Metropolitan News-Enterprise


Monday, February 11, 2013


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Ninth Circuit Revives Civil Rights Suit for Retaliatory Arrest

Man Who Claims He Was Arrested for ‘Running His Mouth’ Has First Amendment Claim, Judges Rule 2-1




The Ninth U.S. Circuit Court of Appeals Friday revived a suit by a Yakima, Wash. man who claims his arrest for violating the city’s noise ordinance was in retaliation for his having argued that a traffic stop was racially motivated.

A divided panel said the facts alleged by Eddie Ford were sufficient to show a triable claim for “violation of his clearly established First Amendment right to be free from police action motivated by retaliatory animus, even if probable cause existed for that action.” Senior Judges Procter Hug Jr. and Dorothy Nelson signed the per curiam opinion, while Judge Consuelo Callahan dissented.

The case now returns to the Eastern District of Washington, where U.S. District Judge Lonny Suko had granted the defendants summary judgment, finding that no constitutional violation occurred.

Police arrested Ford on July 17, 2007, on a noise ordinance violation. He was acquitted in municipal court and filed suit against the city and the two officers involved.

Police Stop

Ford had stepped out of his vehicle at a stop light and approached the police car behind him to ask why he was being followed so closely. Officer Ryan Urlacher ordered Ford back to his car, then pulled him over as they proceeded through the intersection.

Urlacher arrested Ford on a noise ordinance violation after Ford again stepped out of his vehicle and argued with the officer.

The officer testified that he had repeatedly warned Ford he would be arrested if he didn’t cooperate, otherwise he would receive a ticket. Ford said he stopped arguing after Urlacher told him “If you run your mouth, I will book you in jail for it,” but that Urlacher arrested him anyway, saying he had a bad attitude.

Urlacher testified that he had discretion to arrest, rather than cite, noise violators and that Ford “failed to listen…failed to act civil…failed to take responsibility for his actions.”

In granting summary judgment, Suko said it was reasonable for Urlacher to book Ford under all of the circumstances, and that the plaintiff was not arrested merely for criticizing the officer. Because “no rational jury could conclude Plaintiff’s exercise of his right of free speech was the ‘but forcause’ of his booking,” the judge wrote, there was no constitutional violation.

Nelson and Hug, however, concluded that there was sufficient evidence for a rational jury to find that the police conduct had a chilling effect on the exercise of constitutional rights, and that Ford would not have been arrested had he not accused Urlacher of racism.

No Qualified Immunity

The judges went on to say that the defendants were not entitled to qualified immunity—an issue the district judge did not find it necessary to decide—because the right not to be arrested for exercising free speech rights was clearly established in the Ninth Circuit before 2007. They cited Duran v. City of Douglas, 904 F.2d 1372, 1378 (9th Cir. 1990), which held that the police violated the First Amendment by arresting a defendant for using obscene words and gestures directed toward an officer.

The court added that Skoog v. County of Clackamas, 469 F.3d 1221 (9th Cir. 2006), makes clear that probable cause will not excuse a retaliatory exercise of police authority. The court in that case allowed the plaintiff to sue regarding an otherwise reasonable search and seizure allegedly motivated by a desire to retaliate against the plaintiff for filing a lawsuit against another officer.

Dissenting Opinion

Callahan, however, argued in dissent that her colleagues were ignoring the fact that Ford was a detainee at the time of his asserted exercise of First Amendment rights, and thus had more limited rights than the plaintiffs in the cases cited by the majority.

“This case raises an issue of first impression,” Callahan wrote. “It is not a case of retaliatory arrest,” she explained, because the officer had the option of arresting the defendant for the noise violation all along.

She elaborated:

“If the officer has probable cause to book a detained individual based, in part, on the person’s post-detention actions or statements, there is no causation; and thus, there is no cause of action for violation of a constitutional right.”

Hug and Nelson responded in a footnote:

“Even if we believed that [individuals detained  by the  police  enjoy less First Amendment protection than nondetainees], which we empathically do not, the facts here make it doubtful that Ford’s ostensibly attenuated rights would be relevant to the officers’ liability.”

There was, they said, contrary to Callahan’s suggestion, no evidence that Ford was a potential danger to himself or to the police or to others at the time he was detained, and to the extent that the plaintiff’s claim of retaliatory animus requires the resolution of conflicting testimony, that is for the trier of fact.

The case is Ford v. City of Yakima, 11-35319.


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