Law Enforcement Liability – New Requirements Regarding Peace Officer Credibility Disclosures and Eyewitness Identification Techniques

During its 2021 session, the Colorado Legislature passed two bills that require law enforcement agencies to adopt written policies and procedures. Senate Bill 21-174 relates to peace officer credibility disclosures and requires law enforcement agencies to adopt policies by January 1, 2022. House Bill 21-1142 relates to eyewitness identification techniques and required agencies to adopt written policies by November 15, 2021.   HB 21-1142 also requires agencies to collect data regarding their use of eyewitness identification techniques (or showups) starting January 1, 2022.

Below is a summary of each bill and information regarding what policies and procedures must be adopted by your law enforcement agency.  Also included are links to each bill and to drafts of the model policies developed by the policy drafting committees created by the bills.

SB 21-174 – Peace Officer Credibility Disclosures was enacted to provide more consistency in reporting concerns regarding the credibility of peace officers. The bill formed the Peace Office Credibility Disclosure Notification Committee, which was tasked with creating a statewide model policy for peace officer credibility notifications. The legislation mandated the model policy address circumstances when a law enforcement agency must notify its district attorney’s office of certain investigations and findings related to its law enforcement officers.

By January 1, 2022, each law enforcement agency is required to adopt and implement written policies and procedures consistent with the statewide model for peace officer credibility notifications. Most law enforcement agencies have existing policies relating to what is commonly referred to as Brady notifications (Brady v. Maryland, 373 U.S. 83 (1963).) Those policies should be reviewed to ensure they are consistent with and encompass everything in the statewide peace officer credibility notification model policy. If your law enforcement agency does not have written policies addressing Brady notifications, it must adopt policies consistent with the model policy by January 1, 2022.

A link to a draft of the statewide model policy can be found here (CIRSA member website access required) or by contacting CIRSA General Counsel Sam Light, at saml@cirsa.org.

A link to SB 21-174 can be found here.

HB 21-1142 – Eyewitness Identification Techniques mandated every law enforcement agency that requires its officers to be POST certified, adopt written policies and procedures concerning eyewitness identifications by November 15, 2021, review such policies every five years, AND collect data relating to identification techniques. The Legislature found that showup identifications are disfavored as inherently suggestive and are likely to yield false identifications and therefore are admissible only when the prosecution can demonstrate law enforcement’s strict compliance with showup requirements.

The legislation formed a committee to develop and recommend model policies and procedures. Those model policies have not yet been finalized, but a link to a draft of the policies can be found here (CIRSA member website access required) or by contacting CIRSA General Counsel Sam Light, at saml@cirsa.org.

Additionally, beginning January 1, 2022, each law enforcement agency that uses showups must collect the following data related to those identification techniques:

• The date, time, and location of the showup;
• The gender, age, and race of the subject and eyewitness in the showup as determined by the law enforcement officer’s perception or the subject’s identification or retrieved from a database accessible by law enforcement;
• The alleged crime; and
• The outcome of the showup.

Beginning January 1, 2023, the above data must be reported to the Division of Criminal Justice.

HB 21-1142 also outlines when a law enforcement officer may use a showup. A link to the legislation can be found here.

While neither recent bill expressly creates any new legal causes of action, a failure to adopt and implement appropriate policies regarding law enforcement operations can be a source of potentially significant liability under existing federal and state law.

Every law enforcement agency should review its policies and procedures to ensure compliance with the above legislation. If your agency would like CIRSA assistance, please reach out to CIRSA General Counsel Sam Light, at saml@cirsa.org.

-The above article was prepared by Jenna Roth, Esq. of the law firm of Michow Cox & McAskin, LLP