A Blind Eye Scared Straight: Holding Law Enforcement Accountable for Wrongdoing

Efforts to force local, state, and federal governments to address the law enforcement excessive force crisis across the United States have reached revolutionary heights in 2020, with calls from protesters describing the excessive force as a human rights violation.[1] Deadly uses of force should only occur in the most extreme situations, which is a key point highlighted by the United Nations High Commission for Human Rights.[2] However, it seems that law enforcement officers in the United States are more likely than ever before to rely on the use of their lethal force to “deescalate” potentially volatile situations. If law enforcement is ever to be trusted by the masses again, officers must be held accountable for the human rights violations for which they are responsible.

Colorado just passed a bill, entitled Senate Bill 20-217, which may be the most progressive police reform the country has ever seen.[3] The bill arrives on the heels of a steady rise in fatal police shooting over past years in the centennial state:

The 189 people who were killed by law enforcement officers between the start of 2014 and the end of 2019 gave Colorado the nation’s 5th highest rate for fatal law enforcement shootings. The number of annual fatal shootings by law enforcement in the state almost doubled between 2014 and 2018.[4]

Senate Bill 20-217 seeks to address many well-known problem areas in the realm of policing, the most important of which include data collection, the use of deadly force, the use of body cameras, and qualified immunity.[5] Reforming these areas of the law will hold law enforcement officers accountable for their actions and give the people harmed by officers’ abuses of power at least some form of recourse.

Data Collection

No comprehensive database documenting police uses of force exists, nor is existing data collection thorough enough to identify specific precincts as hot spots of excessive force.[6] In short, this astronomical oversight has thwarted even the chance of accountability or transparency when police officers take actions outside the scope of their duties. Law enforcement leaders could have kept track of questionable actions taken by their subordinates, addressed them, and slowly built back the tarnished image of the law enforcement caused by those actions (and saved hundreds of lives in the process). No such step was taken, until now.[7]

Senate Bill 20-217 requires that, beginning in 2023, all local and state law enforcement agencies in Colorado must report relevant information pertaining to incidents of “all use[s] of force by its peace officers that result[] in death or serious bodily harm.”[8] Notably, reports must include, but are not limited to, the demographic information of the person force was used against, the names of the officers at the scene and whether they were involved in the use of force, the type of force used, and whether the officer unholstered their weapon.[9] If all of this data is not accurately reported or the deadline is missed, the law enforcement agency responsible for the transgression would be met with a suspension of its funding for an unspecified time from the appropriating authority.[10]

The purpose of reports with extensive detail is to shed light on potential racial biases within specific departments, as well as anomalies indicating an overuse of force by certain departments and even specific officers.[11] Racial disparities in law enforcement shootings are common in Colorado.[12] A study by the Denver Post of police shootings in 2019 found that “[b]lack people represented 10% of those killed or injured in police encounters where a subject’s race could be determined, though they make up only 5% of the state’s population.”[13] Additionally, “[h]ispanic people accounted for 36% of all people killed or wounded in police encounters, though they make up 22% of the state population.”[14] Copious data recording will provide the state of Colorado with the opportunity to attack systemic issues of human rights violations such as these at the local level, which could bring about real change in the ethical conduct of law enforcement officers across the state.

The Use of Deadly Force

The arbitrary deprivation of human life is one of the most basic human rights violations. Requiring law enforcement officers to only use deadly force in the gravest of situations is one way to greatly reduce the number of lives lost due to excessive use of police force. Prior to Senate Bill 20-217, “Colorado law enforcement officers [could] use deadly force if they reasonably suspect that someone is a threat to themselves, other officers or the public.”[15] The “reasonably suspect” standard is incredibly subjective, which creates uncertainty with regard to how consistently law enforcement officers are reprimanded for similar conduct.

