Detreville v. Gurevich et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 21-cv-00638-PAB-MEH
KEVIN DETREVILLE,
Plaintiff,
v.
SERGEY GUREVICH, and
JULIE WEINHEIMER,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on Plaintiff’s Motion for Partial Summary
Judgment Against Defendant Gurevich [Docket No. 71] filed by plaintiff Kevin Detreville,
and Defendants’ Cross Motion for Summary Judgment [Docket No. 77] filed by Officer
Sergey Gurevich and Officer Julie Weinheimer (collectively, the “defendants”). The
Court has jurisdiction pursuant to 28 U.S.C. § 1331. This case arises out of Mr.
Detreville’s arrest on November 10, 2019.
I. 	BACKGROUND1
On November 10, 2019, Mr. Detreville, a Black man,2 went to the Arie P. Taylor
Municipal Center. Docket No. 71 at 2, ¶ 1. The Arie P. Taylor Municipal Center is a
1 The following facts are undisputed unless otherwise indicated.
2 Neither party included the fact that Mr. Detreville is a Black man in the
undisputed fact sections of their briefs. However, the Court finds that the parties do not
dispute that Mr. Detreville is a Black man. See Docket No. 1 at 1, ¶ 1 (stating that Mr.
Detreville is an “African-American male”); Docket No. 80 at 18 (stating that plaintiff is
“African-American”); Docket No. 77 at 14 (stating that Mr. Detreville is “Black”).
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large plaza that includes the Denver District 5 Police Station (the “Station”) and several
other municipal and state buildings. Id., ¶ 2. Mr. Detreville walked around the plaza,
while filming with his cell phone, for approximately six minutes. Id., ¶ 3. While filming,
Mr. Detreville walked along the sidewalk and arrived at the only public entrance to the
Station. Id., ¶ 4; Docket No. 77 at 2, ¶ 3. On the sidewalk leading up to the entrance,
there were no signs prohibiting video recording. Docket No. 71 at 2, ¶ 5.3
The public entrance to the Station has a glass entryway,4 depicted in the
following photograph:
3 Defendants dispute this fact, arguing that “a sign was posted on one of the
windows of the entryway area prohibiting filming in the Denver District 5 station.”
Docket No. 76 at 2, ¶ 5. This response does not dispute plaintiff’s proffered fact that
there were no signs along the sidewalk leading up to the entrance. Accordingly, the
Court deems this fact undisputed.
4 The parties use different terms to refer to this area. Compare Docket No. 77 at
2, ¶ 4 (describing the area as the “entryway/vestibule”) with Docket No. 80 at 1-2, ¶ 4
(describing the area as the glass “awning”). For clarity, the Court will refer to the area
as the “entryway,” but finds no material difference between the parties’ descriptive
terms.
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Docket No. 77 at 2-3, ¶ 7. The entryway has a sign that says, “POLICE.” Id. at 2, ¶ 6.
The entryway is enclosed on the top, the sides, and the front, except an area the size of
a double door in the front, which is open. Id., ¶ 5; Docket No. 80-10.5
Mr. Detreville walked into the entryway and continued filming. Docket No. 77 at
2, ¶ 4; Docket No. 80 at 1-2, ¶ 4. There is only one door at the public entrance to the
Station. Docket No. 80 at 4, ¶ 2. Mr. Detreville remained outside of that door until after
he was arrested. Id. A sign posted on the inside of the window next to the door said,
“No video recording is allowed in the Denver Police District 5 Station without prior
permission from the Chief of Police.” Docket No. 71 at 3, ¶¶ 14-15; Docket No. 77 at 4,
¶ 10; Docket No. 80 at 4, ¶ 3. The sign cites to Colo. Rev. Stat. § 18-9-117 as the legal
authority for the directive. Docket No. 77 at 3, ¶ 9.
Officer Weinheimer opened the door and asked Mr. Detreville if he needed
assistance. Docket No. 71 at 3, ¶ 8. Mr. Detreville asked Officer Weinheimer where to
find a complaint form and then asked for her name and badge number. Id., ¶ 9. Officer
Weinheimer radioed for assistance. Id., ¶ 10. Officer Gurevich then entered the lobby
of the Station from an interior door. Id. Mr. Detreville was standing approximately two
to three feet from the door when Officer Gurevich arrived. Id., ¶ 11. Mr. Detreville
greeted Officer Gurevich and asked for his name and badge number. Id., ¶ 12. Officer
Gurevich told Mr. Detreville, “We do not allow recording on our property. If you do not
5 Plaintiff’s response to this fact states, “DENY. The glass ‘awning’ outside of the
door to the Station is not fully enclosed on all sides.” Docket No. 80 at 2, ¶ 5 (citing
Docket No. 80-5 at 1; Docket No. 80-10). This response does not refute defendants’
proffered fact that the entryway is enclosed on most sides, except that the entryway
does not have a physical door. Plaintiff’s cited exhibit depicts an entryway that is
enclosed by glass on most sides and is partially open at the front. See Docket No. 80-
10. Accordingly, the Court deems this fact undisputed.
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stop recording, we will have to arrest you.” Id., ¶ 13; Docket No. 77 at 4, ¶ 12. Officer
Weinheimer then pointed to the sign and said, “It’s actually written right there.” Docket
No. 77 at 4, ¶ 13.
Officer Gurevich told Mr. Detreville that he was on property owned by the City
and County of Denver and ordered Mr. Detreville to stop recording. Docket No. 71 at 4,
¶ 18. Officer Gurevich told Mr. Detreville, “Please stop recording, and we can help you
out.” Id., ¶ 19. Mr. Detreville stated, “this is my First Amendment right.” Docket No. 71
at 4, ¶ 21; Docket No. 76 at 5, ¶ 21; see also Docket No. 71-1 at 07:53-07:57. In
response to Mr. Detreville’s assertion of his First Amendment right to record, Officer
Weinheimer said, “It’s not actually.” Docket No. 71 at 4, ¶ 22. Defendants did not
inform Mr. Detreville that he could continue recording further away from the door. Id.,
¶ 20. Throughout the encounter, Mr. Detreville never blocked the entrance of the
Station. Id. at 5, ¶ 29.6
Defendants arrested Mr. Detreville for “Unlawful Conduct on Private Property” in
violation of Colo. Rev. Stat. § 18-9-117 because Mr. Detreville would not stop recording.
Docket No. 80 at 4, ¶ 7; see also Docket No. 80-5 at 1. Mr. Detreville was arrested
approximately two minutes after his initial contact with Officer Weinheimer. Docket No.
6 Defendants’ response to this fact states, “DENY.” Docket No. 76 at 5, ¶ 29
(citing Docket No. 76-3 at 13, 104:8-105:12; Docket No. 76-6). This Court’s Practice
Standards provide that if the nonmovant denies any asserted undisputed material facts
set forth by the movant, “[a]ny denial shall be accompanied by a brief factual
explanation of the reason(s) for the denial and a specific reference to material in the
record supporting the denial.” See Practice Standards (Civil Cases), Chief Judge Philip
A. Brimmer, § III.F.3.b.iv. Defendants provide no explanation of the reason for their
denial. Accordingly, the Court deems this fact admitted. See id., § III.F.3.b.ix. (“Failure
to follow these procedures may result in an order striking or denying the motion or brief
or may cause the Court to deem certain facts as admitted.”).
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71 at 4, ¶ 25. Defendants were performing their official duties at the time of plaintiff’s
arrest. Id. at 4-5, ¶ 28. Mr. Detreville spent three days in jail. Id. at 5, ¶ 31.7 On March
2, 2020, Mr. Detreville’s criminal case was dismissed. Id., ¶ 32.
Prior to Mr. Detreville’s arrest, Officer Gurevich received specific training on the
First Amendment and procedures for encountering First Amendment auditors. Id., ¶ 33.
The training bulletin instructed that, “all individuals have the right to record police
officers and public employees in public places. Additionally, unless recording is
specifically prohibited, individuals may not be prevented from recording in public places
or within government buildings.” Id. at 5, ¶¶ 34, 36; Docket No. 76 at 6, ¶ 34; Docket
No. 71-11 at 1. Officer Gurevich and Officer Weinheimer’s supervisor was Sergeant
Kenneth Morrill. Docket No. 77 at 4, ¶ 18.
Officer Weinheimer did not work on November 13 or November 14, 2019. Id. at
4-5, ¶¶ 19-20. Officer Gurevich did not work on November 14, 2019. Id. at 5, ¶ 21.
Officer Gurevich was working at the desk in the Station on November 13, 2019. Docket
No. 80 at 4, ¶ 9. There were multiple computer monitors at the desk which displayed
video from internal and external security cameras. Id. at 4-5, ¶ 10; Docket No. 84 at 4,
¶ 10. A Caucasian man, John Reed,8 was video recording on November 13, 2019 and
Officer Gurevich did not arrest the man. Docket No. 80 at 5, ¶ 11.
7 Defendants’ response to this fact states, “DENY. Plaintiff was taken into
custody around 6:30 p.m. on November 10, 2019 and was released on the morning of
November 12 after a 9:30 a.m. arraignment.” Docket No. 76 at 6, ¶ 31 (citing Docket
No. 76-7). This response does not refute plaintiff’s proffered fact that he was in custody
for three days: November 10, November 11, and November 12, 2019. Accordingly, the
Court deems this fact undisputed.
8 Neither party includes the Caucasian man’s name in the respective fact
sections of their briefs. However, the Court finds that the parties do not dispute that the
Caucasian man is named John Reed. See Docket No. 80 at 17; Docket No. 84 at 2.
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Mr. Detreville asserts the following claims in his complaint pursuant to 42 U.S.C.
§ 1983: (1) unlawful arrest/failure to intervene in violation of the Fourth Amendment
against both defendants; (2) retaliatory arrest in violation of the First Amendment
against both defendants; (3) malicious prosecution in violation of the Fourth Amendment
against Officer Gurevich only; and (4) an equal protection claim under the Fourteenth
Amendment against both defendants. Docket No. 1 at 8-15, ¶¶ 62-130.
On February 6, 2024, Mr. Detreville filed a motion for partial summary judgment
on his first, second, and third claims against Officer Gurevich. Docket No. 71. Officer
Gurevich filed a response, Docket No. 76, and Mr. Detreville filed a reply. Docket No.
79. On March 8, 2024, defendants filed a cross motion for summary judgment on all
claims. Docket No. 77. Mr. Detreville filed a response, Docket No. 80, and defendants
filed a reply. Docket No. 84.
II. 	LEGAL STANDARD
A. Summary Judgment
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when
the “movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A disputed fact is “material” if,
under the relevant substantive law, it is essential to proper disposition of the claim.
Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). Only disputes
over material facts can create a genuine issue for trial and preclude summary judgment.
Faustin v. City & Cnty. of Denver, 423 F.3d 1192, 1198 (10th Cir. 2005). An issue is
“genuine” if the evidence is such that it might lead a reasonable jury to return a verdict
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for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997). A
movant who bears the burden at trial must submit evidence to establish the essential
elements of its claim. Harper v. Mancos Sch. Dist. RE-6, 837 F. Supp. 2d 1211, 1217
(D. Colo. 2011).
