Colorado's sweeping police reforms passed in 2020 stripped the state's law enforcement officers of qualified immunity. Since then, police advocates have widely tested a form of common law immunity, with mixed results in the courts, the Denver Post reports. Civil rights attorneys say the fallback to common law is designed to keep law enforcement officers immune from civil claims despite the 2020 reforms. “It’s basically qualified immunity but by another name,” said attorney Andy McNulty. “They’re trying to shoehorn the same qualified immunity protections that Colorado legislators and citizens forcefully said should not be given to law enforcement officers in Colorado by raising these common law immunity defenses.”
A Boulder District Court judge last year found that common law immunity was still available to sheriff’s deputies in a jail excessive force lawsuit. A district court magistrate in Chaffee County ruled the opposite way in April in the case of a man who claimed he was arrested by SWAT officers who used a flash-bang grenade without warning to arrest him on misdemeanor charges. The Boulder judge found that because the Colorado Governmental Immunity Act was created in addition to — not instead of — common law immunity, the latter still exists and applies despite the 2020 reform, because the 2020 law did not explicitly wipe away common law immunity. The Chaffee County judge, by contrast, found that the 2020 law was plainly designed to prohibit both types of immunity for officers. Neither district court decision is binding on other courts or in other cases, and the issue may ultimately need to be settled by the Colorado Supreme Court, said Spencer Bryan, lawyer for the plaintiffs in one of the test cases. “We are just now seeing how defendants are going to try to address it, how courts are going to try to address it, and what really are the implications for the general public,” he said.