House Bill 25-1136

BY REPRESENTATIVE(S) Clifford and Bacon, Boesenecker, Duran, Lindsay, Mabrey, Sirota, Story, McCluskie, Froelich, Jackson, Rutinel;

also SENATOR(S) Snyder and Frizell, Cutter, Hinrichsen, Jodeh.

Concerning matters related to peace officers.

Be it enacted by the General Assembly of the State of Colorado:

SECTION 1.  In Colorado Revised Statutes, 24-31-303, amend (1)(r) as follows:

24-31-303.  Duties - powers of the P.O.S.T. board - definition. (1)  The P.O.S.T. board has the following duties:

(r) (I)  Subject to available appropriations, beginning on January 1, 2022, to create and maintain a database in a searchable format to be published on its website, containing information related to a peace officer's conduct pursuant to the provisions of section 24-31-321.

(A)  Untruthfulness;

(B)  Three or more failures to follow P.O.S.T. board training requirements within ten consecutive years;

(C)  Revocation of the certification by the P.O.S.T. board, including the basis for the revocation;

(D)  Termination for cause by the peace officer's employer unless the termination is overturned or reversed by an appellate process. A notation must be placed next to the officer's name during the pendency of any appellate process.

(E)  Resignation or retirement while under investigation by the peace officer's employing law enforcement agency, a district attorney, or the attorney general that could result in being entered into the database in this subsection (1)(r);

(F)  Resignation or retirement following an incident that leads to the opening of an investigation within six months following the peace officer's resignation or retirement that could result in being entered into the database in this subsection (1)(r);

(G)  Being the subject of a criminal investigation for a crime that could result in revocation or suspension of certification pursuant to section 24-31-305 or 24-31-904 or the filing of criminal charges for such a crime. The investigating law enforcement agency shall notify the P.O.S.T. board of the investigation or filing of criminal charges as soon as practicable, in a manner prescribed in P.O.S.T. board rule, so long as such notification is unlikely to disrupt or impede an investigation.

(H)  Actions as described by the applicable statutory provision identifying the basis for the credibility disclosure notification as set forth in section 16-2.5-502 (2)(c)(I).

(II)  Law enforcement agencies shall report to the P.O.S.T. board the information required in this subsection (1)(r) in a format determined by the P.O.S.T. board. Failure to submit such information is subject to a fine set in rule by the P.O.S.T. board.

(III)  For purposes of this subsection (1)(r), "untruthfulness" means a peace officer knowingly made an untruthful statement concerning a material fact or knowingly omitted a material fact on an official criminal justice record, while testifying under oath, or during an internal affairs investigation or administrative investigation and disciplinary process.

(IV)  Termination for cause.

SECTION 2.  In Colorado Revised Statutes, add 24-31-321 as follows:

24-31-321.  Peace officer conduct database - definition. (1)  The P.O.S.T. board shall create and maintain a database in a searchable format to be published on its website containing information related to a peace officer's:

(a)  Untruthfulness;

(b)  Three or more failures to follow P.O.S.T. board training requirements within ten consecutive years;

(c)  Revocation of the certification by the P.O.S.T. board, including the basis for the revocation;

(d)  Termination for cause by the peace officer's employer;

(e)  Resignation or retirement while under investigation by the peace officer's employing organization or another law enforcement agency in which the alleged misconduct, if sustained, would more likely than not result in being entered into the database pursuant to this section;

(f)  Resignation or retirement following an incident that leads to the opening of an investigation by the peace officer's employing organization or another law enforcement agency in which the alleged misconduct, if sustained, would more likely than not result in being entered into the database pursuant to this section, within six months after the peace officer's resignation or retirement;

(g)  Resignation in lieu of termination for cause;

(h)  Being charged with a crime that could result in revocation or suspension of certification pursuant to section 24-31-305 or 24-31-904. The employing organization shall notify the P.O.S.T. board of the filing of criminal charges as soon as practicable, in a manner prescribed in P.O.S.T. board rule.

(i)  Actions as described by the applicable statutory provision identifying the basis for the credibility disclosure notification as set forth in section 16-2.5-502 (2)(c)(I).