Senate Bill 20-217, however, only allows for the use of deadly force “when all other means of apprehension are unreasonable given the circumstances.”[16] The legislation also requires that deadly force may only be used if the individual is being pursued for committing a “felony involving conduct including the use or threatened use of deadly physical force.”[17] The individual must also pose “an immediate threat to the peace officer or another person,”[18] and “the force employed [must] not create a substantial risk of injury to other persons.”[19] According to the United Nations High Commission for Human Rights, the Human Rights Standards and Practice for the Police requires that force is only to be used when strictly necessarily.[20] The requirements outlined in Senate Bill 20-217 seem to be much more in line with the standards outlined by the United Nations High Commission for Human Rights than the preceding Colorado law.

These new standards, if properly followed, would save many lives. According to Colorado Public Radio, there were 309 cases of law enforcement shootings between 2014 and 2019.[21]

Of the 309 shootings, 81 percent of suspects were armed with everything from a gun to a pitchfork to a piece of broken glass. That leaves 58 people who were unarmed when shot because officers said they posed a threat with a car or their fists — or officers wrongly believed they had a weapon.[22]

It is impossible to know exactly how many lives would be saved if Senate Bill 20-217 was enacted between 2014 and 2019. However, had it been, it is likely that a larger number of law enforcement officers would have been held responsible for fatal and improper actions, considering only two officers’ actions were found to be unjustified by district attorneys or grand juries between 2014 and 2019.[23] These changes to the law are likely to encourage officers to consider whether deadly force is actually necessary, and think through the consequences of their actions before unnecessarily taking lives. At the very least, the changes will hold officers accountable for their actions where they are unjustified.

Body Cameras

Another step taken to hold Colorado law enforcement officers accountable is the new requirement that every law enforcement officer is required to wear a body camera beginning July 1st, 2023.[24] It may shock some that even with the steady rise of law enforcement budgets across the country over past decades, many law enforcement officers are still not given body worn cameras (BWC’s).[25] BWCs may play a crucial role in assuring that officers are held accountable for their actions, as they can provide context to alleged incidents of inappropriate conduct. This technological advancement is critical since studies show eyewitness testimony is quite unreliable, and video footage can often contradict an officer’s or individual’s recollection of the event.[26]

The BWC provision of Senate Bill 20-217 requires that all law enforcement officers, with some minor exceptions,[27] must wear body cameras by July 1 of 2023.[28] Officers that fail to use their BWCs in situations where they are required to be used will face disciplinary action ranging from suspension to termination for their actions, as well as potential criminal or civil charges.[29] Additionally, if there is a complaint that alleges officer misconduct, the BWC footage must be released, unedited, to the public within twenty-one days of the complaint.[30] These new laws pertaining to BWCs may not significantly reduce officer-involved shootings, but they may result in more law enforcement officers being held accountable for inappropriate conduct.

Body camera reform measures give potential victims of police brutality, as well as the general public, another tool to hold law enforcement officers accountable when they inappropriately use the power of their positions. Incontrovertible video and audio recordings of an interaction involving alleged misconduct forces people in positions of power to resolve issues swiftly and transparently. Severe penalties for improper use of BWCs may ensure compliance by reluctant law enforcement officers.

Qualified Immunity

Qualified immunity is a defense that blocks those injured by excessive force from suing officers in their individual capacities. In order for law enforcement officials to be held personally liable when the qualified immunity defense is permitted, their conduct must “violate clearly established statutory or constitutional rights of which a reasonable person would have known.”[31] This standard, which was set in Harlow v. Fitzgerald, has since been used to shield law enforcement officials from personal liability if the facts of the situation at issue are not substantially similar to those of an already existing judicial decision.[32] This is a fairly subjective standard, and can be construed to mean different things to different judges. David Lane eloquently summarizes the problem with this doctrine in a piece for the Denver Post:

