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• First Amendment Freedom of Speech and Public Employees
• The Use of Social Media by Public Employees

The use of social media by a public employee to denigrate minority religious groups may potentially subject the employee to internal discipline by his employer.

Juan Hernandez is a sergeant on the Phoenix Police Department.  One of Sgt. Hernandez’s off-duty pursuits was to maintain a personal social media Facebook account on which he often would post news articles and “memes” created by others.  (A “meme,” by the way, is defined as either (1) “an idea, behavior, style, or usage that spreads from person to person within a culture,” or (2) “an amusing or interesting item—such as a captioned picture or video—or genre of items that is spread widely online especially through social media.”  I had to look it up.)  Although Sgt. Hernandez never specifically identified himself on Facebook as a Phoenix police officer, some of his posts showed him in uniform making his employment obvious to anyone who might care.  Among his posts were included pieces dealing with the Muslim religion.  In 2019, a national organization called the “Plain View Project” (“PVP”), which maintains a database of often racially or culturally motivated Facebook posts made by law enforcement officers from across the country, picked up on Sgt. Hernandez’s posts.  The PVP identified eleven of Sgt. Hernandez’s posts that could be interpreted as reflecting biases against racial or religious minorities, or that at least contained contents that might be offensive to members of such groups. When the PVP publicized its findings, it generated a firestorm of public criticism of the Phoenix Police Department and considerable negative media attention.  The Phoenix Police Department has a written policy governing its employee’s use of social media.  Among other things, the policy prohibits employees from engaging in speech on social media that could be “detrimental to the mission and functions of the Department,” “undermine respect or public confidence in the Department,” or “impair working relationships” of the Department.  More specifically, Operations Order 3.27, entitled “Social Media Use Policy,” establishes a comprehensive set of regulations and guidelines that are intended to apply to the use of social media both on and off the job.  Under a subsection dealing with an employee’s “personal use” of social media, the policy includes two general admonitions:  (1) “Department personnel are cautioned their speech and related activity on social media sites may be considered a reflection upon their position, and, in some instances, this Department,” and (2) “Personal social media activity must not interfere with work duties or the operation of the Department.”  The PVP’s complaint about Sgt. Hernandez’s posts triggered an internal investigation conducted by the Phoenix Police Department’s Professional Standards Bureau.  Of the eleven posts listed by the PVP, the Department’s investigation eventually focused on only four of them, all of which targeted the Muslim religion. Specifically (without going into a lot of detail which, if you’re interested, are contained in the written decision itself), Sgt. Hernandez’s posts included: (1) An allegation that the most common name for a convicted gang rapist in England is “Muhammad” (showing mugshot-like photos of apparent Muslim males). (2) A “meme” (there’s that term again) concerning an interaction between a taxicab driver and a Muslim passenger, with the cab driver telling the Muslim to get out of his cab and “wait for a camel” if, as the Muslim claimed when he asked the driver to turn off his radio, devout Muslims weren’t allowed to engage in any activities that didn’t exist “in the time of the prophet.” (3) Another meme entitled, “Recent Contributions to Science by Islam,” depicting photos of four apparent Muslim men to whom quotes are attributed, each describing very questionable “contributions to science.” (e.g., “DNA tests should not be used as evidence in rape cases.”).  (4) An article claiming that the President Obama Administration cut Military pensions while sending $300 million to Muslims overseas to help pay for their mortgages.  Despite Sgt. Hernandez’s claim that he posted these items in question merely “to drive discussion about issues that were in the news at the time,” the Department concluded that his posts violated policy by denigrating Muslims and Islam.  When the Department took steps to discipline him, Sgt. Hernandez sued the Department in federal court, alleging (1) that the Department retaliated against him for exercising his First Amendment right to freedom of speech and (2) that the Department’s policies were unconstitutionally vague and overbroad.  The federal district (trial) court eventually dismissed the suit in its entirety.  Sgt. Hernandez appealed.

In a long (28 page) complicated ruling, where the Ninth Circuit Court of Appeal acknowledged that the legal standards remain “somewhat hazy,” the Court reversed in part and affirmed in part.  

(1)  First Amendment Freedom of Expression:  The United States Supreme Court has attempted to set out the legal standards on this issue, establishing a balancing test in its landmark case decisions of Pickering v. Board of Education of Township High School District (1968) 391 U.S. 563 and Mt. Healthy City Board of Education v. Doyle (1977) 429 U.S. 274.  What the courts are obligated to do is strike “a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern, and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” (Pickering, at p. 568.) Five factors must be considered: “(1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiff’s protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech.”  (See Eng v. Cooley (9th Cir. 2009) 552 F.3rd 1062, 1070.)  In analyzing the First Amendment issues here, the Court found only the first, second, and fourth factors to be in issue. 

