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Packard et Duran v. Budaj, Serrant, McNamee, et City of Aurora
Officers David McNamee and Cory Budaj, as well as Sergeant Patricio Serrant appealed the district court’s decision to deny the officers qualified immunity relating to the events on May 31, 2020, that led to the injuries of Zachary Packard and Johnathen Duran.
On the night of May 31, 2020, both Packard and Duran were attending protests in reaction to George Floyd’s death in Minneapolis. Packard was protesting near downtown Denver, and was hit in the head with a beanbag round fired from a shotgun after he kicked a tear gas canister thrown by police back in the direction of the police officers. The beanbag round knocked Packard unconscious and caused major injuries.
At nearly the same time that Packard kicked the gas canister, Serrant told his officers “if they start kicking that shit, go ahead and frickin’ hit ‘em.” One of the officers on Serrant’s line was McNamee, who fired several bean bag rounds at the time that Packard was injured. Both parties dispute whether McNamee was the officer who shot Packard.
Based on the evidence of the incident, the district court ruled that the kicking of the gas canister did not pose an immediate threat to the officers, because “the officers were equipped with gas masks that protected them from any gas from that container,” the opinion noted.
Around 30 minutes after this incident, Duran was shot in the groin with a foam baton round, fired by an Aurora Police Officer. Budaj is alleged to have fired the round that hit Duran, but it’s disputed whether it was Budaj who fired the shot that injured Duran.
When Duran was shot, he was wearing a hard hat with the word “media” on it, talking with an acquaintance and filming the protest. Based on the evidence submitted and construed in the light most favorable to Packard and Duran, the district court concluded Duran “was in a crowd of protesters, but . . . did not pose a threat to the safety of anyone, police or otherwise.”
The district court denied the officers qualified immunity in both of these cases. The court held that “[t]he law is clearly established that an officer cannot shoot a protester with . . . less-lethal munitions when that protester is committing no crime more serious than a misdemeanor, not threatening anyone, and not attempting to flee.”
The court concluded neither Packard nor Duran was committing a crime, posing a threat or attempting to flee.
The defendants challenged the district court’s conclusions at both prongs of the qualified immunity inquiry. They maintain their conduct under the circumstances was “objectively reasonable,” and therefore could not violate constitutional rights. And they argued “neither Buck nor Fogarty even come close to clearly establishing the law” in the context here.
When reviewing the district court decision, the 10th Circuit Court of Appeals found the district court didn’t err in concluding a jury could find Packard and Duran established a violation of their rights.
The court then reviewed the three factors laid out by the U.S. Supreme Court’s 1989 decision in Graham v. Connor. The court found each Graham factor weighed in favor of the defendants, and its review of the record failed to show anything to blatantly contradict the district court’s factual findings. Thus the court agreed that a reasonable jury could find the defendants’ use of force against Duran and Packard was unconstitutionally excessive.
The court was also bound by the district court’s inference and facts supporting said inference that “Officer McNamee shot Mr. Packard intentionally, and Officer Budaj shot Mr. Duran intentionally.” Based on this finding, the court rejected the defendants’ suggestion that Packard and Duran were simply unintended victims of an effort to disperse protesters.
The court also agreed with the decisions found in both the 10th Circuit’s 2008 Fogarty v. Gallegos and Buck v. City of Albuquerque cases, that an officer “cannot shoot a protester with pepper balls or other less-lethal munitions when that protester is committing no crime more serious than a misdemeanor, not threatening anyone, and not attempting to flee.” The court found these cases were sufficient to make “clear to a reasonable officer that his conduct was unlawful” under these specific circumstances.
The court further declined to displace the district court’s decision that a reasonable jury could find the shootings of Packard and Duran “intentional,” rejecting the defendant’s suggestion that the plaintiffs were accidentally shot due to their proximity to others in the protest.
As a result of the evaluation, the court affirmed the order of the district court denying summary judgment to Serrant, McNamee and Budaj.
The court also dismissed the portion of the appeal relating to the district court’s denial of summary judgment to the City of Aurora for lack of appellate jurisdiction, because the court affirmed the district court’s conclusion that a reasonable jury could find Packard’s and Duran’s constitutional rights were violated.
This case was remanded for further proceedings.