Shortly after 10:30 p.m. on Aug. 24, 2019, Elijah McClain, a 23-year-old Black man, was walking home after picking up an iced tea for his brother from a nearby convenience store in Aurora. After receiving a 911 call reporting a “suspicious person” wearing a ski mask and waving his arms (McClain often wore warm layers to ward off his anemia, and friends surmise that he was probably dancing, something he loved), three police officers responded to the scene and attempted to stop him. Though McClain, a Denver native and massage therapist, had committed no crime and was not carrying a weapon, a struggle ensued during which McClain, restrained with a carotid hold, subsequently vomited, apologized and told officers he couldn’t breathe. En route to the hospital following the incident, he was injected with the sedative ketamine, suffered a cardiac arrest and was declared brain dead three days later. He died a week after the incident on Aug. 30, 2019, after being removed from life support.
No longer will police in Colorado be permitted to apply the type of force used on Elijah McClain before his death, nor will police be able to stop someone on the street without a legal basis.
On Friday, June 19, Governor Jared Polis signed the “Enhance Law Enforcement Integrity” Senate Bill 217 into law, a police reform bill that creates sweeping changes to police requirements and accountability in Colorado. The new law will require all officers in the state of Colorado to wear body cameras, bans the use of chokeholds and carotid holds, requires officers to intervene if another officer is using excessive force, and bans use of deadly force against someone committing a minor or nonviolent offense or against a fleeing suspect. The law will also permanently strip officers of their certification who plead guilty to or are convicted of use of excessive force or failure to intervene, create a public database to track documented officer misconduct, and mandate requirements such as reporting to the state each time an officer unholsters their gun. Notably, the law also removes the qualified immunity defense in state courts, enhancing police accountability by allowing victims to sue for civil rights violations and hold individual officers liable for up to $25,000.
“The vision that every American deserves the right to life, liberty and pursuit of happiness regardless of race, that Black Americans, specifically, deserve to feel safe going for a run in our neighborhoods, walking to the convenience store, watching birds in the park, interacting with the police or just being in their own homes, and that we cannot wait any longer to knock down institutional racism born out of America’s original sin of slavery,” said Polis during a press conference Friday.
While the new law implements wide-reaching reforms aimed at providing greater police accountability and imposing requirements to reduce the use of unnecessary force, ultimately the legislation changes laws, not a pervasive culture and history of evidence-supported racial bias in American society and policing.
Colorado Representative Leslie Herod, a Democrat and sponsor of the bill, acknowledged the limits of the legislation during the press conference Friday, saying, “This bill is not the end all be all. It doesn’t change culture. I can’t legislate culture change, I can’t legislate hate out of someone’s heart. But what we can do is take a big step in the right direction and continue to commit to working on these issues.”
Rebecca Wallace, a senior staff attorney and senior policy council at the American Civil Liberties Union of Colorado, called the new legislation “an essential step forward,” one that “positively changes the legal landscape.”
“I think what the bill seeks to do is raise the standard for the use of force before police can use force against people in the streets and to protect them from the most egregious uses of force like we’ve seen with the ‘fleeing felon’ and the use of chokeholds,” said Wallace, “and also to do a better job of identifying, tracking and preventing the rehiring of bad officers, and finally, to give increased justice to victims, which frankly is after the fact when somebody goes to civil court, but by removing qualified immunity, we hope to increase justice for victims. So these are the things we are hoping to see, and I think this is good legislation that should move the ball in that direction.”
Qualified immunity is a legal doctrine that grants immunity from civil lawsuits to governmental officials, including police officers, protecting “all but the plainly incompetent or those who knowingly violate the law,” according to case law. In effect, Wallace said, qualified immunity is “a judge-made concept that shields officers from liability for violating people’s constitutional rights,” essentially requiring a previous case with nearly the same conditions in the same jurisdiction in order to show that the officer should have known they were violating constitutional rights.
“It doesn’t matter how excessive the force is,” noted Wallace, if the conduct was essentially deemed to be a reasonable mistake. “Even if you shot someone in the back and violated the Fourth Amendment when you did it,” she said, the stance under the doctrine is that “‘we’re not going give any justice to that victim’s family, because we just don’t think it’s right to hold an officer accountable unless they are either stupid or malicious.’ And so where does that leave all the conduct that’s being discussed right now in the wake of George Floyd’s death?”
“No one bill or policy change can possibly undo centuries of systemic and institutional racism,” Polis said before signing the bill into law. “Police reform is a constructive part of a much larger puzzle, but we also need to look at the whole picture. Educational equity, addressing disparities in health care and housing and employment, environmental justice, economic opportunity.
“We need to create a new normal where everybody’s rights are respected, where Black Americans feel safe going about their daily lives, and where Black lives matter.”
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