The lawyer for a Greeley police officer backed down from his plans to ask for qualified immunity on Thursday, after a federal judge suggested the request to end the illegal detention lawsuit was premature.

Officer Kody Brunnemer faces allegations that he violated the Fourth Amendment’s protection against unreasonable searches and seizures when he detained, then arrested Victor Trevizo-Gonzalez for standing outside an abandoned home at night.

Two weeks after U.S. District Court Judge Regina M. Rodriguez declined to dismiss the claim against Brunnemer, his attorney indicated he would file a motion for summary judgment. That would enable Rodriguez to end the lawsuit in his favor without a trial if the key, undisputed facts showed Brunnemer was not liable for a constitutional violation.

But Rodriguez was skeptical of the plan.

“I just ruled on a motion to dismiss,” she said at a hearing on Thursday. “My concern here is not whether you get to file a summary judgment motion. You do. I’m not not even gonna tell you when. I’m gonna tell you: You get one.”

Brunnemer’s planned motion would have invoked qualified immunity, a judicial doctrine that shields government employees from civil liability unless they violate a person’s clearly established legal rights. Based on a list of undisputed facts about the encounter between Brunnemer and Trevizo-Gonzalez, plus video and police documents, the defense believed it was ready to ask for immunity.

“We are confident that this will result in a resolution of the entire case and will save all the parties and the court from considerable proceedings down the road,” said Michael J. Axelrad with the Greeley City Attorney’s Office.

“I can tell you, from the statement of undisputed facts,” Rodriguez warned him, “I’m not as convinced as you are that this will resolve all of the issues in the case.”

The parties agree that on the night of Feb. 4, 2021, Brunnemer saw two men outside a house in the 2100 block of 5th Ave. The prior week, Brunnemer had responded to a call at the same location, involving “transients and suspicious activity” at the abandoned property. 

One of the men outside the house was Trevizo-Gonzalez. Brunnemer stopped his vehicle and began to talk with them. He then decided to detain both men to run a criminal check. Brunnemer wrote in his police report that Trevizo-Gonzalez began “inching his bicycle down the driveway” and performed a “felony glance” indicating an intent to flee.

When Brunnemer approached the men again, Trevizo-Gonzalez pedaled away. Brunnemer grabbed him and Trevizo-Gonzalez fell to the ground. Brunnemer’s commands to stop and stay put were in English, which Trevizo-Gonzalez did not understand well. While Brunnemer and another responding officer handcuffed him, Trevizo-Gonzalez yelled that his finger felt broken.

Earlier this year, U.S. Magistrate Judge N. Reid Neureiter recommended that some of Trevizo-Gonzalez’s civil rights claims be dismissed. Although Trevizo-Gonzalez had credibly stated an excessive force claim, for example, the “problem” was that he had attempted to flee on his bicycle. Brunnemer was entitled to immunity for using force to stop him, Neureiter wrote.

At the same time, Neureiter believed the illegal detention claim should proceed, as Trevizo-Gonzalez alleged he was merely outside the house with no indication he was involved in a crime at the time Brunnemer stopped him. Neither party objected to the recommendation and Rodriguez approved it on May 16.

On May 30, Brunnemer indicated he would file a motion for summary judgment, again seeking qualified immunity.

Rodriguez acknowledged at the hearing that qualified immunity is a defense against lawsuits and should be addressed as early as possible. But she believed Trevizo-Gonzalez is still entitled to further evidence – namely, a deposition of Brunnemer himself.

“Based upon the concerns that the court has expressed today, we will defer on filing a motion for summary judgment,” responded Axelrad. After taking additional evidence, “we will file the motion and get rid of this case.”

Trevizo-Gonzalez’s attorneys indicated they would depose Brunnemer and also explore what information was available to him about the abandoned property, in order to establish whether Brunnemer was justified in detaining Trevizo-Gonzalez.

“What he knew, what he reasonably knew, is in bounds,” Rodriguez agreed. “All the other stuff he had no knowledge of, not so much.”

The case is Trevizo-Gonzalez v. Brunnemer.