Sexton v. Faris et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 22-cv-1927-WJM-CYC
MICHAEL SEXTON,
Plaintiff,
v.
SEAN FARIS, Lieutenant for the Denver Police Department, in his individual capacity,
JOHN DOE 1, Supervisory Officer for the Denver Police Department, in his individual
capacity, and
CITY AND COUNTY OF DENVER, a municipality,
Defendants.
ORDER GRANTING DEFENDANT LT. SEAN FARIS’S
MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendant Lieutenant Sean Faris’s (“Lt. Faris”) Motion for
Summary Judgment (“Motion”). (ECF No. 86.) Plaintiff Michael Sexton filed a response
(ECF No. 90), to which Lt. Faris filed a reply (ECF No. 93).
For the following reasons, the Motion is granted.
I. PRELIMINARY MATTERS
Before summarizing the pertinent factual background, the Court addresses two
evidentiary issues raised in Lt. Faris’s reply.
First, Lt. Faris argues that Sexton cannot rely on the unsworn expert report of
Natasha Powers to dispute certain facts set forth in Movant’s Statement of Material
Facts and that those facts should accordingly be deemed admitted. (ECF No. 93 at 2;
ECF No. 90 at 3 ¶¶ 14, 19; id. at 5 ¶ 36.) This Court has routinely rejected the
Case No. 1:22-cv-01927-WJM-CYC Document 106 filed 12/09/25 USDC Colorado
pg 1 of 18

2
argument that unsworn expert reports cannot create a genuine issue of material fact
sufficient to defeat summary judgment. See Fabian v. State Farm Mut. Auto. Ins. Co.,
2023 WL 5179113, at *4 (D. Colo. Aug. 11, 2023); Silverman v. Greenfield, 2019 WL
409340, at *11 (D. Colo. Jan. 31, 2019); Olivero v. Trek Bicycle Corp., 291 F. Supp. 3d
1209, 1214–15 (D. Colo. 2017); Sanchez v. Hartley, 299 F. Supp. 3d 1166, 1182 n.11
(D. Colo. 2017); Pertile v. Gen. Motors, LLC, 2017 WL 4237870, at *2 & n.3 (D. Colo.
Sept. 22, 2017). “The Court’s view is partly informed by the fact that the procedure
surrounding expert reports provides safeguards and indicia of reliability similar to those
provided by sworn affidavits or declarations; and partly by the utterly formalistic nature
of the objection, which has no bearing on whether ‘a fact cannot be presented in a form
that would be admissible in evidence,’ Fed. R. Civ. P. 56(c)(2).” Silverman, 2019 WL
409340, at *11 (internal citations and quotation marks omitted).1 So, where cited, the
Court will consider whether Powers’ expert report creates a genuine issue of material
fact.
Second, Lt. Faris argues that Sexton’s Statement of Additional Disputed Facts
fails to comply with the Court’s Practice Standard directing that
[i]f the party opposing the motion for summary judgment . . .
believes there are additional disputed questions which have
not been adequately addressed by the movant, 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 movant is entitled to judgment
as a matter of law. Each separately numbered and
1 Notably, Lt. Faris has not filed a Daubert motion challenging the reliability of Powers’
opinions. See WJM Revised Prac. Standard III.H.2.a (Rule 702 motions “challeng[ing] expert
evidence submitted in support of summary judgment briefing . . . must be filed
contemporaneously with the summary judgment response or reply, as appropriate.”).
Case No. 1:22-cv-01927-WJM-CYC Document 106 filed 12/09/25 USDC Colorado
pg 2 of 18

