Denver police ahead of protesters in Denver's Capitol Hill neighborhood on Saturday, June 6, 2020. (Jesse Paul. The Colorado Sun)

Colorado law enforcement officers could use deadly force only as a “last resort” and only after they have “exhausted all reasonable de-escalation tactics and techniques” under a bill introduced this week by Democratic state lawmakers.

House Bill 1250 would also require that officers use deadly force only “proportional to the threat” they or the public face, and never against someone who is only a threat to themselves.

It’s one of several bills, some that have yet to be introduced, around policing that lawmakers are expected to debate at the Capitol this year. 

The legislation builds on a historic police accountability measure — Senate Bill 217 — passed by Colorado lawmakers in 2020 after George Floyd was killed in Minneapolis, allegedly by a police officer who is on trial this week. House Bill 1250 was introduced on Tuesday as Colorado is processing a shooting at King Soopers in Boulder that left 10 people dead, and just hours after a memorial service for Boulder police Officer Eric Talley, who was killed in the massacre.

The changes made in 2020 revised Colorado’s law enforcement use-of-force guidelines to require officers to face an “imminent threat” before they use deadly force. Previously, officers were allowed to use deadly force if they reasonably feared for their lives or the lives of their colleagues under what’s called the reasonable-officer standard.

The imminent-threat change was made to give officers’ subjective viewpoint less weight, but critics of House Bill 1250 say the move to a last-resort standard would be a return to a subjective system and potentially confuse law enforcement. 

“It is a bit discretionary,” state Rep. Leslie Herod, a Denver Democrat who is championing the bill, said Wednesday when asked about the definition of last resort.

State Rep. Leslie Herod, D-Denver, is pictured before the start of Colorado’s 73rd legislative session at the Colorado Capitol in Denver on Wednesday, Jan. 13, 2021. (Andy Colwell, Special to The Colorado Sun)

Officers must be able to explain why they had to use deadly force and had no other options, Herod said. “It allows for them to say that ‘this is something that must have happened,’” she said.

Rep. Serena Gonzales-Gutierrez, another Denver Democrat, is also a prime sponsor of the bill.

Denise Maes, public policy director for the ACLU of Colorado, which is working on the bill, sees the change as consistent with what lawmakers did in 2020 with Senate Bill 217.

“This is trying to obligate law enforcement to use a lot of other measures before it goes to the use of deadly force,” she said.

The Colorado Association of Chiefs of Police is already expressing opposition. 

“Law enforcement recently completed training on the new use-of-force standards put in place by Senate Bill 217,” said Amy Fletcher Faircloth, a spokeswoman for the association. “We were surprised to learn of the use-of-force changes in House Bill 1250. We will comment further once we have had a chance to review the bill.”

State Sen. John Cooke, a Greeley Republican and a former Weld County sheriff, vehemently opposes the legislation, in particular the last-resort clause. “That’s horrible. That’s so broad,” he said. “I don’t know how anybody can live by that standard.”

Cooke said law enforcement officers are forced to make split-second decisions when reacting to deadly situations. Asking law enforcement to try to determine if their actions are a last resort in the heat of the moment is unreasonable, he says.

“I just think this is a trap for law enforcement,” Cooke said. “I think it’s going to cause a lot of uncertainty.”

Cooke said he also takes issue with the provision in House Bill 1250 requiring law enforcement officers to respond proportionally to a threat. “The question is: What is proportional? If a guy pulls a knife on you, are you supposed to pull a knife?”

Colorado State Senate Assistant Minority Leader John Cooke, R-Greeley, is pictured in the Senate during the first day of Colorado’s 73rd legislative session at the Colorado Capitol in Denver on Wednesday, Jan. 13, 2021. (Andy Colwell, Special to The Colorado Sun)

Herod said the idea is to prevent officers from using deadly force against someone suspected of committing a relatively minor crime.

“If someone was selling a cigarette on a street corner, you can’t use a chokehold on them,” she said as an example.

House Bill 1250 also attempted to make several tweaks to the policies that became law through Senate Bill 217. It would provide more flexibility around the Peace Officer Standards and Training certification consequences for law enforcement officers’ who are found to have unnecessarily used force, including by reserving the harshest punishment (full revocation of certification) for officers who seriously hurt or kill someone.

The new legislation also eliminates qualified immunity for Colorado State Patrol troopers, who would face up to $25,000 in personal damages if a lawsuit is brought and they are found to have acted in bad faith. Senate Bill 217 eliminated qualified immunity protections for local law enforcement in Colorado but not for state troopers. 

House Bill 1250 also would revoke funding for law enforcement agencies that attempt to shield officers from personal liability by refusing to gauge whether they acted in bad faith. The change is a direct response to the actions by Greenwood Village’s leaders, who, after the passage of Senate Bill 217, moved to preemptively determine that the city’s officers would never acted in bad faith. 

“It really is intended to be a clean-up bill to address some of the concerns that have been brought up over the summer so that law enforcement officers and local governments can implement (Senate Bill 217) to its intent,” Herod said. 

Lawmakers look to curb ketamine use, too

Another measure introduced this week, House Bill 1251, seeks to curb the use of ketamine, a powerful sedative, in situations involving law enforcement by restricting who can administer the drug and when.

The legislation is in response to the death of Elijah McClain, an unarmed, 23-year-old Black man who was stopped by Aurora police officers in August 2019 though he was committing no crime. Paramedics injected McClain with ketamine, and his family contends the dose was far too large for someone his size. He suffered cardiac arrest and later died.

A mural of Elijah McClain was painted by Thomas “Detour” Evans, in memory, June 8, 2020, in the RiNo neighborhood of Denver. (Philip B. Poston, Sentinel Colorado)

House Bill 1251 bars paramedics from giving ketamine, haloperidol “or any other medication that is severely dependent on the weight of an individual” to people suffering from excited delirium, which can be misdiagnosed, and says first responders must use other de-escalation techniques before administering the drugs. If they ultimately do administer the drugs, they must use a precise dose.

“What this bill does is it says that if you can’t weigh them, if you can’t get accurate vitals, then you can’t administer ketamine,” Herod said.

Herod said men of color and people with tattoos often have their weight misjudged, which makes them particularly susceptible to being given too large a dose of ketamine. 

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Police officers would also be prohibited from requesting that paramedics administer ketamine to a suspect and would face disciplinary action for doing so.

Asked why lawmakers aren’t trying to ban ketamine’s use outside of hospital settings altogether, Herod said “it is an option.”

“It’s something that we’re still considering and definitely something that folks have been pushing us to do,” she said. “This severely limits its use and, I think, some would say it’s (effectively a) ban.”

Both House bills 1250 and 1251 have yet to be scheduled for their first committee hearing at the Capitol.

The Colorado Sun —

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Jesse Paul is a Denver-based political reporter and editor at The Colorado Sun, covering the state legislature, Congress and local politics. He is the author of The Unaffiliated newsletter and also occasionally fills in on breaking news coverage.

A Colorado College graduate, Jesse worked at The Denver Post from June 2014 until July 2018, when he joined The Sun. He was also an intern at The Gazette in Colorado Springs and The News Journal in Wilmington, Delaware, his hometown.

Jesse has won awards for long form feature writing, public service reporting, sustained coverage and deadline news reporting.

Email: Twitter: @jesseapaul