A federal judge last week declined to dismiss the City and County of Denver from an excessive force lawsuit, finding the plaintiff credibly alleged the government’s failure to train its deputies was the cause of his injuries.

Video footage from 2019 captured sheriff’s Deputy Jason Gentempo punching Serafin Finn multiple times and shoving Finn, who was in a wheelchair, to the ground after Finn allegedly spat on Gentempo. The resulting civil rights lawsuit alleges Gentempo used excessive force against Finn and that Denver’s own policies and practices were behind Gentempo’s conduct.

On Friday, U.S. District Court Judge Charlotte N. Sweeney agreed with the city that it could not be held liable for the sheriff department’s exoneration of Gentempo after the fact, even though federal courts elsewhere in the country have deemed such actions are acceptable legal claims. At the same time, she found the allegations were sufficient that Denver did not offer deputies training on whether to use force when spat upon, despite an obvious need for such guidance.

“(I)t is plausible that Mr. Finn’s assault was a predictable and causally related outcome of the City’s failure to provide Deputy Gentempo with any training regarding ‘what exactly to do’ regarding spitting arrestees,” Sweeney wrote in a Feb. 10 order.

Gentempto and another deputy arrived at Denver Health on March 20, 2019 to retrieve Finn on an arrest warrant and take him to the nearby jail. The deputies moved Finn outside in a wheelchair while he was handcuffed and restrained. At one point in the transport, surveillance video showed Finn turning and appearing to spit on Gentempo.

The video, first reported by FOX31, then captured Gentempo punching Finn multiple times, grabbing his face and pushing him, still seated, into the ground. Other deputies arrived and put a “spit sock” on Finn’s head. At the jail’s intake office, Gentempo allegedly neglected to disclose his use of force, and further video footage there showed Finn seizing and collapsing on the floor.

Gentempo’s lawyers, in response to the federal lawsuit, admitted “the force occurred” and Gentempo had subsequently “laid on top of Mr. Finn and applied pressure points to the head and neck.” Gentempo also “consistently denied he had struck Mr. Finn,” despite the video evidence to the contrary.

Finn died in 2021 for reasons unrelated to the encounter, but the administrator of his estate filed suit against Gentempo for excessive force. The plaintiff, Melissa R. Schwartz, also sought to hold Denver liable for its role in Finn’s injuries, which requires that a governmental policy or custom be behind Gentempo’s actions.

The lawsuit claimed Denver was responsible on two fronts. First, the city allegedly failed to train deputies whether and how to use force when spat upon. The evidence primarily consisted of Gentempo’s statement to departmental investigators that “there was no layout, there’s nothing in our policy that will tell you what exactly to do when you’re being spit on.”

Second, the lawsuit raised the “ratification” theory, which can hold government policymakers liable when they approve of a subordinate’s illegal actions. The lawsuit narrated that following Gentempo’s use of force, internal investigators found Gentempo had committed three policy violations for inappropriate force and deception. However, a committee that allegedly included the interim sheriff and the current sheriff revised those findings and cleared Gentempo of wrongdoing.

FOX31 later reported that Denver settled for $175,000 with an investigator it fired after she blew the whistle on how the city handled Gentempo’s discipline.

Although Gentempo has not formally challenged the excessive force claim against him, the city moved in late 2021 to dismiss itself from the lawsuit. Denver argued the alleged “cover-up” or inadequate investigation did not lead to Gentempo’s conduct, and therefore could not amount to ratification as the federal appellate courts have defined it.

As for Denver’s alleged failure to train, the city argued deputies clearly received training, given the use of the spit sock on Finn. Further, it was not clear how better training for Gentempo would have prevented a constitutional violation.

“And it goes without saying that upon being assaulted – by bodily fluids or otherwise – there are various constitutionally sound ways for an officer to respond (i.e. defensive tactics, certain uses of force),” wrote lawyers with the Denver City Attorney’s Office.

In September, U.S. Magistrate Judge S. Kato Crews analyzed the arguments and recommended dismissing the city from the lawsuit. He agreed after-the-fact conduct by sheriff department leaders could not have led to Gentempo’s original force, and noted Gentempo’s statement about being inadequately trained did not illustrate that Denver categorically failed to train its deputies.

Schwartz, the administrator for Finn’s estate, objected to Crews’ finings.

“Having encountered a spitting arrestee, Deputy Gentempo had no instruction on the appropriate use of force, so he delivered several strikes to Mr. Finn’s face and proceeded with several other forms of attack,” wrote Schwartz’s attorneys.

Sweeney, the district judge, believed Crews was correct about the legal significance of the post-incident investigation. The U.S. Supreme Court has suggested that approval of an officer’s misconduct after the fact can count as ratification, and at least one federal appellate court – the Philadelphia-based U.S. Court of Appeals for the Third Circuit – instructs jurors that they may find a government liable in such circumstances.

However, Sweeney noted the 10th Circuit, which has jurisdiction over Colorado, has not explicitly adopted that interpretation. She called it a “bedrock principle” that a policymaker’s approval must come before the constitutional violation and, therefore, cause it.

On the other hand, Sweeney disagreed with Crews that Gentempo’s statement could not be used to show the city failed to train its deputies broadly on what to do with a spitting detainee.

The lawsuit “sufficiently alleges that the inadequacy of the City’s training was obvious and likely to result in Mr. Finn’s constitutional injury, as well as that the predictability of Mr. Finn’s injury could have been prevented by providing training regarding spitting arrestees,” she wrote.

The Denver Sheriff Department confirmed Gentempo is still employed as a deputy.

Nick Lutz, an attorney for the plaintiff, said he would appreciate some clarity from the 10th Circuit about how the ratification theory is intended to work against government entities.

“Attorneys who represent folks who have been affected by the kind of conduct that happens in these cases are frustrated by the idea that a department’s wholesale approval of an unconstitutional act can’t be a valid basis for liability,” he said.

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