3
paragraphed fact shall be accompanied by specific reference
to evidence in the record supporting the fact or
demonstrating that it is disputed.
WJM Revised Practice Standard III.F.5. Sexton’s Statement of Additional Facts
consists of just one paragraph, stating the following:
With the exception of the foregoing statement, the plaintiff
stands on his response to defendant’s statement of material
fact set forth in Exhibit 2, the declaration of Mr. Sexton and
asks to accept ¶¶ 1–21 of Exhibit 2, as if fully set forth
herein.
(ECF No. 90 at 5 ¶ 1.)
The Court agrees with Lt. Faris that Sexton’s general incorporation of an entire
exhibit is not in keeping with the Court’s Practice Standards and is surely a reflection of
sloppy lawyering. Moreover, it is unclear to the Court what Sexton means in stating his
intent to “stand[] on his response to defendant’s statement of material fact set forth in
Exhibit 2,” as Sexton has separately set forth his admissions and denials to Lt. Faris’s
Statement of Material Facts in his response brief. (See ECF No. 90 at 2–5.)
On the other hand, Sexton also cites his declaration in response to Lt. Faris’s
Statement of Material Facts, such that the Court will refer to his declaration as summary
judgment evidence at any rate. (See, e.g., ECF No. 90 at 3–5 ¶¶ 19, 30, 33–34.)2 So,
while the Court looks poorly upon this failure to adhere to its Practice Standards, it will
nevertheless consider any additional, material facts set forth in Sexton’s declaration in
its analysis below.
2 As a substantive matter, it is worth noting that Lt. Faris’s Statement of Material Facts is
similarly a virtual word-for-word recitation of his declaration. (Compare ECF No. 86 at 2–8 with
ECF No. 86-1.)
Case No. 1:22-cv-01927-WJM-CYC Document 106 filed 12/09/25 USDC Colorado
pg 3 of 18

4
II. BACKGROUND3
In August 2020, the Denver Department of Public Health and Environment
(“DDPHE”) declared a public health hazard at an unlawful encampment located at the
2200 block of Champa Street, in the City and County of Denver. (ECF No. 86 at 2 ¶ 1.)
DDPHE requested that the Denver Department of Transportation and Infrastructure
(“DOTI”) assist with a cleanup of the location. (Id. at 2 ¶ 2.)
The cleanup operation commenced in the morning hours of August 25, 2020,
around 7:00 or 8:00am. (Id. at 3 ¶ 7.) Denver Police Department (“DPD”) officers,
supervised by Lt. Faris, provided protection for City employees during the cleanup. (Id.
at 2 ¶¶ 3, 4.) Lt. Faris directed officers to set up a perimeter with yellow tape around the
operation to serve as a barrier between protestors and the civilian City employees
carrying out the cleanup. (Id. at 3 ¶¶ 8, 9; see also ECF No. 90-2 at 1 ¶ 6.) And,
indeed, shortly after the perimeter was set up, protestors arrived and began protesting
the removal of the encampment. (ECF No. 86 at 3 ¶ 11.) They were permitted to voice
their displeasure with DPD and the cleanup operation so long as they stayed behind the
established perimeter. (Id. at 3 ¶ 12.)
Sexton, specifically, arrived at the protest around 10:30am. (ECF No. 90-2 at 1
¶ 5.) He is clearly depicted in the bodycam footage submitted by the parties wearing
shorts and a white t-shirt. (ECF No. 86 at 4 ¶ 20; see also, e.g., ECF No. 86-5 at
42:14–23.) At the time of the incident in question, Sexton was a video journalist and
3 The following factual summary is based on the parties’ briefs on the Motion and
documents submitted in support thereof. These facts are undisputed unless attributed to a party
or source. All citations to docketed materials are to the page number in the CM/ECF header,
which sometimes differs from a document’s internal pagination.
Case No. 1:22-cv-01927-WJM-CYC Document 106 filed 12/09/25 USDC Colorado
pg 4 of 18

