Stripped of qualified immunity, Colorado police officers turn to common law to seek protection from lawsuits

DENVER — Glyn Hart was suicidal when he crashed into a parked car in La Junta three years ago.

He was suicidal when a police officer arrested him, suicidal when the officer took him to a hospital, and suicidal when the officer left him alone in a police holding cell for 74 minutes, wearing a hoodie with a drawstring.

Hart, 46, used that drawstring to die by suicide in his cell on the night of Nov. 1, 2021.

His children are now suing the La Junta police officer who left him there — bringing claims against the officer that are only possible because of sweeping police reform passed in 2020 that stripped Colorado law enforcement officers of qualified immunity, a legal defense that previously blocked police officers and sheriff’s deputies from being sued in their individual capacities in most cases.

But the officer who left Hart alone, Mitch Zgorzynski, says he’s still entitled to immunity despite the reform — under Colorado common law.

He argues that although the 2020 reforms stripped officers of qualified immunity under the Colorado Governmental Immunity Act, common law immunity — an earlier legal precedent that the immunity act essentially rendered moot when it was created five decades ago — was not affected and should now kick in.

It’s an argument that law enforcement officers have been widely testing out in the wake of the 2020 reforms, with mixed results in the courts. Civil rights attorneys say the fallback to common law is designed to keep law enforcement officers immune from civil claims despite the 2020 reforms.

“It’s basically qualified immunity but by another name,” said attorney Andy McNulty, who is not involved in the La Junta case. “They’re trying to shoehorn the same qualified immunity protections that Colorado legislators and citizens forcefully said should not be given to law enforcement officers in Colorado by raising these common law immunity defenses.”

The common law argument is relatively new, since lawsuits take years to work through the courts, said Spencer Bryan, attorney for Hart’s family in the La Junta case.

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“It’s a shock to the system when the legislature comes in and redefines the landscape of what rights are available to people,” he said. “What we are seeing now is the response to that is, ‘No, we still want our immunity and we’re not going to let you have the rights the legislature said you can have.’ ”

A Boulder District Court judge last year found that common law immunity was still available to sheriff’s deputies in a jail excessive force lawsuit. A district court magistrate in Chaffee County ruled the opposite way in April in the case of a man who claimed he was arrested by SWAT officers who used a flash-bang grenade without warning to arrest him on misdemeanor charges.

The Boulder judge found that because the Colorado Governmental Immunity Act was created in addition to — not instead of — common law immunity, the latter still exists and applies despite the 2020 reform, because the 2020 law did not explicitly wipe away common law immunity. The Chaffee County judge, by contrast, found that the 2020 law was plainly designed to prohibit both types of immunity for officers.

Neither district court decision is binding on other courts or in other cases, and the issue may ultimately need to be settled by the Colorado Supreme Court, Bryan said.

“We are just now seeing how defendants are going to try to address it, how courts are going to try to address it, and what really are the implications for the general public,” he said.

Mari Newman, an attorney who helped craft the 2020 reform, said she was surprised by the “audacity” of the common law argument when it first cropped up.

“It really is so obviously inconsistent with the law that it should just be rejected without a second thought,” she said.

The judge in Hart’s case has yet to rule on the common law immunity argument.

In court filings, Zgorzynski’s attorneys argued that Zgorzynksi believed Hart was no longer suicidal after a doctor at the hospital cleared Hart to go to the police holding facility that night. He let the man keep his hoodie because the cell was cold, the attorneys wrote. They did not return a request for comment.

“Separate and apart from qualified immunity, good faith provides law enforcement officers a common law defense of good faith,” attorney Sara Cook wrote in a motion to end the lawsuit. “Colorado has long afforded this defense to law enforcement officers.”

McNulty said lawmakers could step in while the issue continues to work through the court system.

“The whole point of this law was to make sure police officers could be held accountable in civil court for the violation of people’s constitutional rights,” he said. “…So if courts do find this frivolous argument (valid) and give officers the same protections they had with qualified immunity, there needs to be an answer from the legislature, and it needs to happen right away.”

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