A man who Denver police officers hit and struck in a church parking lot may not sue the city itself for enabling excessive force, as a federal judge decided that four similar incidents of police brutality were not enough to establish a pattern.

U.S. District Court Chief Judge Philip A. Brimmer last week dismissed the City and County of Denver as a defendant in the civil rights lawsuit of Aaron Hernandez, who alleged police violated his constitutional rights when they grabbed him and brought him to the ground even though he was not suspected of a crime. Although Hernandez presented a long list of other cases involving excessive force in Denver, Brimmer decided only four were similar to Hernandez’s circumstances.

“Plaintiff has alleged four incidents of use of excessive force other than his own that are separated by 13 years, which is insufficient to demonstrate a policy of failure to train,” Brimmer wrote in an Aug. 23 order. He added that those four encounters in Denver also “are not sufficient to permit an inference of an informal custom” of excessive force.

Federal courts allow plaintiffs to hold municipalities accountable for their own role in a constitutional violation, separately from that of their employees. The officers involved in Hernandez’s encounter have not yet asked to dismiss the case, so the lawsuit remains in place against them. 

The events in Hernandez’s lawsuit, much of them documented on body-worn camera footage, began when Sgt. Michael O’Neill approached the vehicle Hernandez was sitting in with his son, Aaron Hernandez Jr., on June 30, 2019. The Hernandezes were in a church parking lot and O’Neill determined Hernandez Jr. had a warrant out for his arrest on a non-violent offense. Hernandez Jr. stepped out of the car and police took him into custody.

Body-worn camera video then showed Officer Jayme R. Larson approach the passenger side of the vehicle, where Hernandez was seated. Hernandez, who was 60 years old at the time and reportedly recovering from intestinal surgery, attempted to stand up.

“Ah, ah, ah,” Larson said, grabbing Hernandez’s wrist and telling him to stop getting out of the car.

“Let go of me. I’m hurting,” Hernandez responded. Larson maintained her hold on both of his wrists. He continued to cry out in pain until the other officers present took him to the ground.

“I’m hurting, man,” Hernandez continued to scream. At one point, Officer Vance Johnson struck Hernandez in the face and torso.

“Knock it off! You already caught charges, bro,” Larson yelled at him. “What the hell are you thinking?”

She accused Hernandez of kicking the officers, which Hernandez denied. Larson also claimed Hernandez had “come at me” and told Hernandez Jr. that his father had “kicked me in my shins, dude.”

Hernandez’s lawsuit further explained that Johnson, after hearing Hernandez was in pain from his surgery, said, “Well, now your face can hurt, too.” In response to Hernandez’s question of why he was being arrested, officers also told him, “We haven’t figured that out yet.” The city admitted those allegations were true.

Although Hernandez was charged with assaulting a peace officer, prosecutors later dismissed the charges. O’Neill undertook a use-of-force investigation and approved of the officers’ conduct, finding Larson had used a “calm, non-confrontational demeanor” in her attempt to “de-escalate” the situation.

Hernandez sued the officers for an unconstitutional seizure under the Fourth Amendment, excessive force and malicious prosecution — in which he accused the officers of lying on their reports. Hernandez also claimed Denver maintained a practice of “widespread” excessive force.

“There are dozens of additional documented claims and lawsuits against The City and/or its police officers going back well over ten years in which The City either paid settlements or had verdicts against it based on allegations of the use of unnecessary and excessive force against individuals in non-violent situations,” Hernandez’s attorneys wrote.

The lawsuit detailed several dozen incidents, largely occurring before Hernandez’s encounter, which allegedly demonstrated unconstitutional conduct and a failure by Denver to properly train its officers. The cases included Gregory Lee Smith Jr., who police killed in 2002 after he moved toward officers with “a small folding knife”; Jason Tyrone Gomez, who an officer shot to death in 2007 while he was holding a lighter; and, Gregory Heard, who was tased and shoved into the ground in 2016 despite being unarmed.

“At most, Plaintiff alleges that there have been allegations of excessive force against Denver in the past, however, those cases are not factually similar enough,” pushed back Assistant City Attorney Conor D. Farley in response to Hernandez’s list of excessive force encounters. “He offers no specific details as to how these past events were sufficiently similar.”

In order to hold Denver itself accountable for a constitutional violation, Hernandez needed to show a city policy or custom was behind the officers’ actions, or that Denver’s failure to train or discipline its police amounted to an indifference to unconstitutional conduct. Brimmer concluded that many of the encounters Hernandez cited were factually distinct from his situation, and some even involved the Denver Sheriff Department, which is a separate entity.

Brimmer acknowledged four of the incidents involved unprovoked police force when there was no suspicion the victims had committed a crime.

However, the judge added, “None are similar to a passenger exiting a vehicle simultaneously with the arrest of the driver.”

Consequently, Hernandez had not plausibly alleged Denver had authorized a custom of brutality in cases like Hernandez’s. As to the claim that the city failed to train or discipline its officers on excessive force, Brimmer pointed out there were no allegations about the training of the officers involved in Hernandez’s encounter.

Absent specific claims about the officers’ deficient training, “the complaint’s allegations do not plausibly allege that Denver knew or should have known that its use of force training would result in a constitutional violation,” the judge concluded.

Hernandez’s attorneys declined to provide a statement on Brimmer’s order and a spokesperson for the Denver City Attorney’s Office did not immediately respond to a request for comment.

Hernandez filed his lawsuit in June 2021, several months before a federal jury would find the city liable for $14 million in damages after its officers’ use of excessive force during the racial justice protests of 2020.

The case is Hernandez v. The City and County of Denver et al.