A federal appeals court is questioning whether a Scottsdale police officer violated the civil rights of the owner of a restaurant when he essentially arrested him twice for the same alleged violation of one of former Gov. Doug Ducey’s Covid executive orders.
And the outcome of the case could be determined, at least in part, on whether it’s illegal to curse at police officers.
Kathleen Wieneke, who represents Christian Bailey, and the city acknowledged the officer issued Randon Miller a citation for violating a March 19, 2020 order by Ducey that restaurants had to close for on-site dining but could remain open for pickup, delivery and drive-through operations.
Under Arizona law, a citation for a misdemeanor, which is what the violation was, constitutes an “arrest.” Miller signed the citation agreeing to appear in court.
And she acknowledged that a few minutes later Bailey decided to physically take Miller into custody — for the same violation.
But Wieneke told a three-judge panel of the 9th Circuit Court of Appeals this past week that was justified because Miller yelled obscenities at Bailey and other officers. That, she said, entitled Bailey to charge Miller with disorderly conduct and, at the same time, go back into the restaurant and physically take him into custody on both that charge and the executive order violation, and transport him to the city jail.
As it turned out, Miller never went to court on either count.
The charge of violating the executive order was apparently dropped after a judge in another case involving Scottsdale had concluded that only businesses — and not individuals, including owners — could be cited for violating the executive order.
That meant the arrests themselves may never have been legal in the first place. And in dropping the charge, there never was a legal finding as to whether how Sushi Brokers was operating ran afoul of Ducey’s order.
Prosecutors also never pursued the charge of disorderly conduct.
Miller, however, who has had a series of run-ins with Scottsdale police over the restaurant, wasn’t about to let it drop. And so he sued both Bailey and the city for violating his civil rights.
At the hearing last week, Wieneke told the appellate judges there was no illegal action, even if there was no legal basis for arresting Miller.
“Officer Bailey, tasked with interpreting a new executive order in the early weeks of a global pandemic, reasonably believed that a business owner was the ‘person’ criminally liable for that businesses’s actions,” she argued. “Even if he mistakenly applied the law, that mistake was reasonable under the circumstances, and does not diminish the probable cause for the arrest.”
But Cameron Morgan, Miller’s attorney, said that wasn’t the issue.
“You cannot rearrest somebody when you just released them,” he told the judges.
That act clearly troubled the judges.
Wieneke said it all got triggered with the disorderly conduct. But Judge Andrew Hurwitz said he’s not sure what Miller did — and even his lawyer acknowledged there was “foul language” — broke that law.
“Is the yelling of obscenities at somebody, at a police officer, enough to violate this statute?” he asked.
Wieneke said the law does cover “serious disruptive behavior.”
“The customers are observed at the window,” she said. “And as Mr. Miller begins to yell and scream, they back away from the window, they cross their arms, they go into the parking lot in retreat.”
Only thing is, the trial judge who dismissed Miller’s claims against Bailey and the city never actually determined the question of whether the police actually had probable cause to charge him with disorderly conduct. Morgan said that, at the very least, that requires the case to be sent back to that judge to rule on the issue.
That could be crucial given that Wieneke essentially acknowledged that it was that alleged disorderly conduct which caused Bailey to turn around and physically taken Miller into custody for the same violation of Ducey’s executive order for which he had just cited and released him.
Even without the disorderly conduct, however, she said that Bailey still was entitled to change his mind and physically arrest Miller for the same crime, even after he had cited him.
“Mr. Miller said — it is clearly noted in the report as well as on the body cam — ‘give me the ticket, I’m just going to tear it up and throw it away,’ ” Wieneke said.
“By signing it, you are promising to appear in court,” she continued. “An officer has discretion that if they do not believe you are going to honor that promise, they can take you into custody.”
But Hurwitz said the timeline just doesn’t work.
He pointed out that statement actually was made before Miller had been issued the citation.
In fact, the judge said, it was only after Miller got the citation and signed the promise to appear that Bailey decided he needed to be physically arrested.
And Judge Patrick Bumatay said there’s something else that bothered him about the events.
“Officer Bailey started walking away,” he said, after Miller signed the promise to appear. “He went back into the restaurant to arrest him.”
Wieneke said that’s irrelevant, saying Bailey still had probable cause to arrest him.
“Probable cause for what?” Bumatay pushed.
“If he still didn’t believe that you were going to honor that promise to appear,” she explained.
Bumatay appeared unconvinced, saying there’s got to be some limit to that.
“An officer can’t cite and release someone, two days later come back and say, ‘You know what? I don’t think you’re going to show up, I’m going to arrest you,’ ” the judge said.
Wieneke said she agreed. But she said there are exceptions, like when police make a drug buy but choose not to arrest someone until several weeks later.
“That’s a totally different situation,” Bumatay interjected. Here, he said, Miller was cited and released and then, just a short time later — within minutes — he was arrested for exactly the same conduct.
Hurwitz picked up on that theme, asking what had occurred between the initial encounter and the arrest that made Bailey believe he wouldn’t show up in court. Wieneke responded by going back to her argument that Miller had said he was going to tear up the ticket.
But that, Hurwitz said, is countered by the fact that he did subsequently sign the promise to appear. So what else happened, he asked Wieneke, to cause Bailey to decide to physically arrest Miller.
“That is not apparent from the record,” she conceded.
The judges did not say when they will decide whether to send the case back to the trial court to actually take evidence to determine if Bailey and the city violated Miller’s rights.