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Case Name Abay v. Denver PN-CO-0003
Docket / Court 1:20-cv-01616-RBJ ( D. Colo. )
State/Territory Colorado
Case Type(s) Policing
Special Collection Police Violence Protests (Spring/Summer 2020)
Case Summary
This class-action suit was brought in the Colorado state court for the district of Denver on June 4th, 2020. That same day, the case was removed by the defendants to the U.S. District Court for the District of Colorado.

The complaint was filed in response to police tactics used against ... read more >
This class-action suit was brought in the Colorado state court for the district of Denver on June 4th, 2020. That same day, the case was removed by the defendants to the U.S. District Court for the District of Colorado.

The complaint was filed in response to police tactics used against protesters in Denver following the police killing of George Floyd. Plaintiffs were individuals who participated in, observed, or wanted to participate in or observe the protests, and they were represented by private counsel. The complaint alleged that Denver police used chemical agents (including tear gas and pepper spray) as well as Kinetic Impact Projectiles (KIPs) against peaceful protesters. The complaint supplemented those allegations with video and photographic evidence. Plaintiffs argued that these tactics represented violations of the Fourth and First Amendments. Specifically, they argued that DPD's tactics constituted excessive force in violation of the Fourth Amendment and an infringement on plaintiffs' free speech and free assembly rights under the First Amendment. Plaintiffs sought class certification and several forms of relief including a temporary restraining order, a preliminary injunction, declaratory relief, monetary damages for those injured by the police, and attorney's fees. The case was assigned to Judge Richard Brook Jackson and drawn to Magistrate Judge Scott T. Varholak.

On June 5th, plaintiffs filed an emergency motion for a temporary restraining order against the police; it was granted in part on that same day. The order enjoined the Denver Police Department from using chemical weapons or projectiles unless an on-scene supervisor (ranking Captain or above) specifically authorized it in order to prevent destruction of property that the Captain personally witnessed. In addition, the judge ordered that KIPs not be discharged at protesters heads, pelvises, or backs and also prohibited them from being shot into crowds. The judge also enjoined the DPD from allowing non-Denver officers to use force in excess of what DPD used, made body cameras mandatory at all times, and said that chemical agents/irritants may only be used after an order to disperse had been given and adequate time to leave was granted. 2020 WL 3034161.

Unhappy with this order, the defendants asked for two changes to the order. First, they asked for a change to the ruling regarding only using chemicals upon authorization of a Captain. Second, they requested a change to the body camera rule. Judge Jackson granted the first change, but denied the DPD's request with regard to the body cameras.

On June 16, 2020, plaintiffs asked for an extension to the TRO, but Judge Jackson denied this request the following day, telling the parties to try to reach an agreement amongst themselves first. Several days later, Judge Jackson temporarily extended the TRO, while negotiations continued. Then on June 26, 2020, the parties agreed that while the lawsuit was pending:
(1) Pursuant to state law (C.R.S. § 24-31-905(1)(a-c), in response to a protest or demonstration, the Denver Police Department
a. discharge Kinetic Impact Projectiles (“KIPs”) and all other non- or less-lethal
projectiles in a manner that targets the head, pelvis, or back;
b. discharge KIPs indiscriminately into a crowd;
c. use chemical agents or irritants, including pepper spray and tear gas, prior to
issuing an order to disperse in a sufficient manner to ensure the order is heard and repeated if necessary, followed by sufficient time and space to allow compliance with the order.
(2) In addition to the requirements, Denver agreed:
a. DPD will not use chemical agents or KIPs unless an on-scene supervisor at the rank of Sergeant or above specifically authorizes such use of force in response to specific acts of violence or destruction of property that the Sergeant has
personally witnessed or learned about from a fellow officer, absent exigent circumstances. Exigent circumstances include but are not limited to situations where the Sergeant could not be immediately present and delay would be unreasonable.
b. All officers deployed to the demonstrations or engaged in the demonstrations must have their body-worn cameras recording any and all acts of confrontation between police officers and others. Officers shall not intentionally obstruct the camera or recording.
3. Non-Denver officers shall not use any weapon beyond what Denver itself authorizes for its own officers. All non-Denver officers shall comply with Colorado law regarding the use of force and responses to protests or demonstrations.

