AURORA, Colo. — A federal appeals court says two protesters can hold the City of Aurora and the Aurora officers accountable for injuries caused by officers' alleged excessive force during the George Floyd protests.
The court's 22-page ruling is being called a "precedent-setting ruling" by the American Civil Liberties Union of Colorado after 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.”
Zachary Packard and Johnathan Duran were both hurt in Denver more than three years ago as they said they were protesting peacefully.
The ACLU said an officer shot Packard in the head with a lead-filled shotgun after he kicked a tear gas canister. It knocked him unconscious and broke some bones. The ACLU said an officer shot Duran in the groin with a foam baton.
Body camera video shared by the ACLU shows an Aurora sergeant directing officers to shoot protesters if they touched tear gas canisters. Police also deployed projectiles, flash-bang grenades, chemical weapons and other less-lethal weapons against peaceful protesters.
Both men are suing the officers accused of hurting them as they protested. The officers challenged the lawsuit. The court says the officers can stand trial for violating the protesters' constitutional rights and using excessive force.
The United States Court of Appeals for the 10th Circuit dismissed an earlier appeal from the city and its officers that challenged the district court's denial of qualified immunity against Officer David McNamee, Officer Cory Budaj, and Sgt. Patricio Serrant.
The federal and district court agreed 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.”
The ACLU said the latest court decision comes closer to the end of a long legal challenge against officers for unconstitutional use of force in response to the 2020 protests of the murder of Floyd.
"People have a First Amendment right to speak, they speak their mind, they have a First Amendment right to assemble, to gather, and to raise their voices in the community," said Tim Macdonald, ACLU's legal director. "And the police cannot respond to those peaceful protests with violence."
A date has not been announced on when the trial will start.
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