Two defendants from the Arapahoe County Sheriff’s Office may not ask the man suing them for excessive force about certain topics that could incriminate him in the separate criminal prosecution stemming from the encounter, a federal judge has ordered.

Elijah McKnight has filed a civil claim against deputies Justin Yantiss and Andrew DeVries, alleging they used an unreasonable degree of force against him by throwing him to the ground and tasing him, eventually leading to McKnight’s injection with a substantial amount of the sedative ketamine. Although McKnight also named South Metro Fire Rescue, individual paramedics and Sheriff Tyler Brown as defendants, the parties agreed to dismiss everyone except the two deputies from the lawsuit.

In October, the deputies asked U.S. Magistrate Judge S. Kato Crews to order McKnight to answer their attorneys’ questions. They asserted that McKnight had refused to respond to “virtually all questions” during his deposition, owing to a pending criminal case in Arapahoe County where he stands accused of assaulting Yantiss and DeVries.

McKnight had cited his right, under the Fifth Amendment, not to incriminate himself in the criminal case.

Crews agreed last month that McKnight could not be compelled to answer certain questions that could support his conviction in state court, but declared other topics fair game. Specifically, the magistrate judge ordered McKnight to answer basic background questions, relevant inquiries about past criminal convictions and to speak about his injuries from the police encounter.

“Mr. McKnight cannot use his privilege against self-incrimination as a sword and a shield by claiming $600,000 in damages for ‘impairment of quality of life, emotional distress, anger, outrage, humiliation, disappointment, frustration, fear, anxiety, depression’,” Crews wrote, “but then refuse to provide testimony about the damages he seeks.”

At the same time, Crews declined to compel McKnight to answer questions about his prior substance use and drinking, the actions of paramedics or his intoxication on the day of his arrest.

“Testimony concerning his intoxication associated with the alleged assault presents a real danger of self-incrimination that could support criminal conviction,” Crews noted in his Feb. 17 order. “This is particularly true where the Defendants describe Mr. McKnight as having ‘had dangerously high levels of alcohol in his system on the day of his arrest.'”

According to McKnight’s lawsuit, Yantiss and DeVries contacted him on the night of Aug. 20, 2019, after a caller reported a man lying on the ground and unconscious at a bus stop in Aurora. The deputies roused McKnight and began talking with him, noticing that he was disorientated and intoxicated. McKnight volunteered that he had two outstanding warrants.

The deputies then allegedly arrested McKnight without explanation, bringing him to the ground, tasing him and kneeling on him in a way that reportedly caused severe pain.

“This use of force was excessive and objectively unreasonable. Defendants Yantiss and DeVries had no reasonable belief that Plaintiff possessed a weapon or posed a threat to themselves or any other person,” wrote McKnight’s attorneys.

South Metro Fire Rescue personnel arrived and McKnight allegedly overheard one paramedic say they would not take him to the hospital without sedating him. McKnight objected, but received an injection of 500 milligrams of ketamine and a second, 250 milligram, dose.

As a result, McKnight reportedly ceased breathing on his way to the hospital and required machine assistance to breathe for days afterward. 

In response to incidents like McKnight’s and the high-profile death of Elijah McClain, who received a forcible injection of 500 milligrams of ketamine in a separate Aurora police encounter less than a week after McKnight’s, the state legislature enacted restrictions on ketamine use last year.

McKnight first appeared in state court for the charges of assaulting a peace officer and obstructing a peace officer a month after his arrest. Court records show he entered a plea of not guilty as recently as November 2021.

In January, Yantiss and DeVries also asked the federal court to grant them summary judgment, meaning they would prevail in the case if there were no key factual disputes and McKnight had failed to prove his case under the law. Arapahoe County argued that the deputies were entitled to qualified immunity, which shields government employees from civil liability unless they violate a person’s clearly-established legal rights.

Prior court decisions clearly established that officers could tackle and tase a suspect who was resisting arrest and who had struck an officer, Deputy County Attorney Writer Mott wrote to the court, and it was reasonable to restrain McKnight’s legs even after he was handcuffed.

But McKnight’s lawyers disputed the degree of force used, noting there was disagreement about whether, in fact, McKnight had assaulted the deputies.

A jury, responded attorney Igor Raykin in February, “could conclude that Plaintiff’s behavior did not constitute an actual threat, and a rational trier of fact could find that Plaintiff did not punch Defendant Yantiss in the face.”

U.S. District Court Chief Judge Philip A. Brimmer will ultimately decide whether to grant qualified immunity to the defendants.

The case is McKnight v. Brown et al.