Where “the moving party does not bear the ultimate burden of persuasion at trial,
it may satisfy its burden at the summary judgment stage by identifying a lack of
evidence for the nonmovant on an essential element of the nonmovant’s claim.”
Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1115 (10th Cir. 2001) (quotations
omitted). “Once the moving party meets this burden, the burden shifts to the nonmoving
party to demonstrate a genuine issue for trial on a material matter.” Concrete Works of
Colo., Inc. v. City & Cnty. of Denver, 36 F.3d 1513, 1518 (10th Cir. 1994). The
nonmoving party may not rest solely on the allegations in the pleadings, but instead
must designate “specific facts showing that there is a genuine issue for trial.” Celotex
Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quotations omitted). “To avoid summary
judgment, the nonmovant must establish, at a minimum, an inference of the presence of
each element essential to the case.” Bausman, 252 F.3d at 1115.
When reviewing a motion for summary judgment, a court must view the evidence
in the light most favorable to the non-moving party. Id. Cross-motions for summary
judgment must be viewed separately, and the denial of one does not necessitate the
granting of the other. United States v. Supreme Court of N.M., 839 F.3d 888, 906-07
(10th Cir. 2016) (citations omitted).
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B. Qualified Immunity
“Qualified immunity balances two important interests – the need to hold public
officials accountable when they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when they perform their duties
reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). Under the doctrine of
qualified immunity, “government officials performing discretionary functions generally
are shielded from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person would
have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A court should resolve
questions of qualified immunity at the earliest possible stage of litigation. Anderson v.
Creighton, 483 U.S. 635, 646 n.6 (1987).
To overcome a qualified immunity defense at the summary judgment stage, a
plaintiff must demonstrate (1) that the official violated a statutory or constitutional right,
and (2) that the right was “clearly established” at the time of the challenged conduct.
Surat v. Klamser, 52 F.4th 1261, 1270-71 (10th Cir. 2022). Courts are “permitted to
exercise their sound discretion in deciding which of the two prongs of the qualified
immunity analysis should be addressed first in light of the circumstances in the
particular case.” Pearson, 555 U.S. at 236. Generally, a constitutional right is clearly
established if “the contours of the right [are] sufficiently clear that a reasonable official
would understand that what he is doing violates that right.” Surat, 52 F.4th at 1276.
“Ordinarily, in order for the law to be clearly established, there must be a Supreme
Court or Tenth Circuit decision on point, or the clearly established weight of authority
from other courts must have found the law to be as the plaintiff maintains.” Torres v.
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Madrid, 60 F.4th 596, 603 (10th Cir. 2023); see also Irizarry v. Yehia, 38 F.4th 1282,
1293 (10th Cir. 2022). The relevant precedent is “considered on point if it involves
materially similar conduct or applies with obvious clarity to the conduct at issue.”
Irizarry, 38 F.4th at 1294 (emphasis in original); see also Shepherd v. Robbins, 55 F.4th
810, 815 (10th Cir. 2022). “To be clear, we do not require plaintiffs to engage in a
scavenger hunt for a prior case with identical facts. We ask whether the existing law
provides fair warning to a defendant.” Shepherd, 55 F.4th at 815 (citations omitted).
III. 	ANALYSIS
A. Preliminary Issues
As a preliminary matter, both Mr. Detreville and defendants have improperly
raised numerous facts throughout the summary judgment briefing in violation of this
Court’s Practice Standards. The Practice Standards on summary judgment motions
state that the movant, in a section of the brief entitled “Statement of Undisputed Material
Facts,” must
set forth in simple, declarative sentences, separately numbered and
paragraphed, each material fact which the movant believes is not in dispute and
which supports movant’s claim that movant is entitled to judgment as a matter of
law. . . . Each separately numbered and paragraphed fact must be accompanied
by a specific reference to material in the record which establishes that fact.
Practice Standards (Civil Cases), Chief Judge Philip A. Brimmer, § III.F.3.b.i-ii.
(emphasis omitted). The Practice Standards provide that, in a section of the brief
entitled, “Response to Statement of Undisputed Facts,” the nonmovant must admit or
deny each asserted material fact set forth by the movant and “[a]ny denial shall be
accompanied by a brief factual explanation of the reason(s) for the denial and a specific
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reference to material in the record supporting the denial.” Id., § III.F.3.b.iv. (emphasis
omitted). If the party opposing the summary judgment motion
believes that there exist additional disputed questions of fact which it has not
adequately addressed in the submissions it has made pursuant to subparagraph
(iv) above . . ., the party shall, in a separate section of the party’s brief styled
“Statement of Additional Disputed Facts,” set forth in simple, declarative
sentences, separately numbered and paragraphed, each additional, material
disputed fact which undercuts movant’s claim that it is entitled to judgment as a
matter of law. Each separately numbered and paragraphed fact shall be
accompanied by a specific reference to material in the record which establishes
the fact or at least demonstrates that it is disputed. Similarly, if the party
opposing the motion believes that there exist additional undisputed facts, the
party shall, in a separate section of the party’s brief styled “Statement of
Additional Undisputed Facts,” set forth in simple, declarative sentences,
separately numbered and paragraphed, each additional, material undisputed fact
which undercuts movant’s claim that it is entitled to judgment as a matter of law.
Each separately numbered and paragraphed fact shall be accompanied by a
specific reference to material in the record which establishes the fact or at least
demonstrates that it is undisputed.
Id., § III.F.3.b.v. (emphasis omitted).
The Practice Standards provide that any reply brief must contain a section
entitled “Reply Concerning Undisputed Facts,” including “any factual reply which movant
cares to make regarding the facts asserted in its motion to be undisputed, supported by
specific references to material in the record.” Id., § III.F.3.b.vi. (emphasis omitted).
Furthermore, a reply brief must contain
a separate section styled “Response Concerning Disputed Facts” or a separate
section styled “Response Concerning Additional Undisputed Facts” (with respect
to each fact which the opposing party, pursuant to subparagraph (v) above,
claims to be in dispute or to be undisputed), either admit that the fact is disputed
or undisputed or supply a brief factual explanation for its position that the fact is
undisputed, accompanied by a specific reference to material in the record which
establishes that the fact is undisputed.
Id.
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In their analysis sections of the briefing, both parties raise numerous facts,
including portions of deposition testimony, that were not included in the respective fact
sections of their briefs. See Docket No. 71 at 6-20; Docket No. 76 at 9-19; Docket No.
77 at 6-17; Docket No. 80 at 7-20. As the Practice Standards emphasize, the “sole
purpose of these procedures is to establish facts and determine which of them are in
dispute.” Practice Standards (Civil Cases), Chief Judge Philip A. Brimmer, § III.F.3.b.vii.
Both parties have significantly compromised the summary judgment process by citing
additional evidence in their argument sections that were not included in their “Statement
of Undisputed Material Facts,” “Response to Statement of Undisputed Facts,”
“Statement of Additional Disputed Facts,” or “Statement of Additional Undisputed Facts”
sections. Had the parties included the evidence in the proper sections of their briefs,
the opposing party would have been required to admit or deny those facts and provide a
basis for any denials, which would assist the Court in determining what facts are
undisputed and what facts are disputed. See id., § III.F.3.b.iv.-vi. Moreover, the
requirement in the Practice Standards that a party opposing summary judgment state its
facts in the form of statements is consistent with Fed. R. Civ. P. 56(e), which refers to
“assertions of fact.” Rule 56 distinguishes such assertions or statements of fact from
the evidence that supports the assertions. See, e.g., Fed. R. Civ. P. 56(c)(1) (“A party
asserting that a fact cannot be or is genuinely disputed must support that assertion by:
(A) citing to particular parts of materials in the record”). Thus, for the parties to simply
cite to exhibits in their analysis sections that are not undisputed facts frustrates the
summary judgment process and violates the Court’s Practice Standards. As a result,
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the Court will not consider such evidence either to establish an undisputed fact or to
raise a dispute of material fact.
B. Mr. Detreville’s Motion for Summary Judgment
Mr. Detreville moves for summary judgment on his claims against Officer
Gurevich for (1) unlawful arrest; (2) First Amendment retaliation; and (3) malicious
prosecution. Docket No. 71 at 1.9 Mr. Detreville requests summary judgment as to
liability, not damages. See id. at 2.
1. 	Unlawful Arrest Claim
Mr. Detreville’s first claim alleges that Officer Gurevich violated his Fourth
Amendment rights by arresting plaintiff without probable cause. Docket No. 1 at 8-10,
¶¶ 62-74.10 The Fourth Amendment provides the “right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated.” U.S. Const. Amend. IV. A “seizure” of one’s person
occurs when a government actor terminates one’s freedom of movement through
intentional means. See Brower v. Cnty. of Inyo, 489 U.S. 593, 596-97 (1989); Scott v.
Harris, 550 U.S. 372, 381 (2007). An arrest requires probable cause to believe that the
arrestee committed a crime. Fogarty v. Gallegos, 523 F.3d 1147, 1156 (10th Cir. 2008);
Cortez v. McCauley, 478 F.3d 1108, 1115-16 (10th Cir. 2007).
9 Mr. Detreville does not move for summary judgment on any claims against
Officer Weinheimer.
10 Mr. Detreville’s first claim also asserts a failure to intervene theory, alleging
that Officer Gurevich failed to intervene in Officer Weinheimer’s “unlawful arrest of
Plaintiff.” Docket No. 1 at 9, ¶ 72. Mr. Detreville does not move for summary judgment
on this portion of claim one, and therefore the Court declines to analyze this portion of
the claim.
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Mr. Detreville argues that he is entitled to judgment as a matter of law on the
unlawful arrest claim because it is undisputed that Officer Gurevich did not have
probable cause to arrest Mr. Detreville pursuant to Colo. Rev. Stat. § 18-9-117. Docket
No. 71 at 6-13. Officer Gurevich argues that he had probable cause to arrest Mr.
Detreville under Colo. Rev. Stat. § 18-9-117, and even if Officer Gurevich lacked
probable cause, he is entitled to qualified immunity. Docket No. 76 at 9-17.
a. 	Probable Cause
“In a qualified immunity context, the probable cause evaluation is a question of
law appropriate for resolution by the Court.” Shimomura v. Carlson, 17 F. Supp. 3d
1120, 1132 (D. Colo. 2014) (citing Hunter v. Bryant, 502 U.S. 224, 228 (1991)). In
determining whether an officer has probable cause for an arrest, the court must
“examine the events leading up to the arrest, and then decide whether these historical
facts, viewed from the standpoint of an objectively reasonable police officer, amount to
probable cause.” District of Columbia v. Wesby, 583 U.S. 48, 56-57 (2018) (internal
quotations and citation omitted). “Probable cause exists if facts and circumstances
within the arresting officer’s knowledge and of which he or she has reasonably
trustworthy information are sufficient to lead a prudent person to believe that the
arrestee has committed or is committing an offense.” York v. City of Las Cruces, 523
F.3d 1205, 1210 (10th Cir. 2008) (quoting Romero v. Fay, 45 F.3d 1472, 1476 (10th Cir.
