The U.S. Court of Appeals for the 10th Circuit heard oral arguments Thursday for the civil case involving the Colorado Springs man who was shocked with a Taser by police during a foot pursuit and left paralyzed.

The case started May 16, 2022, when Colorado Springs police working in a multi-agency auto theft task force used a vehicle tracker to find Jacob Root driving a stolen car to a Kum & Go gas station on Airport Road, according to police records. When the officers approached Root, he fled on foot.

After a brief chase, officer Robert Comstock shot Root in the back with a Taser, causing him to fall face-first into the street on the city’s southeast side. Injuries from the fall left Root paralyzed, according to previous Gazette coverage.

The appeal came after Magistrate Judge Timothy P. O’Hara dismissed the federal lawsuit “without prejudice,” on March 5, according to court records. In response, Root’s attorneys filed an appeal U.S. Court of Appeals for the 10th Circuit on March 28.

Civil rights attorneys Harry Daniels and Tyler A. Jolly initially filed the $100 million federal lawsuit in May 2024. They allege that Comstock violated CSPD’s use-of-force policy when he shocked Root “without warning and while Mr. Root was on an elevated, uneven surface where a fall was likely to cause substantial injury or death,” according to court records.

Thursday’s hearing focused on the elevated surface at which Root was located, and if Comstock had reason to believe he posed a threat to officers and the public when he was fleeing officers.

Daniels argued on behalf of Root, primarily relying on the “obvious” factor of the case, as well as citing a few out-of-state cases.

While not clearly established in the 10th Circuit in previous cases, Daniels claims the use of the taser was “lethal” or “deadly” force due to it being deployed while Root was on an elevated surface.

When asked to cite specific cases regarding use-of-force and Taser involvement, Daniels offered Bradley v. Benton from 2021, which was heard in the Court of Appeals for the 11th Circuit out of Georgia. Troy Robinson died as a result of the use of force.

In that case, the elevated surface in question was an 8-foot fence, and the court found that the officer’s decision to shock Robinson violated his right to be free from excessive force.

Daniels drew parallels, saying that the elevation in Root’s case was not simply a “small hill,” but was “very steep.”

“He was tased at the peak of the elevation, and essentially flew down that elevated slope, breaking his neck right against the curb,” Daniel said. “So this is not just a small hill. What we’re talking about is more than that.”

Brian Stewart, the attorney on behalf of the city and Comstock, said the facts of the case are different. In Bradley v. Benton, the person hit with the Taser was a passenger who fled during a routine traffic stop, and was not suspected of committing a felony.

“We don’t have facts like this here,” Stewart said.

According to the department’s Taser policy, officers are not permitted to deploy the Taser if the suspect is on an elevated surface or a location where a fall may cause substantial injury or death.

It does not specify further regarding what counts as an elevated surface.

When the federal lawsuit was filed last year, the department said in a statement that, “after review through the deputy chief, Comstock was exonerated from any policy violation or wrongdoing. The department posted additional bodycam footage and the internal investigation alongside the May 2024 statement. 

Stewart also said previous attempts to arrest Root had failed, and Root himself had used force on officers in the past, leading to reasonable suspicion force may be used against law enforcement again. According to the department, Root had struck a police cruiser during one arrest attempt.

“Mr. Root was given several warnings. In this particular case, he was given a warning when officers tried to surround that car and used absolutely no physical force to take the driver into custody at the Aspen Lodge, and force was used against (the officers),” Stewart said.

Stewart touched on the department’s policy, stating that there is no clear policy that requires a Taser-specific warning to be given before deployment. However, Stewart said Root was given several orders to comply.

According to the Colorado Springs Police Department, Comstock commanded Root to stop running and warned that a police canine would be used if he did not stop.

In addition to Bradley v. Benton, Daniels also cited Tennessee v. Garner from 1985 during his argument.

“As we know in Tennessee v. Garner, you cannot use deadly force on a person that’s fleeing regardless of the fact that (they are accused of a) felony that does not pose a danger to the officers or the public,” Daniel said.

Stewart refuted the claim that Root did not pose a danger to the community, saying since he was running toward Airport Road, a busy street in Colorado Springs, he was a danger to drivers.

“I would submit that running towards any public road is an inherently dangerous thing to do, and it doesn’t matter if that road is I-25 or if it’s Airport Road or if it’s a quiet residential street,” Daniels said.

“It only takes one car,” he added.

Due to the since-passed government shutdown, both parties appeared virtually for Thursday’s hearing. The court accepted the case, and a ruling is expected to come at a future date whether or not Comstock’s actions were reasonable under the Fourth Amendment and department policy.

A state case is ongoing as well. Court records show the state lawsuit was filed March 26. It lays out similar claims to the federal lawsuit, alleging Comstock did not give proper warning before shocking Root in the back and his actions were “malicious.”

A review hearing for the state lawsuit is scheduled for Dec. 15, court records show.