Police use of prone restraint has come under increasing scrutiny in the past few years, particularly after the deaths of Elijah McClain and George Floyd.
Colorado House Bill 24-1372 aims to put new guidelines in place around the use of the practice. The bill sets a deadline of July 1, 2025, for all law enforcement agencies that employ a police officer certified by the P.O.S.T. board and the Colorado State Patrol to put in place policies and procedures on the use of the prone position and prone restraint.
The bill’s summary as introduced included language prohibiting the use of prone restraint to subdue a subject, with an exception for cases in which deadly physical force is justified, a requirement to immediately reposition an individual once the person is in handcuffs or their hands are tied and the development of a model state policy on the risk of positional asphyxia in the use of prone restraint.
The amendment passed by the committee changed some of the initial language of the bill. The amended bill would prohibit prone restraint when it becomes excessive force, rather than a complete prohibition of the practice.
The policies required by the bill include when and how to request medical aid, when to get medical clearance for the use of prone restraint and how and when to transition someone from a prone position into a recovery position.
One of the bill’s sponsors, Rep. Steven Woodroow, told the committee the bill marks an important step on the road to reducing the deaths of individuals taken into police custody. Woodrow added the bill was not reflective of an issue toward law enforcement.
“This legislation is intended to honor our shared goals of public safety,” said Woodrow. “So that those interactions don’t end in tragedy.”
Sheneen McClain, the mother of Elijah McClain, told the committee her son, while in prone restraint, just wanted to sit up so he could breathe better.
“All the officers there that night my son was murdered regarded their training as the ultimate truth without a conscience,” said McClain. “They were all ignorantly wrong, and so are the laws that stipulated that training.”
She urged the committee to outlaw prone positioning in Colorado.
Tristan Gorman, the policy director for the Colorado Criminal Defense Bar, testified in strong support of the amended bill. Gorman called the process to create the amendment one of the most productive collaborations with stakeholders he had ever participated in.
“The idea behind this bill is to clarify that the use of prone restraint is a use of physical force,” said Gorman. “That means it can either be used lawfully and safely or unlawfully as excessive force.”
The Colorado Attorney General’s Office, represented by Director of Legislative Affairs Jeffrey Riester, expressed support for the bill as amended.
“This bill is about improving the criminal justice system, it’s about improving interactions between law enforcement and citizens or visitors of the state and it’s also about ensuring that law enforcement can meet the expectations set by the General Assembly,” said Riester.
Representatives from the ACLU of Colorado and Disability Law Colorado also expressed support for the bill.
Suzette Friedenberger testified on behalf of the Colorado Fraternal Order of Police from a position of amend on the initial bill and neutral on the amended bill.
“The prone position is a viable option for law enforcement officers in situations involving elevated risk contact due to the inherent nature of being able to reduce the mobility of potentially dangerous subjects,” said Friedenberger.
A representative from the Mesa County Sheriff and the County Sheriff’s Association of Colorado, Sgt. Marco Montez, told the committee both of the organizations were neutral on the amended bill.
Ike Beers, a 25-year veteran of law enforcement representing the Colorado Association of Chiefs of Police, strongly opposed the original version of the bill.
“Through my training and experience and knowledge of police education across the state, law enforcement is already effectively addressing the issue of using prone position, prone control, prone cuffing and prone restraint, and the need of this bill is unnecessary,” said Beers.
Several other representatives from police departments across the state testified to their concerns about the bill. Chris Noeller, the chief of the Pueblo Police Department and deputy mayor of the city, said the bill would make hiring and retention of officers more difficult and would make policing more difficult.
“Fellow chiefs and I are hearing from our officers about their grave concerns that legislation such as this bill would be considered and supported in Colorado,” said Noeller. “They worry about the future of policing in our state and whether they can keep their communities and themselves safe.”
Testimony on the bill lasted three hours, but opposition and neutrality from police organizations from across the state didn’t halt the bill from advancing. The bill now awaits a hearing date in the House Appropriations Committee as the legislative session enters its final month.