People For the American Way

Biden Judge Upholds Ruling that Demostrators Can Have Their Day in Court Against Police Charged With Using Excessive Force Against Them

News and Analysis
Biden Judge Upholds Ruling that Demostrators Can Have Their Day in Court Against Police Charged With Using Excessive Force Against Them

Judge Veronica Rossman, nominated by President Biden to the Tenth Circuit, wrote a unanimous opinion that upheld a lower court finding that police officers were not entitled to qualified immunity against a complaint contending that they used excessive force against demonstrators at a protest. The November 2023 decision was in Packard v Budaj.


What happened in this case?

In response to the murder of George Floyd, several large demonstrations occurred on the streets of Denver. In one protest, Zachary Packard kicked away a tear gas canister thrown at demonstrators by police. A police officer then hit Packard in the head with a beanbag round fired from a gun, which “knocked him unconscious and caused major injuries.”

At another spot, police shot a foam baton round at Jonathan Duran and hit him in the groin. At the time he was shot, Duran was wearing a hat with the word “media” on it, and Duran was “filming the protest.”

Packard and Duran filed suit against Denver police officers for use of excessive force. The officers claimed they should have qualified immunity for their actions, but the district court rejected those claims and ordered that the case should go forward. The police filed an appeal with the Tenth Circuit, maintaining that the case against them should be dismissed because of qualified immunity.


How did Judge Rossman and the Tenth Circuit Rule and Why is it Important?

Judge Rossman wrote a unanimous decision that rejected the police appeal and ruled that the demonstrators should be able to proceed with their claims of use of excessive force. Based on the facts as found by the district court and in accord with precedent, Rossman wrote that the lower court had correctly concluded that the demonstrators’ conduct did not violate the law and they had a valid constitutional claim that the police had used excessive force against them, as to which a “reasonable jury” could find in their favor.

In addition, Judge Rossman agreed that precedent had “clearly established” that police “cannot shoot a protester” with even “non-lethal munitions” when the protester was not a threat or attempting to flee and was “committing no crime more serious than a misdemeanor.” That was clearly the case here, Rossman continued, so the police had no valid claim to qualified immunity and the case against them should go forward.

Judge Rossman specifically rejected the officers’ claim that previous cases involving the use of force at demonstrations did not present facts “identical” to those here. As Rossman explained, a “prior case need not be exactly parallel to the conduct here for the officials to have been on notice of clearly established law.”

Judge Rossman’s ruling was obviously important so that Packard and Duran could have their day in court to pursue their claims of excessive force against the police. The ruling is also significant with respect to other contentions that police have improperly used excessive force against other demonstrators,  particularly in the states of the Tenth Circuit,  including Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming. The ruling also serves as another reminder of the importance of promptly confirming fair-minded Biden nominees like Judge Rossman to our federal courts.