Lawsuit alleges 'free speech' violations by Colo. PD

A man says his freedoms were violated when police charged him with disorderly conduct after he told them, 'F*** the police'


By Lance Benzel
The Gazette (Colorado Springs, Colo.)

COLORADO SPRINGS, Colo. — A man who was arrested and cited by Colorado Springs police after directing an obscenity at an officer in 2019 is suing the city in federal court, alleging a free speech violation eight months after filing a similar lawsuit alleging he was “roughed up” for flipping off an officer in a separate encounter.

An attorney for Michael Sexton, 33, said the latest action is meant to enforce longstanding norms that criticizing police — even with harsh terms and gestures — is protected speech.

A cruiser in front of Garden of the Gods with Pikes Peak rising in the distance in Colorado Springs, Colorado.
A cruiser in front of Garden of the Gods with Pikes Peak rising in the distance in Colorado Springs, Colorado. (Photo/Colorado Springs Police Department)

“We’re trying to hold them accountable,” attorney Andy McNulty of Denver said Monday. “We were seeing if, after we filed the other lawsuit, Colorado Springs would come to the table and try to resolve this short of litigation, and they weren’t, so we decided to file another lawsuit.”

The latest lawsuit names the city of Colorado Springs and eight officers as defendants. Representatives of Colorado Springs police and the city declined to comment, citing pending litigation.

According to the 28-page complaint filed last week in U.S. District Court in Denver, Sexton stopped to take video of a “speed trap” in downtown Colorado Springs in January 2019 when he criticized an officer issuing a ticket — leading to a heated exchange that eventually involved all eight officers.

An officer who was called to assist said Sexton told him, “F--- the police.” In response, two other officers arrested Sexton, drove him to a police station and cited him for disorderly conduct.

Prosecutors pursued the citation in court for nearly a year before dismissing it on the eve of trial, McNulty said.

In January, Sexton filed a lawsuit in federal court related to his arrest the previous June on the city's west side. In that case, Sexton said an officer handcuffed him, wrenching his arm, after Sexton flipped off the officer as he drove past in a patrol car. Sexton’s jaywalking citation was dismissed by prosecutors, and the officer involved, Matthew Anderson, was disciplined for abusing an officer’s discretion, according to the complaint in that case. Anderson wasn’t disciplined for what the lawsuit calls a “false arrest” nor for excessive force.

“It’s clearly established that you can’t arrest someone for saying ‘f--- the police’ or flipping off police and you definitely can’t retaliate against them for doing so,” McNulty said.

That case has stalled while a federal judge weighs a motion for dismissal by the city asserting that the officer and Colorado Springs are immune from prosecution under the “qualified immunity” principle. Federal law makes police officers immune from lawsuits for actions in the line of duty, except when their conduct violates “clearly established statutory or constitutional rights of which a reasonable person would have known.”

Sexton’s attorney will need to demonstrate a pattern of “deliberate indifference” to the violations, legal observers say.

McNulty said he expected the lawsuit to clear that hurdle because the police actions involve a “pattern and practice” of retaliating against people who criticize them.

“Colorado Springs knows that, its officers know that, and to raise qualified immunity in cases like this where it’s clear that the constitution was violated is disingenuous,” he said.

Both lawsuits listed several examples of similar lawsuit against the city that resulted in settlements or claims accounting for “hundreds of thousands of dollars” in taxpayer money, but no changes in practice.

©2020 The Gazette (Colorado Springs, Colo.)

McClatchy-Tribune News Service

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