1995)). Probable cause is not a high bar. Wesby, 583 U.S. at 57. “Because probable
cause is measured by an objective standard, ‘an arrest is lawful if the officer had
probable cause to arrest for any offense, not just the offense cited at the time of arrest
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or booking.’” Mglej v. Gardner, 974 F.3d 1151, 1161 (10th Cir. 2020) (quoting Wesby,
583 U.S. at 54 n.2).
Section 18-9-117 states:
[i]t is unlawful for any person to enter or remain in any public building or on any
public property or to conduct himself or herself in or on the same in violation of
any order, rule, or regulation concerning any matter prescribed in this subsection
(1), limiting or prohibiting the use or activities or conduct in such public building or
on such public property, issued by any officer or agency having the power of
control, management, or supervision of the building or property. In addition to
any authority granted by any other law, each such officer or agency may adopt
such orders, rules, or regulations as are reasonably necessary for the
administration, protection, and maintenance of such public buildings and
property, specifically, orders, rules, and regulations upon the following matters:
. . . (b) [r]estriction or limitation of the use of such public buildings or property as
to time, manner, or permitted activities[.]
Colo. Rev. Stat. § 18-9-117(1)(b). The statute allows a state agency to adopt rules and
regulations that are reasonably necessary for the administration and protection of public
buildings. See Kerr v. City of Boulder, No. 19-cv-01724-KLM, 2021 WL 2514567, at *19
(D. Colo. June 18, 2021). The statute itself, however, does not prohibit any conduct. Id.
It is undisputed that a sign posted inside the window of the Station said, “No video
recording is allowed in the Denver Police District 5 Station without prior permission from
the Chief of Police.” Docket No. 71 at 3, ¶¶ 14-15; Docket No. 77 at 4, ¶ 10; Docket No.
80 at 4, ¶ 3. The sign cites to Colo. Rev. Stat. § 18-9-117 as the legal authority for the
directive. Docket No. 77 at 3, ¶ 9.
Mr. Detreville argues that Officer Gurevich lacked probable cause to arrest him
under Colo. Rev. Stat. § 18-9-117 because there were no facts suggesting that Mr.
Detreville violated the sign’s directive. Docket No. 71 at 9. Plaintiff argues that the sign
unambiguously prohibits videorecording “in the Denver District 5 Station.” Id. at 10. Mr.
Detreville asserts that it is undisputed that he was never recording “in” the Station
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before his arrest. Id. at 9. Mr. Detreville contends that it is undisputed that he was
arrested outside of the Station’s door. Docket No. 79 at 5.11
Officer Gurevich contends that he had probable cause to arrest Mr. Detreville for
filming in the Station pursuant to Colo. Rev. Stat. § 18-9-117. Docket No. 76 at 9.
Officer Gurevich states that Mr. Detreville was filming in the “vestibule of the Station”
and argues that area is “in” the Station. Id. at 10. In support of this argument, Officer
Gurevich argues that three officers, including Officer Gurevich, Officer Weinheimer, and
Sergeant Morrill, all believed that the “vestibule” was part of the Station. Id.12 Because
“all three officers who worked at the Station believed the entryway / vestibule area was
11 In support of his argument that Officer Gurevich lacked probable cause, Mr.
Detreville also argues that Officer Gurevich “consciously disregarded” his training
related to First Amendment auditors. Docket No. 71 at 12-13. The Court finds that this
argument is irrelevant to the probable cause analysis. See Mglej, 974 F.3d at 1161
(noting that “probable cause is measured by an objective standard”).
12 Furthermore, Officer Gurevich argues that he believes filming is prohibited in
the vestibule area
to protect the privacy of victims who come to report crimes. [Docket No. 76-3] at
22:3-5; 35:1-4; 39:4-8. Officer Gurevich had spoken to victims in that entryway /
vestibule area in the past and pointed out that victims may be worried that they
would be retaliated against for going to the police. Id. The restriction on filming
helps make the Station a safe space for people to come without concerns that
they will be identified. Id.
Docket No. 76 at 12. Officer Gurevich did not raise these facts about speaking with
victims in the entryway in the proper section of his response, and therefore the Court
declines to consider this evidence as discussed previously. In their motion for summary
judgment, defendants include a related proffered fact in their statement of undisputed
facts section. Defendants assert that, “[i]n addition to basing his belief on it being
enclosed on three sides with a roof and phone for dispatch, [Officer Gurevich] pointed
out that not allowing filming in the entryway / vestibule prevents people from recording
conversations with, for example, ‘juvenile victims of sex assault.’ Ex. 3 (Gurevich Dep
at 22:3-23.” Docket No. 77 at 4, ¶ 7. However, defendants failed to attach page 22 of
Officer Gurevich’s deposition to their exhibit. See Docket No. 77-3. Because
defendants have not properly supported this proffered fact, the Court declines to
consider this argument.
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16
‘in’ the Station,” Officer Gurevich argues that his belief was “objectively reasonable.” Id.
at 15. Moreover, Officer Gurevich contends that “it is simply logical to place a sign
which prohibits certain conduct in the area that it governs, i.e. displayed in the vestibule
where the conduct is prohibited.” Id. at 14. Officer Gurevich asserts that Mr. Detreville
has “not provided any expert testimony or other evidence proving that [the vestibule]
was not part of the building or ‘in’ the Station.” Id. at 13.13 Officer Gurevich does not
argue that he had probable cause to arrest Mr. Detreville for any other offense.
Because Colo. Rev. Stat. § 18-9-117 does not itself prohibit any conduct, see
Kerr, 2021 WL 2514567, at *19, the Court looks to the language on the sign.14 It is
undisputed that a sign posted inside the window of the Station said, “No video recording
13 Officer Gurevich also contends that he had probable cause to arrest Mr.
Detreville because Officer Weinheimer and Sergeant Morrill agreed there was probable
cause and “a judge also found there was probable cause for the arrest.” Docket No. 76
at 11 (citing Docket No. 76-4 at 7, 93:1-3; Docket No. 76-5 at 5-6, 93:22-23, 95:6-96:4;
Docket No. 76-7). Officer Gurevich did not raise these facts in the proper section of his
brief, and therefore the Court declines to consider this evidence, as discussed
previously. However, even if the Court considered these facts, the Court finds that the
subjective beliefs of the police officers as to whether probable cause existed is
irrelevant. See United States v. Valenzuela, 365 F.3d 892, 896 (10th Cir. 2004) (“The
subjective belief of an individual officer as to whether there was probable cause for
making an arrest is not dispositive.”). Moreover, a state magistrate judge’s
determination of probable cause at an arrestee’s initial arraignment is not binding in a
subsequent section 1983 lawsuit.
14 The Court finds that the interpretation of the meaning of the sign is an issue of
law for the Court, not a factual issue for the jury. The sign cites Colo. Rev. Stat. § 18-9-
117 as the legal authority for the directive. Docket No. 77 at 3, ¶ 9; see also Colo. Rev.
Stat. § 18-9-117(1) (authorizing an officer in control of a public building to “adopt such
orders, rules, or regulations as are reasonably necessary for the administration,
protection, and maintenance of such public buildings and property”). The sign is
therefore the embodiment of the rule authorized by the ordinance. The interpretation of
a statute is a legal issue for the court. Valdez v. Macdonald, 66 F.4th 796, 815 (10th
Cir. 2023); see also Schmidt v. Int’l Playthings LLC, 536 F. Supp. 3d 856, 936 (D.N.M.
2021) (“the interpretation of the regulations is for the Court and not for the jury to
decide”).
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is allowed in the Denver Police District 5 Station without prior permission from the Chief
of Police.” Docket No. 71 at 3, ¶¶ 14-15; Docket No. 77 at 4, ¶ 10; Docket No. 80 at 4,
¶ 3. The plain language of the sign prohibits recording a video “in the Denver Police
District 5 Station.” See id. 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.” See id.
Therefore, the Court finds that the sign prohibits video recording “in” the Station.15
It is undisputed that, on November 10, 2019, Mr. Detreville went to the Arie P.
Taylor Municipal Center and walked along the sidewalk to the public entrance of the
Station, while filming with his cell phone. Docket No. 71 at 2, ¶¶ 1, 4. Mr. Detreville
walked into the entryway and continued filming. Docket No. 77 at 2, ¶ 4; Docket No. 80
at 1-2, ¶ 4. It is undisputed that there is only one door at the public entrance to the
Station and that Mr. Detreville remained outside of that door until after he was arrested.
Docket No. 80 at 4, ¶ 2. The Court finds that Officer Gurevich had no probable cause to
believe that Mr. Detreville was violating the directive on the sign because it is
undisputed that Mr. Detreville was outside of the Station’s door when he was recording.
Because Mr. Detreville was not “in” the Station, there was no probable cause to arrest
Mr. Detreville under Colo. Rev. Stat. § 18-9-117. Although defendants raise a dispute
15 The Court reached the same conclusion at the motion to dismiss stage. See
Detreville v. Gurevich, No. 21-cv-00638-PAB-MEH, 2022 WL 17668171, at *4 (D. Colo.
Dec. 14, 2022). At the motion to dismiss stage, the Court also reviewed the video that
Mr. Detreville recorded on November 10, 2019, pursuant to a request from both parties
to consider such video evidence at the motion to dismiss stage. Id. at *1 n.2. However,
the video, which was taken at night, does not clearly show the nature of the physical
characteristics of the entryway. No photograph of the entryway was incorporated in the
complaint and therefore was not part of the Court’s analysis in resolving the motion to
dismiss.
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of fact that Officer Gurevich, Officer Weinheimer, and Sergeant Morrill all believe that
the entryway is part of the Station, see Docket No. 77 at 4, ¶¶ 15-16, 18, the Court finds
that the officers’ subjective beliefs are insufficient to defeat summary judgment. See
Wesby, 583 U.S. at 56-57 (noting that the court must decide whether the facts, “viewed
from the standpoint of an objectively reasonable police officer, amount to probable
cause.” (emphasis added) (internal quotations and citation omitted)); Valenzuela, 365
F.3d at 896 (“The subjective belief of an individual officer as to whether there was
probable cause for making an arrest is not dispositive.”). To the extent that defendants
argue that Officer Gurevich’s interpretation of the sign was a reasonable mistake, the
Court rejects that argument as it applies to the probable cause determination. The
Tenth Circuit has held that “an officer’s mistake of law cannot serve as a basis for
probable cause, because a mistake of law by the person charged with enforcing it is not
objectively reasonable and therefore violates the Fourth Amendment.” Felders ex rel.
Smedley v. Malcom, 755 F.3d 870, 879 n.3 (10th Cir. 2014) (citing United States v.
Nicholson, 721 F.3d 1236, 1239 (10th Cir. 2013)). Therefore, the Court finds that
Officer Gurevich lacked probable cause to arrest Mr. Detreville under Colo. Rev. Stat.
§ 18-9-117.
b. Clearly Established Law
Even if Officer Gurevich lacked probable cause to arrest Mr. Detreville, Officer
Gurevich argues that he is entitled to qualified immunity. Docket No. 76 at 13. “[W]hen
a warrantless arrest or seizure is the subject of a § 1983 action, the defendant is entitled
to qualified immunity if a reasonable officer could have believed that probable cause
existed to arrest or detain the plaintiff.” Cortez, 478 F.3d at 1120. Thus, in the Tenth
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Circuit, “[a]s a practical matter, in the context of a qualified immunity defense on an
unlawful arrest claim, [courts] ascertain whether a defendant violated clearly established
law by asking whether there was arguable probable cause for the challenged conduct.”
