Loma v. City of Denver

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BRIAN LOMA, Plaintiff, v. CITY AND COUNTY OF DENVER, a municipality, CITY ATTORNEY KRISTIN M. BRONSON, in her individual capacity, ASSISTANT CITY ATTORNEY MELISSA M. DRAZEN SMITH, in her individual capacity, ASSISTANT DIRECTOR MARLEY BORDOVSKY, in her individual capacity, CORPORAL ROBERT D. SMITH, in his individual capacity, ALLIED UNIVERSAL SECURITY SERVICES, FALIESHA LYNETT TRIMBLE, in their individual capacity, ANGELIKA CHAPLINSKY, in their individual capacity, DETECTIVE NICHOLAS Z. ROCCO-MCKEEL, in his individual capacity, SERGEANT JASON BURTON, in his individual capacity, and SERGEANT JEFFREY BERGER, in his individual capacity, Defendants.

Civil Action No. 21-cv-02214-NYW-KLM

United States District Court, D. Colorado

March 20, 2023

MEMORANDUM OPINION AND ORDER

Nina Y. Wang, United States District Judge

Pending before the Court is the “Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6)” (the “Motion”) filed by Defendants City and County of Denver (“Denver”), Kristin M. Bronson (“Defendant Bronson” or “Ms Bronson”), Melissa M. Drazen Smith (“Defendant Drazen Smith” or “Ms. Drazen Smith”) Marley Bordovsky (“Defendant Bordovsky” or “Ms. Bordovsky”), Robert D. Smith (“Defendant Smith” or “Corporal Smith”), Nicholas Z. Rocco-McKeel (“Defendant Rocco-McKeel” or “Detective Rocco-McKeel”) Sergeant Jason Burton (“Defendant Burton” or “Sergeant Burton”), and Sergeant Jeffrey Berger (“Defendant Berger” or “Sergeant Berger,” and, collectively, “City Defendants”).^[1][Doc. 28, filed December 13, 2021]. Plaintiff Brian Loma (“Plaintiff” or “Mr. Loma”) timely filed a response brief (the “Response”) opposing the Motion, [Doc. 38, filed January 18, 2022], and City Defendants followed with a reply brief (the “Reply”), [Doc. 55, filed February 16, 2022]. The issues have been fully briefed, and the Court does not believe that oral argument would materially aid in the resolution of this matter. For the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART the Motion.

BAGKGROUND

The following facts are drawn from the Amended Complaint, [Doc 6], and are taken as true for the purposes of resolving the instant Motion. Brokers' Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1136 (10th Cir. 2014). Plaintiff Brian Loma is an individual who operates a YouTube channel that he uses to livestream community events and interactions between members of the public and police in the City and County of Denver. [Doc. 6 at ¶¶ 1, 4]. Plaintiff alleges that, because of his ability to expose government misconduct through the use of video platforms, he “has become a continual target for the City and County of Denver and the Denver Police in an effort to silence his advocacy.” [Id. at ¶ 6].

I. February 2019 Interaction with Police and Assault Charge

On February 15, 2019, Mr. Loma observed security guards harassing an unhoused individual sleeping on a bench outside of the Tabor Center Building located on the 16th Street Mall in downtown Denver. [Id. at ¶ 23]. He specifically recalls them poking and prodding the unhoused individual, and he began to film and livestream the guards' actions. [Id. at ¶¶ 24-25]. As he was filming, a member of the team-Defendant Faliesha Lynett Trimble (“Defendant Trimble” or “Ms. Trimble”), an employee of Allied Universal Security Services (“Allied Universal”)-approached him and informed him that “he could not film them.” [Id. at ¶ 26]. Plaintiff continued to film the interaction, and Ms. Trimble began to push him backwards and block his camera's view. [Id. at ¶¶ 27-28].

Ms. Trimble subsequently called the police. [Id. at ¶ 29]. Upon Corporal Robert D. Smith's arrival, Ms. Trimble told him that Mr. Loma had “spit in her face twice.” [Id.]. Corporal Smith proceeded to interview witnesses at the scene. [Id. at ¶ 30]. One witness-Angelika Chaplinskiy (“Defendant Chaplinskiy” or “Ms. Chaplinskiy”), another employee of Allied Universal-confirmed Ms. Trimble's story. [Id.]. A second witness, Bonnie Kutaukas (“Ms. Kutaukas”), informed Corporal Smith that Mr. Loma had not spit in Ms. Trimble's face and that Ms. Trimble had physically assaulted him. [Id. at ¶ 31]. She showed Corporal Smith a recording of the previous events, which did not show Plaintiff spitting in Ms. Trimble's face, and confirmed that Ms. Trimble never mentioned having been spat on until he had arrived at the scene. [Id. at ¶ 32]. Corporal Smith informed Ms. Kutaukas that he did not see any interaction between Mr. Loma or Ms. Trimble on the video, and asked if the recording had started at the beginning of their interaction; she confirmed that it had. [Id. at ¶ 33].

