A federal judge in Denver has denied the city’s request for a new trial in the civil lawsuit that led to the first trial in the country over how police responded to the 2020 protests following he death of George Floyd, and won’t reduce the $13.75 million awarded to a group of protesters by a jury in March. But he agreed the amount awarded against one individual officer was too much and chose to reduce it by $200,000.
In a ruling filed Monday, Senior Judge R. Brooke Jackson wrote the jury was reasonable in finding that Denver Police Department policies gave officers wide discretion in their use of chemical weapons and kinetic impact munitions on protesters.
“The evidence supported a conclusion that Denver Police Department policy gave command officers virtually limitless discretion to authorize officers to use less-lethal weapons in protest situations,” Jackson wrote.
“In addition to the mountain of video evidence from which a reasonable jury could have inferred this policy’s existence, Commander [Patrick] Phelan testified that he did not see any police actions during the protests that did not fall within DPD policy.”
A group of protesters took the excessive force lawsuit to federal court against Denver in March. It claimed that misuse of less-lethal weapons — a controversial term because they can cause serious injury or death — from tear gas to shotguns firing lead pellet-filled Kevlar bags by police during the demonstrations violated their constitutional rights, including free speech and peaceful assembly. The protests swelled locally in the days after George Floyd’s death in Minneapolis
After a three-week trial, the jury found Denver responsible for officers' use of excessive force by failing to train them adequately. Other policies and practices of the city and approval of the officers' conduct by top policymakers also led to constitutional violations, jurors also decided.
Denver has said the police department did the best it could to adapt to the protests that erupted quickly and included people who harmed officers and destroyed property alongside peaceful protesters. The Denver Gazette has reached out to the city for comment on Jackson's denial of a new trial.
Tim Macdonald, a partner at Arnold & Porter who tried the case, said he appreciated Jackson’s characterization of the jurors as “the conscience of the community” and the judge’s recognition of their attentiveness and thoroughness during the trial.
The city may yet appeal the verdict. But Macdonald said he hopes the city will focus on moving forward and making reforms in the police department, especially now that a new chief has taken over with the imminent retirement of Chief Paul Pazen.
“We hope the city will acknowledge that, in fact, mistakes were made … and that they decide to work on improving policing and not continuing to fight the prior battle,” he said.
Jackson found the $250,000 in punitive damages against former Denver officer Jonathan Christian awarded to plaintiff Elisabeth Epps excessive. Christian fired a pepper ball at her as she crossed a street. Jackson reduced the award to $50,000, finding that evidence has not definitively shown the pepper ball actually struck struck Epps, and she sustained worse injuries from other officers.
“Ms. Epps was shot with PepperBalls and exposed to CS gas on numerous occasions, and from an objective standpoint, and considering those other shootings and exposures, Mr. Christian’s actions do not warrant a punitive damage award of $250,000,” Jackson wrote.
If Epps chooses not to agree to the new amount, Jackson will grant Christian a new trial. Her attorneys haven't yet made a decision on this part of the ruling.
Jackson declined to reduce the verdict amount against Denver in a process called remittitur. He wrote that although he may have awarded less, he did not find the jury’s decision “shocking or the result of passion, prejudice, or impropriety,” adding that “measuring damages for emotional distress is not an exact science.”
“The jurors observed the testimony of the plaintiffs regarding how their experiences at these protests affected them. … It is clear from the verdict that the jury believed that testimony and assessed damages that they believed were warranted in light of that impact.”
Two of the plaintiffs, Joe Deras and Zach Packard, were injured by Aurora officers and also have legal claims pending trial there. The Denver jury found the city responsible for the actions of officers from other agencies who came to help Denver under mutual aid agreements in its response to the protests.