Colorado Governor Jared Polis has signed into law Senate Bill 20–217 (“SB-217”), otherwise known as the Law Enforcement Integrity and Accountability Act. SB-217 includes a range of major policing reforms, including a ban on the use of chokeholds, limits on when police are allowed to shoot at fleeing suspects, and requirements that officers use body cameras and that departments release the footage within 45 days. But perhaps most notably, the law ensures that police officers in Colorado will not be able to avoid liability for their misconduct due to the unlawful shield of qualified immunity.
While many are summarizing SB-217 as “ending qualified immunity” in Colorado, what the law formally does is permit individuals to bring claims against police officers who violate their constitutional rights under Colorado law. SB-217 is therefore a kind of “state analogue” to Section 1983, our main federal civil rights statute. Whereas Section 1983 creates a cause of action allowing individuals whose rights are violated under the federal Constitution to bring a lawsuit for damages in federal court, SB-217 allows individuals whose rights are violated under the state constitution to bring a lawsuit for damages in state court.
Colorado, like most states, has a bill of rights that largely mirrors the federal Constitution (and in some ways is even more protective) so this means that SB-217 will cover things like excessive force claims, unlawful arrests, etc. And most importantly, SB-217 specifically provides that “qualified immunity is not a defense to liability pursuant to this section.” So, the law does not technically “eliminate qualified immunity,” insofar as we’re talking about the federal doctrine — if Coloradans bring Section 1983 claims in federal court, those claims will still be subject to qualified immunity. But the law does ensure, at least with respect to police officers, that Coloradans will have a robust alternative remedy to Section 1983 claims for violations of their constitutional rights.
Colorado is not the first state to enact a “state analogue” to Section 1983, but it is the first state to specifically negate the availability of qualified immunity as a defense through legislation. As it turns out, that clarification is crucial, because in nearly all of the other states that have passed similar laws, state courts have incorporated a similar or identical version of federal qualified immunity, even when the relevant statute says nothing about it. For example, a Massachusetts law provides that “[a]ny person whose exercise or enjoyment of … rights secured by the constitution or laws of the commonwealth, has been interfered with … may institute … a civil action for injunctive and other appropriate equitable relief … including the award of compensatory money damages.” But the Massachusetts Supreme Judicial Court has nevertheless held that the legislature “intended to adopt the standard of immunity for public officials developed under 42 U.S.C. § 1983.”
Thus, the proponents of SB-217 — in particular, the ACLU of Colorado — showed tremendous wisdom in recognizing that any civil rights legislation would need to specifically address and negate the defense of qualified immunity, lest the courts assume the doctrine was meant to apply. I was honored to have the opportunity to testify as a subject‐matter expert on qualified immunity before the Colorado House Judiciary Committee on March 5, 2020, where I explained how qualified immunity has blunted both the deterrent and remedial effects of similar civil rights legislation.
Another noteworthy aspect of SB-217 is that it passed with overwhelming bipartisan support. The Colorado House approved the bill by a vote of 52–13, and the Colorado Senate approved it nearly unanimously by a vote of 32–1. This further demonstrates the extent to which there is a broad, cross‐ideological consensus against qualified immunity. As members of Congress continue to discuss this issue, I hope they’re paying attention to Colorado.