A federal judge concluded last week that a Colorado Springs police officer could not be held liable for shooting a suspect three times after the man menaced two victims with a gun and fled the scene.

Al’morion Germany was involved in an altercation inside Nova nightclub around midnight in June 2024 that spilled onto the street. According to his lawsuit, a man and a woman became aggressive toward Germany. He retreated and pointed a gun at the woman, then slapped her across the face with it and knocked her to the ground.

Germany continued to back away and pointed the gun towards the man, who had followed him.

Surveillance and body-worn cameras captured police officers, who were nearby for an unrelated call, chasing Germany. Officer Benjamin Hengel, who was behind the man when Germany pointed his gun, yelled for Germany to drop the weapon. After rounding a corner, Hengel shot Germany three times, injuring him severely.

Germany then sued Hengel and the city itself for excessive force, seeking at least $7 million in damages.

“It is clearly established that excessive force violates the Constitution,” wrote attorney Steven T. Nolan. “Specifically, it has been clearly established since 1985 that it is unconstitutional to use deadly force to stop a fleeing felon when the officer does not have probable cause to believe the suspect posed a significant threat to a police officer or any other person if not immediately apprehended.”

The defendants moved to dismiss the lawsuit, noting that Germany had pleaded guilty to two counts of felony menacing shortly before filing suit. Hengel asserted qualified immunity, a judicially created doctrine that shields public employees from civil lawsuits unless they violate a person’s clearly established constitutional rights.

“Plaintiff was given numerous orders to drop the handgun in his possession and to stop fleeing. Despite those orders, he continued to flee,” wrote W. Erik Lamphere of the Colorado Springs City Attorney’s Office. “Here, the barrel of Plaintiff’s gun was pointed at another individual and Officer Hengel, who was immediately behind him.”

“Mere possession of a weapon or prior violence cannot automatically create imminence,” countered Nolan. There must be “objective indicators of impending harm emphasizing that threats must be about to occur, including physical cues such as whether the suspect was advancing or approaching the officer; whether the suspect was acting aggressively at the time of the shooting; whether the suspect was making threats; and whether the suspect was acting as a threat. None of these cues exist in this case.”

In an Aug. 20 order, U.S. District Court Judge Charlotte N. Sweeney agreed that Hengel was entitled to qualified immunity, concluding it was not clearly unreasonable to use deadly force after Germany had already used his gun against the victims.

“Moreover, if anything, the clearly established law demonstrates that Defendant Hengel did not violate Plaintiff’s constitutional rights,” she wrote. “Based on Plaintiff’s own allegations, there is no question that Defendant Hengel was responding to Plaintiff’s participation in a crime of a ‘violent nature.’”

Sweeney also dismissed Germany’s excessive force claim against Colorado Springs after finding Germany had not sufficiently alleged that any city policy or practice was behind his injury.

“Indeed, alleging that Defendant Hengel used deadly force to stop a fleeing suspect who he had just witnessed use a firearm to threaten two people and injure one of them does not establish that the City failed to train CSPD officers,” she wrote.

The case is Germany v. City of Colorado Springs et al.