Disqualifying Incidents

Criminal History (§ 24-31-305(2)(a), C.R.S.)

Background

Per § 24-31-305 C.R.S, P.O.S.T. is responsible for revoking the certification of a peace officer convicted of a felony at any time, or certain misdemeanors committed on or after July 1, 2001. Below, you will find the list of misdemeanors that affect peace officer Certification in Colorado.

Per Colorado Revised Statutes, a conviction for P.O.S.T. certification purposes includes:

• Deferred judgments and sentencing agreements
• Deferred prosecution agreements
• Pretrial diversion agreements

An individual convicted of a felony is ineligible for P.O.S.T. certification in Colorado and cannot request a variance.

As a licensing entity, POST considers ALL records available, whether sealed or otherwise.

 

Misdemeanors Which Affect Certification

An individual may request a variance to allow certification under P.O.S.T. Rule 8. More information on Variances can be found here.

C.R.S.	Common Name	C.R.S.	Common Name
18-3-204	Assault in the third degree	18-8-204.2	Possession of contraband in the second degree
18-3-402	Sexual Assault	18-8-208	Escapes
18-3-404	Unlawful sexual contact	18-8-208.1	Attempt to escape
18-3-405.5	Sexual assault on a client by a psychotherapist	18-8-212	Violation of bail bond conditions
18-3-412.5	Failure to register as a sex offender	18-8-304	Soliciting unlawful compensation
18-6-403(3)(b.5)	Sexual exploitation of a child (as it existed prior to July 1, 2006)	18-8-305	Trading in public office
18-7-201	Prostitution prohibited	18-8-308	Failing to disclose a conflict of interest
18-7-202	Soliciting for prostitution	18-8-403	Official oppression
18-7-203	Pandering	18-8-404	First degree official misconduct
18-7-204	Keeping a place of prostitution	18-8-503	Perjury in the second degree
18-7-302	Indecent exposure	18-8-611	Simulating legal process
18-7-601	Dispensing violent films to minors	18-8-612	Failure to obey a juror summons
18-8-102	Obstructing government operations	18-8-613	Willful misrepresentation of material fact on juror questionnaire
18-8-103	Resisting arrest	18-8-614	Willful harassment of juror by employer
18-8-104	Obstructing a peace officer, firefighter, emergency medical services provider, rescue specialist, or volunteer	18-8-802	Duty to report use of force by peace officers
18-8-108	Compounding	18-9-111	Harassment
18-8-109	Concealing death	18-9-121	Bias-motivated crimes
18-8-111	False reporting to authorities	18-18-404	Unlawful use of a controlled substance
18-8-113	Impersonating a public servant	18-18-405	Unlawful distribution, manufacturing, dispensing, or sale
18-8-114	Abuse of public records	18-18-406	Offenses relating to marijuana and marijuana concentrate
18-8-117	Unlawful sale of publicly provided services or appointments	18-18-411	Keeping, maintaining, controlling, renting, or making available property for unlawful distribution or manufacture of controlled substances
18-8-201	Aiding escape

Revised 9/25/17 PDF Version

 

Untruthfulness (§ 24-31-305(2.5), C.R.S.)

Background

During the 2019 legislative session, Senate Bill 19-166 was passed, expanding the P.O.S.T. Board's jurisdiction to revoke certification for official findings of untruthfulness.

At first glance, the topic of untruthfulness may sound like a Brady^[1] matter. While there may be some overlap, there are specific requirements for a Notification of Finding of Untruthfulness.

Elements

Effective August 2, 2019, the Colorado P.O.S.T. Board shall revoke certification when the certificate holder has knowingly made an untruthful statement concerning a material fact or omitted a material fact:

• On an official criminal justice record, or
• While testifying under oath, or
• During an internal affairs (I.A.) investigation, or
• During an administrative investigation and/or disciplinary process

The law enforcement agency that employs or employed^[3]the certificate holder shall notify P.O.S.T. after the following has occurred:

• Completion of an administrative process, as defined by a published policy in effect at the time of the untruthful statement concerning a material fact or omission of a material fact.
• Determined, by a clear and convincing standard of the evidence through an administrative investigation or disciplinary process that the certificate holder knowingly made an untruthful statement concerning the material fact or knowingly omitted a material fact.
• The certificate holder has elected not to exercise his or her rights to a disciplinary process or has exhausted the internal disciplinary appeal rights provided by their employer.

