A federal judge has refused to dismiss the legal claims against the city of Pueblo for failing to train or discipline an allegedly “reckless” officer who shot two vehicle occupants, killing the driver.

U.S. District Court Senior Judge Christine M. Arguello ruled last week that Sarah Naranjo, the injured passenger, and Marie Adorno, the mother of deceased driver Robert Anthony Avila, had plausibly claimed the city was on notice about the risk of Officer Brandon Victor using excessive force in his interactions with the public.

“Plaintiffs include extensive allegations of statements from other officers indicating that Defendant Victor’s erratic behavior and violent history were well known by members of the Pueblo Police Department,” Arguello wrote in her Sept. 2 order.

An attorney for Pueblo declined to comment. Lawyers for the plaintiffs and Victor did not immediately respond to a request for comment.

The lawsuit, filed in October 2021, stemmed from a brief but deadly encounter near 4th Street and Reading Ave. Around 2 a.m. on May 15, 2020, Victor noticed a green Honda stopped and idling on Reading Ave. He learned the car was stolen and reportedly told police dispatch he was going to approach. Dispatch indicated additional officers would respond.

Instead of waiting, Victor exited his vehicle with his gun drawn. The windows on the Honda were down and Victor saw Avila in the driver seat and Naranjo on the passenger side, both of whom were sleeping. 

Victor then allegedly reached for the driver door handle. Avila woke up, saw Victor and immediately put the Honda in drive. Victor attempted to grab Avila, but the car drifted forward and Victor shot multiple times into Avila and Naranjo.

Victor maintained his hand was caught under Avila’s arm and the Honda was “pulling him along” when he decided to fire. The plaintiffs insisted that story was fabricated and Victor was “voluntarily running” alongside the Honda. Victor had a body-worn camera at the time, but it was not turned on.

While the lawsuit accused Victor of using excessive force, it advanced a much broader set of allegations against Pueblo for its alleged tolerance of Victor’s reportedly problematic behavior on the job.

In July 2019, Victor shot and killed Patrick Martinez inside a home for tossing a knife at police. Then in March 2020 — two months before the Reading Ave. shooting — Victor also approached a stolen vehicle, reached inside and began firing his gun when the driver started moving. In both instances, District Attorney Jeff Chostner found Victor’s actions were justified.

The plaintiffs also quoted liberally from other officers’ critical comments of Victor in an internal affairs investigation. One officer allegedly said Victor was “reckless” by approaching the Honda without backup. He also recalled Victor “proudly” showing off footage of one of his previous killings.

A second officer remembered Victor telling him, threateningly, “I’ve already shot two people. I don’t have a problem making you my third.”

“Defendant Victor’s history has been ignored and tolerated despite officer’s (sic) personal complaints and concerns because the Pueblo Police Department has fully embraced the ‘blue wall of silence’,” the plaintiffs’ lawyers wrote.

Pueblo moved to dismiss the claims against the city. In civil rights lawsuits, municipalities can be held liable if their own policies or customs caused an employee to violate a person’s rights. Pueblo argued the plaintiffs had not shown a pattern of similar excessive force by the city’s police officers and, even if Victor’s own March 2020 shooting was a similar incident, he acted reasonably.

On Aug. 12, U.S. Magistrate Judge Maritza Dominguez Braswell issued her analysis of the case. She viewed dashboard camera footage of the incident, although the video did not capture Victor shooting Avila or Naranjo. For purposes of the motion to dismiss, Dominguez Braswell noted the video did not help the city.

“Even if the Court agreed that the dashcam video footage irrefutably demonstrates that Mr. Avila was trapped without the ability to pull away from the car, there would still be a question as to whether Defendant Victor unreasonably created the need to use deadly force,” she wrote.

The plaintiffs had alleged Victor created the circumstances that led to his excessive force by approaching the Honda without backup and with a prideful attitude toward his previous shootings. Therefore, Dominguez Braswell believed it was plausible Victor had committed a constitutional violation which implicated the city’s own liability.

She concluded the lawsuit should be allowed to proceed based on its claims that Pueblo had failed to train its officers properly on use of deadly force, and that it was on notice about Victor’s pattern of behavior.

The city objected to the magistrate judge’s recommendation. Pueblo insisted it could not have been aware it needed to discipline Victor because none of his prior shootings had resulted in a lawsuit and no officer had yet come forward with concerns about Victor’s behavior.

“The City does not have an obligation to discipline an officer unless the City knows that the officer committed a wrongdoing of any kind,” wrote attorney Jonathan M. Abramson.

Arguello, the district judge, waved aside the city’s concerns.

“Pueblo provides no legal authority that any of these specific allegations are required in order for a Court to find that a complaint plausibly alleges that a city was on notice of prior wrongdoing by a police officer,” she wrote, endorsing Dominguez Braswell’s recommendation.

Before Arguello and Dominguez Braswell had weighed in on the city’s motion, Victor filed his own request to dismiss the case. He argued it is not a constitutional violation for an officer to use deadly force on a fleeing vehicle that poses a threat. Victor believed he was entitled to qualified immunity, which shields government officials from civil liability unless they violate a person’s clearly-established legal rights.

While Dominguez Braswell concluded the plaintiffs plausibly alleged Victor had committed a constitutional violation in her analysis of the city’s motion, she did not evaluate whether courts have clearly established Victor’s conduct as unreasonable. Such a finding would entitle Victor to qualified immunity, even though the city still has to defend its own actions in court. His motion is currently pending before the trial court.

KRDO reported earlier this year that Victor resigned from the Pueblo Police Department. He is now employed at the Teller County Sheriff’s Office.

The case is Naranjo et al. v. Victor et al.