Legal Corner: A duty to intervene in federal agents’ actions?

In the past year, several legal corner articles have touched on local law enforcement navigating interactions with the federal government’s immigration enforcement. As these issues continue to play out, a currently hypothetical but highly likely question arises: does a Colorado law enforcement officer have a legal duty to intervene to stop a federal agent from using excessive physical force? This issue is relevant not only for law enforcement officers but also for public safety operations and the expectations of residents.

Why is this an issue?

This question follows recent U.S. Immigration and Customs Enforcement (ICE) activity in Minneapolis, Minnesota. In the past few months, ICE has conducted one of the largest immigration enforcement operations in the agency’s history in Minneapolis, arresting thousands of individuals as part of the civil enforcement actions and in response to people protesting or interfering with their operations.

Normally, law enforcement agencies coordinate and collaborate and the prospect of open conflict between local and federal law enforcement seemed unthinkable. However, the events in Minneapolis have demonstrated the potential for such tension. In Minneapolis, ICE has generally undertaken enforcement action in public spaces in the absence of coordination with and little notification to state or local law enforcement. These actions have included the highly publicized use of deadly and non-deadly force, including tear gas and pepper spray.

Federal operations like this present two major areas of potential conflict for local law enforcement. First, the primary function of law enforcement is the enforcement of state and local criminal laws and officers are generally expected by the community to help maintain the peace. Second, since the enactment of Senate Bill 20-217, the Law Enforcement Integrity Act, peace officers in Colorado have a duty to intervene in excessive uses of force by other “peace officers.”

State and federal laws

With the passage of SB20-217, state law imposed a duty on “a peace officer as defined in section 24-31-901(3)” to “intervene to prevent or stop another peace officer . . . from using physical force that exceeds the degree of force permitted, if any, by section 18-1-707 . . . .” C.R.S. § 18-8-802(1.5)(a). Failing to intervene carries criminal liability as a class 1 misdemeanor. C.R.S. § 18-8-802(1.5)(d). Further, failure to intervene can subject an officer to a civil action for violation of the Colorado Constitution under C.R.S. § 13-21-131(1). If serious injury or death occurs as a result of the excessive or unconstitutional force,  a criminal conviction for failing to intervene requires revocation of a peace officer’s certification by the Peace Officer Standards and Training (POST) Board and a finding of civil liability authorizes POST to revoke a certification in its discretion. C.R.S. § 24-31-904.

Ambiguities in state law may lead a local peace officer to believe they have an obligation to intervene in the actions of an ICE agent who appears to be engaged in using excessive physical force. An officer reasonably could be concerned that failure to do so could subject them to civil and criminal liability, as well as the loss of their certification.

Meanwhile, an officer could face civil and criminal consequences if they choose to intervene. 8 U.S.C. § 111(a)(1) establishes a federal criminal offense for anyone who “forcibly assaults, resists, opposes, impedes, intimidates, or interferes with” a federal official “while engaged in or on account of the performance of official duties.” If a Colorado law enforcement officer uses force to intervene in the use of force by an ICE official or any other federal law enforcement, the officer could be directly exposed to federal criminal charges. In addition, the Colorado officer could be subject to excessive force claims raised by the federal agent under federal law or SB20-217, with that law’s criminal, civil, and professional consequences.

Interpreting the gray area

The lack of clarity in these laws, combined with high stress and fast-moving situations, could place local law enforcement in a very difficult predicament.

Criminal liability and the duty to intervene

One way to avoid this dilemma may be in the interpretation of state law, specifically, the meaning of “peace officer” in C.R.S. § 18-8-802(1.5)(a). This criminal statute requires a peace officer “as defined in C.R.S. § 24-31-901(3)” to intervene in the unlawful use of force by another peace officer, meaning that the law requires local law enforcement, Colorado state patrol, and noncertified deputy sheriffs to intervene. Unfortunately, the statute’s second reference to a “peace officer” does not include a specific statutory definition, potentially leaving open the question of whether the statute is ambiguous with respect to who could be that second “peace officer” and whether that could be a federal law enforcement officer.