The Court approved the stipulation the next day. The case is ongoing.

Jack Hibbard - 07/20/2020


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Issues and Causes of Action
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Issues
Constitutional Clause
Freedom of speech/association
Unreasonable search and seizure
Content of Injunction
Preliminary relief granted
Defendant-type
Jurisdiction-wide
General
Aggressive behavior
Excessive force
Pepper/OC spray
Plaintiff Type
Private Plaintiff
Causes of Action 42 U.S.C. § 1983
Declaratory Judgment Act, 28 U.S.C. § 2201
Defendant(s) City of Denver
Plaintiff Description Plaintiffs are residents of Denver, Colorado who participated in, observed, or wanted to participate in or observe, protests following the police killing of George Floyd.
Class action status sought Yes
Class action status granted Pending
Filed Pro Se No
Prevailing Party None Yet / None
Public Int. Lawyer No
Nature of Relief Preliminary injunction / Temp. restraining order
Injunction / Injunctive-like Settlement
Source of Relief Litigation
Settlement
Form of Settlement Private Settlement Agreement
Order Duration 2020 - n/a
Filed 06/04/2020
Case Ongoing Yes
Case Listing PN-CO-0005 : Cruz v. Denver (D. Colo.)
PN-CO-0004 : Black Lives Matter 5280 v. City and County of Denver (D. Colo.)
Additional Resources
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  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
Docket(s)
1:20-cv-1616 (D. Colo.)
PN-CO-0003-9000.pdf | Detail
Date: 07/09/2020
Source: PACER [Public Access to Court Electronic Records]
General Documents
Notice of Removal [ECF# 1]
PN-CO-0003-0001.pdf | Detail
Date: 06/04/2020
Source: PACER [Public Access to Court Electronic Records]
Entry of Appearance on Behalf of Plaintiffs [ECF# 2]
PN-CO-0003-0002.pdf | Detail
Date: 06/04/2020
Source: PACER [Public Access to Court Electronic Records]
Order on Plaintiff's Motion for Temporary Restraining Order [ECF# 16] (2020 WL 3034161) (D. Colo.)
PN-CO-0003-0003.pdf | WESTLAW | Detail
Date: 06/05/2020
Source: PACER [Public Access to Court Electronic Records]
Order on Plaintiff's Motion to Extend Temporary Restraining Order [ECF# 35] (D. Colo.)
PN-CO-0003-0004.pdf | Detail
Date: 06/19/2020
Source: PACER [Public Access to Court Electronic Records]
Stipulation [ECF# 40]
PN-CO-0003-0005.pdf | Detail
Date: 06/26/2020
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Jackson, Richard Brooke (D. Colo.) show/hide docs
PN-CO-0003-0003 | PN-CO-0003-0004 | PN-CO-0003-9000
Plaintiff's Lawyers Guevara, John Michael (Colorado) show/hide docs
PN-CO-0003-9000
Schwab, Edward M (Colorado) show/hide docs
PN-CO-0003-0002 | PN-CO-0003-9000
Ziev, Ross I (Colorado) show/hide docs
PN-CO-0003-0005 | PN-CO-0003-9000
Defendant's Lawyers Farley, Conor Daniel (Colorado) show/hide docs
PN-CO-0003-0001 | PN-CO-0003-9000
Klingsporn, Geoffrey Charles (Colorado) show/hide docs
PN-CO-0003-9000
Lewis, Melanie Bailey (Colorado) show/hide docs
PN-CO-0003-0001 | PN-CO-0003-0005 | PN-CO-0003-9000

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