Victims of police misconduct, excessive force, or racial profiling in Colorado can file civil rights lawsuits demanding money damages and an injunction to change policing policies. The offending police officers can also be disciplined, fired, decertified, and/or prosecuted for a crime.
In this article, our Denver Colorado criminal defense attorneys discuss:
- 1. What is police misconduct?
- 2. What are the remedies?
- 3. How do I report police misconduct?
- 4. Can police misconduct get my case dismissed?
- 5. Can police be decertified for misconduct?
1. What is police misconduct?
Police misconduct comprises any inappropriate or unlawful conduct by state actors in their official capacity. Examples of state actors are:
- peace officers,
- police chiefs,
- sheriffs, and
- law enforcement officers from ICE, DEA, Department of Justice, and other agencies.
Wrongful police conduct frequently results in such civil rights violations as unlawful detention, false arrest, excessive force, and/or racial profiling.
Unlawful detention
Colorado police officers are permitted under state and federal law to detain you if they have a reasonable suspicion that a crime has happened or is occurring. Commonly called Terry stops, these detentions often involve a traffic stop and/or a stop-and-frisk.
Detentions automatically violate your Fourth Amendment rights if the police lack reasonable suspicion that a crime has happened. And what may have been an initially legal detention becomes unlawful if it lasts too long: Detentions should be no longer than necessary to determine whether probable cause exists to arrest you.1
False arrest
Police may lawfully arrest you when they have probable cause to believe you committed a crime. During an arrest, you are held against your will until a judge determines whether to release you.
Police make a wrongful arrest in violation of the Fourth Amendment when they either:
- knowingly used an invalid arrest warrant, or
- lacked probable cause to believe a crime occurred2
Excessive force
Under the Fourth Amendment, police may use no more force than reasonably necessary when making an arrest. For instance, police should use very little force on you if you are cooperative and put up no resistance. But if you fight back, police may act in self-defense and do what is reasonably necessary to overtake you.3
Police may never use deadly force to arrest you if you are suspected of only minor or non-violent crimes. Deadly force is justified only when you pose imminent danger, and there is a substantial risk you will harm others. Police are never allowed to use carotid chokeholds.
Due to the recent murders of Elijah McClain and George Floyd at the hands of law enforcement agencies, demands for police accountability are at an all-time high. And officers must intervene if they witness fellow officers breaking these rules. In excessive force or wrongful death cases, body camera footage serves as vital evidence.4
Racial profiling
Racial profiling is an unlawful practice where police use your race or ethnicity as reasonable suspicion that you committed a crime. A classic example of racial profiling is an officer pulling over a driver in a luxury car on suspicion of a car theft just because the driver is black.
Racial profiling is a violation of both the:
- Fourth Amendment right to be free from unreasonable searches and seizures, and
- Fourteenth Amendment right to equal protection under the law 5
Victims of police abuse and police violence have legal recourse under federal- and state law.
2. What are the remedies?
If you are a victim of police misconduct, you can also file a civil rights lawsuit. If the officer is a local or state worker, you would file a Section 1983 lawsuit. If the officer is a federal worker, you would file a Bivens lawsuit.
1983 lawsuits
A 1983 case is the type of civil lawsuit that you file against local or state officials and entities, such as:
- police officers and sheriff’s deputies,
- police departments and sheriff’s departments
- towns, counties, or municipalities
The biggest obstacle in winning 1983 lawsuits is that defendants may try to claim qualified immunity. Qualified immunity protects 1983 defendants from having to pay monetary damages if either:
- the defendants did not violate your constitutional rights, or
- the constitutional right was not clearly established.
If successful, you can win financial compensation including:
- compensatory damages, to reimburse you for any losses;
- punitive damages, to punish the defendant for the misconduct; and/or
- presumed damages, to compensate for your loss of liberty
In addition to – or instead of – monetary damages, the federal court can grant injunctive relief. An injunction can require the police department to:
- retrain its officers,
- fire the officers that violated your rights, and/or
- improve its policies and procedures6
Bivens lawsuits
A Bivens case is the type of civil rights lawsuit that you file against federal officials such as:
Bivens cases can also be brought against federal entities. Examples include:
As with 1983 lawsuits, defendants will likely claim that qualified immunity precludes them from being prosecuted. If successful, you can recover money damages from the defendant(s).7
3. How do I report police misconduct?
If you are the victim of police misconduct in Colorado, you can file a complaint with the applicable police department explaining what the officer did wrong.
Depending on the case, a complaint could lead to the officer being disciplined. This can range from a reprimand and being reassigned to being suspended or even fired.
If the officer may have committed a crime, you can file a police report against the officer. Examples of common police crimes include:
- police brutality, unlawful use of tasers or stun guns, or unjustified police shootings
- sexual assault (CRS 18-3-402)
- false imprisonment (CRS 18-3-303)
- perjury
- tampering with evidence (CRS 18-8-610) or planting evidence
- extortion (CRS 18-3-207)
If the agency finds probable cause that the officer engaged in criminal conduct, the offending officer could be prosecuted as any other civilian would.
4. Can police misconduct get my case dismissed?
Possibly. If you are currently a defendant in a criminal case, you could ask the court to suppress all the evidence law enforcement obtained by:
- an unlawful search and seizure,
- malicious prosecution,
- entrapment, and/or
- a coerced confession
If the judge grants the motion, the prosecution may be left with too little evidence to press criminal charges and sustain a conviction.
5. Can police be decertified for misconduct?
It depends on the case. In Colorado, law enforcement officials get decertified if they either:
- commit a felony,
- commit certain misdemeanors,
- lie under oath,
- lie in an internal affairs investigation (or a similar investigation), and/or
- omitted a material fact from an official criminal justice record.
Once an officer in Colorado is decertified, they cannot work as a police officer anywhere in the state.8
Legal References
- Terry v. Ohio, (1968) 392 U.S. 1. CRS 16-3-103.
- CRS 16-3-102.
- See People v. Fuller (1989) 781 P.2d 647.
- See Allison Sherry, It’s Early, But Colorado’s Police Reform Efforts Have Already Resulted In Charges For Officers, CPR News (August 3, 2021)(Aurora Police Department Officer Francine Martinez was charged with failure to intervene and failure to report use of force after video footage showed her standing by while colleague Officer John Haubert beat a suspect.). Francie Swidler, Here’s How Colorado Changed Its Policing After George Floyd’s Murder, CPR News (April 27, 2001). See also Rivas-Villegas v. Cortesluna (2021) 142 S. Ct. 4.
- See People v. Valencia-Alvarez (Court of Appeals of Colorado, Division Three, 2004) 101 P.3d 1112
- 42 USC 1983.
- Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, (1971) 403 U.S. 388.
- See Decertifying Misdemeanors, Colorado Peace Officer Standards and Training (POST); CRS 24-31-305.