First Factor; A Matter of Public Concern:  The plaintiff government employee (Sgt. Hernandez, in this case) bears the initial burden of showing that he spoke on a matter of public concern, and that he did so in his capacity as a private citizen, rather than as a public employee. The burden then shifts to the government employer (i.e., the Phoenix Police Department) to show that it had an adequate justification for punishing the employee for his speech. To sustain its burden, the employer must show that “its own legitimate interests in performing its mission” outweigh the employee’s right to speak freely.  Here, the Court determined that Sgt. Hernandez’s Facebook posts did in fact address matters of social or political concern that would be of interest to others outside the Phoenix Policed Department, overruling the district court on this issue.  The fact that Sgt. Hernandez’s posts expressed some level of hostility towards, and sought to denigrate or mock, a major religious faith and its adherents, is irrelevant. (Citing Snyder v. Phelps (2011) 562 U.S. 443, 454-455.) “Speech that expresses hostility toward racial or religious minorities may be of particularly low First Amendment value at the next step of the Pickering balancing test . . . , but its distasteful character alone does not strip it of all First Amendment protection.”  The Court thus found this first factor to be satisfied. 

Second Factor; Capacity as a Private Citizen:  The Court did not discuss this factor, noting only that “(n)o one contests that Hernandez spoke in his capacity as a private citizen rather than as an employee of the Phoenix Police Department when he made the posts in question.”

Fourth Factor; Phoenix’s Justification for Punishing Sgt. Hernandez for Otherwise Protected Speech:  Noting that the district court judge failed to rule on this issue, dismissing Sgt. Hernandez’s First Amendment retaliation claim based solely on its negative finding as to Factor One (above), the Court remanded the case for a consideration of this factor.  The Court did note, however (in a not-so-gentle hint to the district court), that “it seems likely that Hernandez’s posts could impede the performance of his job duties and interfere with the Phoenix Police Department's ability to effectively carry out its mission, . . .”  The Court volunteered a few more comments about the nature of Sgt. Hernandez’s Facebook posts, indicating how it is likely to rule when later provided with a complete record.  Referring to Sgt. Hernandez’s posts as having a “comparatively low value” from a First Amendment standpoint, the Court noted that “Hernandez’s Facebook posts occupy a much lower rung on the First Amendment hierarchy, and indeed they touched on matters of public concern ‘in only a most limited sense.’” (citing Connick v. Meyers (1983) 461 U.S. 138, 154.)  The Court further noted that “(o)n the other side of the scale, a police department’s determination that an officer’s speech warrants discipline is afforded considerable deference, . . . (P)olice departments may permissibly consider the special status officers occupy in the community when deciding what limitations to place on officers’ off-duty speech.”  “Speech by a police officer that suggests bias against racial or religious minorities can hinder that officer’s ability to effectively perform his or her job duties and undermine the department's ability to effectively carry out its mission.  (Citing Locurto v. Giuliani (2nd Cir. 2006) 447 F.3rd 159, 182-183.)  Due to the lack of a complete record from the district court on these issues, however, the Court reversed the district court’s dismissal of Sgt. Hernandez’s First Amendment retaliation claim and remanded the case back to the district court for further evidence. 

(2)  Facial Validity of the Phoenix Police Department’s Social Media Policy:  As a second part of Sgt. Hernandez’s lawsuit, he challenged certain provisions of the Department’s social media policy as facially invalid under the First Amendment based on the theory that the policies, as written, are “vague and overbroad.”  The district court disagreed with Sgt. Hernandez, and dismissed this portion of the lawsuit outright.  The Ninth Circuit, on appeal, affirmed in part and reversed in part, on these issues.  Employing a “modified Pickering balancing analysis,” a court must ask itself whether the challenged restrictions as written could reasonably be interpreted to apply to an employee’s speech in his or her capacity as a private citizen on matters of public concern.  If it does, the court is then required to ask whether the government has an adequate justification for treating its employees differently from other members of the general public.  The Phoenix Police Department did not dispute that the challenged provisions apply to an employee’s speech on matters of public concern made in an employee’s capacity as a private citizen, outside the scope of the officer’s official duties.  The only issue here is whether the Department has provided an adequate justification for the restrictions.  Despite an incomplete record provided by the trial court, the Ninth Circuit found the issue an easy one to decide, noting the following: 

“(G)overnment employers have a strong interest in prohibiting speech by their employees that undermines the employer’s mission or hampers the effective functioning of the employer's operations. (Citations) That interest justifies the (challenged) policy’s restrictions on social media posts that are ‘detrimental to the mission and functions of the Department’ or which ‘undermine the goals and mission of the Department or City.’ Police departments also have a strong interest in maintaining a relationship of trust and confidence with the communities they serve, (Citation), which justifies the policy’s restriction on speech that would ‘undermine respect or public confidence in the Department.’” 

