A federal judge on Thursday dismissed a claim against the City and County of Denver in an excessive force lawsuit against a former Denver police officer who tased a man four times in a hotel lobby last year. Attorneys for Nicholas Munden claimed the use of force “should not have come as a surprise” to the city because the officer was under investigation for felony wage theft at the time, showing a propensity for “unabashedly disobeying department rules and regulations for his own benefit.”

Munden sued the officer alleging excessive force under the Fourth Amendment and Colorado Constitution, and Denver for a claim the city has a widespread practice of failing to train and supervise officers around excessive force.

Last summer the Denver District Attorney’s office accused Michael Pineda and his son, also a Denver police officer, of billing a private contractor for thousands of dollars of security work they did not perform. Pineda has pleaded not guilty and has a bench trial scheduled for December, court records show.

Denver police officers charged with felony theft

But U.S. District Court Judge Charlotte Sweeney wasn’t persuaded, in a hearing Thursday morning on a request by Denver to dismiss Munden’s municipal liability claim to hold the city accountable for the tasing incident, that the police department’s investigation of Pineda for suspected wage theft would have put Denver on notice the officer would have a likelihood for excessive force. She added Pineda’s violation of the Denver Police Department’s rules for Taser use isn’t enough to show the city has failed to provide proper training.

Sweeney dismissed Munden’s claim against the city, but without prejudice, meaning his attorneys can amend and re-file it. The claims against Pineda personally remain, and Sweeney suggested Munden’s attorneys wait to amend their case against Denver until they have examined more evidence in the discovery stage.

Munden’s attorneys argued the Denver Police Department has a pattern of tolerating “shockingly common” excessive force, and Munden’s case illustrates that culture.

“The City of Denver’s failure to properly train, discipline, and supervise an officer it was actively investigating for fraud, or at a minimum, further investigate the conduct of Officer Pineda with respect to this use of force is indicative of a broader pattern of wrongdoing within the Denver Police Department,” according to the lawsuit.

One of Munden’s attorneys, Jon Topolewski, told The Denver Gazette after Thursday’s hearing he plans to re-file their claim against Denver.

Assistant City Attorney Kevin McCaffrey argued that while evidence of dishonesty can be used to call a person’s credibility into question, “You can’t use that type of evidence to show an individual has a propensity for violence. That goes a step too far.”

Topolewski and McCaffrey presented different versions of how the series of events unfolded that led to Pineda tasing Munden in the lobby of the Art Hotel on May 9, 2022: Munden’s lawsuit says he was trying to check a reservation he had made on his phone, but the hotel manager asked him to leave because of “complaints from other guests.”

The city’s request to dismiss the claim against Denver says the hotel manager claimed Munden was not a guest, had acted inappropriately toward female guests and could not show Pineda any proof of his reservation.

Munden’s attorney said Pineda “violently” grabbed his arm to restrain him, and Munden instinctively reacted to protect himself by pushing Pineda and telling the officer not to touch him. Pineda’s body-worn camera fell off at that point.

Surveillance footage from the hotel lobby then reportedly captured more of the incident. Munden’s attorneys say Pineda hit Munden with his baton without provocation, and Munden tried to grab the baton to stop the officer. He then ducked behind a sculpture to protect himself, Munden’s attorneys say.

When Munden then took his phone out and was distracted, Pineda tased him in the chest, and then three more times, all in under a minute, according to his attorneys. Munden didn’t pose any threat in that moment, they argue, and the force used by Pineda was excessive given he was responding to a trespassing complaint.

There can be argument over whether the first stun was reasonable, said Topolewski, but “What about the second? What about the third? What about the fourth?”

Denver Police Department arrests own officer on suspicion of theft

But McCaffrey painted Munden as the aggressor in Thursday’s hearing: He said Pineda tased Munden after he tried to grab the officer’s baton, push the statue onto Pineda and reportedly punched the officer. (Topolewski disputed that last part, saying there’s no evidence to support the allegation since it reportedly happened after Pineda’s body-worn camera fell off.) McCaffrey said Munden continued to resist arrest after being tased.

He argued Pineda did not “violently” grab Munden’s arm, as Munden claimed.

As Topolewski argued Pineda’s force was excessive, Sweeney pressed him on the city’s allegations that Munden assaulted the officer, even if the initial situation was a low-level trespassing accusation.

“Don’t we look at that to see what force was required later?” she asked.