Corona v. Aguilar, 959 F.3d 1278, 1285 (10th Cir. 2020) (internal quotations, citation,
and alterations omitted). “Arguable probable cause” is another way of saying that the
officers’ conclusions about whether probable cause existed rested on a reasonable but
mistaken belief. Cortez, 478 F.3d at 1120-21; see also Jordan v. Jenkins, 73 F.4th
1162, 1170 (10th Cir. 2023). The “protection of qualified immunity applies regardless of
whether the government official’s error is a mistake of law, a mistake of fact, or a
mistake based on mixed questions of law and fact.” Deutsch v. Jordan, 618 F.3d 1093,
1098 (10th Cir. 2010) (quoting Pearson, 555 U.S. at 231); see also Mocek v. City of
Albuquerque, 813 F.3d 912, 922 (10th Cir. 2015); Felders, 755 F.3d at 879 n.3
(although “an officer’s mistake of law cannot serve as a basis for probable cause,” the
second prong of the qualified immunity analysis “protects officials from civil liability for
mistakes of law if reasonably made”).
Officer Gurevich claims that he had arguable probable cause to arrest Mr.
Detreville because Officer Gurevich’s belief that the “vestibule area” was “in” the Station
was reasonable, even if mistaken. Docket No. 76 at 13; Docket No. 77 at 11-12.16
Defendants argue that
in a case where Plaintiff was arrested pursuant to a lawful ordinance, as set forth
on the Sign, and where Plaintiff was undisputedly taking the specified prohibited
action (i.e. there is no contention Gurevich lied or made any false statement), the
16 Defendants include several additional arguments concerning arguable
probable cause in their motion for summary judgment. See Docket No. 77 at 9-13. In
this section of the order, the Court will discuss all the parties’ arguable probable cause
arguments raised throughout the cross-summary judgment briefing.
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only basis to hold the officer liable would be his “wrong” conclusion about inside
vs. outside, which is – at most – a reasonable mistake.
Docket No. 77 at 13. Defendants contend that this case is similar to Kerr, where the
Court found that defendants had arguable probable cause to arrest plaintiffs for
trespassing under Colo. Rev. Stat. § 18-9-117. Id. at 11-12 (citing Kerr, 2021 WL
2514567, at *19-20). Moreover, defendants argue that there is no clearly established
“right to record in a police station” and appear to argue that the Tenth Circuit’s decision
in Irizarry is not particularized to the facts of this case. Id. at 10 (citing Irizarry, 38 F.4th
at 1293-94). Defendants contend that it is “well established that the right to free speech
guaranteed by the First Amendment is subject to reasonable time, place, and manner
restrictions.” Id. (citing Perry Educ. Ass’n v. Perry Loc. Educators’ Ass’n, 460 U.S. 37,
45 (1983)).
Mr. Detreville responds that Officer Gurevich is not entitled to qualified immunity
because it is “objectively unreasonable to view a sidewalk as being ‘in’ a building.”
Docket No. 79 at 9-10. Mr. Detreville cites Irizarry in support of his argument that he
had a clearly established “right to record officers in public.” Id. at 10 (citing Irizarry, 38
F.4th at 1292). Citing the Court’s order from the motion to dismiss stage, Mr. Detreville
argues that “a reasonable officer would not interpret the plain language of the sign to
prohibit what plaintiff was doing, namely, recording outside of the Station door in a way
that captured images of the inside of the Station.” Id. (quoting Detreville, 2022 WL
17668171, at *5). Mr. Detreville also asserts that it is clearly established that “a
government official may not base h[is] probable cause determination on an unjustifiable
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21
standard, such as speech protected by the First Amendment.” Docket No. 80 at 8
(quoting Mink v. Knox, 613 F.3d 995, 1003-04 (10th Cir. 2010)). 17
The Court has already interpreted the sign as prohibiting only the recording of
videos “in” the Station. However, the arguable probable cause inquiry in this case turns
on whether it was a reasonable “mistake of law” for an officer to believe that the sign
prohibited video recording in the entryway. See Deutsch, 618 F.3d at 1098.18 “A
reasonable mistake in interpreting a criminal statute, for purposes of determining
whether there is probable cause to arrest, entitles an officer to qualified immunity.”
Mocek, 813 F.3d at 927. The Court finds that an officer could have reasonably believed
that the sign prohibited video recording in the entryway. It is undisputed that the public
entrance to the Station has a glass entryway, depicted in the following photograph:
17 The parties have not cited any case, and the Court is unaware of any case,
interpreting the sign posted at the Denver District 5 Police Station or one similar to it.
See Cronick v. Pryor, 99 F.4th 1262, 1270 (10th Cir. 2024) (“In assessing whether the
officers had fair notice their arrest of [plaintiff] would be unlawful under the
circumstances, ‘we are guided, first, by the text of the ordinance and, then, by any
relevant state and federal decisions interpreting its import.’” (quoting A.M. v. Holmes,
830 F.3d 1123, 1141 (10th Cir. 2016) (internal alterations omitted)).
18 The Court finds that this issue is more analogous to a mistake of law; however,
the same reasonableness analysis would apply if the officer’s belief was a “mistake of
fact” or “a mistake based on mixed questions of law and fact.” See Deutsch, 618 F.3d
at 1098 (citation omitted).
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22
Docket No. 77 at 2-3, ¶ 7. The entryway is enclosed on the top and the sides, although
it is partially open at the front without a physical door. Id. at 2, ¶ 5. The entryway has a
large sign that says, “POLICE.” Id., ¶ 6.19 As depicted in the photograph, the entryway
is affixed to the building. An officer could have reasonably believed that the sign
prohibiting video recording “in the Denver Police District 5 Station,” see Docket No. 71
at 3, ¶ 14, applied to the entryway due to the entryway being part of the building. In
other words, an officer could have made a reasonable mistake that the phrase “in” the
Station included the mostly enclosed physical structure attached to the front of the
building. See Stonecipher v. Valles, 759 F.3d 1134, 1144 (10th Cir. 2014) (“Qualified
immunity gives government officials breathing room to make reasonable but mistaken
judgments, and protects all but the plainly incompetent or those who knowingly violate
the law.” (quoting Messerschmidt v. Millender, 565 U.S. 535, 546 (2012))). Mr.
Detreville argues that it is “objectively unreasonable to view a sidewalk as being ‘in’ a
building,” see Docket No. 79 at 9-10; however, it is undisputed that Mr. Detreville was
19 In the photograph, there also appears to be a large symbol depicting a police
seal on the front glass of the entryway. See Docket No. 77 at 2-3, ¶ 7.
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filming in the entryway. Docket No. 77 at 2, ¶ 4; Docket No. 80 at 1-2, ¶ 4. While it
might be unreasonable to believe that the sign’s directive applied to the sidewalk, the
Court finds that an officer could have made a reasonable mistake of law that the sign
applied to the enclosed entryway attached to the building.
As a result, although Officer Gurevich did not have probable cause, the Court
finds that Officer Gurevich had arguable probable cause to arrest Mr. Detreville under
Colo. Rev. Stat. § 18-9-117. See Mocek, 813 F.3d at 925-27 (holding that the officer
had arguable probable cause to arrest plaintiff under N.M. Stat. § 30-22-3, the statute
prohibiting a person from “concealing one’s true name or identity,” because an officer
reasonably “could have believed that an investigative stop for disorderly conduct at an
airport security checkpoint required the production of some physical proof of identity”
under the statute and such a belief was a “reasonable” mistake of law); see also Starrett
v. City of Lander, 699 F. App’x 805, 810 (10th Cir. 2017) (unpublished) (holding that
given the “unique set of facts and circumstances this case presents,” the officers “had
arguable probable cause to arrest Mrs. Starrett for interference under Wyo. Stat. Ann.
§ 6-5-204(a)”) (internal quotations and citation omitted)); Youbyoung Park v. Gaitan, 680
F. App’x 724, 737 (10th Cir. 2017) (unpublished) (holding that the officers had arguable
probable cause to arrest plaintiff under N.M. Stat. § 30-22-1(A), in part, because there
was “no controlling decision” that “squarely govern[ed]” whether defendants lacked
probable cause under that “specific provision” of the obstruction statute).20 The Court
20 The Court rejects Mr. Detreville’s argument that the Tenth Circuit’s decision in
Irizarry satisfies plaintiff’s burden on the arguable probable cause prong of the qualified
immunity analysis. See Docket No. 79 at 10. In Irizarry, the Tenth Circuit found that it
was clearly established as of May 2019 that individuals have “a First Amendment right
to film the police performing their duties in public.” Irizarry, 38 F.4th at 1292. However,
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therefore finds that Officer Gurevich is entitled to qualified immunity on the unlawful
arrest claim and denies this portion of plaintiff’s motion. 21
2. 	First Amendment Retaliation Claim
Mr. Detreville’s second claim alleges that Officer Gurevich arrested him in
retaliation for his First Amendment activity. Docket No. 1 at 10-12, ¶¶ 75-97. Generally,
“the First Amendment prohibits government officials from subjecting an individual to
retaliatory actions for engaging in protected speech.” Nieves v. Bartlett, 587 U.S. 391,
the Tenth Circuit emphasized that this “right is subject to reasonable time, place, and
manner restrictions.” Id. at 1292 n.10. The court found that, “in this case, there is no
‘time, place, and manner’ restriction issue” because plaintiff was filming the police
during a traffic stop. Id. (citation omitted). Irizarry addressed a First Amendment
retaliation claim, see id. at 1288, but did not involve an inquiry into arguable probable
cause or whether an officer’s interpretation of an ordinance was a reasonable mistake
of law. Here, Colo. Rev. Stat. § 18-9-117(1)(b) permits time, place, and manner
restrictions for public buildings. See Colo. Rev. Stat. § 18-9-117(1)(b). As noted above,
the arguable probable cause inquiry in this case turns on whether it was a reasonable
mistake of law for an officer to believe that the sign prohibited video recording in the
entryway.
21 At the motion to dismiss stage, the Court found that defendants had no
arguable probable cause for arresting Mr. Detreville because “a reasonable officer
would not interpret the plain language of the sign to prohibit what plaintiff was doing,
namely, recording outside of the Station door in a way that captured images of the
inside of the Station.” Detreville, 2022 WL 17668171, at *5. The Court’s disposition at
the summary judgment stage is different for several reasons. First, Mr. Detreville’s
complaint alleged that he stood “outside” the door, id. at 1, and the complaint contained
no allegations suggesting that there was a glass entryway enclosed on most sides. See
Docket No. 1. The complaint contained no photos of the front of the Station or the
entryway. See id. Although the Court reviewed Mr. Detreville’s video at the motion to
dismiss stage, see Detreville, 2022 WL 17668171, at *1 n.2, the video, which was taken
at night, does not clearly show the nature of the physical characteristics of the entryway.
