Packard v. City and County of Denver.
No. 24-1367. 4/21/2026. D.Colo. Judge Ebel. Police Conduct—Protests—Use of Less-Lethal Munitions—Unconstitutional Use of Force—City’s Liability for Officers’ Conduct.
April 21, 2026
Following George Floyd’s death, thousands protested in Denver for several consecutive days, with demonstrations lasting up to 16 hours a day. Some protestors assaulted police officers, looted, and destroyed property, while some protested peacefully. Denver Police Department (DPD) officers and officers from other jurisdictions who were helping DPD (collectively, officers) used less-lethal munitions (tear gas, pepper spray, lead-filled Kevlar bags, etc.) against both peaceful and violent protestors. Officers also sprayed tear gas into cars driving down the street, deployed chemical munitions into an apartment building entrance, and threw less-lethal grenades at protestors. As relevant here, Packard was in a group of peaceful protesters when police, without warning or cause, threw a tear gas canister toward the protestors. When Packard kicked the canister away from the group, police shot him in the head with a lead-filled Kevlar bag, fracturing his skull, breaking his neck, and rendering him unconscious. Protester Deras similarly kicked away a tear gas canister that had been thrown at him and other protestors. Officers shot him with Kevlar shotgun rounds, hitting him in the head, back, and hand. These actions were done pursuant to DPD Command Post’s direction to officers to “shoot up” the crowd for “traffic control.”
Twelve plaintiffs sued the City and County of Denver (Denver) and its officers under 42 USC § 1983, alleging that officers injured them while they peacefully protested. Plaintiffs claimed First and Fourth Amendment violations based on the unjustifiable use of less-lethal munitions against them. They also alleged that Denver was liable for its officers violating plaintiffs’ constitutional rights under its official policies, or practices and customs; its failure to train its officers; and its ratification of unconstitutional conduct. A jury found that individual officers had violated each plaintiff’s First and/or Fourth Amendment rights, and that Denver was liable for the unconstitutional force officers used against the protestors. The jury awarded each plaintiff compensatory damages. Following the verdict, the district court denied Denver’s post-verdict motions for judgment as a matter of law in its favor or, alternatively, for a new trial or remittitur.
On appeal, Denver argued that the district court erred in instructing jurors on First Amendment violations, contending that the court should have used the phrase “substantially motivating” instead of “substantial or motivating.” But even if this was error, it would be harmless, because the court’s entire instruction ensured that the jury had to find that a motivating factor was “significant” before it could support finding a First Amendment violation.
Denver also argued that the district court erred by not instructing jurors that they had to find, for each theory of municipal liability, that it acted with deliberate indifference. The Tenth Circuit did not address this argument because the district court included Denver’s deliberate indifference as an element when it instructed on plaintiffs’ failure-to-train claim, and the damages award against Denver can be sustained on that basis alone.
Denver further contended that the district court erred in its failure-to-train instruction because that jury instruction sometimes combined the term “supervision” with the term “train,” so jurors may have found Denver liable on a failure-to-supervise theory without finding that Denver acted with deliberate indifference. The failure-to-train instruction combined a failure-to-train and a failure-to-supervise theory of municipal liability, both of which require proof that Denver acted with deliberate indifference. However, a plain reading of the jury instruction along with the jury’s clear expression in filling out the verdict form, shows that the jury was required to find, and did find, that Denver acted with deliberate indifference in training its officers.
Denver additionally asserted that the district court abused its discretion by allowing the city’s former independent monitor, Mitchell, to testify about an investigation he conducted on DPD’s response during the George Floyd protests. Mitchell’s testimony was within the bounds permitted by a lay witness under Fed. R. Evid. 701; it did not violate Fed. R. Evid. 407; and it was not inadmissible under Fed. R. Evid. 403. Accordingly, the district court did not abuse its discretion in admitting Mitchell’s testimony.
Denver also argued that the district court erred in rejecting its Fed. R. Civ. P. 50(b) motion for judgment as a matter of law, which asserted that insufficient evidence supported the jury’s finding that Denver was liable for its officers violating plaintiffs’ constitutional rights. Denver contended there was no evidence from which a reasonable jury could have found that Denver acted with deliberate indifference in adopting its policy of failing to train its officers adequately. Here, plaintiffs could prove deliberate indifference by showing either that Denver failed to train its officers adequately (1) where a pattern of similar constitutional violations committed by untrained or undertrained employees existed; or (2) based on a single incident, where the unconstitutional consequences of failing to train are obvious. Plaintiffs presented sufficient evidence from which a reasonable jury could have found for them under either theory, so the court properly denied the motion.
Lastly, Denver asserted that the district court abused its discretion by denying its post-verdict motion for remittitur of the jury’s compensatory damages award. Remittitur is appropriate only when a jury award is so excessive as to shock the judicial conscience and to raise an inference that an improper cause existed for the award. Here, in denying the remittitur motion, the court noted plaintiffs’ testimony on their physical injuries and emotional distress. And additional evidence supported this testimony, including photographs and videos of the force officers used against protesters and the resulting physical injuries. The jury awarded Packard, who suffered the most serious medical injuries, $3 million in compensatory damages; Wedgeworth, $750,000; and the other 10 plaintiffs $1 million each. The district court properly concluded that the jury’s compensatory damages award did not shock the judicial conscience.
The jury’s verdict holding Denver liable for its officers violating plaintiffs’ constitutional rights was affirmed.