Denver protests

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.

A federal court has given the go-ahead to a class action lawsuit against the city of Denver and individual police officers, stemming from law enforcement’s forceful response to racial justice protests in the summer of 2020.

On Monday, U.S. District Court Judge R. Brooke Jackson agreed to grant class status to an estimated 300 people who were present during the downtown Denver demonstrations between May 30 and June 5 last year, and who were arrested for violating curfew or for failing to obey a lawful order. Those individuals were all in custody and detained, but had their charges subsequently dismissed.

Jackson found there was similar treatment across all protesters in the class, as well as a common set of legal questions to resolve. Among the legal concerns were the constitutionality of the curfew, whether police violated the First and Fourth amendments in arresting people, and whether police only arrested those who were protesting and not other civilians.

Elizabeth Wang of Loevy & Loevy, who is one of the attorneys representing the class of arrestees, said the city has not attempted to settle the lawsuit, but she is "always happy" to discuss the option of settlement. At trial, the issue of liability would precede any determination of damages.

"Was this curfew unconstitutional, either on its face or as applied? Was it a policy of the city? Those are the questions that a jury would answer, and if the jury finds the curfew was unconstitutional, then the city is liable," she said.

The plaintiffs had argued in their amended complaint filed in February that Denver officers behaved like "a roving gang cosplaying as an occupying military force" during the demonstrations. There were multiple statements provided from people who police arrested or injured.

"I was arrested for violating the emergency curfew and for failure to obey a lawful order, despite never receiving any lawful orders," said Claire Andrea Sannier, who was reportedly detained for 36 hours.

"I was eventually put into a police van. It was very hard for me to breathe because I have asthma and had been hit by tear gas and pepperballs," added Kelsey Taylor, who said she was arrested at the intersection of 14th Avenue and Broadway while kneeling with other protesters.

Sannier and Taylor are the class representatives, meaning a jury will hear their claims on behalf of all members of the arrested class.

However, the judge declined to allow other claims to proceed as a class action. Plaintiffs had also alleged an unconstitutional use of force when police shot projectiles or used aerosolized chemical agents on protesters who did not pose an immediate threat. Jackson believed it would be too difficult to find and notify all members of that group about the litigation.

“I cannot think of how putative [potential] class members would be identified as being present at the specific intersections on the specific dates and times without individualized factual inquiries,” he wrote in his order. “Any way I look at it, it seems that ascertaining potential members for the Direct Force Classes would pose a substantial administrative burden on this Court.”

The ACLU of Colorado and the firm Arnold & Porter Kaye Scholer are representing the plaintiffs suing for use of force. Wang said both sets of claims are set for trial in March 2022. The amended complaint seeks monetary damages as well as changes in how Denver police deal with peaceful protesters.

A city spokesperson did not immediately respond to a request for comment on the litigation. In their opposition to certifying the lawsuit as a class action, the defendants argued the Denver Police Department was responding to riots, which featured “violence directed at police officers and private and public property,” including explosives.

“The dangerous situations caused by these illegal activities resulted in a need to disperse crowds,” the Denver City Attorney’s Office wrote to the court. “DPD enforced the emergency curfew consistently and lawfully, allowing protesters ample time to disperse and comply with the curfew.”

Following the May 25, 2020 murder of George Floyd in Minneapolis, demonstrators in Denver and worldwide protested against police brutality. On May 30, Mayor Michael Hancock implemented a nighttime curfew starting at 8 p.m., pointing to agitators who "do not represent" Denver.

"What does this mindless destruction achieve?" Hancock said at the time. “Whose life are you honoring when you loot businesses in our city?”

Six days later, Jackson halted the use of certain tactics of law enforcement responding to the protests in Denver. He prohibited police from shooting projectiles indiscriminately into crowds or at people's heads, mandated an order to disperse prior to the use of chemical irritants, and required police supervisors to personally witness an act of violence before approving the use of chemical or projectile weapons. That same day, the curfew expired, and the city later dismissed all curfew-related charges.

A judge this month sentenced former Minneapolis police officer Derek Chauvin to 22.5 years in prison, after a jury found him guilty of killing Floyd.