SB 5

NOTE: This bill has been prepared for the signatures of the appropriate legislative
officers and the Governor. To determine whether the Governor has signed the bill
or taken other action on it, please consult the legislative status sheet, the legislative
history, or the Session Laws.
     SENATE BILL 26-005
     BY SENATOR(S) Weissman and Gonzales J., Coleman, Hinrichsen, Jodeh,
     Kipp, Marchman, Rodriguez, Wallace, Amabile, Ball, Bridges, Cutter,
     Danielson, Exum, Kolker, Lindstedt, Snyder, Sullivan;
     also REPRESENTATIVE(S) Mabrey and Zokaie, Bacon, Boesenecker,
     Brown, Duran, English, Froelich, Garcia, Gilchrist, Jackson, Joseph,
     Lindsay, McCormick, Nguyen, Paschal, Rutinel, Rydin, Sirota, Smith,
     Story, Titone, Velasco, Willford, Woodrow.
     CONCERNING STATE COURT REMEDIES FOR VIOLATIONS OF FEDERAL
             CONSTITUTIONAL RIGHTS OCCURRING DURING IMMIGRATION
             ENFORCEMENT, AND, IN CONNECTION THEREWITH, MAKING AN
             APPROPRIATION.
     Be it enacted by the General Assembly of the State of Colorado:
            SECTION 1. Legislative declaration. (1) The general assembly
     finds and declares that:
            (a) Since the earliest days of the nation, the United States supreme
     court has held, in cases such as Little v. Barreme, 6 U.S. 170 (1804), and
     Murray v. The Charming Betsey, 6 U.S. 64 (1804), that federal officials
     may be liable in damages for violations of federal laws;
     ________
     Capital letters or bold & italic numbers indicate new material added to existing law; dashes
     through words or numbers indicate deletions from existing law and such material is not part of
     the act.
       (b) In later 19th century cases as well, the United States supreme
court held that federal officials could be liable for damages even for reasons
relating to but beyond the lawful scope of federal duties, Mitchell v.
Harmony, 54 U.S. 115 (1851), and in particular that state courts possessed
jurisdiction to consider such damages claims, Teal v. Felton, 53 U.S. 284
(1852);
        (c) The United States supreme court has long held that federal
employees are not inherently beyond the reach of state laws simply because
they are federal employees. For example, in Johnson v. Maryland, 254 U.S.
51 (1920), the court noted, "[A]n employee of the United States does not
secure a general immunity from state law while acting in the course of his
employment", and in Colorado v. Symes, 286 U.S. 510 (1932), the court
stated, "Federal officers and employees are not, merely because they are
such, granted immunity from prosecution in state courts for crimes against
state law".
       (d) Decades later, the United States supreme court continued to
recognize the role of state law in holding federal officials accountable for
legal violations, noting in Wheeldin v. Wheeler, 373 U.S. 647 (1963),
"[w]hen it comes to suits for damages for abuse of power, federal officials
are usually governed by local law";
        (e) When the United States supreme court recognized a federal law
cause of action for violation of certain constitutional rights in Bivens v. Six
Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), that cause of action
was in addition to, rather than instead of, traditional state law remedies.
Even one of the dissenting justices in Bivens noted the ongoing role of state
courts, writing, "The task of evaluating the pros and cons of creating
judicial remedies for particular wrongs is a matter for Congress and the
legislatures of the States".
       (f) More recently, congress has made federal statutory law the
exclusive remedy for certain claims sounding in tort, but this exclusivity
specifically "does not extend or apply to a civil action against an employee
of the Government [. . .] which is brought for a violation of the Constitution
of the United States", 28 U.S.C. sec. 2679. The prime sponsor of legislation
amending the federal "Tort Claims Act" to provide for limited exclusivity
took pains to clarify, "We make special provisions here to make clear that
PAGE 2-SENATE BILL 26-005
the more controversial issue of constitutional torts is not covered by this
bill. If you are accused of having violated someone's constitutional rights,
this bill does not affect it", 134 Cong. Rec. 15963 (1988).
       (g) In 2022, in declining to extend the scope of the Bivens action in
Egbert v. Boule, 596 U.S. 482 (2022), the United States supreme court
observed that legislatures, not courts, are the better branches of government
to fashion damages remedies;
       (h) In its most recently completed term, the United States supreme
court declined, in Martin v. United States, 145 S. Ct. 1689 (2025), to extend
the doctrine of supremacy clause immunity beyond its traditional criminal
law context;
        (i) Violating the federal constitutional rights of residents of the
United States has never been and can never be "necessary and proper" to the
execution of the laws and powers of the United States within the meaning
of article I, section 8, clause 18 of the United States constitution; and
       (j) In enacting this act, the Colorado general assembly affirms its
longstanding and rightful role as a sovereign state in providing forum in its
courts for adjudication of claims of federal constitutional violations.
      SECTION 2. In Colorado Revised Statutes, add 13-20-1303 as
follows:
      13-20-1303. Civil action for violation of constitutional rights
during immigration enforcement - relief - attorney fees - time limit to
commence action - definition.
      (1) A PERSON WHO HAS THEIR RIGHTS THAT ARE GUARANTEED BY
THE UNITED STATES CONSTITUTION VIOLATED BY ANOTHER PERSON WHO,
ACTING UNDER COLOR OF ANY FEDERAL, STATE, OR LOCAL LAW, IS
PARTICIPATING IN CIVIL IMMIGRATION ENFORCEMENT, MAY BRING A CIVIL
ACTION AGAINST ANOTHER PERSON WHOSE CONDUCT WAS THE PROXIMATE
CAUSE OF THE VIOLATION. A PERSON FOUND TO HAVE VIOLATED THE UNITED
STATES CONSTITUTION WHILE PARTICIPATING IN CIVIL IMMIGRATION
ENFORCEMENT IS LIABLE TO THE PERSON WHOSE RIGHTS ARE VIOLATED FOR
LEGAL OR EQUITABLE RELIEF OR ANY OTHER APPROPRIATE RELIEF.