(2)  If a law enforcement agency reports a peace officer pursuant to either subsection (1)(e) or (1)(f) of this section, the peace officer, upon request, is entitled to a show cause hearing with the director of the P.O.S.T. board or their designee. The P.O.S.T. board shall obtain records from the reporting organization for the purpose of the show cause hearing and shall provide all records provided by the reporting organization to the appellant peace officer. Pursuant to the requirements of this section, the records of any employing organization, or former employing organization, that are submitted for review by the P.O.S.T. board and the appellant peace officer for the purposes of this show cause hearing remain the property of the reporting organization and are not subject to public release.

(3) (a)  Law enforcement agencies shall report to the P.O.S.T. board the information required in subsection (1) of this section in a format determined by the P.O.S.T. board. The P.O.S.T. board shall not include information in the database if the information is received from an agency that does not employ or has not employed the peace officer who is the subject of the information. Notwithstanding any other provision to the contrary, the P.O.S.T. board may enter reports into the database on behalf of an organization. The head of the law enforcement agency providing the report shall certify the accuracy of the information in the report. A knowing or willful failure to submit the information or certification or a knowing or willful submittal of false or inaccurate information is subject to a fine imposed by the P.O.S.T. board. When a failure to submit the information or certification or submittal of false or inaccurate information is determined, the P.O.S.T. board shall refer the matter to the appropriate district attorney and request the district attorney to conduct a criminal investigation.

(b)  After receiving a notification and upon request of the P.O.S.T. board, the law enforcement agency providing the report shall provide the P.O.S.T. board with all documents relevant to the investigation or cause for which the officer was placed in the database. If a law enforcement agency refuses to provide the records pursuant to this subsection (3), the P.O.S.T. board may subpoena the records. If the court or administrative law judge grants the subpoena, and subsequently does not grant a motion to quash the subpoena, the court may order the law enforcement agency to pay the P.O.S.T. board's attorney fees, costs, and fees related to the subpoena.

(c)  If the P.O.S.T. board received information regarding an incident involving a peace officer that would require a report pursuant to subsection (1) of this section, the organization employing the peace officer shall provide the P.O.S.T. board with all documents relevant to the incident upon request of the P.O.S.T. board. If a law enforcement agency refuses to provide the records pursuant to this subsection (3), the P.O.S.T. board may subpoena the records. If the court or administrative law judge grants the subpoena, and subsequently does not grant a motion to quash the subpoena, the court may order the law enforcement agency to pay the P.O.S.T. board's attorney fees, costs, and fees related to the subpoena.

(d)  The records of any law enforcement agency that are submitted for review by the P.O.S.T. board for the purposes of this subsection (3) remain the property of the reporting law enforcement agency and are not subject to public release by the P.O.S.T. board.

(4) (a)  The P.O.S.T. board shall create an appeal process for a peace officer to appeal the officer's inclusion in the database created in this section. The appeal must be conducted pursuant to the provisions of this section and P.O.S.T. board rules. The P.O.S.T. board shall give consideration to an officer's whistle blower status during the appeal. When a peace officer is added to the database, the P.O.S.T. board shall provide the peace officer with information about how to appeal that action on its website. If a peace officer initiates an appeal pursuant to this subsection (4), the reporting agency shall provide the P.O.S.T. board with all documents relevant to the discipline for which the officer was placed in the database upon request of the P.O.S.T. board. If a law enforcement agency refuses to provide the records pursuant to this subsection (4), the P.O.S.T. board may subpoena the records. If the court or administrative law judge grants the subpoena, and subsequently does not grant a motion to quash the subpoena, the court may order the law enforcement agency to pay the P.O.S.T. board's attorney fees, costs, and fees related to the subpoena.

(b)  The records of any law enforcement agency that are submitted for review by the P.O.S.T. board for the purposes of subsection (4)(a) of this section remain the property of the reporting law enforcement agency and are not subject to public release by the P.O.S.T. board.

(c)  If a peace officer appeals inclusion in the database pursuant to either subsection (1)(e) or (1)(f) of this section and the peace officer's organization completed its investigation of the officer's conduct after the officer resigned and the organization cleared the officer, the officer may use that determination in their appeal.

