(CN) - Police officers must face claims that they arrested a man in retaliation because he talked back to them, even though they may have had a reason to stop him, the 9th Circuit ruled Friday.
Eddie Ford had been driving to work in Yakima, Wash., shortly after midnight on July 17, 2007, when he noticed a police cruiser following close behind him without trying to pull him over.
After stopping at a red light, Ford exited his car and asked the officers why they were following him.
Allegedly afraid for his safety, Officer Ryan Urlacher told Ford to return to his car and go.
When Ford complied, Urlacher followed him through the intersection, turned on his flashing lights behind Ford.
Ford pulled into a parking area, emerged from his car yelling, and then retrieved his license and registration from the car as instructed by Urlacher.
Ford asked whether he was being stopped because of his race, which is not otherwise described in the 9th Circuit decision.
Urlacher warned Ford to stay in the car or risk an arrest.
As Ford waited in the car for Urlacher to check his record, Urlacher told another officer that he planned to arrest Ford for violating a city noise ordinance, but that Ford might get away with just a ticket if he cooperates.
After putting Ford in handcuffs with help from his backup, Urlacher warned Ford: "If you run your mouth, I will book you in jail for it. Yes, I will, and I will tow your car. ... If you cooperate and shut your mouth, I'll give you a ticket and you can go."
Ford eventually heeded the officer's warnings and stewed in Urlacher's patrol car.
At this point, Lt. Nolan Wentz arrived on the scene and Urlacher apprised him of the arrest.
"Wentz stated that Ford had a 'hot head' and was 'getting worse over time,'" according to the 9th Circuit decision. "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." (Ellipses and brackets in original.)
"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.'"
Ford was later acquitted of the noise violation and claimed in a federal complaint that Yakima, Urlacher and Wentz had retaliated against him for exercising his First Amendment right to free speech.
Finding that the officers had probable cause to arrest Ford under the noise ordinance, the city awarded the defendants summary judgment.
A divided panel of the 9th Circuit reversed Friday, finding that probable cause did not shield the officers from retaliation claims.
"At the time the officers acted in 2007, the law in this circuit gave fair notice that it would be unlawful to jail Ford in retaliation for his First Amendment activity," the unsigned majority opinion states. "Police officers have been on notice at least since 1990 that it is unlawful to use their authority to retaliate against individuals for their protected speech."
The two-judge majority noted that Urlacher's statements show his awareness that he had discretion to book an individual he has arrested.
"He surely was aware that his discretion was subject to constitutional limits," the 17-page opinion states. "Because the law concerning the right in question was clearly established at the time of Ford's arrest, the officers are not entitled to qualified immunity."
In an 18-page dissent, Judge Consuelo Callahan chided her colleagues for failing "to appreciate that the scope of a person's right to speech is different after he or she has been detained."
Callahan said Ford is barred from relief because "a plaintiff asserting that he was booked instead of ticketed in retaliation for his post-detention statements must show a lack of probable cause for his booking."
"Even if Ford were not required to show a lack of probable cause for his booking, the district court's finding of probable cause - which the majority does not really address - supports, nay compels, the district court's grant of summary judgment for the officers," she added. "The district court on cross-motions for summary judgment determined that the totality of the circumstances led the officer 'to reasonably conclude booking was warranted.' The court concluded that the booking 'was not retaliatory' and that 'no rational jury could conclude [Ford's] exercise of his right of free speech was the "but-for cause" of his booking.'"
Callahan also disputed that the officers were on notice that they could be violating Ford's First Amendment rights.
"Because an officer's use of a detained person's statements raise substantially different considerations from an officer's reactions to the statements of a free person, the cases cited by the majority did not reasonably put the officers on notice that in telling Ford that he had talked himself into jail, they were chilling Ford's constitutionally protected right to free speech," she wrote. "If we are going to impose such etiquette upon peace officers, we must first clearly so hold, and not expect them to glean such a 'vague' constitutional rule from Ninth Circuit cases that appear to be out of step, if not inconsistent, with recent Supreme Court decisions."