A federal judge on Tuesday refused to dismiss an excessive force lawsuit against a Pueblo County sheriff’s deputy who shot and killed a man outside a middle school after the man accidently tried to get into a car he mistook for his own.

Kristy Ward Stamp, mother of the late Richard Ward, alleged Deputy Charles McWhorter, Pueblo County and other sheriff’s officials violated her son’s rights by fatally shooting him, and they violated her own rights by detaining and searching her without probable cause of a crime.

The defendants moved to dismiss those claims, arguing the county itself could not be held liable and the individual deputies were entitled to qualified immunity, which generally shields government employees from civil liability unless they violate a person’s clearly established legal rights.

U.S. District Court Judge Charlotte N. Sweeney agreed that some of Ward Stamp’s claims were not viable, but left the bulk of the lawsuit intact. Specifically, she admonished the defendants for simply claiming the deputies should receive immunity, while providing virtually no explanation why.

“Defendants invoke, without elucidation, qualified immunity’s shield,” Sweeney wrote in a July 25 order. “Defendants’ mention of qualified immunity, without more, does not demonstrate their entitlement to it.”

On Feb. 22, 2022, Ward rode with his mother and her boyfriend to Liberty Point International School to pick up Ward’s younger brother. At one point, Ward left their white SUV and, when he returned, mistook another white SUV for the one he arrived in. After realizing his mistake, he reportedly exited the vehicle, apologized and found the right vehicle.

McWhorter and Deputy Cassandra Gonzales responded to a call of a suspicious and “aggressive” man in the school’s parking lot. Their body-worn cameras captured the moments leading up to Ward’s death.

“Just looking for my little brother,” Ward explained to McWhorter, opening the SUV door as the deputy approached. Ward had one hand in his jacket pocket, which McWhorter appeared to pull. Ward asked why McWhorter was touching him.

“Why you acting like this?” McWhorter responded.

“I’m a little nervous because I don’t like cops,” Ward said. “They’ve done things to me,” meaning physical force. He added he was “not just trying to disrespect you.”

McWhorter said he understood Ward was “going around trying to mess with doors.” Ward insisted he thought the other white SUV was his and that he apologized to the woman inside. McWhorter asked if Ward was under the influence or had weapons.

While Ward was going through his pockets, he ingested what the lawsuit described as an anti-anxiety tablet.

“What did you just stick in your mouth?” McWhorter demanded and immediately pulled Ward out of the SUV.

“It was a pill. Let me go!” Ward screamed.

Within 20 seconds of wrestling on the ground, McWhorter shot Ward three times. Ward Stamp and her boyfriend began screaming. McWhorter stood above Ward’s body and did not render aid, nor did Gonzales. Instead, McWhorter shut the SUV door and said he “bloodied (his) nose.”

Ward, 32, died from his injuries.

District Attorney Jeff Chostner found McWhorter and Gonzales acted reasonably. The deputies believed they were in “imminent danger of being killed” or seriously injured, and McWhorter claimed Ward had acted “as if he was carrying a weapon.” The Pueblo Chieftain reported McWhorter received an award from the sheriff’s office one year after killing Ward.

Ward Stamp then filed a federal lawsuit.

“Mr. Ward remained unarmed and trapped in the grips of two armed police officers,” her lawyers wrote. “McWhorter and Gonzales never allowed Mr. Ward so much as an opportunity to comply with commands, relentlessly physically assailing him.”

Ward Stamp claimed McWhorter and Gonzales used excessive force against her son in violation of the Fourth Amendment. She also invoked a 2020 police accountability law Colorado’s legislature enacted in the wake of nationwide protests over the deaths of Black Americans at the hands of officers. Ward Stamp added that Pueblo County failed to properly train its deputies.

She further alleged the defendants violated her rights by searching her, detaining her and interrogating her for two hours, without any probable cause she committed a crime.

Sweeney agreed, in part, with the defendants’ request to dismiss the lawsuit. Certain violations that Ward Stamp attributed to all of the defendants, including Pueblo County, were not “logically” connected to what happened on the scene, Sweeney wrote.

However, she allowed the majority of Ward Stamp’s claims to proceed, noting the individual deputies had not properly asserted qualified immunity under federal law, nor were they entitled to it under state law.

“Moreover, the Court agrees with Plaintiffs that Pueblo County’s alleged defective training on appropriate uses of force caused Mr. Ward’s injury,” Sweeney wrote.

The case is Estate of Richard Ward et al. v. Pueblo County et al.