A federal judge last week refused to alter her ruling allowing only some claims to proceed to a jury trial against Denver for its alleged constitutional violations against protesters.

Numerous judges this year have found Denver or its officers may be held liable for excessive force or First Amendment violations in a series of lawsuits. The claims all arose after a Minneapolis police officer killed George Floyd in May 2020, prompting international demonstrations. Denver police, along with other responding agencies, subsequently used force against violent rioters and peaceful protesters.

In March, U.S. District Court Judge Nina Y. Wang green-lit the claims of 13 plaintiffs for trial. In doing so, she surgically defined the contours of which claims may proceed against which defendants, allowing limited portions of the original lawsuit to move ahead. Wang’s decision to side with Denver on some of the claims prompted the plaintiffs to ask her to reconsider, arguing Wang “misapprehended the Plaintiffs’ position, the facts, and committed a clear error of law.”

Wang refused to budge, saying the plaintiffs were belatedly raising new arguments or adding to their original ones.

“Had Plaintiffs presented the arguments or specifically and clearly identified the record evidence that they include in their Motion for Reconsideration, the Court’s conclusions might have been different,” she retorted in a Sept. 23 order. “But this Court may not speculate about or craft arguments for Plaintiffs that they did not raise.”

In her decision earlier this year, Wang found several plaintiffs had not shown the use of chemical weapons “seized” them in violation of the Fourth Amendment. The U.S. Supreme Court has recognized a distinction between applying force on someone and terminating their freedom of movement — termed a “seizure by control.” Wang interpreted the plaintiffs’ argument to be that police had seized them by control when deploying teargas and other chemicals.

The plaintiffs, in asking Wang to reconsider, maintained they were also contending the chemical weapons amounted to a physical seizure, as the teargas made it difficult to breathe and had a “physical effect on Plaintiffs’ bodies.”

Wang waved aside that argument, finding the plaintiffs’ attorneys had not made that point originally nor had they shown how simply using chemical agents on protesters, without restricting their movement, is a seizure.

“Based on Plaintiffs’ presentation of their argument, the Court did not misapprehend their theory,” she wrote.

The plaintiffs also believed Wang had incorrectly limited her analysis of Denver’s liability to the question of whether the city was on notice of potential constitutional violations through a pattern of past incidents. The plaintiffs noted the government may be held liable for a constitutional violation — even without prior incidents — if the problem was almost certain to happen in the absence of proper training.

Further, the plaintiffs believed they identified an “official policy” behind officers’ constitutional violations: the city’s practice of “giving unfettered discretion to officers to use their less-lethal weapons as they saw fit.”

Again, Wang was unmoved. She emphasized that she considered, and rejected, the allegations of an “unfettered discretion” policy for being poorly argued. Further, the plaintiffs neglected to argue constitutional violations were almost certain to occur even without a prior pattern.

“To the extent Plaintiffs now attempt to piece together an argument that was clearly not raised,” she wrote, “reconsideration is not warranted to give Plaintiffs a second chance to assert a clearer theory.”

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