Law Enforcement Liability – More Police Reform in Colorado: House Bill 24-1372 Establishes New Restrictions and Requirements for Use of Prone Restraint

This article was written by Jonathan Abramson and Julie Nikolaevskaya 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 House Bill 24-1372. 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 e-mail Sam Light, CIRSA Deputy Executive Director/General Counsel, at 720-605-8002 or saml@cirsa.org.

The 2024 Colorado legislative session included an additional round of bills addressing law enforcement operations. Prominent among the bills passed is House Bill 24-1372 (also, “HB 1372” or “the Bill”), which establishes new restrictions and requirements for use of prone restraint. This article summarizes the key requirements of the Bill, which is now the law in Colorado. CIRSA member law enforcement agencies will want to ensure they are familiar with the requirements of the Bill and are taking the steps needed to ensure compliance.

Governor Polis signed HB 1372 on June 3, 2024, and the Bill became effective on the same day. The Bill added a new Subsection (2.7) to Section 18-1-707 of the Colorado Revised Statutes (“C.R.S”), which Section is entitled “Use of Force by Peace Officers – Definitions”. Section 18-1-707 sets forth legal standards for uses of physical force by peace officers, and HB 1372 added the new Subsection (2.7) to specifically address the use of prone restraint.

As codified, Subsection (2.7) defines “prone restraint” as a use of physical force, including, but not limited to, the use of a mechanical restraint, in which the person who is being restrained is in the prone position. See C.R.S. §18-1-707(2.7)(a)(III). “Prone position” is defined as a position in which a person is laying on a solid surface with the person’s chest and abdomen positioned downward even if the person’s face is turned to the side or the person has one shoulder lifted. See C.R.S. §18-1-707(2.7)(a)(II). “Mechanical restraint” is defined as a physical
device used to involuntarily restrict the movement of a person or the movement or normal function of a portion of a person’s body. See C.R.S. §18-1-707(2.7)(a)(I).

By its addition of Subsection (2.7) into the use of force statute, House Bill 24-1372 subjects a peace officer who uses unlawful force or fails to intervene in the unlawful use of force as it pertains to use of prone restraint to criminal and civil penalties as well as disciplinary measures through the Peace Officers Standards and Training Board (“P.O.S.T. Board”).

House Bill 24-1372 also includes new requirements for policies and training. Specifically, C.R.S. §18-1-707(2.7)(b) requires that on or before July 1, 2025, law enforcement agencies shall adopt written policies and procedures concerning the use of the prone position and prone restraint by 1) officers certified by the P.O.S.T. Board; 2) sheriff’s deputies, regardless of P.O.S.T. Board certification, who are engaged in patrol, arrest, taking suspects into custody, transporting detainees, or who have direct contact with inmates within county or local jails; and 3) Colorado state patrol officers. These adopted policies and procedures must be posted by law enforcement agencies on their publicly accessible websites or, if the entity does not have a publicly accessible website, make them available upon request.

In addition, under C.R.S. §18-1-707(2.7)(c), the policies and procedures must include and address 1) when and how to request or render medical aid for use of force involving prone restraint; 2) when to get medical clearance for use of force involving a prone restraint when there are injuries or complaints of injuries; 3) how and when to render appropriate medical aid within the scope of a peace officer’s training for any use of force involving prone restraint, and 4) how and when to appropriately and safely transition a person placed in a prone position into a recovery position that allows the person to breathe normally. “Recovery position” is defined as a position other than prone position that allows the person to breathe normally. See C.R.S. §18-1-707(2.7)(a)(IV).

In addition to policy adoption, HB 1372 requires law enforcement agencies to review the adopted policies and procedures at least every five years and, beginning on or before July 1, 2026, to implement and train peace officers on their contents. The P.O.S.T. Board must make its training on the use of the prone position available to all law enforcement agencies in the state.
Because in Colorado the use of prone restraint is now codified as a use of force incident, law enforcement officers must act objectively reasonable in light of facts and circumstances confronting them in each use of a prone restraint.