5
owner of a YouTube channel, Pikes Peak Accountability, on which he published videos
of public concern. (ECF No. 86 at 1 ¶ 2.) He went to the protest “to video the protest
and to publish it for the community and to protest the often-heavy-handed tactics by
Denver Police in tearing down homeless people’s temporary housing structures.” (Id. at
1 ¶ 4.) Sexton began filming the protest immediately upon his arrival. (Id. at 1 ¶ 5.) He
was aware that the yellow tape demarcated a police line that he was not permitted to
cross. (Id. at 3 ¶ 10.)
The protest continued peacefully and without incident for over two hours. (Id. at
3 ¶ 13.) Lt. Faris submits, however, that at least some of the protestors’ chants became
increasingly provocative, including those of at least one protestor who began chanting,
“Only good cop is a dead cop.” (Id. at 3 ¶ 14.) He avers that such chants were
“concerning because they raised the possibility that the protest of the encampment
removal could become violent,” (ECF No. 86-1 at 2 ¶ 16), though the parties dispute
whether the chants are fairly characterized as “threats,” (ECF No. 90 at 3 ¶ 14
(disputing that the chants were “true threats”)).
At any rate, soon thereafter, a protestor breached the perimeter by walking under
the yellow tape. (ECF No. 86 at 4 ¶ 16; ECF No. 86-5 at 1:49:05.) Moments later, one
or more of the protestors tore the yellow police tape establishing the perimeter, though it
is unclear from the video evidence whether that act was intentional or inadvertent.
(ECF No. 86-5 at 1:49:08–10.) Either way, several protestors—including Sexton—
appeared to seize on the opportunity to progress slowly forward beyond the previously
established perimeter. Sexton took several steps inside the previously-marked
perimeter and linked arms alongside four other protestors whilst continuing to film the
Case No. 1:22-cv-01927-WJM-CYC Document 106 filed 12/09/25 USDC Colorado
pg 5 of 18

6
police. (Id. at 1:49:43–50.) Several seconds later, the line of linked protestors—with
still others following just beyond them—took several more steps forward toward police.
(Id. at 1:50:10–19.)
At that point, officers picked up the broken police line and appeared to begin
attempting to reconnect the yellow tape to prevent the protestors from advancing still
further. (Id. at 1:50:24–34.) Then, the protestors linked arm-in-arm, still including
Sexton, veered to the far right of the police line, in what appears to the Court to have
been an attempt to flank or otherwise proceed further beyond the police. (Id. at
1:51:14–18.) At that point, an officer on the line began shoving the protestors back. (Id.
at 1:51:19–26.)
Lt. Faris avers that, based on the conduct of the linked line and his experience,
he had reason to believe that the protestors would attempt to interfere with cleanup
operations. (ECF No. 86 at 5 ¶ 26.) He directed officers to arrest one of the protestors,
who had broken the police line, in the “linked up” line. (Id. at 5 ¶ 27.) Sexton does not
dispute that other protestors then became aggressive and attempted to interfere in the
arrest by holding onto the man. (Id. at 5 ¶ 28.)
Throughout the incident, Sexton is clearly captured on video filming the
encounter in exceedingly close proximity to the officers. (See generally ECF No. 86-6.)
Indeed, for a matter of seconds, Sexton stood so close to the officers that his mid-
section was pushing up against an officer who was actively attempting to push
protestors back:
Case No. 1:22-cv-01927-WJM-CYC Document 106 filed 12/09/25 USDC Colorado
pg 6 of 18

7
(Id. at 00:00:17.) Notably, the video footage shows that the police perimeter had
previously extended to the light pole depicted in the background of the foregoing still.
Moreover, the Court takes judicial notice of the fact that this incident occurred in August
2020, during the height of the COVID-19 pandemic, and prior to the public rollout of an
effective vaccine in December of that year.
As officers were attempting to hold the police line, a water bottle was thrown by
protestors in the general direction of the officers, though it fell to the ground without
hitting anyone. (ECF No. 86 at 7 ¶ 31.) Lt. Faris submits that it is at this point that he
decided to deploy Oleoresin Capsicum (“OC”) spray, i.e., pepper spray, to create
distance between the protestors and the police so the perimeter could be reestablished.
Case No. 1:22-cv-01927-WJM-CYC Document 106 filed 12/09/25 USDC Colorado
pg 7 of 18

