A federal judge concluded last week that a jury will need to resolve whether two Fort Collins police officers violated a man’s constitutional rights by using excessive force after he refused to accept a citation.

In a Jan. 21 order, U.S. District Court Judge Charlotte N. Sweeney analyzed the severity of plaintiff Andru Kulas’ alleged offenses, whether he was an immediate threat to the officers’ safety, and whether he resisted arrest. While a jury might view Kulas as posing a danger when he touched the hand of one officer, Sweeney decided the evidence did not favor the defendants’ argument that force was justified.

“Defendants’ characterization of Plaintiff’s supposed ‘threat’ does not overcome what the Officer Defendants’ body cam footage plainly shows,” she wrote.

Body-worn cameras captured the entirety of Kulas’ interaction with Officer Avery Hanzlicek and then-Officer Kevin Park just before 2 a.m. on Aug. 29, 2021. The officers responded to a report that Kulas was one of multiple people trespassing on the roof of a bar.

Kulas, holding a burrito and displaying signs of intoxication, approached the officers as Hanzlicek was writing a trespassing citation. Park directed Kulas to stand back, prompting Kulas to speak belligerently to the officers.

“You can’t talk to me man-to-man with a burrito in my hand?” Kulas asked, alleging that three men pushed down a woman who was speaking nearby to other officers.

Park again directed Kulas to back away. He complied while still talking to the officers about the alleged assault on the woman. Hanzlicek asked for Kulas’ phone number, which he declined to give.

After Kulas said he “totally understand(s) where you guys are coming from,” Hanzlicek informed Kulas that he was receiving a citation. Kulas became incredulous and declined to sign the paperwork. He told the officers they could keep his identification card and refused to take the citation.

Park warned Kulas that if he did not take it, “there’s gonna be a warrant for your arrest when you don’t show up in court.” Kulas responded he would show up because he knew an attorney.

Park started to stuff the citation into Kulas’ bent elbow, prompting Kulas to back up to a bank building. Park followed him, still trying to give Kulas the paper. Kulas used his arm to swat Park’s hand, after which Park grabbed him.

“Are you serious right now?” Kulas asked as the men went to the ground.

The officers repeatedly told Kulas to “stop resisting,” and Kulas repeatedly asked if they were “serious right now.”

After Kulas was subdued face-up on the ground, Park held a bottle of pepper spray close to his face and threatened to use it. Kulas, once more, asked, “Are you serious?” Park sprayed him in the eyes.

The prosecution later dismissed the charges of trespass, obstructing a peace officer and resisting arrest after Kulas completed a “better choices” class and completed community service.

The officer defendants, along with the city of Fort Collins, moved to end Kulas’ federal lawsuit in their favor without a trial, arguing that there was insufficient evidence of excessive force.

“Plaintiff was agitated and fueled by alcohol, but more importantly, he struck Officer Park. From that point forward, Plaintiff repeatedly refused to obey commands, and specifically threatened the Officers,” wrote the defendants’ attorneys. “There is little doubt from the perspective of the Officers that Plaintiff posed a threat.”

Sweeney determined a jury could see things differently.

First, she noted Kulas’ actions amounted only to a misdemeanor and were relatively “harmless.” Second, Kulas was trying to move away from Park when he swatted Park’s hand with one arm, while holding a burrito in the other.

Finally, jurors could “certainly find that Plaintiff was not impermissibly resisting arrest, particularly where Defendant Hanzlicek’s body cam footage shows Plaintiff did not resist the Officer Defendants when they raised his arms and placed him in handcuffs,” she wrote. Moreover, “Plaintiff was completely immobilized when Defendant Park sprayed the OC spray into Plaintiff’s eyes.”

Although the defendants briefly argued they were entitled to qualified immunity, which shields government employees from civil lawsuits unless they violate a person’s clear legal rights, Sweeney determined their argument was so meager as to be insufficient.

At the same time, Sweeney sided with the defendants on Kulas’ unlawful arrest claims and his claim that the city itself was liable for his injuries. She did, however, permit Kulas’ failure-to-intervene claim against Hanzlicek to proceed in connection with Park’s alleged excessive force.

Sweeney has scheduled a jury trial for July.

The case is Kulas v. City of Fort Collins et al.