5.4 Qualified Immunity Elimination (C.R.S. § 13-21-131) & POST Decertification Rules
Key Takeaways
- C.R.S. § 13-21-131 created an independent civil action for constitutional violations under the Colorado Bill of Rights, explicitly eliminating qualified immunity as a defense in state court.
- Under C.R.S. § 13-21-131(3), the public employer must indemnify the officer unless the employer finds the officer did not act in good faith and with a reasonable belief of lawfulness, triggering personal liability of 5% or $25,000.
- Under C.R.S. § 24-31-305(2), POST must suspend or revoke certification for a felony conviction at any time and for the misdemeanors listed in C.R.S. § 24-31-305(1.5), a list that includes misdemeanors in article 8 of title 18 such as the failure-to-intervene offense in C.R.S. § 18-8-802.
- C.R.S. § 24-31-305(2.5) requires POST to revoke certification when the employing agency determines by clear and convincing evidence that an officer knowingly made an untruthful statement about a material fact or knowingly omitted a material fact.
- The statewide Colorado Peace Officer Database (C.R.S. § 24-31-903) mandates tracking of all officer misconduct, decertifications, and untruthfulness, requiring mandatory review by prospective law enforcement employers.
Qualified Immunity Elimination (C.R.S. § 13-21-131) & POST Decertification Rules
Historically, peace officers sued in civil court for alleged constitutional violations relied upon the federal defense of Qualified Immunity, which shielded government officials from monetary liability unless their conduct violated "clearly established statutory or constitutional rights of which a reasonable person would have known" (Harlow v. Fitzgerald, 457 U.S. 800 (1982)). Through the passage of Senate Bill 20-217, Colorado became the first state in the nation to enact a comprehensive statutory mechanism eliminating qualified immunity in state court civil rights actions under C.R.S. § 13-21-131. Simultaneously, the Colorado Peace Officer Standards and Training (POST) Board was granted expanded regulatory authority to permanently decertify officers for criminal offenses, excessive force, failure to intervene, and untruthfulness.
1. The Colorado Civil Rights Statutory Action: C.R.S. § 13-21-131
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| COLORADO CIVIL ACTION FOR DEPRIVATION OF RIGHTS |
| (C.R.S. § 13-21-131) |
| |
| CREATION OF INDEPENDENT STATE CAUSE OF ACTION: |
| * Allows any individual to sue a peace officer in Colorado state |
| district court for violations of the COLORADO BILL OF RIGHTS |
| (Article II of the Colorado Constitution). |
| |
| ABSOLUTE ELIMINATION OF QUALIFIED IMMUNITY (C.R.S. § 13-21-131(2)(b)):|
| * "Qualified immunity is NOT a defense to liability pursuant to this |
| section." |
| * Plaintiffs do NOT need to prove a "clearly established right" with |
| identical prior case law precedent. |
| |
| ATTORNEY FEES & REMEDIES: |
| * Prevailing plaintiffs are statutorily entitled to reasonable |
| attorney fees and costs. |
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The Direct State Constitutional Cause of Action
Under C.R.S. § 13-21-131(1), an individual whose rights under Article II of the Colorado Constitution (including Search & Seizure under Section 7, Due Process under Section 25, and Freedom of Speech/Assembly under Section 10) have been infringed by a peace officer may bring an independent civil action for compensatory damages, declaratory relief, or injunctive relief directly against the individual officer.
Qualified Immunity Stripped
Section 13-21-131(2)(b) expressly states: "Qualified immunity is not a defense to liability pursuant to this section." In federal court under 42 U.S.C. § 1983, an officer might secure dismissal if no prior binding court decision had established identical unconstitutionality. In Colorado state court under § 13-21-131, qualified immunity cannot be asserted to bar the lawsuit or escape liability.
2. Public Employer Indemnification vs. Individual Personal Liability (C.R.S. § 13-21-131(3))
One of the most widely debated and heavily tested provisions of Colorado police reform is the statutory financial indemnification structure and the 5% / $25,000 Personal Liability Standard.
