Court says ‘excessive force’ lawsuit can move forward against Aurora cops aided Denver protests in 2020

AURORA | Three Aurora police officers were not protected by qualified immunity when they fired less-lethal ammunition into Denver crowds protesting the murder of George Floyd in 2020, a federal appeals court found this month.

Denver police requested assistance from the Aurora Police Department and other agencies during the summer of 2020, as protests over the mistreatment of Black people by police escalated.

The federal lawsuit alleges that the cities of Aurora and Denver, as well as a handful of metro-area police officers and officials, violated the rights of protesters through the use of excessive force. A jury decided part of the lawsuit against Denver and its police officers in 2022, awarding $14 million to protesters.

Qualified immunity is a legal standard that kept police from facing civil lawsuits in many cases until the standard was eliminated in Colorado by the Enhance Law Enforcement Integrity Act.

One man, Zachary Packard, was shot in the head with a bean-bag round during a demonstration on May 31, 2020, after he kicked a tear-gas canister that had been fired by police back toward officers.

The bean bag, a small sack full of lead pellets, broke Packard’s jaw, skull and spine, knocked him unconscious and caused bleeding in his brain, according to the American Civil Liberties Union, which is participating in the case on behalf of the plaintiffs.

At about the same time that Packard kicked the gas canister toward officers, Aurora Police Department Sgt. Patricio Serrant told fellow officers responding to the protest that “if they start kicking that s**t, go ahead and frickin’ hit ‘em.”

Officer David McNamee was one of the Aurora police members who fired bean-bag rounds at protesters around the time Packard was hit, though the federal court’s ruling notes that the parties to the lawsuit disagree over whether McNamee was the one who shot Packard.

Citing the federal district court’s earlier decision to deny qualified immunity to the officers, the appeals court noted that officers were protected from the tear gas since they wore gas masks and that “there is no evidence that the kicking of gas canisters generally, or the specific instance of Mr. Packard’s kicking a gas canister, posed an imminent threat to officers or anyone else.”

Another man, Johnathen Duran, was shot in the groin with a foam-tipped baton round while standing near a group of protesters about a half an hour after Packard was shot. Duran was wearing a hard-hat that identified him as a member of the media at the time.

Aurora Officer Cory Budaj was at the same intersection as Duran and fired about 15 foam baton rounds during his deployment, though the parties to the lawsuit also disagree over whether Budaj personally shot Duran.

As it did in the case of Packard, the district court found that Duran “was in a crowd of protesters, but … did not pose a threat to the safety of anyone, police or otherwise.”

Federal district court judge R. Brooke Jackson explained in her September 2022 decision to deny qualified immunity to the three Aurora officers that “the law is clearly established that an officer cannot shoot a protester with … less-lethal munitions when that protester is committing no crime more serious than a misdemeanor, not threatening anyone, and not attempting to flee.”

Upholding Jackson’s decision, appellate judge Veronica Rossman wrote Nov. 14 that the higher court would not overturn Jackson’s decision because “a reasonable jury could find Mr. Packard’s and Mr. Duran’s constitutional rights were violated.”

The ACLU wrote in response to the Court of Appeals for the 10th Circuit’s decision that the ruling would send a message that officers will face consequences for using force against peaceful protestors.

“Our clients went to the streets to raise their voices against police abuse, and the police responded with violence,” said Tim Macdonald, legal director for the ACLU of Colorado. “This decision is another step in holding them accountable.”

Aurora has also asked the 2nd Judicial District Court to force Denver to pay for the legal fees and any settlements or damages resulting from local officers’ response to the 2020 protests. That lawsuit is pending.