No Claim Against Employers Under Colorado Police Reform Law

Written on 12/10/2022

In 2020, the Colorado General Assembly created a new cause of action against peace officers for violation of a plaintiff’s civil rights. The law allows a plaintiff to sue a peace officer who, “under color of law, subjected or caused the plaintiff to be subjected to, including failing to intervene,” the deprivation of an individual right that “creates bind­ing obligations on government actors secured by the bill of rights” embodied in the Colorado Constitution.

The statute further provides that, under certain circumstances, a peace officer found liable is entitled to obtain indemnification from the peace officer’s employer. The law states that “a peace officer’s employer shall indemnify its peace officers for any liability incurred by the peace officer and for any judg­ment or settlement entered against the peace officer for claims arising pursuant to this section,” except where “the peace officer’s employer determines on a case-by-case basis that the officer did not act upon a good faith and reasonable belief that the action was lawful.”

The statute is silent, however, on whether a plaintiff has the right to assert a direct claim against the employer of a peace officer who violated one of the plaintiff’s rights protected under the state bill of rights. In a suit brought by a Colorado resident who had been injured during an arrest, Vincent Ditirro, the Colorado Court of Appeals held that, at least under the facts of Ditirro’s case, the statute does not allow a plaintiff to file a direct action against the employer of a peace officer.

The Court stated that the statute provides that a peace officer is liable to the injured party for the deprivation of any individual rights, and “does not mention any other individuals or entities that can be held liable under the statute. Thus, we conclude, based on the plain language of the statute, that it grants plaintiffs who are similarly situated to Ditirro the right to assert the specified civil rights actions only against individ­ual peace officers, and not against the peace officers’ employers.

“The indemnification language in the statute makes it clear that, under the facts of this case, a third party such as Ditirro may not assert a direct claim against the employer of a peace officer. We therefore agree with the district court that while a plaintiff may be the beneficiary of indemnification by the municipality if the peace officer does not have the funds to pay the judgment, it does not necessarily follow that Ditir­ro may sue a peace officer’s employer to enforce the peace officer’s right to indemnification.

“While the statute allows a peace officer to obtain indemnification from the peace officer’s employer under cer­tain circumstances, it only provides a remedy for peace officers, at least before the peace officer has incurred any liabil­ity, or any judgment or settlement has been entered against the peace officer, under the statute.”

Ditirro v. Sando, 2022 WL 3452486 (Colo. App. 2022).

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