In contrast, at the summary judgment stage, the parties have submitted undisputed
evidence of the physical characteristics of the entryway, including photos taken during
the daytime, which alters the Court’s arguable probable cause analysis. Second,
“[a]sserting a qualified immunity defense via a Rule 12(b)(6) motion . . . subjects the
defendant to a more challenging standard of review than would apply on summary
judgment.” Myers v. Brewer, 773 F. App’x 1032, 1036 (10th Cir. 2019) (unpublished)
(quoting Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014)).
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398 (2019) (internal quotations and citation omitted). To establish a First Amendment
retaliation claim, a plaintiff must demonstrate (1) that he was engaged in a
constitutionally protected activity; (2) that the defendant’s action caused him to suffer an
injury that would “chill a person of ordinary firmness from continuing to engage in that
activity”; and (3) that the defendant’s action was “substantially motivated” in response to
his exercise of First Amendment speech rights. Becker v. Kroll, 494 F.3d 904, 925
(10th Cir. 2007); see also Irizarry, 38 F.4th at 1288. Ordinarily, a plaintiff must also
prove the absence of probable cause for the arrest. Becker, 494 F.3d at 925.
Mr. Detreville argues that he is entitled to judgment as a matter of law on the
liability portion of his First Amendment retaliation claim against Officer Gurevich
because plaintiff has established all three elements. Docket No. 71 at 13-17. Officer
Gurevich responds that plaintiff has not established the third element. Docket No. 76 at
17.
a. 	Constitutionally Protected Activity
Mr. Detreville argues that he was engaged in constitutionally protected activity
because it is undisputed that he was filming the police from a public sidewalk. Docket
No. 71 at 14 (citing Irizarry, 38 F.4th at 1292). Officer Gurevich does not respond to this
argument. The Court finds that the undisputed facts establish that Mr. Detreville was
engaged in constitutionally protected activity. In Irizarry, the Tenth Circuit found that an
individual has “a First Amendment right to film the police performing their duties in
public.” Irizarry, 38 F.4th at 1292. Here, it is undisputed that Mr. Detreville was filming
defendants outside the Station’s door while defendants were performing their official
duties. Docket No. 71 at 4-5, ¶ 28; Docket No. 77 at 2, ¶ 4; Docket No. 80 at 4, ¶ 2.
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Accordingly, Mr. Detreville has established the first element of his First Amendment
retaliation claim.
b. Injury
Mr. Detreville argues that, by arresting plaintiff without probable cause, Officer
Gurevich caused Mr. Detreville to suffer an injury that would chill a person of ordinary
firmness from continuing to exercise his First Amendment rights. Docket No. 71 at 14-
15 (citing Esparza v. Bowman, 523 F. App’x 530, 536 (10th Cir. 2013) (unpublished)).
Mr. Detreville also argues that he suffered an injury by “spending three days in jail and
being subjected to a criminal prosecution over three months.” Id. at 15. Officer
Gurevich does not respond to these arguments.
The Court finds that the undisputed facts establish that Officer Gurevich caused
Mr. Detreville to suffer an injury that would “chill a person of ordinary firmness from
continuing to engage in that activity.” See Becker, 494 F.3d at 925. The Tenth Circuit
has held that the “pursuit of an arrest without probable cause would chill a person of
ordinary firmness from continuing to engage in protected activity.” Esparza, 523 F.
App’x at 536; see also Irizarry, 38 F.4th at 1288 n.6 (“an arrest in retaliation for the
exercise of protected speech constitutes an injury cognizable under our First
Amendment jurisprudence.” (quoting Reichle v. Howards, 566 U.S. 658 (2012)); Sexton
v. City of Colorado Springs, 530 F. Supp. 3d 1044, 1066 (D. Colo. 2021) (finding that “a
retaliatory arrest unsupported by probable cause is an injury that would chill a person of
ordinary firmness”). Here, it is undisputed that Officer Gurevich arrested plaintiff on
November 10, 2019. Docket No. 80 at 4, ¶ 7; Docket No. 71 at 2, ¶ 1. The Court
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previously found that the arrest was not supported by probable cause. As a result, Mr.
Detreville has established the second element of his First Amendment retaliation claim.
c. 	Substantially Motivated
To establish the third element, a plaintiff must show that the defendant’s action
was “substantially motivated” in response to his exercise of First Amendment speech
rights. Becker, 494 F.3d at 925; see also Irizarry, 38 F.4th at 1288. The Supreme
Court has held that the retaliatory motive “must be a ‘but-for’ cause, meaning that the
adverse action against the plaintiff would not have been taken absent the retaliatory
motive.” Nieves, 587 U.S. at 399. The Tenth Circuit has recognized that a “close
temporal proximity” between the protected speech and an arrest, coupled with the
absence of probable cause, supports “a strong inference” that defendant was motivated
by plaintiff’s speech. Esparza, 523 F. App’x at 536.
Mr. Detreville argues that the undisputed facts demonstrate that Officer Gurevich
arrested Mr. Detreville because he would not stop video recording. Docket No. 71 at
16. Mr. Detreville asserts that, when Officer Gurevich encountered Mr. Detreville, he
stated, “We do not allow recording on our property. If you do not stop recording, we will
have to arrest you.” Id. Mr. Detreville also argues that the close temporal proximity
between Mr. Detreville’s exercise of his First Amendment rights and his arrest without
probable cause demonstrates that Officer Gurevich had a retaliatory motive. Id.
Officer Gurevich argues that there is no evidence in the record that he was
motivated by a retaliatory animus. Docket No. 76 at 17. Officer Gurevich asserts that
he arrested Mr. Detreville with a “good faith belief” that the “vestibule area” was “in” the
Station and therefore recording was prohibited in that area. Id. Officer Gurevich claims
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that there is no evidence that he arrested Mr. Detreville “in retaliation for filming Officer
Gurevich performing his duties.” Id.22
Construing the facts in the light most favorable to Officer Gurevich, the Court
finds that a reasonable jury could conclude that Officer Gurevich’s decision to arrest Mr.
Detreville was not “substantially motivated” in response to Mr. Detreville’s exercise of
First Amendment speech rights. See Becker, 494 F.3d at 925; see also Irizarry, 38
F.4th at 1288. It is undisputed that, after Mr. Detreville greeted Officer Gurevich, Officer
Gurevich told Mr. Detreville, “We do not allow recording on our property. If you do not
stop recording, we will have to arrest you.” Docket No. 71 at 3, ¶¶ 12-13; Docket No. 77
at 4, ¶ 12. A reasonable jury could also believe the testimony of Officer Gurevich at trial
that he believed that the entryway is part of the Station. Docket No. 77 at 4, ¶ 16 (citing
Docket No. 77-3 at 7, 79:22-80:01). 	As a result, a reasonable jury could conclude that
Officer Gurevich’s decision to arrest plaintiff was not substantially motivated by the fact
that Mr. Detreville was merely filming the encounter and that Officer Gurevich arrested
plaintiff based on Officer Gurevich’s mistaken belief that the sign prohibited filming in
the entryway because the entryway was “in” the Station. Accordingly, because there is
a genuine dispute as to whether Officer Gurevich was substantially motivated to arrest
Mr. Detreville in response to plaintiff’s exercise of First Amendment speech rights, the
22 Furthermore, Officer Gurevich argues that he “does not arrest people just for
filming him.” Docket No. 76 at 18. In support of this argument, Officer Gurevich states
that he testified at his deposition that “people film [him] on the street all the time,” but he
did not arrest them because those individuals “were not breaking the law. They were
not at the station . . . There were no signs [prohibiting filming]. There was no reason to
arrest them.” Id. at 17-18 (quoting Docket No. 76-3 at 16, 199:17-19, 200:5-8). Officer
Gurevich did not raise these facts in the proper section of his brief, and therefore the
Court declines to consider this evidence, as discussed previously.
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Court denies the portion of Mr. Detreville’s motion requesting summary judgment as to
liability on the First Amendment retaliation claim against Officer Gurevich.23
3. 	Malicious Prosecution Claim
Mr. Detreville’s third claim asserts a malicious prosecution claim against Officer
Gurevich. Docket No. 1 at 12-14, ¶¶ 98-114. To establish a claim for malicious
prosecution, a plaintiff must show that: “(1) the defendant caused the plaintiff’s
continued confinement or prosecution; (2) the original action terminated in favor of the
plaintiff; (3) no probable cause supported the original arrest, continued confinement, or
prosecution; (4) the defendant acted with malice; and (5) the plaintiff sustained
damages.” Wilkins v. DeReyes, 528 F.3d 790, 799 (10th Cir. 2008) (citing Novitsky v.
City of Aurora, 491 F.3d 1244, 1258 (10th Cir. 2007)). Mr. Detreville argues that he is
entitled to judgment as a matter of law as to liability on his malicious prosecution claim
because he has established all five elements. Docket No. 71 at 17-20.24 Officer
Gurevich argues that plaintiff has not established the fourth element. Docket No. 76 at
18-19.
The Court finds that it is undisputed that Mr. Detreville has established the first,
second, third, and fifth elements of this claim. It is undisputed that Officer Gurevich
23 In his reply, Mr. Detreville argues that, “if the Court declines to find retaliatory
animus . . . as a matter of law, the Court can still reduce the number of triable issues by
ruling that the remaining elements have been established as a matter of law.” Docket
No. 79 at 9 n.2. The Court declines to rule that these elements are established as a
matter of law for purposes of trial. See Gutierrez v. Cobos, 841 F.3d 895, 902 (10th Cir.
2016) (“a party waives issues and arguments raised for the first time in a reply brief.”
(quoting Reedy v. Werholtz, 660 F.3d 1270, 1274 (10th Cir. 2011)).
24 Regarding the fifth element, Mr. Detreville states that, “[w]hile a jury should be
permitted to find the value of such damages, Plaintiff respectfully requests this Court to
find that he sustained damages.” Docket No. 71 at 20.
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arrested plaintiff on November 10, 2019, see Docket No. 80 at 4, ¶ 7; Docket No. 71 at
2, ¶ 1, demonstrating that Officer Gurevich caused plaintiff’s confinement. It is also
undisputed that Mr. Detreville’s criminal case was dismissed on March 2, 2020, see
Docket No. 71 at 5, ¶ 32, thereby establishing that the criminal case terminated in his
favor. See Thompson v. Clark, 596 U.S. 36, 39 (2022) (“To demonstrate a favorable
termination of a criminal prosecution for purposes of the Fourth Amendment claim under
§ 1983 for malicious prosecution, a plaintiff need only show that his prosecution ended
without a conviction.” (emphasis added)). Moreover, the Court previously found that the
arrest was not supported by probable cause, thus establishing the third element.
Finally, the Court finds that Mr. Detreville has established that he suffered damages
because it is undisputed that Mr. Detreville spent three days in jail. See Docket No. 71
at 5, ¶ 31.
The Court turns to the contested element, malice. “While ordinarily a Fourth
Amendment claim is measured by an objective reasonableness standard, the malice
element of a Fourth Amendment malicious prosecution claim focuses on the defendant
officer’s knowledge or state of mind.” Mglej, 974 F.3d at 1171 n.14. Generally, malice
is defined as “any motive other than a desire to bring an offender to justice.” Sanchez v.
