A Berthoud man may sue the Larimer County sheriff’s deputies who shot into his home while they were standing unannounced in the darkness, a federal judge has decided.

The development comes two years after prosecutors dismissed criminal charges against Bret Alan Hanson for an encounter that began when officers responded to reports of Hanson screaming on his property and ended after a 50-minute standoff resulting in Hanson’s arrest. What prompted Deputy Ethan Powers to open fire was his observation that Hanson was pointing a gun at him from Hanson’s home.

However, U.S. District Court Judge R. Brooke Jackson declined to let Hanson’s claims related to the shooting proceed to trial, saying Powers’ conduct may have been ill-advised, but it was not unconstitutional. Instead, he found the officers could only be held civilly liable for false arrest.

“Mr. Hanson was at his home and thought that intruders – who never once identified themselves as police officers – were on his property. Even assuming,” Jackson wrote, “that Mr. Hanson had a gun, it is not a crime in the State of Colorado to hold a gun on your property, or to protect your home from intruders.”

The judge added: “The officers’ actions were out of proportion to the alleged conduct they were investigating, and they placed all members of Mr. Hanson’s household as well as themselves in substantial danger.”

According to his civil complaint, Hanson was in his backyard on Jan. 8, 2019, yelling about “his displeasure with President Trump’s immigration policies” when his neighbors called in a noise complaint. Powers and Deputy Neil Baker arrived at Hanson’s home at 6:11 p.m. and allegedly approached by the side of the house. At this point, Hanson’s home was dark and no one was outside.

When he heard his dogs barking, Hanson reportedly looked out of his back windows, thought he saw intruders and yelled for them to identify themselves. Neither deputy did so, but Powers, believing Hanson had a gun, fired five times into the home.

Hanson’s mother, Rosma Lynn Walker, who was also in the house with her own elderly mother, exited at one point, but Baker allegedly told her to go back inside. Other law enforcement personnel arrived, and Hanson eventually emerged to accuse Baker and Powers of trespassing. At first Hanson declined to go with them, but he eventually got on his hands and knees on the patio and was arrested.

Although prosecutors charged Hanson with prohibited use of a weapon and failure to leave the premises upon a police officer’s order, the Eighth Judicial District Attorney’s Office subsequently dropped the case. There was never a charge for a noise violation, which was the purpose of the original encounter.

“The People are grateful that neither the police officers or the defendant and his family were injured in this dangerous situation that was caused by the defendant’s bizarre and disruptive behavior,” wrote Chief Deputy District Attorney Gregory K. Biggers at the time. “The People hope that the defendant seeks the drug abuse and mental health intervention that the evidence indicates he clearly needs so that the can live a healthy life and so that his family and neighbors can enjoy the peace of mind that they deserve.”

Then-District Attorney Cliff Riedel also found Powers’ actions justified, according to the Loveland Reporter-Herald.

Hanson, his mother and his grandmother claimed the deputies violated Hanson’s Fourth Amendment rights against illegal searches and seizures by firing into the home in a display of excessive force as well as by falsely arresting Hanson.

The deputies offered a different version of events, with attorneys writing to the court that Baker and Powers attempted a “knock and talk” welfare check via the only path to the house, and that Hanson “barricaded” himself inside following the gunshots. They also alleged Hanson suffered from paranoia and delusions, and may have pointed his gun deliberately at them because he “baselessly feared [they] had gone rogue.” In total, the deputies’ actions were a response to the continuing threat of a reportedly unstable man with a weapon.

“The shots fired by Deputy Powers were directed only at Hanson to stop the threat he presented, did not physically contact or injure any Plaintiff, did not succeed in stopping Hanson from moving or retreating into the home, and did not gain Hanson’s compliance with police orders,” the deputies argued in response to Hanson’s claim of excessive force.

Jackson agreed, finding the Fourth Amendment only applies when officers restrain someone physically or by using their authority. Although Powers fired into Hanson’s home, the bullets did not hit Hanson, meaning there was no contact and no restraint.

“While Deputy Powers’ conduct, as alleged by plaintiffs, was undoubtedly reckless and foolish, I agree with defendants that, as the law currently stands, no seizure occurred when he discharged his firearm,” the judge wrote in a June 22 order, dismissing Hanson’s claim for the shots fired.

However, viewing the allegations favorably to Hanson, Jackson concluded there was a plausible allegation of false arrest. Just because a person refused to go with the police officers who had recently shot at him, that did not equate to a failure to comply, the judge noted. In Hanson’s case, Baker and Powers behaved unreasonably in shooting at the home and arresting Hanson without telling him why, only for Hanson to later allegedly learn he would be charged with felony menacing and assault upon a police officer – but he never was.

The remaining question was whether the officers were entitled to qualified immunity, which is a judicial doctrine that generally shields government workers from civil liability absent a violation of clearly-established legal rights. To evaluate qualified immunity, courts look to previous judicial decisions with similar circumstances to determine if officers were on notice that their specific conduct in a given scenario was unconstitutional.

In an explicitly harsh appraisal of the defendants’ behavior, Jackson acknowledged he could not find any prior cases featuring similar conduct from law enforcement “because the officers’ actions are so objectively unreasonable that no other officer would have dared to act in such a way.”

As such, the judge denied qualified immunity to Powers and Baker, both of whom are still employed with the sheriff’s office. He also dismissed the claim against Larimer County, saying there was no evidence the jurisdiction had a policy or custom of violating Fourth Amendment rights.

The case is Hanson et al. v. Larimer County et al.