Although video footage contradicted some allegations and the absence of video footage placed a question mark over others, a federal judge has allowed claims of excessive force to continue against the Denver police officers who unlawfully arrested an Aurora man.

U.S. District Court Judge Raymond P. Moore on Monday denied the officers’ motion to dismiss a handful of allegations against them, acknowledging that “this case is in its infancy” and to toss out the use of force and failure to intervene claims “is not appropriate at this juncture.”

The lawsuit, which also included allegations of sexual assault and illegal search and seizure, stemmed from the Nov. 6, 2018 arrest of Marquise Harris, an arrest for which a Denver judge later found there to be no reasonable suspicion of a crime.

On that date, according to Harris’s lawsuit, the Denver police’s narcotics unit was surveilling the area near East 12th Avenue and North Xanthia Street where Harris was walking home. Reportedly, Detective Mark Romero fabricated that he had see Harris and another Black man exchange drugs for cash, and broadcast the message over his radio.

The law enforcement personnel confronted Harris — for what he deemed “walking while being Black” — and allegedly went hands-on in a manner that caused Harris injuries. Officers also reportedly slammed Harris into the pavement and knocked him unconscious. They then conducted a search of Harris, including inside the areas covered by his pants and underwear, finding a wad of cash but no drugs. Harris further alleged the police conducted a warrantless search of his cell phone and falsified statements in their reports.

Officers arrested Harris for police interference and giving false information. During the trip to the police station, two officers allegedly used a racial slur and continued to beat Harris and placed a makeshift noose around his neck. Harris subsequently filed a complaint with the Internal Affairs Bureau. A court later dismissed the charges against him because the officers lacked the required suspicion of wrongdoing to arrest him. 

“The Court finds that Det. Romero’s observations of the conduct and behavior of the Defendant does not reach the level of a reasonable and articulable suspicion that a drug hand to hand sale was taking place,” wrote Denver County Court Judge Gary M. Jackson in Marquise Harris’s case. “Det. Romero merely had a hunch based upon two black men momentarily interacting together, with the defendant having a wad of cash in his possession.”

Four months after the November incident, Denver officers had another physical encounter with Dedrick Harris during a traffic stop. Because Marquise originally gave them Dedrick’s name during the Nov. 6 encounter, the the lawsuit from the two Harrises labeled the police encounter with Dedrick as retaliation for Marquise’s internal affairs complaint. The interaction with Dedrick allegedly led to another warrantless cell phone search and a charge of obstructing a peace officer for Dedrick Harris.

Representing themselves, the Harrises filed a federal complaint in May 2020 alleging the Denver police personnel and Denver District Attorney Beth McCann violated their constitutional rights through the warrantless searches and excessive force.

“Defendant officers often labeled Black communities as ‘high-crime areas’ to engage in bias policing and racial profiling of Blacks,” wrote the Harrises, who are Black.

In response, the city of Denver argued some of the alleged force used against the Harrises was fictitious.

“While reasonable force was justified, the excessive force Plaintiffs allege occurred simply did not occur,” attorneys for the city wrote. “No punches or kicks are evident from the BWC [body-worn camera] footage, the allegation Marquise was unconscious is patently false, and the BWC does not show that any officer rammed his face into the pavement.”

Regarding Dedrick Harris’s arrest, the city denied the traffic stop amounted to retaliation and said the force used was minor.

In reviewing video evidence, Moore found clear contradictions between certain allegations from the Harrises and the actions of officers. As such, he dismissed the excessive force claim from Dedrick Harris. However, because there was no footage showing one way or the other whether Marquise Harris’s head hit the pavement or what happened while he was in transport, the judge declined to dismiss those use of force claims.

In doing so, Moore pointed out that a subsequent determination about the reasonableness of officers’ force would need to account for the minimal threat the Harrises posed.

“Neither Plaintiff was found with weapons nor did they make overt threats to harm any of the officers. Even the charges that were brought against Plaintiffs – interference with police and false information against Mr. M. Harris and obstruction of justice against Mr. D. Harris – do not suggest an immediate threat to the safety of officers or others,” Moore observed. “Indeed, the body worn camera video footage does not clearly demonstrate the existence of a firearm or any bystanders, let alone any who were in danger.”

The judge also kept intact the Harrises’ claims about the unlawful searches.

Marquise Harris did not immediately respond to a message seeking comment. The Denver Police Department said it does not comment on active lawsuits.

“You can see this happening all the time, with Denver police aggressively stopping our youth and searching them in broad daylight,” Harris told Westword last year.

The case is Harris v. Romero et al.