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Colorado's #SB217 is a model for reform of state constitutional causes of action. Much attention's been paid to its elimination of qualified immunity for these claims. It also makes important changes to attorneys' fees & indemnification. Let me explain.1/8
#SB217 provides that prevailing plaintiffs are entitled to reasonable attorney's fees- as they are for federal civil rights claims. In most states, plaintiffs can bring state tort claims against government officials, but can't get attorney's fees if they win. 2/8
Also, plaintiffs seeking injunctive relief are entitled to attorneys' fees if their suit was a "substantial factor or significant catalyst in obtaining the results sought." A SCT case, Buckhannon, prevents fees in federal civil rights cases under this type of catalyst theory. 3/8
But there's more. #SB217 allocates financial responsibility in a really smart way that creates financial sanctions for bad officers, ensures plaintiffs will be paid, and eliminates strategic undermining-elements of a budgeting/payment system I support https://lpeblog.org/2020/06/11/who-should-pay-for-police-misconduct/ 4/8
If an officer is found by the dep't not to have acted in good faith/reasonably, the officer will have to pay 5% of the judgment of $25k, whichever is less. And if the officer can't pay that amount, the city is required to take care of the rest. Some won't like this, but I do.5/8
This arrangement: 1) requires the PD to review information from the case, which few departments do; 2) imposes some financial sting on the officer, which few cities do; but 3) makes sure that plaintiffs will be made whole - because $ is coming from central funds. 6/8
& the gov't must indemnify officers unless convicted of a crime (replacing CO's prior statute that limited indemnification if the officer was outside the scope of employment or acting willful & wanton-exceptions I've found gov't attys can use strategically against plaintiffs.7/8
Just as police reform isn't just about suing police, reform of the right to sue police isn't just about qualified immunity. The #SB217 package of reforms to plaintiffs' rights to sue-encompassing not just QI but also attorneys' fees and indemnification-gets a lot right. end