In order to show that the law being violated was “clearly established” a plaintiff has to show a prior U.S. Supreme Court case, or a case from the circuit court of appeals where the incident occurred, which is directly on point with what happened to the plaintiff standing before the court…I recently filed a suit in federal court where my female client was sexually groped by a guard in a Colorado prison. Colorado moved to dismiss on the grounds that while there is “clearly established” law telling the dumbest guard at DOC that he can’t rape female prisoners, there is no case directly on point from the Supreme Court or the Tenth Circuit (covering Colorado) that he can’t sexually grope female prisoners. We had to show the Court that there was a case on point, or our case would be dismissed.[33]

Judicial discretion unquestionably hinders courts’ ability to provide justice to victims of excessive force by law enforcement officers, highlighting yet another way in which officers can avoid responsibility for human rights violations. Senate Bill 20-217, however, removes the qualified immunity defense.[34] Officers found not to have acted in good faith or with a reasonable belief that their actions were legal can be held liable for 5% of a judgment or settlement or $25,000, whichever is less.[35] Law enforcement officers have long been shielded from countless roadblocks created to reinforce a system designed to protect its own and abandon those seeking justice for human rights violations. The right to not have excessive force used against oneself by those tasked with protecting the public is fundamental, and abolishing qualified immunity allows Colorado to better protect that right.

Conclusion

Law enforcement officers wield a great deal of power. If used inappropriately, this power can have disastrous consequences. Even worse, if used inappropriately and measures are not taken to make sure this abuse of power does not happen in the future, a toxic culture can be created.[36] This can lead to a heightened tension between those in uniform and the general public. The recent string of protests following the killings of people like George Floyd and Breonna Taylor have only exacerbated the perceived gap between citizens and officers. For years, police forces, governments, governors, mayors or all of the have turned a blind eye to the defects of the system that was created to promote justice. Colorado’s Senate Bill 20-217 demonstrates to the people of Colorado that the state’s government has heard their dissatisfaction with the status quo and that it is committed to holding law enforcement officials accountable for how it treats all persons in the United States. American human rights would be more closely aligned with United Nations’ standards if the rest of the country would soon follow Colorado’s lead.[37]

