A federal judge last week allowed an excessive force lawsuit against a Denver Sheriff’s deputy to move forward for punching and shoving a man to the ground after he allegedly spat on the deputy in 2019. But in a related order, she granted summary judgment to Denver on the piece of the lawsuit seeking to hold the city liable for the deputy’s actions.

Judge Charlotte Sweeney’s decision in favor of Denver reversed course from a decision earlier this year in which she declined to dismiss the claims against the city.

Video footage from 2019 captured sheriff’s Deputy Jason Gentempo punching Serafin Finn multiple times and shoving Finn, who was in a wheelchair, to the ground after Finn allegedly spat on Gentempo. The resulting 2021 civil rights lawsuit alleges Gentempo used excessive force against Finn and that Denver’s own policies and practices facilitated Gentempo’s conduct. Holding a municipality liable for the conduct of its officials requires that the person acted unconstitutionally pursuant to a policy or custom.

Judge says Denver may be held liable for failing to train officer who punched man in wheelchair

Finn died in 2021 for unrelated reasons, but the administrator of his estate filed suit against Gentempo for excessive force. The plaintiff, Melissa Schwartz, also sought to hold Denver liable for its role in Finn’s injuries, which requires that a governmental policy or custom be behind Gentempo’s actions.

Gentempo sought a summary judgment motion in his favor, arguing qualified immunity should shield him from the case. Qualified immunity protects government employees from civil liability for their actions unless they have violated clearly established constitutional or statutory rights.

He argued no previous court cases in the 10th Circuit Court of Appeals have squarely established a level of force that’s appropriate in response to being spit on by a detainee, and other federal courts have decided an officer can use the same level of force as in this case. The parties agreed there hasn’t been a case in the 10th Circuit or U.S. Supreme Court that addresses the exact fact pattern in this situation.

But Sweeney disagreed with Gentempo’s argument, writing the cases cited by Gentempo all involved people who were violently resisting or noncompliant in addition to spitting, at officers, or threatening too. The 10th Circuit has clearly established physical force is inappropriate on a subject who is restrained and not violently resisting, Sweeney wrote.

She also disagreed with Gentempo’s argument that Colorado law precludes Finn’s estate from receiving noneconomic compensatory damages.

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Gentempto and another deputy arrived at Denver Health on March 20, 2019 to retrieve Finn and take him to the Downtown Detention Center. Finn had been arrested the previous day but had several seizures at the jail, prompting his transport to Denver Health.

The deputies moved Finn outside in a wheelchair while he was handcuffed and restrained. At one point in the transport, surveillance video showed Finn turning and appearing to spit on Gentempo.

The video then captured Gentempo punching Finn multiple times, grabbing his face and pushing him, still seated, into the ground. Other deputies arrived and put a “spit sock” on Finn’s head. At the jail’s intake office, Gentempo allegedly neglected to disclose his use of force, and further video footage there showed Finn seizing and collapsing on the floor.

Gentempo’s lawyers admitted to the force in response to the lawsuit, and said Gentempo had then “laid on top of Mr. Finn and applied pressure points to the head and neck.”

The lawsuit claimed Denver bore responsibility on two fronts. First, the city allegedly failed to train deputies whether and how to use force when spat upon. The evidence presented by Schwartz’ lawsuit primarily consisted Gentempo’s statement to departmental investigators that “there was no layout, there’s nothing in our policy that will tell you what exactly to do when you’re being spit on.”

Second, the lawsuit raised the “ratification” theory, which can hold government policymakers liable when they approve of a subordinate’s illegal actions. The lawsuit said that following Gentempo’s use of force, internal investigators found Gentempo had committed three policy violations for inappropriate force and deception. However, a committee that allegedly included the interim sheriff and the current sheriff revised those findings and cleared Gentempo of wrongdoing.

When she addressed the claims against Denver, Sweeney wrote a reasonable jury could find the city failed to train deputies adequately on whether, and how, to use force if they were spat on. But she decided the lawsuit hasn’t sufficiently shown the inadequate training caused Gentempo to use excessive force, or that his actions were an obvious consequence of the deficiency.

“Put simply, the spitting incident giving rise to this case does not fall within the ‘narrow range of circumstances’ where Deputy Gentempo’s alleged excessive force was a ‘highly predictable’ or ‘patently obvious’ consequence of his deficient training,” Sweeney wrote.

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