Manteca Court Issues Rare Restraining Order to Protect Officers from Protester’s Vendetta

Officers Harassed After Shooting

On June 8, 2011, Manteca Police Officer John Moody shot and killed Ernest Duenez, Jr., after Duenez, a parolee, appeared to be pointing a weapon at the officer. In October, after Officer Moody’s name became public, Duenez’s brother, Gabriel, began appearing outside the Manteca Police Department every week to protest the shooting. He began distributing fliers calling Moody a murderer and demanded the officer’s prosecution.

Duenez went beyond these protests, however, and began yelling threats and profanities at Moody at the Police Department. He repeatedly called Moody a murderer, told him he was “going to be prosecuted, guaranteed” and was even depicted in a cellphone video yelling at Moody outside the Police Department.

Duenez’s activities escalated last November when officers cited him for posting his fliers in violation of the Manteca Municipal Code. At the same time, Officer Armen Avakian cited Duenez for not having a front license plate on his car. Avakian took photographs of the car, which was occupied by Duenez’s children. Duenez called Avakian a pedophile and later threatened to go to Avakian’s house to have the officer sign a “fix it” ticket.

In early December, nearly three weeks later, Duenez confronted Avakian at the Great America amusement park in Santa Clara, where the officer was off-duty with his family. Duenez yelled at Avakian and told him he had taken a picture of the officer’s son “like you’ve got a picture of mine.” Duenez’s behavior was threatening enough to cause the officer to notify park security.

POA Seeks Restraining Orders

When the Manteca Police Officers’ Association turned to counsel for assistance, we filed requests for temporary restraining orders on behalf of the two officers. Judge Phillip Urie issued those orders, prohibiting Duenez from coming within 100 yards of the officers or having any other contact with them pending a hearing. Duenez retained John Burris, a Bay Area civil rights lawyer who was representing Duenez’s family in a lawsuit against the Manteca Police Department and Officer Moody.

California’s anti-harassment laws exempt constitutionally protected activity. Speech on matters of public concern — including police actions such as officer-involved shootings — is a protected First Amendment activity that is not subject to restraint. The courts have made it clear, however, that harassment is not protected by the state constitution. Thus, the court was squarely confronted with deciding the novel issue of whether a restraining order prohibiting a person from harassing individual police officers over a matter of public concern is constitutionally valid.

Court Rejects Claim of “Protected Activity”

Duenez and his attorneys attempted to excuse his conduct as a “constitutionally protected activity.” He claimed he had an unlimited right to target the officers on and off duty because he had “legitimate grievances” against them over his brother’s death and the alleged photographing of his children. Duenez likened his activity to situations where the courts have dismissed prosecutions for profane speech directed at officers making an arrest.

In those cases, the courts have held that words shouted at police officers engaged in law enforcement activity are constitutionally protected unless they are “fighting words” intended to provoke the officer. Duenez argued he could curse, accost, harangue and harass Moody and Avakian so long as he did not attempt to provoke a fight with them.

But the court agreed with us that while a police officer’s actions on duty may be matters of public concern, threats, intimidation, unwanted contact and harassment directed at a specific officer who is not engaged in an enforcement action are not protected by the First Amendment. Duenez’s conduct was not protected speech because its apparent purpose was to promote a private vendetta against the officers, not to comment on matters of public concern.

Judge Urie reasoned that Duenez was not using speech to protest the shooting or to challenge a current enforcement action — both of which are protected by the First Amendment — but instead was harassing the officers about past police actions. Duenez’s conduct was, therefore, harassment of the type “that would place a reasonable person in fear for his or her health and safety and for the health and safety of his or her immediate family,” as required by the restraining order statute.

Permanent Orders Issued to Prohibit Harassment

The final order prohibits Duenez from harassing, intimidating, striking, stalking, assaulting or disturbing the peace of Officers Moody and Avakian. The court also ordered Duenez not to come within 25 yards of the officers near the Manteca Police Department and not within 100 yards anywhere else. He was ordered to have no contact with them through third persons. Judge Urie was careful to exclude from restraint the lawful protest activity in which Duenez and other family members continued to engage away from the Police Department.

This case is unusual because police officers generally are subjected to, and expected to take, a greater degree of verbal abuse than the average citizen. First Amendment activity in our democratic society, particularly when directed at the police, is deemed to outweigh the risk to the police from harassing conduct. But, as the court determined in this case, even police officers deserve the protection of the anti-harassment statute when someone’s actions become a private vendetta instead of a public protest.

About the Author

Christopher W. Miller is a former prosecutor and is the Supervising Partner of the Labor Department at Mastagni, Holstedt, Amick, Miller & Johnsen. He is General Counsel to the Manteca Police Officers’ Association and represented Officers John Moody and Armen Avakian.