  1. Shielded from Justice: Police Brutality and Accountability in the United States, Human Rights Watch, https://www.hrw.org/legacy/reports98/police/uspo14.htm
  2. U.N. High Comm’r for Human Rights, Human Rights Standards and Practice for the Police, 23, U.N. Doc. HR/P/PT/5/Add.3 (2004).
  3. Colo. Senate Bill 20-217.
  4. Allison Sherry and Ben Markus, Meth, Guns And Aggressive Tactics Combine To Give Colorado One Of Nation’s Highest Police Shooting Rates, CPR News, https://www.cpr.org/2020/01/31/meth-guns-aggressive-tactics-combine-to-give-colorado-one-of-nations-highest-police-shooting-rates/ (Jan. 31, 2020).
  5. Colo. Senate Bill 20-217.
  6. U.S. Commission on Civil Rights, Police Use of Force: An Examination of Modern Policing Practices (2018), Letter of Transmittal, https://www.usccr.gov/pubs/2018/11-15-Police-Force.pdf.
  7. Colo. Senate Bill 20-217.
  8. Colo. Rev. Stat. § 24-31-903 (2).
  9. Colo. Rev. Stat. § 24-31-903 (2)(a).
  10. Colo. Rev. Stat. § 24-31-903 (5).
  11. Jesse Paul and Jennifer Brown, Colorado governor signs sweeping police accountability bill into law. Here’s how it will change law enforcement., Colorado Sun, https://coloradosun.com/2020/06/19/colorado-police-accountability-bill-becomes-law/ (June 19, 2020).
  12. Elise Schmelzer, We tracked every police shooting in Colorado last year. Here’s what we learned., Denver Post, https://www.denverpost.com/2020/02/02/colorado-officer-involved-shootings-2019-database/ (Feb. 2, 2020).
  13. Id.
  14. Id.
  15. Jesse Paul and Jennifer Brown, Colorado governor signs sweeping police accountability bill into law. Here’s how it will change law enforcement., Colorado Sun, https://coloradosun.com/2020/06/19/colorado-police-accountability-bill-becomes-law/ (June 19, 2020).
  16. Colo. Rev. Stat. § 18-1-707 (3).
  17. Colo. Rev. Stat. § 18-1-707 (3)(a).
  18. Colo. Rev. Stat. § 18-1-707 (3)(b).
  19. Colo. Rev. Stat. § 18-1-707 (3)(c).
  20. U.N. High Comm’r for Human Rights, Human Rights Standards and Practice for the Police, 23, U.N. Doc. HR/P/PT/5/Add.3 (2004).
  21. Allison Sherry and Ben Markus, Meth, Guns And Aggressive Tactics Combine To Give Colorado One Of Nation’s Highest Police Shooting Rates, CPR News, https://www.cpr.org/2020/01/31/meth-guns-aggressive-tactics-combine-to-give-colorado-one-of-nations-highest-police-shooting-rates/ (Jan. 31, 2020).
  22. Id.
  23. Id.
  24. Colo. Rev. Stat. § 24-31-902 (1)(a)(I).
  25. Shelley S. Hyland, Body-Worn Cameras in Law Enforcement Agencies, 2016, U.S. Department of Justice, https://www.bjs.gov/content/pub/pdf/bwclea16.pdf.
  26. Brett Chapman, Body-Worn Cameras: What the Evidence Tells Us, National Institute of Justice, https://nij.ojp.gov/topics/articles/body-worn-cameras-what-evidence-tells-us (Nov. 14, 2018) citing: Charles Katz, David Choate, Justin Ready, and Lidia Nuno, “Evaluating the Impact of Officer Worn Body Cameras in the Phoenix Police Department” (Phoenix, AZ: Center for Violence & Community Safety, Arizona State University, 2015); Barak Ariel, William A. Farrar, and Alex Sutherland, “The Effect of Police Body-Worn Cameras on Use of Force and Citizens’ Complaints against the Police: A Randomized Controlled Trial,” Journal of Quantitative Criminology 31 no. 3 (2015): 509-535.; Justin T. Ready and Jacob T.N. Young, “The Impact of On-Officer Video Cameras on Police-Citizen Contacts: Findings from a Controlled Experiment in Mesa, AZ,” Journal of Experimental Criminology 11 no. 3 (2015): 445-458.
  27. Colo. Rev. Stat. § 24-31-902 (1)(a)(II)(B), (1)(a)(II)(C).
  28. Colo. Rev. Stat. § 24-31-902 (1)(a)(I).
  29. Colo. Rev. Stat. § 24-31-902 (IV)(A), (B), (C).
  30. Colo. Rev. Stat. § 24-31-902 (IV)(C)(b)(2)(a).
  31. Harlow v. Fitzgerald, 457 U.S. 800 (1982).
  32. Nathaniel Sobel, What Is Qualified Immunity, and What Does It Have to Do With Police Reform?, Lawfare, https://www.lawfareblog.com/what-qualified-immunity-and-what-does-it-have-do-police-reform.
  33. David Lane, Guest commentary: Qualified immunity is killing civil rights, Denver Post, https://www.denverpost.com/2020/06/04/colorado-police-qualified-immunity-civil-rights/ (June 4, 2020).
  34. Colo. Rev. Stat. § 13-21-131 (2)(b).
  35. Saja Hindi, Here’s what Colorado’s police reform bill does, Denver Post, https://www.denverpost.com/2020/06/13/colorado-police-accountability-reform-bill/ (June 13, 2020).
  36. David Brooks, The Culture of Policing Is Broken, The Atlantic, https://nij.ojp.gov/topics/articles/body-worn-cameras-what-evidence-tells-us (June 16, 2020).
  37. U.N. High Comm’r for Human Rights, Human Rights Standards and Practice for the Police, 23, U.N. Doc. HR/P/PT/5/Add.3 (2004).

 

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