PAGE 3-SENATE BILL 26-005
       (2) (a) IN AN ACTION BROUGHT PURSUANT TO THIS SECTION, A COURT
SHALL AWARD REASONABLE ATTORNEY FEES AND COSTS TO A PREVAILING
PLAINTIFF. IN ACTIONS FOR INJUNCTIVE RELIEF, A COURT SHALL DEEM A
PLAINTIFF TO HAVE PREVAILED IF THE PLAINTIFF'S SUIT WAS A SUBSTANTIAL
FACTOR OR SIGNIFICANT CATALYST IN OBTAINING THE RESULTS SOUGHT BY
THE LITIGATION.
       (b) WHEN A JUDGMENT IS ENTERED IN FAVOR OF A DEFENDANT, THE
COURT MAY AWARD REASONABLE COSTS AND ATTORNEY FEES TO THE
DEFENDANT FOR DEFENDING ANY CLAIMS THE COURT FINDS FRIVOLOUS.
       (3) TO THE MAXIMUM EXTENT PERMISSIBLE UNDER THE UNITED
STATES CONSTITUTION AND 42 U.S.C. SEC. 1983, A GRANT OF IMMUNITY TO
A DEFENDANT, INCLUDING, BUT NOT LIMITED TO, SOVEREIGN IMMUNITY;
OFFICIAL IMMUNITY; INTERGOVERNMENTAL IMMUNITY; QUALIFIED
IMMUNITY; SUPREMACY CLAUSE IMMUNITY; STATUTORY IMMUNITY,
INCLUDING THE "COLORADO GOVERNMENTAL IMMUNITY ACT", ARTICLE 10
OF TITLE 24; OR COMMON LAW IMMUNITY, DOES NOT APPLY IN AN ACTION
BROUGHT PURSUANT TO THIS SECTION.
      (4) AS USED IN THIS SECTION, UNLESS THE CONTEXT OTHERWISE
REQUIRES, "CIVIL IMMIGRATION ENFORCEMENT" MEANS AN ACTION TO
INVESTIGATE, QUESTION, DETAIN, TRANSFER, OR ARREST A PERSON FOR THE
PURPOSE OF ENFORCING FEDERAL CIVIL IMMIGRATION LAW. "CIVIL
IMMIGRATION ENFORCEMENT" DOES NOT INCLUDE AN ACTION COMMITTED
BY A PEACE OFFICER WHO IS ACTING WITHIN THE SCOPE OF THE PEACE
OFFICER'S DUTIES CONSISTENT WITH STATE LAW.
       (5) PURSUANT TO SECTION 13-80-102, A CIVIL ACTION DESCRIBED IN
THIS SECTION MUST BE COMMENCED WITHIN TWO YEARS AFTER THE CAUSE
OF ACTION ACCRUES.
        SECTION 3. In Colorado Revised Statutes, 13-80-102, amend
(1)(k); and add (1)(l) as follows:
       13-80-102. General limitation of actions - two years.
         (1) The following civil actions, regardless of the theory upon which
suit is brought, or against whom suit is brought, must be commenced within
two years after the cause of action accrues, and not thereafter:
PAGE 4-SENATE BILL 26-005
       (k) All actions brought under PURSUANT TO section 13-21-109 (2);
AND
       (l) AN ACTION ALLEGING A VIOLATION OF CONSTITUTIONAL RIGHTS
DURING CIVIL IMMIGRATION ENFORCEMENT BROUGHT PURSUANT TO SECTION
13-20-1303.
       SECTION 4. Severability. If any provision of this act or the
application of this act to any person or circumstance is held invalid, the
invalidity does not affect other provisions or applications of the act that can
be given effect without the invalid provision or application, and to this end
the provisions of this act are declared to be severable.
       SECTION 5. Appropriation. For the 2026-27 state fiscal year,
$125,604 is appropriated to the department of law. This appropriation is
from the legal services cash fund created in section 24-31-108 (4), C.R.S.,
from revenue received from the department of personnel that is
continuously appropriated to the department of personnel from the risk
management fund created in section 24-30-1510 (1)(a), C.R.S. The
appropriation to the department of law is based on an assumption that the
department of law will require an additional 0.5 FTE. To implement this
act, the department of law may use this appropriation to provide legal
services for the department of personnel.
       SECTION 6. Safety clause. The general assembly finds,
determines, and declares that this act is necessary for the immediate
preservation of the public peace, health, or safety or for appropriations for
PAGE 5-SENATE BILL 26-005
the support and maintenance of the departments of the state and state
institutions.
____________________________        ____________________________
James Rashad Coleman, Sr.  Julie McCluskie
PRESIDENT OF  SPEAKER OF THE HOUSE
THE SENATE  OF REPRESENTATIVES
____________________________        ____________________________
Esther van Mourik  Vanessa Reilly
SECRETARY OF  CHIEF CLERK OF THE HOUSE
THE SENATE  OF REPRESENTATIVES
       APPROVED________________________________________
                          (Date and Time)
                 _________________________________________
                Jared S. Polis
                GOVERNOR OF THE STATE OF COLORADO
PAGE 6-SENATE BILL 26-005