The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
Defendant and seven of her friends were camping in North Pines Campsite in Yosemite National Park on July 26, 2011. While Defendant was walking to the group's campsite, other members of the group were reported to be driving too fast and acting disorderly in the campground. Park rangers came to the site to investigate. On arrival the rangers detained the entire group, including Defendant. Defendant was perceived by a ranger to fail to comply with his orders pursuant to the investigatory stop. The ranger attempted physically to restrain her and then produced and threatened to use his Taser electroshock weapon on her. Defendant subsequently was arrested for this conduct. She reacted to the ranger's search incident to arrest by screaming loudly and moving her body in ways which interfered with the ranger's search.
As discussed in detail below, these events give rise to significant First and Fourth amendment issues regarding the rangers' right to conduct an investigatory stop or otherwise order Defendant to refrain from movement, the right of Defendant to verbally criticize the conduct of the Rangers, and the right of Defendant reasonably to resist an unlawful arrest. Those matters are analyzed in some depth below.*fn1
The following summary of relevant facts is taken from the criminal Complaint on file and testimony and exhibits provided at trial:*fn2
On July 26, 2011, Yosemite National Park Law Enforcement Rangers Chris Bellino and David Sanchez were dispatched to the North Pines Campground in Yosemite Valley to investigate a complaint of a group of people behaving in a disorderly fashion. At the campground Ranger Bellino met with at least one Yosemite desk officer and a camper who reported that a group of campers had been driving around the campground at unspecified "high speeds" in a Jeep Liberty with one member of the group riding on the outside back of the vehicle.*fn3 (RT 7-8.*fn4 ) The desk officer and witness reported that the individuals in the Jeep were yelling profanities at a slower moving vehicle in front of it.*fn5 (RT 25.)
At trial, Ranger Bellino had only limited recall of what was said about actions of individual members of the group. He could not remember if he was told whether either the driver or the individual riding on the back was male or female. (RT at 26.) He did not know how many people were in the vehicle, but he recalled being told that all of the people in group, male and female, had been disorderly and shouted profanities. (Id.) He acknowledged that as he approached the campsite, he had no information beyond the statements from the desk officer and had no reason to suspect Defendant had a criminal history or was armed or dangerous. (RT at 32.) He noted, though, that in his experience disorderly groups were more of a threat to ranger safety than orderly ones. This group was not, however, acting disorderly when he arrived. (Id. at 42.)
The desk officer had identified the group and vehicle as those at campsite number 308. (RT 7-8.) When Rangers Bellino and Sanchez arrived, they observed a group of eight people, including Defendant Michelle Mazzetti, at the campsite. At the time, members of the group were on foot and dispersed throughout the site. (Id. at 8.) None was driving a vehicle. Apparently, no member of the group was then engaged in the violation of any law.
Ranger Bellino did not observe anyone conducting his or herself in a disorderly fashion as he arrived at the campsite. (Id. at 28.) There is nothing about the appearance of the group in the video to suggest to the Court that they were anything but a normal group of compliant young adults in their mid-twenties on a camping trip.
Ranger Bellino entered the campsite and directed the members of the group to sit at a single picnic table and keep their hands visible. The group members complied. Ranger Bellino asked if any one in the group had a weapon. The group responded in the negative. He questioned them regarding the complained-of behavior. Other than what ensued between Ranger Bellino and Defendant, the next fifteen minute exchange produced little more than ongoing denials of any wrongdoing on the part of the group members.*fn6 Though not perfectly clear from the video, Defendant reportedly had to be reminded to keep her hands visible. (She testified she had a nervous habit of putting her hands in her pants pockets which in this case were primarily decorative and accommodated little more than the tips of her fingers.)
Within two minutes of the rangers' arrival, the driver of the Jeep Liberty identified himself and acknowledged exchanging words with two older men who had asked where he and his friends were going. The driver explained that in an attempt to find the campsite, they had circled the campground, but at no time driven at a speed greater than eight miles per hour. The driver denied knowledge of anyone riding on the back of the vehicle; his visibility was blocked by people and equipment in the vehicle. Others in the group indicated that they were driving in a separate vehicle. While the driver was describing the events, Defendant advised Ranger Bellino that she had walked into the campsite and was not in or on the vehicle. Nothing appears to have contradicted that statement. Thus, as the questioning began, there was nothing to indicate that Defendant had engaged in any unlawful behavior of any kind.
At about two and one half minutes into the discussion, Defendant, who had been leaning against the crowded picnic table, stood (because, she testified at trial, she was uncomfortable and her circulation was being cut off by the edge of the table). She then walked approximately five feet to a nearby tree and kneeled down. She complained that there was no place for her to sit at the table and that she was not, in any event, involved in the matter. Ranger Bellino repeatedly told her to sit down. He advised: "There's a lot of you here. I'm going to put you in handcuffs if you don't do what I say." Defendant declined a direction to sit on the ground. She then sat in a camp chair provided for her. Ranger Sanchez told her to sit in the chair and not to get up.
