Daves v. Mosley

On May 25, 2020, Minneapolis police officer Derek Chauvin knelt on George Floyd’s neck and back for almost 10 minutes, ultimately killing him. Nine days after video footage of the murder sparked protests and calls for police reform, Colorado lawmakers introduced the Enhance Law Enforcement Integrity Act (ELEIA), which was signed into law on June 19, 2020.

To advance police reform and accountability, Section 131 of the ELEIA created a civil cause of action against state police officers who violate the Bill of Rights of the Colorado Constitution. In 2022, Christopher Mosley sued Officer Brendan Daves under Section 131 for conducting a warrantless search of his car. After Mosley prevailed at trial and the court of appeals affirmed, Daves appealed to the Colorado Supreme Court to argue that plaintiffs in Section 131 lawsuits have the burden to disprove an officer’s alleged justification for a warrantless search or seizure. He further argues that, under federal law, protective sweeps are not an exception to the Fourth Amendment’s warrant requirement and are—by itself—reasonable.

The ACLU’s State Supreme Court Initiative and the ACLU of Colorado filed an amicus brief agreeing with Mosley’s argument that Daves misapprehends federal law. Under the Fourth Amendment, warrantless searches are presumptively unreasonable, with protective sweeps being a well-delineated exception. Colorado law also requires defendants in civil cases to prove affirmative defenses, and Daves’ claim of protective sweep is an affirmative defense; thus, it is up to Daves to prove that the doctrine applies to this case.

Our brief also emphasizes one key point: contrary to Daves’ assertions, the Court’s interpretation of Section 131 is not bound by federal law. Section 131’s manifest purpose was to protect Coloradans and differentiate the state statute from the federal, including by (1) creating a cause of action for state, not federal, constitutional violations, (2) explicitly rejecting the doctrine of qualified immunity, and (3) making it easier for plaintiffs to receive attorney fees. Our brief urges the Court to clarify that Section 131 is independent from federal law and must be analyzed as such.