It is possible that Colorado Springs officers violated a man’s First Amendment rights when they arrested him for screaming obscenities at police, a federal judge decided.

As a result, the civil lawsuit from Michael Sexton will proceed, based in part on one officer’s admission that he arrested Sexton simply for saying the F-word repeatedly.

“Under at least one view of the facts that a reasonable jury could adopt, Defendants’ actions violated Plaintiff’s clearly established constitutional rights by arresting Plaintiff for engaging in speech protected by the First Amendment,” wrote U.S. District Court Judge William J. Martínez in a Jan. 19 order.

Sexton’s lawsuit, filed in July 2020, sought several remedies from the court, including monetary damages, apologies from the officers, changes to city policies and additional training. The officers who arrested Sexton asserted qualified immunity, which shields government officials from liability unless they violate a person’s clearly-established legal rights.

Sexton encountered two officers in downtown Colorado Springs who were performing traffic enforcement on Jan. 30, 2019. Sexton, who was on foot, remarked that one officer was “harassing and taxing … innocent civilians.” He asked the other if he was “Doing your good deed for the day, you piece of s—?”

One of the officers, Marvin Forbes, wrote in his report that Sexton began speaking loudly with profanity approximately five feet away, although Sexton disputed that distance.

“It was very difficult to perform my duties relating to the traffic stop, because I needed to keep very close watch,” Forbes added. “I felt he was aggressive and could be dangerous. During this time I felt I could not safely continue to write the traffic summons.”

Transcript from body-worn camera footage showed Sexton engaging Forbes continuously for over two minutes until other police arrived. Sexton was loudly yelling variations of the phrase “f— the police.” Forbes explained the situation to Officer Peter Tomitsch, who responded: “We got interference. I mean, if we got him, let’s hook him.”

Officer William Giannini read Sexton the Colorado law on disorderly conduct, which prohibits a “coarse and obviously offensive utterance, gesture, or display in a public place” that disrupts the peace. Giannini told Sexton he could “stand on the sidewalk and yell his opinions of the police, but that using the word ‘f—‘ was against the law.”

“Do you want to go to court and lose?” Sexton retorted.

After Sexton refused to provide his identification, Giannini and Tomitsch arrested Sexton. Court records show El Paso County prosecutors dismissed Sexton’s disorderly conduct charge shortly before trial.

Sexton then sued for First and Fourth Amendment violations, claiming police infringed on his right to free speech and retaliated against him for speaking disparagingly about the police. He also alleged the officers lacked probable cause to arrest him.

Sexton contended that he was speaking in a public forum, and that a long line of court cases had held profanity is protected speech. The U.S. Supreme Court, in the 1987 decision of City of Houston v. Hill, invalidated a municipal ordinance that criminalized speech that could annoy or interrupt officers. In 2001, the U.S. Court of Appeals for the 10th Circuit, whose jurisdiction includes Colorado, concluded a woman’s speech was protected when she told a military police officer to “go f—” himself.

“There is simply no compelling justification to restrict all speech that involves ‘offensive’ or ‘coarse,’ language,” Sexton argued to the court.

Lawyers for Colorado Springs and the officers countered that Sexton had no clearly-established right to use profanity “provocatively” and “incessantly” in a way that affected the officers’ performance of their duties.

“Plaintiff was not simply yelling, ‘F— the police!’ in public. He was yelling it at a time and in a place and a manner that physically obstructed a police officer actively performing his duties. Plaintiff’s speech therefore was not protected by the First Amendment,” wrote the Colorado Springs city attorney office.

Martínez determined he could not decide Sexton’s free speech claim in favor of one side or the other because a jury could find a violation of Sexton’s clearly-established constitutional rights. The judge in particular pointed to Giannini’s testimony that he had arrested Sexton for saying “specifically the word f—.”

“After all, the record contains evidence from which a reasonable factfinder could conclude that Plaintiff was arrested based on the specific content – not the volume or the disruptive nature – of his speech,” Martínez wrote. He added that jurors could also plausibly interpret Sexton’s speech as intended to distract the officers from their duties, which would cut against the plaintiff’s claims.

However, the judge sided with the police on Sexton’s other claims. Martínez decided Sexton had not plausibly alleged that the officers lacked probable cause to arrest him for a crime or that they retaliated against him for exercising his First Amendment rights. Last summer, Martínez also dismissed Sexton’s challenge to Colorado’s disorderly conduct law as written, finding it was not so broad as to be unconstitutional.

The case is Sexton v. City of Colorado Springs et al.