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Activist Brian Loma and fellow plaintiff Mikel Whitney recently received $128,000 to settle their lawsuit against the City and County of Denver and several Denver Police Department officers over a September 2020 incident during which the pair were essentially arrested for using variations on the word “fuck.”
But Loma has two other active lawsuits against Denver, along with various law enforcement officers and other city officials, and they could have a major effect on policing and prosecutions in the Mile High City. One complaint filed last month seeks to modernize the definition of journalists to include individuals who independently produce online content, particularly in the context of alleged Denver Police Department misconduct during the 2020 George Floyd protests. The other, filed in October 2021, decries the Denver City Attorney’s Office practice of imposing so-called “area restrictions” that have essentially banned Loma and others from practically all of downtown.
Attorney Adam Yoast of Englewood-based Baumgartner Law, who represents Loma in both suits, sees that ban as legally unjustifiable on multiple levels. “These area restrictions are not narrowly tailored to achieve a compelling governmental interest,” he says. “They have a chilling effect, preventing people from assembling in places where First Amendment activities are most likely to happen in Denver, including the Capitol, Civic Center Park, the 16th Street Mall and Union Station, which are included in all of their area restrictions.”
Loma is one of seven plaintiffs in the other complaint, filed in U.S. District Court for the District of Colorado on July 22; the group includes Shavonne Blades, publisher of Boulder’s Yellow Scene magazine, as well as several individuals with active YouTube channels. Loma’s CutThePlastic boasts around 4,000 subscribers; Carol Funk’s titular channel is followed by several hundred; Winston Noles’s Otto the Watchdog has attracted approximately 11,000; John Reed’s Ghost Writer tops 5,000; Elijah Wesbrock’s “Silent Citizen” (which appears to be offline) collected 13,000; and Michael Sexton’s Pikes Peak Accountability has 16,000-plus. Previous Sexton litigation includes a pair of 2020 lawsuits against the Colorado Springs Police Department.
The suit filed in July by Yoast details separate episodes involving each plaintiff, with the first of Loma’s dating to May 28, 2020, when he was livestreaming a peaceful protest downtown. Here’s an example of his work during that time:
As officers begin tear-gassing the protesters on May 28, the lawsuit notes, “Mr. Loma can be heard yelling at police that he is live online and filming their actions. A few seconds after Mr. Loma informs the police that he is filming, the officers launch more tear-gas directly at his location, despite there being no illegal or threatening conduct in the vicinity. Throughout the night, Mr. Loma was tear-gassed while simply being present at the peaceful protest and filming the police’s actions.”
The suit contends that Loma was also targeted by police for filming protests on May 30 and September 28 of that year – and during the second demonstration, he wore a helmet with the word “PRESS” on it.
This designation was entirely appropriate, Yoast contends: “In our complaint, we have classified members of the press to include both members of the community who disseminate information to the public of public importance and individuals with journalistic credentials. The First Amendment does not differentiate between these two groups as far as press is concerned. Both of these groups are considered members of the press under the First Amendment.”
The damages section of the lawsuit states: “As a direct and proximate result of the unconstitutional acts, including the use of excessive and unreasonable force against and/or the wrongful arrests of the Plaintiffs by officers and agents of the DPD, and the City’s policies, practices, customs, and/or lack of supervision and training, which were the moving force and cause of the officers’ misconduct, Plaintiffs have suffered injuries, damages, and losses, including without limitation physical injuries, pain and suffering, loss of enjoyment of life, humiliation, anxiety, mental and emotional distress, and fear of being shot, gassed, injured, arrested, charged, detained, and/or incarcerated for lawfully exercising their First Amendment constitutional rights to free press, peacefully assemble, associate, express their opinions and beliefs, observe and document public events and demonstrations, and redress their grievances, particularly their opinions and beliefs about racial injustice and police brutality.”
But Loma had come to the attention of Denver authorities before the George Floyd protests, and Yoast maintains that their response to his actions “shows and highlights the gross misuse of area restrictions as they relate to individuals who are exercising their First Amendment rights in downtown Denver.”
To illustrate this point, the suit filed last October describes Loma’s arrest for assault after allegedly spitting on a woman during a February 2019 incident – assertions that were immediately disputed and eventually dismissed that August. During the intervening period, however, Assistant City Attorney Melissa M. Drazen Smith sent an email to a downtown property owner and others concerned about the activities of Loma and Eric Brandt, another activist who won multiple free-speech awards from Colorado communities before being convicted and jailed last year on charges related to threatening judges. The email, which makes specific reference to area restrictions, reads:
Thank you all for participating in the efforts to accommodate free speech on the mall. I appreciate the difficulty when there are people in the group who consistently step on that line. We continue to prosecute those folks vigorously, but have had limited success in getting a penalty that really deters the behavior. Please feel free to send me an email about the impact either Mr. Brandt or Mr. Loma’s behavior on you and your business. I will make sure that the judge gets a copy or I may have our
attorney read it into the record. Hopefully, when we get another conviction, the court will find it compelling and issue a real consequence on them including an area restriction.
This email was sent on March 4, 2019, and two weeks later, on March 18, Loma received a year-long area restriction even though the case against him was still pending. Since then, the complaint notes: “Plaintiff’s attorney’s law firm has defended several Denver Municipal cases involving peaceful protestors just in the last year where individuals were issued an Area Restriction or put on notice of the issuance of an Area Restriction in their municipal criminal case. In those cases, the Area Restrictions were identical and incorporated most of downtown Denver. To Plaintiff’s knowledge, since 2019, the City Attorney has expanded the area of restricted locations and has issued or tried to issue them in most, if not all, municipal cases involving peaceful protests.”
The lawsuit summarizes the impact of such restrictions with this: “The policy of keeping protestors and other free speech advocates out of the downtown Denver area is the driving force behind the continued wrongful arrests or wrongful summons issued by the Denver Police Department, including, but not limited to, Mr. Loma. Knowing that if you are arrested or summoned while participating in a peaceful protest will lead to a yearlong Area Restriction for the majority of downtown Denver will, and does, have a chilling effect on Free Speech. This practice incentivizes Denver police officers to make arrests or issue Summonses knowing that the City Attorney will seek an Area Restriction against that individual preventing them from participating in future protests in the downtown Denver area.”
The Denver City Attorney’s Office has not responded to questions from Westword regarding the lawsuits or its use of area restrictions. But Kelly Jacobs, communications and strategy director for the Denver Department of Public Safety, says, “While it would be inappropriate to comment specifically on either lawsuit,” the department can share some information. “The Denver Police Department did not receive a complaint about this incident,” she says of the events cited in the October 2021 lawsuit.
As for the incident cited in the lawsuit filed in July, “Mr. Loma briefly spoke with a DPD Internal Affairs Sergeant about the incident and stated that he could not be interviewed until his attorney approved,” Jacobs says. “Mr. Loma did not follow up with the Sergeant, nor did he respond to repeated requests for information. Due to the lack of information, the case was closed.” She adds that another plaintiff, Winston Noles, “briefly spoke with a DPD Internal Affairs Sergeant about the incident. Mr. Noles did not share photos or videos he said he had of the incident, and did not disclose information needed to look into this incident further. Due to the lack of information, the case was closed.”
Click to read Shavonne Blades, et al., v. City and County of Denver, et al., and Brian Loma v. City and County of Denver, et al.
