The Colorado-based federal appeals court sided with two Denver police officers on Tuesday, finding they were entitled to immunity outright or to a second look at their arguments in a lawsuit over a man’s arrest for video recording at a police station.

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.

Previously, a judge advanced three of Detreville’s claims to a jury trial. He concluded the defendants did not explicitly argue they were entitled to qualified immunity, which is a judicial doctrine shielding government employees from civil lawsuits unless they violate a person’s clearly established rights.

But a three-judge panel of the U.S. Court of Appeals for the 10th Circuit believed the officers had, in fact, argued they were immune on every claim. The panel returned two of the claims to the trial court for further analysis, and decided outright that Gurevich and Weinheimer could not be liable on Detreville’s claim that he was arrested in retaliation for exercising his free speech rights.

It was “not clearly established that arresting Mr. Detreville would violate his right to be free from First Amendment retaliatory arrest,” wrote Judge Scott M. Matheson Jr. in the panel’s July 8 order.

On the night of Nov. 10, 2019, as depicted on his cell phone footage, Detreville arrived at the District 5 station along Peoria Street. The complex houses other government offices in addition to police. After walking around, he said he was going to see if police would respect his First Amendment right to record.

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.

In September, U.S. District Court Chief Judge Philip A. Brimmer believed the officers did not have probable cause to arrest Detreville for his conduct. 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.

Brimmer granted the officers qualified immunity on Detreville’s claim of unlawful arrest. But in Brimmer’s view, the defendants neglected to invoke qualified immunity on Detreville’s remaining claims, which included retaliatory arrest, malicious prosecution and an equal protection violation. The final claim hinged on evidence that a White man recorded video at the station shortly after the arrest of Detreville, who is Black. Although Gurevich was allegedly aware of the White man, he did not arrest him.

The officers immediately appealed to the 10th Circuit, arguing Brimmer’s finding of arguable probable cause should have been sufficient to resolve the case in their favor. Detreville, meanwhile, warned against letting “‘reasonable mistake’ simply become a magic phrase for officers to exclaim when they find themselves in trouble.”

“Are you questioning qualified immunity as a doctrine? Its legitimacy? Are you questioning that before us?” asked Judge Allison H. Eid during oral arguments.

When courts excuse officers’ constitutional violations because they were mistaken about the law, responded attorney Zachary L. Shiffler for Detreville, “we are necessarily weighing these judicially created immunities more than constitutional rights. That’s something we need to be cognizant of.”

Ultimately, the panel agreed Brimmer incorrectly denied immunity to the defendants on Detreville’s retaliatory arrest claim because the officers believed there was probable cause of an offense. 

As for the malicious prosecution claim, the panel ordered Brimmer to look again at whether qualified immunity applied, and specifically whether the evidence in Detreville’s ensuing criminal case could have established probable cause.

Finally, Matheson noted probable cause was not a factor at all in Detreville’s claim that Gurevich arrested him, but not a White man, for similar conduct. Instead, the panel directed Brimmer to examine “whether Mr. Detreville’s right to equal protection against racially selective law enforcement was clearly established when the officers arrested him.”

The case is Detreville v. Gurevich et al.