A federal judge dismissed a Boulder man’s allegations of excessive force and failure to intervene directed at the police officers who shot him in his apartment, but permitted claims related to the plaintiff’s prosecution to continue.

According to court filings, Cole Stewart took a taxi home early on the morning of May 30, 2014. He was “slow to procure” the $4.85 cab fare, and the driver inferred Stewart had no intention of paying. The driver subsequently took Stewart to a nearby Boulder police annex, reportedly alerting officers through “erratic driving and honking.”

Stewart exited the cab and fled, and an officer followed him on foot. Other officers followed, and one of them unlocked the fence to the patio area outside of Stewart’s apartment. 

After “only one or two seconds,” according to Stewart, officers thought they saw a gun and shot into his apartment and struck him twice. He received a charge of felony menacing after police found a BB gun in his apartment. Upon conviction, Stewart earned a 45-day sentence of imprisonment, which the Colorado Court of Appeals reversed in July 2017. 

One year later, prosecutors dismissed the charge against him. Stewart alleged this was so “the prosecution would not have to publicly account for [the crime scene reconstruction expert’s] report showing that [he] was innocent and that the officers had lied” about him brandishing a BB gun.

After Stewart filed a federal complaint in June 2019 against the city of Boulder and the officers involved, the defendants attempted to dismiss the legal action because it was outside the two-year statute of limitations for the shooting. Stewart countered that he believed he could not begin his lawsuit for excessive force and failure to intervene until after the appeals court invalidated his conviction.

On March 5, 2020, U.S. Magistrate Judge Nina Y. Wang recommended a dismissal of Stewart’s claims, agreeing that the statute of limitations in Colorado began to run in May 2014 and his civil claims could have proceeded regardless of his criminal charge.

“Plaintiff’s claims for excessive force and failure to intervene have a life independent of his criminal conviction,” Judge Raymond P. Moore agreed on Sept. 1, adopting the recommendation.

However, the court rejected the defendants’ move to dismiss Stewart’s other claims of malicious prosecution and infringement on his Fourteenth Amendment right to due process. 

This decision was based on Stewart’s assertion that “the Defendant Officers testified falsely and that absent this misconduct, the prosecution of Plaintiff could not and would not have occurred.” He elaborated in his complaint that a crime scene reconstruction showed Stewart could not have been standing at the door with a BB gun because he would have been “riddled with bullets” were that true.

“Cole Stewart’s case is fundamentally about the Boulder police officers’ fabrication of evidence for use against him in making up a criminal charge: felony menacing,” said Stewart’s lawyer, Elizabeth Wang of Loevy & Loevy. “That is the heart of his case and that is what the court has allowed to proceed in this case. The fact that the judge dismissed the excessive force claim on timeliness grounds does not really affect our ability to hold the officers accountable.”

Wang added that physically, Stewart was recovering from his injuries, but still traumatized from the incident. She said “it would be wonderful” to have a formal apology from the city, but her client is primarily seeking a jury trial and compensation for his injuries.

The city could not comment on the pending lawsuit.

The case is Stewart v. Boulder et al.