Colorado’s second-highest court ruled on Thursday that regardless of whether a plaintiff could later show Denver’s ordinance was unconstitutional, arresting officers were acting with probable cause at the time and could not be held liable.

A three-judge panel for the Court of Appeals pointed to a 1979 decision of the U.S. Supreme Court that indicated if a law is not “so grossly and flagrantly unconstitutional” that a typical person could recognize it, police will act constitutionality when they arrest someone for violating the law.

Therefore, wrote Judge Matthew D. Grove, a jury was permitted to conclude that police did not violate Isabelle Bullock’s rights because they had probable cause to arrest Bullock under a vague Denver weapons ordinance.

“In sum, the constitutionality of Bullock’s arrest did not depend on the constitutionality of the ordinances that Bullock was charged with violating,” he wrote in a Jan. 16 opinion. “Thus, the correct question at the heart of this appeal is whether — under the ordinances as they existed at the time of Bullock’s arrest — the jury could reasonably find that Bullock’s arrest was supported by probable cause. Because it did, Bullock’s individual rights were not violated.”

Bullock sued three Denver officers pursuant to Senate Bill 217, which lawmakers enacted in 2020 in the wake of protests that erupted over the death of George Floyd at the hands of Minneapolis police. Although federal law has long enabled plaintiffs to sue state officials for violations of their rights under the U.S. Constitution, SB 217 created such a mechanism for violations of rights under the Colorado Constitution.

On Aug. 22, 2020, Denver police learned of a planned protest outside law enforcement headquarters. Their alleged instructions were to arrest participants. One officer spotted people holding helmets and shields near a Jeep parked close to headquarters. Bullock, holding a baseball bat, ran to the Jeep and got in.

The officer’s supervisor told him to pull over the Jeep and arrest the occupants. Three officers subsequently held Bullock and the other occupants for 40 minutes until they could be transported to jail.

City prosecutors initially charged Bullock under the ordinance making it unlawful to possess a “dangerous or deadly weapon” for use against crowd control tactics. Prosecutors then replaced it with an alleged violation of the ordinance forbidding anyone to “carry, use or wear” a series of specific objects “or any other dangerous or deadly weapon.”

After a hearing, County Court Judge Chelsea Malone took issue with the “catchall clause” sweeping in other, unspecified weapons as illegal. She noted “any item can cause serious bodily injury” and, as for Bullock, a baseball bat did not meet the definition of dangerous. Therefore, Malone concluded police did not have probable cause to arrest Bullock. Prosecutors subsequently dismissed the charges.

Bullock then sued the officers pursuant to SB 217, alleging an unlawful arrest and search. District Court Judge David H. Goldberg ruled the municipal ordinance was constitutional but otherwise sent the case to a jury for a civil trial. The jury was instructed to side with the officers if there was probable cause to arrest Bullock. The jury returned a verdict in the officers’ favor.

On appeal, Bullock contended Goldberg was mistaken to find Denver’s weapons ordinance constitutional without adhering to Malone’s previous interpretation. But the appellate panel disagreed.

Grove explained that an arrest under an unconstitutional law does not mean the arrest is unconstitutional. He cited the Supreme Court’s 1979 decision of Michigan v. DeFillippo. By 6-3, the justices concluded a “prudent officer,” when deciding if probable cause of a crime exists, “should not have been required to anticipate that a court would later hold the ordinance unconstitutional.”

“In other words, Bullock cannot establish the defendants’ liability merely by showing that the ordinances in question were unconstitutionally vague,” Grove wrote. “Even if they were, Bullock’s arrest was valid so long as it was supported by probable cause — a factual question that only the jury could resolve.”

He also rejected a suggestion from Bullock’s attorney that the city, in arguing the officer defendants were relying on the ordinance to make their arrests, was attempting to shield them with a judicial doctrine known as qualified immunity. In federal cases, qualified immunity only allows government employees to face civil lawsuits when they violate a person’s clearly established legal rights, as recognized through prior court decisions.

Colorado lawmakers deliberately rejected qualified immunity in the state’s parallel law.

David Lane, a civil rights attorney, said the appellate panel “squeezes this opinion into a tight little window.” A finding that the officers had probable cause to arrest Bullock under an ordinance that had no obvious constitutional problem, he said, was not equivalent to qualified immunity’s broad shield.

“I’m not seeing this as the death of the Colorado civil rights statute’s ban on qualified immunity, given the narrow holding here,” Lane added.

The case is Bullock v. Brooks et al.