Last month, we reported about a complaint filed by Michael Sexton against the Colorado Springs Police Department over an F-word-inspired bust, as well as the City of Englewood's settlement with controversial activist Eric "Fuck Bad Cops" Brandt over a similar incident. And now, civil rights attorney David Lane of Denver's Killmer, Lane & Newman LLP is suing the Denver Police Department in U.S. District Court for the District of Colorado on behalf of activists Brian Loma and Mikel Whitney, over their 2018 cuffings that followed uses of the phrase "Fuck the police" on the 16th Street Mall.
"Once again, I'm trying to paper-train the Denver Police Department," says Lane. "But they never seem to learn."
The defendants in the lawsuit include the City and County of Denver and five Denver police officers. Denver City Attorney's Office spokesperson Ryan Luby declined to comment about the complaint.
Here's how Lane describes the September 23, 2018, incident:
"Caryn Sodaro is an activist for those without homes who feeds the homeless on the 16th Street Mall," he notes, "and Whitney and Loma were helping out when the police began arresting everybody. That's when Brian Loma started shouting, 'Fuck the police.'"
Lane adds, "The cops were smart enough to know they can't arrest people for saying 'Fuck the police,' but they thought they'd found a clever way around that prohibition by asking this little family having breakfast on the patio outside a restaurant, 'Are you disturbed by this language?' And the family said, 'Yes.' So they arrested Loma."
These events can be seen in the following clip, shared on Brandt's YouTube channel. Loma's arrest takes place around the three-minute mark.
The situation didn't end there.
"Whitney was filming all of this," Lane continues, "and he went over to take a picture of the family, because they were in a public place and they'd complained about his friend. The cops said, 'Don't take any pictures,' and he said, 'I'm not taking any fucking pictures,' and they slapped the cuffs on him, too."
According to the lawsuit, Loma and Whitney were incarcerated for 36 hours and 56 hours, respectively, before being released on bond. Early in 2019, the disturbing-the-peace charges against them were dismissed.
In Lane's view, arrests for using profanities in public places keep happening because police officers "are very poorly trained" and "never suffer any consequences for these things."
Indeed, law enforcement officers have long been indemnified against personal liability for their actions on the job — but that changed with the passage of a police-reform measure in Colorado earlier this year. Senate Bill 217 contains this passage: "A peace officer...employed by a local government who, under color of law, subjects or causes to be subjected, including failing to intervene, any other person to the deprivation of any individual rights that create binding obligations on government actors secured by the Bill of Rights, Article II of the state constitution, is liable to the injured party for legal or equitable relief or any other appropriate action."
Because the Loma-Whitney matter took place before that law went into effect, the police defendants won't have to pay if the plaintiffs prevail in federal court. But Lane stresses that "we will soon be filing cases like this in state court with state court juries, and if the cops are knowingly violating the Constitution, they could be on the hook for some of these judgments. Maybe that will finally teach these cops how to actually follow the Constitution."
Click to read Brian Loma and Mikel Whitney v. the City and County of Denver, et al.