Driscoll v. City of Denver

1

MICHAEL DRISCOLL, Plaintiff, v. THE CITY AND COUNTY OF DENVER, a municipal entity, PAUL PAZEN, Chief of Police, in his individual capacity, PATRICK PHELAN, in his individual capacity, RICK EBERHARTER, in his individual capacity, TIMOTHY HYATT, in his individual capacity, and CHRISTOPHER COCHRAN, in his individual capacity, Defendants.

Civil Action No. 21-cv-02866-PAB-NRN

United States District Court, D. Colorado

September 30, 2024

ORDER

PHILIP A. BRIMMER CHIEF UNITED STATES DISTRICT JUDGE

This case arises out of protests against police brutality that occurred in the spring of 2020 in Denver, Colorado in response to the murder of George Floyd (“the protests”). Docket No. 94 at 4-6, 34, ¶¶ 14-21, 83. The matters before the Court are the Motion to Dismiss Second Amended Complaint on Behalf of Denver, Chief Pazen, and Commander Phelan [Docket No. 99], Motion to Dismiss Plaintiff's Second Amended Complaint [Docket No 100], filed by defendants Rick Eberharter and Christopher Cochran, and Defendant Timothy Hyatt's Motion to Dismiss Plaintiff's Second Amended Complaint [Docket No. 102]. The Court has jurisdiction pursuant to 28 U.S.C. § 1331.

I. BACKGROUND

A. Factual Background^[1]

On May 30, 2020, plaintiff Michael Driscoll drove from Pueblo, Colorado to Denver to participate in the protests. Docket No. 94 at 34-35, ¶¶ 83, 93. At approximately 7:30 p.m., Mr. Driscoll was standing on the sidewalk on the southwest corner of Lincoln Street and Colfax Avenue at the Capitol Complex. Id. at 35, ¶ 103. Mr. Driscoll was in a small crowd, chanting and objecting to the use of force against peaceful demonstrators. Id. at 36, ¶ 104. Neither Mr. Driscoll nor any individual near him was engaged in any crime, was a threat to any individual, or was engaged in any property damage. Id., ¶ 105. At approximately 7:33 p.m., defendant Rick Eberharter, a corporal from the Denver SWAT team, threw a tear gas canister at Mr. Driscoll. Id., ¶ 109. The tear gas canister landed at Mr. Driscoll's feet. Id. at 37, ¶ 110. Officer Eberharter had no reason to believe Mr. Driscoll had committed any crime. Id. at 38, ¶ 111. The tear gas caused Mr. Driscoll severe pain and forced him to stop his protesting momentarily. Id., ¶ 113. Officer Eberharter never engaged his body-worn camera and did not complete a use-of-force report or any after-action report for throwing a tear gas canister at Mr. Driscoll. Id., ¶¶ 116, 119. Under Officer Eberharter's leadership, no body-worn camera videos for the Denver SWAT team were created, and no reports were created, in spite of their many uses of force. Id. at 39, ¶ 129. These actions were taken to conceal the identities of the officers engaging in unconstitutional conduct. Id., ¶ 131.

On May 31, 2020, at around 9:09 p.m., Mr. Driscoll was standing on Colfax Avenue between Washington Street and Clarkson Street. Id. at 44, 53, ¶¶ 139, 166. Denver Police had formed a line to confront several protesters. Id. at 53, ¶ 167. Defendant Timothy Hyatt, a Denver Police Officer, threw a rubber sting-ball grenade at Mr. Driscoll because of a sign Mr. Driscoll was carrying. Id., ¶ 168. The grenade exploded on Mr. Driscoll's sign, which he was using as a shield. Id., ¶ 169. Officer Hyatt later produced a use-of-force report on this incident. Id. at 55, ¶ 173. In his report, Officer Hyatt stated that he deployed pepper balls at an individual with a large piece of plywood. Id., ¶ 175. Officer Hyatt stated that the individual with the plywood threw rocks at officers. Id., ¶ 176. At that time, Mr. Driscoll was the only individual with a plywood sign and did not throw rocks at officers. Id., ¶ 177.

Moments after Officer Hyatt threw the rubber sting-ball grenade at Mr. Driscoll, defendant Christopher Cochran, a Denver Police Officer, aimed and fired a 40mm kinetic impact projectile (“KIP”), which hit and broke Mr. Driscoll's plywood sign. Id. at 55-56, ¶¶ 181-82. The officers cheered at Officer Cochran's actions, and Officer Cochran stated, “that was awesome.” Id. at 56, ¶¶ 182-83. During the protests, Officer Cochran never turned on his body-worn camera and never completed a use-of-force report. Id., ¶¶ 186-88. Throughout this interaction with police, Mr. Driscoll committed no crime, was never subject to arrest, was a threat to no person, and was a threat to no property. Id. at 55-56, ¶¶ 171, 184.

