A jury will decide whether two Denver police officers violated a man’s First Amendment rights when they arrested him for recording at a police station, a federal judge ruled on Monday.

There was no dispute that a sign was posted on the window of the District 5 station in northeast Denver prohibiting video recording “in” the facility. The question was whether Officers Sergey Gurevich and Julie Weinheimer had grounds to arrest Kevin Detreville while he was standing in an enclosed entryway leading to the lobby and recording on his cell phone.

In a Sept. 30 order, U.S. District Court Chief Judge Philip A. Brimmer concluded the evidence showed Detreville was not recording in the station at the time of his arrest. Therefore, a jury should decide whether the officers acted on a mistaken belief about what the sign prohibited, or if they arrested Detreville because of his First Amendment activity.

“The Court finds that the ‘close temporal proximity’ between Mr. Detreville’s protected speech and his arrest, coupled with the absence of probable cause, raises ‘a strong inference’ that defendants were motivated by plaintiff’s speech,” Brimmer wrote.

On the night of Nov. 10, 2019, as depicted on his cell phone footage, Detreville arrived at the District 5 station along Peoria St. The complex houses other government offices in addition to police.

“What I’m doing is perfectly legal, y’all. These are my vehicles. They’re your vehicles,” Detreville said as he recorded police cars parked outside. After walking around, he said he was going to see if police would respect his First Amendment right to record.

“All right, we’re gonna head inside now,” Detreville said.

He continued to a walkway leading up to the station. Outside of the reception area was an enclosure, described by the parties as an awning, vestibule or entryway. As Detreville entered the vestibule and stood outside the station door, Weinheimer stepped out and started speaking with Detreville.

“What’s your name and badge number?” Detreville asked her. Weinheimer handed him her card. She asked if she could help Detreville with anything, and he repeated his demand for her name and badge number.

“Yes, I literally just handed you my card,” Weinheimer responded. “I walked out the door, you put a camera in my face, I’m asking how I can help you.”

Gurevich then arrived, informing Detreville that recording was not allowed “on our property. If you don’t stop recording, we’ll have to arrest you.” Weinheimer pointed to a sign in the vestibule, affixed to the reception area’s window, that read, “No video recording allowed in the Denver District 5 Station without prior permission from the Chief of Police.”

Gurevich gave Detreville a “second warning” to stop recording, to which Detreville replied that recording was his First Amendment right.

“It’s not, actually,” Weinheimer said, placing him in handcuffs. The officers took him inside to be booked. Detreville stayed in jail for three days. Prosecutors subsequently dismissed the charges.

Both parties moved to end the lawsuit in their favor, in whole or in part, without a trial. Most of Detreville’s claims hinged on whether he was, in fact, doing something prohibited by the sign when recording in the entryway outside the front door.

The evidence shows Detreville “was ‘in’ the Station and that filming was prohibited in that area,” argued the Denver City Attorney’s Office, conceding it was also possible the officers were “mistaken about the boundary of what was ‘in’ the Station.”

In Brimmer’s view, however, the officers did not have probable cause to arrest Detreville for recording in the entryway to the station.

“The sign does not say no recording ‘of the Denver Police District 5 Station;’ no recording ‘of the inside of the Denver Police District 5 Station from outside the Station;’ or no recording ‘near the Denver Police District 5 Station,'” he wrote.

But Brimmer simultaneously found an officer “could have made a reasonable mistake” in thinking the sign applied to the vestibule. Therefore, there was “arguable” probable cause to arrest Detreville. On Detreville’s unlawful arrest claim, consequently, Brimmer granted the officers qualified immunity, which shields government officials from civil liability unless they violate a person’s clear legal rights.

Because the defendants neglected to invoke qualified immunity on Detreville’s remaining claims, Brimmer largely refused to resolve them without a trial. To Detreville’s allegations that the officers arrested him in retaliation for his First Amendment-protected recording, Brimmer agreed a jury could find a violation.

Brimmer also found a trial was warranted on Detreville’s claim for malicious prosecution, as a jury “could conclude that Officer Gurevich’s motive was to stop Mr. Detreville’s recording anywhere on the property, regardless of whether he was filming ‘in’ the Station.”

Finally, Brimmer found there was a factual dispute for jurors about whether Gurevich saw a White man recording outside the station three days later and did not arrest him, despite arresting Detreville, who is Black. Such conduct, if proven, could amount to a violation of Detreville’s constitutional right to equal protection of the laws.

A trial is scheduled for January.

The case is Detreville v. Gurevich et al.