Denver has settled three lawsuits related to the 2020 George Floyd demonstrations and was also hit with a $14 million judgment after a trial in March. But at least 23 additional complaints involving more than 120 plaintiffs remain active, including three filed by attorney Milo Schwab of Ascend Counsel, who says that liability for these suits could be “staggering.”
Schwab considers the suit he filed in October 2021 on behalf of client Michael Driscoll to be among the most serious, owing to the “incredible amount of damage” Driscoll sustained after being shot in the face with a rubber bullet. This type of munition is often dubbed “less than lethal,” but according to the lawsuit, the shot reduced part of Driscoll’s skull to dust.
The defendants include the City of Denver; Paul Pazen, then chief of the Denver Police Department; Patrick Phelan, the DPD’s commander of special operations, and “John & Jane Does 1-10.”
“Michael showed up on Saturday, May 30, and participated in the protests,” Schwab says. “Unfortunately, he was subjected to the same treatment as everyone else who was there — tear gas, pepper balls — even though he was just standing there, chanting.”
Driscoll, who’s from Pueblo, planned on going home after taking part in the rally, according to Schwab, but “he was so moved by the experience that he decided to stay around. He got a hotel room, but he also went to Home Depot and made himself a shield with plywood.”
On the shield, Driscoll painted “FTP” and “ACAB” — acronyms for “Fuck the Police” and “All Cops Are Bastards.”
The next day, May 31, Driscoll returned to demonstrate, “and he was subjected to force over and over and over again,” Schwab contends. “Up and down Colfax, police officers were directly throwing flashbangs at him — aiming at him,” possibly because of what he’d painted on the shield.
The protesters eventually walked down 13th Street to Cherokee Street, to Denver Police Department headquarters. “This was an incredibly peaceful movement,” Schwab stresses. “People were on their knees, hands raised. Not a single rock or anything else was thrown. They were passively protesting when no police were there.”
When officers showed up, Schwab continues, “they basically formed a skirmish line — and within two or three minutes, they decided they needed to clear everyone out. This was not a circumstance where the protesters were committing any crimes or seeking out a confrontation with police. This was the reverse: The police showed up to confront them. They started firing tear gas and throwing out flashbangs, completely unprovoked. And that’s when one of these munitions struck Michael in the face” — specifically his forehead, just above the gas mask he’d been wearing.
As blood gushed from Driscoll’s wound, a protester pulled him out of the crowd and took him to a medic, who was able to render only preliminary aid before being forced to flee amid another fusillade of pepper balls. Driscoll hid in some bushes until police left, then tracked down a stranger who gave him a ride to Denver Health.
Physicians soon determined that the rubber bullet had destroyed Driscoll’s sinus cavity and fractured the orbital bone around his left eye. “He had to have facial reconstructive surgery,” Schwab confirms. “They had to open up his head from ear to ear and reconstruct his face — and if he hadn’t been wearing a gas mask when he was hit, I don’t think he would have survived.”
HALO cameras captured what happened, as did Driscoll’s own camera. “He was filming when he was struck,” Schwab says. However, the attorney notes that there is no body-worn camera footage of the shooting from the DPD “because none of the officers had their camera turned on — not a single one. There were probably fifty officers altogether, but apparently some weren’t from Denver; there were additional jurisdictions involved. But there were certainly twenty or thirty Denver Police officers, and only two of them turned on their camera — and they both waited until after Michael was shot.”
More than two years have passed since then, but “I wouldn’t say Michael has recovered yet,” Schwab adds. “The long-term effects have completely changed his life. He can’t engage in the same types of activities he used to, like swimming and weightlifting, because exercise causes a lot more pain and pressure. His eyesight his worsened, too, and so has his memory — and he and his family and friends have noticed that his mood, his actual demeanor, has changed, which is a common symptom of traumatic brain injury. It’s what you’d expect if someone is hit in the forehead with a munition that can fracture a skull.”
Denver agencies haven’t commented on Driscoll’s lawsuit, citing pending litigation. Click to read Michael Driscoll v. City and County of Denver, et al.
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