8
(Id. at 8 ¶ 32.; see also id. at 2 ¶ 5.) Capsaicin, the active ingredient in pepper spray,
irritates the eyes to cause burning and pain sensations and temporary blindness. (Id. at
2–3 ¶ 6.) It is used as a less lethal weapon in policing, riot control, crowd control, and
self-defense, including defense against dogs and bears. (Id.) Its inflammatory effects
cause the eyes to close, temporarily taking away vision. (Id.)
While Lt. Faris avers it was his intent to disperse a crowd that had become
violent and he did not hear Sexton say anything (id. at 8 ¶ 34; ECF No. 93 at 10 ¶ 19),
Sexton submits that Lt. Faris’s act of pepper spraying him was an angry reaction to a
statement that Sexton made about police behavior (ECF No. 90 at 4–5 at ¶¶ 32–33.)
Moreover, according to Sexton’s version of the events, he “respected the yellow tape
barrier the entire time and stayed on the requested side of the barrier as directed by the
police,” was never aggressive with anyone at the protest, and, if he did have physical
contact with any police officer, “it was incidental contact on the day in question and []
was in no way threatening or violent with anyone at the protest.” (ECF No. 90-2 at 2 ¶¶
7, 9.)
Irrespective of Lt. Faris’s intent in deploying pepper spray, it appears to have
been successful in pushing back the crowd and enabling officers to reestablish the
overrun police perimeter. (ECF No. 87 at 8 ¶ 36.)
Remaining in this lawsuit are Sexton’s claims against Lt. Faris for excessive force
in violation of the Fourteenth Amendment (ECF No. 63 at ¶¶ 66–87 (First Claim)) and
retaliation in violation of the First Amendment (Id. at ¶¶ 104–115 (Third Claim)). (See
also ECF No. 77 (dismissing with prejudice First Amendment denial of free speech
claim, municipal liability claim, and all claims against Defendant John Doe 1).) Lt. Faris
Case No. 1:22-cv-01927-WJM-CYC Document 106 filed 12/09/25 USDC Colorado
pg 8 of 18

9
now moves for summary judgment on both claims. (See generally ECF No. 86.)
III. LEGAL STANDARDS
A. 	Rule 56
Summary judgment is appropriate “if 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). A 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). An issue is “genuine” if the evidence is such that it
might lead a reasonable trier of fact to return a verdict for the nonmoving party. Allen v.
Muskogee, 119 F.3d 837, 839 (10th Cir. 1997). Courts view the evidence and all
reasonable inferences therefrom in the light most favorable to the nonmoving party.
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
B. 	Qualified Immunity
“The doctrine of qualified immunity shields government officials . . . from liability
for damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Buck v. City of
Albuquerque, 549 F.3d 1269, 1277 (10th Cir. 2008) (citation omitted). “A § 1983
defendant’s assertion of qualified immunity is an ‘affirmative defense [that] creates a
presumption that the defendant is immune from suit.’” Truman v. Orem City, 1 F.4th
1227, 1235 (10th Cir. 2021) (alteration in original) (quoting Est. of Smart by Smart v.
City of Wichita, 951 F.3d 1161, 1168 (10th Cir. 2020)).
“When a defendant asserts qualified immunity at summary judgment, the burden
shifts to the plaintiff to show that: (1) the defendant violated a constitutional right and (2)
Case No. 1:22-cv-01927-WJM-CYC Document 106 filed 12/09/25 USDC Colorado
pg 9 of 18

