Following the death of George Floyd, thousands of people protested in Denver from May 28 through June 2, 2020. While some protesters engaged in violence, many were peaceful. During these demonstrations, Denver Police Department officers, along with officers from nearby jurisdictions, indiscriminately used less-lethal munitions such as tear gas, pepper balls, and flash grenades against peaceful protesters. Twelve plaintiffs sued the City and County of Denver under 42 U.S.C. § 1983, alleging violations of their First and Fourth Amendment rights. They argued that the City was liable because its official policies, practices, or failure to train officers caused these constitutional violations. After a three-week trial, a jury found that officers had violated the plaintiffs' rights and that Denver was liable under three theories, including a failure-to-train theory. The district court denied Denver's post-verdict motions for judgment as a matter of law or a new trial, leading to this appeal.
The Tenth Circuit, in an opinion by Judge Ebel, addressed six arguments raised by Denver. First, regarding First Amendment jury instructions, the court found that even if the instruction used the phrase 'substantial or motivating' instead of 'substantially motivating,' any error was harmless because the instruction also defined the factor as 'significant,' which aligns with the legal standard. Second, Denver argued the court failed to instruct on 'deliberate indifference' for all municipal liability theories. The court declined to decide this broadly because the jury's verdict on the failure-to-train theory, which explicitly required a finding of deliberate indifference, was sufficient to sustain the judgment. Third, the court rejected Denver's challenge to the failure-to-train instruction, noting that the verdict form and instruction clearly required the jury to find deliberate indifference. Fourth, the court upheld the admission of testimony from Nicholas Mitchell, the Independent Monitor. The court reasoned that Mitchell's testimony was admissible under Federal Rule of Evidence 701 as lay opinion based on his investigation, not as an expert opinion. Furthermore, the testimony did not violate Rule 407 regarding subsequent remedial measures because the investigation and report were not 'measures' taken to prevent future harm, but rather post-event inquiries into the cause of the incident. Fifth, the court found sufficient evidence to support the jury's finding of deliberate indifference. Evidence showed a pattern of prior violations and that policymakers knew officers would confront civil rights protests, yet failed to provide adequate training on crowd control and less-lethal munitions. Finally, the court affirmed the denial of Denver's motion for remittitur, concluding that the jury's damages award for physical injuries and emotional distress did not shock the judicial conscience given the severity of the force used and the plaintiffs' testimony.
The judgment stands, confirming Denver's liability for the unconstitutional force used against the plaintiffs. The City must now enforce the damages award against its budget. The decision reinforces the 'single-incident' theory of Monell liability where the need for training is 'patently obvious' to policymakers, specifically regarding the use of less-lethal munitions during civil unrest. It clarifies that post-event investigative reports by independent monitors are admissible as lay testimony and do not constitute excluded subsequent remedial measures under Rule 407.
Podcast (federal-narrative-summaries): Play in new window | Download