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Personal harassment: Not protected speech?
1st Amendment linchpin in Duenez restraining order case
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Gabriel Duenez, center, and family members talk with civil rights attorney Ben Nisenbaum Monday morning following a court session where two Manteca police officers were asking to extend a restraining order against Duenez from continued alleged harassment. - photo by GLENN KAHL

Harassment that is up close and personal is not protected speech by the First Amendment of the U.S. Constitution, Superior Court Judge Philip Urie argued Monday morning in the Manteca Branch of the San Joaquin County Superior Court.

It was the third of three hearings where the judge heard the pleas of attorney Chris Miller to make a temporary restraining order permanent protecting two Manteca police officers from the alleged harassment by Gabriel Duenez whose brother was killed in June in an officer-involved shooting.

Judge Urie told the principals in the matter that he wasn’t comfortable in making a decision Monday but promised a letter explaining his finding that would be sent to each attorney by mail later this week.

Officers Armen Avakian and John Moody have complained about Duenez’ conduct they have described as harassment at work and - in the case of one officer - when he was at a Santa Clara amusement park with his family.

Urie had considered letter briefs that had been presented to him from both sides of the argument where Duenez’ attorney cited the 2005 Breckenridge case of sexual harassment as a case study.

“That would apply if this were a matter of private concern, but this is a matter of public concern which takes it out of Breckenridge,” Urie said. “So it is not applicable.”

Another case that was used by the attorney as a possible guide to deciding on the extension of the restraining order was determined not to be a case of harassment by a citizen thereby placing the focus back on “first principles” or to the point of First Amendment protection, he said.

Miller, the Sacramento attorney representing the officers, countered that he was not aware of any other case in California that crosses the line into private contact.

“When the conduct from a public situation becomes private, it is not protected by the Constitution,” he argued.

Miller said that Duenez’ conduct has crossed that threshold through the Great America amusement park interaction with Officer Avakian while off duty and out of his jurisdiction.

“Nothing in those cases, including the ticket for the license plate, have any cause,” the attorney said. “The level of tolerable behavior is much higher as the officer is going about his duties. There is a pattern of behaviors outside the shooting incident when harassment has been directed at the officer.”

He further opined that the killing of Duenez’ brother is not a private matter saying that the action is not about that but about the behavior being directed at an individual. He offered that the threats at the officers while not in their positions as polices officers but as private citizens was inappropriate.

“It becomes personal and essentially a private matter,” the attorney said.

The judge interjected, “This is a civil matter with civil ramifications,” adding that it could become criminal with a violation of the restraining order.

Attorney Nisenbaum replied to the charges of harassment and questionable language seen on video tape, saying, “There’s nothing about the First Amendment that says you have to be professional.”

Judge Urie countered noting that walking with a group demonstrating is different than an individual walking up to an officer and personally berating him, but Nisenbaum said it wasn’t an issue with fighting words – “it’s only words,” arguing that the officers were never in danger from his client.

Nisenbaum cited opinions from past cases, but the judge said they were criminal cases protected by the Constitution and not private as is the basis for the restraining order.

“We are talking about restrainable behavior, not strictly fighting words, but those that would make ordinary, everyday people feel uneasy,” the judge said.

“As long as they are not threatening, I see no offense at all,” Duenez’ San Francisco civil rights attorney responded.

Attorney Miller’s questioned the notion that Duenez was just stepping out and repeating a message from a crowd. He said it was a fact that Duenez was actually stepping out and taking it to a personal level. Once he made the decision to take the attacks not only to the work place but to other areas it became a personal vendetta, he said.