The Court concluded that based upon these standards, it could not say that the Phoenix Police Department’s social media policies were unconstitutionally overbroad.  The district court, therefore, properly dismissed this cause of action.  However, as to the Department’s policies prohibiting speech that might “cause embarrassment to,” or might “discredit” the Department (e.g., the provision that states: “Employees are prohibited from using social media in a manner that would cause embarrassment to or discredit the Department in any way.”), the Court found that this allegation should not have been dismissed by the trial court at the pretrial summary judgment stage.  Sgt. Hernandez, if given the opportunity, may be able to provide evidence that the “embarrassment” and/or “discredit” prohibitions are in fact vague and overbroad.  So dismissal of these allegations, at least at this stage, was inappropriate.  The matter was remanded for more evidence on this issue.  Lastly, Sgt. Hernandez also challenged the constitutionality (on “overbreadth” grounds) of the social media policy which provides as follows: “Department personnel may not divulge information gained while in the performance of their official duties.”  The district court had dismissed this allegation.  The Ninth Circuit ruled that the district court’s dismissal was inappropriate. Although the Department has a strong interest in prohibiting the disclosure of “confidential information,” such as information that could jeopardize an ongoing investigation, the challenged provision sweeps much more broadly.  It prohibits the disclosure of any information gained while on the job.  As noted by the Court, “(a) policy that prohibits public employees from divulging any information acquired while on the job would silence speech that warrants the strongest First Amendment protection in this context.”  An example might be where an officer observes “wrongdoing or corruption” within the officer’s own agency.  Prohibiting the divulgence of such knowledge is constitutionally overbroad.  The case was remanded back to the district court for further evidence on this issue as well.

If all the above has left you completely confused as to what the rules are concerning what you can and cannot publicize on your Facebook or other social media accounts, you are in good company.  The courts aren’t even sure how to handle this issue, applying the so-called Pickering factors that, in any particular case, can be (and consistently are) interpreted differently.  Referring to the applicable rules as “somewhat hazy,” the Ninth Circuit does not even try to convince us that the case law on this issue is anything other than inconsistent at best.  But what you need to get from all this is the realization that your First Amendment freedom of speech protections are not absolute.  Recognizing this, my suggestion to you in order to stay out of trouble is to just use a little common sense.  In this case, for Sgt. Hernandez—who is professionally and ethically bound to enforce the law in the field without favor or prejudice—to publicize “muses” and other posts that make fun of—and perhaps call into question the honestly and/or integrity of—a particular religion and those who practice it, was not a wise exercise of common sense.  Although Sgt. Hernandez did not identify himself as a Phoenix police officer in his posts, other Facebook posts showed him in uniform making the connection obvious.  That was all it took to call into question his possible prejudices as a police officer and how he might be applying the law when in the field.  That the Phoenix Police Department was concerned with the perception he was openly publicizing shouldn’t have been a surprise.  I expect Sgt. Hernandez’s lawsuit to be completely dismissed again on remand to the trial court and, if appealed again, its dismissal being upheld by the Ninth Circuit. For those of you are aren’t yet confused enough, I have an extensive article I wrote on this issue for the California District Attorneys Association (“Shooting the Messenger: First Amendment Freedom of Speech and the Public Employee;” available on our website for Professional Subscribers), as well as a quick summary of the principle cases on this issue, both of which I can send you upon request.

• DUI Checkpoints
• Checking Driver’s Licenses at DUI Checkpoints
• Excessive Force in Making an Arrest

DUI checkpoints, so long as properly conducted, are constitutional.  Requiring the driver of a car stopped at a DUI checkpoint to display his driver’s license is also constitutional. Using a minimal amount of physical force to arrest a driver with probable cause to believe he is driving without a valid driver’s license, at least when he has been verbally uncooperative up to that point, is lawful.

Plaintiff David Demarest, while visiting California from his home state of Vermont, drove up to a DUI (Driving while Under the Influence) checkpoint set up by officers of the Vallejo Police Department.  The checkpoint was located near the intersection of Sonoma Blvd. and Solano Ave., a location chosen because of a significant number of DUI-related collisions occurring in the area.  Having set up the checkpoint pursuant to an advance “DUI Checkpoint Operation Plan,” it was appropriately marked by signs reading: “DUI AND DRIVERS LICENSE CHECKPOINT AHEAD” and “HAVE YOUR DRIVERS LICENSE READY.” In addition to these signs, other safeguards were employed; i.e., “the area was coned off,” “traffic [was] slowed and directed to a single lane,” “there was portable lighting in the area,” and “police vehicles were at the checkpoint with [their] emergency lights on.”

