Colorado’s second-highest court on Thursday concluded 9News can be held liable for the actions of a security guard who accompanied a producer during an October 2020 rally in downtown Denver and ended up fatally shooting a man after a brief confrontation.

At the same time, a three-judge panel for the Court of Appeals agreed 9News could not otherwise be liable for negligently hiring or supervising Matthew Dolloff because the evidence showed the organization did not employ or direct him, instead obtaining Dolloff’s services through multiple layers of contractors.

The allegations “do not establish a reasonable probability that Dolloff’s actions were within 9News’ control on the day of the events,” wrote Judge Daniel M. Taubman in the June 13 opinion.

Steven Wright filed a lawsuit in October 2022, two years after Dolloff shot and killed his friend, Lee Keltner, when the two were leaving a pro-police rally at Civic Center Park. Black Lives Matter counter-protesters were also nearby. Allegedly, Wright and Keltner encountered Jeremiah Elliott just outside of the park, who was wearing a “Black Guns Matter” shirt and trying to incite passersby.

Elliott allegedly accosted Keltner. Video showed Wright intervening as 9News producer Zachary Newman stood by to record the interaction. When Keltner turned his attention to Newman and threatened to “f–k you up,” Dolloff stepped in to protect Newman. Keltner slapped Dolloff and deployed his pepper spray, prompting Dolloff to fatally shoot Keltner.

Prosecutors subsequently dropped second-degree murder charges against Dolloff, with Denver District Attorney Beth McCann explaining Colorado law justified Dolloff’s use of lethal force in response to Keltner’s aggression.

Wright filed suit in Elbert County, claiming the actions of 9News, Dolloff and Elliott were responsible for inflicting emotional distress on him. He also named as defendants Pinkerton Consulting & Investigations, which 9News contracted with for Dolloff’s services, and Isborn Security Services, which Pinkertorn used to hire Dolloff.

Elliott and Dolloff did not respond to the civil suit and District Court Judge Gary M. Kramer entered a default judgment against them. 9News and the security companies moved to dismiss, with 9News filing a motion under Colorado’s “anti-SLAPP” law, which stands for “strategic lawsuits against public participation.” The legislature enacted the law in 2019 to provide a means of quickly disposing of litigation that arises from protected First Amendment activity — specifically, the rights to free speech and to petition the government.

Kramer denied the security companies’ motions, concluding Wright’s allegations, if proven, showed Isborn negligently supplied an unlicensed security guard carrying an unauthorized firearm at a rally where there was an expectation of violence. Pinkerton similarly had a duty to hire and supervise Dolloff.

As for 9News, Kramer agreed Newman was engaged in lawful newsgathering at the time of the shooting on a matter of public interest, and there was no conspiracy between 9News, Dolloff and Elliott to instigate the violence. But Kramer believed a jury could find 9News needed to do more to supervise Dolloff and, moreover, that 9News controlled Dolloff’s actions in the middle of an “inherently dangerous activity.”

“In other words, the Court concludes that the jury is reasonably likely to agree with Wright that 9News should have done more than simply rely on Pinkerton and Isborn to supply a qualified security guard,” he wrote.

Both 9News and Wright appealed different aspects of Kramer’s ruling, with 9News arguing there were multiple layers between itself and Dolloff such that his actions could not be attributable to the outlet. Wright, on the other hand, maintained 9News, Dolloff and Elliott “acted in concert to incite an altercation” and should be held liable on that basis.

The appellate panel first answered what evidence judges may consider when analyzing motions to dismiss under the anti-SLAPP law. Taubman, a retired judge sitting on the panel at the chief justice’s assignment, wrote that plaintiffs may submit evidence to support their allegations. They do not have to do so, but if a defendant’s evidence contradicts the allegations, the defendant will likely succeed in getting the claims thrown out.

The evidence submitted in Wright’s case showed not only that there was no conspiracy between the defendants, but 9News was not responsible for negligently hiring or supervising Dolloff.

“9News did not directly hire Dolloff. Rather, it solicited security services from Pinkerton, which contracted with Isborn, which in turn hired Dolloff,” Taubman wrote, reversing Kramer’s conclusion.

However, the panel agreed 9News could be held “vicariously” responsible for its contractor. While a defendant in 9News’ position normally would not be liable, there is an exception when the activity inherently presents “a special or peculiar danger.” The preliminary evidence showed Dolloff’s involvement at the rally was inherently dangerous.

Wright’s attorneys said in a statement they look forward to bringing his claims before a jury. 9News’ lawyers did not immediately respond to a request for comment.

The case is Wright v. TEGNA Inc. et al.