How Colorado decided to hold cops accountable

October 31, 2021
Rep. Leslie Herod, right, and civil rights attorney Mari Newman on Sept. 13, 2021, in the Colorado Capitol in Denver.
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Colorado police killed two young Black men, Elijah McClain and De’Von Bailey in August 2019. Though Elijah and De’Von died at the hands of different police departments in distant parts of the state, their killings stemmed from the same horrifying reality of American law enforcement: widespread brutality against people of color. 

To spur change, we brought together lawmakers and other stakeholders from across the political spectrum to create a wide-ranging police accountability law, Colorado Senate Bill 20-217, known as the Enhance Law Enforcement Integrity Act. Its most revolutionary part is the elimination of qualified immunity, a judge-created legal defense used by police to avoid accountability by arguing, essentially, that they should not be held responsible for violating people’s civil rights unless there has been a previous legal case in which police violated the law in exactly the same way. 

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In practice, the application of qualified immunity allows the civil justice system to perpetuate the culture of violence that has come to characterize American policing.

Colorado changed that, and it’s working

How Colorado did it. 

Mari Newman: Driving home after a gut-wrenching meeting with De’Von’s family – just weeks after a similarly devastating meeting with Elijah’s parents – I called my longtime friend, Colorado Rep. Leslie Herod, to talk about how we could change the law to prevent police brutality by holding officers accountable. We spent months in late 2019 and early 2020 brainstorming and drafting legislation, but there was simply no political appetite for reform at the Colorado Capitol. Indeed, an earlier bill seeking to eliminate qualified immunity had gone nowhere. 

Everything shifted on May 25, 2020, when Minneapolis police killed George Floyd. The video of his murder  made undeniable what people of color have always known but many Americans refused to believe: Police across America unjustifiably brutalize and kill people of color, and get away with it.

Rep. Leslie Herod: We had a unique opportunity. The combination of COVID-19 shutdowns and police brutality playing out on Americans’ smartphones across the nation created an environment I had never seen before. Thousands of people from across the state were all singing from the same page. It was time for real accountability. Negotiations lasted 16 intense days.

Newman: Like most civil rights attorneys, I’ve fought the unfair doctrine of qualified immunity many times, including in the case of Marvin Booker, an unarmed Black man killed by Denver sheriff’s officers in 2010. Multiple officers killed Marvin by simultaneously piling hundreds of pounds on his back, subjecting him to a carotid chokeholdtasing him and wrenching his ankles with nunchucks

Denver defended its officers, arguing that Marvin’s case should never even be heard by a jury because there wasn’t a published case where officers had killed someone in this precise way. The officers’ invocation of qualified immunity delayed the case so long that it did not go to trial until more than four years after Marvin’s death, during which time Marvin’s father passed away.

To eliminate qualified immunity, SB 217 created a new civil action for the deprivation of rights guaranteed by the Colorado Constitution’s Bill of Rights, allowing victims to sue officers for monetary damages for violating those rights, or for failing to intervene to stop other officers from doing so. 

Critically, the act also stipulates that “qualified immunity is not a defense to liability.” 

There is no doubt that the massive uprising triggered by the murder of George Floyd created the environment that allowed this historic bill to become law. With colleagues, we spent countless hours meeting with conservative lawmakers to find the common ground to garner necessary support, but it was surely the voice of the public chanting for justice outside the capitol each day that was ultimately more persuasive. 

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Herod: I’m often asked how we did it. How did we get folks like the ACLU and Black Lives Matter activists to agree to a bill with the law enforcement lobby? How did municipalities agree to make themselves more exposed to lawsuits? Honestly, I believe the system – our great American experiment – actually worked. The pressure coming directly from the people of Colorado demanding change was immense, and it was bipartisan and reached across racial demographics. 

This was one of those moments where you couldn’t help but ask yourself what side of history you were going to be on.

States like Colorado paved a path toward legislatively banning qualified immunity and implementing other accountability measures, and it’s working. The rest of the country can, and should, follow suit.

Leslie Herod was elected in 2016 as the first LGBTQ African American in the Colorado General Assembly. She is the daughter of a retired corrections officer. 

Mari Newman is a civil rights and employment lawyer. Newman’s clients include Elijah McClain’s father, LaWayne Mosley, who recently agreed on a settlement with the city of Aurora, Colorado. 

This column is part of a series by the USA TODAY Opinion team examining the issue of qualified immunity. The project is made possible in part by a grant from Stand Together. Stand Together does not provide editorial input.



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