A Colorado federal judge has largely rejected Denver's bid to end claims that it encouraged police to use excessive force against social justice advocates in 2020, allowing a lawsuit over the police response to move forward.

The group of eight protesters have dropped much of their case, including claims against individual officers, and their case is now primarily about city policies that allegedly fostered violations of their rights.

On Tuesday, U.S. Judge Daniel D. Domenico found there is too much evidence to back up claims about the city's policies to not ask a jury to sort it out.

While Denver had argued its officers' actions weren't widespread enough to be considered customary, Judge Domenico wrote that was a "perfect example" of a disagreement over the record that necessitates a jury. Denver overlooked "significant factual disputes that could lead a reasonable juror to conclude that Denver maintained unconstitutional policies," he said.

The judge noted the plaintiffs have evidence the city's issues regarding use of force against protesters go back to 2011 and police interactions during the "Occupy" protests, with the plaintiffs arguing the city has failed to train officers after being put on notice that their behavior posed a risk of violating protesters' constitutional rights.

And the judge saw plenty that jurors could latch onto to find in favor of the plaintiffs.

"A reasonable jury could conclude that Denver's informal custom was to allow its officers to fire indiscriminately into crowds of peaceful or mostly peaceful protesters with the added protection of anonymity granted by the failure to deploy body-worn cameras or use-of-force reports," Judge Domenico wrote.

"Or the jury might find, on essentially the same evidence, that Denver failed to train its officers despite prior knowledge that its protest response practices created an unreasonable risk of at least some officers taking unconstitutional action," he added.

Further, he noted a jury could reasonably find "such an informal custom, or a failure to train, caused the plaintiffs' injuries and that Denver was deliberately indifferent to the risk of unconstitutional retaliation or use of force."

Similarly, protesters' First Amendment claim of retaliatory police behavior survived dismissal, with Judge Domenico pointing to "ample evidence" of that, such as an officer allegedly shooting a "Black Lives Matter" sign out of the hands of a protester.

While Denver focused on the lack of evidence about what officers were thinking, the judge concluded that wasn't needed — and it wouldn't be right to require it.

"The wealth of indirect evidence here and the surrounding circumstances could lead a jury to conclude that plaintiffs' injuries were substantially motivated by retaliatory intent," Judge Domenico wrote. "Requiring direct evidence of individualized officers' intent would be particularly unjust in this case, where a key argument is that lax requirements for use-of-force reports and body-worn cameras allowed officers to remain anonymous and prevented protesters from identifying them."

Judge Domenico also addressed claims specific to one of the plaintiffs, Cody Schmitt, who alleges his First Amendment and 14th Amendment rights were violated when he was arrested for violating a curfew in place during the protests. Schmitt alleges Denver selectively targeted enforcement of the curfew to trample protesters' speech.

And Schmitt had alleged enough for his equal protection claim to survive, the judge found.

"Plaintiffs' evidence includes text messages, emails and depositions confirming that Denver's policy was to enforce the curfew only against protesters and protest-related activity," Judge Domenico wrote. "This policy was approved by the chief of police and came down the chain of command to officers on the street."

However, Schmitt's Fourth Amendment claim tied to the curfew arrest could not survive, the judge found, since there was probable cause for his arrest as he didn't dispute being out after curfew — and "an arrest does not violate the Fourth Amendment where it is supported by probable cause."

Representatives for the parties did not immediately respond to requests for comment on Thursday.

The protesters are represented by Clifford L. Beem, A. Mark Isley and Danielle C. Beem of Beem & Isley PC and S. Birk Baumgartner of Baumgartner Law LLC.

Denver is represented by Andrew D. Ringel, Katherine N. Hoffman, Edmund M. Kennedy and Alexandria L. Bell of Hall & Evans LLC.

The case is Barbour et al. v. City and County of Denver, case number 1:21-cv-02477, in the U.S. District Court for the District of Colorado. 

--Editing by Philip Shea.