For the second time in under a month, a federal judge has declined to dismiss Fort Collins from a lawsuit alleging the city’s own failures contributed to a police officer’s repeated wrongful arrests of motorists who were not actually intoxicated.

Cody Erbacher is one of several arrestees who filed suit over their encounters with Jason Haferman, the former “DUI officer” for Fort Collins Police Services. Erbacher’s complaint described how Larimer County prosecutors dismissed the drunk driving charge against him after his blood test results showed no intoxication — one of many instances in which Haferman wrongly arrested motorists for driving under the influence.

On March 26, U.S. District Court Judge Charlotte N. Sweeney rejected the city’s motion to dismiss itself in another case involving Haferman. She found the allegations credibly showed police supervisors should have reviewed Haferman’s work after the blood test results for his arrestees started coming back negative, but the city did nothing.

Sweeney, who also is handling Erbacher’s case, reiterated many of her same conclusions in an April 19 order that similarly refused to dismiss Erbacher’s claim against Fort Collins. 

The police department “failed to subject Officer Haferman’s body-worn camera footage or arrest reports to any meaningful review, provide Officer Haferman with any remedial training, or otherwise intervene to prevent future wrongful DUI arrests,” she wrote. “As such, the complaint adequately alleges that the City had ample notice of Officer Haferman’s conduct to which it should have responded, but the City instead was deliberately indifferent to the obligation to prevent other constitutional violations.”

In 2022, KDVR reported Haferman had made roughly one dozen drunk driving arrests in which subsequent testing showed no drugs or alcohol. In one instance, a Larimer County judge acquitted an arrestee of Haferman’s by finding the officer’s testimony “lacks credibility” and was “contrary to the evidence.”

At the end of that year, facing a disciplinary hearing after an internal investigation, Haferman chose to resign. District Attorney Gordon McLaughlin had previously raised his own concerns that Haferman’s handling of DUI cases needed to “dramatically improve.”

“I communicated to (Fort Collins police) in August of 2022 that my office would no longer be prosecuting cases in which former Officer Haferman was an essential witness,” McLaughlin said upon Haferman’s departure. “I arrived at this decision based on the overwhelming evidence my prosecutors and others had observed in many of Officer Haferman’s cases.”

Erbacher’s complaint alleged that on June 11, 2021, Haferman pulled Erbacher over for accelerating “too quickly.” Haferman questioned Erbacher about alcohol consumption, and Erbacher admitted he had one beer hours earlier.

“It was Haferman’s regular practice to treat any admission by a driver to any drinking at any prior time as sufficient grounds (even in the absence of any actual indications of impairment) to make a DUI arrest,” wrote attorney Sarah Schielke.

Erbacher allegedly performed roadside sobriety maneuvers perfectly, but Haferman wrote he “almost tripped himself.” Erbacher chose to take a breath test, but Haferman told him the medication Erbacher was taking for strep throat rendered a blood test the only option. Haferman did not activate his body-worn camera during the encounter, but wrote that he did on his police report.

Hafterman transported Erbacher to jail. As part of his bond, Erbacher allegedly had to submit to regular drug testing, obtain loans from friends to pay for his defense and was unable to keep his job due to the ongoing court case. Five months later, Erbacher’s blood test results came back negative for drugs or alcohol. Court records show prosecutors dismissed the DUI charge.

Fort Collins argued there was no indication it “consciously or deliberately” disregarded Haferman’s alleged constitutional violations, but Sweeney disagreed. She noted the pattern of Haferman’s cases being dismissed for lack of probable cause — with no corrective action by Fort Collins — meant the city could be held liable.

Haferman has not moved to dismiss the claims against him for unlawful arrest and malicious prosecution. In his response to Erbacher’s complaint, he denied that he lied in his report, called the claims largely frivolous and noted he had a “good faith belief in the lawfulness of his actions.”

The case is Erbacher v. City of Fort Collins et al.