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A federal judge has allowed a woman’s claim to go forward against three Denver Police Department employees for negligently burning down her home during a lengthy standoff, but dismissed her allegations that the city unlawfully seized her central Denver home in violation of the Constitution.

“Because Plaintiff has not alleged that the Individual Defendants’ conduct was set in motion or put in place to achieve a seizure of the Residence itself, Plaintiff has not stated a Fourth Amendment claim,” wrote U.S. District Judge William J. Martínez in a Jan. 22 order.

According to plaintiff Mary Quintana’s version of events, Denver police received a call about shots fired around 6th Avenue and Inca Street in Denver on the morning of Jan. 27, 2019. Officers found an ammunition cartridge outside Quintana’s home at 622 Inca Street. They also discovered her son, Joseph Quintana, had a warrant.

Mary Quintana met officers outside her home shortly afterward and gave them permission to enter. Law enforcement found Joseph Quintana in the basement, where he opened fire on the officers. After they retreated, Joseph Quintana continued to fire upon them, hitting another officer.

Dozens of police, including SWAT members, arrived and a standoff ensued. Chief Paul Pazen reportedly authorized the use of chemical weapons on the residence even though, the lawsuit contended, they were specifically for outdoor use.

Two of the defendants, Brent Kohls and Richard Eberharter, allegedly took the chemical agents, including devices known as “burn boxes,” and threw them “randomly...inside the house without any care for placement or whether the boxes would land near flammable materials.”

The house caught fire around 5:30 in the evening. Police subsequently arrested Joseph Quintana, and Mary Quintana was rendered homeless from the destruction to her home.

"Ms. Quintana hasn’t recovered from the loss of her home," said her attorney, Joseph A. Salazar. "Her possessions were destroyed and the city pretty much thumbed its nose at Ms. Quintana."

In January 2020, she filed a lawsuit against the city and individual police personnel for negligence, unlawful seizure of her property under the Fourth Amendment, and Denver’s failure to train and supervise its officers.

Mary Quintana also faulted the Denver Police Department for detaining her in a vehicle for five hours during the operation, not releasing her until nearly 7 p.m.

In response, the defendants provided a statement from a Metro SWAT technician that the deployment of grenades within burn boxes inside of a structure is a “nationwide best practice.” Other than the incident on Inca Street, the technician has “neither personally observed nor heard secondhand of a CS grenade deployed within a burn box causing fire damage to a structure.” Further, defendants argued, the tactic was preferable to reengaging with Joseph Quintana inside the home.

“It may be true that Defendants’ use of flammable grenades was the least dangerous alternative available to DPD to end the armed standoff with J. Quintana,” conceded Martínez. “However, whether the armed standoff justified Defendants’ use of the flammable munitions is not for the Court to decide today.”

The judge elaborated that Mary Quintana had plausibly alleged the officers acted negligently, and that the Colorado Governmental Immunity Act did not shield Eberharter, Kohls and Sgt. Justin Dodge from being sued.

Martínez dismissed the claim related to her five-hour detention, however, saying it did not amount to a clear violation of her rights “in light of the unfolding exigent situation and her status as an witness with pertinent information.”

He also rejected the notion that burning down the home amounted to an unlawful seizure under the Fourth Amendment, explaining that a “reasonable officer” need not determine they would violate the Constitution by damaging property to apprehend a suspect. Finally, Martínez dismissed the claims against the city of Denver, after concluding there was no demonstration that policies or customs were responsible for the violations Mary Quintana alleged.

Salazar characterized the court's grant of qualified immunity to the defendants on multiple claims as an abuse of the doctrine, which serves to shield government employees from liability absent a clear violation of constitutional rights.

"It’s long past time that the Supreme Court or Congress address the abuse," he added. "We are weighing our options concerning the dismissal of her constitutional claims."

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

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