The federal appeals court based in Colorado agreed last week that police officers from Littleton, Englewood and Denver cannot be held liable for killing one person and partially paralyzing another because the plaintiffs’ lawyer failed to cite any facts of the case while appealing a trial judge’s decision.

During a late-night vehicle chase across multiple jurisdictions, four officers fired upwards of 66 bullets into a vehicle. They killed Stephanie Lopez and severely injured Marta Sanchez. In 2022, a judge concluded the officers were entitled to qualified immunity for their actions, meaning they had not violated the plaintiffs’ clear constitutional rights.

A three-judge panel of the U.S. Court of Appeals for the 10th Circuit determined it could not review the correctness of that decision because the plaintiffs’ lawyer, Robert E. Barnes, doomed the appeal by neglecting to outline any facts about what happened.

“In particular, absent Plaintiffs identifying for us a record-based factual universe reflecting their version of events, we cannot opine on whether the district court committed reversible error,” wrote Chief Judge Jerome A. Holmes in the June 28 opinion.

Barnes did not respond to an email seeking comment. He is a Los Angeles-based attorney whose clients have included Alex Jones, the media personality who falsely claimed the Sandy Hook massacre was a hoax, and Kyle Rittenhouse, the teenager who was acquitted after fatally shooting two men in Wisconsin during the protests of summer 2020.

In the underlying case, officers from multiple jurisdictions pursued a vehicle on the night of June 29, 2017 following a tip of suspected carjacking. After police rammed the vehicle to stop it, Sanchez, the driver, allegedly started to drive away, prompting officers to open fire.

Sanchez stopped and restarted repeatedly, only to be met with more bullets. Officers shot Lopez in the head, killing her. A third occupant, Dominic Martinez, fled at some point.

The plaintiffs sued for excessive force. Chief U.S. Magistrate Judge Michael E. Hegarty recommended granting the officers qualified immunity, agreeing the plaintiffs had endangered the lives of themselves and others. Therefore, the officers’ deadly force was not a clear constitutional violation.

U.S. District Court Judge Regina M. Rodriguez adopted Hegarty’s recommendation. She noted a jury might well have concluded the officers used excessive force but, like Hegarty, she determined no prior court cases put the defendants on notice their conduct was clearly unconstitutional.

Barnes appealed to the 10th Circuit, arguing Rodriguez wrongly imposed too high of a burden on the plaintiffs to combat qualified immunity.

However, at oral arguments before the appellate panel, Barnes immediately ran into a buzzsaw.

“I wanna interrupt early because I’ve got a problem,” said Judge Carolyn B. McHugh fewer than 10 seconds into Barnes’ argument last fall. “There’s no statement of facts in your brief.”

“Respectfully, I think the issue is relatively straightforward,” Barnes told her.

“So, your position is we should just excuse your failure to follow our briefing rules?” McHugh retorted.

Holmes also piled on, slamming Barnes for not providing “the relevant universe of facts.”

“I’m talking about by you on appeal. Where was that done?” he demanded.

“The point that we’re both trying to make,” concluded McHugh, is “your job is to say, ‘Here is what a reasonable jury could have found — taking all of the evidence produced in the record that we cite to in our brief.”

Barnes admitted that “any mistake I made should be on me,” and not reflect on his clients “or the Constitution.”

But the 10th Circuit panel did not excuse Barnes’ faulty appeal.

Holmes indicated the panel had concerns about Rodriguez’s decision, noting she had seemingly not given the proper amount of weight to the plaintiffs’ evidence before deciding there was no clear constitutional violation. But Barnes’ failure to argue the facts stood in the way of addressing that possible defect.

“As we have stressed throughout this opinion, Plaintiffs bear the burden of proof on the clearly established law issue, and clearly established law does not exist in a vacuum; instead, such law must be determined in relation to a specific set of facts,” Holmes concluded.

The case is Sanchez et al. v. Guzman et al.