A press release announcing the checkpoint was issued two days in advance and was reported on the website of a local newspaper. Under the prearranged checkpoint plan, a “neutral formula” was used under which “all vehicles will be stopped unless the backup exceeds 5 minutes,” in which case “all vehicles will be waived through until the backup is cleared.” At the checkpoint, which was operated from approximately 6:00 PM until midnight on the evening of September 26, 2020, officers were to “screen drivers for DUI, verify they have a (driver’s) license, and provide educational material in the form of a handout.”

Although it was contemplated that driver’s licenses were to be checked, it was undisputed that the checkpoint’s “purpose . . . was to remove intoxicated drivers from the road and to deter intoxicated driving.” “Removing unlicensed drivers from the road and deterring unlicensed driving was not a purpose of the [c]heckpoint.”  At about 7:15 p.m., Demarest approached the checkpoint and was signaled to proceed up to Officer Jodi Brown, which he did.  Officer Brown asked to see his driver’s license.  Ignoring this request, Demarest asked if he could continue on his way.  Officer Brown responded by asking for his license a second time.  Apparently feeling he knew the law better than Officer Brown (being from Vermont and all), Demarest asked her whether she had any cause or reasonable suspicion to stop him.  Officer Brown declined to take the bait or debate the issue and simply told him that if he did not provide his license as requested he would be arrested.  When Demarest continued to ignore Officer Brown’s request for his license, the officer opened the door to his car, grabbed his left wrist, and pulled him from the vehicle.  She then handcuffed him, telling him to stop resisting and that he was under arrest. 

Once his driver’s license was located, it was determined that his license was valid and there were no outstanding warrants.  The officers declined to give Demarest a breath test when he requested one, telling him “[t]hat’s not what this is about.”  Demarest asked to speak to a supervisor.  Officer Herman Robinson (apparently in charge of the DUI checkpoint) came to speak with him. Demarest complained to him that he had done nothing wrong and had only exercised his rights under the Fourth Amendment.  Officer Robinson simply responded with words to the effect that: “You win more bees with honey than vinegar.”  Demarest was booked into jail. 

Charged in state court with resisting arrest (P.C. § 148(a)) and possession of a concealed dirk or dagger (P.C. § § 21310; for a knife found during booking on a rope he wore around his neck and which was missed when initially patted down for weapons), he later agreed to participate in a diversion program upon successful completion of which all charges were dismissed.  Bound and determined to get the last word, Demarest sued Officer Brown and the City of Vallejo in federal court pursuant to 42 U.S.C. § 1983, claiming false arrest and the use of excessive force, arguing that Officer Brown had exacerbated his pre-existing back pain by 10 to 15 percent.  The federal district court granted the civil defendants’ motion for summary judgment, dismissing the case.  Demarest appealed.

The Ninth Circuit Court of Appeal affirmed.  At issue on appeal was (1) the legality of Demarest’s arrest and (2) the alleged use of excessive force in arresting him. 