At around 10:00 p.m., Mr. Driscoll marched with a group of approximately one hundred protesters to the intersection of Cherokee Street and 13th Avenue. Id. at 57, ¶ 194. The protesters stood peacefully one hundred yards away from a group of police officers and chanted “I can't breathe.” Id. at 58, ¶ 200. Denver Police fired tear gas canisters, rubber bullets, and pepper balls into the crowd of peaceful protesters. Id. at 59-60, ¶¶ 202, 209. At that time, no member of the group of protesters, including Mr. Driscoll, was committing a crime, destroying property, or threatening or harming an individual. Id. at 59, ¶¶ 203-05. Mr. Driscoll raised his plywood sign to use as a shield. Id. at 60, ¶ 210. Mr. Driscoll's sign, which displayed the acronym “ACAB,”^[2]faced the police. Id., ¶¶ 212, 214. Within seconds of raising his sign, Mr. Driscoll was hit in the face with a rubber bullet by a Denver police officer. Id., ¶ 215.

Mr. Driscoll was taken to the hospital, id. at 61, ¶ 229, where he was diagnosed as having a frontal sinus anterior table fracture and a left superior medial orbital fracture. Id., ¶ 231. Mr. Driscoll's skull had collapsed between his eyes, destroying his sinus cavity. Id., ¶ 232. Mr. Driscoll underwent reconstructive surgery for his skull, which included a bone graft from the top of his skull. Id. at 62, ¶ 234.

During all times pertinent to this litigation, defendant Paul Pazen was the Denver Chief of Police. Id. at 2-3, ¶ 5. Chief Pazen was responsible for supervising defendants Hyatt, Eberharter, and Cochran, as well as all Denver police officers and mutual aid partner officers responding to the George Floyd protests. Id. He was responsible for directing their actions during the protests in response to the murder of George Floyd and, specifically, their actions during the protest on May 31, 2020. Id. During all times pertinent to this litigation, defendant Patrick Phelan was the Commander of Special Operations for the Denver Police Department. Id. at 3, ¶ 6. In this role, Commander Phelan was in direct command of the officers responding to the George Floyd protests. Id. He was responsible for supervising defendants Hyatt, Eberharter, and Cochran, as well as all Denver police officers and mutual aid partner officers responding to the George Floyd Protests. Id. He was responsible for directing their actions during the protests in response to the murder of George Floyd and, specifically, their actions during the protest on May 31, 2020. Id. Throughout the days of protests, Commander Phelan and Chief Pazen were made aware of the gratuitous use of force by their officers. Id. at 14, ¶ 43. Complaints were made by protesters, along with calls from elected officials, asking that the Denver Police Department and its officers stop using such force against the protesters. Id. The Denver Police Department had body cameras and overhead videos, called HALO cameras, that captured much of the police use of force, which was shown to Commander Phelan and Chief Pazen and circulated online. Id., ¶ 44. Commander Phelan and Chief Pazen took no action to change the force used by their officers. Id., ¶ 45. Commander Phelan and Chief Pazen were made aware of the injuries to the heads and eyes of protesters.^[3]Id. at 18, 60, ¶¶ 65, 211.

B. Procedural History

Mr. Driscoll filed his original complaint on October 25, 2021. Docket No. 1. In the original complaint, Mr. Driscoll brought five claims of relief against the City and County of Denver (“Denver”), Chief Pazen, Commander Phelan, and ten John Doe defendants. Id. at 39-51, ¶¶ 151-260. These claims include a Fourth Amendment claim for excessive force, a Fourteenth Amendment claim for excessive force, a First Amendment claim for violating Mr. Driscoll's rights of free speech and assembly, a First Amendment retaliation claim, and a Fourteenth Amendment due process claim. Id. These claims were premised on the 10:00 p.m. incident on March 31, 2020, where Mr. Driscoll was shot in the forehead with a rubber bullet. See id. at 32-38, ¶¶ 98-139.

On January 6, 2023, Mr. Driscoll filed a motion to amend his complaint to add eight individual defendants and to add various other allegations, including those allegations relating to Officers Hyatt, Eberharter, and Cochran. Docket No. 29; see also Docket No. 29-1. Defendants Pazen, Phelan, and Denver opposed Mr. Driscoll's motion to amend his complaint on the grounds that (1) Mr. Driscoll failed to demonstrate good cause to amend his complaint, (2) the new allegations in Mr. Driscoll's amended complaint do not relate back to his original complaint, and (3) Mr. Driscoll's proposed amendments were futile because the additional claims he sought to add are barred by the applicable statute of limitations. Docket No. 34 at 8-15. The Court referred the motion to Magistrate Judge Reid Neureiter. Docket No. 30. Judge Neureiter issued an order granting Mr. Driscoll's motion to amend the complaint on February 28, 2023. Docket No. 39.

That same day, Mr. Driscoll filed his first amended complaint. Docket No. 40. The amended complaint brings the same five claims for relief as the initial complaint. See id. at 68-79, ¶¶ 283-378. However, Mr. Driscoll's amended complaint substitutes the ten John Doe defendants for various officers, including Officers Hyatt, Eberharter, and Cochran. Id. at 1. Additionally, the complaint adds factual allegations regarding Mr. Driscoll's interactions...