The Rangers continued their questioning of the group collectively. At about four minutes into the conversation, Defendant asked Ranger Bellino what was going to happen and if he was going to issue a ticket. Ranger Bellino replied that he might issue a ticket. Defendant stated that he could not issue her a ticket. Bellino stated he could issue her a ticket for not doing what he told her to do. She responded that she was doing what she was ordered to do. The driver also attempted to point out to the Rangers that Defendant had walked to the campsite from some three miles away.
Once directed to the chair, Defendant appears to sit there, compliant and calmly conversing with the rangers for about two more minutes at which time Ranger Bellino told the group he "needed identification." Reportedly because they had been swimming, some in the group, including Defendant, did not have identification in their clothing. Defendant got up to retrieve her drivers' license. This action precipitated a very brief episode in which Defendant stood up and, in response to Ranger Bellino's protest, stated she was going to get her identification. Ranger Bellino seemed somewhat taken aback by this reaction. He twice ordered Defendant to sit down and then attempted, unsuccessfully, to restrain her physically; she backed away from his grasp.
No more than five seconds passed between Ranger Bellino's request for identification and his reaching out in an unsuccessful attempt to restrain Defendant. During that time, Defendant pointed out more than once that it was the Ranger who had asked for her identification. As Defendant pulled away, Ranger Bellino unholstered his Taser and aimed it at Defendant, whereupon she, encouraged by the group to do so, resumed sitting quietly. (It appears she continued to remain sitting quietly until later directed by Ranger Bellino to get up and accompany him.) One of the male members of the group, who had remained seated throughout the incident, asked Ranger Bellino "Are you really going to Taser a girl, officer?" Ranger Bellino responded, "I am. I will Taser you too."
After the above-described incident, Ranger Bellino radioed for backup. He continued to instruct Defendant on the need for her to do what he told her to do. Defendant, in effect, complained about the difficulty complying when the ranger gave conflicting instructions. After placing the call for back-up, Ranger Bellino ordered Defendant, still seated in the chair, to get on her knees. Defendant refused. She pointed out that she was sitting down peacefully. Ranger Bellino pointed out her earlier failure to sit down as ordered. Defendant countered that she had simply gotten up to get her identification as ordered.
Ranger Bellino explained further: "When people don't do what I say, I consider it a threat. Whether you guys think she's a threat or not, I think she is a threat." and "When I tell you to sit down ma'am, you need to stay seated. People who do not do what we tell them to do get arrested and go to jail. Okay. Whether you did anything wrong before that or not doesn't matter. I need to be able to control everyone here because there's eight of you and I don't know you. You understand?"
Another otherwise uneventful ten minutes or so passed with Ranger Bellino continuing his inquiry and awaiting the arrival of additional rangers. He did explain to the group that "officer safety" concerns dictated that all members of the group obey his commands; he could not allow even one to disobey because that might mean he would end up having to fight the entire group of eight.
When additional rangers arrived, Ranger Bellino recounted the history of events to one of them and advised he did not intend to cite any of the group other than Defendant. He also indicated he was disinclined to arrest Defendant. Following a comment from the other ranger, Ranger Bellino changed his mind and decided to arrest Defendant for interfering with law enforcement.
He thereupon had Defendant stand and walk a short distance from the group where he placed her in handcuffs. There is dispute between the two as to whether and how much she cooperated or resisted in being handcuffed, but other than her proclaiming the unfairness of the situation, the handcuffing appears in the video to have been relatively uneventful.
Ranger Bellino and another ranger then escorted Defendant further away from the campsite and had her stand facing the side of a Ranger vehicle as Bellino began to search her. Other than Defendant expressing verbal protests and seeming to twist her head while her hair was being searched, the search was uneventful until Ranger Bellino announced that, there being no female ranger on duty, he was going to search Defendant's breasts and groin. Defendant reacted with what can only be described as hysterical, extremely loud screaming and twisting of her body, while standing and then on the ground, to avoid Ranger Bellino's hands. During the search, Defendant continuously screamed very loudly for help and demanded that the rangers stop touching her breasts and groin. Ranger Bellino testified that during the search, Defendant kicked him in the leg and continued to kick at the rangers while on the ground. The search concluded with Defendant face down on the ground and a ranger's knee in her back. No contraband or weapon was found. Defendant, still handcuffed behind her back, was placed in a law enforcement vehicle. Her exceedingly loud, continuous screaming continued for the several additional minutes the vehicle remained near the scene. Reportedly, it continued as she was transported to the holding facility. At some point during transit, Defendant wrestled her handcuffed hands from the back of her body to the front.
