There is a development in the case of Officer David Rodriguez who was shown in the now viral video below pulling his gun on a citizen who was videotaping him. He was placed on paid administrative leave by the department in Rohnert Park (50 miles from San Francisco) but he was later restored to his position after a finding that he did not act improperly. Millions have watched the videotape and clearly disagree. Rohnert Park resident Don McComas is now suing the officer and the city of Rohnert Park for unspecified damages over the July 29 incident.
McComas says that he was in front of his own residence putting a trailer to his vehicle when Rodriguez drove up and he began filming him with his cellphone. What followed was the confrontation below. McComas objected to Rodriguez observing him from his patrol car and ordering McComas to take his hand out of his pocket. At one point, Rodriguez asks “Are you some kind of constitutionalist crazy guy?”
The problem for the department is that an officer is only allowed to draw his weapon when he is in fear of his safety or the public. The city commissioned an independent third-party investigator, Sue Ann Van Dermyden, to investigate the incident. She determined Rodriguez “reasonably exercised his right to stop and have contact with the resident and did so for legitimate reasons and not for the purpose of harassing or mistreating the resident.” The city says that Rodriguez was investigating complaints about parking code violations and he was checking a vehicle’s registration:
“The officer saw the resident quickly duck behind the truck after his patrol car came into view. The officer considered this suspicious behavior, and decided to investigate further . . . After the officer got out of his patrol car, he also noticed other unusual behavior, including the resident’s agitated demeanor and his initial refusal to comply with the officer’s instruction to remove his hand from his pocket, which had a bulge in it.”
The position of the city is that the combination of the bulge and the refusal to remove his hand was sufficient to draw the weapon.
What do you think?
If the officer was telling the truth AT ALL, please see his own report or account of the situation that he wrote up and compare it to the video.
Again, having only the information available here in the video and the Complaint Filed by Mr. McComas in federal court I am at a disadvantage for a full analysis but given what I have seen I do not believe Mr. McComas will prevail in his civil rights lawsuit. I foresee a summary judgment against him on at least one of his allegations:
Here is the complaint, as retrieved via PACER.
https://jonathanturley.files.wordpress.com/2016/05/complaint-mccomas-rohnert.pdf
First my analysis of the video:
The incident began during a parking violation sweep of the neighborhood. The officer has standing to engage in that practice and it is an ordinary duty. In the course of performing parking enforcement, he came along Mr. McComas standing next to what we presume is his SUV and a boat trailer.
The SUV is parked illegally in that it is perpendicular to a parking stall as is another vehicle illegally parked next to it. How long this has been the case is something that I suspect the officer might have been wanting to contact McComas. There are cases where homeowners will attach a vehicle to a trailer and leave the vehicle parked for excessive time. But if this was only a temporary measure so that McComas could attach the trailer it is likely this could have been cleared up in a conversation between the two actors.
There were statements made that the officer saw McComas ducking down and he felt it suspicious. The ducking down could be to secure the trailer or it could be suspicious as it is when people suddenly hide from law enforcement officers. Again, having contact between the two would clear this matter up. But we have to look at it from the “reasonable officer at the time of the event” where if the officer did not have information as to what was actually going on and why this person was ducking down, a reasonable officer would increase his awareness of hazard. This does not mean necessarily going for a weapon but it is that the sense of awareness should be elevated.
McComas indicated at 0:52 that the officer clearly indicated that he did not like him filming and was driving slow.” There is no basis during this event that is proof that this was the case in the mind of the officer.
At 1:04 McComas says that “he is clearly on and off his microphone now.” I believe this indicates the officer is running the license plate on the SUV and/or calling in his location to dispatch indicating that he will be making contact.
01:47 The officer rolls down his side window and takes a picture with a camera. McComas claims that the officer “is being funny now”. Depending on what the camera photos are, it is most likely that he is perhaps taking a photo of the illegally parked SUV. Photos for parking violations are a necessary element of parking enforcement and it is the usual practice to take these and include it with the notice of violation.
