A federal judge concluded on Thursday that an Englewood police officer did not violate the constitutional rights of a man by arresting him after he attempted to video record the officer from a public sidewalk.

Five months ago, the federal appeals court with jurisdiction over Colorado recognized for the first time that the First Amendment protects the ability of bystanders to record law enforcement officers performing their duties in public.

But U.S. District Court Judge Charlotte N. Sweeney believed the lawsuit brought by Ian Ewert against Officer Brian Martinez had not shown a violation of Ewert’s First Amendment rights. Cell phone footage depicted Martinez barking orders at Ewert to “go over there” when Ewert approached to record the officer as he interviewed Ewert’s neighbor. Within 20 seconds, Martinez had escalated the encounter by placing Ewert in handcuffs.

Sweeney felt Martinez had acted reasonably under the circumstances, as there were two key distinctions between Ewert’s case and other court rulings implicating the right to record. First, Ewert was not a mere bystander to the police activity, as it was his argument with his neighbor that prompted Martinez’s response in the first place.

Second, Ewert had volunteered to Martinez that the reason he was recording the officer’s interview with Ewert’s neighbor was “to make sure that he’s not lying.”

“There was no constitutional right here for a subject of an investigation to insert himself into the investigation to record an interview to ensure the truth was ‘being told’,” Sweeney said in an oral ruling from her courtroom.

Martinez had asked the judge to grant him qualified immunity, which generally shields government employees from civil liability unless they violate a person’s clearly-established legal rights. Judges typically look to prior court rulings when deciding if a legal right is clear, only finding an officer’s conduct unreasonable if a closely-related case said as much.

Sweeney admitted the issue in Ewert’s case was unique, as there were no previous rulings that addressed this exact set of circumstances. She warned, however, that the U.S. Court of Appeals for the 10th Circuit appears increasingly strident that qualified immunity be awarded to defendants without a “pretty exact case” to the contrary.

Around 8:30 p.m. on April 9, 2020, Martinez responded to the 4200 block of South Bannock St. to a call about a disturbance involving neighbors. According to the officer’s report, Ewert’s neighbor allegedly had a problem with Ewert’s dog defecating in his yard, and the neighbor in turn blew an air horn at Ewert.

When Martinez arrived, he went to talk with Ewert’s neighbor. There was no body-worn camera footage of the encounter.

“This is a big problem,” Raymond K. Bryant, Ewert’s attorney, argued at Thursday’s hearing. “Body cameras are how we identify police misconduct, how we identify what information the officer had at the time and whether the officer had probable cause” of a crime.

Ewert’s cell phone footage, which was largely pointed at the ground, depicted him walking on the sidewalk toward his neighbor’s property. Martinez then told Ewert to go away.

“I’m on a public sidewalk,” Ewert responded.

“Go over there,” Martinez yelled.

“I’ll stay my distance,” Ewert told the officer, adding, “I want to make sure that he’s (the neighbor) not lying to you.”

Approximately five seconds later, Martinez walked up to Ewert, grabbed him and spun him around, within 20 seconds of the start of the encounter. The cell phone then captured the sound of handcuffs being applied.

“It doesn’t matter, you need to listen,” a voice told Ewert. Martinez and another officer then marched Ewert to a patrol vehicle.

In his case report, Martinez wrote that he had repeatedly told Ewert “to go back to his house” because “this is an officer safety issue.” He cited Ewert under the Englewood Municipal Code, which makes it a violation to “knowingly obstruct or interfere with or hinder a peace officer” who is performing his or her duties.

According to Ewert’s lawsuit, the charge was later dismissed. Ewert then brought two claims against Martinez: an alleged violation of his First Amendment rights by retaliating against him for recording the officer in public, and violating Ewert’s Fourth Amendment rights by arresting him without probable cause of a crime.

He contended that even if Martinez did not want Ewert to be nearby, the officer himself could have moved, rather than giving “unlawful” orders to Ewert.

“Officers do not have the right to just order people to do what they want whimsically or arbitrarily. This is the hallmark of a police state, not the one we live in,” Bryant argued. “He did not come within 15 feet of that officer.”

Martinez, meanwhile, maintained his conduct was reasonable given that Ewert was a suspect in his investigation of the disturbance and there was a need to keep Ewert separated from the neighbor. Martinez’s lawyer, David J. Goldfarb, acknowledged that courts have recognized the First Amendment protects a person’s right to record law enforcement officers in public.

“The problem with these cases is they don’t account for someone who is standing right there filming, and they are also a party to that dispute,” he told Sweeney.

In July, the 10th Circuit formally recognized the right to record police, finding the right was clearly established at least as early as May 2019 – 11 months prior to Ewert’s own encounter with police. However, that case, Irizarry v. Yehia, involved a bystander video recording a traffic stop in Lakewood, who was under no suspicion himself of violating a law or ordinance.

Sweeney agreed the difference was important. Even though Englewood’s ordinance did not require Ewert to physically interfere with Martinez’s investigation, his admission that he wanted to ensure the neighbor was “not lying to you” could have given Martinez the reasonable belief Ewert was trying to meddle in police business.

“That can be construed as nothing but intimidation,” she said.

Ultimately, Sweeney ruled Martinez was entitled to qualified immunity, as no prior court decisions had held under similar circumstances that an officer would violate the First and Fourth amendments by acting as Martinez did.

“There has been no case presented that even comes close to establishing the plaintiff had the right he is insisting upon here: of being a subject to complaint and insisting on being close enough to the interview of an officer with a complaining party to ensure the complaining party is telling the truth,” the judge said.

The case is Ewert v. Martinez.