Tenth Circuit: Clearly Established Fourth Amendment Violation to Shoot a Peaceful Protester with Pepperballs Absent Threat, Serious Crime, or Flight

Introduction

In Epps v. Christian (10th Cir. Apr. 21, 2026), the Tenth Circuit affirmed a jury verdict holding Denver Police Officer Jonathan Christian liable under 42 U.S.C. § 1983 for using excessive force in violation of the Fourth Amendment when he shot protester Elisabeth Epps with a pepperball during the May 2020 George Floyd demonstrations in Denver.

The appeal raised three issues: (1) whether Officer Christian was entitled to qualified immunity after trial; (2) whether the district court abused its discretion by refusing to bifurcate Epps’s claim against the officer from other protest-related claims against the City and County of Denver; and (3) whether evidence supported any award of punitive damages.

Summary of the Opinion

Viewing the evidence in the light most favorable to the verdict, the court held:

  • Fourth Amendment violation: A reasonable jury had a legally sufficient basis to find Officer Christian used objectively unreasonable force by intentionally shooting a peaceful, non-threatening, unarmed protester with a pepperball without warning.
  • Clearly established law (May 29, 2020): The prohibition on shooting peaceful protesters with pepperballs (or similar “less-lethal” munitions) absent serious crime, threat, or flight was clearly established by the Tenth Circuit’s 2008 protest cases Fogarty v. Gallegos and Buck v. City of Albuquerque, as later confirmed by Packard v. Budaj.
  • No abuse of discretion on bifurcation: Trying the claim against Officer Christian alongside broader protest litigation against Denver did not unfairly prejudice him.
  • Punitive damages: Evidence permitted a finding of “evil motive or intent” or “reckless or callous indifference” to federally protected rights; thus the district court correctly denied Rule 50 relief on punitive damages (though the punitive amount was reduced post-trial).

Analysis

Precedents Cited

1) Post-verdict qualified immunity and the Rule 50(b) lens

  • Ortiz v. Jordan and Dupree v. Younger: After a full trial, qualified immunity arguments on appeal are assessed against the trial record, not the pretrial summary-judgment record. The court used these cases to justify reviewing what the jury actually heard.
  • City of Ft. Collins v. Open Int'l, LLC, Marshall v. Columbia Lea Reg'l Hosp., and Ciolino v. Gikas: Supported de novo review of Rule 50(b) denials and treated qualified immunity’s inquiries as legal determinations, while respecting the jury’s factfinding by drawing inferences in the verdict winner’s favor.
  • Mountain Dudes v. Split Rock Holdings, LLC (and the opinion’s cited sister-circuit examples): Reinforced the Rule 50 standard—no credibility weighing, all reasonable inferences for the nonmovant.

2) What counts as a “seizure” when police use force on protesters

  • Packard v. Budaj: Provided the Tenth Circuit’s protest-specific articulation that intentionally striking a protester with less-lethal munitions can constitute a Fourth Amendment seizure if done with intent to exercise physical control.
  • Torres v. Madrid and California v. Hodari D.: Supplied the Supreme Court foundation that application of physical force with intent to restrain is a seizure even if the person continues moving and is not subdued.

3) The excessive force framework applied to protest contexts

  • Graham v. Connor: The controlling “objective reasonableness” test and its three familiar factors (severity of crime, immediate threat, resistance/flight).
  • Tennessee v. Garner: Cited as part of the general excessive-force canon anchoring reasonableness limits on force.
  • Vette v. K-9 Unit Deputy Sanders, Est. of George v. City of Rifle, and Palacios v. Fortuna: Used to emphasize Graham’s factors are guiding but nonexclusive; the ultimate inquiry is totality of the circumstances.

4) Clearly established law for pepperball use on peaceful protesters

  • Fogarty v. Gallegos and Buck v. City of Albuquerque: The core clearly-established authorities. Both held that shooting peaceful or non-threatening protesters with less-lethal munitions can be excessive force when the protester is, at most, committing a minor offense, poses no immediate threat, and is not resisting or fleeing. The court treated these decisions as sufficiently analogous to give notice by May 2020.
  • Klen v. City of Loveland, Redmond v. Crowther, City of Tahlequah v. Bond, Zorn v. Linton, and Rivas-Villegas v. Cortesluna: Provided the “clearly established” methodology, including the demand for specificity in Fourth Amendment cases while not requiring a case “precisely on point.”
  • Packard v. Budaj: Not used to create 2020 notice, but used to confirm that Fogarty and Buck already supplied that notice (the court explicitly acknowledged it could not use Budaj itself as the source of clearly established law for 2020).
  • Cavanaugh v. Woods Cross City: Reinforced that the “clearly established” question is for the court, not the jury.

5) Bifurcation and prejudice

  • United States ex rel. Bahrani v. ConAgra, Inc. and Anaeme v. Diagnostek, Inc.: Established broad district-court discretion under Rule 42(b).
  • Fuqua v. Santa Fe Cnty. Sheriff's Off. and Alpenglow Botanicals, LLC v. United States: Supplied the abuse-of-discretion framing (arbitrary/capricious/whimsical).
  • Angelo v. Armstrong World Indus., Inc.: Provided the principle that denial of bifurcation is reversible if unfair or prejudicial—yet the court found no such prejudice, emphasizing the jury’s differentiated verdict (Fourth Amendment liability but no First Amendment liability for the officer).
  • Anderson v. U.S. Dep't of Labor: Used to find waiver of a reply-brief-raised argument regarding joint and several compensatory liability.

