Denver’s former police chief cannot be held liable for a woman’s injury during a 2020 protest because his directives for officers to use force were “in the abstract and from a distance,” the Colorado-based federal appeals court ruled last week.

The lawsuit from Suzy Dennis was one of several filed in federal court following the police killing of George Floyd in Minneapolis in May 2020. International demonstrations erupted and then-Denver Mayor Michael Hancock imposed an overnight curfew for multiple days in the wake of violence and property damage. Officers enforced the curfew and used projectiles and tear gas to contain or disperse protesters.

Dennis alleged she was video recording a demonstration when an unknown officer fired a projectile and struck her, severely injuring her index finger. A trial judge previously determined her excessive force claim against then-Chief Paul Pazen could proceed to trial, but a three-judge panel of the U.S. Court of Appeals for the 10th Circuit disagreed.

“Pazen’s authorizations to arrest and use force were made only in the abstract and from a distance,” wrote Judge Allison H. Eid in the panel’s May 13 order. “Dennis has not plausibly alleged that Pazen ordered, directed, or even knew of the deployment of a nonlethal projectile against her.”

The court’s determination hinged on the concept of qualified immunity, a judicially created doctrine in which government employees may not be sued unless they violate a person’s clear legal rights. Typically, a right is clearly established only when a prior court decision declares an act unconstitutional under highly similar circumstances, thereby putting future public officials on notice about what is unreasonable.

The 10th Circuit panel did not decide whether Pazen’s actions violated Dennis’ rights. Instead, it concluded that prior cases holding commanders accountable for their orders involved circumstances different from Pazen’s. Specifically, Pazen, unlike the others, was not “boots-on-the-ground.”

Dennis’ lawsuit alleged Pazen opened a command post, directed the enforcement of the curfew against protesters, praised officers for their “tremendous restraint” and authorized the use of “less-lethal” weapons.

In September 2023, U.S. District Court Senior Judge William J. Martínez dismissed Dennis’ claims against multiple officers, but he believed Dennis’ allegations were “just enough” to establish Pazen’s actions as a policymaker were behind her injuries. Martínez “easily” found Dennis alleged an excessive force claim and, based on the 10th Circuit’s prior decisions, it was clearly established that using munitions against her was unlawful. Pazen appealed Martínez’s decision. Among other things, he argued his actions were not similar to prior instances where the 10th Circuit deemed commanding officers liable for their orders.

Those cases involved “on-the-scene supervisors observing the protests, making contemporaneous orders,” argued Assistant City Attorney Craig L. Pankratz last year. Pazen “opened a command post, which was about three days before; generally authorized the use of less-lethal munitions; he appointed a different officer to supervise the protest response; he did not work for the same law enforcement agency as the officer who used the less-lethal munition in this case; he did not directly supervise the protest response; he was not present when the injury occurred; he allowed his subordinates to act without his specific direction.”

“I accept your point that he was not involved in making the contemporaneous decision about what happened,” said Chief Judge Jerome A. Holmes. “But if you had to set up an organizational chart, he would have been at the top of that chart, right?”

Yes, acknowledged Pankratz. But “we just simply do not have a single case where we hold a supervisor or a police chief liable for the decision that he or she made days before an injury. This is simply unprecedented,” he added.

The panel agreed with that argument, finding Pazen was too removed from the protest itself for his prior actions to render him liable for Dennis’ injury.

“Pazen’s limited supervisory role and his absence from the protest” distinguished Dennis’ case from others, wrote Eid, “each of which involved a boots-on-the-ground police captain giving contemporaneous orders to his officers throughout the protest.”

The case is Dennis v. Pazen.