In June of 2020, Colorado was in the shadow of the killings of George Floyd and Elijah McClain, along with the rest of the country. It was in this context that the Colorado legislature passed a sweeping law enforcement accountability act, one of the first in the country. Formally called “The Police Integrity Transparency and Accountability Act,” it is often referred to as “Senate Bill 217.”
Senate Bill 217 did a number of things that have been widely reported on in the media and discussed at length in legal and law enforcement circles. Notably, it requires law enforcement departments to furnish their officers with body-worn cameras, and limits qualified immunity in certain circumstances. The bill also constructively created a new crime – failure to intervene in excessive force.
Even the bill’s harshest critics likely agree that an officer’s duty to intervene in the use of unlawful force is a logical and reasonable concept. Imagine the following scenario, scenario 1: two officers are together for the entirety of an encounter with a suspect. The suspect is aggressive and poses a risk to the officers. The suspect’s actions result in a use of force by the officers. The suspect is ultimately restrained on the ground and under the control of the officers, and has no access to weapons. Officer 1 deems the threat to be subsided. Officer 2 proceeds to beat the suspect in the head with his fist, as Officer 1 stands by with a similar view of the suspect as Officer 2. Officer 1 does nothing and allows Officer 2 to injure the suspect.
Under C.R.S. § 18-1-707, the statute that criminalizes failing to intervene in excessive force, Officer 1 could be charged with a class 1 misdemeanor. This scenario seems reasonable enough.
Let’s now consider a second scenario, scenario 2: a call airs over the radio about a suspect who is known to be armed. Officer 1 arrives on scene and believes the suspect to be armed, based on the information provided. Officer 1 assures himself or herself upon arrival that the suspect is unarmed. A use of force results regardless. Officer 1 uses an amount of force appropriate if the suspect was armed, but inappropriate under the actual circumstances. Officer 2 arrives on scene, while the excessive force is being used. Officer 2 was also privy to the radio call and accordingly believes that the suspect is armed, and Officer 1 may literally be fighting for their life. Officer 2 does not intervene.
This scenario brings to light a fatal flaw in the statute. On the first day of a criminal law class, law students typically learn about mens rea and actus reus. Actus reus means guilty act, and mens rea means guilty mind. Put simply, to commit a criminal act, you generally need both the act itself, as well as a mental state or intent. There are different types of intent in criminal law, such as knowingly, recklessly, and criminal negligence. C.R.S. § 18-1-707 does not contain a mental state that a prosecutor must prove beyond a reasonable doubt for someone to be found guilty under the statute. There is also the legal concept of strict liability, which is relatively rare in criminal law. Strict liability means you can be responsible for a crime regardless of your intent. Statutory rape is a common example – someone can believe a 14-year-old is 18, and that honest belief does not excuse them from liability. So, what is the mental state required by this statute? In the above scenario, Officer 2 did not KNOW the force was excessive. Can Officer 2 be charged with failure to intervene? The law is simply unclear, although at least one judge in Colorado has applied the mens rea of “knowingly,” which is certainly logical. At this time, each judge hearing such a case could make their own determination as to what mens rea applies.
Let’s consider one final example, scenario 3: Officers 1, 2, and 3 all have their firearms drawn on a suspect during a particularly dangerous traffic stop. Officer 3 knows that actually firing would be inappropriate, unless the situation drastically escalates in an unforeseen way. Officers 1 and 2 unexpectedly fire their weapons, without warning. Under the law, was Officer 3 required to verbally tell them not to fire, in front of the suspect whose compliance they were trying to gain? Was Officer 3 required to physically subdue Officers 1 and 2 in some fashion before they even could fire? Was Officer 3 somehow supposed to stop bullets mid-air?
C.R.S. § 18-1-707 does not offer any clarification whatsoever as to what “counts” as intervention. Is verbal intervention enough? Is physical intervention required? Must an officer physically strike or restrain their colleague? Or is a word of caution or “stop” sufficient? What if an officer believes unlawful force is occurring, and physically strikes or tackles a colleague to stop it, but is simply wrong in their analysis of the force – can the intervening officer then be charged with assault? Notably, the statute does not only require an officer to intervene to “stop” a use of force, like in scenarios 1 and 2. Rather, it also requires officers to intervene to “prevent” unlawful uses of force. In scenario 3, Officer 3 had no idea Officers 1 and 2 were actually going to fire their weapons. How was Officer 3 supposed to prevent them from doing so?
Law enforcement in America is going through extensive changes, and Senate Bill 217 is one of many legislative acts aimed at reforming police practices. Many persuasive arguments exist about how policing can be made better, safer, and more transparent. That said, police accountability laws, however well-intentioned, must be constitutionally sound. A police officer, like any citizen, is entitled to know what a law is proscribing. Officers cannot possibly be mind readers, nor can they be responsible for every unforeseeable act committed by a colleague. Clear, reasonable accountability laws benefit both the public and the law enforcement profession as a whole. Unfortunately, C.R.S. § 18-1-707 offers more questions than answers as to what conduct is forbidden, and what conduct is required. It will be up to the court system to parse out these issues for the time being, and these questions will be the topic of litigation for the foreseeable future in all failure to intervene cases.
