A new federal lawsuit over the conduct of Denver police during the first days of the 2020 protests sparked by George Floyd’s death in Minneapolis has survived an attempt to dismiss.

Mercii Thomas says officers shot her with kinetic impact projectiles while she protested peacefully, knocking her out and causing a concussion. In May she sued the City and County of Denver, former Police Chief Paul Pazen, retired Cmdr. Patrick Phelan and three officers named as John Does.

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Magistrate Judge N. Reid Neureiter started a hearing Tuesday morning by scolding an attorney for the defendants, Sara Cook, for filing a dismissal motion, given refusals by other judges in similar cases to throw them out.

“The likelihood of me granting this motion to dismiss is close to zero,” Neureiter said, visibly annoyed.

Thomas’ lawsuit claims an officer shot her in the head with a kinetic impact projectile on May 30, 2020, while she demonstrated and had her hands up, knocking her unconscious. Her complaint says she had been trying to find a way out of the crowds of police and protesters to return to a hotel where she was staying. The wound required stitches and she still suffers from effects of a brain injury it caused, according to the complaint. Other officers continued to hit her with projectiles while Thomas lay on the ground, she claims.

Her lawsuit argues the defendants violated her First Amendment rights to free speech and assembly, her Fourth Amendment protection against excessive force and her Fourteenth Amendment right for due process. It alleges a failure to train and supervise by Denver, Phelan and Pazen. It also claims the city’s “customs, policies, practices, training, and supervision” led to the violation of Thomas’ rights.

Cook argued Thomas’ allegations were unsupported regarding Denver’s liability for violations of her constitutional rights. She also requested qualified immunity for Pazen and Phelan, who was commander of the police department’s special operations division. Qualified immunity protects government officials from civil liability unless they have violated a clearly established right.

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But Neureiter denied the dismissal request in full Tuesday. He was moved by a recent order made by Judge Regina Rodriguez in another case arising from the 2020 protests with similar facts. Rodriguez adopted a recommendation made by Magistrate Kato Crews to allow the case to go forward. Neureiter also referenced a decision by Judge R. Brooke Jackson to issue a temporary restraining order in the early days of the protests limiting police’s use of less-lethal weapons and a later denial of a request for summary judgment. Jackson presided over a trial brought by a group of protesters that resulted in a nearly $14 million jury verdict against Denver.

“It would be a hard slog for me to grant a motion to dismiss when I’ve got three of my distinguished colleagues, on basically the exact same facts, denying a motion to dismiss,” Neureiter said.

He did not appear persuaded by Cook’s argument that Phelan and Pazen should be shielded from liability because they did not know about officers’ actions against Thomas specifically. Is it not enough, Neureiter asked, that they authorized the use of force against thousands of people and did not stop the indiscriminate use of munitions?

He also seemed skeptical of the argument that Thomas’ claims made in her lawsuit drew conclusions without support.

“The defendants authorized the use of (munitions) on peaceful protesters. … That’s not conclusory. That’s a factual allegation,” he told Cook.

“I don’t think it’s a fact that is entitled to the presumption of truth,” she replied.

Darold Killmer, a partner at civil rights law firm Killmer Lane & Newman representing Thomas, asked Neureiter to send a message to the Denver City Attorney’s Office by denying the dismissal request.

“This is the opposite of conclusory allegations. This is an astonishing presentation of (factual) evidence,” Killmer said.

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