Nunn v. Nestor.
2026 COA 49. No. 25CA0886. Civil Procedure—Special Verdict—General Verdict Accompanied by Answer to Interrogatories—Jury Instructions—Rebuttal Testimony.
June 11, 2026
Nestor was a police officer with the Aurora Police Department. He pulled over Nunn, a young Black man, for not yielding to an emergency vehicle. Nunn gave Nestor his registration but then reached for his waistband to get his driver’s license. Nestor drew his gun, told Nunn to put his hands on his head, and called for backup. More police officers arrived, and when Nunn exited his vehicle, Officer Goetz tackled him to the ground. While Goetz and other officers tried to restrain Nunn, Nestor fired his Taser at Nunn twice. Nunn was arrested and charged with several crimes that were later dismissed. Nunn sued Nestor for excessive force (for holding him at gunpoint and tasing him), unreasonable seizure, failure to intervene in Goetz’s use of excessive force, and an equal protection violation based on racial discrimination. Nestor was found liable for excessive force based on holding Nunn at gunpoint.
On appeal, Nestor argued that the jury’s verdict finding him liable for excessive force but not liable for unreasonable seizure is irreconcilably inconsistent. Nunn asserted that Nestor did not preserve this issue because the jury returned a general verdict with answers to interrogatories under CRCP 49(b), and Nestor did not object before the jury was dismissed. Nestor maintained that the jury returned a special verdict under Rule 49(a), so he could properly object through posttrial motions. Whether a defendant preserved their contention that the verdict is irreconcilably inconsistent depends on the type of verdict the jury returned. If the jury’s decision required that the judge simply enter judgment, it returned a general verdict. But the jury returned a special verdict if the judgment required the court to apply law to facts found by the jury. Here, the jury answered questions and then determined the amount of damages Nunn was entitled to, thus leaving nothing for the court to do but enter judgment. Accordingly, the jury returned a general verdict with special interrogatories, so Nestor’s challenge is unpreserved.
Nestor also contended that the unreasonable seizure instructions were erroneous because they didn’t specify the “discrete” use of force that Nunn’s alleged seizure was based on; didn’t mention that for a seizure based on a show of authority, the suspect must have in fact submitted to the show of authority; and were vague and confusing. Assuming without deciding that the unreasonable seizure instructions were erroneous, such errors were harmless because the jury returned a verdict in Nestor’s favor on the unreasonable seizure claim.
Lastly, Nestor asserted that the district court abused its discretion by excluding his rebuttal expert on the final day of trial. However, even if the district court abused its discretion by not explicitly conducting a harm and proportionality analysis before excluding Nestor’s rebuttal expert, its failure to do so was harmless because Nestor failed to explain how the expert’s testimony would have substantially influenced the case outcome.
The judgment was affirmed.