Qualified Immunity

Thanks to Colorado's Reforms, Cops Who Forced Children To Lie on the Pavement at Gunpoint Might Be Held Accountable

A state law eliminated qualified immunity as a defense for abusive officers.


In Aurora, Colorado, police officers ordered a terrified 6-year-old girl out of a car at gunpoint and then tried to handcuff her, only to find that they couldn't because the girl's wrists were too small. You might think the cops would have second thoughts about the choices that led to such a situation. But according to Police Chief Vanessa Wilson, everything the officers did that day—when they forced the crying girl to lie on the pavement along with her mother, her 17-year-old aunt, and two teenaged cousins even though none of them had done anything wrong and none of them posed any sort of threat—was by the book.

In a lawsuit filed last week, the little girl's mother, Brittney Gilliam, argues that Wilson's attitude exemplifies her tolerance of Fourth Amendment violations, racial profiling, and excessive force. Gilliam's case, which names Wilson, the city, and five officers as defendants, will test the value of a groundbreaking Colorado law that allows people to sue cops who violate rights guaranteed by the state constitution. That 2020 law, which legislators passed along with other reforms in response to the death of George Floyd, does not allow officers to claim "qualified immunity," a court-invented doctrine that shields police from federal civil rights claims unless their alleged misconduct violated "clearly established" law.

The case, which attracted international attention last year because a bystander video of the August 2 incident went viral, began when Gilliam, a 29-year-old food service worker at the Denver County Jail, set out with her daughter (identified as "L.T." in the complaint), Gilliam's 17-year-old sister ("E.G."), and two nieces (12-year-old "N.J." and 14-year-old "T.T.") on a "Sunday funday" outing, a welcome relief from "months of being cooped up due to COVID-19." Since businesses closed by pandemic-related restrictions were reopening, they planned to have their nails done and get ice cream afterward. But when they arrived at the nail salon, they found it was closed. Gilliam and the girls were sitting in the parked SUV as she used her smartphone to find an open salon when a police car pulled up behind them and two officers, Darian Dasko and Madisen Moen, got out with their guns drawn.

Pointing their guns at Gilliam's car, Dasko and Moen demanded that she and the girls put their hands out the windows, which they did. Gilliam, alarmed and perplexed by this sudden show of force, asked what was going on. "I will tell you once you get out," Dasko said, according to the complaint.

It turned out that the officers had mistaken Gilliam for a car thief because a license plate scanner erroneously identified her vehicle as stolen. Although the numbers matched, the stolen vehicle was a motorcycle registered in Montana, not an SUV registered in Colorado. Gilliam repeatedly offered to show the cops the car's registration, which would have shown that her sister was the owner, but they were not interested.*

Dasko and Moen forced Gilliam and her four minor passengers out of the car at gunpoint and ordered them to lie on their stomachs with their arms stretched in front of them and their palms against the pavement. Two more cruisers carrying several more officers arrived. The officers handcuffed Gilliam, N.J., and E.G. They tried unsuccessfully to handcuff L.T., the little girl in the pink tiara who can be seen in the picture above. Since her wrists were too small, they kept her on the pavement, along with T.T. The officers patted down Gilliam and all of the girls, because you can never be too safe.

During this ordeal, L.T. was sobbing and asking for her mother while clinging to her cousin's hand. A crowd of about 15 bystanders gathered, amazed and appalled by the officers' behavior. One of them, who captured the scene on her cellphone, exclaimed, "They have guns drawn on kids!"

More squad cars arrived, the complaint says, and "as many as fourteen" officers were ultimately present. The cops eventually let L.T. and T.T. sit up, but they kept them on the pavement for about 15 minutes. N.J. and E.G. were kept in handcuffs for about the same amount of time. Gilliam was similarly restrained in the back of a patrol car for more than 10 minutes. She was detained for more than two hours, until several sergeants arrived.