02:09 The officer exits his patrol vehicle and walks toward the SUV and McComas.
02:15 Officer says “Hi Go ahead and take your hand out of your pocket OK.”
McComas immediately says “No. Sir I haven’t done nothing. I’ve done absolutely nothing. No.
Officer takes out his pistol and holds it downward, states “Seriously
McComas “Put your gun down really..”
The officer then identifies himself on the portable radio and calls for another unit (Backup)
McComas then places items on the hood of the SUV and says, and this is pertinent,
“This one really has a gun on me.”
The officer then goes into a ready position with the pistol.
Essentially from this point forward, as you can see in the video, McComas continues to refuse to comply with keeping his hands out of his pocket and be confrontational. Individuals who display this type of behavior are significantly more likely to become assaultive or attack law enforcement officers. The fact that McComas continues to insist he did nothing wrong is irrelevant to the officer safety risk. People do not have a constitutional right to disobey lawful commands directing persons to remove their hands from their pockets when directed by officers. Simple compliance or leaving the scene are two choices McComas could make but he chose instead to not follow either. Furthermore, citizens do not have a right to obstruct an official duty of the state, in this case at least a parking law violation.
Then the back and forth and such.
As for the statement about “being a constitutionalist” this might not be what most people think, as someone who just believes in constitutional rights.
The Constitutionalist movement is a form of the Sovereign Citizens. The Montana Militia and the Bundy’s from the Oregon standoff a few months ago are forms of that movement. Some can be very confrontational and violent towards law enforcement officers, especially municipal and federal agencies.
It might be somewhat pertinent that seven days before this incident, a sergeant with Hayward PD was murdered in a traffic stop. Hayward is about an hour’s drive away.The memorial ribbon can be seen on this officer’s badge.
In the civil complaint, filed with the court, plaintiff McComas alleges a violation of his free speech rights. I do not see clear evidence that Officer Rodriquez’ actions indicated that he was forcing McComas to cease his filming of the incident, despite his claim otherwise. The officer did not tell plaintiff to stop filming or that there were explicit consequences to doing so.
The statement that he was in fear for his life, is muted by being so confrontational with the officer and actually walking toward the officer toward the end of the filming.
It is clear that the drawing of the pistol by Officer Rodriquez was elicited by plaintiff’s failure to obey lawful orders to remove his hands from his pocket(s) not due to the filming of the incident by plaintiff. Police officers are permitted by statutory and common law to order compliances for officer safety purposes.
In the complaint it is quoted as follows:
“31. As a proximate result of Officer David Rodriguez’s unlawful actions, Plaintiff has suffered damages including physical, mental, and emotional injury and pain, mental anguish, suffering, humiliation, and embarrassment.”
The humiliation and embarrassment claim by plaintiff was in my view negated by his eagerness to post this incident on YouTube.
Plaintiff could have remedied the matter in its entirety by simply taking his hands out of his pockets when told to by Officer Rodriquez. Instead, Plaintiff continued to escalate the matter and contributed toward his own alleged damages.
Whether or not the timing for which Officer Rodriquez unholstered his pistol, is reasonable or not, the independent investigation will have that information. I suspect strongly that the information in the Internal Investigation will most likely provide evidence that will be more beneficial to the defendants and will further harm plaintiff’s assertions.
Some elements that could work against plaintiff would be that presence of bulges in his pockets and if plaintiff suddenly placed his hands in his pocket when approached by Officer Rodriquez and then refused to remove them. This is a behavior that is consistent with offenders going for weapons when coupled with defiance.
I don’t know if Officer Rodriquez or his patrol car had a camera recording this incident, but if there was one it would more or less sum up the matter.
Also:
“29. Officer David Rodriguez has violated Plaintiff’s First Amendment rights to assembly, speech, and association by repeatedly threatening Plaintiff with a firearm in retaliation for Plaintiff’s exercise of his free speech and by threatening Plaintiff with a firearm in retaliation for Plaintiff exercising his right to record police activity. Defendant Officer David Rodriguez’s actions were taken in direct retaliation for Plaintiff’s exercising his First Amendment rights.”