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| INDEMNIFICATION & PERSONAL LIABILITY (C.R.S. § 13-21-131(3)) |
| |
| GENERAL RULE: PUBLIC EMPLOYER INDEMNIFICATION |
| * The public employer (City, County, State) MUST INDEMNIFY the peace |
| officer for the full amount of any judgment or settlement. |
| |
| THE EXCEPTION: NO GOOD FAITH / UNREASONABLE BELIEF |
| * If the employer determines that the officer DID NOT ACT UPON A |
| GOOD FAITH AND REASONABLE BELIEF that their action was lawful: |
| |
| ┌─────────────────────────────────────────────────────────────┐ |
| │ OFFICER IS PERSONALLY LIABLE FOR: │ |
| │ 5% OF THE JUDGMENT/SETTLEMENT, OR $25,000 (WHICHEVER LESS) │ |
| └─────────────────────────────────────────────────────────────┘ |
| |
| * The public employer pays the remaining 95% of the judgment. |
| * If the officer cannot pay the 5%/$25k, the employer pays the |
| plaintiff, and the employer may collect from the officer. |
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The Good Faith Test for Personal Financial Liability
- Good Faith Determination: If the agency determines that the officer acted in good faith with a reasonable, objective belief that their conduct complied with statutory and constitutional standards, the agency indemnifies 100% of the judgment and legal costs.
- Lack of Good Faith Finding: If the agency determines that the officer acted maliciously, recklessly, or without a reasonable good faith belief of lawfulness (e.g., intentional unprovoked assault, deliberate falsification of reports, or flagrant unconstitutional searches), the officer is personally liable for five percent (5%) of the total judgment or settlement, or $25,000, whichever is less.
- Bankruptcy Inapplicability: Debts resulting from willful and malicious injury are non-dischargeable in federal bankruptcy proceedings.
3. POST Decertification Framework (C.R.S. § 24-31-305; POST Rules 9 and 18)
The Colorado Peace Officer Standards and Training (POST) Board regulates the certification, basic training, and revocation of peace officer licenses across the state.
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| COLORADO POST DECERTIFICATION GROUNDS |
| |
| MANDATORY REVOCATION GROUNDS (C.R.S. § 24-31-305; Rules 9/18): |
| * ANY FELONY CONVICTION (Colorado, Federal, or other state law) |
| * Specified Misdemeanor Convictions (Title 18 misdemeanors involving |
| unlawful force, domestic violence, perjury, official misconduct) |
| * Failure to Intervene / Report Excessive Force (C.R.S. § 18-8-802) |
| * Untruthfulness finding (C.R.S. § 24-31-305(2.5)) |
| * Finding of Excessive Force resulting in death or SBI |
| |
| EFFECT OF REVOCATION: |
| * PERMANENT AND IRREVOCABLE loss of peace officer certification. |
| * Entry into Statewide Peace Officer Credentialing Database. |
| * Entry into National Decertification Index (NDI). |
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Mandatory vs. Discretionary Decertification
- Mandatory Revocation: Under C.R.S. § 24-31-305(2), the POST Board must suspend or revoke certification upon a felony conviction at any time, or upon conviction of a misdemeanor listed in C.R.S. § 24-31-305(1.5) — a list that includes misdemeanors in article 8 of title 18, where the failure-to-intervene and failure-to-report offenses of C.R.S. § 18-8-802 sit. Under C.R.S. § 24-31-305(2.5) the Board shall revoke certification on an untruthfulness finding.
- Discretionary Suspension/Review: Imposed for administrative rule violations, failure to complete annual in-service training hours (Rule 28), or temporary medical/mental incapacity.
4. Untruthfulness Revocation (C.R.S. § 24-31-305(2.5)) & Brady Disqualification
Truthfulness is the foundational prerequisite of law enforcement credibility. Under C.R.S. § 24-31-305(2.5), the POST Board must revoke certification for untruthfulness independent of any criminal conviction, once the employing agency determines by clear and convincing evidence that the officer knowingly made an untruthful statement concerning a material fact, or knowingly omitted a material fact, in an official record, in testimony, or in an investigation. POST Rule 28 is the in-service training rule and has nothing to do with untruthfulness.
