A federal judge has declined to dismiss a lawsuit alleging a Denver police officer arrested a man without probable cause of a crime and retaliated against him when the man asked a bystander to record the interaction.

John Collins claimed Officer Austin Barela approached him while he was working to fix a car, then badgered Collins to show identification. When Collins refused, Barela handcuffed him and lectured Collins about “not doing what I’m telling you to do.”

Barela moved to dismiss the lawsuit, asserting he had reasonable suspicion of an offense – Collins allegedly operated the car with illegally-tinted windows – which escalated to probable cause when Collins would not give his ID.

“The problem with Defendant’s argument,” wrote U.S. Magistrate Judge Scott T. Varholak on Monday, “is that the Complaint never alleges that Plaintiff was actually operating the vehicle.”

In his April 17 order, Varholak believed Collins’ lawsuit credibly alleged the officer had no reason to believe Collins violated the law against tinted windows. If so, Collins had no obligation to identify himself.

The magistrate judge also applied a key decision from last summer issued by the U.S. Court of Appeals for the 10th Circuit, which addressed the First Amendment’s protection for people who video record police officers in public. Although the 10th Circuit determined the right to record was clearly established as of May 2019, Varholak indicated the recording of police was clearly protected at the time of Collins’ encounter two months earlier and, in fact, was clear years before that.

According to Collins’ complaint, he was repairing an interior panel on his brother’s car on March 25, 2019. The vehicle was parked on a Denver street. Barela then approached him and captured the interaction on his body-worn camera.

“You have an ID on you, man?” Barela asked. Collins said he did, but did not show it. Barela asked again for Collins to identify himself.

Collins allegedly told a passenger in the car to video record the interaction, and explained to Barela he was just fixing the door.

“Every reasonable officer in Barela’s position would know that he lacked reasonable suspicion to demand identification from Mr. Collins under threat of arrest,” wrote Collins’ attorney, J. Spencer Bryan.

Barela repeatedly pressed Collins for his name and ID. When Collins asked why Barela needed the ID, the officer responded it was “for driving the car.”

Barela then threatened to handcuff Collins if he did not comply, quickly following through by placing the cuffs on him. Barela said he did it “because you’re not giving me your ID like I asked,” and complained that Collins had asked his passenger to record him.

“You’re not doing what I’m telling you to do,” Barela lectured him. “If you just go, ‘Here, sir, here’s my ID,’ and I come back to the car … it’s completely different.”

According to documents the city provided in Collins’ lawsuit, Barela wrote in his report that he previously saw the car Collins was repairing, driving with “heavy, non-transparent window tint.” He allegedly cuffed Collins when Collins “started to put his left hand inside of his hoodie pocket,” causing the officer to fear “he was reaching for a weapon.”

Prosecutors subsequently dismissed the charges against Collins – none of which pertained to tinted windows or failing to show ID – because they believed a conviction was unlikely.

Collins sued Barela for false arrest, alleging the officer lacked probable cause or reasonable suspicion of a crime. He also claimed Barela retaliated against him, arresting Collins for “taking steps to record” the encounter.

Barela asserted qualified immunity, which is a judicial doctrine that generally shields government employees from civil liability unless they violate a person’s clearly established legal rights. The Denver City Attorney’s Office argued Barela had not violated Collins’ rights because he had reasonable suspicion the windows were illegally tinted, followed by Collins’ refusal to identify himself.

As for the recording, “there exists no allegations that Plaintiff ever recorded Officer Barela,” wrote Assistant City Attorney Hollie R. Bikhloz, adding that telling an acquaintance to record is not clearly protected activity under the First Amendment.

Varholak disagreed on both counts. Colorado’s law against tinted windows applies to the “operation” of vehicles. Because it was questionable whether Barela saw Collins operating the car, it was plausible the officer lacked reasonable suspicion of a crime.

For the retaliation claim, Varholak cited the 10th Circuit’s decision in Irizarry v. Yehia, which found the right to record police was clearly established as of May 2019. However, the appellate court relied upon previous rulings as late as 2017 in reaching its conclusion. Therefore, Varholak agreed the right to record was clear prior to May 2019.

In denying qualified immunity, Varholak added he did “not find constitutional significance in the fact that neither (Collins) nor his acquaintance actually recorded the incident.”

The case is Collins v. Barela.