Packard v. City & County of Denver

Incident Summary & Facts

During the 2020 George Floyd protests in Denver, Denver Police Department officers and personnel from other agencies operating under DPD’s direction deployed less-lethal munitions – including tear gas, pepper spray, and impact projectiles – against crowds of protesters. Multiple plaintiffs were struck and injured during protests they characterized as peaceful and non-threatening. Evidence at trial showed that DPD had no meaningful tracking system for individual officers’ use of less-lethal munitions during the protests and that officers received inadequate training on crowd-control applications of those weapons.

Plaintiffs brought 42 U.S.C. § 1983 claims against Denver and Officer Jonathan Christian, alleging violations of the First and Fourth Amendments. After a fifteen-day jury trial, the jury found for the plaintiffs and returned a verdict of approximately $14 million. Both Denver and Officer Christian appealed.

Core Legal Issue

Whether (1) Officer Christian was entitled to qualified immunity because the constitutional prohibition on deploying less-lethal munitions against peaceful, non-threatening protesters was not clearly established at the time of the protests; (2) Denver was liable under Monell for a policy or custom of deliberate indifference in training officers on less-lethal force during protests; and (3) Christian was prejudiced by a joint trial with the city.

The Holding

The Tenth Circuit affirmed the jury verdict on all grounds. The court held that it was clearly established no later than 2008 – through Fogarty v. City & County of Denver and Buck v. City & County of Denver – that officers violate the Fourth Amendment by deploying less-lethal munitions against peaceful, non-threatening protesters. Qualified immunity was therefore unavailable to Officer Christian. Denver’s municipal liability was sustained on a failure-to-train theory: the city’s failure to track officer munitions use and its inadequate training on crowd-control deployments constituted deliberate indifference to a known risk of constitutional violations. The joint trial challenge was rejected for lack of specificity.

The Court’s Analysis

• Clearly established law. The panel, per Judge Ebel, identified Fogarty and Buck as the controlling clearly-established-law authorities. Both decisions predated the 2020 protests and squarely held that shooting nonlethal projectiles at protesters who committed no serious crime, posed no threat, and were not attempting to flee violates the Fourth Amendment. Christian’s arguments that the crowd context distinguished his conduct were rejected; the relevant inquiry is whether officers could reasonably have believed their specific actions were lawful, and they could not.
• Municipal liability. The court sustained Monell liability on a failure-to-train and failure-to-supervise theory. DPD’s absence of any individual officer munitions-tracking during large-scale protests, combined with training deficiencies specific to crowd-control less-lethal deployments, showed that the city was on notice of foreseeable constitutional violations and chose not to address them – satisfying the deliberate indifference standard of City of Canton v. Harris.
• Joint trial. Christian argued that trying his individual claims alongside the city’s Monell claims was unduly prejudicial. The panel rejected the argument because Christian offered no specific showing of how the joint trial affected the verdict against him.
• Denver’s responsibility for outside officers. Denver did not contest on appeal that it bore responsibility for the conduct of officers from other agencies who operated under DPD’s direction during the protests.

Subsequent History

A petition for certiorari is pending before the Supreme Court (No. 25A1379 includes a related stay application). The case presents the question whether the clearly-established-law analysis in the protest-force context is consistent across circuits.