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A federal judge has refused to let a Fort Collins officer's appeal halt the excessive force lawsuit against him, and has labeled the appeal as "frivolous" to keep the case heading to trial.

In July, U.S. District Court Judge William J. Martínez determined Officer Randall Klamser did not deserve qualified immunity for using a "rowing arm takedown" against 22-year-old Michaella Lynn Surat. That decision put the case on track for a jury to evaluate Klamser's actions on the night of April 6, 2017 outside Bondi Beach Bar in downtown Fort Collins.

But Klamser initiated an appeal of Martínez's decision to the U.S. Court of Appeals for the 10th Circuit, prompting Surat's attorneys to ask the judge to label the appeal frivolous. Although trial court judges normally lose jurisdiction over a case once an appeal is filed, Martínez elected to regain control of the case on Thursday, doubling down on his original order.

The appeal, the judge said, would necessarily involve factual questions that are for the jury to evaluate, and not for a court.

It is "a thinly-veiled and poorly-reasoned attempt to thwart the Court’s clear determination that disputed issues of fact preclude a grant of summary judgment in his favor," Martínez wrote of Klamser's appeal in a September 2 order.

The judge's move now means the lawsuit will proceed on two tracks: it will continue to trial in the district court and also have an appeal pending at the 10th Circuit.

Andy McNulty, an attorney with Killmer, Lane & Newman who represents Surat, praised Martínez's order, saying that government defendants appeal qualified immunity decisions and prolong cases, to the disadvantage of plaintiffs.

"Judges in this district have begun to recognize the injustice and bad-faith delays imposed by qualified immunity and are starting to take action against it, and that's a good thing for folks who have had their rights violated by police," he said.

Qualified immunity is a judicial doctrine shielding government employees from civil liability unless they violate a person's clearly-established legal rights. While it can protect workers who are acting in good faith from being sued, critics contend qualified immunity means police are often not held accountable for wrongdoing.

McNulty identified two other federal lawsuits in recent years where judges had deemed an appeal of a qualified immunity decision frivolous. In one of those decisions, with Martinez as the trial judge, the 10th Circuit dismissed the appeal after determining it had no jurisdiction to weigh in on the factual disputes of the case.

The interaction between Surat and Klamser began when police responded to reports of an altercation involving her then-boyfriend.

Bystander video of Klamser's takedown of Surat went viral, and a Larimer County jury ultimately found Surat guilty of obstructing a peace officer and resisting arrest. But the incident reportedly caused Surat a concussion, contusions to her face, bruising and a cervical spine strain, and Surat filed a federal excessive force lawsuit.

Klamser argued he was justified in slamming Surat chin-first into the ground because she was acting belligerently.

"Given Plaintiff’s level of resistance and anger, and because Officer Klamser expected Plaintiff to try and hit him again, he used a rowing arm takedown to take Plaintiff down to the ground and place her under arrest," wrote attorneys for Klamser. "Officer Klamser determined the rowing arm take down was the only thing he had left to use, because he did not want to use any impact weapons or tools."

Surat maintained that she was concerned for her boyfriend, who was talking with an officer, and that Klamser restrained her for no reason prior to slamming her to the ground.

Martínez declined to side with Klamser, noting Surat was 115 pounds and unarmed, and Klamser was six feet tall and approximately 200 pounds. A jury could reasonably determine Surat was not a threat to him, and the judge let the case proceed to trial on that basis.

After Klamser appealed to the 10th Circuit, his lawyers insisted the appeal was based on the legal matter of whether their client violated Surat's clearly-established constitutional rights, and not a factual question of what happened on that night.

"Officer Klamser argued no clearly established law existed which, as of April 6, 2017, made it a constitutional violation to use a rowing arm takedown on a belligerent, uncooperative, and intoxicated arrestee who interfered with an officer’s interview of a suspect, refused his directions to stay away, struck him multiple times, subjected him to physical force or violence and put him at substantial risk of bodily injury," his lawyers wrote.

But Martínez found such assertions about Surat's risk to Klamser to be exactly the type of conclusions a jury should reach based on their view of the evidence.

"Thus, as the Court determined, clear questions of disputed fact exist as to whether Surat posed an immediate threat to Klamser’s safety," he wrote in labeling the appeal as frivolous.

The court indicated the trial will last for five days, but no date has been set. Attorneys for Klamser did not respond to a request for comment about Martínez's order.

McNulty said he plans to ask the 10th Circuit to dismiss Klamser's appeal, but that the appellate court could potentially stop the trial from taking place while it decides the appeal.

The case is Surat v. Klamser et al.

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