Two men who yelled obscenities at children, hurled sexist comments and broadcast a torrent of swear words through a megaphone outside Denver Union Station may sue their arresting officer for allegedly lacking probable cause of a crime, a federal judge ruled last week.

In declining to dismiss Abade Irizarry and Kyle Shockley’s claims, U.S. District Court Chief Judge Philip A. Brimmer emphasized that his decision was based on the allegations in the men’s lawsuit, which suggested Sgt. Lee Ingersoll arrested them for disturbing the peace only because they used the F-word in public. Brimmer did not consider the details of the incident fleshed out in state court documents, which chronicled how the plaintiffs called children “b–ches,” “a–holes” and repeatedly antagonized passersby on Wynkoop Plaza.

Irizarry and Shockley’s lawsuit alleged they were arrested on June 2, 2019 for engaging in First Amendment-protected activity — ostensibly, protesting Denver police violence and the treatment of homeless persons.

The men “walked back and forth, through Wynkoop Plaza, chanting and expressing their disappointments,” the lawsuit claimed. Their chants included “f–k the police” and “f–k RTD, too,” a reference to the Regional Transportation District, which owns Union Station.

Ingersoll arrived and spoke to an RTD security guard, who told Ingersoll that Irizarry was “walking through the fountain cussing.” Ingersoll then arrested Irizarry and directed a security guard to handcuff Shockley.

“Mr. Irizarry and Mr. Shockley were not being arrested because of language likely to incite violence — they were being arrested because their public protest was making others uncomfortable,” the men’s lawyer, Edward Milo Schwab, wrote in the federal lawsuit.

Two days later, Irizarry returned to Wynkoop Plaza to “protest the Denver Police violating his First Amendment right,” but Ingersoll arrested him again for attempting to intimidate a witness. Irizarry alleged he “had spoken with no witnesses” from the prior day.

Irizarry and Shockley sued Ingersoll, RTD and the City and County of Denver for unlawfully arresting them and violating their First Amendment right to free speech.

In seeking to dismiss the lawsuit, the defendants asked Brimmer to consider additional information that painted Irizarry and Shockley’s behavior in a vastly different light.

As described in Denver County Court, RTD security had asked Irizarry and Shockley to leave the property on June 2. The men instead told a female security guard to “act like the b–ch that you are and get f–ked” and said to children that “your parents are teaching you to be a–holes.”

The men also used a megaphone to yell the F-word repeatedly, insult the looks of passersby, and attempt to antagonize multiple people by calling them names and baiting them into confrontations. They further screamed “f–k the kids” and “f–k the police.”

When Irizarry returned to Wynkoop Plaza on June 4, a police report indicated that contrary to Irizarry’s allegation he did not talk to any witnesses, he actually screamed at a line cook in Union Station for being a “snitch” and a “rat.”

In response to the charges, two state judges determined Shockley and Irizarry’s speech amounted to “fighting words” intended to incite violence.

“The Defendant’s speech was not Constitutionally protected,” wrote Denver County Court Judge Isabel Pallarés, who handled Shockley’s criminal case. “There was evidence that the Defendant’s comments provoked citizens.”

Irizarry’s “objective in antagonizing people with a bullhorn was to try to goad them into acting out violently,” agreed Denver County Court Senior Judge John W. Madden IV, who presided over Irizarry’s case.

Juries convicted Irizarry and Shockley of disturbing the peace in the June 2 encounter. Irizarry was not convicted for his alleged witness intimidation on June 4.

Brimmer, the federal judge, sided with the defendants in part on the men’s constitutional claims stemming from the arrests. To hold Denver liable, Irizarry and Shockley needed to allege a violation of their rights in which a city policy was the “moving force.” Although the men cited other instances of Denver police reacting unlawfully to protesters — including the use of force against racial justice demonstrations in the summer of 2020 — Brimmer noted only one episode of an anti-police protester being arrested whose circumstances resembled the Union Station encounter.

“The Court finds that one alleged incident, occurring nearly a year prior to the allegations in this complaint, is insufficient to show a practice so permanent and well settled that it constitutes a custom or usage with the force of law,” he wrote on March 15.

Brimmer further pointed out that Irizarry and Shockley could not bring a civil rights claim that would challenge the validity of their state court convictions. Because juries had found them guilty of conduct not protected by the First Amendment, they could not sue on those grounds as long as the convictions remained intact.

However, based on the allegations alone and without looking at the police reports, the video or the county judges’ findings, Brimmer agreed the men had sufficiently alleged Ingersoll arrested them based only on the knowledge that they had said the F-word in a public place.

A “reasonable officer in Sergeant Ingersoll’s position would not have found these facts, as alleged in the complaint, sufficient to establish probable cause,” wrote Brimmer. “Plaintiffs have therefore plausibly established a constitutional violation for the arrests on June 2, 2019.”

Brimmer also permitted Irizarry’s claim against Ingersoll to proceed for his arrest on June 4.

Finally, the men challenged RTD’s Wynkoop Plaza Rules as unconstitutional, claiming the rules against “activity that is obscene” ran counter to U.S. Supreme Court precedent. In response, Brimmer found it unclear whether there was a “causal connection” between the rules and the arrests. He allowed the claims against RTD to proceed, while indicating he would address the First Amendment implications of the Wynkoop Plaza Rules after hearing more evidence.

The case is Irizarry et al. v. The City and County of Denver et al.