The Colorado-based federal appeals court dismissed a lawsuit last week from two men who were arrested as suspects in a downtown Denver shooting when they instead appeared to be the targets.

Trevor Puller and Deandre Hutchinson alleged that they were driving in Lower Downtown at around 2 a.m. in April 2021 when an unidentified man began shooting at their car. The plaintiffs tried to escape the gunfire by pulling into an alley. A nearby police officer blocked them from leaving and handcuffed them.

Four hours later, an officer submitted a probable cause statement in support of the plaintiffs’ arrest, relying on what he learned during the investigation and from “HALO video surveillance,” referring to the police department’s camera network.

Prosecutors charged the plaintiffs with 19 counts of attempted murder. However, at a court hearing several months later, the district attorney’s office dismissed the charges, allegedly based upon the events shown in the HALO footage. Dismissal documents provided to Colorado Politics showed the prosecution believed there was “strong video evidence,” but no reasonable likelihood of conviction at trial.

The plaintiffs sued Officers Nicholas Greco and Nicodemus Werth, who allegedly fabricated the probable cause statements and related documents “to send two young men they falsely labeled as gang members to prison for the rest of their lives.” Puller and Hutchinson asserted claims of malicious prosecution and wrongful imprisonment.

The defendants moved to dismiss by invoking qualified immunity, which is a judicially created doctrine shielding government officials from civil lawsuits unless they clearly violate a person’s legal rights.

In December 2024, U.S. District Court Judge Gordon P. Gallagher concluded the plaintiffs had not identified a prior court case that deemed similar conduct by police officers unconstitutional. He added that the plaintiffs had not described how the HALO video would have shown them to be innocent.

“Even accepting as true Plaintiffs account of what the HALO video shows, it does not show that they did not shoot at anyone that night, nor do Plaintiffs allege that they did not shoot at anyone,” Gallagher wrote.

On appeal to the U.S. Court of Appeals for the 10th Circuit, the plaintiffs maintained that they were wrongly pursued as suspects.

“None of the evidence known to the (officers) at the time of the writing, reviewing, and filing of the probable cause statement could reasonably support probable cause for attempted first degree murder,” wrote attorney S. Birk Baumgartner.

“It looks like a drive-by shooting,” responded Assistant City Attorney Andres Alers. “Taken together, a reasonably cautious person would suspect (the plaintiffs) had fired into the crowd and tried to escape police. Failing to make an arrest against that evidence would be a disservice to the community. The prudent course is to arrest and investigate, which is exactly what happened.”

A three-judge 10th Circuit panel agreed that Gallagher correctly granted qualified immunity to the defendants. Specifically, wrote Judge Veronica S. Rossman, the officers had “arguable probable cause” to arrest Puller and Hutchinson for the shooting.

The HALO video “is not nearly as clear or exonerating as Plaintiffs make it out to be,” she wrote in an April 24 order.

Rossman described the footage as showing someone in the plaintiffs’ car leaning out of the window toward a crowd, and a man on the sidewalk raising his hand toward the car. People then began ducking or falling to the ground, and the plaintiffs’ car accelerated into the alley.

A reasonable person, continued Rossman, could conclude someone in the plaintiffs’ car was involved in a drive-by shooting.

“Plaintiffs have not identified authority clearly establishing that Defendants lacked arguable probable cause when they relied on an ambiguous video potentially inculpating Plaintiffs in a crime,” she wrote, “even though Defendants’ interpretation was mistaken and the video ultimately did not support prosecution.”

The case is Puller et al. v. Greco et al.