A federal judge agreed last month that a jury will decide whether two Denver officers and the city itself should be liable for excessive force, First Amendment violations and other infringements on a man’s constitutional rights during the 2020 protests.

After a Minneapolis police officer killed George Floyd in May 2020, international demonstrations erupted, including in Denver. Ambrose Cruz was downtown on the night of June 1 and was taking photographs when police officers shot him with pepper balls, allegedly pointed a gun at him and arrested him for violating the city’s curfew.

The city moved to end the lawsuit in its favor without a trial, but in a March 29 order, U.S. Magistrate Judge Kathryn A. Starnella determined a jury would hear some of Cruz’s claims.

Starnella also slammed the defense lawyers for making “legally incorrect statements” that “misconstrue the law” and upbraided both sides for failing to describe exactly what the city, itself, was being held responsible for.

“The Court reiterates how inappropriate it is to force the Court to determine precisely what claims are being asserted against whom and on what specific basis, particularly with such experienced attorneys on both sides,” she wrote. “Broad statements regarding wrong-doing and broad arguments regarding why summary judgment should or should not be granted are unhelpful, a disservice to the clients, and delay rulings by the Court.”

Cruz’s lawsuit is one of several filed against the city since the summer of 2020 taking issue with the constitutionality of the law enforcement response to the demonstrators. Most prominently, a federal jury awarded $14 million to a group of protesters in 2022 for the use of excessive force, and last month another judge decided a different case involving 13 plaintiffs would proceed to trial.

The night he attended the protest, Cruz visited multiple locations south of the state Capitol as an un-credentialed photographer before ending up inside a parking garage along Lincoln Street. Officers Keith Valentine and Heather R. Jossi, who were members of the gang unit, encountered Cruz.

Surveillance footage did not show the entirety of what happened, but Cruz sustained an injury to his eye. He argued Valentine shot him in the face and back “with no warning or justification whatsoever.” Jossi allegedly failed to intervene, pointed her handgun at him and threatened to kill him. The officers arrested Cruz and he was charged with violating the curfew.

Cruz’s lawsuit alleged Valentine and Jossi retaliated against him for exercising his First Amendment right to document the demonstrations and also used excessive force. He further claimed Denver’s own policies or customs were behind the constitutional violations.

The defendants moved for summary judgment. The officers asserted qualified immunity, which generally shields government officials from civil lawsuits unless they violate a person’s clear legal rights. They argued Cruz’s photography was not protected activity and Denver’s response was not clearly unconstitutional.

“Plaintiff was not a member of any press organizations and did not possess any media credentials and, thus, he was no more a member of the press than any other individuals taking photos with their phone,” wrote the defendants’ lawyers. “Denver faced an unprecedented circumstance with the George Floyd Protests. Never before had DPD faced a combination of protests along with individuals engaged in significant property destruction and violence towards responding police officers.”

Starnella agreed the city could be held liable for its own role in allegedly violating Cruz’s constitutional rights through its policies or failures to train. She also concluded a jury could find Valentine used excessive force by shooting Cruz with pepper balls in the absence of a serious crime, a threat or any attempt to flee. Finally, Starnella noted jurors could sort out whether Jossi failed to intervene during Valentine’s use of force.

However, Starnella decided Cruz’s First Amendment claims in favor of the officers. To the extent Cruz alleged a violation by simply being present at the protests, without participating in them, “Plaintiff has not demonstrated that attending the protest to support and assist the protestors constitutes constitutionally protected activity,” she wrote.

Starnella acknowledged Cruz’s photography as a freelance journalist fell under the First Amendment and that his camera would be “obviously visible” to officers. However, Valentine and Jossi had not unconstitutionally retaliated against him for his photography because, as an un-credentialed journalist, he was actively breaking the curfew.

“Plaintiff has directed the Court’s attention to no case clearly establishing that a non-credentialed member of the news media is able to exercise his right to freedom of the press despite a curfew order clearly stating that only credentialed members of the news media were permitted on the streets,” Starnella concluded.

Cruz’s attorney did not respond to an email seeking comment about the decision.

The case is Cruz v. City and County of Denver et al.