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Law-enforcement officers may not detain a person solely as punishment for a person’s insults directed at them.

Mon Dec 17th, by First Amendment & Law-Enforcement Encounters |

One late evening in 1987, Officer Aguilar arrived at a hotel in downtown Douglas, Arizona after the hotel’s bartender had called him to complain about an “unruly patron.”   Duran v. City of Douglas, Ariz., 904 F.2d 1372, 1374 (9th Cir. 1990).  Aguilar saw this unruly patron, Mr. Duran, drunk and threatening the bartender.  Aguilar and Duran exchanged a “few heated words,” and then Aguilar escorted Duran out to his car, and his wife drove him away. 

Later, while out on patrol, Aguilar saw a car with a passenger who was giving him an “obscene gesture” through an open window.  The car had darkly-tinted windows, so Aguilar could not see who was giving the gesture.  It turned out to be Duran.  

Aguilar began following Durans’ car down a rural highway beyond the city limits, and as he did so, Duran began yelling profanities in Spanish and continued to make obscene gestures at Aguilar, who by now realized that the man in the car was the man he had encountered before at the hotel bar.  Aguilar called for backup and prepared to make a traffic stop.  Aguilar and backup officer Salazar followed the Durans’ car into a mobile-home park, and the Durans stopped in front of their home.  Duran did not cause a disturbance when their car drove into the mobile-home park.  Aguilar turned on his emergency lights and ordered Duran to step away from the car.  Duran replied: “I don’t have to.”  Aguilar then told Duran that he made the traffic stop to find out why Duran had yelled profanities and made an obscene gesture towards him.  Duran responded with more profanities in both English and Spanish.  Aguilar then decided to arrest Duran for disorderly conduct.  A struggle began, during which Aguilar and Duran were injured.  At the police station, Duran discovered that he had a dislocated elbow needing hospitalization, and he claimed to have suffered loss of range in his elbow.

Duran sued, and Aguilar sought the trial court to grant him qualified immunity before trial.  The district court denied the request and Aguilar appealed.

The Duran panel affirmed.  A rational jury could find that Aguilar stopped Duran to retaliate against him for exercising his First Amendment right to criticize the police.  The panel explained that there was “no legitimate, articulate reason for Aguilar to have detained Duran,” including no evidence that Duran was a public-safety danger, or the subject of an arrest warrant, or that he was in possession of a controlled substance or had been (or was about to be) engaged in criminal activity.  Id. at 1374.  Because the car was traveling late at night on a deserted road outside the city, Duran’s conduct could not have disturbed the peace.  If it was true that Aguilar had pulled over plaintiff because of his “boisterous conduct,” then doing so would “constitute a serious First Amendment violation.  “‘The First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.”  Id. at 1378 (quoting Houston v. Hill, 482 U.S. 451, 461 (1987)).  The panel explained: “[t]he freedom of individuals to oppose or challenge police action verbally without thereby risking arrest is one important characteristic but which we distinguish ourselves from a police state.”  Id. (citing id. at 462-63).  “Thus, while the police, no less than anyone else, may resent having obscene words and gestures directed at them, they may not exercise the awesome power at their disposal to punish individuals for conduct that is not merely lawful, but protected by the First Amendment.”  Id.  “No matter how unruly peculiar, abrasive, unruly or distasteful a person’s conduct may be, it cannot justify a police stop unless it suggests that some specific crime has been, or is about to be committed, or that there is an imminent danger to persons or property.”  Duran, 904 F.2d at 1378. 

To hold otherwise would mean allowing us to live in a police state.  “Were the law any different–were police free to detain and question people based only on their hunch that something may be amiss–we would hardly have a need for the hundreds of founded suspicion cases the federal courts decide every year, for we would be living in a police state where law enforcement officers, not courts, would determine who gets stopped and when.”  Id.  In sum, law-enforcement officers may not “exercise their authority for personal motives, particularly in response to real or perceived slights to their dignity.”  Id.