A Colorado Federal District Court ruled on June 5, 2020, that police use of tear gas and rubber bullets was illegal as an excessive force under the Fourth Amendment, the First Amendment as a violation of free speech as the First Amendment bars retaliation, and that protesters suffered irreparable harm. The Federal District Court held that the Supreme Court “has repeatedly held that police may not interfere with orderly, nonviolent protests merely because they disagree with the content of the speech or because they simply fear possible disorder” citing Jones v. Parmley, 465 F.3d 46, 56 (2d Cir. 2006) (citing Cox v. Louisiana, 379 U.S. 536, 550 (1965)). The District found that the hypothetical harm to police was minimal and it was in the public interest to protect the Constitutional rights of protesters. The Court concluded that any potential harm to the public interest was limited to property damage which was outweighed by the protester’s Constitutional rights and the protester’s right to be free of broken facial bones, ruptured testicles, permanent loss of vision caused by police well-documented use of tear gas canisters and rubber bullets being shot at the heads and groins of protesters. The Court enjoined the Denver Police Department from using kinetic impact projectiles and other less-lethal projectiles at the head, groin, or back of protesters; projectiles can not be shot indiscriminately into crowds, body cameras must be recorded at all times, chemical irritants may only be used after an order to disperse is issued, and all orders to disperse must be followed by adequate time to comply, the order must be heard by protesters and repeated and the room must be left for safe egress.
This is a significant ruling because it establishes that complaining protesters have established a likelihood of success on the merits or in other words that monetary damages under 42 USC 1983 are likely in this case.