A court could reasonably conclude that the second reference to a “peace officer” would have the same meaning as the first use in the statute, which has an express definition. This conclusion would mean that federal law enforcement officers are not considered “peace officers” for purposes of the criminal statute and there would be no legal duty to intervene. Reading this statute as being limited solely to the actions of Colorado officers – and excluding federal agents – would avoid placing state and local officers in conflict with federal officers and remove the potential for exposing law enforcement to federal charges for complying with state law.

SB20-217 was focused on the actions of local law enforcement, and, to our knowledge, federal law enforcement was never part of the legislative discussion. If a court determines that the phrase is ambiguous, however, a court may refer to the generic definition of “peace officer” under Colorado law that can, in some circumstances, include a federal agent and others (such as Colorado peace officers not covered by SB20-217). Title 16, Article 2.5, Part 1 includes a lengthy list of persons who could be seen as peace officers. Even federal agents are deemed to be “peace officers” under Colorado law that gives them authority to act in limited circumstances such as responding to a state felony or misdemeanor committed in their presence. C.R.S. § 16-2.5-147. Based on this definition, if an ICE agent is solely engaged in civil immigration enforcement, they would not be considered a peace officer. But if they are responding to a state felony or misdemeanor matter, they could be a peace officer. It may not always be clear, particularly to a local law enforcement officer, that an ICE agent is solely engaged in civil immigration enforcement, especially in the absence of coordination between federal, state, and local law enforcement.

Civil liability and decertification

There is no civil cause of action against an officer for failing to intervene in uses of force that exceed what is authorized in C.R.S. § 18-1-707, upon which the criminal liability is based. Colorado peace officers can face civil liability, however, for a failure to intervene that ultimately subjects a person to a deprivation of their rights under the Colorado Constitution. C.R.S. § 13-21-131(1). There is very limited case law interpreting this relatively new statute, but it is plausible that a Colorado peace officer who observes a constitutional violation by a federal official, has a realistic opportunity to intervene, and fails to do so, could be forced to respond to a civil claim under C.R.S. § 13-21-131, even though the federal official facing no such liability under state law for their actions. While federal officials might face civil liability for violation of a person’s federal constitutional rights under 42 U.S.C. § 1983, civil actions against federal officials are relatively limited.

As noted above, while POST has discretion about whether to revoke a Colorado peace officer’s certification if they are found civilly liable, there is no such flexibility if an officer is found criminally liable—revocation is mandatory.

Public expectations

Just as a police officer will want to know the limits of their authority and the scope of their potential liability, these questions are important in setting public expectations. The community will want to know what they can expect from their local public safety agencies should federal agents conduct operations in their communities. Several law enforcement officials have indicated that their officers would intervene in the use of excessive force by federal agents. How that would be done remains unclear.

Community leaders may wish to help residents understand how they can expect law enforcement to respond to federal immigration actions as well as protest activity in their communities. Police officers, in their traditional roles, may need to respond to civil unrest or protests for the protection of all people. Colorado law prohibits them from participating in civil immigration actions, but they cannot be expected to aid individuals hindering federal enforcement or assaulting federal officers. Moreover, those officers may not reasonably be expected to intervene in an unfolding situation or to use similar force against federal agents.

What next?

Hopefully, the scenario that played out in Minnesota will not be repeated in Colorado. If it does, the current law creates a great deal of uncertainty for police officers, community leaders, and the public. New legislation may further complicate the situation, including SB26-005 regarding liability for federal agents and others who violate constitutional rights during civil immigration enforcement and another bill regarding law enforcement concealment of identities (e.g., wearing a mask).

This is likely to be a developing issue and, ultimately, each municipality should consult with its municipal attorney to make its own determination about how to proceed. CML is engaged with members and state law enforcement leaders on this issue and will continue looking for ways to provide clarity to municipalities, whether through guidance from the state, a legislative fix, or otherwise.

This column is not intended and should not be taken as legal advice. Municipal officials are always encouraged to consult with their own attorneys.