(1) Legality of Demarest’s Arrest:  As a general rule, “searches and seizures conducted outside the judicial process, without prior approval by a judge or a magistrate (i.e., via a warrant), are per se unreasonable under the Fourth amendment—subject only to a few specifically established and well delineated exceptions.”  (Italics in original; Minnesota v. Dickerson (1993) 508 U.S. 336, 371.)  The temporary detention of a person (i.e., a “seizure”) must be supported at the very least by a reasonable suspicion to believe that the detained individual has been, is, or is about to be involved in criminal activity.  But there are exceptions to this rule as well.  A vehicle checkpoint, when properly set up and executed, is an exception to both of the above rules.  When Demarest was required to stop at the DUI checkpoint as occurred here, and show his driver’s license, he had been detained; i.e., “seized.”  As noted by the U.S. Supreme Court, it is recognized that “(a)n automobile that has been stopped by government officials at a checkpoint has been seized for Fourth Amendment purposes, . . .”  (City of Indianapolis v. Edmond (2000) 531 U.S. 32, 40.) The lawfulness of checkpoints was upheld by the U.S. Supreme Court in the seminal case of United States v. Martinez-Fuerte (1976) 428 U.S. 543, where an immigration checkpoint was at issue.  Based upon such precedent, the Ninth Circuit Court of Appeal here noted that contrary to the general rule that “some quantum of individual suspicion is usually a prerequisite to a constitutional search or seizure,” and differentiating vehicle checkpoints from the greater privacy interests one has in his or her home, DUI checkpoints—being “consistent with the Fourth Amendment”—are lawful.  As noted by the Ninth Circuit; “the Supreme Court has recognized one such limited exception for certain carefully circumscribed vehicle checkpoints. See Edmond, 531 U.S. at 47 (reaffirming past decisions recognizing the constitutionality of limited ‘sobriety and border checkpoints’ and suggesting that certain ‘traffic checkpoint[s]’ to check licenses and registration would likewise be constitutional).”  “Carefully circumscribed,” as used above, means that the personal discretion of the law enforcement officers involved must be minimized as much as possible.  This can be accomplished by establishing a “DUI Checkpoint Operation Plan” that the officers are required to follow—as was used by the Vallejo Police Department in this case—dictating what the detaining officers can and cannot do.  The U.S. Supreme Court has thus recognized the constitutionality of a DUI checkpoint, noting that the “intrusion on motorists stopped briefly at sobriety checkpoints . . . is slight.” (See Michigan Department of State Police v. Sitz (1990) 496 U.S. 444, 451.)  Per the Sitz decision: “Because the ‘preliminary questioning and observation’ at the (DUI) checkpoint was brief and limited, the extent of the intrusion was ‘minimal’ and was outweighed by the ‘magnitude of the drunken driving problem [and] the States’ interest in eradicating it,’” (Id. at 450-452.)  However, not all checkpoints pass constitutional muster.  The Supreme Court, for instance, has ruled that a checkpoint set up with the primary purpose of “the discovery and interdiction of illegal narcotics” violates the Fourth Amendment, and is thus illegal.  (See City of Indianapolis v. Edmond (2000) 531 U.S. 32.)  Checkpoints set up for the “primary programmatic purpose of ‘uncover[ing] evidence of ordinary criminal wrongdoing’” are illegal.  (Id., at pp. 41-42.)  Somewhere in between Sitz and Edmond is the case of Illinois v. Lidster (2004) 540 U.S. 419.  In Lidster, the U.S. Supreme Court upheld the lawfulness of a checkpoint set up at the location of a late-night hit-and-run accident where a bicyclist had been killed just one week earlier, with the checkpoint being used at about the same time of night.  The purpose of the checkpoint was to seek out anyone who might have been a witness to the prior accident by handing out flyers about the accident and asking for help in solving the crime.  The Supreme Court, in finding this checkpoint to be lawful, differentiated the circumstances of this case from Edmond, noting that here the police were seeking information from potential witnesses as opposed to looking to arrest drug traffickers.  Demarest’s complaint in this case was that in addition to looking for DUI drivers, the Vallejo police were using the checkpoint to unlawfully check driver’s licenses.  In discussing this issue, the Ninth Circuit used a “two-step analysis” for assessing the validity of a checkpoint under the Fourth Amendment.  First, the Court must determine, in accordance with Edmond and Lidster, whether a checkpoint is “per se invalid” because its “primary purpose” is “to advance the general interest in crime control” with respect to the occupants of the vehicles being stopped.  If “yes,” then the checkpoint in question is illegal.  If the answer to this question is “no,” then the court must determine whether the checkpoint in issue is “reasonable” under the circumstances.   In applying this test to the instant case, the Court had no problem finding that Vallejo’s checkpoint did not involve an impermissible purpose of “uncovering evidence of ordinary criminal wrongdoing” based upon the principles discussed above, and the fact that “[t]he purpose of the [c]heckpoint was to remove intoxicated drivers from the road and to deter intoxicated driving.”  Demarest did not argue otherwise.  So the Court moved on to the second step; i.e., “reasonableness.”  As noted above, Demarest’s complaint was that the Vallejo police were using a lawful DUI checkpoint to unlawfully check for driver’s license violations as well as for DUI drivers.  The Court disagreed.  After first noting that the U.S. Supreme Court has held that checkpoints set up for the purpose of checking drivers’ licenses are lawful (see Ashcroft v. al-Kidd (2011) 563 U.S. 731, 737.), it was further noted that an officer’s subjective intent to check the validity of each detained driver’s license at an otherwise lawful checkpoint is irrelevant.  Secondly, it was noted that a driver’s license check, all by itself, does not entail “the ordinary enterprise of investigating crimes” (Quoting Edmond, at p. 44.), as evidenced by the fact that the officers were not also conducting on-the-spot warrant checks.  Third, the Court held that: “(T)he mere request to produce a facially valid license is a relatively modest additional intrusion on the liberty of a motorist who has already been properly stopped at a checkpoint.”  Fourth, the few seconds it takes to ask for, and inspect, a driver’s license is so de minimis that it does not constitute an unlawful prolongation of the stop.  Fifth, “the City’s checkpoint (in this case) was planned and conducted pursuant to objective guidelines that ‘minimize[d] the discretion of the officers on the scene’ and eliminated the ‘kind of standardless and unconstrained discretion’ that might give rise to constitutional concerns.”  And lastly, the Court noted that “a request to produce licenses at an otherwise valid DUI checkpoint clearly serves an equally weighty interest. Moreover, it is obvious that such license checks are ‘appropriately tailored,’ (citation) to advancing this ‘interest in ensuring that only those qualified to do so are permitted to operate motor vehicles.’”  As summarized by the Court: “On balance, any marginal intrusion on liberty associated with adding license checks to the City’s DUI checkpoint is minimal and is justified by the important interest in road safety served by such inquiries.” Based upon all this, the Court determined that the police department’s systematic addition of driver’s license checks to an otherwise lawful DUI checkpoint was objectively reasonable under the Fourth Amendment.  As such, the Court also held that once Demarest refused to show his license, which provided the officers with the necessary probable cause to believe he did not have a valid license (Veh. Code § 12951(a)) and was thus committing a misdemeanor in Officer Brown’s presence, his arrest and the use of reasonable force in making that arrest was lawful. 