10
the constitutional right was clearly established.” Martinez v. Beggs, 563 F.3d 1082,
1088 (10th Cir. 2009). Thus, Sexton must show that (1) Lt. Faris’s alleged conduct
violated his constitutional rights and (2) “that Supreme Court or published Tenth Circuit
cases, or the weight of authority from other courts, existing at the time of the violation,
clearly established that such conduct constituted a violation of that right.” Baca v.
Cosper, 128 F.4th 1319, 1325 (10th Cir. 2025).
IV. ANALYSIS
A. 	Excessive Force—Fourteenth Amendment (First Claim)
Lt. Faris argues he is entitled to qualified immunity on Sexton’s first claim for
excessive force in violation of the Fourteenth Amendment. (ECF No. 86 at 14–18.) The
Court agrees that summary judgment is warranted because Sexton has wholly failed to
address the legal standard applicable to his Fourteenth Amendment claim or direct the
Court to evidence related to that standard. Thereby, Sexton has failed to establish a
constitutional violation. The Court accordingly does not reach the second prong of the
qualified immunity analysis.
As pertinent procedural background, the Court notes that Sexton’s original
complaint alleged a “Fourth and Fourteenth Amendment Violation” for “Excessive and
Unreasonable Force.” (ECF No. 1 at 15.) Thereafter, however, Sexton filed an
amended complaint (the “FAC”), which alleged only a Fourteenth—and not a Fourth—
Amendment excessive force claim. (ECF No. 33 at 25.) In response to Defendants’
subsequent motion to dismiss the FAC, Sexton appeared to “recogniz[e]” that the use of
force by Lt. Faris “fail[ed] to evolve into a seizure.” (ECF No. 37 at 5.) In light of this
concession, the Court explained in its corresponding dismissal Order that “the
substantive due process analytical framework” applied to Sexton’s Fourteenth
Case No. 1:22-cv-01927-WJM-CYC Document 106 filed 12/09/25 USDC Colorado
pg 10 of 18

11
Amendment excessive force claim. (ECF No. 62 at 12; see also ECF No. 77 at 9
(reiterating same).) See also Roska ex rel. Roska v. Peterson, 328 F.3d 1230, 1243
(10th Cir. 2003) (“Claims that state actors used excessive force—deadly or not—in the
course of a seizure are analyzed under the Fourth Amendment’s reasonableness
standard. . . . Substantive due process analysis is appropriate in cases that involve
excessive force where a specific constitutional provision—such as the Fourth or Eighth
Amendment—does not apply.”) (citations omitted); see also Huff v. Reeves, 996 F.3d at
1092 (10th Cir. 2021) (“Because Ms. Huff’s excessive-force claim against Reeves
alleges a prearrest seizure, . . . it is properly analyzed under the Fourth, rather than the
Fourteenth, Amendment.”) (emphasis in original).
Sexton’s operative SAC continues to allege only that Lt. Faris “deprived [him] of
his Fourteenth Amendment protection from excessive use of force that amounts to
governmental action which is arbitrary or ‘shocks the conscience’” when Lt. Faris
“recklessly, willfully, maliciously, and intentionally attack[ed] [Sexton] without
provocation by spraying him in the face with pepper spray.” (ECF No. 63 at ¶¶ 68, 69
(emphasis added).) Yet, in opposition to the Motion, Sexton argues that he has a triable
Fourth Amendment claim, further asserting for the first time that “[h]e was seized under
the fourth amendment [sic] when he was pepper sprayed in his eyes by Lt. Faris and
was temporarily disabled and fell to the floor.” (ECF No. 90 at 9.)
Sexton “cannot change the entire theory” of his excessive force claim “in [his]
response to a motion for summary judgment.” Getzel v. ATS Specialized, Inc., 2024
WL 446038, at *6 (D. Colo. Jan. 19, 2024). Though “some courts treat new claims first
raised in a response to summary judgment as a constructive motion to file an amended
Case No. 1:22-cv-01927-WJM-CYC Document 106 filed 12/09/25 USDC Colorado
pg 11 of 18

