2 weeks Ago
Another federal judge cleared the way last week for a jury to decide whether Denver and one of its officers violated the constitutional rights of 14 protesters during the summer of 2020. U.S.
District Court Judge S. Kato Crews concluded the plaintiffs offered sufficient evidence for jurors to find they were exercising their First Amendment rights at the time police fired projectiles and chemical agents against them. Jurors could also conclude the chemical weapons violated the Fourth Amendment's prohibition against unreasonable seizures.
"Here, there is evidence that nearly all the Plaintiffs came into physical contact with chemical agents that effectively restrained their freedom of movement and constituted more than a minimal intrusion on their bodily integrity," Crews wrote on Sept. 12 . "To be sure, many of the Plaintiffs were disoriented, momentarily blinded, and unable to breathe, while at least one was incapacitated completely.
" U.S. Magistrate Judge S.
Kato Crews This year alone, several federal judges have joined Crews in advancing similar lawsuits to trial against Denver or its officers. The claims all arose after a Minneapolis police officer killed George Floyd in May 2020 , prompting international demonstrations. Denver police, along with other responding agencies, subsequently used force against violent rioters and peaceful protesters.
In the four years since the demonstrations, U.S. District Court Senior Judge R.
Brooke Jackson has presided over a jury trial that culminated in a $14 million award to plaintiffs injured by excessive force. In March, U.S.
District Court Judge Nina Y. Wang green-lit a jury trial for 13 more plaintiffs and U.S.
Magistrate Judge Kathryn A. Starnella followed suit with a freelance photographer who was arrested during the city's curfew. In June, U.
S. District Court Judge Daniel D. Domenico agreed a jury would decide whether Denver's policies or customs were behind the alleged violations of eight more protesters' rights.
The case before Crews featured a largely identical sequence of events: The plaintiffs were present during the protests in downtown Denver and were hit with or injured by projectiles and chemical agents, despite their nonviolent conduct. They alleged Denver's policies, customs and lack of training motivated officers' unconstitutional conduct. Also named as a defendant was Officer Adam Bolton, who allegedly assaulted two of the plaintiffs.
The defendants moved to end the case in their favor without a trial. They argued the plaintiffs were not engaging in protected speech at the time police used force against them as an alleged act of retaliation. Further, to the extent protesters were violating the curfew, "their activity is not protected by the First Amendment.
" The city further contended the chemical agents "did not physically touch" the plaintiffs, meaning no "seizure" took place. Finally, Denver challenged the notion that its policies were inherently unconstitutional. "Plaintiffs have no evidence of similar acts prior to these protests; nor could they, since these protests were unprecedented in Denver.
Thus, Plaintiffs have no evidence of a widespread practice or custom, and their municipal liability claims fail," wrote the defendants' attorneys. A participant holds a placard Sunday, May 31, 2020, during a protest outside the State Capitol in Denver over the death of George Floyd who died after being restrained by Minneapolis police officers on May 25. The plaintiffs countered that their First Amendment rights did not disappear because there was a city curfew.
Moreover, Denver had encountered large protests in the past and the city should have known that failing to train its officers could result in constitutional violations. Crews generally agreed with the plaintiffs. He declined to "parse every action of each Plaintiff" to determine whether they were engaged in First Amendment activity at the time police used force against them.
Instead, he found the plaintiffs were broadly engaged with the protests, and jurors could view their constitutionally protected activity as the motivating factor for law enforcement's response. Crews also determined the use of chemical agents to control protesters was a seizure, as the purpose was to restrain protesters. Finally, he agreed there was evidence suggesting it was obvious Denver would need to train its officers in lawful methods of crowd control.
"Even if a protest of this magnitude was unprecedented in Denver, they are not unprecedented nationwide," Crews wrote. "It strains credulity to suggest that a protest, regardless of the size, would need to first occur locally before a police force was on notice of the need to train its officers in crowd control and crowd management." As for the claims against Bolton, Crews determined it was clear that officers may not use excessive force on a peaceful, non-resisting protester, even if they are violating a curfew.
Jurors could also view body-worn camera footage and conclude Bolton singled out those who were vocally challenging police, while ignoring others who were not, Crews noted. He advised the parties to prepare for a trial between November and January. The case is Bjelland et al.
v. City and County of Denver et al..