I have not seen any convincing evidence, especially in the light most favorable to the plaintiff, that there is a nexus between the officer “retaliating” against the plaintiff for recording the incident with the cell phone camera. And, there is every evidence to support the firearm came into play due to plaintiff’s refusal to show his hands. Since there is no constitutional right to disobey lawful officer safety commands I do not see a violation of his free speech rights.
Plaintiff might have better standing on whether or not the drawing of the pistol was a seizure or assault against him than the free speech violation.
In the end, I believe it is more likely than not Plaintiff will lose a summary judgment against him if defendant so moves.
Darren Smith – I would posit that demanding he take his hand from his pocket is not necessarily a lawful order. He is there for a civil traffic violation and has drawn a gun. He is already over the edge. There is no evidence that he ducked down anywhere. The plaintiff seems to be very truthful the entire time he is on his phone videoing the incident.
BTW, it appears no ticket was given.
Steg, I commented elsewhere about how in the past 5 years or so, people have simply stopped using turn signals. It is a remarkable change in behavior. I’m sure cell phones are one reason but I think it’s the insular and narcissistic culture. Women are worse violators than men, young women be the worst. It may be more a generational than sex demographic.
Wade, the number of police officer deaths so far this way in which a weapon was involved was 19. Deaths by vehicle and airplane accidents or heart attacks don’t really factor into this issue. People go about their business every day without demanding that others affirmatively prove that they are not a threat. These members of the public regularly come into contact with other members of the public who have hands in their pockets–with and without bulges. If I don’t have a reasonable basis for acting as if someone with his hand in his pocket is a threat to me, then a law enforcement officer hanging around doesn’t either.
People are so brainwashed by TPTB in concert w/their corporate owned MSM. Please tell me where the granting of a gun and badge allows PD to order citizens not in their private homes to “remove your hands from your pocket!”
What law is broken when an apparently law abiding person has their hands in their pocket? Not a person who matches the description of a reported felon, but a person tying down his boat IFO his residence? How about your 13 year old daughter walking to school? Are you OK w/a police man ordering her to remove her hands from her pocket, if he views her video recording him while he writes a parking ticket?
And Re. the officer’s report he saw the subject “…quickly duck behind the truck…:” I’d love to see PD video of this, what I suspect is more like the subject doing absolutely nothing except walking from one place to another.
RP has way too many police officers on duty if they can afford a patrol car to investigate alleged parking and or registration violation, which are infractions, not penal code violations. And I hate to break it to naive posters here, but there are indeed locations where it is unlawful to video record police on duty, and persons have been jailed for violating the laws.
This pathetic excuse for a police officer took an oath to uphold the US Constitution. To hear him call someone a “Constitutionalist crazy” is depressing, even though I’m familiar with the “sovereign citizen” movement, and indeed some of members of that movement have shot and killed police. Regardless, the officer’s question makes as little sense as him parading around that sleepy neighborhood with his gun drawn (I lived ten miles S of that location).
I have less sympathy for police that I do for the average American working three part time jobs, with absolutely no benefits. Police get paid vacation, paid sick leave, and huge retirement benefits starting as low as age fifty in some locations. Did you know if/when the are hurt on the job, they pay no income tax and get full paid leave?
I’m sure the cost per FTE/full time employee (LEO) in RP is in the range of $250k/year for this alleged “public servant.” This type of job attracts little people with Napolean power complex like this little shrimp of a man, and persons who appreciate the power and the money and benefits. Count me as not among the persons who appear to constantly take the police officer’s view and feel nothing but sympathy for their lot in life, which they chose.
Ill have to watch it again later but the guy is in his own yard and the LEO seems to be stopping for no good reason. On the surface it looks like he is being harassed. No need to remove hand on his own property and no warrant or probable cause stop. Cop needs to move along.and not camp in front of someones house to try and provoke or agitate.
Paul – thanks for the heads up. I’ll check it out next time I’m near WiFi.
