In an interlocutory appeal involving alleged excessive force by police during protests over the murder of George Floyd, Packard v. Budaj, — F.4th –, 2023 U.S. App. LEXIS 30189 (Nov. 14, 2023), the U.S. Court of Appeals for the Tenth Circuit rejected three police officers' qualified immunity defenses. The court determined it was clearly established that police cannot shoot nonlethal projectiles at protesters who committed no serious crime, were not a threat, and were not attempting to flee.

Factual Background

On the evening of May 31, protesters gathered in downtown Denver in the wake of George Floyd's murder. Police threw a tear gas cannister near one plaintiff, Zachary Packard, who kicked it away from himself and toward the line of officers. Almost immediately, he was hit in the head with a canon-fired beanbag round, which knocked him unconscious and caused major injuries. In a second incident nearby, plaintiff Jonathon Duran was shot with a foam baton round while wearing a "media" hat and filming the protest. The officers who allegedly shot the rounds that injured the plaintiffs worked for the Aurora Police Department, which had responded to the Denver mayor's request for mutual aid.