The federal appeals court based in Denver agreed on Monday that two Colorado Springs police officers cannot be held liable for using a Taser on a man up to eight times in 90 seconds, leading to his death.

Officers Daniel Patterson and Joshua Archer were investigating a possible disturbance at an apartment building when Jeffrey Melvin entered the unit. Within seconds, the officers grabbed Melvin and began yelling at him, prompting a struggle. Patterson and Archer tased Melvin between five and eight times.

After being handcuffed, Melvin went to the hospital, where he later died from his injuries.

A trial judge believed a jury should decide whether the officers used excessive force. However, a three-judge panel of the U.S. Court of Appeals for the 10th Circuit concluded Patterson and Archer deserved qualified immunity. The panel declined to say whether the men committed a constitutional violation, instead finding that no prior court decisions would have put Patterson and Archer on notice that their repeated use of force was unlawful.

“Mr. Melvin was not subdued, he was informed that he was being detained, and he was instructed to stop resisting,” wrote Judge Carolyn B. McHugh in the panel’s Dec. 11 order. “Mr. Melvin was attempting to flee and was subject to Taser deployments after the Officers initially attempted lower levels of force to detain Mr. Melvin.”

Although Melvin’s father, who filed the lawsuit over his son’s death, will not be able to hold Patterson and Archer personally liable, the 10th Circuit left intact the claim against the city of Colorado Springs for allegedly failing to train its officers properly. Qualified immunity is not available to governments themselves.

“A jury will make the determination as to whether the force used by the officers was unconstitutionally excessive, and whether the city bears blame for that,” said attorney Darold W. Killmer, who represents Jeffrey Melvin Sr. The city declined to comment on the litigation.

Case: Estate of Melvin v. City of Colorado Springs

Decided: December 11, 2023

Jurisdiction: U.S. District Court for Colorado

Ruling: 3-0

Judges: Carolyn B. McHugh (author)

Mary Beck Briscoe

Robert E. Bacharach

Background: Federal judge declines to label Colorado Springs appeal ‘frivolous’ in lawsuit over police killing

After midnight on April 26, 2018, Patterson and Archer responded to a report of a disturbance in an apartment building on the 3300 block of East Fountain Boulevard. Melvin let them into the building as he was leaving and the officers went to unit 211. A man who answered the door acknowledged there was a fight earlier, but the combatants had left.

Inside apartment 211 were an adult woman and a 16-year-old girl, identified as A.S. Both of them said they were fine, but the officers were suspicious of A.S.’ presence. She denied being a runaway and called her uncle to request that he pick her up.

Patterson stepped out to the hallway. When Melvin returned, he allegedly ran inside apartment 211 and slammed the door. Within seconds, the officers attempted to detain Melvin, prompting a struggle. Between the two of them, Patterson and Archer tased Melvin eight times in approximately 90 seconds, although it was unclear if all eight attempts made contact. 

Melvin ran from the apartment before collapsing in the street, telling the officers, “You’re killing me. You’re honestly killing me.”

When other first responders arrived and asked what was going on, one of the officers replied, “We don’t really know yet.”

Melvin, 27, died days later. The coroner ruled it a homicide.

In March, U.S. District Court Senior Judge Christine M. Arguello declined to grant qualified immunity to the officers, concluding a jury could find they violated Melvin’s clear constitutional rights.

“Even if the detention was lawful and the first Taser deployment was justified by the physical struggle and Mr. Melvin’s resistance,” she wrote, “the repeated Taser deployments over the next 90 seconds – several of which occurred within mere seconds of each other, allowing little time for Mr. Melvin to recover and comply with orders – were not justified.”

The officers appealed, arguing the force was proper because they were unable to control Melvin through other means. Assistant City Attorney Anne H. Turner claimed Arguello’s order meant officers would need to “watch their stopwatches” in the future to ensure frequent tasings do not become excessive. Her argument gave the 10th Circuit judges pause.

“As long as he continued to resist,” asked Senior Judge Mary Beck Briscoe during oral arguments last month, “the officers could use Tasers or whatever other means they cared to employ until and unless he stops? Until he is subdued?”

“At some point, the use of a Taser repeatedly changes from nonlethal to lethal force,” added McHugh.

“I disagree, your honor,” said Turner.

“It apparently did here,” McHugh retorted.

She conceded the officers may be correct that no prior court decision, under similar circumstances, found excessive tasings to be unconstitutional.

“But,” she wondered, “should there be some limit to how much you can tase them?”

Without answering the question, the panel’s order concluded the officers did not clearly cross that line.

The case is Estate of Melvin v. City of Colorado Springs et al.