Police Reform and Eviction Bills: Why One Succeeded, Other Failed

Among the biggest issues before state lawmakers during the wrap-up of the 2020 Colorado legislative session were a sweeping police reform and accountability bill and a measure intended to extend an expiring moratorium against evictions amid the COVID-19 crisis.

But while both would affect an enormous number of individuals in this state — an estimated 400,000 people could lose their housing through this fall — the anti-eviction bill failed to gain widespread traction, while the ongoing Denver protests over law enforcement excesses continue to attract attention...and support. And In the end, that likely spelled the difference between victory and defeat.

Senate Bill 217, the formal name of the police accountability bill now headed to the desk of Governor Jared Polis, contains regulatory changes that activists have pushed for years but which had never before gotten anywhere close to passage. Here's a summary of its key provisions from the office of Representative Leslie Herod, among its primary sponsors:

• Mandate body cameras, make video of police misconduct publicly available, and hold officers accountable when they fail to record. Officers will have to record interactions with the public and, when they turn off their camera, they will be held accountable. When officers are accused of misconduct, the body cam footage must be released to the public within 21 days, and ensures the victim of the officer misconduct and the victim’s family receive the footage 72 hours prior to public release.
• Require data collection and public reporting on policing. All law enforcement agencies will be required to track demographic data of individuals they encounter. This data will include any use of force (both the type and severity), civilian searches, forced entries into homes, and the unholstering and discharge of a firearm.
• Rein in use of deadly force by officers. Changes use of force standard to (1) outlaw chokeholds; (2) outlaw deadly force against someone fleeing the police who does not pose an immediate risk; (3) outlaw the use of deadly force to arrest people for minor offenses and non-violent offenses; and (4) require officers to use non-violent means before resorting to any force.
• Require officers to intervene to stop excessive force. Creates a duty for officers to intervene and stop excessive force and makes failure to intervene by an officer a criminal offense.
• Decertify bad officers. If a court or internal investigations finds that an officer used unlawful force or officer is convicted of a violent offense, tampered with body camera footage to cover up misconduct, or failed to intervene to stop unlawful use of force that results in serious bodily injury or death, the officer will lose POST certification, thus stopping bad police officers from continuing to put the public at risk.
• Public database to prevent rehiring of bad officers. Officers who are found untruthful, terminated for cause, or decertified would be listed in a publicly-available database to prevent them from moving from one agency to another.
• Justice for victims of police violence by ending qualified immunity. The bill allows victims of police misconduct to bring a lawsuit for the violation of their constitutional rights. Officers found liable will no longer be shielded by the doctrine of qualified immunity which has served to protect bad officers from accountability and denied justice to victims.
• Protect protesters from police use of tear gas and projectiles. In response to incidents at recent protests, this bill prohibits law enforcement officers from shooting rubber bullets indiscriminately into a crowd and prohibits targeting rubber bullets at someone’s head, torso, or back. It also prohibits using tear gas without first warning at the crowd, and giving people time and a route to disperse.
• Attorney general lawsuits against bad police departments. Authorizes the Attorney General to bring lawsuits to force bad police departments to change and to bring criminal charges against officers for violations of POST standards.

Even more astonishing than the scope of these policy changes is the buy-in from Republicans — the bill had overwhelming bipartisan support — and law enforcement groups.

Witness this comment from Colorado Fraternal Order of Police President Steve Schulz: "As difficult as this legislative process has been, we really do believe this is going to make us better. We also recognize that these collaborative conversations should have been occurring prior to George’s Floyd’s tragic death. We are committed to keeping the lines of communication open between law enforcement agencies, the communities we serve and lawmakers so that we can continue to work together and make necessary changes before crises arise."

And this from Broomfield Police Chief Gary Creager, who currently chairs the Colorado Association of Chiefs of Police: "Collaboration among lawmakers, advocates and other stakeholders to work together on policy is essential. From the start, we have been committed to the intent of this proposal. Many of the policies included in Senate Bill 217 are already in place at the local level, but we are glad to have statutory support for changes that law enforcement can implement uniformly statewide. We look forward to continued partnership with our communities and the Legislature to ensure policing in Colorado is transparent and fair."

The push for anti-eviction legislation started out strong, with assorted advocacy groups calling for a rent freeze in late March, shortly after Polis issued a stay-at-home order for the state; one prominent rent-strike organization urged supporters to take part in noisy, at-home demonstrations by shouting, banging pots and pans, honking car horns and using any other method that would get officials to pay attention to their plight.

But unlike the protests to end police violence, these efforts failed to catch on with the public at large. And in the end, a proposal by Senator Julie Gonzales to extend the eviction moratorium through October fell short.

As Zach Neumann, president of the COVID-19 Eviction Defense Project, explains via email: "In the end, there weren't enough Democratic votes in the Colorado State Senate to get it passed. It was a surprise: We issued a letter calling for an extension of the moratorium and almost all of the Democrats in the State Senate and house signed it, along with city council members from across the state, and State Treasurer Dave Young and Secretary of State Jena Griswold. Only a very small number of Democrats refused to speak up or take action on the issue."

Shortly after Gonzales's bill died, Polis issued a new executive order regarding evictions, but it's hardly an extension of the ban. Here are its main directives:

A. I temporarily suspend [statutes] requiring landlords to provide tenants ten (10) days’ notice of any default for non-payment of rent during which time the tenant has the opportunity to cure the default. Landlords must provide tenants with thirty (30) days’ notice of any default for non-payment before initiating or filing action for forcible entry and detainer. Such 30-day notice may extend beyond the expiration of this Executive Order. During this thirty (30) day period, tenants shall have the opportunity to cure any default for nonpayment.
B. I direct the Executive Director of DOLA to work with landlords to implement the model rent repayment agreements created by DOLA to assist individuals who are unable to pay rent because they have been impacted by financial hardship due to COVID-19.
C. Landlords and lenders are prohibited from charging any late fees or penalties for any breach of the terms of a lease or rental agreement due to nonpayment that were incurred from May 1, 2020 until June 13, 2020.
D. Nothing in this Executive Order shall be construed as relieving an individual from their obligation to make mortgage or rent payments.

Neumann's take: "The extension of the notice period from thirty days to ten days will help buy some people time. However, for those who have already been filed against, and many who have already received demands, this executive order will not prevent them from being evicted from their homes. Additionally, those who are living in properties covered by the CARES Act moratorium will not face the initiation of eviction proceedings until late July."

Nonetheless, he concedes that the fallout from he moratorium's end "has been rough. I've been calling clients...who don't fall under the executive order to let them know that they'll need to move out of their homes this week. Some have the funds to get a motel, others will be heading for homeless shelters. I think the bigger risk, though, is later in the summer. Our analysis shows mass displacement without the extension of federal enhanced unemployment insurance or a dramatic and rapid return to normal economic activity."