Since that traumatic experience, the lawsuit says, "T.T. cannot get the terrified screams of her cousins out of her mind. The girls struggle to sleep and eat. All are in therapy to attempt to help them deal with what happened that day." The complaint adds that "all of the Plaintiffs now fear police officers, and the minor Plaintiffs would be afraid to contact the police in the future, even if they were in danger and in need of assistance."

The sergeants who arrived at the scene the day of the encounter explained that the officers had followed department policy throughout the incident. Wilson concurred in a statement she issued after local prosecutors declined to bring charges against Dasko and Moen.

"Despite the disturbing fact that terrified children were ordered out of a vehicle at
gunpoint and placed face-down on the ground, our conclusion is that there is not evidence beyond a reasonable doubt that the APD [Aurora Police Department] officers involved unlawfully, intentionally, knowingly, or negligently violated any Colorado criminal law," Chief Deputy District Attorney Clinton McKinzie said in a January 8 letter to Wilson. "What happened to the innocent occupants is unacceptable and preventable, but that alone is an insufficient basis to affix criminal culpability to the two officers involved in the initial contact."

McKinzie's boss, District Attorney George Brauchler, nevertheless urged Wilson to reconsider the department's policies and practices. "The errors in information-sharing, training, and procedure that led to these innocent people being subjected to this police encounter must be investigated further and prevented from happening again," Brauchler said. "These kinds of things should not be taking place on the streets in our community. I'm still of that mind. But my conclusion doesn't make it criminal. We just don't have enough to prosecute them for a crime."

Wilson apologized to the family and offered to cover the children's psychotherapy bills. "This was a horrible mistake and one that I hope we can at least correct for the kids," she said after the incident. "We must allow our officers to have discretion and to deviate from this process when different scenarios present themselves. I have already directed my team to look at new practices and training."

The implication, of course, is that the officers did nothing wrong under the policies in force at the time. That fact, Gilliam's lawsuit argues, reflects a broader pattern of policies, customs, and practices that invite police abuse, including unconstitutional searches, illegal detention, trumped-up arrests, and excessive force. "APD officers have a history of committing police brutality, especially against Black victims, and racially profiling Black individuals," says the complaint, which describes about 30 examples, including the 2019 death of Elijah McClain. Several of those cases led to monetary settlements.

From 2013 through 2019, the complaint notes, "APD ranked 8th out of the 100 largest cities in the United States for most police killings per capita." The lawsuit also cites statistics suggesting that black people are disproportionately likely to be mistreated by Aurora police.

The fact that Brauchler declined to prosecute the officers who detained Gilliam and the four girls does not mean they cannot be held civilly liable for the incident. The lawsuit argues that the cops violated Article II, Section 7 of the Colorado Constitution—which, like the Fourth Amendment, prohibits "unreasonable searches and seizures"—by detaining and searching the family without probable cause or reasonable suspicion. It says they violated the same provision by using excessive force. The complaint also argues that the cops violated the plaintiffs' right to equal protection of the laws because they treated Gilliam and the girls differently than they would have treated similarly situated white citizens.

Under the reforms that the Colorado legislature enacted last summer, the officers are not protected by qualified immunity, meaning that Gilliam need not prove the rights they violated were "clearly established" at the time. In practice, that requirement means plaintiffs cannot bring federal civil rights claims unless they can locate precedents with nearly identical facts. The upshot is that police officers can get away with outrageous conduct as long as they find novel ways to abuse people.

Even if Gilliam wins damages, however, the officers she sued probably will not have to pay a dime. To address the concern that personal liability would have a chilling effect on law enforcement, legislators included a provision that requires municipalities to indemnify cops in such cases unless "the peace officer's employer determines that the officer did not act on a good faith and reasonable belief that the action was lawful." If local officials make that determination, officers are personally liable for up to $25,000 each. But that seems unlikely, since Wilson already has determined that her officers terrorized Gilliam and the four girls in accordance with her department's policies.

*Correction: This post originally said Gilliam was the owner of the SUV, which she actually had borrowed from her sister. The post also has been revised to correct the timing of Wilson's apology.