A federal lawsuit brought by a Denver woman whose home burned down during a standoff between her son and a police SWAT team appears headed to trial after a judge denied summary judgment on certain claims against the city of Denver and two police officers. 

Mary Quintana claims police officers violated her Fourth Amendment protections against unreasonable searches and seizures and her 14th Amendment protections for due process and excessive force when they threw chemical agents into her house in their attempt to force her son out, one of which eventually caught fire.

According to Quintana’s version of events, Denver police received a call about shots fired around 6th Avenue and Inca Street in Denver on the morning of Jan. 27, 2019. Officers found an ammunition cartridge outside Quintana’s home at 622 Inca St. They also discovered her son, Joseph Quintana, had a warrant.

Mary Quintana, who was not home at the time of the call, met officers outside the house shortly afterward and gave them permission to enter. Law enforcement found Joseph Quintana in the basement, where he opened fire on the officers. He shot one officer in the abdomen, hitting his tactical vest, and another in the leg.

Dozens more police, including SWAT members, arrived and a standoff lasting several hours followed. The amended complaint filed in July 2021 alleges Justin Dodge, a sergeant assigned to the police department’s Metro SWAT operations, authorized the use of flammable chemical weapons on the residence even though they are meant for outdoor use as a crowd-control tool.

The case also alleges Richard Eberharter, another SWAT officer, threw a “burn box” into Quintana’s house without regard for where the boxes would land and whether they might land near flammable materials.

Burn boxes are vented steel boxes used to contain the chemical agents to reduce the risk of them catching fire.

The house caught fire around 5:30 p.m. Police arrested Joseph Quintana, and the destruction to Mary Quintana’s home rendered her homeless, according to her complaint. The Denver Fire Department confirmed the cannister Eberharter threw started the fire, according to the case.

Lawsuit alleges Denver police destroyed home in SWAT operation

The lawsuit claims Denver has a policy of training officers to use flammable chemical grenades inside burn boxes in indoor standoff situations, despite the manufacturer explicitly stating they are only intended for outdoor use without exceptions.

Both the individual officers named and Denver requested summary judgment in the case. Summary judgment means a judge opts to decide a case on the matters of law in question without it going to trial if there are not facts in dispute between the parties.

Eberhart and Dodge’s attorneys argue Quintana has not shown evidence the officers acted willfully and wantonly, a requirement under the Colorado Governmental Immunity Act to hold public employees liable on tort claims for actions taken while performing their duties.

Judge William Martínez agreed that some of the circumstances of the standoff support the officers’ claims they acted reasonably: The ineffectiveness of the SWAT team’s other negotiations with Joseph Quintana, the gradual escalation of the force they used, the danger he posed to the officers and the officers’ experience using burn boxes in other situations without causing a fire.

But Martínez also noted several facts raised by Quintana that he believes suggests a dispute over facts in the case exists, making summary judgment inappropriate: That the manufacturer of the chemical agent cannisters specifically warns they aren’t meant for use indoors, that the officers were aware of the fire risk when they threw the cannisters into Quintana’s house and that Eberharter threw the cannister that caused the fire into the house without looking to see where it landed.

Judge allows claim to move forward against Denver officers for burning down home

Denver also requested summary judgment in favor of the city, making four arguments: There was no underlying violation of Quintana’s constitutional rights; the officers’ behavior did not shock the conscience; Quintana did not support her claims that a policymaker for the city made a decision that violated her constitutional rights; and that Denver can’t be held liable under a claim Quintana makes that the city failed to properly train its officers.

On the question of whether the city violated Quintana’s constitutional rights, Martínez agreed with Denver’s argument that the case should center only on the Fourth Amendment, and whether the officers actions were reasonable in context of the city’s interests justifying the intrusion on Quintana’s rights. But Martínez wrote the issue of reasonableness has to be decided by a jury rather than him — citing a 2013 ruling from the 10th Circuit Court of Appeals.

The two sides agree the destruction of Quintana’s home amounted to a seizure. Martínez wrote that because the Fourth Amendment provides explicit protections against physically intrusive government actions like the ones in this case, it is the amendment that guides analysis in Quintana’s case, rather than “the more generalized notion of substantive due process.”

Martínez granted summary judgment on Denver’s argument that Quintana hasn’t shown sufficient support for her claims that a city policymaker approved decisions that violated her constitutional rights. The complaint identifies now-retired Cmdr. Patrick Phelan as a final policymaker, but does not name him as a defendant.

Martínez wrote that Quintana suggests Phelan’s approval is enough for her ratification claim to survive, but Martínez disagreed.

“This action has progressed beyond the stage where mere allegations are enough,” he said.

ACLU sues Denver police detective over SWAT raid of Montbello home

Finally, he denied the city’s request for summary judgment in its favor on Quintana’s claim of failing to properly train officers. Martínez specifically points out several facts in dispute.

Among them, that Denver received materials from the manufacturer of the chemical weapon manufacturers warning against indoor use, that those materials don’t provide any exceptions to the warning, Dodge’s statement that his actions were consistent with his training on how to properly use the the chemical agents in barricade situations, and that Denver couldn’t locate any department materials describing how police officers should use flammable materials inside homes.

“It is true these facts are susceptible to multiple interpretations,” Martínez wrote. “On the one hand, they may support a finding that the Individual Defendants followed training that instructed them to use the CS cannisters in an improper manner, coupled with a deliberate indifference to the risk that this improper use would likely burn down a citizen’s home. On the other hand, they may support a finding that the Individual Defendants’ training was appropriate and resulted in cautious application of commonly used techniques that mitigated the risk of fire.”

Martínez set a four-day trial to start May 1 at 8:30 a.m.