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Ninth Circuit Revives Civil Rights Complaint Alleging Illegal Arrest Over Middle Finger
By Kimber Cooley, associate editor
The Ninth U.S. Circuit Court of Appeals has reinstated a civil rights action against a San Bernardino County Sheriff’s Department deputy, saying that genuine disputes of material fact exist as to whether the officer had probable cause to arrest the plaintiff for disturbing the peace based on his allegedly displaying his middle finger and yelling profanity at an employee who was enforcing a barricade blocking traffic for a Christmas parade.
He was also detained for resisting arrest by not immediately complying with the peace officer’s demands that he turn and face the deputy.
At issue is whether his arrest can be justified by either of the two Penal Code sections the officer cited as the basis for the detention. Sec 415(2) prohibits making loud noises “where there is a clear and present danger of imminent violence” or “where the purported communication is used as a guise to disrupt lawful endeavors,” and §148(a)(1) proscribes the willful resisting, delaying, or obstruction of a public officer in the discharge of his duties.
In a memorandum decision, filed Friday and signed by Chief Judge Mary H. Murguia and Circuit Judges Holly A. Thomas and Gabriel P. Sanchez, the court reversed an order by District Court Judge Jesus Bernal of the Central District of California granting summary judgment to the defendant officer.
Appealing the dismissal of his complaint was Rene A. Ruiz, who filed suit, on Nov. 2, 2020, against San Bernardino County Sheriff’s Department Deputy Ryan Polar, among others, asserting claims under 42 U.S.C. §1983.
Ruiz alleges that on Dec. 1, 2018, he noticed city employees setting up a barricade at the end of his street in Victorville as he was leaving on a grocery run, and that a worker told him he would be allowed to return to his house when he arrived back home. On his return, Ruiz claims, a city employee, Rudy Magana, ignored his attempts to get through the barricade.
Polar came to the plaintiff’s window while Ruiz was trying to get Magana’s attention, telling him that he needed to park elsewhere. Ruiz said he responded by “flipp[ing]…off” Polar and swearing before leaving to park in a neighbor’s driveway.
The plaintiff admitted to displaying his middle finger and yelling again as he walked past the barricade on his way home, but the parties dispute which public officer was the target of his outbursts—the plaintiff says he was addressing the deputy and the defendant claims that Ruiz appeared to be angrily approaching Magana.
Polar approached Ruiz and asked him to turn around and provide identification. Ruiz did not comply immediately with the deputy’s demands and Polar arrested him.
He asserts that he was arrested without probable cause, in violation of the Fourth Amendment, and as retaliation for his protected speech, in violation of the First Amendment, and that Polar used excessive force by placing a knee on his lower back, while he was on the ground being handcuffed, and pulling on his arms despite having been warned that the plaintiff suffered from a torn rotator cuff.
Summary Judgment
On Feb. 5 of last year, Bernal granted Polar’s motion for summary judgment. He wrote:
“[T]he Court agrees with Polar that Ruiz’s ‘behavior and the proximity of Mr. Magana standing in the intersection reasonably afforded Defendant a founded suspicion to investigate whether Plaintiff was provoking Mr. Magana to react violently, disturbing Mr. Magana’s traffic control duties, or was challenging Mr. Magana to a fight.’ ”
He continued:
“The evidence demonstrates that Polar ordered Ruiz to turn around three times before Ruiz complied with the instruction….Ruiz does not dispute this, nor does he dispute that he was agitated and yelling during his conversation with Polar….Without any persuasive argument from Ruiz in response to Polar’s characterization of the relevant law and facts…, the Court must conclude that Ruiz’s refusal to comply with orders to turn around during a legitimate…investigative stop established probable cause for a violation of Penal Code §148.”
The judge also found that “Polar enjoys qualified immunity for his conduct during the arrest.”
Ninth Circuit’s View
Murguia, Thomas, and Sanchez looked to the text of the code sections to determine whether the arrest was constitutionally permissible.
The panel said that “[a] genuine dispute of material fact exists as to whether the deputy had probable cause to arrest Ruiz” because the parties do not agree on whether the plaintiff was walking home, and addressing Polar, or approaching Magana when he gestured angrily.
The judges concluded that, viewing the evidence in the light most favorable to the plaintiff, it is not clear that his conduct presented a “clear and present danger of imminent violence” to Magana or disrupted the city employee’s “lawful endeavors” in monitoring the barricade.
They continued:
“The district court also erred in finding that probable cause existed to arrest Ruiz for violating California Penal Code § 148(a)(1)….Polar ordered Ruiz to turn around three times before Ruiz complied with the instruction, all of which occurred within the span of approximately twenty seconds….Ruiz’s failure to comply immediately with Polar’s instructions does not constitute probable cause to arrest him under California law.”
Excessive Force
Polar maintains that he is protected by qualified immunity as to Ruiz’s excessive force claim. The jurists said the issue requires a court to engage in a two-step inquiry—it must first decide if a constitutional protection was violated and then ask whether the right at issue was “clearly established” by case law at the time of the incident.
Saying the “reasonableness of an officer’s use of force turns on factors such as the severity of the crime, whether the suspect posed an immediate threat to the officer or others, and whether the suspect was actively resisting arrest,” they opined:
“Under the record presented, Ruiz did not pose an immediate threat to Polar or Magana, he did not commit a severe crime or try to evade arrest, and Polar could have used less intrusive alternatives to arrest Ruiz. Viewing the evidence in the light most favorable to Ruiz, a jury could reasonably conclude that Ruiz was merely agitated over the fact that he was not able to pass through the traffic barriers to get home quickly and expressed his frustration to Polar in a nonthreatening manner. Thus, a reasonable factfinder could conclude that Polar’s use of force was objectively unreasonable under the circumstances.”
Turning to the second step of the analysis, the panel remarked that “the district court concluded in error that the constitutional violation here was not clearly established.” They noted that “Polar held his right knee on Ruiz’s lower back for fifteen to thirty seconds” despite being told that Ruiz was injured and had back and shoulder problems.
Under these circumstances, they declared, “Supreme Court and Ninth Circuit precedent clearly established at the time of the incident that force like the kind demonstrated here is unconstitutional when applied to a plaintiff who poses little to no immediate threat and is suspected of committing a minor offense” and “the district court erred in granting qualified immunity to Polar.”
The case is Ruiz v. Polar, 24-1215.
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