Ford v. City of Yakima

Citation706 F.3d 1188
Decision Date08 February 2013
Docket NumberNo. 11–35319.,11–35319.
PartiesEddie L. FORD, Plaintiff–Appellant, v. CITY OF YAKIMA; N. Wentz, Lieutenant; R. Urlacher, Officer, Defendants–Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

OPINION TEXT STARTS HERE

William D. Pickett (argued), Law Office of William D. Pickett, Yakima, WA, for PlaintiffAppellant.

Thomas P. Miller (argued), Robert L. Christie, Christie Law Group, PLLC, Seattle, WA, for DefendantsAppellees.

Appeal from the United States District Court for the Eastern District of Washington, Lonny R. Suko, District Judge, Presiding. D.C. No. 2:09–CV–03108–LRS.

Before: PROCTOR HUG, JR., DOROTHY W. NELSON, and CONSUELO M. CALLAHAN, Circuit Judges.

PER CURIAM Opinion; Dissent by Judge CALLAHAN.

OPINION

PER CURIAM:

Eddie Ford (Ford) appeals from the grant of summary judgment in favor of the City of Yakima and two of its police officers, Ryan Urlacher and Nolan Wentz (Appellees), in his 42 U.S.C. § 1983 action alleging First Amendment retaliation.

Ford has alleged facts that would establish a 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. See Skoog v. County of Clackamas, 469 F.3d 1221, 1235 (9th Cir.2006). Because the officers are not entitled to qualified immunity, we reverse and remand for trial.

I. Background

Shortly after midnight on July 17, 2007, Ford was listening to music while driving to work when he noticed a police car approaching rapidly from behind him. Ford changed lanes twice “to get out of [the police car's] way.” The patrol car followed him each time. While stopped at a red light, Ford stepped out of his car abruptly and asked Urlacher, the officer driving the police car, why he was being followed so closely. Urlacher felt “concerned for [his] safety,” and told Ford to get back into the car and “go.” Then, as both parties drove through the intersection, Urlacher turned on his flashing lights and initiated a traffic stop.

Ford turned into a nearby parking area and emerged from his car yelling. Urlacher, armed with a taser gun, approached Ford and asked for his license and registration. Urlacher perceived the situation as “very dangerous.” As Ford retrieved the requested items, he stated that he thought the traffic stop was racially motivated. Urlacher warned Ford to stay in the car or risk being taken to jail. Ford obeyed.

Urlacher then returned to his patrol car and checked Ford's driver's license for warrants. While doing so, he told another officer, “I think I'm going to arrest him for [a] city noise ordinance violation right now. He might only get a ticket if he cooperates. But with that attitude, he's going to get cuffed.” The officer then returned to Ford's car and, with the assistance of a backup officer, handcuffed Ford.

An exchange then ensued in which Urlacher stated: (1) “Stop running the mouth and listen”; (2) “If you talk over me, you are going to go to jail, sir. Do not talk over me”; (3) “If you cooperate, I may let you go with a ticket today. If you run your mouth, I will book you in jail for it. Yes, I will, and I will tow your car”; (4) “If you cooperate and shut your mouth, I'll give you a ticket and you can go.”

Ford responded with disbelief to the prospect of being taken to jail for a noise violation, but after repeated threats that he would be jailed if he kept talking, Ford stopped yelling and answered the officer's questions with responses such as “Uh-huh” and “You do what you want.” When Ford expressed concern about getting to work, Urlacher replied:

Well that's not going to happen if you don't—if you keep running your mouth. Okay? If you have diarrhea of the mouth, you will go to jail. If you cooperate with us and treat us like human beings, we will treat you like a human being. Do you understand me?

Ford said nothing further.

Once Ford was in the back of Urlacher's patrol car and out of earshot, Urlacher told a backup officer, “I don't know if I'm going to book him yet. I'll see if he's going to shut up.” At that point, Lieutenant Wentz arrived on the scene. Urlacher recounted the incident to Wentz and explained, “So he's under arrest for the city ordinance right now. If he shuts up, I'll let him go with a ticket.” Wentz stated that Ford had a “hot head” and was “getting worse over time.” Wentz advised, “I would not just write [Ford] a ticket and let him go ... I'd sign his ass up.” Urlacher agreed and took Ford to jail.

