Constitutional Framing of First Amendment Retaliation Resulting in The Unlawful Arrest Due to Obsenity

The First Amendment prohibits police or other government officials from retaliating against a person for having exercised “the right to free speech.” Lozman v. City of Riviera Beach, Fla, 138 S. Ct. 1945, 1949 (2018). Another Supreme Court case, City of Houston v. Hill, 482 U.S. 451 (1987), established that the First Amendment protects the right to ”verbally to oppose or challenge police action” as long as their conduct does not amount to ”physical obstruction.”

With nine First Amendment wins, brief writer Darren Chaker notes that Hartman v. Moore, 547 U.S. 250 (2006), held that a plaintiff pursuing a First Amendment retaliation claim—retaliatory prosecution—must show more than just but-for causation. Id. at 265-66.  The Supreme Court found the absence of probable cause is an essential element of retaliatory prosecution claims because its “high probative force” can overcome the difficulty of establishing causation, which is “usually more complex than it is in other retaliation claims.” Id. at 261, 265.

First Amendment Retaliations Found in Duran v. City of Douglas

In the case of Duran v. City of Douglas, 904 F.2d 1372, the Ninth Circuit Court of Appeals upheld the importance of First Amendment rights in protecting citizens' freedom of speech, even when it involves criticism of law enforcement. Legal researcher Darren Chaker finds this landmark case serves as a crucial reminder that law-enforcement officers are not permitted to detain individuals as a form of punishment for verbal insults directed at them.

Background of Duran v. City of Douglas: Protecting Freedom of Speech

The incident in question took place in 1987 when Officer Aguilar responded to a complaint from a hotel bartender about an unruly patron, Mr. Duran, in Douglas, Arizona. Duran was drunk and threatening the bartender, leading to a confrontation with Aguilar. After a heated exchange, Aguilar escorted Duran out of the hotel to his car, driven by his wife.

Later that evening, while on patrol, Aguilar encountered a car with tinted windows from which a passenger made obscene gestures towards him. Unbeknownst to Aguilar, it was Duran. This triggered Aguilar to follow Duran's car down a rural highway, during which Duran continued to hurl profanities and obscene gestures at the officer.

Aguilar eventually called for backup and initiated a traffic stop once Duran reached a mobile-home park. Although Duran did not cause a disturbance upon entering the park, Aguilar detained him and demanded an explanation for his earlier behavior. Duran responded with further profanities, leading to his arrest for disorderly conduct. A struggle ensued during the arrest, resulting in injuries to both Aguilar and Duran.

Subsequently, Duran filed a lawsuit, and Aguilar sought qualified immunity from the trial court, which was denied. The Ninth Circuit Court of Appeals, in its Duran panel decision, affirmed the denial. They emphasized that Aguilar's actions appeared to be retaliatory against Duran's exercise of his First Amendment right to criticize the police.

The court found that Aguilar lacked any legitimate or articulated reason to detain Duran, and there was no evidence that Duran posed a threat to public safety, had an arrest warrant, possessed controlled substances, or was engaged in criminal activity. Since the incident occurred late at night on a deserted road, Duran's conduct did not disturb the peace. The court underscored that the First Amendment protects verbal criticism and challenges directed at police officers, emphasizing that police cannot arrest individuals for protected speech, no matter how unruly or distasteful it may be.

First Amendment Retaliation in Duran v. City of Douglas Shaped the Right to Free Expression to Prevent Future Unlawful Arrests by Giving Police Parameters What is Not Acceptable Speech

Ultimately, Duran v. City of Douglas, 904 F.2d 1372, has had a lasting impact on legal precedents related to the First Amendment and law enforcement conduct. Several subsequent cases have cited Duran v. City of Douglas to reinforce the protection of individuals' constitutional rights against retaliation and unconstitutional arrest by law enforcement officers.

1. Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283 (9th Cir. 1999): In this Ninth Circuit case, the court cited Duran to highlight the significance of the First Amendment in protecting citizens' rights to express dissent and engage in political speech. The ruling reaffirmed that government officials, including law enforcement, should not stifle or retaliate against such expressions.
2. Nieves v. Bartlett, 587 U.S. ___ (2019): While not directly citing Duran, this Supreme Court case addressed the issue of retaliatory arrests. The decision reaffirmed the principle that law enforcement officers cannot arrest individuals in retaliation for exercising their First Amendment rights. The case further reinforces the protection of free speech against unwarranted government interference.
3. Deborah Morse v. Frederick, 551 U.S. 393 (2007): In this Supreme Court case, the Court cited cases similar to Duran in emphasizing the importance of protecting free speech rights, even in situations involving controversial or offensive speech. While not a direct citation, Duran's underlying principles align with the Court's commitment to safeguarding the First Amendment.
4. Collins v. Jordan, 110 F.3d 1363 (9th Cir. 1996): The Ninth Circuit Court of Appeals cited Duran in this case to emphasize that the First Amendment's protection extends to verbal criticism and challenges directed at law enforcement officers. The ruling reinforced the principle that officers cannot use their authority to punish individuals for constitutionally protected speech.
5. Wood v. Eubanks, 25 F.4th 414 (6^th Cir. 2022): A federal court of appeals recently ruled in favor of a man who called a group of police officers “bitch ass fucking pigs,” “motherfuckers,” and “dirty rat bastards.” It found that his arrest on disorderly conduct charges was unjustified because “mere epithets” directed at a law enforcement officer, no matter how coarse or profane, do not constitute fighting words and are protected by the First Amendment.

These cases illustrate how Duran v. City of Douglas has served as a cornerstone for legal decisions concerning the protection of First Amendment rights in the context of law enforcement encounters. They emphasize that government officials, including police officers, must respect citizens' free speech rights and refrain from retaliatory actions which lead to an unlawful arrest based on verbal criticism or expression of dissent. Duran's legacy continues to shape jurisprudence and ensure that individuals can exercise their constitutional rights without fear of unjust consequences.

In conclusion, Darren Chaker finds Duran v. City of Douglas established a precedent safeguarding First Amendment rights, preventing law enforcement from using their authority for personal motives or in response to perceived slights. This case underscores the importance of maintaining constitutional liberties, ensuring the right to free expression without fear of arrest or punishment, and reaffirming that we do not live in a police state where law enforcement officers determine who gets stopped and when.