A federal judge green-lit a jury trial last week on a man’s claim that a Denver police officer engaged in racially selective enforcement of the law by arresting him for video recording at a police station, while not arresting a White man who filmed in the same spot.

U.S. District Court Judge Philip A. Brimmer concluded a single claim from plaintiff Kevin Detreville would proceed against Officer Sergey Gurevich, after the Denver-based federal appeals court found Brimmer had previously erred in sending a broader swath of Detreville’s claims to trial.

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

Detreville 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, Officer Julie Weinheimer stepped out and started speaking with Detreville.

“What’s your name and badge number?” Detreville asked. 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.

Detreville sued both officers, alleging unlawful arrest, malicious prosecution, retaliation for exercising his First Amendment rights, and a violation of his right to equal protection under the law. His equal protection claim hinged on allegations that Gurevich arrested Detreville, who is Black, but did not arrest a White man who recorded video at the station days after Detreville did.

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.

Brimmer believed the officers lacked probable cause to arrest Detreville for his conduct, but he also found that an officer “could have made a reasonable mistake” in believing the sign applied to the vestibule. Therefore, there was “arguable” probable cause to arrest him.

On Detreville’s claim of unlawful arrest, Brimmer granted the officers qualified immunity, a judicial doctrine that shields government officials from civil lawsuits unless they violate a person’s clear legal rights. In Brimmer’s view, however, the defendants neglected to invoke qualified immunity on Detreville’s remaining claims. He allowed them to proceed.

But last July, the U.S. Court of Appeals for the 10th Circuit believed the officers had, in fact, argued they were immune from every claim. The court 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 returned the remaining two claims against Gurevich to Brimmer, so he could fully analyze qualified immunity.

In a March 13 order, Brimmer denied qualified immunity to Gurevich on Detreville’s equal protection claim, citing several prior court decisions prohibiting selective enforcement of the law based on race.

“Therefore, the Court finds that, at the time of Mr. Detreville’s arrest, Mr. Detreville’s right against racially selective law enforcement was clearly established,” he wrote.

However, Brimmer found Gurevich was immune to Detreville’s malicious prosecution claim. The statement Gurevich wrote in support of Detreville’s arrest indicated that Detreville was recording in the entryway, and Brimmer already determined that Gurevich’s interpretation of the sign gave him arguable probable cause for an arrest.

A trial has not yet been scheduled.

The case is Detreville v. Gurevich et al.