Colorado is poised to become the first state to regulate how its law enforcement agencies handle “Brady lists” of police officers whose credibility could undermine a case in which they are involved.
“No one bill will address what all of the law enforcement agencies in the state are doing with these lists, but this bill brings honesty and fairness to the process.”
If passed, Senate Bill 21-174 would require local law enforcement agencies to notify district attorneys of any internal investigations against officers alleged to have made untruthful statements; demonstrated a pattern of bias against a protected class; commited a crime involving dishonesty, violating someone’s constitutional rights; or tampered with evidence.
The bill would require district attorneys to deliver policies and procedures to notify defense attorneys or defendants of alleged violations and to remove records found to be inaccurate or false.
The bill has earned the support of many of the state’s law enforcement agencies, including the Colorado Association of Police Chiefs, the Fraternal Order of Police’s Labor Division, and the Colorado District Attorneys Council.
Ron Sloan, the former director of the police chief’s association, told Colorado’s Senate Judiciary Committee that the bill makes some much-needed clarifications to state law. Currently, there is no requirement for law enforcement agencies to turn Brady lists over to local district attorneys—they simply rely on the good faith of the police.
Sloan added that his organization is already in compliance with the bill’s terms, and is always “working to uphold the credibility of police officers across the state.”
Named after the 1963 Supreme Court Case Brady v. Maryland, the lists are meant to protect the rights of criminal defendants. Brady established the precedent that it is a violation of due process for the prosecution to withhold evidence that could help an individual accused of a crime.
To conform to the ruling, states adopted statutory protections and revised their rules of criminal procedure. For example, Rule 16 of Colorado’s Rules of Criminal Procedure requires prosecutors to disclose to the defense evidence within their control that would either “negate” the guilt of the accused, or reduce their punishment.
Local government officials face steep civil and federal liabilities for Brady violations as well. Anyone who intentionally commits such a violation can be prosecuted under federal law for depriving an individual of their civil rights.
These penalties are part of the reason that Fair and Just Prosecution, a mentorship program for newly elected prosecutors, describes Brady lists as “a necessary and recognized way to meet the prosecutor’s important role and ethical obligations as a minister of justice.”
However, Brady lists remain controversial because they are often kept secret from the public. Officers who end up on Brady lists do so because of information contained in their personnel files or from a staff investigation report. Under Colorado’s Open Records Act, both of these documents are exempt from discovery and, therefore, the Brady list is, too.
Other states, including Washington and Arizona, have tried to regulate Brady lists in the past. Thomas Raynes, executive director of the Colorado District Attorneys Council, said these efforts ultimately failed because lawmakers were forced to walk too thin a tightrope.
“It is laudable in that the bill seeks to provide a clear and unambiguous statute for law enforcement agencies across the state to apply evenly,” Raynes told the committee. “But it is treacherous in that by codifying these issues—criminality, bias, untruthfulness, and so forth—there is an opportunity for the statute to stray from its original intent.”
State Senator Bob Gardner, Republican of Colorado Springs, said in the hearing that the provisions requiring police officers who show a pattern of bias or discrimination could be malleable. He wondered whether an officer being videotaped in several “street confrontations” would constitute a pattern of bias or discrimination.
One of the bill’s sponsors, State Senator John Cooke, Republican of Greeley, replied that the intent of the bill is to omit these incidents unless an internal affairs investigation substantiates the allegations of bias against the officer. Other minor infractions such as sleeping on the job would be excluded as well, Cooke said.
However, Cooke added that the provisions of the bill would only apply to officers with sustained allegations of bias against them. Cooke pointed to the 2019 firing of two St. Louis Metropolitan Police Department officers for making racist Facebook posts as examples of the legislation’s intent.
Larimer County Sheriff Justin Smith told the Judiciary Committee that supports the bill because it provides a critical, consistent process that can be applied across the law enforcement spectrum.
“No one bill will address what all of the law enforcement agencies in the state are doing with these lists, but this bill brings honesty and fairness to the process,” he said.
Colorado has been making strides toward addressing police accountability over the past three legislative sessions. In 2019, the Colorado general assembly passed a law requiring the state’s Police Officer Safety Training Board to revoke the certification of officers who knowingly make false statements or omit material facts while under oath or during an internal investigation.
By December 2020, six officers had been dismissed from duty under this new statute.
State law enforcement agencies were placed under heightened scrutiny last summer as the George Floyd protests took place across the country. The agencies responded to the protests forcefully and caused several permanent injuries to protestors, according to a report by Denver’s Office of the Internal Monitor, an agency tasked with overseeing the police.
After lawmakers returned to the general assembly from a six-week recess because of COVID-19, they swiftly passed the “Enhance Law Enforcement Integrity Act,” also known as SB-217. The bill effectively ends defenses of qualified immunity and increases transparency requirements for police departments.
However, the law doesn’t take effect until 2023.
SB-174 would take effect on January 1, 2022, if Governor Jared Polis signs it. For State Senator Julie Gonzales, Democrat of Denver, the bill would solve an immediate problem facing her district’s police force.
“Systemically, this bill helps address issues that come about when local District Attorneys fail to enforce these measures,” Gonzales told the committee.
A review of the Denver police force conducted in December 2020 found that at least fifty-seven current and former officers and other staff members had credibility issues, according to The Denver Post.
Of the fifty-seven identified officers, twenty-nine were still employed with the department at the time the report was published. They included five sergeants and one captain. Denver’s current sheriff, Elias Diggins, was implicated in the review for a 1996 conviction for false reporting.
While the records do not indicate whether an officer’s untruthful testimony wrongfully impacted a trial, The National Registry of Exonerations shows that Colorado has granted four exonerations for official misconduct since 1995. Of the eleven total cases, eight arose from misconduct, mistaken identity, or false accusation.
“The credibility of law enforcement officials at all levels is at stake,” Gonzales said.