It was a constant battle of who said what and what constituted harassment that was or wasn’t protected speech under the First Amendment.

Both sides battled verbally for nearly five hours Friday in a packed courtroom in the Manteca Branch of the San Joaquin County Superior Court over making a temporary restraining order permanent that would keep Gabriel Duenez of Lathrop away from two Manteca Police patrolmen who are claiming abusive and emotional harassment from the brother of Ernesto Duenez.

Ernesto Duenez died in a police-involved shooting last June in Manteca.

At one point Judge Phillip Urie reprimanded those seated in the courtroom.  He said he had received reports some of them had made disparaging remarks outside the courtroom in reference to what was going on with the hearing during the breaks in the testimony and ordered them to stop doing so.

Officers Armen Avakian and John Moody said they suffered from a high level of anxiety and concern for their safety because of Duenez’ actions since he and his supporters have been holding protests outside the police department every Thursday.

Duenez testified in court Friday that he never used the profanities that he is charged with or called Officer Moody an “F…ing pig” along with other alleged vulgarities.  He admitted that he had called Avakian a pedophile because he had taken pictures of his children inside his parked car near the ongoing protests outside the Manteca Police Department.

Duenez’ attorney Ben Nisenbaum of San Francisco stipulated that vulgarities are, in fact, protected speech by the First Amendment and that a citizen has the freedom to speak his mind to an officer.

Judge Urie responded by asking, “What you’re saying is that you can walk up to a police officer on the street and yell in his face and it’s not restrainable when it’s being done in public – that the officer must suffer – is that what you are saying?” 

The defense attorney maintained his client had not crossed the line but was merely being unpleasant.   

Avakian said that he had taken pictures of the Duenez vehicle and its missing license plate, a rear view and a side view along with the children inside as part of a law enforcement action.  Duenez countered, saying that’s what pedophiles do is to take pictures of children as the officer had done. His 8-year-old son had been taking video of the officers and the boy was quoted as calling the officer a pedophile when he took his picture filming the police at the protest.

It was Duenez’ rationale in court that he was paying Avakian back when he later photographed the officer’s son when they ran into each other at Great America in mid-December. It was to show him how it feels to have your children photographed.  Duenez said that he had told Avakian that he didn’t need to take pictures of other people’s children; he had a kid of his own.

The officer strongly objected to the pedophile allegation saying he had a son whom he loved very much and he was certainly not a pedophile.   He had been to Great America’s Winter Wonderland with his fiancée and several underage children in his party saying they all were greatly upset with the chance meeting between the two men.

The officers’ attorney, Chris Miller of Sacramento, referred to the definition of harassment in the penal code section 527.6 which in part prohibits a willful course of conduct directed at a specific person that seriously alarms, annoys or harasses the person and serves no legitimate purpose. 

Duenez’ attorney Nisenbaum called several witnesses to testify on behalf of his client including the man’s mother Rosemary who admitted her intent to make officer Moody’s life unbearable.  

They all gave positive character witness testimony saying that Duenez had not done most of the things he is accused of doing by the officers including the listed vulgarities and the name calling. 

Mrs. Duenez charged during protests that officers at the police department looked at her group and laughed as well as grinned in what she felt was their attempt to let them know they thought it was funny.   She said she never heard her son say anything out of line and that he had a job and was an active youth coach.

The lawyer also claimed Avakian was possibly harassing Duenez himself by taking photographs of his children just to irritate his client.

The officers’ attorney objected to a constant series of statements and questions by the San Francisco attorney saying they were irrelevant with Judge Urie sustaining many of those objections.

Manteca Police Detective Sergeant Anthony Souza was called to the stand to testify about the protests outside the police department.  One incident saw Duenez cited for not having a front license plate and another for posting signage on a stop sign and a light post at the corner of Center Street and Cherry Lane.

Souza said when he heard the shouting outside the department he went with other officers to investigate and saw Duenez hanging the signs on the poles as part of his protest.  The sergeant said he told Duenez he had every right to be there and to protest but the signs he was hanging with wire were against the municipal code. 

The detective said he gave Duenez the opportunity to remove the signs or be cited.  The officer said the man refused and he went back into his office to get his citation book and wrote him a ticket.

“Duenez was emotional and was trying to maneuver us into getting into an argument with him,” Souza said.  Duenez’ attorney said moments later that the police are expected to have a high degree of restraint with their citizens.

Judge Urie asked both attorneys to write summation briefs and get them to him as soon as possible so he could rule on the restraining order on March 12.