12
complaint,” “such an amendment is permissible only where ‘a late shift in the thrust of
the case will not prejudice the other party in maintaining its defense.’” Id. (quoting
Ahmad v. Furlong, 435 F.3d 1196, 1202 (10th Cir. 2006)). The Court can imagine
circumstances under which it might be reluctant to preclude a § 1983 plaintiff from
proceeding on an otherwise viable excessive force claim based on something as
relatively formalistic as whether that claim is better labeled as a Fourth or Fourteenth
Amendment violation.
But, under the circumstances here, permitting Sexton to yet again shift the legal
theory underpinning his excessive force claim at this late stage would surely prejudice
Lt. Faris. As noted above, Sexton has already been afforded numerous opportunities to
amend his complaint, and he expressly argued in prior filings that his excessive force
claim was not predicated on a seizure. Based on these representations, the Court has
(twice) expressly instructed Sexton that the Fourteenth Amendment substantive due
process analytical framework—not the Fourth Amendment objective reasonableness
standard—governs his claim. (ECF No. 62 at 12; see also ECF No. 77 at 9 (reiterating
same).)4 Despite this, his opposition wholly fails to address whether there is sufficient
evidence upon which a jury could reasonably conclude that Lt. Faris’s conduct amounts
to a Fourteenth Amendment violation under the applicable “conscience-shocking”
standard. Roska, 328 F.3d at 1243.
For these reasons, the Court finds that Sexton has failed to raise a genuine issue
of material fact precluding summary judgment on his Fourteenth Amendment excessive
4 Sexton himself appears to plead his Fourteenth Amendment claim in conjunction with
this standard (see, e.g., ECF No. 63 at ¶¶ 68, 72, 74, 78)
Case No. 1:22-cv-01927-WJM-CYC Document 106 filed 12/09/25 USDC Colorado
pg 12 of 18

13
force claim under the appropriate legal standard, and the Court otherwise declines to
analyze his excessive force claim as an (unpleaded) Fourth Amendment violation. Cf.
Cousik v. City & County of Denver, 2024 WL 896755, at *6 (D. Colo. Mar. 1, 2024)
(same); Shaw v. City of Norman, 2023 WL 2923962, at *4 (10th Cir. Apr. 13, 2023)
(affirming district court’s dismissal of claim for violation of substantive-due-process
rights where “plaintiffs make no attempt to satisfy [the applicable] standard”). The
Motion is thus granted as to Sexton’s first claim for relief against Lt. Faris.
B. 	Retaliation—First Amendment (Third Claim)
Lt. Faris additionally contends that he is entitled to summary judgment on
Sexton’s third claim for retaliation in violation of the First Amendment. (ECF No. 86 at
10–14.) The Court agrees with Lt. Faris that summary judgment is appropriate at least
because Sexton has failed to establish a genuine issue of material fact as to the first
element of his First Amendment retaliation claim. Having thus failed to establish a
constitutional violation, the Court again does not reach the second prong of the qualified
immunity analysis.
To prove a claim of retaliation for the exercise of First Amendment rights, Sexton
must establish “(1) that [he] was engaged in constitutionally protected activity; (2) that
the defendant’s actions caused the plaintiff 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
adverse action was substantially motivated as a response to the plaintiff’s exercise of
constitutionally protected conduct.” Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir.
2000) (quotations omitted); see also Fenn v. City of Truth or Consequences, 983 F.3d
1143, 1148 (10th Cir. 2020) (same).
As to the first element, Sexton alleges in the SAC that he “lawfully exercised his
Case No. 1:22-cv-01927-WJM-CYC Document 106 filed 12/09/25 USDC Colorado
pg 13 of 18

