Aurora police officers to face trial over excessive use of force against peaceful protesters during the 2020 protests of the murder of George Floyd 

DENVER — A federal appeals court held yesterday that three Aurora police officers and the City of Aurora must face trial for violating the constitutional rights of two plaintiffs during the 2020 protests of the murder of George Floyd. In a precedent-setting ruling, the court explained that the use of less-lethal munitions is “unconstitutionally excessive force when applied to an unthreatening protester who has neither committed a serious offense nor attempted to flee.” 

The American Civil Liberties Union of Colorado and cooperating counsel applauded the decision. 

“The court’s decision once again affirms the fundamental principle that police cannot use violence against peaceful protesters. Our clients went to the streets to raise their voices against police abuse and the police responded with violence. This decision is another step in holding them accountable,” said Tim Macdonald, ACLU of Colorado Legal Director. 

In a 22-page ruling, the United States Court of Appeals for the Tenth Circuit dismissed an appeal from the City of Aurora and its officers that challenged the district court’s denial of qualified immunity against Aurora Officer David McNamee, Officer Cory Budaj and Sergeant Patricio Serrant. Both the Court of Appeals and the district court held that “[t]he law is clearly established that an officer cannot shoot a protester with ... less-lethal munitions when that protester is committing no crime more serious than a misdemeanor, not threatening anyone, and not attempting to flee.” 

This decision moves us closer to the end of a years-long legal challenge against police officers for their unconstitutional use of force in response to the 2020 protests of the murder of George Floyd. Denver police officers deployed projectiles, flash-bang grenades, chemical weapons and other less-lethal weapons against peaceful protesters.

Aurora police officers, acting in concert with Denver’s protest response, shot plaintiff Zachary Packard in the head with a lead-filled bag fired from a shotgun; he was rendered unconscious and suffered a fractured skull and jaw, two fractured discs and bleeding in his brain. Aurora officers also struck Johnathan Duran with a foam baton round to the groin. 

This decision affirms that Aurora police officers — and police departments across the country — are not above accountability for their abuse of force against peaceful protesters, even when acting under the supervision of other police departments. 

“This decision is another step forward in holding police accountable for their illegal use of force,” said Deborah Richardson, ACLU of Colorado Executive Director. “No Coloradan should feel deterred by police violence in exercising their constitutional rights.”

In addition to Tim Macdonald, ACLU of Colorado Legal Director, Sara Neel, Senior Staff Attorney and Mark Silverstein, Legal Director Emeritus, the litigation team includes ACLU of Colorado Cooperating Attorneys Reeves Anderson, Matt Douglas, and Brian Williams of Arnold & Porter. Plaintiffs include Zachary Packard and Johnathan Duran, represented by Elizabeth Wang of Loevy & Loevy.