Hartley, 65 F. Supp. 3d 1111, 1124 (D. Colo. 2014) (citation omitted), aff’d in part, 810
F.3d 750 (10th Cir. 2016); see also Chavez-Torres v. City of Greeley, 660 F. App’x 627,
629 (10th Cir. 2016) (unpublished). Malice “requires evidence of intent, not mere
negligence.” Chavez-Torres, 660 F. App’x at 629 (collecting cases). For example, the
malice element is satisfied “when there is evidence that the defendant officer knowingly
made false statements or knew there was no probable cause to support prosecution.”
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Mglej, 974 F.3d at 1171 n.14 (citing Young v. City of Idabel, 721 F. App’x 789, 804 (10th
Cir. 2018) (unpublished) (collecting cases)); see also Hernandez v. Larson, No. 21-cv-
01538-PAB-MEH, 2023 WL 6127879, at *16 (D. Colo. Sept. 19, 2023) (“falsifying or
omitting evidence knowingly and intentionally, or with reckless disregard for the truth is
sufficient to establish malice in the context of malicious prosecution claims” (quoting
Sanchez, 65 F. Supp. 3d at 1124)). The Tenth Circuit has held that, even at the
summary judgment stage, “[m]alice may be inferred if a defendant causes the
prosecution without arguable probable cause.” See Stonecipher v. Valles, 759 F.3d
1134, 1146 (10th Cir. 2014); see also Mglej, 974 F.3d at 1171.
Mr. Detreville argues that every reasonable juror would conclude that Officer
Gurevich acted with malice because he arrested Mr. Detreville for the “purpose of
stopping the videorecording” and such a “retaliatory motive is plainly inconsistent with
merely bringing Mr. Detreville to justice.” Docket No. 71 at 19. Mr. Detreville also
argues that Office Gurevich “consciously disregarded his training”25 and “included false
25 Mr. Detreville included a proffered fact in the appropriate fact section of his
brief arguing that “Defendant Gurevich consciously disregarded his First Amendment
training when he arrested Mr. Detreville.” Docket No. 71 at 5, ¶ 39 (citing Docket No.
71-7 at 13-19, 229:14-235:22). However, the Court finds that Mr. Detreville’s cited
evidence does not support the proffered fact that Officer Gurevich “consciously
disregarded his First Amendment training.” See id. Officer Gurevich repeatedly
testified that he considered the First Amendment training bulletin before arresting Mr.
Detreville, but Officer Gurevich determined that the bulletin’s guidance “did not apply”
because the sign, issued by the Chief of Police, prohibited filming in the Station. Docket
No. 71-7 at 15-17, 19, 231:13-232:19, 233:9-18, 235:5-25; see also Docket No. 76-3 at
24-25, 227:22-25, 236:2-12. Because Officer Gurevich’s testimony does not support
plaintiff’s proffered fact, the Court declines to consider this argument when evaluating
the malice element.
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information in his police report, thereby acting with reckless disregard for the truth.”
Id.26
Defendants argue that there is no evidence that Officer Gurevich acted with
malice. Docket No. 76 at 18. Defendants assert that the evidence shows that Officer
Gurevich was at most “mistaken as to the boundary of the Station.” Id. at 19.
Defendants contend that such a mistake is “more akin to negligence, which is
insufficient to prove malicious prosecution.” Id. (citing Novitsky, 491 F.3d at 1258).
Construing the evidence in the light most favorable to Officer Gurevich, the Court
finds that a reasonable jury could conclude that Officer Gurevich did not act with malice.
A reasonable jury could believe the testimony of Officer Gurevich at trial that he
believed that the entryway is part of the Station. Docket No. 77 at 4, ¶ 16 (citing Docket
No. 77-3 at 7, 79:22-80:01). A reasonable jury could therefore find that Officer Gurevich
believed that he had probable cause to arrest Mr. Detreville. See Sanchez, 65 F. Supp.
3d at 1124 (noting that malice is defined as “any motive other than a desire to bring an
offender to justice.”). Accordingly, because there is a genuine dispute as to Officer
26 In support of his argument that Officer Gurevich included false information in
his police report, Mr. Detreville states that Officer Gurevich told Mr. Detreville that “We
do not allow video recording on our property,” Docket No. 71 at 19 (citing Docket No.
71-1 at 07:26-07:41); however, Officer Gurevich’s probable cause statement states that
“I informed him that it is illegal to video tape inside the District 5 police station.” Id.
(quoting Docket No. 71-5 at 1). Mr. Detreville did not include any proffered facts about
the probable cause statement in the appropriate fact section of his brief. Accordingly,
the Court declines to consider this evidence as discussed previously. However, even if
the Court considered this evidence, the Court finds that the evidence does not indicate
that Officer Gurevich knowingly falsified any information in the probable cause
statement. Plaintiff offers no argument that Officer Gurevich’s use of the word “inside”
was false or intentional. See Novitsky, 491 F.3d at 1258 (finding no evidence of malice
where plaintiff “failed to introduce sufficient evidence that the misstatement in the report
and the officers’ failure to recognize that mistake were intentional, rather than out of
negligence or inadvertence” (internal quotations and citation omitted)).
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Gurevich’s motive in arresting plaintiff, the Court denies the portion of Mr. Detreville’s
motion requesting summary judgment as to liability on the malicious prosecution
claim.27
C. Defendant’s Motion for Summary Judgment
Defendants move for summary judgment on all claims. Docket No. 77 at 1.
Furthermore, defendants argue that they are entitled to qualified immunity on plaintiff’s
unlawful arrest claim. Id. at 6, 9-13.28
1. 	Unlawful Arrest Claim
Mr. Detreville’s first claim alleges that Officer Gurevich and Officer Weinheimer
violated his Fourth Amendment rights by arresting plaintiff without probable cause.
Docket No. 1 at 8-10, ¶¶ 62-74. Defendants argue that they had probable cause to
arrest Mr. Detreville pursuant to Colo. Rev. Stat. § 18-9-117, repeating the same
arguments that Officer Gurevich raised in response to plaintiff’s motion for summary
27 In his reply, Mr. Detreville argues that, “if the Court declines to find . . . malice
as a matter of law, the Court can still reduce the number of triable issues by ruling that
the remaining elements have been established as a matter of law.” Docket No. 79 at 9
n.2. The Court declines to rule that these elements are established as a matter of law
for purposes of trial. See Gutierrez, 841 F.3d at 902 (“a party waives issues and
arguments raised for the first time in a reply brief.” (citation omitted)).
28 In their reply, defendants argue that they are entitled to qualified immunity on
all of plaintiff’s claims. Docket No. 84 at 1 & n.1. However, in their motion, defendants
did not invoke qualified immunity on plaintiff’s First Amendment retaliation claim,
malicious prosecution claim, or equal protection claim. See Docket No. 77 at 13-17.
Accordingly, the Court finds that defendants waived any qualified immunity argument for
the second, third, and fourth claims at the summary judgment stage. See Gutierrez,
841 F.3d at 902 (“a party waives issues and arguments raised for the first time in a reply
brief” (citation omitted)); Tillmon v. Douglas Cnty., 817 F. App’x 586, 589 (10th Cir.
2020) (unpublished) (declining to reach qualified immunity when defendants’ “argument
consisted of a single paragraph briefly discussing the law of qualified immunity”); Riley
v. Spangler, 2021 WL 5881999, at *8 (D.N.M. Dec. 13, 2021) (“The Tenth Circuit has
previously found that a defendant’s argument focusing on whether a constitutional
violation occurred does not raise a qualified immunity defense”) (collecting cases)).
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judgment. Docket No. 77 at 6-9 (“As argued in Officer Gurevich’s Response to
Plaintiff’s Partial Motion for Summary Judgment (Doc. 78), the Officers had probable
cause to arrest Plaintiff for filming ‘in’ the Station. At the risk of repetition—but to
emphasize that the existence of probable cause entitles Defendants to judgment—
Defendants restate that argument again here.”). Defendants also argue that they are
entitled to qualified immunity on the unlawful arrest claim because the officers had
arguable probable cause to arrest Mr. Detreville. Id. at 9-13. Mr. Detreville responds
that defendants lacked probable cause to arrest him because the sign prohibited video
recording “in” the Station. Docket No. 80 at 8-9. Mr. Detreville asserts that defendants
are not entitled to qualified immunity because “Defendants acted objectively
unreasonably when they arrested Plaintiff for videorecording while standing outside the
police station.” Id. at 12.
The Court already considered these arguments when ruling on plaintiff’s motion
for summary judgment. For the same reasons discussed previously, the Court finds
defendants had no probable cause to arrest Mr. Detreville pursuant to Colo. Rev. Stat.
§ 18-9-117. However, Officer Gurevich and Officer Weinheimer had arguable probable
cause to arrest Mr. Detreville because it was a reasonable “mistake of law” for an officer
to believe that the sign prohibited video recording in the entryway. See Deutsch, 618
F.3d at 1098. Accordingly, the Court finds that Officer Gurevich and Officer Weinheimer
are entitled to qualified immunity. The Court therefore grants this portion of the motion
and dismisses plaintiff’s unlawful arrest claim with prejudice.
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2. 	First Amendment Retaliation Claim
Mr. Detreville’s second claim alleges that defendants arrested him in retaliation
for his First Amendment activity. Docket No. 1 at 10-12, ¶¶ 75-97. Defendants argue
that they are entitled to summary judgment on the First Amendment retaliation claim
because no evidence exists that defendants were motivated by retaliatory animus and
therefore plaintiff cannot establish the third element of this claim. Docket No. 77 at 14-
16. Defendants argue that Officer Gurevich arrested plaintiff with a “good faith belief
that filming in the entryway/vestibule was prohibited.” Id. at 15. Defendants contend
that “there is no evidence that Officer Weinheimer, who did not even fill out the charging
documents, was motivated by retaliatory animus.” Id.29
Mr. Detreville responds that defendants arrested him because he would not stop
recording. Docket No. 80 at 13. Mr. Detreville argues that Officer Gurevich was intent
on stopping plaintiff from exercising his First Amendment right, evidenced by the fact
that Officer Gurevich misstated the directive on the Sign by saying, “We do not allow
recording on our property. If you do not stop recording, we will have to arrest you.” Id.
at 14-15. Mr. Detreville argues that, when he declared that his conduct was protected
29 Defendants also argue that “both officers testified that they are often filmed
during the performance of their duties and it does not bother them.” Docket No. 77 at
15. Defendants state that Officer Gurevich testified at his deposition that “people film
[him] on the street all the time,” but he did not arrest them because they “were not
breaking the law. They were not at the station . . . There were no signs [prohibiting
filming]. There was no reason to arrest them.” Id. (quoting Docket No. 76-3 at 16,
199:17-19, 200:5-8). Defendants state that Officer Weinheimer testified that, “[e]very
single day in my career, somebody is recording me. That is the go-to response for
everybody at this point . . . it’s the nature of policing . . . in this day and age.” Id.
(quoting Docket No. 77-4 at 7, 90:16-20). Defendants did not raise these facts in the
proper section of their brief, and therefore the Court declines to consider this evidence,
as discussed previously.