6) Punitive damages under § 1983

  • Smith v. Wade and Burke v. Regalado: Set the punitive-damages threshold—“evil motive or intent” or “reckless or callous indifference” to federally protected rights.
  • Eisenhour v. Weber Cnty.: Clarified the focus is the defendant’s mental state, not the scope of harm.
  • Murphy v. Schaible and Bill Barrett Corp. v. YMC Royalty Co.: Restated Rule 50 standards for testing the evidentiary sufficiency supporting punitive damages.

Legal Reasoning

1) Constitutional violation (Fourth Amendment excessive force)

The court’s reasoning follows a conventional path but is significant in its protest-policing application:

  • Seizure: By intentionally firing a pepperball at Epps with the aim of exercising physical control, the encounter fell within the Fourth Amendment’s “seizure” doctrine, consistent with Torres v. Madrid as applied by Packard v. Budaj.
  • Objective unreasonableness: Under Graham v. Connor, Epps’s conduct supported the jury’s finding that force was excessive: she was alone, unarmed, not acting aggressively, and at most committing a minor offense (e.g., jaywalking). There was no immediate threat, no resistance, and no flight. Video evidence and testimony supported that Officer Christian fired without warning and only afterward yelled for her to get out of the street.

2) Clearly established law (qualified immunity)

The court identified the relevant “clearly established” proposition at a practical level: by May 2020, a reasonable officer would understand that shooting a non-threatening protester with pepperballs (or similar less-lethal munitions) is unlawful when the protester is committing no more than a minor offense and is neither threatening nor fleeing.

Crucially, the court treated Fogarty v. Gallegos and Buck v. City of Albuquerque as close analogues: both involved peaceful or non-threatening protest behavior met with less-lethal munitions, and both applied Graham to allow excessive-force findings. That body of law, the court held, provided adequate notice even under the Supreme Court’s modern insistence on Fourth Amendment specificity (as reflected in City of Tahlequah v. Bond and related cases).

3) Bifurcation

Officer Christian argued spillover prejudice from a lengthy, multi-plaintiff trial dominated by claims against Denver. The court rejected this as speculative and contradicted by the jury’s nuanced verdict: it found the officer liable for Fourth Amendment excessive force but not for Epps’s First Amendment theory, indicating jurors did not simply attribute municipal wrongdoing to him.

4) Punitive damages

Applying Smith v. Wade, the court held there was sufficient evidence of the requisite culpable mental state, including: intentional aiming and firing without warning or justification; evidence of similar unjustified uses of less-lethal munitions during the protests; and recorded statements from which a jury could infer callousness (including that he “liked shooting people”). Under the deferential Rule 50 posture, that was enough to sustain submission of punitive damages to the jury.

Impact

  • Protest policing and “less-lethal” munitions: The opinion further entrenches (in a published, post-trial posture) the Tenth Circuit’s rule that deploying pepperballs/other impact munitions against peaceful, non-threatening demonstrators—particularly absent warning and absent serious offense, threat, or flight—creates Fourth Amendment liability.
  • Qualified immunity after trial: The decision reinforces the procedural reality that officers who proceed to verdict face qualified-immunity review through the trial evidence under Rule 50, not through a pretrial lens (Ortiz v. Jordan; Dupree v. Younger).
  • Punitive damages exposure: It signals that punitive damages can survive Rule 50 review where the record supports an inference of reckless indifference—even if physical injury is limited—because the emphasis is on mental state (Eisenhour v. Weber Cnty.).
  • Trial management in complex civil-rights cases: On bifurcation, the court’s reliance on verdict differentiation suggests appellate courts may look to the verdict itself (and the structure of liability findings) to evaluate claimed prejudice from joint trials.

Complex Concepts Simplified

  • Qualified immunity: A defense protecting officers from damages unless (1) they violated the Constitution and (2) the unlawfulness was “clearly established” at the time—meaning prior case law made the rule sufficiently clear that a reasonable officer would know the conduct was unlawful.
  • Rule 50(b) motion (judgment as a matter of law after trial): A request to overturn a jury verdict because, even taking the evidence in the verdict winner’s favor, no reasonable jury could legally find for that party.
  • Fourth Amendment “seizure” by force: Even if a person keeps moving, intentionally applying physical force to restrain them (e.g., striking them with a pepperball) can still count as a “seizure” under Torres v. Madrid.
  • Punitive damages under § 1983: Extra damages intended to punish and deter, allowed where the defendant acted with evil intent or with reckless/callous indifference to constitutional rights (Smith v. Wade).
  • Bifurcation: Splitting claims/issues into separate trials to promote convenience, efficiency, or avoid prejudice. The trial judge has wide discretion under Rule 42(b).

Conclusion

Epps v. Christian confirms a concrete, protest-context application of Fourth Amendment law in the Tenth Circuit: by May 2020 it was already clearly established—via Fogarty v. Gallegos and Buck v. City of Albuquerque—that officers may not shoot peaceful, non-threatening demonstrators with pepperballs or similar less-lethal munitions when the conduct at issue is, at most, minor and the person is neither threatening nor fleeing. The decision also illustrates how qualified immunity arguments function after a full trial (Rule 50 review on the trial record), and it underscores that punitive damages can be sustained where the record supports an inference of reckless indifference to constitutional rights.