Date: Apr 23, 2026

Failure-to-Train Monell Liability for Protest Policing, and Post-Event Independent Monitor Findings as Admissible Non-Remedial Evidence

1. Introduction

Packard v. City and County of Denver (10th Cir. Apr. 21, 2026) arises from Denver’s policing of the May 28–June 2, 2020 demonstrations following George Floyd’s death. Twelve protestors (the “Plaintiffs”) sued the City and County of Denver under 42 U.S.C. § 1983, alleging that Denver police officers and assisting mutual-aid officers indiscriminately and unjustifiably used “less-lethal” force (chemical agents, pepper balls, lead-filled Kevlar bag rounds, flash/“stinger” devices) against peaceful protestors, violating the First and Fourth Amendments.

After a multi-week jury trial, the jury found (1) individual officers violated each Plaintiff’s First and/or Fourth Amendment rights, and (2) Denver was municipally liable under three alternative theories: policy/custom, failure to train, and ratification. Denver appealed on instructional, evidentiary, sufficiency, and damages grounds.

The Tenth Circuit affirmed, sustaining the judgment specifically on the jury’s failure-to-train finding and holding (among other things) that testimony by Denver’s former Independent Monitor about his post-event investigation did not violate Fed. R. Evid. 701, 407, or 403.

2. Summary of the Opinion

First Amendment instruction: Even assuming semantic error in using “substantial or motivating factor” rather than “substantially motivating factor,” the error was harmless.
Deliberate indifference instruction dispute: The court did not reach whether deliberate indifference is required for all municipal-liability theories because the judgment could be affirmed on the failure-to-train theory, which was instructed with deliberate indifference.
Failure-to-train instruction: No reversible error; the instruction required a deliberate-indifference finding, and any complaint about the verdict form was barred by invited error.
Independent Monitor testimony: Admissible as lay testimony under Fed. R. Evid. 701; not barred by Fed. R. Evid. 407 (post-event investigations are generally not “subsequent remedial measures”); not unfairly prejudicial under Fed. R. Evid. 403.
Sufficiency (Rule 50): Evidence supported deliberate indifference under both (a) a pattern theory and (b) a single-incident/obviousness theory.
Damages/remittitur: No abuse of discretion in denying remittitur; emotional-distress awards did not “shock the judicial conscience.”

3. Analysis

A. Precedents Cited

1) Municipal liability framework (Monell and deliberate indifference)

The panel anchored Denver’s municipal-liability exposure in Monell v. Department of Social Services, 436 U.S. 658, 663, 690–95 (1978), and applied contemporary Tenth Circuit syntheses, including Thao v. Grady Cnty. Crim. Just. Auth., 159 F.4th 1214, 1227–28 (10th Cir. 2025). The decision reflects a practical appellate move: because the jury found municipal liability on multiple theories, the court could affirm on any one theory that independently supports the judgment.

On failure-to-train deliberate indifference, the court followed Connick v. Thompson, 563 U.S. 51, 61–62 (2011) (deliberate indifference is required), and cited Waller v. City & Cnty. of Denver, 932 F.3d 1277, 1284 (10th Cir. 2019) for the broader principle that deliberate indifference typically attaches to omission-based theories (training, supervision, hiring).

For the “single-incident” path to deliberate indifference, the court relied on Thao v. Grady Cnty. Crim. Just. Auth. and Valdez v. Macdonald, 66 F.4th 796, 816–17 (10th Cir. 2023), including the three-factor formulation (policymakers know to a moral certainty employees will confront the situation; the situation poses difficult choices; the wrong choice will frequently cause constitutional deprivations).

2) Instructional error and harmlessness

The court’s harmless-error analysis rests on a standard line of authority: United States v. Thompson, 133 F.4th 1094, 1097 (10th Cir.), cert. denied, 146 S. Ct. 274 (2025); United States v. Sjodin, 139 F.4th 1188, 1197 (10th Cir. 2025) (quoting United States v. Moran, 503 F.3d 1135, 1146 (10th Cir. 2007)); and harmlessness principles from United States v. Woodmore, 135 F.4th 861, 879 (10th Cir. 2025) (quoting United States v. Benvie, 18 F.4th 665, 670 (10th Cir. 2021)), plus the civil framing in World Wide Ass'n of Specialty Programs v. Pure, Inc., 450 F.3d 1132, 1139 (10th Cir. 2006) (quoting Lusby v. T.G. & Y. Stores, Inc., 796 F.2d 1307, 1310 (10th Cir. 1986)).

