A federal judge green-lit a jury trial last week against multiple Fort Collins police officers on claims that they used excessive force on one man who was standing unarmed in his underwear, and retaliated against another man for exercising his First Amendment right to record video.

Several Fort Collins police officers converged late one night on Angel San Roman and Carlos Lopez after suspecting them of being involved in the theft of firearms from a nearby vehicle. San Roman became belligerent and stripped off nearly all of his clothes to demonstrate he had no gun. An officer used a Taser on him anyway.

Lopez kept walking and used his phone to record. Seventeen seconds after an officer contacted him, and immediately after he said he had a right to record, the officer pepper sprayed Lopez.

In an Aug. 6 order, U.S. District Court Judge Charlotte N. Sweeney agreed that a jury must decide whether two officers violated San Roman’s rights by delivering an unwarranted electrical shock, and whether a third officer retaliated against Lopez for exercising his First Amendment rights.

“Despite clearly demonstrating that he had no weapons on him, (Fort Collins) officers moved toward San Roman with their weapons drawn. At the same time, San Roman pulled down his jeans and gym shorts, leaving him only in his underwear, with his pants and shorts around his ankles and his arms in the air,” she wrote. Even if San Roman was profane with the officers, he “undertook extensive efforts to show that he was unarmed — a fact that matters significantly when assessing the immediacy of the threat.”

Late one night in July 2021, a man reported that someone had stolen several guns and other items from his vehicle. He mentioned a potentially suspicious white SUV in the area.

Soon afterward, police received a report of someone possibly racking a shotgun. Sgt. Kyle Bendzsa, who was nearby, also heard the sound and spotted the plaintiffs near a black SUV. Bendzsa allegedly saw them handling long guns, although he did not mention that detail in his post-arrest report.

Multiple officers converged on the area and gave orders to San Roman and Lopez. San Roman yelled profanities at the officers and asked why they were stopping him. He began removing his clothes to demonstrate he had no weapons, eventually standing in just his underwear.

Bendzsa told Cpl. Mindy Nace to “Taser up,” then he instructed officers to “press on.” Nace used her Taser on San Roman, causing him to fall and hit his head. Multiple officers observed him to be unconscious and not breathing.

Lopez kept walking, and Officer Kevin Park confronted him and told him he was under arrest. Lopez, who was recording with his phone, asked why he was under arrest. Park told him to put down the phone, “or force will be used against you.”

Lopez asserted his right to record, after which Park pepper sprayed him. Park took his phone and other officers handcuffed him.

Police reports noted that officers found weapons and other items in the plaintiffs’ vehicle that the theft victim identified as his.

San Roman and Lopez sued the officers for excessive force and also lodged a First Amendment retaliation claim against Park. They named Fort Collins itself as an additional defendant, alleging it failed to train, supervise, and discipline its officers.

The defendants moved to end the case in their favor without a trial. The officers asserted qualified immunity, which is a judicially created doctrine that shields government employees from civil liability unless they violate a person’s constitutional rights as defined through prior court decisions.

Sweeney concluded that a jury could find Nace violated San Roman’s clear constitutional rights by shocking him, and Bendzsa could likewise be liable for directing her to use force.

“Though refusing to follow orders can justify the ‘use of some force,'” she wrote, “other of San Roman’s behaviors show he undertook extensive efforts to demonstrate that he was not armed or a threat to the officers such that any use of force should have been limited. While Defendants attempt to cast San Roman’s behavior as ‘erratic’ and indicative of a threat, viewing the evidence in the light most favorable to Plaintiffs, a reasonable jury could find that San Roman’s actions were anything but.”

Sweeney included screenshots from the officers’ body-worn cameras showing San Roman with no shirt, his arms extended, and his pants around his ankles two seconds before Nace used her Taser.

As for Park, Sweeney determined a jury could find he used excessive force on Lopez. However, in a “somewhat close call,” Sweeney granted qualified immunity to Park after determining no prior court case put him on notice that he would clearly violate Lopez’s rights by pepper spraying him.

On the other hand, Sweeney permitted the retaliation claim to proceed.

“Park testified that ‘one of the reasons’ he used pepper spray on Lopez was because Lopez would not put his phone down,” she wrote. Therefore, “Plaintiffs identify record evidence that could lead a reasonable juror to conclude that Park pepper sprayed Lopez because Lopez was recording their interaction.”

Finally, she found the plaintiffs could not hold Fort Collins liable for its role in any constitutional violations.

Sweeney has scheduled a jury trial to begin in late November.

The case is San Roman et al. v. Nace et al.