A federal judge on Tuesday agreed another lawsuit about the Denver police’s forceful response to 2020 demonstrations should face a jury trial over whether the city’s own policies led to violations of protesters’ constitutional rights.

In the years since a Minneapolis police officer killed George Floyd in May 2020, sparking international demonstrations, plaintiffs injured in the Denver protests have lodged claims of excessive force and retaliation for exercising their First Amendment rights.

In a June 25 order, U.S. District Court Judge Daniel D. Domenico determined another group of eight plaintiffs had presented evidence showing Denver itself laid the foundation for individual officers to commit constitutional violations.

“A reasonable jury could conclude that Denver’s informal custom was to allow its officers to fire indiscriminately into crowds of peaceful or mostly peaceful protesters with the added protection of anonymity granted by the failure to deploy body worn cameras or use-of-force reports,” he wrote. “Or the jury might find, on essentially the same evidence, that Denver failed to train its officers despite prior knowledge that its protest response practices created an unreasonable risk of at least some officers taking unconstitutional action.”

Numerous federal judges in Colorado have handled cases arising from the 2020 protests almost from the beginning. U.S. District Court Senior Judge R. Brooke Jackson, after several days of demonstrations, first handed down a temporary restraining order placing limits on law enforcement’s use of projectiles and chemical agents.

Since then, Jackson also presided over a jury trial that culminated in a $14 million award to plaintiffs injured by excessive force. In March, U.S. District Court Judge Nina Y. Wang green-lit a jury trial for 13 more plaintiffs and U.S. Magistrate Judge Kathryn A. Starnella followed suit with a freelance photographer who was arrested during the curfew.

In the case before Domenico, the plaintiffs sued the city itself for their injuries under the theory that Denver’s policies or customs were behind officers’ alleged violations of their constitutional rights. Attorneys for the plaintiffs argued the policies at issue were, among other things, the non-use of body-worn cameras, the effective anonymity Denver police were afforded through face shields and riot gear, and the failure to file incident reports after using force.

During a hearing earlier this month, Denver’s attorney told Domenico the city had “never experienced anything like this” and suggested it was inappropriate to second-guess the actions of officers who were faced with some violence and destruction amid otherwise peaceful protests.

Domenico was unconvinced. He noted there was evidence the city was on notice of the need to reassess its tactics following the use of projectiles and chemicals against “Occupy Denver” protesters in 2011.

“And it almost goes without saying that a jury could find a reasonable person would be chilled from protesting after being gassed, pepper-sprayed, or indiscriminately shot with rubber bullets while protesting, as Plaintiffs have stated in their depositions happened to them,” he added.

Domenico continued that there was “ample evidence” from which a jury could decide the plaintiffs’ protest-related activity motivated the police’s use of force, and the plaintiffs are entitled to prove Denver’s policies drove the alleged retaliation.

As for one plaintiff, Cody Schmitt, who was hit with teargas and handcuffed while looking for his glasses, Domenico agreed Schmitt could not hold Denver liable for arresting him because there was probable cause to believe he was out in violation of the city’s curfew. At the same time, Schmitt can argue to a jury that Denver selectively enforced the curfew only against those engaging in protest-related activity.

“One video shows officers arresting protesters on the streets after curfew but making no attempt to arrest a non-protester thanking them for their service, who was similarly out after curfew,” Domenico noted.

His order also chided Denver for “quite callously” blaming the plaintiffs or the police’s “inadvertence” for their injuries.

Lawyers for Denver did not respond to a request for comment.

“Judge Domenico’s order is a sobering and direct application of the law. There is no politics here,” said Birk Baumgartner, an attorney for the plaintiffs. “Mayor (Mike) Johnston says he supports police reform. But he also has denied and bitterly fought every single George Floyd protest suit since he was elected.”

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

Editor’s note: This article has been updated with comments from the plaintiffs’ attorney.