Key Takeaways

  • The First Amendment protects citizens from retaliation by government officials, including law enforcement, for speech that is offensive but lawful.
  • In Duran v. City of Douglas (9th Cir. 1990), the court held that obscene gestures and profane words directed at police officers are protected speech.
  • The ruling emphasized that criticism of police conduct—even expressed crudely—is not grounds for detention or arrest without other lawful cause.
  • Officers cannot claim qualified immunity when retaliating against individuals for constitutionally protected expression.
  • The case illustrates the broader principle that free speech rights extend even to distasteful or vulgar criticism of government actors.

Free Speech Right

The Supreme Court outlined the test for First Amendment protection of government employees' speech in Pickering v. Board of Educ., 391 U.S. 563 ('68). To receive protection, the speech must be on a matter of public concern, and the employee's interest in expressing herself on this matter must not be outweighed by any injury that the speech could cause to the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.

Id. at 572-74; Waters v. Churchill, 114 S.Ct. 1878, 84 ('94)

'Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.' Connick v. Myers, 461 U.S. 138, 147-48 ('83). This is a question of law. Id. at 148 n.7. 'Speech focused solely on internal policy and personnel grievances does not implicate the First Amendment.' Hyland v. Wonder, 972 F.2d 1129, 37 (9th Cir.'92), cert. denied, 113 S.Ct. 2337 ('93). We review de novo whether Lambert's speech is a matter of 'public concern.' Id. at 1134. Connick, at 141 (not a matter of public concern).

Havekost v. U.S. Dep't of Navy, 925 F.2d 316, 18 (9th Cir.'91)

When remarks 'reflect one employee's dissatisfaction with a transfer and an attempt to turn that displeasure into a cause celebre'); Havekost v. U.S. Dep't of Navy, 925 F.2d 316, 18 (9th Cir.'91) (holding complaint about dress code and staffing policies 'nothing more than a workplace grievance' and noting that a 'critical inquiry is whether employee spoke in order to bring wrongdoing to light or merely to further some purely private interest').

McKinley, 705 F.2d at 1114

Speech by public employees may be characterized as not of `public concern' when it is clear that such speech deals with individual personnel disputes and grievances and that the information would be of no relevance to the public's evaluation of the performance of governmental agencies.

Defendants contend that the forum in which the statement is made can be considered only in the second half of the Pickering test, i.e., whether the employee's interest in free expression is outweighed by the employer's interest in workplace efficiency. However, this argument was rejected by the Connick majority. Connick, at 159 (Brennan, dissenting)

It is clearly established that authorities cannot transfer a prisoner from one correctional institution to another in order to punish the prisoner for exercising his First Amendment right to pursue civil rights litigation in the courts. See Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir.'85).

Duran v. City of Douglas, 904 F.2d 1372, 378 (9th Cir.'90)

Ninth Circuit law also clearly establishes the right verbally to challenge the police. In Duran v. City of Douglas, 904 F.2d 1372, 378 (9th Cir.'90), we stated that police may not exercise 'the awesome power at their disposal to punish individuals for conduct that is not merely lawful, but protected by the First Amendment.'

It held in Duran that a police officer did not have probable cause to stop an individual for the obscene gestures and words he directed from his car towards the police officer and that the officer was not entitled to qualified immunity. '[C]riticism of the police is not a crime.' Id. at 1377.

Case Background and Facts

The events in Duran v. City of Douglas arose in 1987 when Officer Aguilar responded to a call about an unruly patron at a hotel bar in Douglas, Arizona. The patron, Erasmo Duran, had been drinking heavily and later left the bar with his companion. While driving away, Duran saw Officer Aguilar and directed repeated obscene gestures and verbal insults at him. Aguilar stopped Duran’s vehicle, conducted a search, and ultimately arrested him. Importantly, Duran was not engaged in any unlawful conduct apart from his verbal and gestural expressions toward the officer.

Court’s Legal Reasoning

The Ninth Circuit focused on whether Aguilar had probable cause or lawful justification to stop Duran. The court held that the traffic stop and arrest were unconstitutional because they were motivated solely by Duran’s protected speech. The judges stressed that police officers must have thicker skin when confronted with verbal abuse, noting that “[c]riticism of the police is not a crime.” The court further explained that law enforcement cannot use its power to punish individuals for exercising rights guaranteed by the First Amendment.

Qualified Immunity Analysis

The officer claimed qualified immunity, arguing that he acted in good faith. The court rejected this defense, reasoning that the right to be free from arrest for insulting or challenging police officers was clearly established. Because the officer lacked probable cause and acted solely in retaliation for speech, he was not entitled to immunity. The ruling reinforced the principle that officials are accountable when they violate rights that are well-settled in constitutional law.

Broader Impact on Free Speech Rights

Duran v. City of Douglas has been widely cited for the proposition that the First Amendment protects even offensive or provocative expression directed at government officials. While individuals may not interfere with police duties or threaten violence, mere insults, gestures, or profanity cannot justify detention. The decision underscores that constitutional protections extend beyond polite discourse, ensuring that government officials remain subject to public criticism, however unpleasant.

Frequently Asked Questions

  1. What was the central issue in Duran v. City of Douglas?
    The issue was whether a police officer could lawfully detain someone for making obscene gestures and verbal insults. The court held such speech was protected.
  2. Why did the Ninth Circuit rule against the officer?
    The court found the officer lacked probable cause and acted in retaliation for protected speech, violating the First Amendment.
  3. Does this case mean people can say anything to police?
    No. While offensive speech is protected, threats of violence, incitement, or interference with police duties are not protected.
  4. What did the court say about qualified immunity?
    The court ruled the officer was not entitled to qualified immunity because the law was already clear that criticism of police is protected.
  5. How has this case influenced later First Amendment rulings?
    Duran v. City of Douglas is frequently cited to reinforce that offensive or vulgar criticism of government officials remains constitutionally protected expression.

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