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by the First Amendment, Officer Weinheimer instantly said, “it’s not, actually” and both
defendants then arrested him. Id. at 15. Mr. Detreville contends that defendants never
asked him to walk away from underneath the entryway. Id. Mr. Detreville asserts that
the close temporal proximity between his First Amendment conduct and the arrest,
which took place in less than two minutes, creates a strong inference that defendants’
decision to arrest him was substantially based on a retaliatory motive. Id. at 14-15.
Construing the facts in the light most favorable to Mr. Detreville, the Court finds
that a reasonable jury could conclude that defendants’ decision to arrest Mr. Detreville
was “substantially motivated” by plaintiff’s exercise of his First Amendment speech
rights. Becker, 494 F.3d at 925; see also Irizarry, 38 F.4th at 1288. It is undisputed that
Officer Gurevich told Mr. Detreville, “We do not allow recording on our property. If you
do not stop recording, we will have to arrest you.” Docket No. 71 at 3, ¶ 13; Docket No.
77 at 4, ¶ 12. In response to Mr. Detreville’s assertion of his First Amendment right to
record, Officer Weinheimer said, “It’s not actually.” Docket No. 71 at 4, ¶ 22. However,
defendants never informed Mr. Detreville that he could continue recording further away
from the door. Id., ¶ 20. Instead, defendants arrested Mr. Detreville approximately two
minutes after his initial contact with Officer Weinheimer. Id. at 4, ¶ 25. 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. See Esparza, 523 F. App’x at 536.
Accordingly, because there is a genuine dispute as to whether defendants were
substantially motivated to arrest plaintiff because of his protected First Amendment
activity, the Court denies this portion of defendants’ motion.
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3. 	Malicious Prosecution Claim
Mr. Detreville’s third claim asserts a malicious prosecution claim against Officer
Gurevich. Docket No. 1 at 12-14, ¶¶ 98-114. Defendants argue that Mr. Detreville
cannot establish the third or fourth elements of his malicious prosecution claim. Docket
No. 77 at 16. Because the Court already found that defendants had no probable cause
to arrest Mr. Detreville, the Court will proceed to the fourth element. Defendants argue
that there is no evidence that Officer Gurevich acted with malice. Id. at 16. Defendants
assert that Officer Gurevich was “mistaken about the boundary of what was ‘in’ the
Station,” and argue that a “mistake such as this is not malice and would be more akin to
negligence, which is patently insufficient to prove malicious prosecution.” Id. (citing
Novitsky, 491 F.3d at 1258).
Mr. Detreville responds that the Court may infer malice because Mr. Detreville
was arrested without arguable probable cause. Docket No. 80 at 16 (citing Mglej, 974
F.3d at 1171 n.14). Furthermore, Mr. Detreville argues that Officer Gurevich “arrested
Plaintiff for the purpose of stopping the videorecording outside of the limitations of the
law, which cannot reasonably be confused with the potentially legitimate law
enforcement purpose of stopping someone from recording ‘in’ the Station.” Id. Mr.
Detreville argues that such a motive is “plainly inconsistent with bringing Plaintiff to
justice.” Id.
Construing the facts in the light most favorable to Mr. Detreville, the Court finds
that a reasonable jury could conclude that Officer Gurevich acted with malice. It is
undisputed that Officer Gurevich told Mr. Detreville, “We do not allow recording on our
property. If you do not stop recording, we will have to arrest you.” Docket No. 71 at 3,
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¶ 13; Docket No. 77 at 4, ¶ 12. Defendants did not inform Mr. Detreville that he could
continue recording further away from the door. Docket No. 71 at 4, ¶ 20. Based on
these facts, a reasonable 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. The Court therefore denies this portion of defendants’ motion.
4. 	Equal Protection Claim
Mr. Detreville’s fourth claim alleges that defendants’ decision to arrest him was
motivated by plaintiff’s race in violation of his Fourteenth Amendment rights. Docket
No. 1 at 14-15, ¶¶ 115-130. Specifically, Mr. Detreville alleges that defendants
observed two Caucasian men recording outside the Station on November 13 and
November 14, 2019, but did not arrest the men. Id. at 15, ¶¶ 124-126.
In order to establish an equal protection claim based on racially selective law
enforcement, a plaintiff must present evidence that an officer’s actions had a
discriminatory effect and were motivated by a discriminatory purpose. Marshall v.
Columbia Lea Reg’l Hosp., 345 F.3d 1157, 1168 (10th Cir. 2003). To show a
discriminatory effect, a plaintiff must “make a credible showing that a similarly-situated
individual of another race could have been, but was not, arrested . . . for the offense for
which” plaintiff was arrested. United States v. James, 257 F.3d 1173, 1179 (10th Cir.
2001). The discriminatory purpose element requires a showing that a discriminatory
intent was a “motivating factor in the decision.” United States v. Alcaraz-Arellano, 441
F.3d 1252, 1264 (10th Cir. 2006); see also United States v. Hernandez-Chaparro, 357
F. App’x 165, 166 (10th Cir. 2009) (unpublished) (“Those seeking to establish an equal
protection claim based on selective law enforcement face a high burden: they must
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dispel the presumption that a law enforcement official has not violated the Equal
Protection Clause with ‘clear evidence to the contrary.’” (citation omitted)). To show a
discriminatory purpose, plaintiff must show that “the decisionmakers in his case acted
with discriminatory purpose.” McCleskey v. Kemp, 481 U.S. 279, 292 (1987). “The
discriminatory purpose need not be the only purpose, but it must be a motivating factor
in the decision.” Marshall, 345 F.3d at 1168. A plaintiff can establish discriminatory
purpose through either direct or circumstantial evidence. Alcaraz-Arellano, 441 F.3d at
1264. For example, a plaintiff can provide evidence of the defendant’s behavior during
the arrest or statistical comparisons. Marshall, 345 F.3d at 1168.
Defendants argue that plaintiff cannot show that Officer Gurevich’s or Officer
Weinheimer’s actions had a discriminatory effect or were motivated by a discriminatory
purpose because there is no evidence that either defendant saw two Caucasian men
filming at the Station on November 13 or November 14, 2019. Docket No. 77 at 14.
The Court will consider the parties’ arguments regarding Officer Gurevich and Officer
Weinheimer separately.
a. 	Officer Gurevich
Defendants state that it is undisputed that Officer Gurevich was not working on
November 14, 2019. Id. at 14. Furthermore, defendants argue that Officer Gurevich
testified that he did not see anyone filming on November 13, 2019. Id. at 5, 14, ¶ 22
(citing Docket No. 77-3 at 33, 290:24-291:4). Because there is no evidence that Officer
Gurevich saw Caucasian men filming in the Station on November 13 or 14, 2019,
defendants argue that Mr. Detreville cannot establish that Officer Gurevich’s actions had
a discriminatory effect or were motivated by a discriminatory purpose. Id. at 14.
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Mr. Detreville argues that Officer Gurevich’s actions had a discriminatory effect
and were motivated by a discriminatory purpose because Officer Gurevich did not arrest
Mr. Reed, a Caucasian man, who was filming on November 13, 2019, in the same
location where plaintiff was arrested. Docket No. 80 at 17-18. Mr. Detreville claims that
it is undisputed that Officer Gurevich was working at the desk in the Station on
November 13, 2019 and that there were multiple computer monitors at the desk
displaying video from security cameras. Id. at 4-5, ¶¶ 9-10. Mr. Detreville argues that
Mr. Reed was recording in an area captured by the surveillance cameras, where Mr.
Detreville was arrested, three separate times for approximately three minutes total on
November 13, 2019. Id. at 4, 17-18, ¶ 22 (citing Docket No. 80-7 at 18-20, 37-39,
161:09-163:03, 241:22-242:07, 295:19-25; Docket No. 80-13 at 01:36:00-01:38:38,
01:55:53-01:56:13, 02:11:55-02:12:15). Although Officer Gurevich claims that he did
not see Mr. Reed recording outside the Station, Mr. Detreville argues that there is a
genuine dispute as to whether Officer Gurevich saw Mr. Reed engage in the same
conduct as plaintiff based on Officer Gurevich’s location at the desk and his access to
the computer monitors that displayed video footage from the front of the Station. Id. at
17-18.
In reply, defendants assert that plaintiff has failed to provide any evidence that
Officer Gurevich saw Mr. Reed on November 13, 2019. Docket No. 84 at 10.
Defendants state that Officer Gurevich testified that he was not responsible for
monitoring exterior camera footage because it was more important to monitor the
prisoners, and although “he could technically see camera footage of the sidewalk from
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his desk, he never paid attention to it because it wasn’t his job.” Id. (citing Docket No.
80-7 at 19-20, 162:1-24, 163:1-3).30
It is undisputed that Officer Gurevich was working at the desk in the Station on
November 13, 2019, and that there were multiple computer monitors at the desk which
displayed video from internal and external security cameras. Docket No. 80 at 4-5,
¶¶ 9-10; Docket No. 84 at 4, ¶ 10. It is also undisputed that Mr. Reed, a Caucasian
man, was video recording on November 13, 2019. Docket No. 80 at 5, ¶ 11. Officer
Gurevich did not arrest Mr. Reed. Id.
The Court finds that Mr. Detreville has raised a genuine dispute of material fact
as to whether Officer Gurevich saw Mr. Reed recording outside the Station. A plaintiff
can establish discriminatory purpose through circumstantial evidence. Alcaraz-Arellano,
441 F.3d at 1264. The Tenth Circuit has explained that, “[o]f course, no one other than
[a defendant] may testify to what he actually saw,” but “others may testify to the
surrounding circumstances and what they witnessed” and a jury could ultimately reject
the defendant’s testimony and infer what the defendant saw based on circumstantial
evidence. See Durkee v. Minor, 841 F.3d 872, 876 (10th Cir. 2016) (emphasis added);
see also Wilson v. Pauls, No. 20-cv-00609-PAB-SKC, 2023 WL 2574375, at *5 (D.
30 Defendants also argue that Mr. Detreville’s argument is flawed because
“Plaintiff places the men on the sidewalk, but Plaintiff was arrested in the entryway area.
So even if Gurevich had seen the men on the sidewalk, it would not serve as evidence
that he treated them any differently from Plaintiff. Plaintiff himself acknowledged the
two men took a different path than he did. Ex. 2 at 64:23–24, 66:8–12.” Docket No. 84
at 9-10. However, plaintiff’s cited evidence shows that Mr. Reed walked along the
sidewalk and under the entryway, like plaintiff. Compare Docket No. 80-13 at 01:36:00-
01:38:38, 01:55:53-01:56:13, 02:11:55-02:12:15, with Docket No. 71-1 at 05:43-06:07.
Additionally, defendants do not attach pages 64 or 66 of Mr. Detreville’s deposition to
their exhibit, so it is unclear what Mr. Detreville said in this portion of his testimony. See
Docket No. 77-2. Accordingly, the Court rejects this argument.