(2)  Use of Force:  Demarest also alleged in his civil suit that Officer Brown used excessive force in effectuating his arrest; a Fourth Amendment violation.  The use of unnecessary force in arresting a person is in fact a Fourth Amendment issue.  (Graham v. Connor (1989) 490 U.S. 386.)  In judging the reasonableness of the force used, the trier of fact is to consider all relevant circumstances, such as (but not necessarily limited to); “the relationship between the need for the use of force and the amount of force used; the extent of the plaintiff’s (resulting) injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting.” (Kingsley v. Hendrickson (2015) 576 U.S. 389, 397.)  Applying these standards, the Court found that the force used by Officer Brown was objectively reasonable as a matter of law.  Demarest argued that Officer Brown should have asked him to step out of the car rather than physically pulling him out.  However, the Court found that given Demarest’s lack of cooperation up until that point, the “modest nature” of the force she used to pull him out was not unreasonable.  The Court also rejected Demarest’s complaint that Officer Brown aggravated an existing back injury in that there was no way for the officer to have known about that condition before arresting him.  And lastly, the Court further rejected Demarest’s argument to the effect that Officer Brown could have applied “a lot less force” in handcuffing him, absent any evidence to the effect that the handcuffs were excessively tight or that they caused any injury.

Despite expending a lot of ink (38 pages worth) in writing this decision, the bottom line is really quite simple: DUI checks are lawful, so long conducted properly.  Asking to see a driver’s license in the process is also lawful.  And applying a minimal amount of force to a mouthy, uncooperative arrestee is not unreasonable.  And speaking of “mouthy,” I like the way Officer Brown handled Demarest as he attempted to engage her in a battle of wits and test her legal knowledge.  I’m guessing Demarest was a Vermont lawyer who believed he knew more about search and seizure law than any California cop with whom he might come into contact.  If you’ve ever had to deal with a know-it-all lawyer in the field, you know what I’m talking about. As a California police officer, there is no need to engage in an argument as to the legality of your actions, even when challenged.  There are a lot of people out there on the street who think they know the law better than (in their estimation) some lowly street cop. Such know-it-alls typically don’t know more than you, particularly if you’re a subscriber to the California Legal Update.  Also, this case illustrates the long existing common-sense maxim that “a little knowledge is a dangerous thing.”  Demarest had a valid license.  All he needed to do was show it and we wouldn’t be discussing these issues here at all.  So my advice is don’t bite when some civilian challenges your legal knowledge.  As Officer Brown did, just let him know what the immediate consequences of his lack of cooperation are going to be, and then do your job. 

• The Eighth Amendment and the Excessive Use of Force on a Jail Escapee
• Civil Liability for the Use of Excessive Force
• The Value of Bodycams in Excessive Force Cases
• The Use of a Police Dog in Making an Arrest
• Duty to Intercede in the Excessive Use of Force

In a motion for summary judgment in a civil suit, a court is to assume that the non-moving party’s version of the facts is true.  An exception to this rule is when evidence exists that “blatantly contradicts” the non-moving party’s evidence.  A duty to intercede in the use of excessive force does not apply when an officer has no opportunity to do so.

