Denver police officers face federal lawsuit after f-word arrest near the 16th Street Mall

Two men were protesting the treatment of people experiencing homelessness in September 2018 before they were arrested.

Denver Police officers cruise the 16th Street Mall on motorcycles at dawn. Sept. 18, 2019. (Kevin J. Beaty/Denverite)

Denver Police officers cruise the 16th Street Mall on motorcycles at dawn. Sept. 18, 2019. (Kevin J. Beaty/Denverite)

(Kevin J. Beaty/Denverite)

staff photo

Two men arrested by Denver police after using the f-word during an encounter on the 16th Street Mall are suing the city and the police department alleging First Amendment violations.

Brian Loma and Mikel Whitney are plaintiffs in a lawsuit filed last week in federal court alleging they were wrongfully arrested by police after yelling the f-word toward cops on Sept. 23, 2018.

The lawsuit says Loma was arrested after yelling “f*** the police” while protesting the treatment of people experiencing homelessness. A couple eating on a restaurant patio nearby complained to police since they were with their child.

Whitney, Loma’s friend, was arrested after he tried to document Loma’s arrest on his phone. The lawsuit said police asked Whitney not to take photos of the nearby couple.

Both men were charged with disturbing the peace, though those charges were dismissed. Loma and Whitney are advocates for the homeless. The day they were arrested, they were helping distribute meals to people experiencing homelessness on a sidewalk outside the Corner Bakery Cafe. The event included a protest calling for “an end to the criminalization” of people experiencing homelessness.

The men are represented by local civil rights attorney David Lane, who begins his lawsuit by invoking the landmark Supreme Court case Cohen v. California.

The 1971 case involved a man in California who wore a jacket with the message “F*** THE DRAFT” inside a courthouse and was charged under a state law. The Supreme Court later ruled 5-4 in his favor, calling it protected speech. Justice John Marshall Harlan would write in his majority opinion that “one man’s vulgarity is another’s lyric,” according to the SCOTUS archive website Oyez.

“We are here to train the cops that whether they like it or not, people have free speech rights, even in Denver,” Lane said this week. He’s filed similar lawsuits against the department in the past but said DPD “hasn’t learned.”

The entire incident was prompted after both men saw their friend being arrested for trespassing while she handed out meals and protested. Loma protested along the 16th Street Mall after seeing his friend get arrested, according to the lawsuit.

Loma shouted “f*** the police,” prompting two Denver police officers to discuss whether that amounted to disturbing the peace. The lawsuit claims Loma didn’t use “fighting words”.

But the couple nearby heard Loma’s shouting and asked him to stop, the lawsuit says, which prompted cops at the scene to suggest that was enough to arrest Loma for disturbing the peace. Loma had used the f-word twice before he was arrested. The couple then agreed to sign a complaint against Loma.

Whitney photographed Loma’s arrest to document what he thought was an unlawful arrest. He walked toward the couple, pointing his cell phone at them. Cops noticed this and told him not to take photos, though Whitney was still on a public sidewalk, and warned him he was “harassing” the couple. The lawsuit says he wasn’t able to take a photo of the couple, and started walking away from the scene and from the cops.

A cop told Whitney the couple was about to sign a complaint against him as well, leading Whitney to turn back toward the cops and said “I did not take a f****** picture.” The lawsuit says the cops told him to stop swearing while they arrested him.

Denver police spokesperson Jay Casillas did not comment on the lawsuit, but said profanity is protected speech. He said generally, speech has to rise to the level of threat or another criminal element to warrant an arrest or citation.

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