5.1 Colorado Statutory Use of Force Standards (C.R.S. § 18-1-707)

Colorado Statutory Use of Force Standards (C.R.S. § 18-1-707)

The authority of a peace officer to use physical force in the State of Colorado is governed by C.R.S. § 18-1-707. Following the passage of landmark legislative reforms—specifically Senate Bill 20-217 (the Law Enforcement Integrity and Accountability Act of 2020) and House Bill 21-1250—Colorado enacted some of the most rigorous and restrictive use-of-force statutes in the United States. Colorado peace officers must master not only federal Fourth Amendment constitutional principles, but also Colorado's heightened statutory constraints that strictly limit officer discretion, mandate de-escalation exhaustion, demand proportionality, and restrict deadly physical force to narrow circumstances.

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1. The Dual Legal Framework: Federal Constitutional Floor vs. Colorado Statutory Ceiling

To properly evaluate any use-of-force encounter in Colorado, peace officers must understand the interaction between federal constitutional law and Colorado state statutory law.

+-------------------------------------------------------------------------+
|                    USE OF FORCE REGULATORY HIERARCHY                    |
|                                                                         |
|   +-----------------------------------------------------------------+   |
|   | COLORADO STATUTORY CEILING (C.R.S. § 18-1-707)                  |   |
|   | * Mandatory De-escalation & Exhaustion of Alternatives          |   |
|   | * Statutory Proportionality Mandate                             |   |
|   | * Narrowed Deadly Force Justification (SBI / Death Imminence)   |   |
|   | * Total Statutory Ban on Shooting Fleeing Non-Violent Suspects  |   |
|   +-----------------------------------------------------------------+   |
|                                   │                                     |
|                                   ▼ (Limits Discretion Far Beyond)      |
|   +-----------------------------------------------------------------+   |
|   | FEDERAL CONSTITUTIONAL FLOOR (4th Amend. / Graham v. Connor)     |   |
|   | * Objective Reasonableness standard                             |   |
|   | * Graham 3-Factor Balancing Test                                |   |
|   | * Split-second decision deference ("allowance for tense scenes")|   |
|   +-----------------------------------------------------------------+   |
+-------------------------------------------------------------------------+

The Federal Floor: Graham v. Connor (490 U.S. 386 (1989))

Under the Fourth Amendment, all claims that law enforcement officers have used excessive force in the course of an arrest, investigatory stop, or other seizure of a free citizen are analyzed under the Objective Reasonableness standard. In Graham v. Connor, the U.S. Supreme Court established that reasonableness must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.

The classic Graham analysis balances three core factors:

1. Severity of the Crime: The severity and violent nature of the underlying offense at issue.
2. Immediate Threat: Whether the suspect poses an immediate threat to the physical safety of officers or others.
3. Active Resistance or Flight: Whether the suspect is actively resisting arrest or attempting to evade arrest by flight.

The Colorado Statutory Transformation: Beyond Graham

While Graham v. Connor sets the constitutional minimum across the nation, Colorado statute C.R.S. § 18-1-707 establishes a significantly higher, more restrictive standard. Under Colorado law, an officer's actions cannot merely satisfy the broad federal "objective reasonableness" test; they must strictly comply with codified statutory preconditions:

• An affirmative duty to utilize de-escalation techniques and exhaust nonviolent alternatives;
• A mandatory requirement of force proportionality;
• Codified limitations on deadly physical force requiring actual imminent threat of death or serious bodily injury;
• Immediate cessation of force when resistance stops.

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2. Non-Deadly Physical Force Requirements (C.R.S. § 18-1-707(1))

Under C.R.S. § 18-1-707(1), a peace officer is justified in using non-deadly physical force upon another person only when necessary to:

1. Effect an arrest or prevent an escape from custody of a person whom the officer reasonably believes has committed an offense; or
2. Defend the peace officer or a third person from what the officer reasonably believes to be the use or imminent use of unlawful physical force.

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|          COLORADO STATUTORY PREREQUISITES FOR PHYSICAL FORCE            |
|                                                                         |
|   1. LAWFUL PURPOSE         2. DE-ESCALATION EXHAUSTION  3. PROPORTIONALITY|
|   * Effect lawful arrest    * Apply nonviolent methods   * Tailored to  |
|   * Prevent lawful escape   * Exhaust alternatives       severity of  |
|   * Self-defense / defense  * Feasibility exception       threat/crime |
|     of third persons          (officer safety risk)      * Cease at once|
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A. The Mandatory De-Escalation & Exhaustion Requirement (C.R.S. § 18-1-707(1)(a))

Colorado statute codifies an explicit, affirmative prerequisite to physical force:

"A peace officer shall apply nonviolent means, when possible, before resorting to the use of physical force. A peace officer may use physical force only if nonviolent means would be ineffective in effecting an arrest, preventing an escape, or preventing an imminent use of unlawful physical force."

Key Operational Requirements of De-Escalation:

• Verbal Communication & Persuasion: Giving clear, calm instructions, active listening, and attempting voluntary compliance.
• Tactical Positioning: Utilizing distance, cover, barriers, and concealment to slow down the tempo of an encounter and avoid forcing a rapid physical confrontation.
• Calling for Specialized Resources: Requesting mental health co-responders, crisis intervention team (CIT) officers, or additional cover units when time permits.
• Feasibility Exception: An officer is excused from verbal de-escalation only when an immediate physical threat makes de-escalation impossible without significantly increasing the risk of death or injury to the officer or public.

