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Colorado bill adding protections for law enforcement whistleblowers passes first hurdle

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(Colorado Newsline) A last-minute Colorado bill would add protections for law enforcement officers who accuse a fellow officer of misconduct.

House Bill 24-1460 requires that law enforcement agencies investigate allegations of misconduct made against their officers and prohibits retaliation against an officer who files a complaint. It would also allow the person who made the allegation, including officers within the department, to sue the agency if the claims are not properly investigated.

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The bill passed its House Judiciary Committee hearing Tuesday on a 6-5 vote, with two Democrats joining Republicans against it. The end of the 2024 legislative session is set for May 8.

State Representative Leslie Herod, a Denver Democrat who sponsored the bill, said she’s heard that some departments in Colorado have misused a police reporting database created by a 2020 law to retaliate against whistleblowers. Herod said multiple officers told her stories of being forced to resign or getting fired for reporting inappropriate behavior from another officer, and the bill intends to close that loophole.

“One thing that stood out to me was when the officers said, ‘I have a duty to intervene and report when there’s harm done to someone in our community,’” Herod said. “‘But who’s going to report for me? Who has the duty to intervene for me when I face harm from my fellow officers?’ This bill will look to rectify some of those concerns.”

Many who testified against the bill expressed frustration with its last-minute introduction and said they were not asked for any input ahead of time. Several committee members took issue with the process and limited opportunities for interested parties to provide input, but bill sponsors agreed to start conversations as early as Wednesday morning to improve the policy.

“We acknowledge that prior to introduction, there were stakeholders who are not at the table who have interest in this bill,” Herod said. “We have been making considerable efforts tonight and previously to bring people to the table. We have made an agreement upon listening to the testimony from the opposition and support that there are pieces of this bill we can work on together.”

Representative Steve Woodrow, a Denver Democrat, said the stakeholding process for the bill was “seriously lacking,” and that he would have voted against the bill for that reason alone had the sponsors not been Herod and Representative Jennifer Bacon, also a Denver Democrat.

“I’m going to, just this once, do what I wouldn’t do for anyone else,” Woodrow said to Herod and Bacon. “I’m going to vote yes, but I do so for today only on the express condition that you all fix this before it comes to the floor. If not, I’m going to be a no, and I’ll tell others to do the same, my unwavering respect for you both notwithstanding.”

‘Target of retaliation’

Dozens of current and former police officers told stories of how they tried to report an issue with a fellow officer — many being women who allege they were sexually harassed by male colleagues — and eventually had their complaints turned on them. Many no longer work as police officers because of the retaliation they faced, they said.

McKinzie Rees, a former Edgewater police officer, spoke about how she was allegedly sexually assaulted by a superior officer early in her days with the department, in December 2019. She reported the incident and experienced retaliation, and so did her twin sister, who worked as a civilian evidence technician at the department, she said.

The Colorado Peace Officer Standards and Training Board database, which the 2020 law required, allows the public to see police certifications, terminations and resignations, investigations and credibility disclosures among other potential concerns with individual officers. Rees ended up on the database with an “untruthfulness” label because the accusations she made weren’t taken seriously, she said. The officer who she alleges assaulted her pleaded guilty to counts of unlawful sexual contact and official misconduct in January.

“I ask that you see this bill as a resolution to provide an equitable workplace for every member of law enforcement regardless of rank or structure,” Rees said. “If passed, this bill would not have only prevented what had happened for me, but it would have helped countless other people responsible for dereliction of duties.”

Carla Havard retired from the Denver Police Department after 25 years there. She said she was originally skeptical about the bill because she knew there were reporting mechanisms already in place, but she has seen how they are “not equitably applied.”

“Our issue certainly with Denver police has been adhering to those policies and oversight when we do not do so,” Havard said. “This is a system that claims that they want you to come forward with allegations of misconduct, but oftentimes you become the target of retaliation and complaints. Oftentimes, you rely on the same system that you’re accusing of malfeasance, or you’re accusing of being complicit in the problem, of essentially being in charge of investigating themselves.”

Questions for prosecutors

Representative Marc Snyder, a Manitou Springs Democrat, and Representative Judy Amabile, a Boulder Democrat, voted against the bill along with the Republicans on the committee. Snyder said while he saw the need for change in this realm, he had concerns around the cost and said it’s too big an issue to tackle at this point in the legislative session. He also wasn’t sure how the bill would be received going right to the House floor if approved by the committee.

“My hope was that we would be able to resolve this and come back to the Judiciary Committee with a more knowledgeable group of people and see what you all are able to work out,” Snyder said.

Alexis King, district attorney for Colorado’s 1st Judicial District, which encompasses Gilpin and Jefferson counties, also serves as president of the Colorado District Attorneys’ Council. She said during her testimony that district attorneys are opposed to the bill because it could impose liability for “undefined violations” on both district attorneys and police officers, as there are multiple terms without statutory definitions included in the bill as introduced.

“While we can make assumptions about what these words mean to police and sheriff, they clearly failed to consider what they may mean for prosecutors who are incorporated in the bill, by default of the definitions used,” King said. “The last-minute nature of this bill leaves giant questions for us as prosecutors that serve the state and seek to raise the voices of victims who bring to us stories of trauma that sometimes we can account for in the criminal justice system.”

Representative Lorena Garcia, an Adams County Democrat, asked King and 4th Judicial District Attorney Michael Allen if they’d be willing to work with sponsors to get the bill to a better place for them, and both expressed skepticism about it working. Garcia said during closing comments that while many people took issue with the timing and lack of stakeholding on the bill, they can still jump in and give feedback now.

Others who testified against the bill included Stan Hilkey, executive director of the Colorado Department of Public Safety, local sheriffs and police chiefs from around the state, and the Colorado Fraternal Order of Police.

The committee passed five amendments to the bill: One struck the second section of the bill, which Herod said would have unintentionally limited the attorney general’s ability to investigate. One removed the potential of misdemeanor charges for officers who fail to report, one clarified that the attorney general can update the POST database, one updated whistleblower language to mirror other parts of stature, and the last changed the length of time departments need to hold on to records related to a complaint from three to 10 years.

Representative Matt Soper, a Delta Republican, said he doesn’t see how the attorney general’s office can investigate allegations as required by the bill without an appropriation to support those efforts. He also had concerns over the high cost of the bill — with up to $1 million appropriated for the first year — though the estimated costs could change after the committee adopted its amendments.

Sponsors said the bill would build on previous legislation seeking to improve law enforcement accountability, Senate Bill 20-217. Another bill the Colorado House passed this week would limit law enforcement’s use of prone restraint.

“We made a commitment as sponsors to put a spotlight on this issue so that we can close some of these loopholes and create better workplaces and workspaces for these officers,” Bacon said. “What we were able to do today, even through all the ups and downs, (was) to present to you undeniable problems. And even though we had a lot of conversations about process, we didn’t have as many conversations about the problem — and that is because I believe that everyone thinks it’s a problem.”

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