The Statutory Definition of Untruthfulness (C.R.S. § 24-31-305(2.5))
A peace officer commits untruthfulness when they knowingly make a false statement, material omission, or intentional misrepresentation in any of the following contexts:
- An official law enforcement report, affidavit for a search/arrest warrant, or evidence log;
- Sworn testimony under oath in any grand jury, preliminary hearing, motion hearing, or trial;
- An internal affairs investigation, administrative disciplinary interview, or background questionnaire;
- Mandatory excessive force reports required under C.R.S. § 18-8-802.
Brady / Giglio Consequences
Under Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972), prosecutors are constitutionally required to disclose evidence impeaching the credibility of government witnesses. An officer sustained for untruthfulness is placed on the District Attorney's Brady List, rendering them unable to testify in future criminal prosecutions, leading to mandatory POST revocation.
5. Colorado Peace Officer Credentialing and Database (C.R.S. § 24-31-903)
To prevent "wandering officers" (officers fired or under investigation for misconduct in one agency moving to another), Colorado created the Peace Officer Database operated by the POST Board under C.R.S. § 24-31-903.
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| COLORADO PEACE OFFICER DATABASE (C.R.S. § 24-31-903) |
| |
| MANDATORY DATABASE REPORTING BY ALL AGENCIES: |
| * All appointments, status changes, promotions, terminations |
| * Resignations while under active Internal Affairs (IA) investigation |
| * Sustained IA findings of excessive force, untruthfulness, or bias |
| * POST certification suspensions, revocations, and Brady entries |
| |
| MANDATORY PRE-HIRING EMPLOYER CHECK: |
| * Prospective hiring agencies MUST query the POST database prior to |
| hiring ANY peace officer applicant; |
| * Hiring agency MUST review full internal affairs files from prior |
| law enforcement employers. |
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6. Comprehensive Summary Table: Federal vs. Colorado Civil Liability & POST Accountability
| Area | Federal Standard (42 U.S.C. § 1983) | Colorado State Standard (C.R.S. § 13-21-131 / POST) |
|---|---|---|
| Qualified Immunity | Available defense; bars suit unless clearly established precedent exists. | Completely Abolished (C.R.S. § 13-21-131(2)(b)) in state court actions. |
| Constitutional Basis | U.S. Constitution (4th, 8th, 14th Amendments). | Colorado Constitution Bill of Rights (Article II). |
| Officer Personal Liability | Rarely assessed; 100% employer indemnification typical. | 5% of judgment or $25,000 (whichever less) if no good faith belief. |
| Attorney Fees | 42 U.S.C. § 1988 prevailing plaintiff fees. | Statutorily mandated for prevailing plaintiffs under § 13-21-131. |
| Untruthfulness Sanction | Brady listing; potential local discipline. | Mandatory revocation of POST certification (C.R.S. § 24-31-305(2.5)). |
| Hiring Oversight | Voluntary inter-agency reference checks. | Mandatory POST Database Query & IA File Review (C.R.S. § 24-31-903). |
A plaintiff files a civil rights lawsuit in Colorado state district court under C.R.S. § 13-21-131, alleging that an officer conducted an unconstitutional search of their home in violation of Article II, Section 7 of the Colorado Constitution. The officer moves to dismiss the claim on the grounds of qualified immunity, arguing that no prior published appellate decision has ruled this specific type of electronic surveillance unconstitutional under identical facts. How must the Colorado state court rule on the officer's motion?
A jury in Colorado state district court awards a $400,000 civil judgment against a police officer under C.R.S. § 13-21-131 for battery and unlawful excessive physical force. Following an internal review, the employing municipality formally determines that the officer did NOT act in good faith or upon a reasonable belief that their use of force was lawful. Under C.R.S. § 13-21-131(3), what is the maximum amount of personal financial liability that the officer must pay toward the judgment?
During an internal affairs investigation into missing seized narcotics from an evidence locker, a peace officer knowingly and intentionally makes false statements under oath to investigators to conceal their misconduct. The internal affairs division sustains the allegation of untruthfulness, and the District Attorney places the officer on the Brady disclosure list. Under C.R.S. § 24-31-305(2.5), what is the mandatory regulatory consequence regarding the officer's POST certification?