Plaintiff Corey Hughes was merely 10 days into his six month jail sentence being served at the San Joaquin County Jail when he decided he had better things to do with his life.  So while working on a highway work crew, he decided to just take some time off—going over the fence, . . . literally.  A California Department of Corrections Fugitive Apprehension Team—led by Agent Chris Rodriguez—and other local agencies began an immediate search for Hughes.  Three weeks after his escape, Agent Rodriguez developed information (the informant being the mother of Hughes’ children.) to the effect that Hughes was hiding at the Stockton home of a friend.  What the agents knew of Hughes at the time was that he (1) had prior convictions for possession of a stolen vehicle, weapons possession, and evading a peace officer with a disregard for safety, (2) was affiliated with a violent street gang, (3) had training in mixed martial arts, and (4) abused methamphetamine. These facts led Agent Rodriguez to conclude that Hughes was potentially a dangerous person. So, on December 21, 2017, when they went to check the house where he was allegedly hiding, the officers took the appropriate measures to insure their safety. This included the use of a trained police dog; “Cain.”  At 10:30 a.m., with the entire neighborhood cordoned off by officers from various agencies, agents knocked on the door, but initially got no response.  Soon, however, the resident of the house came out and told the agents that Hughes was inside.  He gave the agents his house keys and permission to enter his home.  A loudspeaker was used to urge Hughes to come out of the house.  This being unsuccessful, Agent Rodriquez, accompanied by several Stockton police officers including Officer Michael Rodriguez (apparently no relation to Agent Chris Rodriguez), and Cain the K-9, all entered the house via the front door.  With the bodycams from several of the Stockton P.D. officers recording the events, Officer Rodriguez is seen and heard twice shouting: “Stockton P.D., come on out or you’re going to get bit by a police dog!”  The bodycam shows an empty hallway from the front door towards the back of the house. The bodycam also fails to pick up any audible response to Officer Rodriquez’s commands.  But when Cain is then released, the dog finds Hughes around a corner of the hallway and immediately bites onto him.  Hughes and Cain are shown on a bodycam “tumbling” into the hallway.  The officers immediately move in to assist the dog.  In the ensuing struggle, Officer Rodriquez’s bodycam gets kicked off of his chest and “suddenly” goes dark at the same time.  During the struggle, Officer Rodriguez later admitted to punching Hughes in the head as Hughes was grabbing for Rodriguez’s gun.  The punch apparently ended the fight, with Hughes being handcuffed.  The bodycam on another officer fails to show the struggle (being pointed elsewhere), but does record the sounds of the officers’ attempts to handcuff Hughes.  This bodycam substantiates the officers’ later testimony that “no more than a single minute elapses” between when Cain is first released, up until the clicking of the handcuffs is heard along with an officer’s verbal announcement that Hughes is in custody.  The Court notes, however, that this second officer’s bodycam footage “does not clearly and unmistakably depict whether punches were thrown before or after Hughes was handcuffed.” This is important because contrary to what was recorded by Officer Rodriguez’s bodycam before it went dark, Hughes later testified that when Officer Rodriguez first demanded that he come out, he did in fact shout back repeatedly in a loud voice: “Hold on, I’m coming out!”  Hughes also claimed to have come out into the hallway, visible to the officers at the front door, and that he had his hands raised in submission.  Hughes further alleged that it was only after he made eye contact with Officer Rodriguez as he showed his empty hands that the officer released Cain.  Hughes also claimed that after he was handcuffed, the officers continued to punch him in the head and face, as Cain continued to bite him, for an additional “two minutes, if not more.”  After being arrested, Hughes was treated at a hospital for dog bites, abrasions, and bruising.  He claimed that the dog bites caused scarring and residual soreness in his left leg.  Hughes later sued the officers involved in his arrest (including Officer Michael Rodriguez and Agent Chris Rodriguez) in federal court—under 42 U.S.C. § 1983—for the use of excessive force (an Eighth Amendment “cruel and unusual” violation instead of a Fourth Amendment violation, he being considered a state prisoner despite his escape) in taking him into custody.  The federal district (trial) court granted the officers’ motion for summary judgment on all claims.  Hughes appealed.

