Law Enforcement Liability – More Police Reform In Colorado: Senate Bill 23-254 Makes Significant and Immediate Changes to Search Warrant Requirements

This article was written by Eric M. Ziporin and James T. Kadolph of the law firm of SGR, LLC. The firm is a member of CIRSA’s defense counsel panel and provides legal services to CIRSA and its members in a wide variety of claims including law enforcement liability claims. The authors welcome any questions regarding this article and can be reached at 303.320.0509.

Editor’s Note: If your city or town is a CIRSA member, CIRSA will, as a service to its members, make available the assistance of one of its defense panel attorneys to review and comment on your draft updates to any of your policies that are prepared to address the requirements of Senate Bill 23-254. CIRSA will provide up to three hours of attorney time to your entity for this assistance, at no member expense. This service is not a substitute for legal and other advice from your entity’s city or town attorney, police legal advisor, and law enforcement professionals. If your entity would like to obtain this CIRSA assistance, please call or email Sam Light, CIRSA Deputy Executive Director/General Counsel, at 720-605-8002 or saml@cirsa.org.

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Law enforcement reform continues in Colorado with each passing legislative session. Once again, reform has come to our State, likely by way of reaction to events that did not even occur in Colorado. The 2023 legislative session saw the passage of Senate Bill 23-254, which has changed the way that search warrants will be executed in Colorado.

Colorado Governor Jared Polis signed Senate Bill 23-254 into law on June 6, 2023. Given that this bill was signed with a safety clause, the bill took effect immediately that day. All of the bill’s new requirements explained in this article are now the law in Colorado.

The bill makes two significant structural changes in Colorado law. First, it imposes a new requirement for an officer to obtain a “no-knock” search warrant. Second, it changes to when an officer may enter a structure without a warrant, without announcing themselves (known as a “no-knock” search warrant).

To obtain a no-knock search warrant, an officer must now show that the no-knock entry is necessary because of a credible threat to the life of any person, including the peace officers executing the warrant. This is in addition to requirements already in place prior to the enactment of Senate Bill 23-254, including that there be a specific request for the issuance of a no-knock search warrant and that the requested affidavit has been reviewed and approved for legal sufficiency and signed by a district attorney. The effect of these changes is discussed further below in this article.

Senate Bill 23-254 also modifies the manner in which search warrants for a dwelling may be executed. First, the timing of the execution for those warrants is now limited to between 7 a.m. to 7 p.m. unless a judge expressly authorizes the execution of that warrant at a different time. Second, an officer executing a warrant must either be in uniform or wearing a visible law enforcement badge and must wear and activate their body-worn camera. Third, an officer executing a warrant must clearly identify themselves as a law enforcement officer, knock at the door of the dwelling, announce their presence loudly, and delay entry for a reasonable amount of time to allow someone to come to the door (and also wait if the officer has reason to believe someone is coming to the door with the intent of voluntarily allowing the officer to enter).

The three requirements above must be followed unless one of two possible conditions are met. First, an officer may choose to not follow the three requirements above if they have a no-knock warrant. Second, an officer may ignore the above requirements if the officer (at the time of executing the warrant) learns of an emergency threatening either the life of or grave injury to a person. Importantly, that emergency cannot be created by law enforcement.

Senate Bill 23-254 has dramatically changed when “no-knock” warrants may be obtained from a judge. Previously, a no-knock warrant could be obtained to prevent the destruction of evidence if that was deemed to be likely to happen if a standard “knock and announce” warrant were to be executed. Now, the potential destruction of evidence is explicitly deemed not to be a permissible reason to execute a no-knock warrant. Instead, an officer may only apply for a no-knock warrant when the service of a knock-and-announce warrant would pose a credible threat to the life of any person. Because of this, no-knock warrants are significantly less likely to be signed by judges.

Because there will be much fewer no-knock warrants granted, the changes to the requirements for the execution of knock-and-announce warrants matter significantly more. Officers will need to be keenly aware of the timing of the execution of search warrants on residences and will need to be prepared to allow sufficient time for any resident to answer the door.

In light of this new law, it is recommended that CIRSA members examine their policies and procedures concerning the application and execution of search warrants and update them where an update may be needed to comply with the new requirements of Senate Bill 23-254. If your member agency would like the assistance of one of CIRSA’s defense panel attorneys to review and comment on your draft updates, please call or e-mail Sam Light, CIRSA Deputy Executive Director/General Counsel, at 720-605-8002 or
saml@cirsa.org.

If you have questions regarding this article, please call our Liability Hotline at 720-605-8002 to speak to CIRSA’s General Counsel, Sam Light.

House Bill 21-1250 Whistleblower Protections and Requirements

All law enforcement agencies across Colorado know what it means when a person refers to “SB 20-217,” “the law enforcement integrity act,” and “HB 21-1250,” the 2021 legislation that amended certain provisions of SB 20-217 and enacted further measures concerning law enforcement accountability.

However, what you may not know is that—buried beneath the provisions in HB 21-1250 relating to body-worn cameras and use of force—there is a new statute that addresses retaliation against whistleblower peace officers.

Colorado Revised Statute § 24-31-906 (entitled “Retaliation against whistleblower officers prohibited” and set forth on pages 11-12 of HB 21-1250) prohibits a peace officer’s employer and the employer’s agent from discharging, disciplining, denying a promotion, transferring, reassigning, discriminating against, harassing, or threatening a peace officer’s employment because the peace officer disclosed information that shows:

A danger to public health or safety; or
A violation of law or policy committed by another peace officer.

All of this seems like common sense and not noteworthy, so why are we writing about it? The answer is this: While the new statute’s protections are already in place—they took effect July 6, 2021—the statute additionally requires all law enforcement agencies, by January 1, 2022, to provide a training available to employees, a workplace posting that is posted in a readily accessible area and in readable format, or both regarding this new statute. Also, all employees hired after January 1, 2022 must receive training on this statute during orientation.

The statute goes on to state that an employee or agent of a law enforcement agency that knowingly or intentionally violates its prohibitions “shall be disciplined appropriately by the law enforcement agency.” The statute is otherwise silent on remedies for a violation, so it is uncertain whether an employer could also face civil liability under this provision. But, irrespective of this uncertainty, an employer could face liability under existing federal law to the extent public employees have certain whistleblower protections under the First Amendment.

Thus, your law enforcement agency will want to be sure it provides for training and/or a workplace posting of this new law by the January 1, 2022 deadline, and training thereafter for new hires.

As of the date of this writing CIRSA is not aware of any template poster promulgated by the state of Colorado regarding this new statute.

If your agency is preparing its own training materials or poster and 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.

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