A federal judge ruled last month that a jury will evaluate whether a Denver police officer violated a man’s First Amendment rights by knocking his cell phone onto the ground in retaliation for video recording.

Brian Loma was recording the city’s operation to dismantle a homeless encampment in November 2020 when he began yelling at the police officers present to identify themselves. When he got close to Sgt. Jeffery Berger to record his nametag, Berger hit Loma’s cell phone, sending it onto the ground.

Loma sued Berger for allegedly retaliating against his constitutionally protected activity. Berger countered that he merely sought to create distance between himself and Loma, not to intentionally stop him from filming.

In a Dec. 5 order, U.S. District Court Judge Nina Y. Wang concluded a jury would need to decide which version of events to believe.

“Here, the video evidence of the encounter shows that only seconds after Mr. Loma filmed Sergeant Berger’s nametag, Sergeant Berger knocked Mr. Loma’s phone to the ground,” she wrote. Therefore, “a reasonable jury could conclude that the filming of Sergeant Berger’s nametag was the substantial or motivating factor behind his conduct.”

Loma is an activist who records encounters with police and posts the videos online. On Nov. 17, 2020, Loma arrived before sunrise at the cleanup of an encampment near 19th Ave. and Emerson Street. On the video, Loma said city workers were “building a concentration camp.”

“Name and badge number. Name and badge number. Identify,” Loma instructed an officer standing nearby. “Name and badge number, b—h.”

After repeatedly demanding the officer say their name, other officers showed up and rattled off their last names and badge numbers.

“That’s how it’s done!” Loma responded.

When Berger did not answer, Loma said, “I am your boss.” He approached Berger, who flashed his nametag into the lens as Loma moved forward to capture it. The video then cut to the pavement as Berger pushed the camera away.

“You’re too close,” a voice said.

“I want you to obey next time,” Loma responded.

After Loma filed suit alleging his constitutional rights were violated, the city argued that Berger’s intent was not to stop Loma from recording entirely.

“Sgt. Berger was confronted what he reasonably perceived was an emergency circumstance. An individual who was speaking to him in a belligerent tone was reaching for his chest in an already tense environment, when Sgt. Berger reacted to that circumstance and pushed the phone away inadvertently knocking it to the ground,” wrote Assistant City Attorney Kevin McCaffrey.

“The context in which Defendant hit the phone out of Plaintiff’s hands,” responded attorney S. Birk Baumgartner for Loma, “strongly suggests that he was reacting out of frustration and anger that Plaintiff was able to capture on film the information that Defendant was withholding from him.”

Wang observed the evidence showed Berger hit the phone only after Loma recorded his nametag. Whether the physical reaction stemmed from retaliation or from Berger’s desire to protect himself was something for a jury to weigh, she concluded.

At the same time, Wang sided with Berger on Loma’s related claim of excessive force. She agreed with Berger’s argument that pushing a camera, without any injury inflicted on the camera holder, is not a recognized example of excessive force.

“Notably, Mr. Loma does not direct the Court to any cases involving the use of ‘force’ solely against an individual’s property,” Wang wrote.

The case is Loma v. Berger.