General Geoff
Member
Only to the extent that he is a professional who knows not to make unqualified conclusions about the bill beyond what the verbiage actually states.
Colorado and Qualified Immunity
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Of course he did not do that.
"What the verbiage actually states" is obvious to all.
A meaningful discussion from an attorney would cover how the law differs from what already exists, and what it really will mean in practice.
A lot of what that law prescribes has been the law for a very long time.
Parts are new.
Some of the new things may have really significant impacts.
That's what we would like to have discussed, beyond the letter of the black law.
General Geoff
Member
No point, any speculation uttered by a non-attorney is disregarded and belittled here. Lately, I don't see much reason why the Legal subforum is even open for discussion.
RetiredUSNChief
Member
Doesn't QI only apply if the officer was doing good job in accordance with his training in the first place?
We all know I'm not an attorney, and I'm not a LEO either. So my layman's understanding is limited on that basis.
But what in this verbiage setting that's any different than the way QI is supposed to work in the first place?
I'd sure like to hear @Spats McGee on this.
As described on the THR Index Page, the purpose of the Legal Forum is:
And the Legal Forum Guidelines say:
Can speculation and opinions not based on real world legal principles really serve such purposes? Does bad data or specious legal reasoning help understand what the law is and how it works?
And there are quite a few non-lawyers who make meaningful contributions to our discussions here. Non-lawyers can have a sound understanding of legal matters, and there are non-lawyers who have such an understanding. A solid understanding of law comes from disciplined study and research -- whether or not one is a lawyer.
Good information and well grounded opinions can help folks understand what the law is and how the law works -- whether the information or opinions come from lawyers or non-lawyers. But bad information and specious opinions help no one and can get folks into a lot of trouble.
General Geoff
Member
The stated purposes, to be blunt, are too narrow to even justify a discussion forum. Established law, be it legislation or case law, is already established. There is no discussion, only regurgitation of what already exists. Basically what you want is people to parrot what lawyers, judges and legislators have already put down on paper. Any discussion of upcoming legislation not yet established or not yet tested in court is closed.
Looking at the history of the legal subforum for the past few years, there are almost as many closed threads as there are open. Something is very wrong with a discussion forum that doesn't allow discussion. This particular subforum is very unfriendly to novice or ignorant gun owners who are just seeking some good information, counter to one of the primary missions of THR:
I've seen too many threads here get locked with the curt and ominous advice to "Consult your attorney." Well what is the point of the subforum if that's the broken-record advice always given?
"Law" does not exist in a vacuum. Law, including constitutions, statutes, regulations, and decisions of courts of appeal, is a tool used by courts to decide the case and controversies. While you may argue what the law is that is applicable to your case, it's up to the court, in the exercise of its judicial function to decide what law actually does apply and how it applies to the facts to decide the outcome. As the Supreme Court ruled back in 1803 (Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60, 1 Cranch 137 (1803), 1 Cranch at 177), "...It is emphatically the province and duty of the judicial department to say what the law is....."
And question continue to arise and be litigated regarding what even settled law means in a particular context or how it applies in a particular situation. So, for example, we've had a number of in-depth discussions about such things as: how federal law requiring a license to be a dealer in firearms might apply in various situations; what sorts of transactions would be an unlawful straw purchase and how a straw purchase is distinguishable from a gift; how federal law dealing with interstate transactions applies on various situations; what state "firearm freedom" laws mean in real world terms; the effect of state laws legalizing the medicinal or recreation use of marijuana affect the RKBA, to name must a few. These are existing laws whose application properly raise questions that warrant discussion.
And yes, discussions are properly based on, "..what lawyers, judges and legislators have already put down on paper...." because such writings can be legal authorities:
A bill in a legislature that is in process and hasn't yet been enacted into law isn't law. It would also be fruitless to discuss what it says and how it might apply because: (1) until it is actually enacted ti's subject to amendment, and therefore we don't know what it might ultimately say or how it might apply in a form as enacted, but different from the form discussed; and (2) it might even fail passage.
People come here seeking help with real life, serious, personal legal problems. Generally such problems can't be helped, and are most likely to be made worse, by discussing them in public with a bunch of anonymous strangers. There are many times when nothing short of an attorney one hires can be of any material assistance.
Now it's time for this off-topic excursion to come to an end.
Let's get back on topic.
.455_Hunter
Member
Not a legal opinion, but its important to note that this bill got almost unanimous support from both sides of the aisle in the legislature and some significant state LEO organizations.
This is a pdf of the final version of the Bill (SB20-217) linked to from the Colorado Legislature website. According to the information at the top of the Bill, this is the version sent to the Governor for signature; and according to the article linked to in the OP, it has been signed by the Governor.
