The defendant in the case, officer David Rodriguez. (Photo: screengrab)
A California police officer is facing a federal lawsuit after an altercation last summer in which the officer un-holstered his weapon in front of an unarmed man taking a video on his cell phone.
Don McComas—the man who took the video—is seeking relief under the Civil Rights Act of 1871, claiming the officer, David Rodriguez, violated his First and Fourteenth Amendment rights.
“[McComas] has suffered violations of his First and Fourteenth Amendment rights to free speech, assembly, and association, including the right to record police activity,” the lawsuit reads. McComas also claims to have suffered “damages including physical, mental, and emotional injury and pain, mental anguish, suffering, humiliation, and embarrassment.”
McComas recorded much of the incident on a video, which depicts Rodriguez stopping his duty vehicle in front of McComas’s driveway. Rodriguez takes a picture of McComas, exits his vehicle, and commands McComas to “go ahead and take your hand out of your pocket.”
McComas at first refuses, saying, “No, sir, I have done nothing. I have done absolutely nothing. No.” When McComas does not comply, Rodriguez says, “Ok, seriously,” unholsters his weapon, and points it at the ground. McComas quickly empties his pocket of its contents and places a cell phone and keys on the hood of his car.
The altercation ends after McComas retreats into his driveway. At no point does Rodriguez re-holster his weapon, despite the fact that McComas complies with the officer’s order.
Rodriguez was cleared of wrongdoing after a probe, conducted by a private investigator in consultation with a retired internal affairs detective, found Rodriguez’s actions were justified.
The findings were not made public, but a summary released by the city of Rohnert Park says that Rodriguez initially contacted McComas because McComas had ducked behind a car while the officer cruised the street looking for parking code violators. According to the report, McComas then began to act suspiciously when the officer stopped to investigate.
Rodriguez pulled his gun because McComas refused to remove his hand from his pocket, but it is unclear why he did not re-holster his weapon when McComas complied.
It is also unclear why Rodriguez’s own account of the incident differs so starkly from what happened in the video. In a police report obtained by KTVU, Rodriguez claims to have asked McComas if he needed help and if he had a weapon. He also says he “backed away” and called for back-up after drawing his gun. The video clearly shows that Rodriguez does none of these things.
McComas and his lawyers claim that Rodriguez got out of his vehicle and unholstered his firearm in order to intimidate McComas into putting away his cell phone. This, they say, has a “chilling effect” on the First Amendment protection of the right to gather information about what public officials do on public property.
McComas and his lawyers are seeking compensatory and exemplary damages, injunctive relief, an award of costs, attorney fees, and such other relief as the Court deems just and proper.