The Colorado-based federal appeals court revived a man’s claims against Denver on Friday after concluding a trial judge resolved the case in the city’s favor without analyzing two of the three instances of alleged excessive force and other constitutional violations.

For the past six years, plaintiffs have litigated several lawsuits arising from the demonstrations that began in May 2020. At the time, protesters in Denver and across the world took to the streets in response to the police killing of George Floyd in Minneapolis. Law enforcement used chemicals, projectiles and other force against them.

Michael Driscoll went downtown on May 30 and 31. At the intersection of Lincoln Street and Colfax Ave., police deployed pepper spray and threw a tear gas canister at him. Around Clarkson Street and Colfax, police threw a rubber ball grenade at Driscoll and shot him with a projectile. Finally, at 13th Ave. and Cherokee Street, outside the police administration building, an officer shot Driscoll in the face with a munition, causing severe injuries.

Driscoll sued for excessive force and violations of his First Amendment and due process rights. After several individual defendants were dismissed, Denver itself moved to end the case in its favor without a trial.

In a March 2025 order, U.S. District Court Judge Philip A. Brimmer sided with the city. Focusing on the 13th and Cherokee encounter, Brimmer determined Driscoll did not provide sufficient evidence that a Denver officer — as opposed to Jefferson County law enforcement operating under its own policies to aid Denver — shot Driscoll.

“At most, Mr. Driscoll’s evidence suggests that Denver police officers were present and that either a Jeffco SWAT officer or a Denver police officer fired the projectile that injured him. However, this is insufficient for Mr. Driscoll’s claims against Denver to proceed based on a theory that he was injured by a Denver police officer,” Brimmer wrote.

Driscoll appealed to the U.S. Court of Appeals for the 10th Circuit, arguing the evidence “demonstrates to a near-certainty” that a Denver officer shot him at 13th and Cherokee. Moreover, Brimmer had overlooked Driscoll’s claims based on police conduct at the other two locations.

“Even if the district court were correct that Plaintiff had provided no evidence of causation as to the 13th and Cherokee Event,” his lawyers wrote, “causation was not at issue as to the other events: the DPD officers who used force on Plaintiff were known, and Denver has not suggested that officers from another jurisdiction may have been present.”

In a July 31 order, a three-judge appellate panel partly agreed with Driscoll.

As for the projectile injury at 13th and Cherokee, wrote Judge Joel M. Carson III, Brimmer was correct to side with the city because a jury would need to “jump through several hoops of speculation and assumption to conclude that a Denver SWAT officer more likely than not shot Plaintiff.”

Carson pointed out that Denver had conceded Brimmer’s failure to engage with potential constitutional violations at the other two locations. While the city argued on appeal that there was no evidence the city’s policies motivated Driscoll’s injuries at those sites, the panel declined to reach that conclusion on its own.

“The district court erred to the extent it concluded that Plaintiff’s insufficient evidence that Denver caused Plaintiff’s face injury at the 13th and Cherokee Event disposed of all his claims against Denver,” wrote Carson.

The panel returned Driscoll’s lawsuit to Brimmer to analyze whether a jury trial was warranted against Denver for constitutional violations based on the Lincoln and Colfax and the Clarkson and Colfax encounters.

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