Civil claims against the city of Aurora and three of its police officers for actions during Denver’s 2020 George Floyd protests can move forward, a panel of federal appeals court judges decided this week.

According to the case, Zachary Packard was shot in the head by an Aurora officer with a lead pellet-filled bag on May 31, 2020, which knocked him unconscious and caused fractures to his skull and jaw, along with brain bleeding.

He was hit right after he kicked away a tear gas canister thrown by an officer that landed near Packard, according to the lawsuit, and Sgt. Patricio Serrant told officers under him to “go ahead and frickin’ hit ’em” if protesters kicked canisters.

Officer David McNamee was under Serrant’s command and fired several rounds at the same time Packard was hit, but the parties dispute whether it was McNamee who shot him, the case says.

Though the canister flew a few feet in the direction of officers when Packard kicked it, Judge R. Brooke Jackson found it didn’t pose a threat because of the protective gear officers wore.

Johnathan Duran was hit in the groin with a foam baton round the same night as he stood near Colfax Avenue and Pearl Street, talking to an acquaintance and filming the protest, the case says. It claims Officer Corey Budaj shot about 15 baton rounds that evening, but as with Packard, the parties dispute whether Budaj shot Duran.

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Jackson ruled qualified immunity doesn’t apply to the officers named in the case because neither Packard nor Duran were “committing a crime, posing a threat, or attempting to flee,” and denied their request to rule on the case in their favor.

“By May of 2020, when the incidents here occurred, it had been clearly established for (at least) twelve years that the deployment of less-lethal munitions on an unthreatening protester who is neither committing a serious offense nor seeking to flee is unconstitutionally excessive force,” wrote Judge Veronica Rossman in Tuesday’s decision.

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The ACLU of Colorado has been part of the team representing the protesters.

“The court’s decision once again affirms the fundamental principle that police cannot use violence against peaceful protesters. Our clients went to the streets to raise their voices against police abuse and the police responded with violence,” the organization’s legal director, Tim Macdonald, said in a statement.

Qualified immunity is a defense that protects government employees from civil liability for their actions unless they have violated clearly established constitutional or statutory rights.

Attorneys for Aurora argued qualified immunity should protect the officers because a reasonable officer wouldn’t have already known it’s inappropriate to use less-lethal weapons on a person kicking an object, as in Packard’s case.

“The Defendants challenge the district court’s conclusions at both prongs of the qualified immunity inquiry. They maintain their conduct under the circumstances was ‘objectively reasonable,’ and therefore could not violate constitutional rights,” said the appeals court’s decision. The “prongs” refer to a two-part analysis of whether the facts of a situation violated a constitutional right, and whether the right was clearly established at the time.

The claims against Aurora are one piece of a broader lawsuit filed by a group of protesters over law enforcement’s handling of the 2020 demonstrations in Denver sparked by George Floyd’s murder in Minneapolis. Jackson has split off some sections of the case, and excessive force claims against Denver and its police officers went to trial in March 2022.

A jury awarded the protesters $14 million.

The ruling comes as Aurora and Denver are embroiled in a lawsuit in which Aurora has asked the Denver District Court to require Denver to pay legal fees, settlements and jury awards in lawsuits that include Aurora arising out of the 2020 protests.

Aurora wants enforcement of an agreement and state law that the city says obligates an agency requesting law enforcement aid from other jurisdictions to pay the costs of claims arising from the aid provided, according to the lawsuit filed in May.

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Denver has asked the court to dismiss the lawsuit. In the case’s most recent filing in July, attorneys for Denver wrote Aurora doesn’t have standing to sue because the city hasn’t shown it has actually incurred any liability for conduct of its officers while providing aid to Denver for the George Floyd protests.

“Furthermore, Aurora has failed to plead in anything other than conclusory terms the existence of any agreement between the jurisdictions that would require Denver to reimburse Aurora for its officers’ civil rights violations, or that a special employment relationship between Aurora (the only Plaintiff in this lawsuit) and Denver which would require Denver to reimburse Aurora for its employees’ actions,” Denver’s attorneys wrote in the filing.