didn’t have the ability to move it forward until the community outcry.”
Meanwhile, Newman attended a meeting on Oct. 3 between Gov. Jared Polis and Bailey’s family. One of the governor's staff members suggested that a change in the law might be warranted. Newman went back to Herod and the two continued to compile ideas for a bill.
Many of the concepts that ultimately made it into Senate Bill 217 were familiar, stemming from high-profile deaths of black men in Colorado: rules governing body-worn cameras (Elijah McClain), a prohibition on chokeholds (Marvin Booker), the fleeing felon rule (Bailey). Newman happened to represent the families of all three victims.
“They’re not randomly chosen. They’re based on very specific examples of how law enforcement officers have killed people in Colorado,” Newman said.
Going into the legislative session, policing reform was on the minds of other lawmakers.
“I started a conversation early this year about the potential of having interim committees,” said Senate President Leroy Garcia, D-Pueblo. While Garcia did not explicitly promise to law enforcement that a police accountability committee was in store, other people remembered hearing about legislative interest in the topic, and Herod noted at the time that she would have availability to chair such a committee.
By the time COVID-19 had forced a hiatus in mid-March, there was still no official bill. That changed the night of May 28, the first evening of protests at the state Capitol over the killing of George Floyd in Minneapolis.
“That was the night I decided that I was going to push the bill forward,” she said. As her Democratic colleagues in the legislature checked in on her, she mentioned the idea for a bill.
“I trust you,” was the message they gave her.
The next day, the legislature suspended operations due to the protests. Herod talked with members of the Black Democratic Legislative Caucus about the ideas that she and Newman had compiled.
“She suggested getting the Latinx caucus involved,” said Rep. Jovan Melton, D-Aurora, who recommended that Rep. Serena Gonzales-Gutierrez, D-Denver, be the other House sponsor. Herod confirmed that having sponsorship from both caucuses was intentional.
Melton at the time was working on his own bill to allow the attorney general to bring civil suits against agencies that exhibited patterns or practices of denying people their rights. That provision ended up in SB217. Melton felt that his idea, plus Herod’s, would have likely passed on their own if the COVID-19 disruption had not occurred.
Herod talked to Attorney General Phil Weiser’s office. She did not speak to Polis or Denver Mayor Michael Hancock initially, but called Hancock a day or two before the bill’s introduction to give him a heads up. His spokeswoman said he had looked forward to reading it.
In part due to the timing of the legislative session, which the state Supreme Court ruled could be paused and resumed due to the pandemic, Colorado was the first state to see an omnibus policing bill after the death of Floyd. Most of the provisions were cobbled together from drafts of previous bills in past sessions that were left unresolved.
The multifaceted nature of the bill "does make the conversation harder, but we’re still willing to do that work," said one person familiar with SB217.
Even as worldwide focus turned to policing in the United States, there were mixed feelings about the likelihood of passage.
“If the protests had only been three or four days, we probably wouldn’t have seen a bill,” said Rep. Matt Soper, R-Delta. “Maybe a blue-ribbon commission to address police violence. But the longer the protests have continued it became inevitable there would be some sort of bill.”
“No, nothing is ever certain,” countered Denise Maes, public policy director for the ACLU of Colorado, who worked on the bill. Some legislators, all Republicans, told her that the proposal was too bold, too anti-law enforcement.
On June 1, four days after the first protest, Herod sent a draft of the bill to law enforcement and other interested parties. A virtual call took place the next afternoon with between 30 and 50 people, plus Herod, Gonzales-Gutierrez, and House Majority Leader Alec Garnett, D-Denver.
“I don’t recall us going through a litany of ‘this is problematic, that is problematic.’ That is not the kind of meeting that it was,” said Ron Sloan of the Colorado Association of Chiefs of Police.
“I definitely think that they were willing to compromise,” said Tristan Gorman, a lobbyist for the Colorado Criminal Defense Bar, referring to the attitudes of law enforcement. “What I kept hearing over and over again when we had to speak about specific language was, ‘We just want to get this right.’ ”
Herod asked for the support of her Democratic House colleagues, all of whom cosponsored the bill. “We will support what the Black Caucus wants to move forward with,” she heard from them.
On the Senate side, Sen. Rhonda Fields, D-Aurora, approached individual senators asking them to cosponsor. Multiple Democratic senators said they were unsurprised when every member of their caucus also said yes.
On the other hand, some Republican members said they were not consulted.
“The sponsors never reached out to me prior to introduction,” Soper said. Earlier in the session, he had introduced a bill to eliminate qualified immunity and good faith defenses for public employees involved in civil lawsuits. SB217 revived that provision for peace officers.
“They didn’t reach out to me, who has 30 years of law enforcement,” said Sen. John Cooke, R-Greeley, a former Weld County sheriff. He said he saw multiple drafts prior to the June 3 introduction. “Punishing officers if there’s a malfunction on the body cam? That has never been talked about before.”
Cooke said that the Democratic sponsors never apologized for excluding him, but legitimately attempted to ameliorate Republicans' concerns through amendments. He would end up voting for the bill.
One person involved in the SB217's deliberations observed that while it would be inaccurate to say that law enforcement and local governments were disinclined to compromise on police accountability in the past, "this time around, it is a different discussion."
Rep. Colin Larson, R-Littleton, noticed that after the Senate's amendments, he ceased receiving emailed concerns from law enforcement about the modified version. "Most of the feedback references the provisions for the introduced bill," he said.
For Herod, she felt that police accountability would not have been a topic of legislation during this atypical session if not for the sustained protests at the Capitol.
"I do not believe that we would have had the momentum and the yes votes to move forward" in the absence of that pressure, she said.