Footnotes

After P.O.S.T. receives the signed and notarized Form 13, the certificate holder will be notified. If the certificate holder requests a hearing, POST will reach out to the law enforcement agency that conducted the internal affairs investigation for the supporting documentation. Materials provided to POST for this purpose are not subject to release by the P.O.S.T. Board and remain the property of the law enforcement agency

Please refer to the Decertification for Untruthfulness FAQ page for more information, and contact the POST Investigator if you have further questions.

[1] Brady Disclosure - exculpatory or impeaching information and evidence material to guilty or innocence or punishment of defendant. (1963 Brady v. Maryland) Law enforcement has affirmative duty to report any information impacting credibility.

[2] Administrative Investigation and Disciplinary Process means an employer's formal process of internal control that assures that an allegation of violation of employer rules, policy, procedure, or other misconduct or improper actions by an employee are subject to a complete and objective investigation resulting in findings of fact and disciplinary action for any substantiated violation.

[3] The LEA employing or the last LEA to employ the accused peace officer, unless accused peace officer has not been employed by the LEA for at least six months preceding the date of notification of allegation, in which case LEA may investigate allegation.

 

Unlawful Use of Physical Force or Failure to Intervene (§ 24-31-904(1)(a), C.R.S.)

Background

House Bill 21-1250 was signed into law on July 6, 2021, and amended some of the provisions originally included in Senate Bill 20-217. P.O.S.T. has the statutory responsibility to revoke or suspend peace officer certification if the peace officer is convicted of a crime involving, is found civilly liable for, or fails to intervene in the unlawful use of physical force. Per statute, this disqualifying incident may result in Revocation or Suspension of peace officer certification depending on the facts of the case. A helpful table is included below to understand more about the required elements for a Revocation vs. Suspension.

Elements

Pursuant to § 24-31-904(1)(a), C.R.S., POST shall revoke or suspend peace officer certification if:

• The peace officer has been convicted of or pleads guilty or nolo contendre to a crime involving the unlawful use of physical force OR a crime involving the failure to intervene in the use of unlawful physical force, OR,
• The peace officer has been found civilly liable for the use of unlawful physical force, or is found civilly liable for failure to intervene in the use of unlawful force, OR,
• An administrative law judge, hearing officer, or internal investigation finds that a peace officer used unlawful physical force, failed to intervene, or violated section § 18-1-707, C.R.S.

Finding of Civil Liability

On December 3, 2021, the POST Board approved a change to POST Rule 1 to add a definition of “Found Civilly Liable”. This rule change went into effect on January 30, 2022, and added the following definition:

“Found Civilly Liable” as used in § 24-31-904, C.R.S. means, a final judgment of civil liability is entered against a certificate holder, or a judge or jury makes a finding of fact that the certificate holder is civilly liable, in a court of competent jurisdiction, for an event occurring after July 6, 2021. 
 

Matrix

Revocation of Certification if:	Suspension of Certification (not less than one year) if:
Conviction of a Crime, or
Found Civilly Liable, or	Found Civilly Liable, or
Failure to Intervene	Failure to Intervene
Involving Unlawful Use of Force, Resulting in SBI or Death	Involving Unlawful Use of Force, but NOT resulting in SBI or Death

After P.O.S.T. receives the signed and notarized Form 13B, the certificate holder will be notified. If the certificate holder requests a hearing, POST will reach out to the law enforcement agency that conducted the internal affairs investigation for the supporting documentation. Materials provided to POST for this purpose are not subject to release by the P.O.S.T. Board and remain the property of the law enforcement agency

Body Worn / Dash Cameras - Intentional Acts (§ 24-31-902(1)(a)(IV)(B), C.R.S.)

Background

House Bill 21-1250 was signed into law on July 6, 2021, and amended some of the provisions originally included in Senate Bill 20-217. P.O.S.T. shall revoke or suspend peace officer certification if a peace officer intentionally fails to activate their Body Worn Camera or Dash Camera with intent to conceal unlawful or inappropriate actions. This legislation has specific requirements depending on whether or not the incident resulted in SBI or Death.