14
right to free speech under the First Amendment, by videotaping the abusive treatment of
Denver citizens by the Denver Police Department and verbally calling out this
misconduct in an effort to prevent further violations.” (ECF No. 63 at ¶ 106.) Lt. Faris
does not dispute “that members of the public have a right to film the police.” (ECF No.
86 at 11.) See also Irizarry v. Yehia, 38 F.4th 1282, 1288 (10th Cir. 2022)
(“recogniz[ing] a First Amendment right to film the police performing their duties in
public”). It is further well-established that “the First Amendment protects both the right
to criticize police, and the right to remain in the area to be able to criticize observable
police conduct.” Manchas v. City & County of Denver, Colo., 2024 WL 6475779, at *5
(D. Colo. Apr. 5, 2024) (citing Jordan v. Jenkins, 73 F.4th 1162, 1169 (10th Cir. 2023)).
Nevertheless, Lt. Faris argues these First Amendment rights are “subject to
reasonable time, place and manner restrictions”—restrictions with which Sexton failed
to comply here. (ECF No. 86 at 11.) See Irizarry, 38 F.4th at 1292 n.10 (the First
Amendment right to film the police “is subject to reasonable time, place, and manner
restrictions”); Glik v. Cunliffe, 655 F.3d 78, 84 (1st Cir. 2011) (“To be sure, the right to
film is not without limitations. It may be subject to reasonable time, place, and manner
restrictions.”).
“It goes without saying that the police may take all reasonable steps to maintain
safety and control, secure crime scenes and accident sites, and protect the integrity and
confidentiality of investigations.” ACLU of Ill. v. Alvarez, 679 F.3d 583, 607 (7th Cir.
2012). Thus, “[w]hile an officer surely cannot issue a ‘move on’ order to a person
because he is recording, the police may order bystanders to disperse for reasons
related to public safety and order and other legitimate law-enforcement needs.” Id.
Case No. 1:22-cv-01927-WJM-CYC Document 106 filed 12/09/25 USDC Colorado
pg 14 of 18

15
(emphasis in original). Similarly, the right to criticize the police may be limited (1) “if
criticism is accompanied by a physical act which interferes with an officer’s official
duties;” (2) “if the act of criticizing itself is so loud that an officer is prevented from
executing his or her duties;” and (3) “if criticism of an officer has the function of coaching
a witness.” Jordan, 73 F.4th at 1170. “Under these circumstances, an officer may
lawfully restrict criticism based on its interference with police work.” Manchas, 2024 WL
6475779, at *5; see also Irrizary, 38 F.4th at 1292 n.10 (acknowledging that the right to
“loudly criticize” police is subject to the condition that such criticism do “not impede
officers from performing their duties”).
Turning to the facts at issue in this case, there is no dispute that the cleanup of
the homeless encampment and, likewise, the protest of those efforts took place on a
public street—“a traditional public forum where ‘the rights of the state to limit the
exercise of First Amendment activity are ‘sharply circumscribed.’” Id. (quoting Glik, 655
F.3d at 84) (internal citation omitted). (ECF No. 86 at ¶ 1.) But, it is also undisputed
(1) that the area immediately surrounding the cleanup operations was enclosed by a
police perimeter demarcated with yellow tape, (2) that Sexton was aware that the yellow
tape comprised a police line that he was not permitted to cross, and (3) that protestors
were otherwise permitted to protest freely so long as they respected that perimeter. (Id.
at 3 ¶¶ 8–13.)
Important to the Court’s decision on this claim is the fact that Sexton does not
argue that the police perimeter was an unreasonable place restriction on his First
Amendment rights. Instead, he argues, in conclusory fashion, that he did not “violate
any reasonable time, place, or manner restrictions on his First Amendment activity on
Case No. 1:22-cv-01927-WJM-CYC Document 106 filed 12/09/25 USDC Colorado
pg 15 of 18

