588 F.Supp.3d 1164
D. Colo.2022Background
- Denver imposed an emergency citywide curfew May 30–June 5, 2020 (initially 8:00 p.m.–5:00 a.m.), forbidding presence in public places; exceptions did not include First Amendment activity.
- A plaintiff class was certified for individuals arrested under the curfew or failure-to-obey orders between May 30–June 5, 2020, who were not charged with other violations and whose charges were dismissed.
- Plaintiffs allege the curfew and its enforcement violated the First, Fourth, and Fourteenth Amendments and assert Monell municipal-liability claims based on policies/practices (use of less-lethal munitions, inadequate BWC activation/training, accountability failures, kettling, etc.).
- Elizabeth Epps separately sues Officers Jonathan Christian and Keith Valentine for being struck with pepperballs while she was peacefully protesting/filming.
- District court found genuine disputes of material fact as to whether Denver’s curfew was a content-neutral curfew or a protest-targeted/ selectively enforced order; denied summary judgment on most claims, granted summary judgment as to the Fourth Amendment class claims, granted qualified immunity for Officer Valentine, and denied qualified immunity for Officer Christian.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| First Amendment challenge to curfew (content-based vs content-neutral) | Curfew, though facially neutral, was enforced as a targeted ban on protest activity; internal DPD messages and practices show content-based enforcement. | Curfew text was content-neutral and applied to all persons; enforcement reflected protestor prevalence among curfew violators, not speech-based targeting. | Genuine dispute of material fact; protest-targeted theory would be content-based and fail strict scrutiny, so First Amendment claim survives summary judgment as to factual dispute. |
| Fourteenth Amendment selective enforcement (Equal Protection) | DPD adopted and applied an enforcement policy that targeted protestors (different treatment based on protected speech). | Enforcement was not discriminatory; many non-arrestees and at least one non-protestor arrest show nonselective application. | Genuine dispute of material fact; plaintiffs’ evidence could support an Equal Protection claim tied to speech-based disparate enforcement. |
| Fourth Amendment class claims for arrests under the curfew | Arrests under an unconstitutional curfew or its discriminatory enforcement violated plaintiffs’ Fourth Amendment rights. | Even if curfew problematic, arrests were supported by probable cause to enforce the curfew; officers reasonably relied on the statute’s validity. | Court granted summary judgment on Fourth Amendment class claims: no genuine dispute because probable cause/ reasonable reliance defeats liability. |
| Qualified immunity for individual officers re: pepperball strikes | Epps: Christian and Valentine used excessive force and/or retaliated against protected activity when they shot her with pepperballs (Christian while she filmed; Valentine when she was nearby a thrower). | Officers argue qualified immunity; no clearly established law put reasonable officers on notice that their conduct was unlawful in these circumstances. | Officer Christian: qualified immunity denied (video and precedent show clearly established rule barring pepperballs against nonthreatening, nonfleeing individuals; First Amendment retaliation claim survives). Officer Valentine: qualified immunity granted (facts involve a proximate threat/thrower and no clearly established law on warnings/poor aim to cover bystander). |
Key Cases Cited
- Verlo v. Martinez, 820 F.3d 1113 (10th Cir. 2016) (First Amendment forum analysis and content-based/content-neutral scrutiny framework)
- Monell v. Department of Social Services, 436 U.S. 658 (U.S. 1978) (municipal liability requires policy/custom and causal link)
- Graham v. Connor, 490 U.S. 386 (U.S. 1989) (Fourth Amendment objective-reasonableness standard for use-of-force claims)
- Buck v. City of Albuquerque, 549 F.3d 1269 (10th Cir. 2008) (less-lethal munitions against nonthreatening, nonfleeing persons unlawful; clearly established for qualified immunity analysis)
- Fogarty v. Gallegos, 523 F.3d 1147 (10th Cir. 2008) (force least justified against nonviolent misdemeanants; relevant to less-lethal munitions analysis)
- Pearson v. Callahan, 555 U.S. 223 (U.S. 2009) (qualified immunity two-step: constitutional violation and clearly established law)
- Brewer v. City of Albuquerque, 18 F.4th 1205 (10th Cir. 2021) (content-neutral time/place restrictions analysis)
- Brower v. County of Inyo, 489 U.S. 593 (U.S. 1989) (‘‘seizure’’ requirement for Fourth Amendment claims)
- Waller v. Denver, 932 F.3d 1277 (10th Cir. 2019) (Monell standards summarized)
- City of Canton v. Harris, 489 U.S. 378 (U.S. 1989) (deliberate indifference standard for failure-to-train municipal liability)