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Wednesday, June 24, 2020

State § 1983

Colorado has enacted the Enhance Law Enforcement Integrity Act, a comprehensive police-reform measure that includes body cameras and rules for recording, detailed reporting, prohibits rehiring officers who have been convicted of certain crimes, limits the use of tear gas and non-lethal projectiles in response to protests and demonstrations, guidelines for use of force, and other matters. Whether it will do anything is anyone's guess, since many policing problems have less to do with formal law and more to do with action and discretion on the ground.

Section 3 of the law creates a state equivalent to § 1983 for actions expressly against peace officers, using similar language. It eliminates existing statutory immunities, pronounces that qualified immunity is not an available defense, and allows for attorney's fees. The statute provides for indemnification of the officer, unless the department decides that the officer did not act in good faith and a reasonable belief in the lawfulness of his actions, in which case he is personally liable for 5 % of the judgment or settlement, up to $ 25,000. Note that the standard for losing indemnification is more-or-less the standard for losing qualified immunity; so the bill keeps reasonable belief in lawfulness as an issue, but going to who pays rather than denying a plaintiff all recovery.

Posted by Howard Wasserman on June 24, 2020 at 08:58 AM | Permalink

Comments

This seems like a thoughtful proposal. Eliminating QI without adressing indemnification is nearly meaningless, if the goal is to influence the actions of individual officers. The statute also has the department acting as a guarantor for any judgment, so a plaintiff isn't out of luck if an officer declares bankruptcy to avoid paying the claim. (For an extreme example of what can happen when a municipality can absolve itself of indemnification duties but isn't required to act as a guarantor, see Ayers v. City of Cleveland, 2020 WL 1445287.)

Posted by: Donald | Jun 24, 2020 12:16:30 PM

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