In his report, Corporal Smith did not state that Ms. Trimble had physically assaulted Plaintiff, that Ms. Trimble had followed Plaintiff, or that he had reviewed a video of the incident. [Id. at ¶¶ 34-36]. Instead, Mr. Loma alleges that Corporal Smith falsely reported that the video had not started at the beginning of the incident. [Id. at ¶ 37]. The interaction ended when Corporal Smith issued Plaintiff “a summons to appear in Denver Municipal Court for a charge of Assault for spitting on Ms. Trimble.” [Id. at ¶ 39].

Approximately three weeks later, Ms. Drazen Smith emailed the property owner and members of the “Denver Initiative”^[2] naming Plaintiff and stating that he was “stepping on the line of free speech.” [Id. at ¶ 41]. Mr. Loma claims she promised to place “Area Restrictions” on him, despite not being able to secure a conviction against him, “so that he could not continue his constitutionally protected right to protest near the 16th Street Mall the next time they got a conviction.” [Id.]. Before he was convicted of the aforementioned assault charge, Plaintiff “was given an Area Restriction, keeping him away from the 16th Street Mall area.” [Id. at ¶ 43]. At the time the restriction was issued, Mr. Loma “was employed as a Field Director of a campaign that was in direct opposition to the current Mayor.” [Id. ¶ 44]. He claims the restriction prevented him from working on the campaign in a heavily-populated area of downtown Denver. [Id.]. On August 18, 2019, Mr. Loma's assault charge was allegedly dismissed. [Id. at ¶ 45].

II. October 2020 Arrest and Search Warrant

Over a year later-on October 14, 2020-Mr. Loma was arrested pursuant to an arrest warrant “for Obstruction of Passage . . . for an incident that occurred on September 28, 2020.” [Id. at ¶ 47]. Upon his arrest, Mr. Loma was asked by the arresting officers if he would speak with them regarding a set of crimes that had been committed during the summer of 2020 in downtown Denver. [Id. at ¶ 49]. At the time, the officers were on the phone with Sergeant Burton. [Id.]. Mr. Loma said that he would speak with the officers if his attorney were present. [Id. at ¶ 50]. Sergeant Burton replied over the phone that, rather than allow him to speak with an attorney, “we will just take his phone.” [Id. at ¶ 52].

After spending the night in jail and being released on bond, Mr. Loma's phone was not returned to him. [Id. at ¶¶ 53-54]. On October 26, 2020, Detective Nicholas Rocco-McKeel (“Detective Rocco-McKeel”) “filed” an affidavit in support of a search warrant regarding Mr. Loma's phone. [Id. at ¶¶ 55-56]. The Search Warrant Affidavit sought “a general, exploratory examination into almost everything held on [Plaintiff's] phone without any particularity to a specific incident and/or specific time, location, victim, or another person who may have committed any crime.” [Id. at ¶ 56]. Mr. Loma claims that the Affidavit permitted the collection of, inter alia, identifying information, ownership, usage files, communications, notes, photos, and metadata from between May 28, 2020 to October 14, 2020. [Id. at ¶ 57]. Nevertheless, the Affidavit did specify “certain offenses committed by members of the community during the ongoing protests throughout the summer.” [Id. at ¶ 58]. Mr. Loma notes that it does not clarify how he might have been involved with any crimes or suspects, and that he has been prosecuted numerous times but has had several of his cases dismissed. [Id. at ¶¶ 59-60].

Moving forward to the spring of 2021, Plaintiff was acquitted at a jury trial regarding his arrest for obstruction. [Id. at ¶ 65]. On June 24, 2021, Mr. Loma avers that Judge Chelsea Malone of the Denver Municipal Court ordered the release of all property seized in relation to his obstruction arrest-including his phone. [Id. at ¶ 66]. On July 21, 2021, Mr. Loma attempted to retrieve his property from the Denver Police Department; however, he was informed that they did not have possession of his phone “because it was transferred to another jurisdiction.” [Id. at ¶¶ 6768]. Detective Rocco-McKeel confirmed that the phone had been transferred “to another case” in an email dated the same day. [Id. at ¶ 68]. Mr. Loma remains unaware of the whereabouts of his phone. [Id. at ¶ 69].

III. November 2020 Interaction with Police and Damage to Phone

On November 17, 2020,^[3]Plaintiff traveled to an area outside of St. Joseph's Hospital to film the “traumatic displacement of an encampment where BIPOC^[4] persons were residing,” as he had heard word of a planned peaceful sit-in. [Id. at ¶¶ 70-71]. When he arrived, he observed a work crew erecting a fence around the encampment and approximately twelve police officers. [Id. at ¶ 72]. He began filming the area, and was “holding in his hand a stabilizing device known as a gimbal with his cellphone attached and held out away from his body.”^[5][Id. at ¶ 73].

At this point, Sergeant Berger approached him, refused to identify himself, and struck the camera and gimbal from his hand when Mr. Loma attempted to film his badge. [Id. at ¶¶ 76-77]. His phone shattered, and he was unable to film the remainder of the...