The “semantic” dispute about “substantial or motivating” versus “substantially motivating” is contextualized by Hedquist v. Beamer, 763 F. App'x 705, 712 (10th Cir. 2019) (unpublished), cited for persuasive value.

3) Evidentiary rulings: lay opinion, subsequent remedial measures, and prejudice

The lay-opinion issue under Fed. R. Evid. 701 is analyzed through analogies to investigative testimony: United States v. Cristerna-Gonzalez, 962 F.3d 1253, 1259 (10th Cir. 2020); United States v. Marquez, 898 F.3d 1036, 1049–50 (10th Cir. 2018); and accident investigation testimony in Vincent v. Nelson, 51 F.4th 1200, 1214–15 (10th Cir. 2022). The court also noted Rule 701(a)’s link to personal knowledge via United States v. Bush, 405 F.3d 909, 915–16 (10th Cir. 2005).

For subsequent remedial measures, the opinion relied heavily on Rocky Mountain Helicopters, Inc. v. Bell Helicopters Textron, 805 F.2d 907, 918–19 (10th Cir. 1986), and quoted Westmoreland v. CBS, Inc., 601 F. Supp. 66, 68 (S.D. N.Y. 1984), to hold post-event investigations and reports are generally not “measures” within Fed. R. Evid. 407; remedial measures are the corrective steps taken in response, which the district court excluded (recommendations were not admitted).

Harmlessness as to evidentiary error was supported by United States v. Yeley-Davis, 632 F.3d 673, 685 (10th Cir. 2011).

4) Procedural posture: invited error and standards of review

The court invoked United States v. Cornelius, 696 F.3d 1307, 1319 (10th Cir. 2012), to reject challenges to a verdict form the parties helped craft (invited error).

For Rule 50 review, the court applied Murphy v. Schaible, 108 F.4th 1257, 1264 (10th Cir. 2024) (quoting Bill Barrett Corp. v. YMC Royalty Co., 918 F.3d 760, 766 (10th Cir. 2019)).

For remittitur, it applied Fresquez v. BNSF Ry., 52 F.4th 1280, 1314–15 (10th Cir. 2022) (quoting Burke v. Regalado, 935 F.3d 960, 1035 (10th Cir. 2019)). It also endorsed the principle that plaintiff testimony can support damages, citing Osterhout v. Bd. of Cnty. Comm'rs, 10 F.4th 978, 997 (10th Cir. 2021) and Dodoo v. Seagate Tech., Inc., 235 F.3d 522, 532 (10th Cir. 2000).

B. Legal Reasoning

1) The court affirmed on a single municipal-liability ground: failure to train

Although the jury found Denver liable under policy/custom, failure to train, and ratification theories, the panel chose a narrow affirmance route: because the failure-to-train instruction expressly required deliberate indifference and the verdict form captured a failure-to-train finding, the judgment could stand on that basis alone—making it unnecessary to decide disputes about whether deliberate indifference had to be instructed on the other theories. The court pointed to the district court’s instruction that proving any one municipal-liability theory sufficed for a plaintiff verdict, and reinforced the concept with an alternate-theory harmlessness analogy from Bradshaw v. Freightliner Corp., 937 F.2d 197, 203 (5th Cir. 1991).

2) The failure-to-train instruction adequately required deliberate indifference

Denver argued that the instruction’s occasional coupling of “training or supervision” might have allowed liability without deliberate indifference. The panel rejected that reading because paragraph 4 required a finding that Denver “adopted its policy of deficient training with deliberate indifference,” and the instruction then defined deliberate indifference in detail (actual/constructive notice; substantial certainty of constitutional violations; conscious disregard). Any attempt to attack the failure-to-supervise framing also collided with the agreed verdict form and the invited-error doctrine.

3) Evidence of deliberate indifference: both pattern and single-incident routes

On sufficiency, Denver mainly contested the “deliberate indifference” element. The panel held a reasonable jury could find deliberate indifference via:

Pattern theory: evidence included a 2012 OIM report about Occupy Denver protest tactics causing unnecessary injuries; a period of crowd-control training; and evidence the department later de-emphasized training. Plaintiffs’ experts described DPD as inadequately trained at the time of the George Floyd protests.
Single-incident / obviousness theory: applying the Thao/Valdez three-factor approach, Plaintiffs presented evidence that large-scale civil rights protests were predictable and that officers would confront difficult crowd-control/less-lethal force decisions where wrong choices would frequently violate constitutional rights.

