Duran, et al. v. Budaj, et al., No. 22-1365 (10th Cir. 2023)
Annotate this CaseDefendants filed an interlocutory appeal, challenging the district court’s denial of qualified immunity to Officer David McNamee, Officer Cory Budaj, and Sergeant Patricio Serrant. Between May 28 and June 2, 2020, several large protests occurred on Denver streets in reaction to the murder of George Floyd in Minneapolis. On May 30, then-Denver Mayor Michael Hancock declared a state of emergency and imposed a curfew; he also requested assistance from mutual aid police departments, including the Aurora Police Department. At about 9 p.m. on May 31, Plaintiff Zachary Packard was protesting near downtown Denver when a police officer threw a tear gas canister near Packard. Packard kicked the cannister“away from himself and other protesters, in the direction of a line of officers.” Packard kicked the canister about five to ten feet away from himself and other protesters. Critically, this action “did not pose an immediate threat,” the district court concluded, “because officers were equipped with gas masks that protected them from any gas from that container.” Immediately after kicking the canister, Packard was hit in the head with a beanbag round fired from a shotgun; the round knocked him unconscious and caused major injuries. One of the officers on Sergeant Serrant’s line was Defendant Officer McNamee. He fired several beanbag rounds at the time Packard was shot, but the parties disputed whether Officer McNamee was the officer who shot Packard. The district court concluded Plaintiffs raised genuine disputes of material fact as to whether Sergeant Serrant and Officer McNamee were “personally involved in the alleged violation of Mr. Packard’s rights.” The Tenth Circuit Court of Appeals found no reversible error in the district court's judgment and affirmed.
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