(5)  If a law enforcement agency reports information required pursuant to subsection (1) of this section and subsequently determines the entry was in error and informs the P.O.S.T. board of the error regardless of when the error occurred, the P.O.S.T. board shall remove the entry from the database after the P.O.S.T. board determines the entry was in error.

(6)  For purposes of this section, "untruthfulness" means a peace officer knowingly made an untruthful statement concerning a material fact or knowingly omitted a material fact on an official criminal justice record, while testifying under oath, or during an internal affairs investigation or administrative investigation and disciplinary process.

SECTION 3.  In Colorado Revised Statutes, 24-31-904, repeal (1)(a)(II) and (2)(a)(II); and add (1.5), (2.5), (5), and (6) as follows:

24-31-904.  Peace officer certification discipline. (1) (a)  Notwithstanding any provision of law, the P.O.S.T. board shall permanently revoke a peace officer's certification if:

(II)  The P.O.S.T. certified peace officer is found civilly liable for the use of unlawful physical force, or is found civilly liable for failure to intervene in the use of unlawful force and the incident resulted in serious bodily injury or death to another person;

(1.5)  The P.O.S.T. board may permanently revoke a peace officer's certification if the P.O.S.T.-certified peace officer is found civilly liable for the use of excessive or unconstitutional physical force or is found civilly liable for failure to intervene in the use of excessive or unconstitutional force, and the incident resulted in serious bodily injury or death to another person.

(2) (a)  Notwithstanding any provision of law, the P.O.S.T. board shall suspend a peace officer's certification for at least a year if:

(II)  The P.O.S.T. certified peace officer is found civilly liable for the use or threatened use of unlawful physical force, or is found civilly liable for failure to intervene in the use of unlawful force and the incident did not result in serious bodily injury or death to another person;

(2.5)  The P.O.S.T. board may suspend a peace officer's certification for at least one year if the P.O.S.T.-certified peace officer is found civilly liable for the use of excessive or unconstitutional physical force or is found civilly liable for failure to intervene in the use of excessive or unconstitutional force, and the incident did not result in serious bodily injury or death to another person.

(5)  If a law enforcement agency is investigating a peace officer for an incident that could result in a report pursuant to section 24-31-321 (1), the law enforcement agency shall inform the peace officer of the agency's duty to report that information and the consequences of the reporting.

(6)  An employer shall not agree to a settlement with a peace officer that includes the employing organization agreeing to not report the information required pursuant to section 24-31-321 (1).

SECTION 4.  In Colorado Revised Statutes, 24-33.5-115, amend (1) as follows:

24-33.5-115.  Peace officer hiring - required use of waiver - definitions. (1)  A state or local law enforcement agency, including higher education law enforcement agencies and public transit law enforcement agencies, shall require each candidate that it interviewsreceives a conditional job offer for a peace officer position who has been employed by another law enforcement agency or governmental agency to execute a written waiver that explicitly authorizes each law enforcement agency or governmental agency that has employed the candidate to disclose the applicant's files, including internal affairs files, to the state or local law enforcement agency and releases the interviewing agency and each law enforcement agency or governmental agency that employed the candidate from any liability related to the use and disclosure of the files. A law enforcement agency or governmental agency may disclose the applicant's files by either providing copies or allowing the interviewing agency to review the files at the law enforcement agency's office or governmental agency's office. A candidate who refuses to execute the waiver shall not be considered for employment by the interviewing agency. The agency interviewing the candidate shall, at least twenty-one days prior to making the hiring decision, submit the waiver to each law enforcement agency or governmental agency that has employed the candidate. A state or local law enforcement agency or governmental agency that receives such a waiver shall provide the disclosure to the agency that is considering the candidate for employment not more than twenty-one days after such receipt. A law enforcement agency or governmental agency that submits the waiver to another agency and does not receive the disclosure shall report that fact to the P.O.S.T. board. Upon receipt of the notice, the P.O.S.T. board may contact the agency, and if the agency does not provide the disclosure within six calendar days, the P.O.S.T. board shall not provide the agency with P.O.S.T. board funding for a period of one year or shall impose fines through the attorney general pursuant to section 24-31-307 and P.O.S.T. board rule, or both.