Matrix

Revocation of Certification if:	Suspension of Certification (not less than one year) if:
Intentionally failed to activate Body / Dash Camera,
with Intent to conceal unlawful or inappropriate actions
Involving Unlawful Use of Force, Resulting in SBI or Death	Any incident, NOT resulting in SBI or Death

After P.O.S.T. receives the signed and notarized Form 13C, the certificate holder will be notified. If the certificate holder requests a hearing, POST will reach out to the law enforcement agency that conducted the internal affairs investigation for the supporting documentation. Materials provided to POST for this purpose are not subject to release by the P.O.S.T. Board and remain the property of the law enforcement agency

Use or Direction or Administration of Ketamine (§ 18-8-805(2)(a), C.R.S.)

Background

House Bill 21-1251 was signed into law on July 6, 2021. This bill created a new disqualifying incident for peace officers who influence Emergency Medical Service Personnel to administer Ketamine.

Process

If an EMS provider is influenced in this manner, that provider shall report the incident to P.O.S.T. within ten days using this form on the Colorado Attorney General's web site.

Upon receipt of the notification, P.O.S.T. shall notify the involved law enforcement agency, which shall conduct an internal affairs investigation. Pursuant to a finding in the internal affairs investigation, the P.O.S.T. Board may:

• Revoke Peace Officer Certification for incidents involving death
• Suspend Peace Officer Certification for incidents involving SBI or failure to intervene

 

Failure to Complete Rule-28 Training Requirements (§ 24-31-303(1)(r), C.R.S)

All Peace Officers must complete 24-hours of required training per year under Rule 28, with 12 of those hours being perishable skills training with at least 1 hour in each of the required POST Skills (Driving, Firearms, Arrest Control). 

If a peace officer is non-compliant, a notice will be issued to the individual. The peace officer will have 30-days to complete the required training. If they do not, their certification will be suspended until they are compliant again.

If training is not satisfactorily completed three times in a consecutive ten year period, the incident will be published in the P.O.S.T. Statutory Database.

Criminal History

Are juvenile convictions considered?

No. A case tried and adjudicated in juvenile court does not affect certification eligibility. It does not matter if the conviction was for a felony or misdemeanor crime. The best way to tell if a juvenile case affects certification eligibility is to check the case number. Cases that contain a JD case number do not affect certification.

Are sealed records considered?

Yes, as a licensing authority, Colorado P.O.S.T. considers all records available, including sealed records. 

I might not be eligible for certification without a variance. Is there a way to be sure?

Yes. The POST Compliance Investigator can assist with certification eligibility issues, and with filing a Rule 8 Variance if necessary.  Please reach out to postinvestigations@coag.gov with all the information you have about your convictions, including statute and case numbers. You will be asked to follow the Rule 8 Variance procedure if your convictions are disqualifying.
 

If you anticipate that you may have disqualifying criminal history, you must contact POST prior to attending a basic academy.

If I don't have any criminal history that disqualifies me, does that mean I passed the background check?

No. POST conducts a 50-state criminal history check and only checks for disqualifying offenses. Each law enforcement agency conducts their own in-depth background investigations that are more complete. Each agency sets their own hiring standards that are more restrictive than POST.

 Untruthfulness

My agency is concerned about providing Internal Affairs or other Investigation-related materials. Are those subject to release?

Per § 24-31-305(2.5)(a)(III)(d), C.R.S., all materials related to the internal affairs investigation remain the property of the law enforcement agency. These materials are not subject to release by POST, except that they may be provided to the certificate holder’s legal counsel as part of the discovery process.

Unlawful Use of Physical Force

A peace officer was found or pled guilty to a crime involving the unlawful use of force. How do I report this to POST?

In a circumstance where a peace officer is convicted of a crime, agencies should use the Disqualifying Incident Notification Form to report it.

What constitutes a Finding of Civil Liability?

Per POST Rule 1, effective January 30, 2022, “Found Civilly Liable” as used in § 24-31-904, C.R.S. means, a final judgment of civil liability is entered against a certificate holder, or a judge or jury makes a finding of fact that the certificate holder is civilly liable, in a court of competent jurisdiction, for an event occurring after July 6, 2021. 

Does a Finding of Civil Liability apply if the incident in question occurred prior to July 6, 2021?

For a Finding of Civil Liability to affect peace officer certification, the incident and finding must have occurred after July 6, 2021.

On November 4, 2021, POST hosted a virtual training on recent legislative mandates related to Peace Officer certification. We are pleased to offer the recording of this training to anyone who missed it. Below you will find the video as well as the slide deck for easy reference. A full revamp of the Compliance section of the POST Disqualifying Incidents page is complete, and provides more detailed information about all of the topics that were discussed.