Because it was unclear whether a Boulder County Sheriff’s deputy used excessive force on a generally hostile inmate during a brief period when the inmate posed no threat, a federal judge has allowed the detainee’s claim to proceed to trial.

Andrew L. Johnson was a pretrial detainee at the Boulder County Jail on Oct. 20, 2017 when he became belligerent with one of the jail employees. Johnson was completing paperwork and had requested, among other items, a grievance form. He asserted his constitutional right to the form after the deputy asked why Johnson wanted one.

The deputy then ordered Johnson into lockdown, but he refused.

Johnson “raised his voice, puffed out his chest,” and demanded another grievance form for a second deputy who reiterated the lockdown order, according to U.S. Magistrate Judge Kristen L. Mix. She reviewed video footage from the jail that corroborated in part the narrative of events.

Although Johnson eventually went to his cell, he ignored further instructions, leading personnel to institute a two-day segregation as a consequence. Johnson continued to resist orders throughout the morning, culminating in him placing his foot to block the closure of his cell door.

According to the video, multiple jail employees were unable to de-escalate the standoff, leading Sgt. Timothy J. Kellison to push Johnson into his cell. When Johnson kicked the door, Kellison pointed his taser at Johnson, ordering him to place his hands behind him and handcuffing Johnson.

While deputies moved Johnson to a restraint chair on a different floor, he physically resisted and hurled slurs and abusive language at personnel. He spent nearly five hours restrained, with medical staff checking repeatedly to ensure he was unharmed.

Mix determined Johnson had not presented a credible claim that his placement in segregation or the restraint chair was unlawful. Nor did he articulate a claim for excessive force against anyone at the jail but Kellison.

In evaluating the actions of Kellison, she noted she was required to view facts from the officer’s perspective and to keep in mind that law enforcement must make split-second decisions.

There was no evidence of injury from the encounter in Johnson’s cell, and therefore no issue of excessive force. However, even though the defense argued and Mix agreed there was no video documentation of force in Johnson’s transfer to the restraint chair, the video did not depict “what happened at the bottom of the stairs, where Defendant Kellison’s actions (whatever they were) took place.”

While multiple sheriff’s employees testified to Johnson’s belligerence, Johnson alleged that he fell down the stairs where, at the bottom, Kellison applied “deadly force” using a chokehold. Kellison did admit to applying pressure on Johnson to “cause pain and gain compliance.” Johnson, representing himself, called attention to the court that Kellison “intentionally” inflicted pain on him.

David Hughes, deputy Boulder County attorney, argued in the county’s motion to dismiss the claims that “[n]o Tenth Circuit or Supreme Court case clearly establishes that this alleged use of force is unreasonable under these specific circumstances.”

Nevertheless, Mix concluded that the “facts are scant as to whether Plaintiff, a handcuffed detainee, was actively resisting to the point that Defendant Kellison’s actions were objectively reasonable under the circumstances at the time the relevant force was applied at the bottom of the stairs.”

She issued a recommendation on Sept. 25 to deny Kellison qualified immunity, which is a mechanism to shield government employees from liability claims except in cases of clearly established constitutional violations. The magistrate judge noted that a reasonable jury might determine Johnson was not resisting at the time Kellison applied force, which prior court decisions have deemed unlawful.

On Monday, U.S. District Judge Raymond P. Moore adopted Mix’s recommendation, agreeing that questions existed about whether Johnson was actively resisting, was a threat, and required the degree of force used in the stairwell. As such, Moore permitted the claim against Kellison to continue to trial.

The case is Johnson v. Kellison et al.