This case arises from the civil rights litigation brought under 42 U.S.C. § 1983 following the George Floyd protests in Denver in May and June 2020. Plaintiff Elisabeth Epps, who was unarmed and peacefully recording police while crossing the street, was shot with a pepperball by Officer Jonathan Christian without any warning. Epps sued Officer Christian, alleging violations of her First and Fourth Amendment rights. The district court denied the officer's motions for summary judgment and bifurcation, and the case proceeded to a jury trial alongside claims against the City of Denver. The jury found Officer Christian liable for excessive force under the Fourth Amendment but not for First Amendment violations, awarding Epps compensatory damages against both the city and the officer, and punitive damages against the officer. Officer Christian appealed, arguing he was entitled to qualified immunity, that the trial should have been bifurcated, and that there was insufficient evidence for punitive damages.
The Tenth Circuit, in an opinion by Circuit Judge Ebel, addressed three primary arguments raised by Officer Christian. First, regarding the Fourth Amendment violation, the court applied the Graham v. Connor factors to determine if the force was objectively unreasonable. The court noted that Epps was unarmed, not acting aggressively, and committing only a minor infraction like jaywalking. Citing Budaj v. City of Aurora, the court reaffirmed that police violate the Fourth Amendment when they shoot a protestor with less-lethal munitions who is committing no crime more serious than a misdemeanor, not threatening anyone, and not attempting to flee. The court found sufficient evidence that Officer Christian's actions were unreasonable under the totality of the circumstances. Second, the court addressed qualified immunity. To defeat this defense, Epps had to show that the right was clearly established at the time of the incident. The court relied on two 2008 Tenth Circuit decisions, Fogarty v. Gallegos and Buck v. City of Albuquerque, which held that shooting peaceful, non-threatening protestors with less-lethal weapons violated the Fourth Amendment. The court concluded that these cases provided sufficient notice to a reasonable officer in May 2020 that shooting Epps under these specific circumstances was unlawful. The court explicitly declined to rely on its own 2023 Budaj decision to establish the law, instead using it to confirm that the 2008 precedents were already clear. Third, the court rejected the argument that the trial should have been bifurcated. The court found no abuse of discretion in trying the officer's claim alongside the city's claims, noting that the jury's distinct findings on the First and Fourth Amendment claims demonstrated they did not conflate the officer's conduct with the city's liability. Finally, regarding punitive damages, the court found sufficient evidence of the officer's 'evil motive or intent' or 'reckless or callous indifference.' This included testimony that the officer liked shooting people and evidence that he fired without warning, supporting the jury's award.
The judgment stands, leaving Officer Christian liable for compensatory and punitive damages. The decision reinforces the liability of police officers who use less-lethal munitions against peaceful protesters without warning, clarifying that the 2008 precedents in the Tenth Circuit were sufficient to put officers on notice of this legal standard by 2020. The ruling confirms that punitive damages are appropriate where evidence shows an officer acted with reckless indifference to constitutional rights.
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