A Colorado Springs officer acted reasonably by grabbing and repeatedly tasing a man in a hospital room for not relinquishing his fiancée’s cell phone, the federal appeals court based in Denver ruled on Friday.

A trial judge previously found Officer Vito DelCore escalated the interaction with Carl Andersen Jr. and effectively created the need to use force in an otherwise calm situation. Consequently, Andersen’s claim against DelCore was on track for a jury trial.

But a three-judge panel of the U.S. Court of Appeals for the 10th Circuit believed DelCore deserved qualified immunity because he did not violate Andersen’s clearly established constitutional rights. The panel did not directly address DelCore’s escalation of the encounter, but instead found the need to confiscate the cell phone justified some level of force.

“When Officer DelCore first grabbed Mr. Andersen’s arm, he was not physically resisting or fleeing,” acknowledged Senior Judge David M. Ebel. “But resistance need not be physical.”

Case: Andersen v. DelCore

Decided: August 18, 2023

Jurisdiction: U.S. District Court for Colorado

Ruling: 3-0

Judges: David M. Ebel (author)

Harris L Hartz

Scott M. Matheson Jr.

Background: 10th Circuit ponders immunity for Colorado Springs officer in hospital room tasing

In April 2019, Andersen’s fiancée accidentally struck their 19-month-old daughter while backing out of the driveway. A helicopter transported the child from Teller County to UCHealth Memorial Hospital Central in Colorado Springs. However, the Andersen family would not cooperate with nurses seeking more information about the incident.

The nurses called the police, suspecting child abuse. The family similarly rebuffed responding officers, but Teller County Det. Anthony Matarazzo learned Andersen’s fiancée was reportedly texting others about the accident. The fiancée denied sending the texts and Andersen took her phone for safekeeping.

Matarazzo then asked DelCore, Officer Todd Eckert and Sgt. Carlos Sandoval to assist with obtaining the cell phone to prevent the destruction of evidence. Body-worn camera footage showed the men entering the hospital room, where DelCore immediately moved to grab the phone from Andersen’s pocket.

“Excuse me, you do not grab anything from my pockets,” Andersen snapped. DelCore responded that Andersen was “gonna hit the ground real hard.” He also brandished his taser.

After the officers attempted to persuade Andersen to relinquish the phone, DelCore moved behind Andersen because “I don’t want anybody behind you getting hurt.” He grabbed Andersen’s arm, again warned of a tasing and ordered Andersen out of the room. DelCore then tased Andersen twice. Andersen fell to the ground and a struggle ensued with the other officers.

DelCore also threatened to tase Andersen’s father, former Republican congressional candidate Carl Andersen Sr., who was in the room.

In March 2022, U.S. District Court Senior Judge R. Brooke Jackson largely resolved Andersen Jr.’s claims in the officers’ favor, with the exception of the excessive force allegation against DelCore. To determine if DelCore acted reasonably, Jackson felt a “broader lens” on the hospital room encounter was necessary.

“The crime at issue was not severe when Officer DelCore first grabbed plaintiff’s arm and twisted it behind his back. At that point, the only crime at issue was obstruction, a misdemeanor,” Jackson wrote. Moreover, Andersen was calm, not resisting and not fleeing.

In contrast, DelCore “created the need to use force by escalating the interaction at every turn,” Jackson wrote, from immediately grabbing at the cell phone to pulling out his taser to circling behind Andersen. Jackson viewed the last action specifically as unreasonable.

“Taking the evidence in the light most favorable to plaintiff,” he concluded, “it seems that Officer DelCore encircled plaintiff, taser drawn, in order to initiate a physical altercation.”

However, the 10th Circuit panel declined to engage with Jackson’s analysis, calling it “not appropriate in this case.”

“Officer DelCore’s efforts to advise Mr. Andersen of the potential consequences of his continued refusal to turn over his fiancée’s cell phone was a reasonable effort to persuade Mr. Andersen to comply with the officer’s request,” Ebel wrote on Aug. 18.

The panel also disagreed that Andersen was implicated in a “not severe” crime. In reality, Ebel explained, law enforcement was investigating the more serious offense of child abuse, making it urgent to obtain the cell phone before the Andersen family could delete evidence.

“So, a reasonable officer could have believed that prompt investigation and action was required to counteract Mr. Andersen’s obstruction and to secure the cell phone while a search warrant was obtained,” he wrote.

Finally, the panel examined two separate phases of the hospital encounter: the original twisting of Andersen’s arm and the subsequent tasings. The arm twist was “relatively minor,” Ebel wrote, and the tasing was a response to Andersen resisting arrest.

The alternative to tasing, continued Ebel, was that four armed officers “would have been trapped in a small hospital room with a visibly upset and powerful Mr. Andersen.”

Andersen was unarmed.

Lawyers for Andersen did not immediately respond to a request for comment. Gordon L. Vaughan, DelCore’s attorney, praised the 10th Circuit’s decision.

“These officers were just doing their job. And it’s unfortunate that they were sued in the first instance,” he said.

The case is Andersen v. DelCore.