The above events led to the filing of a Criminal Complaint charging Defendant with four Class B misdemeanor counts: (1) Interfering with a government officer engaged in official duty in violation of 36 C.F.R. 2.32(a)(1); (2) Violating a lawful order in violation of subsection (a)(2) of the same regulation; (3) Acting to incite a breach of the peace in violation of 36 C.F.R. 2.34(a)(2); and, (4) Making unreasonable noise in violation of subsection (a)(3) of the same regulation.
Defendant pled "not guilty" to all charges..
On February 16, 2012, the matter came to trial before the undersigned Magistrate Judge in the United States District Court for the Eastern District of California, Yosemite Division. The United States was represented by Legal Officers Susan St. Vincent and attorney Rachel Cartier. Defendant was represented by attorney Carol Moses. Testimony was heard and documentary evidence admitted. Defendant's motion for judgment at the close of the government's case was submitted. An opposition brief has been filed by the government and a reply filed by the Defendant. The case has been submitted.
A. What Constitutes a Stop or Arrest?
An initial issue here is that of whether Defendant was 'seized' or otherwise detained under the Fourth Amendment when Ranger Bellino ordered her to sit and remain at the campground table. "[N]ot all personal intercourse between policemen and citizens involves 'seizures' of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred." United States v. Mendenhall, 446 U.S. 544, 552 (U.S. 1980) (citing Terry v. Ohio, 392 U.S. 1, at 19, n. 16 (1968)). The Supreme Court has held that:
[A] person is "seized" only when, by means of physical force or a show of authority, his freedom of movement is restrained. Only when such restraint is imposed is there any foundation whatever for invoking constitutional safeguards. The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals. As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy as would under the Constitution require some particularized and objective justification. Mendenhall, 446 U.S. at 553-554.
Alternatively stated, "a person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave" or "not at liberty to ignore the police presence and go about his business." Mendenhall, 446 U.S. at 554; Florida v. Bostick, 501 U.S. 429, 437 (1991). Further, the seizure must be intentionally made on behalf of law enforcement. Brower v. County of Inyo, 489 U.S. 593, 597 (1989) (requiring a governmental termination of freedom of movement through means intentionally applied.); United States v. Al Nasser, 555 F.3d 722, 728-29 (9th Cir. 2009).
B. Authority for Terry Stop to Investigate Past Criminal Conduct
The Fourth Amendment prohibits "unreasonable searches and seizures" and its protections extend to brief investigatory stops of persons that fall short of traditional arrest. United States v. Arvizu, 534 U.S. 266, 273 (2002); Terry v. Ohio, 392 U.S. at 9.
In order to initiate an investigatory stop, "the Fourth Amendment is satisfied if the officer's action is supported by reasonable suspicion to believe that criminal activity may be afoot. United States v. Arvizu, 534 U.S. at 273 (citing United States v. Sokolow, 490 U.S. 1, 7 (1989); see also United States v. Cortez, 449 U.S. 411, 417 (1981) ("An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity"). "Although an officer's reliance on a mere 'hunch' is insufficient to justify a stop, the likelihood of criminal activity need not rise to the level required for probable cause, and it falls considerably short of satisfying a preponderance of the evidence standard." Arvizu, 534 U.S. at 273-274 (citations omitted.)
In determining if there is reasonable articulable suspicion to stop a person, law enforcement must examine the totality of the circumstances:
Courts have used a variety of terms to capture the elusive concept of what cause is sufficient to authorize police to stop a person. Terms like 'articulable reasons' and 'founded suspicion' are not self-defining; they fall short of providing clear guidance dispositive of the myriad factual situations that arise. But the essence of all that has been written is that the totality of the circumstances -- the whole picture -- must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.
United States v. Cortez, 449 U.S. at 417-418.
From the totality of the circumstances, the law enforcement officer "draws inferences and makes deductions -- inferences and deductions that might well elude an untrained person." Id. at 418. Furthermore, the evidence must create particularized suspicions "that the particular individual being stopped is engaged in wrongdoing." Id.; see also Ybarra v. Illinois, 444 U.S. 85, 93-94 (1979) ("The 'narrow scope' of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked.").
In this case, the Ranger approached Defendant during investigation of an already completed crime. In such cases, the Supreme Court has held that the same framework for the proper bounds of intrusions regarding investigations of imminent or ongoing crimes applies, but "[t]he precise limits on investigatory stops to investigate past criminal activity are more difficult to define." United States v. Hensley, 469 U.S. 221, 228 (1985).
The Supreme Court explained that the investigation of already completed crimes may have a lesser impact on the interests of crime ...