SECTION 5.  In Colorado Revised Statutes, 24-31-305, amend (1.7) as follows:

24-31-305.  Certification - issuance - renewal - revocation - rules - definition. (1.7) (a)  Unless revoked or voluntarily surrendered, a basic certification or reserve certification issued pursuant to this part 3 is valid as long as the certificate holder is continuously serving as a peace officer, or reserve peace officer, or works for a law enforcement agency in a non-peace-officer role and maintains annual training requirements established by the P.O.S.T. board.

(b)  If a basic or reserve certificate holder has not served as a peace officer or reserve peace officer for a total of at least six months during any consecutive three-year period, the certification automatically expires at the end of such three-year period, unless the certificate holder is then serving as a peace officer or reserve peace officer or had previously voluntarily surrendered his or hertheir certificate or then works for a law enforcement agency in a non-peace-officer role.

(c)  The P.O.S.T. board may promulgateadopt rules for the renewal of certification that expired pursuant to paragraph (b) of this subsection (1.7)subsection (1.7)(b) of this section.

SECTION 6.  In Colorado Revised Statutes, amend 16-2.5-152 as follows:

16-2.5-152.  Administrators of judicial security. Administrators of judicial security employed by the judicial department are peace officers while engaged in the performance of their duties whose primary authority includes the protection and security of the judiciary, judicial department personnel, and judicial facilities and who may cooperate with local law enforcement and whose authority includes the enforcement of all laws of the state of Colorado, and the administrators of judicial security must be certified by the P.O.S.T. board. For the purpose of seeking peace officer status for additional personnel under the title of judicial security administrator, notwithstanding the provisions of section 16-2.5-201, additional administrators of judicial security are granted temporary peace officer status pending application and review by the P.O.S.T. board. Following review by the P.O.S.T. board pursuant to section 16-2.5-201 and upon a favorable recommendation for peace officer status from the P.O.S.T. board to the general assembly, temporary peace officer status for additional administrators is permanent. If the P.O.S.T. board does not recommend peace officer status for additional personnel under the title of judicial security administrator, the temporary peace officer status expires on June 30, 2025, unless the general assembly provides otherwise. Any peace officer positions created pursuant to this section after January 1, 2025, shall be approved by the general assembly through a decision item in the judicial department's annual budget request.

SECTION 7.  In Colorado Revised Statutes, amend 16-2.5-102 as follows:

16-2.5-102.  Certified peace officer - P.O.S.T. certification required. The following peace officers shall meet all the standards imposed by law on a peace officer and shall be certified by the peace officers standards and training board, referred to in this article as the "P.O.S.T. board": A chief of police; a police officer; a sheriff; an undersheriff; a deputy sheriff; a Colorado state patrol officer; a town marshal; a deputy town marshal; a reserve police officer; a reserve deputy sheriff; a reserve deputy town marshal; a police officer or reserve police officer employed by a state institution of higher education; a Colorado wildlife officer; a Colorado parks and recreation officer; a Colorado police administrator or police officer employed by the Colorado mental health institute at Pueblo; an attorney general criminal investigator; a community parole officer; a public transit officer; a municipal court marshal; administrators of judicial security; and the department of corrections inspector general.

SECTION 8.  In Colorado Revised Statutes, amend 16-2.5-130 as follows:

16-2.5-130.  P.O.S.T. director - P.O.S.T. board investigator. The director of the P.O.S.T. board, deputy director, and a P.O.S.T. board investigator are peace officers while engaged in the performance of their duties whose primary authority shall include the enforcement of laws and rules pertaining to the training and certification of peace officers and shall include the enforcement of all laws of the state of Colorado and who may be certified by the P.O.S.T. board.

SECTION 9.  In Colorado Revised Statutes, 16-2.5-502, repeal (3)(e) as follows:

16-2.5-502.  Peace officer credibility disclosures - policies and procedures. (3)  On or before February 1, 2022, each district attorney shall make available to the public the policies and procedures created and implemented pursuant to subsection (2) of this section. The policies and procedures must include, but need not be limited to, a process for a district attorney to:

(e)  Remove any credibility disclosure notification records when appropriate and lawful.

SECTION 10.  Safety clause. The general assembly finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, or safety or for appropriations for the support and maintenance of the departments of the state and state institutions.