First Amendment concerns are figuring heavily into efforts by an attorney for Gabriel Duenez to try and convince a judge not to make a temporary restraining order permanent for his client to stay away from two Manteca Police officers.

 Tuesday’s testimony asking Superior Court Judge Phillip Urie to consider making a temporary restraining order permanent against Duenez at the request of the two officers was continued to Friday, February 17, at 9 a.m..

Duenez is the brother of the Manteca man who died in June during an officer involved shooting in the 200 block of Flores Avenue near the intersection of North Street and Cottage Avenue. Duenez has been accused of constant harassment of the patrolmen.

Officers John Moody and Armen Avakian requested the court order for their personal safety to keep Duenez from alleged verbal assaults around the police department and from following Moody in his patrol car and following Avakian’s family as Duenez is alleged to have done at Great America. 

Duenez and his supporters have made a weekly ritual every Thursday of gathering to protest near the police department with posters as well as sticks and buckets used to make noise while chanting, “No Justice, No Peace.”

A number of those protesters were stationed on the sidewalk outside the court on West Center Street while the hearing was under way.

Moody’s and Avakian’s requests for a permanent restraining order were handled separately by the court Tuesday with Moody and his attorney Chris Miller speaking first.  The officer was  cross examined by attorney Ben Nisenbaum of the John L. Burris Law Firm. It is the same firm that is handling a $25 million lawsuit against the City of Manteca for Ernesto Duenez’ death.

The 11 a.m. hearing in the Manteca Branch of the San Joaquin County Superior Court dragged on until 12:30 p.m. not allowing time to address the second phase of the restraining order plea relating to Avakian.

Moody said he has been concerned for his personal safety. He said he has continually been carrying an off-duty weapon with him when he is not at work since being harassed several times with vulgarities beginning in November when preparing his patrol car for his shift.   He said harassment has often continued when he gets off shift at the end of his watch. The officer said he is always looking over his shoulder.

Moody said he feels compromised when answering calls when he sees protesters following his patrol car.  In one of those calls Moody said he was confronted at the Walmart store. The defense attorney for Duenez, Ben Nisenbaum, asked the officer why he didn’t stop those people following him and question their purpose.

Nisenbaum appeared to be following a First Amendment freedom of speech argument. He repeatedly asked Moody as to why he felt threatened by the posters on the light poles calling him a murderer or by the vulgarities shouted at him outside the police department parking lot.

He also asked if anyone had actually threatened him or were they just words saying that the officer’s reaction to Duenez demeanor and that of the protesters was possibly his perception.

“A poster doesn’t threaten you in any way, correct?” the attorney asked.

“No,” Moody responded but he noted that the Manteca Bulletin article last fall quoted Duenez saying they would do whatever they had to do to make his life miserable.  Moody said he is not a murderer as is depicted in the posters and in the verbal assaults.

Duenez’ attorney also questioned the officer as to whether Duenez had ever threatened specific physical harm against him.  Moody’s response was, no.

 “Don’t you think they have a right to have you prosecuted?” the attorney then asked. “He has made no threat of violence against you.  He’s just saying he wants you to go to prison.   You say his demeanor indicates a threat of violence – has he held his fists up to you?”

Claiming an increased level of harassment has caused him emotional stress, Nisenbaum asked Moody if he had seen a psychiatrist for the emotional stress noting he knew that the officer had taken some time off work.  Moody said he had sought psychological help.

The last verbal assault reportedly came on Jan. 10 when Moody said that Duenez ran from across the street to the parking lot gated fence yelling at him continuously with “F” phrases and his protesters followed. The officer said he didn’t know if the man was armed or not and feared for his safety.

The attorney asked Moody if he couldn’t have parked his vehicle somewhere else away from the wrought iron fence and away from the street.

As the two attorneys and Moody conducted their exchange, Gabriel Duenez sat next to his attorney with  his supporters sitting quietly.  Duenez said nothing during the hearing.