So unless someone has better information, it appears that we can work with this version of the Bill as a basis for discussion of its meaning, application and legal effects.
So unless someone has better information, it appears that we can work with this version of the Bill as a basis for discussion of its meaning, application and legal effects.
Sort of mostly.... QI protects "all but the plainly incompetent and those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335 (1986). That's pretty broad. With that said, there are basically three routes to get to QI from a defense perspective:
(1) My client didn't violate the law;
(2) My client didn't violate a clearly-established law; and
(3) My client's behavior was reasonable under the circumstances.
It's not fatal to a QI defense if an officer acted outside his or her training, but in order to maintain QI, the defense will have to explain those actions and show that they were reasonable.
Jenrick
Member
Qualified immunity (QI from here on out), is a term used to refer to immunity to a federal civil suit. In general regarding an LEO's use of force the officer is granted immunity in a federal civil trial unless the plaintiff can show the following:
1) The officer violated a federal statute or constitutional right
2) That was clearly established at the time of the conduct, and that a reasonable officer would have known their conduct violated the aforementioned right/statute.
In Saucier v. Katz, 533 U.S. 194 (2001), the SCOTUS established the above test. Courts were required to determine 1, then move to 2. Several years later in Pearson v. Callahan, 555 U.S. 223 (2009), the Court ruled that either 1 or 2 could be addressed first. If either prong of the test was found to be a "no," there was no need to consider the other prong and the officer was granted QI.
In Use of Force cases, historically the courts (at all levels and most jurisdictions) have tended to require cases that are factually very similar to the case they are trying when considering prong 2. This has led to accusations that officers are unfairly extended QI by the courts. Be that as it may, that is the current jurisprudence.
The only sentence in the entire bill that has anything to do with qualified immunity is: "QUALIFIED IMMUNITY IS NOT A DEFENSE TO LIABILITY PURSUANT TO THIS SECTION."
Please note I am not familiar with CO law, my area of expertise is the state of Texas. With that said, it is possible that previously CO law allowed for those sued in both state and federal court, to utilize their qualified immunity (if so established in federal court) as a defense in state court. If that was the case, they may no longer do so. Regardless of that fact, state law has no bearing on Federal law or precedent.
In short this appears to change nothing as far as federal civil rights suits go, and might possibly only change a small number of state suits filed in Colorado that also had a Federal civil suit filed as well.
1) The officer violated a federal statute or constitutional right
2) That was clearly established at the time of the conduct, and that a reasonable officer would have known their conduct violated the aforementioned right/statute.
In Saucier v. Katz, 533 U.S. 194 (2001), the SCOTUS established the above test. Courts were required to determine 1, then move to 2. Several years later in Pearson v. Callahan, 555 U.S. 223 (2009), the Court ruled that either 1 or 2 could be addressed first. If either prong of the test was found to be a "no," there was no need to consider the other prong and the officer was granted QI.
In Use of Force cases, historically the courts (at all levels and most jurisdictions) have tended to require cases that are factually very similar to the case they are trying when considering prong 2. This has led to accusations that officers are unfairly extended QI by the courts. Be that as it may, that is the current jurisprudence.
The only sentence in the entire bill that has anything to do with qualified immunity is: "QUALIFIED IMMUNITY IS NOT A DEFENSE TO LIABILITY PURSUANT TO THIS SECTION."
Please note I am not familiar with CO law, my area of expertise is the state of Texas. With that said, it is possible that previously CO law allowed for those sued in both state and federal court, to utilize their qualified immunity (if so established in federal court) as a defense in state court. If that was the case, they may no longer do so. Regardless of that fact, state law has no bearing on Federal law or precedent.
In short this appears to change nothing as far as federal civil rights suits go, and might possibly only change a small number of state suits filed in Colorado that also had a Federal civil suit filed as well.
Agree. It clear on that.
What it purports to do is change the allocation of the responsibility for damages.
I'm not an expert, but this directly effects me and my office fought hard to get the bill to the final wording presented. A lot of others did too. The original wording totally stripped QI and left me on the hook for the first $100k of a settlement. No matter if I did my job right or not.
The current QI law is pretty much the same as what we've been doing for years. There are a few tweeks, I'm responsible for $25k but can now carry insurance to cover that, and some other minor things.
The bill was a knee jerk reaction by people that have no idea what we do and the final version really changed nothing as my office implemented these "changes" years ago.
The current QI law is pretty much the same as what we've been doing for years. There are a few tweeks, I'm responsible for $25k but can now carry insurance to cover that, and some other minor things.
The bill was a knee jerk reaction by people that have no idea what we do and the final version really changed nothing as my office implemented these "changes" years ago.
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