Retaliatory Arrest Still Possible, Even With Probable Cause

Eddie Ford was driving to work on July 17, 2007, listening to music, when he noticed a police officer rapidly approach him from behind. He changed lanes to allow the officer to pass. The officer followed. He changed lanes again. The officer followed again. No lights or sirens were visible.

When they arrived at a stoplight, Ford got out of his car and approached the officer to find out why he was following him so closely. Officer Urlacher told Ford to return to his car. After they passed through the intersection, Officer Urlacher initiated a traffic stop. Ford again got out of his car and expressed his dissatisfaction verbally, though he returned to his vehicle when ordered to do so.

While Urlacher was checking for warrants, he told another officer that "[Ford] might only get a ticket if he cooperates. But with that attitude, he's going to get cuffed." After cuffing Ford, he made numerous warnings that any further speech would lead to an arrest, such as "If you run your mouth, I will book you in jail for it."

Ford was then booked and placed in jail.

In reversing the District Court's award of summary judgment, the majority here felt that there was enough evidence for a jury to find that the booking and jail was in retaliation for protected First Amendment free speech.

Though the officer asserted that he could arrest those who violated the noise ordinance -- and though Ford did not contest probable cause -- under Washington law, booking and jail is inappropriate unless the defendant presented a danger to himself, the officers, or property or if his conduct indicates that he will further disturb the peace. Otherwise, ticket-and-release is the proper procedure.

Qualified immunity also will not excuse the officers' actions, as it is not applicable when the actions of the officers violate a right that has been clearly established before the incident. The right to not be arrested in retaliation for free speech has been established since at least 1990, when the right was recognized in Duran.

Furthermore, even probable cause won't excuse retaliatory exercise of police authority, per Skoog. In that case, a search, supported by probable cause, was undertaken in retaliation for a complaint made against another member of the police department.

The dissent argued that arrestees have limited rights, citing a recent strip search case. She also felt that the arrest was made legally (due to the noise violation and the aggressive post-arrest behavior.)

The majority disagreed with the assertion that those detained by the police have less First Amendment protection, and stated that there was no evidence that Ford was a danger to himself or others.

We'd also argue that the dissent's analogy to strip searches seems to be a bit of a stretch. Those searches are done for safety reasons - contraband and weapons have no place in custody. Necessity dictates reduced rights. What purpose would muting an arrestee serve, other than to alleviate the officer's headache?

Related Resources:

• Ford v. City of Yakima (Ninth Circuit Court of Appeals)
• 9th Circuit Reluctantly Affirms Habeas Corpus Denial Due to AEDPA (FindLaw's Ninth Circuit Blog)
• Costumed Turncoat's Testimony Doesn't Cross Confrontation Clause (FindLaw's Ninth Circuit Blog)