B. The Statutory Principle of Proportionality (C.R.S. § 18-1-707(1)(b))

Colorado law strictly mandates that any physical force used must be proportional:

"The physical force must be proportional to the threat, actions, and resistance of the person, the severity of the offense, and the officer's safety and the safety of others."

Furthermore, Colorado law requires continuous reassessment: The officer must immediately cease the use of physical force as soon as the suspect stops resisting, is placed under physical control, or complies with lawful commands. Continued application of force after control is established is unlawful excessive force per se.

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3. Deadly Physical Force Justification Standards (C.R.S. § 18-1-707(2))

"Deadly physical force" means force, the intended, natural, and probable consequence of which is to produce death, or which does, in fact, produce death (C.R.S. § 18-1-901(3)(d)).

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|         DEADLY PHYSICAL FORCE STATUTORY THRESHOLD (C.R.S. § 18-1-707(2)) |
|                                                                         |
|   A peace officer is justified in using deadly physical force ONLY when:|
|                                                                         |
|   1. IMMINENT DANGER:                                                   |
|      The officer has an objectively reasonable belief that there is an  |
|      IMMINENT DANGER of DEATH or SERIOUS BODILY INJURY (SBI) to the     |
|      peace officer or another person; AND                               |
|                                                                         |
|   2. DEADLY THREAT / FELONY CRITERIA:                                   |
|      (A) Suspect has used or threatens use of deadly physical force, OR |
|      (B) Suspect poses an immediate threat of death or SBI, OR          |
|      (C) Force is necessary to arrest/prevent escape of a person who    |
|          committed a felony involving deadly weapon use and poses an    |
|          immediate threat of death or SBI; AND                          |
|                                                                         |
|   3. EXHAUSTION OF ALTERNATIVES:                                        |
|      The officer has EXHAUSTED ALL REASONABLE ALTERNATIVES, including   |
|      de-escalation, warnings, and non-deadly force, where feasible.     |
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The Three Cumulative Elements for Deadly Force Justification

Under C.R.S. § 18-1-707(2), deadly physical force is legally justified only when all three statutory conditions are satisfied:

1. Imminent Danger of Death or Serious Bodily Injury (SBI): The officer must reasonably believe that a person is in imminent danger of being killed or suffering serious bodily injury. Serious bodily injury under C.R.S. § 18-1-901(3)(p) involves a substantial risk of death, serious permanent disfigurement, or protracted loss or impairment of any bodily function/organ, or fractures.
2. Conduct-Based Justification: The suspect must have used or threatened deadly physical force, or pose an immediate lethal threat, or be escaping after committing a felony involving a deadly weapon.
3. Exhaustion of All Reasonable Alternatives: The officer must have exhausted all less-lethal options (e.g., verbal warnings, CEWs/tasers, batons, pepper spray, tactical repositioning) prior to discharging a firearm, unless an immediate lethal attack makes exhaustion impossible.

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4. Fleeing Suspects: Tennessee v. Garner vs. Colorado Statutory Prohibition

One of the most heavily tested areas of peace officer certification is the legal standard governing the use of force against fleeing suspects.

The Federal Standard: Tennessee v. Garner (471 U.S. 1 (1985))

Under federal constitutional law (Tennessee v. Garner), an officer may not use deadly force to prevent the escape of a fleeing suspect unless:

1. The officer has probable cause to believe the suspect poses a significant threat of death or serious physical injury to the officer or others; and
2. The officer provides a warning where feasible.

The Colorado Statutory Rule (C.R.S. § 18-1-707(2))

Colorado law is far more restrictive than Garner. Under C.R.S. § 18-1-707(2):

• Peace officers are strictly prohibited from using deadly physical force against a fleeing suspect who is non-violent or suspected only of property crimes, drug offenses, or non-weapon felonies.
• Even if a suspect committed a felony, deadly force during escape is lawful only if the felony involved the use or threatened use of a deadly weapon AND the suspect currently poses an immediate threat of death or SBI to others if not immediately apprehended.
• No Deadly Force Solely to Prevent Destruction of Evidence (C.R.S. § 18-1-707(3)): A peace officer is never justified in using deadly physical force solely to prevent a suspect from destroying evidence or property.

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5. Mandatory Verbal Warning Requirement (C.R.S. § 18-1-707(4))

Under Colorado law, prior to deploying deadly physical force, a peace officer must identify themselves as a peace officer and give a clear verbal warning of the intent to use deadly force (e.g., "Police! Stop or I will shoot!"), unless giving such a warning would directly impair officer safety or increase the imminent danger of death or serious bodily injury to another person.

[!IMPORTANT] The Post-2020 Statutory Rule: Failing to attempt de-escalation, failing to give a feasible warning, or using force disproportionate to the threat destroys an officer's statutory justification under C.R.S. § 18-1-707, exposing the officer to state criminal prosecution (Assault, Manslaughter, or Murder) and civil liability without qualified immunity under C.R.S. § 13-21-131.