In a split (2-to-1) decision, the Ninth Circuit Court of Appeal affirmed in part and reversed in part.  The main issue here is a procedural one:  When a civil plaintiff’s version of the facts differ from the civil defendant’s version, and a motion for summary judgment is filed (by the civil defendants, in this case), whose version of the facts is the court to believe?   In this case, if you believe Hughes’ interpretation of the facts, then clearly he was the victim of excessive force.  If you believe the officers’ version, then he was not.  Making it easy on the courts is the rule that in a motion for summary judgment (i.e., to dismiss the plaintiff’s lawsuit in this case), it must be assumed that the non-moving party’s (the plaintiff Hughes here) version of the facts is true, letting a civil jury ultimately determine who they believe. There is a major exception to this rule, however.  The U.S. Supreme Court has held that when there is evidence that “blatantly contradicts” the non-moving party’s (i.e., Hughes’) evidence, “so that no reasonable jury could believe it,” a court may take into consideration that contradicting evidence for purposes of ruling on a summary judgment motion. (Scott v. Harris (2007) 550 U.S. 372, 378.)  Hughes’ evidence alleged that, as the victim of excessive force, his Eighth Amendment rights were violated. The Court held, however, at least up until the point where he was subdued and handcuffed, Officer Rodriguez’s bodycam visual and auditory evidence “blatantly contradicted” Hughes’ version of what had happened. Taking the bodycam evidence into account, the Court found the officers’ actions—including the use of the police dog—to be a reasonable use of force, given Hughes’ refusal to peaceably submit.  This also included Officer Rodriquez’s single punch to Hughes’ head when Hughes attempted to reach for the officer’s gun.  The district court ruled accordingly, and the Ninth Circuit agreed.  However, from that point in time when Hughes was handcuffed, occurring after Rodriquez’s bodycam had been turned off, the only objective evidence of what occurred was the auditory evidence from another officer’s bodycam.  Hughes alleged that the officers continued to beat him while allowing Cain to bite him despite the fact that he had been handcuffed and physically subdued.  The Officers denied that this occurred.  The Court ruled that the auditory-only evidence available via the second bodycam—it being difficult to interpret the sounds that were made—did not “blatantly contradict” Hughes on this issue.  The Court therefore overruled the district court’s granting of the officers’ summary judgment motion as to this aspect of the case, finding that the court must view the facts “in the light most favorable to Hughes (as the non-moving party) on this issue.”  After finding that if such excessive force had in fact been used, the unconstitutionality of using excessive force on a handcuffed and subdued prisoner was firmly established in the law.  As such, the officers were not entitled to qualified immunity.  The case was therefore remanded back to the trial court for a jury trial on this issue only.  As one last issue, Hughes included in his lawsuit an allegation that a number of officers who were present, but not necessarily directly involved in the physical altercation, failed to intercede as Officer Rodriguez (allegedly) beat him unnecessarily.  It is a rule that “(o)fficers can be held liable for failing to intercede in situations where excessive force is claimed to be employed by other officers, (but) only if ‘they had an opportunity to intercede.’” (Italics added; Cunningham v. Gates (9th Cir. 2000) 229 F.3rd 1271, 1289-1290.)  The Court noted that the whole incident lasted less than a minute, taking “place during the rapidly unfolding chaos of the physical struggle to apprehend Hughes.” It was further noted that some of the officers were at different locations around the house and not immediately present at the scene of Hughes’ arrest.  As such, the Court held that none of the other officers had the opportunity to intercede.  Therefore, this aspect of Hughes’ lawsuit was also properly dismissed as a part of the summary judgment ruling. 

This case is obviously more important to attorneys who handle civil cases than to police officers on the street, other than to forewarn cops to the potential consequences of using excessive force (not to say that these officers did that here).  But there is at least one aspect to this case with which police officers need to be familiar, and that’s the duty to intercede when you witness other officers administering what we used to call “a little street justice.”  Since the murder of George Floyd by Minneapolis police officers in May of 2020, and the subsequent prosecution of not only former police officer Derek Chauvin who personally committed the acts leading to Floyd’s death, but also the other officers who merely stood around watching, law enforcement agencies across the nation (not to mention the public in general) have become sensitized to the issue of an officer’s failure to intercede when the use of excessive force is observed.  Effective as of January, 2021, all California law enforcment agencies are to have established a written policy that provides a minimum standard on the use of force.  This policy must include a requirement that an officer intercede when he or she sees another officer use “excessive force.” (Defined loosely as “force that the (observing) officer believes to be beyond that which is necessary.” (Subd. (b)(3) of Gov’t. Code § 7286.  See also subd. (a)(2).)  Subdivision (a)(4) defines “Intercede” as “includ(ing),  but . . .  not limited to, physically stopping the excessive use of force, recording the excessive force, if equipped with a body-worn camera, and documenting efforts to intervene, efforts to deescalate the offending officer’s excessive use of force, and confronting the offending officer about the excessive force during the use of force and, if the officer continues, reporting to dispatch or the watch commander on duty and stating the offending officer’s name, unit, location, time, and situation, in order to establish a duty for that officer to intervene.”  So if you weren’t already aware of your agency’s policy on this issue, be forewarned:  The days of ignoring observed excessive force in the field—if you were ever prone to do that—are over.