The Denver-based federal appeals court decided on Monday that the city of Aurora cannot be held liable for an officer’s attack on a woman while he was serving a suspension for shooting a different person.

Wyoma Martinez filed suit against Officer Douglas Harroun and the city after Harroun used force against Martinez at her apartment complex in January 2023 while he was on leave. Arapahoe County prosecutors charged him with assault by strangulation, but he pleaded guilty to a lesser charge.

Martinez lodged claims against Harroun for excessive force, while alleging Aurora’s policies for officers who are on administrative leave were the driving force behind Harroun’s unconstitutional conduct.

Although a trial judge declined to dismiss Martinez’s claim against the city, the U.S. Court of Appeals for the 10th Circuit saw differently. A three-judge panel noted Aurora could only be held liable if Harroun was acting “under color of state law.” But the city had placed Harroun on leave and directed him not to take “any action” as a police officer.

“Ms. Martinez has plausibly pleaded only that Officer Harroun believed he had authority to engage in his specific conduct during the incident,” wrote Judge Veronica S. Rossman in the April 27 opinion. “But Ms. Martinez has failed to plausibly plead Officer Harroun had actual authority.”

The court’s reasoning also appeared to apply to Martinez’s constitutional claims against Harroun. His attorney declined to comment and Martinez’s lawyer did not respond to a request for comment.

Martinez’s lawsuit alleged she was walking her dog near her building when Harroun “aggressively approached” her in his vehicle. Martinez, who was moving slowly due to the ice and her physical disability, inquired what Harroun was doing.

Harroun allegedly exited his vehicle and told her, “I’m a cop.” He continued to scream at Martinez and she allegedly attempted to end the confrontation. Martinez told Harroun she had pepper spray on her, prompting Harroun to allegedly slam her to the ground and punch her in the face.

Harroun told Martinez she was under arrest for “assaulting a peace officer.” Witnesses called 911 and Aurora police responded. After learning Harroun was also an Aurora officer, police called in the Arapahoe County Sherriff’s Office to take charge.

At the time of the encounter, Harroun was on administrative leave for shooting a man in the leg a few weeks prior. Harroun had been instructed not to take “any action as a sworn police officer” while he was on leave, but he was allowed to retain his badge.

Martinez — whose injuries included impaired vision, exacerbation of her existing condition, and cognitive dysfunction — alleged Aurora’s policies, lack of training, and decision to hire Harroun despite his “red flags” were to blame for his conduct. Among other things, Martinez argued Aurora trained its officers they were “never off-duty,” with no clear exception for those on administrative leave.

Aurora sought to dismiss itself from the lawsuit, arguing it could not be held liable because Harroun’s conduct was a “purely personal pursuit” without governmental authority.

U.S. District Court Judge Charlotte N. Sweeney disagreed. She believed Martinez had credibly alleged Aurora had given him the impression he was empowered to use force against Martinez even while on leave.

“While he had no actual authority to act as a police officer,” Sweeney wrote, “both he and Ms. Martinez plausibly subjectively believed that he was acting on that authority.”

Aurora quickly asked Sweeney to reconsider, drawing her attention to a U.S. Supreme Court decision issued several months earlier. In Lindke v. Freed, the justices analyzed whether a city official could be held liable for deleting comments and blocking a user from his Facebook page on which he posted both personal and governmental content. The Supreme Court decided the conduct could amount to a First Amendment violation if the official “possessed actual authority” to speak on behalf of the government.

Sweeney stuck by her decision. However, without explanation, she now wrote that Martinez had alleged Harroun acted with actual authority under state law. Sweeney cited the fact that Harroun had kept his badge and the “ambiguity of the off-duty policy” in support of her new rationale.

During oral arguments, the 10th Circuit panel focused on whether Harroun had actual police authority at the time he attacked Martinez.

“He identifies himself as a police officer. He tells her she’s under arrest. He gives her his badge number,” said Judge Carolyn B. McHugh. “It seems to me like he is operating under color of state law.”

“Wouldn’t it have been more clear that he had been stripped of his duties as a sworn officer if his badge and his gun had been taken away?” asked Judge Joel M. Carson III.

“Actual authority was stripped from him through that leave order, and he was told about it and he signed it,” responded attorney Hollie R. Birkholz for the city.

Ultimately, the panel agreed that the Supreme Court’s requirement for “actual authority” meant Aurora was not liable for Harroun’s actions after the city placed him on leave.

“That broad revocation of authority rendered objectively unreasonable Officer Harroun’s belief he could use the badge as he did,” Rossman wrote.

The case is Martinez v. City of Aurora, Colorado et al.