The federal appeals court based in Colorado concluded on Monday that two Denver police officers cannot be held liable for burning down a woman’s home after they threw a teargas canister, not designed for indoor use, into her house and sparked a fire.

A trial judge previously decided it was a jury’s job to say whether Justin Dodge and Richard Eberharter acted “willfully and wantonly,” with an awareness their actions would start a house fire. But a three-judge panel of the U.S. Court of Appeals for the 10th Circuit concluded the evidence showed only that the defendants knew there could be a fire – not that there would be a fire.

“Granted, the factfinder could infer that the police officers had not adequately considered the extent of the risk,” wrote Judge Robert E. Bacharach in the panel’s March 11 order. But even if they acted negligently, “no reasonable jury could have regarded the conduct as willful and wanton.”

Case: Quintana v. Dodge

Decided: March 11, 2024

Jurisdiction: U.S. District Court for Colorado

Ruling: 3-0

Judges: Robert E. Bacharach (author)

Scott M. Matheson Jr.

Timothy M. Tymkovich (concurrence)

Background: Case set for trial over SWAT standoff that burned down Denver woman’s house

The plaintiff, Mary Quintana, will still proceed to trial on her claims that Denver violated her constitutional rights by destroying her home and failing to train its officers. Those claims were not part of Dodge and Eberharter’s appeal.

In January 2019, police arrived at Quintana’s home in the 600 block of Inca Street to extract her son, Joseph Quintana. He had multiple arrest warrants and shot two responding officers, leading to the involvement of SWAT team members. A standoff ensued, during which police attempted negotiating and sending a robot inside the house.

Then, the officers resorted to chemical munitions. Dodge directed the use of teargas canisters placed in ventilated metal boxes. Officers deployed three canisters through the front door before Eberharter inserted a fourth into the bedroom. The final canister ignited a fire, destroying the home. Joseph Quintana ultimately shot himself and died.

Mary Quintana sued Dodge, Eberharter and the city. In April 2023, U.S. District Court Senior Judge William J. Martínez declined to end the case in the defendants’ favor and green-lit the lawsuit for a jury trial.

Specific to the two officers, he decided a jury could deem their conduct willful and wanton, which is the standard under Colorado law for circumventing the immunity broadly granted to government officials. Martínez noted the manufacturer of the teargas canisters warned they should not be deployed indoors, the defendants were aware of a fire risk and Eberharter had dropped the fourth canister without looking at where it landed.

“It is up to the jury – not the Court – to weigh the evidence and find whether carrying on with this risky course of action was or was not ‘heedless,’ ‘reckless,’ and ‘without regard’ to Plaintiff’s rights,” Martínez wrote.

On appeal to the 10th Circuit, the officers argued the facts showed police attempted to coax Joseph Quintana out with less dangerous tactics and, even when deploying the teargas canisters, placing the munitions in a box was an attempt to mitigate the fire risk. Therefore, they did not willfully act to burn down the home.

“They put these flammable chemical munitions inside of these burn boxes because they knew it would cause a fire,” countered Mary Quintana’s attorney, Joseph A. Salazar, during oral arguments. “Their thought process was, ‘Hey, let’s take something that’s really hot, that burns from 600 to 800 degrees where you need a welder’s mitt, and throw it into a metal box.'”

“This was the fourth canister,” said Bacharach. “Did the first three canisters they put in these metal boxes cause a fire?”

“These officers were trained by the department that there are circumstances when you can use the product indoors. That’s why there’s the metal container burn box, right?” asked Judge Timothy M. Tymkovich.

Salazar replied that the canisters’ manufacturer explicitly dissuaded police from using the canisters in that way, and the officers acted “like a bunch of kids with some pretty dangerous materials.”

Ultimately, the panel concluded the defendants’ “lapses” were not severe enough to render them liable for destroying Quintana’s house.

“They didn’t expect the fire, but knew it was a possibility,” Bacharach wrote. “Without awareness that a fire would take place, the police didn’t consciously disregard the harm. So the conduct wasn’t willful and wanton.”

Tymkovich wrote separately to emphasize trial judges should be the ones deciding whether government employees’ conduct is willful and wanton, not juries.

“Determining immunity before trial significantly affects the outcome of the litigation,” he wrote. “If the immunity applies, there is no trial.”

The case is Quintana v. Dodge et al.