Denver is set to pay $128,002 in settlements to two men who were arrested in September 2018 after allegedly disturbing the peace, though both men’s attorneys said they were actually arrested for swearing.

Denver City Council approved the settlement amount Monday afternoon, after attorneys for the officers and the two men reached a deal earlier this summer.

Brian Loma and Mikel Whitney sued the city and six police officers in September 2020, two years after their arrest on the 16th Street Mall. According to the lawsuit, Loma was protesting the city’s response to homelessness and shouted “f— the police.” After he used another expletive, police arrested him after asking a nearby couple if they were offended by Loma’s language. Whitney documented the encounter on his phone; he was arrested after police heard him use an expletive as he walked away from them, according to the suit.

The council approved giving each man a $64,001 payment to settle the ongoing suit against the three Denver police officers who arrested them: Sgt. Anthony Guzman, Cpl. Frederick Kitchens and Detective Michael Felsoci. The other three officers, including a lieutenant, had previously been dismissed from the suit. The court was formally informed of the settlement agreement in July, according to court documents.

During the public comment section of the City Council meeting, Loma said he didn’t want to file a lawsuit and that it wasn’t the way he wanted to prompt change in Denver. But he said the city and Police Department had changed its policies in the years since his arrest.

New group of 2020 protesters files lawsuit against Denver

According to the suit, which directly quotes comments made by Loma, Whitney and the officers involved, Loma was protesting after a friend was arrested while handing out meals to homeless people on 16th Street Mall. After Loma used an expletive, the suit says, Kitchens asked Guzman if the comment constituted disturbing the peace; Guzman said it did. 

Loma, who was walking and speaking on public property, then used another expletive near a couple and a child dining on a restaurant patio. According to the suit, the couple yelled at Loma to stop, and Guzman told Kitchens that the couple’s complaints were “all we need.” Guzman then told Kitchens to go ask the couple if they were offended by what Loma had said. The police then arrested Loma, and the nearby couple told police to get Loma “the f— out of here.” 

Whitney took pictures of Loma’s arrest and then attempted to take photos of the couple on the patio. The officers saw him point his phone toward the couple and told him to stop. According to the suit, Whitney complied. After a brief back-and-forth with officers, he walked away and said he “did not take a f—— picture” of the couple. Guzman and Felsoci then arrested him and, according to the suit, told him to stop swearing.

Whitney was held in a Denver jail for 56 hours, and Loma was held for 36 hours. The charges against both men were later dismissed.

$14 million protest verdict adds on to tens of millions in civil rights case payouts for Denver

The suit alleged that the officers violated the men’s First and Fourth Amendment rights and conducted unlawful searches on both men. The men also alleged that their arrests were retaliations for the intent of their protected speech — meaning its criticism of police and city policy regarding homelessness. The suit alleged that the officers’ behavior was part of a broader pattern by Denver police of retaliating against residents, and it accused the city of knowing but doing nothing to address that alleged practice.

The money is the latest in a string of recent settlements approved by the city on behalf of its police. The city paid roughly $25 million for claims of excessive force and other civil rights violations involving its police officers and sheriff’s deputies between March 2011 and March of this year. A jury earlier this year awarded $14 million to a group of protesters involved in racial justice demonstrations in 2020.