Police and paramedics who arrested a Lakewood city council member’s boyfriend and injected him with ketamine should receive immunity for their actions, a federal magistrate judge recommended last week.

Jeremiah Axtell had sued the city of Lakewood, several individual officers, West Metro Fire Protection District, a paramedic and two physicians. His claims included excessive force, unlawful arrest and failure to provide adequate medical care. Axtell’s girlfriend, Lakewood Council Member Anita Springsteen – who is also his attorney – alleged that Axtell’s “only crime was to date a City Councilwoman.”

But on Jan. 26, U.S. Magistrate Judge Michael E. Hegarty determined the defendants should receive qualified immunity because Axtell had failed to establish they violated any clearly-established rights of his. Even though the Colorado General Assembly enacted restrictions on the use of ketamine the year after Axtell’s arrest, he could not use the legislature’s action to challenge his own sedation for “excited delirium.”

“Plaintiff has not cited a single case in which a paramedic was held liable for excessive force when that paramedic exercised medical judgment and administered ketamine to address excited delirium,” Hegarty wrote.

In Axtell’s narrative to the court, there was tension between Springsteen and a Rocky Mountain Assisted Living memory care center in her neighborhood. Springsteen reportedly complained to the state health department about sanitation, health and elder abuse violations, while staff at the center allegedly were verbally abusive toward neighbors.

On January 28, 2020, Axtell allegedly picked up an adult diaper “with feces spilling out” from the roadway outside the facility. Springsteen had asked staff to do so, but they instead reportedly directed profanities at her. Employees called police, reporting that Axtell was “charging” the care center and “says he has knives in his pockets or something like that.”

Lakewood police and Axtell disagreed about what happened after officers arrived. Axtell claimed he pulled his shirt up to show he had no weapons while an agent said Axtell reached in his pockets. Axtell retreated to Springsteen’s property, but the agent searched him. Other officers arrived and handcuffed Axtell on the ground in a manner that caused “abrasions and ligament damage,” according to the lawsuit.

When West Metro Fire Protection District workers arrived, paramedic Austyn Onstott noted that Axtell appeared to be in excited delirium due to his “random spurts of uncontrollable laughter” and being verbally and physically aggressive. Onstott administered 450 milligrams of ketamine and Axtell received transportation to St. Anthony Hospital.

Court records show that prosecutors charged Axtell with seven offenses, ranging from felony menacing and violating a protection order to disobeying a police officer. The district attorney’s office dismissed all of the charges.

The lawsuit alleged violations of Axtell’s constitutional rights: Lakewood police did not have probable cause to believe he had committed a crime and used an unreasonable degree of force. There was no medical or law enforcement need to forcibly inject him with ketamine. And the government failed to properly train police and paramedics on the use of ketamine.

“When the entire country was rioting over police misconduct, and the rioting extended to Colorado specifically because of a ketamine injection case with Elijah McClain, and the municipality of Lakewood and special district WMFR still did nothing to address the issue of policy making and training on an identical or similar issue – this became the definition of deliberate indifference,” Springsteen wrote on behalf of Axtell.

Springsteen, who was an advocate for the 2021 legislation restricting ketamine’s use, referred to McClain, the 23-year-old who died in August 2019 after paramedics in Aurora injected him with 500 milligrams of ketamine. Like Axtell, McClain allegedly experienced excited delirium, which is not a recognized medical diagnosis. Instead, it is a condition typically cited after a person who is combative or agitated dies in police custody.

The defendants asserted qualified immunity, with the police arguing it was reasonable to use “minimal physical force” on Axtell given reports of his threatening behavior. The fire protection district contended that Onstott’s injection of ketamine based on a medical determination similarly did not violate Axtell’s constitutional rights.

“Patients are often injected by paramedics and EMTs with medications at incident scenes with police officers present,” the district’s attorneys wrote.

Hegarty’s recommendation of dismissal sided with the defendants. He saw the force as reasonable and that police arguably had probable cause to arrest Axtell based on the 9-1-1 call from the memory care center and the determination that Axtell appeared to be in violation of a protection order. The magistrate judge also did not believe Axtell plausibly showed Onstott was deliberately indifferent to his medical needs with the ketamine injection.

Axtell’s allegations “may establish that Paramedic Onstott acted negligently, but they do not plausibly allege that he knew Plaintiff faced a substantial risk of harm and disregarded that risk,” he wrote.

The parties in the case have 14 days to file objections with U.S. District Court Judge Raymond P. Moore, after which he will decide whether to adopt or reject Hegarty’s recommendation.

Springsteen told Colorado Politics she is consulting with Axtell about whether to file an objection. Elected to the Lakewood council in 2019, she has characterized the forcible injection of ketamine as “assault and battery.” Since the change in state law, only a justifiable medical emergency allows for first responders to sedate or incapacitate someone with ketamine if they are under suspicion for criminal conduct.

Springsteen added she was disappointed that qualified immunity provides a barrier to plaintiffs’ claims of constitutional violations, and that she has video of Axtell’s encounter with first responders that supports his version of events.

The case is Axtell v. City of Lakewood et al.

This article has been updated with comments from Anita Springsteen.