A federal judge last week declined to dismiss a man’s excessive force claim against an Aurora police officer, who fired his gun in what the city alleged to be an accidental discharge.

This spring, Arapahoe County jurors found Eugene Robertson guilty of numerous attempted murder charges. However, while he was incarcerated pending trial, Robertson filed suit against Officer Derek Tokar for what happened the night Robertson was arrested.

Allegedly, police responded to a residential complex in the 18000 block of E. Kentucky Ave. and encountered Robertson walking shirtless with his hands up. Robertson reportedly yelled that he was not armed.

Tokar unholstered his weapon and aimed it at Robertson. As Tokar allegedly told Robertson to get on the ground, he discharged his gun. Robertson dropped down and yelled, “Please don’t kill me. I’m not a threat.”

In seeking to dismiss Robertson’s excessive force claim, the city acknowledged Tokar did shoot his weapon, but justified it as an “accidental discharge.”

“Immediately after the accidental discharge, Defendant Tokar is heard saying ‘Oops,’ because he did not intend for that to happen. Fortunately for all concerned, the bullet did not make contact with Plaintiff nor anyone else,” wrote Peter Ruben Morales with the Office of the City Attorney.

Morales submitted Tokar’s body-worn camera footage from the night of the shooting, but Robertson responded that the videos “are not original copies.” He countered by filing an October 2023 internal affairs memo confirming Tokar received a suspension for the unauthorized firing of a weapon. The state’s peace officer database currently lists Tokar as “not certified.”

U.S. Magistrate Judge Kathryn A. Starnella, in evaluating Tokar’s motion to dismiss, declined to incorporate either piece of disputed evidence into her decision and instead focused on the allegations. She noted an excessive force claim is grounded in the constitutional prohibition on unreasonable searches and seizures. The question was whether Tokar “seized” Robertson — meaning he caused Robertson to submit to his authority.

After discovering no identical cases from the federal appeals court with jurisdiction over Colorado, Starnella pointed out that multiple courts have decided no seizure occurs when an officer discharges their firearm and it does not hit the plaintiff or terminate the plaintiff’s movement.

“However, one critical fact is different — Plaintiff’s movement was terminated,” she wrote in a Nov. 18 order. Specifically, Robertson alleged he “immediately” fell to the ground.

“Defendant made a show of authority by allegedly pointing his weapon at Plaintiff and firing a shot. The fact that Plaintiff was not harmed by the discharge is irrelevant,” Starnella wrote.

She allowed the claim to proceed.

The case is Robertson v. Tokar.