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Case Name Abay v. Denver PN-CO-0003
Docket / Court 1:20-cv-01616-RBJ ( D. Colo. )
State/Territory Colorado
Case Type(s) Policing
Special Collection Police Violence Protests (Spring/Summer 2020)
Case Summary
This class-action suit was brought in the state court on June 4th, 2020. That same day, the case was removed by the defendants to the U.S. District Court for the District of Colorado.

The complaint was filed in response to police tactics used against protesters in Denver following the ... read more >
This class-action suit was brought in the state court on June 4th, 2020. That same day, the case was removed by the defendants to the U.S. District Court for the District of Colorado.

The complaint was filed in response to police tactics used against protesters in Denver following the police killing of George Floyd in Minneapolis, MN. Plaintiffs were individuals who participated in, observed, or wanted to participate in or observe the protests; they were represented by private counsel. The complaint alleged that Denver police used chemical agents (including tear gas and pepper spray) as well as Kinetic Impact Projectiles (KIPs) against peaceful protesters. The plaintiffs sued under 42 U.S.C. § 1983, arguing that these tactics represented violations of the First and Fourth Amendments. Specifically, they argued that DPD's tactics constituted an infringement on plaintiffs' free speech and free assembly rights under the First Amendment, and excessive force in violation of the Fourth Amendment. Plaintiffs sought class certification and several forms of relief including a temporary restraining order, a preliminary injunction, declaratory relief, monetary damages for those injured by the police, and attorney's fees. The case was assigned to Judge Richard Brook Jackson and Magistrate Judge Scott T. Varholak.

On June 5th, plaintiffs filed an emergency motion for a temporary restraining order against the police; it was granted in part on that same day. The order enjoined the Denver Police Department from using chemical weapons or projectiles unless an on-scene supervisor (ranking Captain or above) specifically authorized it in order to prevent destruction of property that the Captain personally witnessed. In addition, the judge ordered that KIPs not be discharged at protesters' heads, pelvises, or backs and also prohibited them from being shot into crowds. The judge also enjoined the DPD from allowing non-Denver officers to use force in excess of what DPD used, made body cameras mandatory at all times, and said that chemical agents/irritants could only be used after an order to disperse had been given and adequate time to leave was granted. 2020 WL 3034161.

Unhappy with this order, the defendants asked for two changes to the order. First, they asked for a change to the ruling regarding only using chemicals upon authorization of a Captain. Second, they requested a change to the body camera rule. Judge Jackson granted the first change, but denied the DPD's request with regard to the body cameras.

On June 16, 2020, plaintiffs asked for an extension of the TRO, but Judge Jackson denied this request the following day, telling the parties to try to reach an agreement amongst themselves first. Several days later, Judge Jackson temporarily extended the TRO while negotiations continued. Then, on June 26, 2020, the parties agreed that while the lawsuit was pending, in response to a protest or demonstration, the Denver Police Department and any person acting on behalf of DPD would not:
  1. Discharge KIPs and all other non- or less-lethal projectiles in a manner that targets the head, pelvis, or back;
  2. Discharge KIPs indiscriminately into a crowd;
  3. Use chemical agents or irritants, including pepper spray and tear gas, prior to issuing an order to disperse in a sufficient manner to ensure the order is heard and repeated if necessary, followed by sufficient time and space to allow compliance with the order.
  4. Use chemical agents or KIPs unless an on-scene supervisor at the rank of Sergeant or above specifically authorized such use of force in response to specific acts of violence or destruction of property that the Sergeant had personally witnessed or learned about from a fellow officer, absent exigent circumstances. Exigent circumstances included but were not limited to situations where the Sergeant could not be immediately present and delay would be unreasonable.
  5. All officers deployed to the demonstrations or engaged in the demonstrations must have their body-worn cameras recording any and all acts of confrontation between police officers and others. Officers were not to intentionally obstruct the camera or recording.
  6. Non-Denver officers were not to use any weapon beyond what Denver itself authorizes for its own officers. All non-Denver officers were to comply with Colorado law regarding the use of force and responses to protests or demonstrations.
The Court approved the stipulation the next day.

