A jury will decide whether two Denver police officers are liable for unlawful arrest, excessive force and malicious prosecution after a federal judge last month found it possible the defendants arrested a man for an assault that never happened.

Aaron Hernandez was sitting in a vehicle with his son in a church parking lot when officers detained them, having learned someone in the car had an arrest warrant. Although Hernandez remained in the vehicle for a time, he stepped out, causing officers to grab him and take him to the ground.

The officers then struck Hernandez, shattering a bone near his eye.

The defendants claimed they were entitled to qualified immunity, which generally shields government employees from civil liability unless they violate a person’s clearly established legal rights. Because Hernandez assaulted Officers Jayme R. Larson and Vance Johnson in the scuffle, lawyers for the city contended, the defendants did not violate Hernandez’s rights by subduing and arresting him.

Looking at the evidence, however, U.S. District Court Chief Judge Philip A. Brimmer concluded a jury might not believe the officers’ version of events – specifically, that Hernandez used force against them first.

“Mr. Hernandez notes that there is no objective evidence that the officers were kicked by plaintiff, such as cuts, bruises, photos of injuries, medical records, or clear video evidence,” Brimmer wrote in a Sept. 19 order. Further, “Officer Johnson agreed at his deposition that the body camera video depicts him smiling and not visibly in pain.”

With multiple of Hernandez’s constitutional claims hinging on whether Hernandez actually assaulted the officers, Brimmer declined to resolve the case in Larson and Johnson’s favor. A jury trial is scheduled for June of next year.

The events in Hernandez’s lawsuit, much of them documented on body-worn camera footage, began when Sgt. Michael O’Neill approached the vehicle Hernandez was sitting in with his son, Aaron Hernandez Jr., on June 30, 2019. The Hernandezes were in a church parking lot and O’Neill quickly determined Hernandez Jr. had a warrant out for his arrest on a non-violent offense.

Hernandez exited the car, only for O’Neill to tell him to get back inside. When Larson and Johnson arrived, Hernandez, who was 60 years old at the time and reportedly recovering from intestinal surgery, attempted to stand up.

“Ah, ah, ah,” Larson said, grabbing Hernandez’s wrist and telling him to stop getting out of the car.

“Let go of me. I’m hurting,” Hernandez responded.

Larson momentarily maintained her hold on both of his wrists. Hernandez again cried out in pain, but quickly the officers took him to the ground and handcuffed him. Hernandez continued to scream that he was hurting.

At one point, the officers struck Hernandez in the face and torso. Johnson accused Hernandez of kneeing him “in the balls.” Larson also claimed Hernandez kicked the officers. The body-worn camera video did not clearly show any strike.

Although Hernandez was charged with two counts of assault, prosecutors later dismissed the charges.

Last year, Brimmer dismissed the portion of Hernandez’s lawsuit alleging Denver itself was liable for a failure to train its officers and for a widespread practice of excessive force. The remaining defendants then moved for summary judgment by invoking qualified immunity.

Brimmer partially agreed with the individual officers. Because O’Neill was with Hernandez’s son and the use of force against Hernandez lasted a matter of seconds, Brimmer determined he was not liable for failing to intervene. Brimmer also agreed the officers had not unconstitutionally detained him by telling him to stay inside his vehicle, or even when Larson initially laid hands on Hernandez as he exited.

Where Brimmer found an important factual dispute, however, was whether the officers had probable cause to arrest Hernandez for assault. The evidence largely consisted of the parties’ differing accounts, but with one key detail: Larson’s acknowledgement that the video showed him smiling after the alleged assault, and it “wouldn’t appear” that he was in pain then.

“Sergeant O’Neill’s, Officer Larson’s, and Officer Johnson’s body camera videos do not clearly depict Mr. Hernandez kneeing Officer Johnson in the groin or kicking Officer Larson in the shin,” Brimmer wrote. “A reasonable jury could believe plaintiff’s version of events based on Mr. Hernandez’s testimony, the lack of any medical records depicting the officers’ injuries, and the fact that Sergeant O’Neill did not witness any assault.”

If that were the case, a jury could find the officers liable for wrongfully arresting Hernandez, as well as using excessive force, Brimmer continued. Finally, if the statements in Larson and Johnson’s incident reports alleging Hernandez kicked them were false, they could also be liable for malicious prosecution.

The case is Hernandez v. Larson et al.