I believe there are two separate issues:
1) Citizens have the right to film police officers in public. That message needs to get out to cops that this is legal, and to smile, because they are always on camera.
2) You are required to obey when a police officer tells you to take your hand out of your pocket. If you have a complaint, save it for an IA later, or discuss with the watch commander. You are never going to act belligerent or non cooperative enough to get yourself out of trouble; you will simply escalate the situation. Refusing to take your hand out of your pocket when directed is always going to escalate things. Any reasonable person would predict failure to comply would escalate a situation.
Since I cannot watch the video, I am basing these observation on the description. The citizen may very well have a legitimate complaint about the initial contact. But he has no leg to stand on for failing to remove his hand from his pocket.
Karen – you have to find a way to watch the video. The command to take his hand out of his pocket is well after the cop has taken his gun out and gotten out of the car, notified his station of his situation. It is clearly a setup. Plus, there is backstory going on.
Would I or any other citizen be justified in pulling a gun in self defense in the same situation? You know in that situation the state would claim it is brandishing and a crime.
There are two sides to every story.
“38 police officer have been killed in the line of duty this year!!” – Wade
Police killed 965 last year. 10% were unarmed. That’s three times as many unarmed civilians than police who were armed.
“Race remains the most volatile flash point in any accounting of police shootings. Although black men make up only 6 percent of the U.S. population, they account for 40 percent of the unarmed men shot to death by police this year, The Post’s database shows. In the majority of cases in which police shot and killed a person who had attacked someone with a weapon or brandished a gun, the person who was shot was white. But a hugely disproportionate number — 3 in 5 — of those killed after exhibiting less threatening behavior were black or Hispanic.”
Darren Smith wrote: “… LEO’s just want to go home alive and safe after the end of their shift…”
The following is not necessarily associated with the subject incident, but rather related to police killings of innocent civilians. (It’s noteworthy that alleged BLM and civil rights fan Obama does not even track the total incidents of police violence against the public…apparently the anti-war Peace Prize winner is too busy spending $237 BILLION DOLLARS in his failed “democratic” nation building project in Muslim Afghanistan.)
Specifically to Darren’s point: Of all the many reports I heard on the subject of police killings of innocent civilians not deserving to die, the best I heard was an in-depth 15-20 minute uninterrupted report by BBC radio early 2016. One of the most memorable points and causes of the spike in these civilian deaths is police training that their number one goal is to finish their shift safe and sound. Self-preservation is admirable and understandable, but here’s the rub. No particular number of dead innocent civilians is considered too high a price for the public to pay toward the PD’s #1 stated goal.
The question to Darren is: How and why do you justify a nation that requires by Federal Law that police track and report every single crime to the FBI, but does not similarly mandate tracking of police violence against its own citizens? Is there such a thing as the police over emphasizing the avoidance of citizen violence against police, to a point that there is too much risk of police violence against its own citizens?
The only way citizens can know if the threshold of police violence against citizens is too high, increasing, or decreasing, is by accurately tracking it.
I put my personal safety on the line every day I drive in NJ but a-holes still don’t use their blinkers. Just use your effin’ blinker! Should be as easy as removing a hand from a pocket, and I don’t even get paid to drive here.
Daniel Webster: I think using a dog for anything but his or her nose in police work is clearly animal abuse of the dog, let alone sending a dog into a residence to attack someone or even videosurveill the interior, and then hearing the dog’s last yipe.
The gods have their heads up their arses.
What Darren said.
The more I listen to and read this piece I think of the “nosy neighbor syndrome.” Did the neighbor object to the fact they had a boat? Did they think he stole the boat?
I have a NNS across the street from me, she calls the cops if you decorate for Memorial Day or the 4th of July, but she covers her whole yard with blow up Christmas dolls.
Maybe it is time that the LEO in the area call in the Attorney General to investigate the NNS.
Mine ended up being a drug dealer, and Sovereign Citizen freak.
I wonder if the NNS that called said he was acting dangerously.