As the protests continued, plaintiffs filed a motion for order to show cause on July 27 alleging that DPD officers were not complying with the court-approved stipulation. In the motion, plaintiffs highlighted two protests on July 1 and July 19. At the July 1st protest, the plaintiffs alleged that numerous officers failed to wear body cameras and that DPD targeted medics' and protestors' heads with pepper ball bullets. Similarly, at the July 19th protest, the plaintiffs alleged that officers again failed to wear body cameras and that an officer sprayed approximately fifteen protestors without any preceding act of violence or property destruction in violation of the court-approved stipulation. Together, the plaintiffs alleged that more than twenty violations of the stipulation occurred in these two incidents.

On November 23, 2020, Judge Jackson issued an order directing Denver to file a substantive response to plaintiff's order to show cause. Denver did so on December 15, 2020.

The case is ongoing.

Jack Hibbard - 07/27/2020
Casey D'Alesandro - 02/25/2021


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Issues and Causes of Action
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Issues
Constitutional Clause
Freedom of speech/association
Unreasonable search and seizure
Content of Injunction
Preliminary relief granted
Defendant-type
Jurisdiction-wide
General
Aggressive behavior
Excessive force
Failure to discipline
Failure to supervise
Failure to train
Pepper/OC spray
Plaintiff Type
Private Plaintiff
Causes of Action 42 U.S.C. § 1983
Declaratory Judgment Act, 28 U.S.C. § 2201
Defendant(s) City of Denver
Plaintiff Description Plaintiffs are residents of Denver, Colorado who participated in, observed, or wanted to participate in or observe, protests following the police killing of George Floyd.
Class action status sought Yes
Class action status granted Pending
Filed Pro Se No
Prevailing Party None Yet / None
Public Int. Lawyer No
Nature of Relief Preliminary injunction / Temp. restraining order
Source of Relief Litigation
Order Duration 2020 - n/a
Filed 06/04/2020
Case Ongoing Yes
Case Listing PN-CO-0005 : Cruz v. Denver (D. Colo.)
PN-CO-0004 : Black Lives Matter 5280 v. City and County of Denver (D. Colo.)
Additional Resources
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  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
Court Docket(s)
D. Colo.
12/17/2020
1:20-cv-1616
PN-CO-0003-9000.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
General Documents
D. Colo.
06/04/2020
Notice of Removal [ECF# 1]
PN-CO-0003-0001.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D. Colo.
06/04/2020
Complaint [ECF# 1-1]
PN-CO-0003-0006.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D. Colo.
06/04/2020
Entry of Appearance on Behalf of Plaintiffs [ECF# 2]
PN-CO-0003-0002.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D. Colo.
06/05/2020
Order on Plaintiff's Motion for Temporary Restraining Order [ECF# 16] (2020 WL 3034161)
PN-CO-0003-0003.pdf | WESTLAW | Detail
Source: PACER [Public Access to Court Electronic Records]
D. Colo.
06/19/2020
Order on Plaintiff's Motion to Extend Temporary Restraining Order [ECF# 35]
PN-CO-0003-0004.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D. Colo.
06/26/2020
Stipulation [ECF# 40]
PN-CO-0003-0005.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D. Colo.
11/23/2020
Order on Motion for an Order to Show Cause [ECF# 47]
PN-CO-0003-0007.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Jackson, Richard Brooke (D. Colo.) show/hide docs
PN-CO-0003-0003 | PN-CO-0003-0004 | PN-CO-0003-0007 | PN-CO-0003-9000
Plaintiff's Lawyers Guevara, John Michael (Colorado) show/hide docs
PN-CO-0003-9000
Schwab, Edward M (Colorado) show/hide docs
PN-CO-0003-0002 | PN-CO-0003-0006 | PN-CO-0003-9000
Ziev, Ross I (Colorado) show/hide docs
PN-CO-0003-0005 | PN-CO-0003-9000
Defendant's Lawyers Farley, Conor Daniel (Colorado) show/hide docs
PN-CO-0003-0001 | PN-CO-0003-9000
Klingsporn, Geoffrey Charles (Colorado) show/hide docs
PN-CO-0003-9000
Lewis, Melanie Bailey (Colorado) show/hide docs
PN-CO-0003-0001 | PN-CO-0003-0005 | PN-CO-0003-9000

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