When driving to the booking facility, Ford asked why he was being taken to jail. Urlacher told him that it was because he was playing his music too loud and because he “acted a fool.” Urlacher elaborated:

If you would have acted like a human being towards me, I would have treated you like a human being. I probably would have, you know—but you talked yourself into this on video. It's all well recorded.

Ford invoked his right to free speech. Urlacher replied:

I have the freedom to take you to jail, too. And that's what's going to happen.... You exercise [your freedom of speech] all you want, okay? If you just cooperate and treat the police like humans, we'll treat you like that. But when you act like that, like an animal, you've got to get treated that way, you know.

You're going to jail for numerous reasons. The crime you're going to jail for is the city noise ordinance. A lot of times we tend to cite and release people for that or we give warnings. However ... you acted a fool ... and we have discretion whether we can book or release you. You talked yourself—your mouth and your attitude talked you into jail. Yes, it did.

Urlacher later testified that he booked Ford (1) because he violated the city noise ordinance, which gives him discretion to book a person “if I feel like it,” and (2) because he “failed to listen[,] ... failed to act civil, ... failed to take responsibility for his actions, [and because of] his rageful [and disrespectful] behavior towards the law enforcement,” which put public safety at risk.

Ford was prosecuted for violating the City of Yakima's noise ordinance. Yakima Municipal Code 6.04.180. The municipal court acquitted Ford of the charged offense.

Ford filed an action for civil damages against Appellees pursuant to 42 U.S.C. § 1983. Ford alleged, inter alia, that the police officers retaliated against him for exercising his First Amendment right to freedom of speech. Appellees moved for summary judgment on all claims. Ford moved for partial summary judgment against the officers, alleging that qualified immunity did not shield them from liability.

The district court granted summary judgment to Appellees and denied Ford's motion for partial summary judgment. In so doing, the court found that the officers did not retaliate against Ford in violation of the First Amendment because they had probable cause to arrest Ford for violating the city noise ordinance. In addition, “the totality of the circumstances, including the manner in which [Ford] confronted Officer Urlacher and delivered his criticism, and not merely the criticism itself, led Officer Urlacher to reasonably conclude booking was warranted.” The district court determined that “no rational jury could conclude Plaintiff's exercise of his right of free speech was the ‘but for cause’ of his booking.” Because the court ruled as a matter of law that there was no constitutional violation, it did not reach the issue of qualified immunity.

Ford appeals the district court's grant of summary judgment in favor of the officers on his First Amendment claim.

II. Jurisdiction and Standard of Review

We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a district court's ruling on cross-motions for summary judgment, including rulings based on qualified immunity. CRM Collateral II, Inc. v. TriCounty Metro. Transp. Dist., 669 F.3d 963, 968 (9th Cir.2012). We view the evidence in the light most favorable to the nonmoving party and determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law.” Id. at 968 (internal quotation marks and citation omitted). The parties' assertions that there are no disputed issues “does not vitiate the court's responsibility to determine whether disputed issues of material fact are present. A summary judgment cannot be granted if a genuine issue as to any material fact exists.” Fair Hous. Council v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir.2001) (quoting United States v. Fred A. Arnold, Inc., 573 F.2d 605, 606 (9th Cir.1978)).

III. Discussion

Qualified immunity protects officers from liability for civil damages where their alleged unconstitutional conduct does not violate a clearly established right. Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). “Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).

An officer is entitled to qualified immunity unless (1) facts viewed in the light most favorable to the injured party show that the officer violated a constitutional right and (2) the right was clearly established at the time of the alleged misconduct. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), modified by Pearson, 555 U.S. at 233, 129 S.Ct. 808.

A. Constitutional Violation

The first issue is whether the facts viewed in the light most favorable to Ford show a violation of his rights. [T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.” City of Houston v. Hill, 482 U.S. 451, 461, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987). While an individual's critical comments may be “provocative and...

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