4) Independent Monitor testimony: “perception” includes post-event investigation

A key evidentiary clarification is the court’s treatment of “perception” under Fed. R. Evid. 701. The Independent Monitor was not present at the protests, but he personally conducted a legally authorized investigation—reviewing body-worn and fixed-camera footage, interviewing officers, reviewing documents, and synthesizing findings. The court treated such first-hand investigative work as sufficient “perception” for lay testimony, analogizing it to lay testimony by investigators and officers who did not witness the underlying event but personally reviewed evidence and interviews.

On Fed. R. Evid. 407, the court drew a firm boundary: an investigation/report into what occurred is generally not a “measure” that would have made harm less likely; the remedial measures are the later corrections (which were not admitted—the report itself was not admitted, recommendations were excluded). The court also rejected the notion that merely being “after the event” triggers Rule 407, noting that post-event investigations necessarily happen after the event.

5) Damages: emotional distress awards sustained absent “shock the conscience” excess

The court accepted that emotional distress is not an exact science and that jurors could rely on plaintiffs’ testimony and demeanor. It rejected Denver’s argument that lack of extensive medical treatment or diagnosis required lower awards and declined cross-case comparisons as unhelpful to the evidence-specific inquiry.

C. Impact

Protest policing and municipal exposure: The decision underscores that crowd-control and less-lethal-force training can be a decisive Monell fulcrum. Even amid “Herculean” operational challenges, a jury can impose municipal liability where evidence supports deliberate indifference to foreseeable protest scenarios.
Single-incident failure-to-train is viable in protest contexts: By affirming sufficiency under both pattern and single-incident routes, the opinion signals that large-scale demonstrations may be treated as foreseeable “given situations” for which training omissions can be “patently obvious.”
Oversight investigations as trial evidence: The treatment of the Independent Monitor’s testimony provides a roadmap for admitting post-event oversight findings as lay testimony (where the witness personally conducted the investigation), while avoiding Rule 407 issues by excluding subsequent remedial recommendations or implementations.
Appellate narrowing: The court’s willingness to affirm solely on failure-to-train encourages litigants to focus on building a complete evidentiary record on at least one robust municipal-liability theory, anticipating that appellate courts may avoid reaching broader doctrinal questions when a narrower ground suffices.

4. Complex Concepts Simplified

Monell liability: A city is not automatically liable for an officer’s constitutional violation. Plaintiffs must show the violation was caused by the city’s policy, custom, failure to train/supervise (an omission), or ratification by final policymakers.
Deliberate indifference: More than negligence. It means city policymakers knew (actually or constructively) a specific training deficiency was substantially certain to cause constitutional violations and consciously disregarded that risk.
“Moving force” causation: The training deficiency must be closely related to the injury—i.e., it must be a real cause, not merely a background condition.
Pattern vs. single-incident failure to train: Usually plaintiffs show prior similar violations put the city on notice (pattern). In rare cases, the need for training is so obvious that one incident can show deliberate indifference (single-incident/obviousness).
Fed. R. Evid. 701 “perception”: A lay witness can give opinions grounded in what they personally observed or investigated. The witness need not have been physically present at the underlying event if their testimony is based on their own investigative review of evidence.
Fed. R. Evid. 407 subsequent remedial measures: The rule generally excludes evidence that a defendant later fixed a problem, when offered to prove fault. But post-event investigations/reports typically are not the “fix”; they are the fact-finding that may lead to later fixes.
Remittitur: A court-ordered reduction of a jury’s damages award. It is reserved for awards so excessive they “shock the judicial conscience.”

5. Conclusion

Packard v. City and County of Denver affirms a significant municipal-liability verdict arising from protest policing, principally by holding that the jury had a sufficient evidentiary basis to find Denver deliberately indifferent in failing to train officers for foreseeable crowd-control and less-lethal-force decisions. The decision also strengthens the admissibility pathway for testimony by oversight officials who conduct post-event investigations, clarifying that such fact-finding is generally not a barred subsequent remedial measure and may qualify as lay testimony when grounded in the witness’s personal investigative work.