In light of the new requirements of HB 1372, it is recommended that CIRSA members examine their use of prone restrain policies and procedures to determine if their current policies and procedures comply with applicable law. If no such policies and procedures exist, CIRSA members must begin work on adopting such policies and procedures by July 1, 2025.

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Colorado Legislature Establishes Disaster Resilience Program & Fund

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As events over the past few years have demonstrated, massive wildfires are an increasingly common occurrence in Colorado—with devasting effects. According to the state, four of the five largest wildfires in Colorado history, in terms of acreage, have occurred since 2018. Urbanized areas are not immune–the 2021 Marshall Fire was the most devasting in Colorado history, with 1,084 homes destroyed and total losses estimated by some insurance industry experts in excess of $1 billion.

Much of the focus of wildfire recovery is on replacing destroyed buildings. Fortunately, and in sharp contrast to the enormous losses faced by other property owners, CIRSA members have suffered no losses of buildings from recent wildfires. But, as the Marshall Fire has shown, municipalities can face a variety of significant, unanticipated losses when a wildfire occurs in an urbanized area. These losses can include but are not limited to damages to transportation infrastructure and loss of taxes, utility fees, and other revenue sources that were adversely affected by wildfire.

While property insurance coverages—including CIRSA’s coverage for its members—are specifically designed to address the direct physical loss of or damage to a member’s property, certain other types of properties and losses are excluded either because insurance cannot support their enormous replacement cost, or because the loss is not the result of direct physical loss.

For example, roads and sidewalks are property excluded from CIRSA’s coverage form, though some related improvements, like street lights, may be covered depending on the cause of loss. As another example, “business interruption” or “loss of business income” coverage applies in certain circumstances when direct physical loss or damage to the member’s property, caused by a covered cause of loss, results in a loss of revenue. But, if the revenue loss arises from damage to other property—for example, a sharp decline in utility revenues resulting from destruction of many private homes—the “business interruption” element of the member’s property coverage would not apply.

In the aftermath of the Marshall Fire, the Colorado Legislature has taken note of these complexities, and has adopted new funding mechanisms to potentially help municipalities fill unmet needs not covered by other sources of assistance. Particularly, municipalities affected by state-declared wildfire disasters or other emergency disasters declared by the Governor in or after 2018 will want to take note of the newly-created Colorado Disaster Resilience Rebuilding Program and Fund (the “Program”), which was created by Senate Bill 22-206 (“SB 206”).

Among other provisions, SB 206 authorizes loan or grant funds from the Program to be used to reimburse governmental entities for unmet needs not covered by available federal assistance. These needs may include, but are not limited to: “(I) rebuilding or repairing transportation infrastructure; (II) health and safety improvements or investments related to disaster recovery and resiliency; or (III) replacement of lost revenue from sales taxes, property taxes, public utility or service fees, or other revenue sources that were negatively affected by a declared disaster.” SB 206 also establishes other new funding sources for certain recovery initiatives, including assistance with the costs of “green building” upgrades and grants or loans to housing authorities to repair or reconstruct housing stock in an area affected by a declared disaster.

There are many details in SB 206 and the Division of Local Government (“DOLA”) will need to develop guidelines for administration of the Program. However, with the enactment of SB 206 and funding of the Program, the Legislature has recognized that municipalities may now and in the further face unique losses from declared disasters that are not eligible or well-suited for funding via federal assistance or typical public entity insurance coverages.

If your entity is interested in learning more about new SB 206 funding programs, DOLA has encouraged you stay in touch with your regional DOLA manager for more information, and you will want to also want to check DOLA’s website, https://cdola.colorado.gov/local-government frequently for more information as it is made available.

If your entity has questions about CIRSA’s property coverages, either generally or as related to potential losses from wildfires or other natural disasters, you can contact your entity’s CIRSA Underwriting Representative or Claims Representative. If you are facing a specific loss situation, we may suggest that you file a claim so that specific circumstances can be investigated and a determination made.