16
that day.” (ECF No. 90 at 12.) As best the Court can discern, this assertion rises and
falls on Sexton’s averment that he “never breached the yellow tape barrier.” (Id. at 5.)
While it may be true that Sexton was not directly responsible for tearing down the
yellow tape, the Court is hard-pressed to find that this necessarily means he did not
violate the police perimeter. The video evidence unequivocally establishes that, after
the yellow tape was torn down, Sexton linked arms with a group of additional protestors
and pressed forward beyond the perimeter’s previously established boundary. While
officers endeavored to prevent the protestors from proceeding further, Sexton continued
to film the encounter while standing so close to an officer that his mid-section was
pressed up against them. (ECF No. 86-5 at 00:00:17.) Regardless of whether Sexton
subjectively intended this physical encroachment to be an act of aggression or not, the
Court finds that no reasonable jury viewing the video evidence could credit Sexton’s
characterization that he “was scrupulously observing the perimeter” and posed no
impediment to the officers’ performance of their official duties in the moments before he
was pepper sprayed. (ECF No. 90 at 4 ¶ 30.)
Indeed, these facts are a far cry from those where courts have found that the
plaintiff successfully alleged a violation of their First Amendment right to film. See
Irizarry, 38 F.4th at 1292 n.10 (observing there was “no ‘time, place, and manner’
restriction issue because a ‘peaceful recording’ of a traffic stop in ‘a public space that
does not interfere with the police officers’ performance of their duties is not reasonably
subject to limitation’”); Fields v. City of Philadelphia, 862 F.3d 353, 360 (3d Cir. 2017)
(concluding that plaintiffs enjoyed constitutional right to record without limitation where
one “took a photograph across the street from where the police were breaking up a
Case No. 1:22-cv-01927-WJM-CYC Document 106 filed 12/09/25 USDC Colorado
pg 16 of 18

17
party” and the other “moved to a vantage point where she could record a protestor’s
arrest, but did so without getting in the officers’ way”); Glik v. Cunniffe, 655 F.3d 78, 84
(1st Cir. 2011) (“[T]he complaint indicates that Glik ‘filmed [the officers] from a
comfortable remove’ and ‘neither spoke to nor molested them in any way’ (except in
directly responding to the officers when they addressed him). [citation omitted.] Such
peaceful recording of an arrest in a public space that does not interfere with the police
officers’ performance of their duties is not reasonably subject to limitation.”); Manchas,
2024 WL 6475779, at *5 (finding “Plaintiff’s conduct . . . remained well within the bounds
protected by the First Amendment” where he “filmed the arresting officers and criticized
their aggressive tactics from a public sidewalk” and “did not physically interfere with any
officer, but stood a significant distance from the officers throughout the encounter”). By
contrast, courts are more likely to find that officers are entitled to qualified immunity
where, as here, the plaintiffs were filming officers in unnecessarily close proximity and in
flagrant disregard of officer directives regarding where to stand. See, e.g., Hulbert v.
Pope, 70 F.4th 726, 737 (4th Cir. 2023) (holding officer was “entitled to qualified
immunity for ordering [the plaintiff] to move off the sidewalk while he was filming”
because the officer “reasonably could have believed that his order was consistent with
any First Amendment right to film”; “”[t]he right to film police . . . was not the right to a
close-up”).
In sum, because (1) no reasonable jury could conclude that Sexton was
exercising his First Amendment rights in due deference to the police perimeter and
without interfering with the officers’ performance of their official duties based on the
unique factual circumstances and evidence presented here; and (2) he does not
Case No. 1:22-cv-01927-WJM-CYC Document 106 filed 12/09/25 USDC Colorado
pg 17 of 18

18
otherwise challenge the police perimeter as an unreasonable restriction on his First
Amendment rights, Sexton has failed to establish that he was engaged in
constitutionally protected activity in the moments before he was pepper sprayed. The
Motion is accordingly granted as to Sexton’s third claim for relief against Lt. Faris.
V. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1. 	Defendant Lt. Sean Faris’s Motion for Summary Judgment (ECF No. 86) is
GRANTED;
2. 	Judgment shall enter in favor of Lt. Faris and against Sexton on his first
claim of excessive force in violation of the Fourteenth Amendment (ECF No. 63 at ¶¶
66–87) and third claim of retaliation in violation of the First Amendment (id. at ¶¶ 104–
115);
3. 	The action is DISMISSED WITH PREJUDICE; and
4. 	Each party shall bear their own fees and costs.
Dated this 9th day of December, 2025.
BY THE COURT:
______________________
William J. Martínez
Senior United States District Judge
Case No. 1:22-cv-01927-WJM-CYC Document 106 filed 12/09/25 USDC Colorado
pg 18 of 18