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Colo. Mar. 20, 2023). Here, defendants argue that Officer Gurevich did not see anyone
filming on November 13, 2019, citing Officer Gurevich’s testimony. Docket No. 77 at 5,
¶ 22 (citing Docket No. 77-3 at 33, 290:24-291:4). Plaintiff supports his denial of that
fact with video evidence showing that Mr. Reed recorded along the sidewalk and inside
the entryway, the same location where plaintiff was arrested, three separate times on
November 13, 2019 for approximately three minutes. See Docket No. 80 at 3, ¶ 22
(citing Docket No. 80-13 at 01:36:00-01:38:38, 01:55:53-01:56:13, 02:11:55-02:12:15).
Moreover, plaintiff also cites Officer Gurevich’s testimony where he states that it was
“possible” to see the sidewalk leading up to the Station’s entrance from the cameras.
Id.; Docket No. 80-7 at 19-20, 162:20-163:3.31 A jury could infer that Officer Gurevich
saw Mr. Reed recording in the entryway due to Officer Gurevich’s position at the desk
and the presence of computer monitors at the desk, which displayed video of the
external security cameras and the sidewalk leading to the entryway.
The Court therefore finds that Mr. Detreville has raised a genuine dispute of fact
that “a similarly-situated individual of another race could have been, but was not,
arrested” for the same offense as Mr. Detreville, Colo. Rev. Stat. § 18-9-117. See
James, 257 F.3d at 1179. Moreover, Mr. Detreville has raised a genuine dispute of
material fact on the discriminatory purpose element. If Officer Gurevich saw Mr. Reed
recording in the entryway of the Station, but did not approach or arrest Mr. Reed, then a
reasonable jury could infer that Mr. Reed’s and Mr. Detreville’s racial identities were a
“motivating factor in the decision.” See Alcaraz-Arellano, 441 F.3d at 1264. Viewing
31 Mr. Reed’s video additionally shows the location of some of the external
security cameras near the entryway. See Docket No. 80-13 at 01:36:00-01:36:28.
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the evidence in the light most favorable to Mr. Detreville, the Court finds that genuine
disputes of material fact preclude entry of summary judgment on the equal protection
claim against Officer Gurevich. Accordingly, the Court denies this portion of defendants’
motion.
b. Officer Weinheimer
Defendants argue that it is undisputed that Officer Weinheimer was not working
on November 13 or November 14, 2019. Docket No. 77 at 14. Therefore, defendants
claim that plaintiff cannot establish that Officer Weinheimer’s actions had a
discriminatory effect or were motivated by a discriminatory purpose. Id.
Mr. Detreville responds that evidence of Officer Weinheimer’s “behavior during
the events in question” and her “own statements and testimony” create a genuine
dispute as to whether Officer Weinheimer’s decision to arrest plaintiff was motivated, at
least in part, by his race. Docket No. 80 at 19. Specifically, Mr. Detreville argues that
[w]hen Defendant Weinheimer confronted Plaintiff outside of the door to the
Station, she refused Plaintiff’s polite request to verbally state her name and
badge number. She could clearly see that Plaintiff was videorecording the
encounter from a reasonable distance away, but she described in her reports that
Plaintiff “pushed a phone into [her] face.” [Docket No. 80-4] at 14. However, this
is an obvious exaggeration, as the three videos (i.e., Plaintiff’s video and the two
body camera videos) provide a clear perspective of the encounter, demonstrating
that Plaintiff kept his elbows bent with the phone tucked close to his body
throughout the encounter – the phone was nowhere near Defendant
Weinheimer’s face. [Docket No. 77-2] at 00:00-00:20. Within approximately one
minute, Defendant Weinheimer became apparently frustrated with the innocuous
encounter and called Defendant Gurevich to make an arrest. [Docket No. 71-1]
at 6:00-7:13.
At deposition, Defendant Weinheimer provided extensive testimony of her
purported fears that she “was about to be assaulted or worse” by Plaintiff. See
[Docket No. 80-8 at 12-18], 85:01-91:20; id. at 85:14-20 (“I really honestly
thought that I was about to be harmed . . . My concern was what I was going to
do to make it home to my kids that night.”). These strongly worded fears are
inconsistent with the brief encounter and Plaintiff’s conduct shown on the videos.
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To the extent Defendant Weinheimer legitimately perceived these fears at the
time of the incident, it is inexplicable why she chose not to abate the perceived
threat. She could have ordered Plaintiff to move back, retreated inside the
Station, or drawn a weapon (if she reasonably perceived a threat), but she did
none of those things. [Id. at 10, 14, 24,] 83:17-19, 87:19-88:21, 97:01-08. She
did not even convey these purported fears to Defendant Gurevich, who
presumably wanted to “make it home” that night, too. [Id. at 21-26,] 94:25-99:21.
More to the point, for purposes of the Equal Protection claim, Defendant
Weinheimer’s seemingly irrational and exaggerated fears suggest an unfortunate
yet common experience for people like Plaintiff: the officer merely saw a black
man in the dark and got scared. Put another way, Defendant Weinheimer
perceived a man engaged in common behavior outside of the station, but
subjectively perceived it to be threatening and/or criminal, because his blackness
made him appear more threatening to her. . . . In the face of objective evidence
showing Mr. Detreville did not shove the phone in her face or otherwise do
anything threatening, a fact-finder may conclude that her exaggerated description
of the encounter and her reaction to call over an officer to arrest were motivated
by racial bias (i.e., discriminatory purpose).
Docket No. 80 at 19-20. Mr. Detreville did not include any of these facts in the proper
section of his brief, and therefore the Court declines to consider this evidence as
discussed previously.
However, even if the Court considered this evidence, the Court finds that it is
insufficient to raise an inference that Officer Weinheimer was motivated by a racially
discriminatory purpose. In Blackwell v. Strain, 496 F. App’x 836, 837 (10th Cir. 2012)
(unpublished), a Black truck driver brought an equal protection claim against the officer
who stopped him at a port of entry. Mr. Blackwell argued that the officer was motivated
by a discriminatory purpose, evidenced by the following behavior during the encounter:
(1) the officer “made him wait an inordinately long period of time before conducting the
inspection of his vehicle;” (2) the officer “accused him of being under the influence of
drugs or alcohol” and “administered a field sobriety test;” (3) the officer told plaintiff that
he had a “problem,” “subjected him to a subsequent unwarranted breathalyzer test,” and
“pressured him to sign the citation;” and (4) the officer “otherwise exhibited a
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disturbingly hostile, aggressive, unprofessional, and confrontational demeanor for no
apparent reason.” Id. at 845-46. The Tenth Circuit found that
[c]ontrary to Blackwell’s assertions, however, this is not evidence from which a
jury could reasonably infer Officer Strain was motivated by a racially
discriminatory purpose. There is no indication Officer Strain behaved the way he
did, even in part, because Blackwell is black. For all we know, Officer Strain
behaves in this same manner toward all of the truckers he interacts with at the
[port of entry], regardless of their race. See Johnson v. Crooks, 326 F.3d 995,
1000 (8th Cir. 2003) (stating that “the Johnsons have offered no evidence that
Crooks does not stop non-African Americans under similar circumstances,” but
instead, “rely on Ms. Johnson’s personal opinion that she was stopped on
account of her race, plus additional aspects of the encounter that do not directly
evidence racial animus”).
Id. at 846. The Tenth Circuit found that Mr. Blackwell presented “no evidence that non-
black truck drivers who were stopped, detained, and subjected to heightened
inspections by Officer Strain were treated any differently” from Mr. Blackwell or other
Black truckers. Id. at 847. The Tenth Circuit emphasized that Mr. Blackwell’s “personal
opinion” that he was stopped by the officer because he was Black is “not evidence from
which a jury could reasonably infer Officer Strain was motivated by a discriminatory
purpose.” Id.
Likewise, here, the Court finds that no reasonable jury could infer that Officer
Weinheimer was motivated by a discriminatory purpose based on plaintiff’s proffered
evidence. Even if Officer Weinheimer’s observation of the encounter was “irrational,”
including her belief that Mr. Detreville “pushed a phone into [her] face” and her concern
that she “was about to be harmed,” see Docket No. 80 at 19-20, there is no indication
that Officer Weinheimer behaved the way she did, even in part, because Mr. Detreville
is Black. Mr. Detreville presents no evidence that Officer Weinheimer has treated
individuals of other races any differently from Mr. Detreville when she encountered
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those individuals filming near the Station. See Blackwell, 496 F. App’x at 847. Mr.
Detreville’s speculation that “his blackness made him appear more threatening” to
Officer Weinheimer, see Docket No. 80 at 20, is “not evidence from which a jury could
reasonably infer [that Officer Weinheimer] was motivated by a discriminatory purpose.”
See Blackwell, 496 F. App’x at 847.32 Even viewing the evidence in the light most
favorable to Mr. Detreville, the Court finds that Mr. Detreville has not raised an inference
that Officer Weinheimer was motivated by a discriminatory purpose. Accordingly, the
Court grants this portion of defendants’ motion and dismisses the portion of the equal
protection claim against Officer Weinheimer with prejudice.
32 Mr. Detreville also argues that a “plaintiff’s showing that the officer did not have
legitimate basis for their law enforcement action selected can provide evidence of
pretext necessary to permit an inference that race was the motivating factor.” Docket
No. 80 at 20 (citing Pittman v. City of Aurora, 2020 WL 6586659 (D. Colo. Oct. 23,
2020), recommendation adopted by 2020 WL 6585841 (D. Colo. Nov. 10, 2020) (citing
Marshall, 345 F.3d at 1169)). However, the absence of probable cause is not the
standard for an equal protection claim and Pittman does not support plaintiff’s
contention. See Pittman, 2020 WL 6586659, at *8 (discussing how an equal protection
claim requires proof that defendant’s actions had a “discriminatory effect and were
motivated by a discriminatory purpose” (citing Marshall, 345 F.3d at 1168)). To the
extent that Mr. Detreville argues that his case is similar to Marshall, the Court rejects
that argument. In Marshall, the Tenth Circuit found that plaintiff raised an inference that
the officer was motivated by a discriminatory purpose during the traffic stop because the
officer repeatedly accused plaintiff of using “crack with no apparent basis,” made an
“unnecessary note of [plaintiff’s] race,” and the officer’s “account of the events changed
dramatically between the date of the incident and the date of his affidavit.” Marshall,
345 F.3d at 1170. Moreover, the plaintiff “presented evidence regarding extensive
alleged misconduct” committed by the officer against Black individuals. Id. Here, Mr.
Detreville presents no evidence that Officer Weinheimer made any remarks about Mr.
Detreville’s race on November 10, 2019 or that Officer Weinheimer has a pattern of
misconduct against Black individuals. Accordingly, the Court rejects this argument.
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IV. 	CONCLUSION
For the foregoing reasons, it is
ORDERED that Plaintiff’s Motion for Partial Summary Judgment Against
Defendant Gurevich [Docket No. 71] is DENIED. It is further
ORDERED that Defendants’ Cross Motion for Summary Judgment [Docket No.
77] is GRANTED in part and DENIED in part. It is further
ORDERED that plaintiff’s first claim is DISMISSED with prejudice against
defendants Sergey Gurevich and Julie Weinheimer. It is further
ORDERED that plaintiff’s fourth claim is DISMISSED with prejudice against
defendant Julie Weinheimer.
DATED September 30, 2024.
BY THE COURT:
____________________________
PHILIP A. BRIMMER
Chief United States District Judge
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