A federal magistrate allowed a man to amend his lawsuit for excessive force against Denver Police officials during the city’s 2020 racial justice protests to include more names of officers he identified since filing his case.

In a Feb. 28 ruling, magistrate N. Reid Neureiter granted the request – after the usual legal deadline for amending the case – by Michael Driscoll because of the extensive time it took to identify the officers he alleges were involved in causing his injuries.

A rubber bullet hit Driscoll in the face on May 31, 2020 and shattered his skull, destroyed his sinus cavity and fractured the orbital bone around his left eye, according to his lawsuit. He sued in October 2020 and named Denver, former Police Chief Paul Pazen, retired Cmdr. Patrick Phelan, who served as incident commander for the George Floyd protests, and 10 defendants identified as John and Jane Does.

Driscoll then amended his case in a recent filing to name Rick Eberharter, Timothy Hyatt, Christopher Cochran, Michael Erickson, Kyle Janosko, Kaleb McCarthy, Matthew Domenico, and David Adams in their personal capacities instead of the Jane Does.

In his amended complaint, Driscoll claims his First, Fourth and 14th Amendment rights were violated because of excessive force, failure to train and supervise and retaliation against him for exercising his rights to free speech and assembly. His lawsuit claims that, in addition to his injury from being hit in the face with a pepperball, police targeted him at other times on May 30 and 31 with chemical irritants and kinetic impact projectile weapons.

These types together are commonly called “less-lethal” weapons, though the term is controversial because they can cause serious injury and death.

Federal judge allows another lawsuit over Denver police actions during 2020 protests to proceed

The deadline for Driscoll to add new claims or defendants was Nov. 30 last year. He requested to make amendments this past Jan. 6.

The defendants objected to the request, saying Driscoll’s new allegations don’t relate to the original injury he claims on May 31, 2020. They argued the statute of limitations for adding new defendants and making new claims has expired and Driscoll didn’t show good cause to pause the limitations period, known as equitable tolling.

“Equitable tolling does not cure the futility of this amendment, given Plaintiff has been aware of these alleged harms for well over two-and-a-half years, had ample opportunity to conduct discovery but did not do so, and cannot show concealment,” they responded. 

The defendants argued that Driscoll’s new claims don’t relate to his original allegation concerning his injury because they involve different people, places and times.

Neureiter found Driscoll’s attorney and paralegal made good-faith efforts to investigate the matter with diligence, persuaded by statements that they spent more than 1,000 hours reviewing video and documents to identify officers involved. Neureiter noted that would have taken two-and-a-half weeks of around-the-clock work or 56 days of eight-hour workdays for the more than 450 hours the attorney said he reviewed alone.

“Such review was no small feat,” Neureiter wrote. “Again, this does not include staff hours spent.”

Driscoll claims officers purposely hid their identities during the protests by not turning on their body-worn cameras, covering their badges and not making incident reports.

In statements to the press about the protests, Pazen had said the cameras did not have proper attachments to affix them to protective gear worn by the officers. Testimony given by police officials at a civil trial last year also revealed the cameras’ battery life wasn’t designed to last for hours at a time, which would been needed to endure during the protests.

The limitations period starts running when the person bringing a suit “knows or has reason to know of the existence and cause of the injury, which is the basis of his action,” according to the filing.

In determining whether amendments relate back to the original claim when considering a request for a time extension, they generally do so if they amplify previously alleged facts, correct a technical mistake, present a new legal theory for relief or add another claim based on the same facts.

“The new allegations that detail the harm Plaintiff himself suffered on May 30, 2020 and earlier in the day on May 31, 2020 cannot be said to be ‘entirely different facts, conduct, transactions or occurrences’ when Plaintiff’s initial Complaint detailed the excessive force by Denver Police Department against many protestors over multiple days spanning May 28, 2020 through June 2, 2020 during the George Floyd Protests,” Neureiter wrote.

Judge declines to throw out federal lawsuit over conduct of Denver police during 2020 protests

Driscoll’s case is one in a steady stream of federal lawsuits filed over Denver law enforcement’s handling of the 2020 protests. The highest-profile case involved now-state Rep. Elisabeth Epps, resulting in a jury awarding a group of 12 protesters $14 million total last year. The jury found the city responsible for police violating protesters’ constitutional rights in the early days of the demonstrations, and their use of force led U.S. District Court Judge R. Brooke Jackson to issue a temporary restraining order limiting the use of less-lethal weapons.