Arizona man asks Ninth Circuit to revive First Amendment retaliation claim

PHOENIX (CN) — An Arizona man who was briefly arrested at a campground in 2022 asked the Ninth Circuit on Thursday to revive a lawsuit over what he says was retaliation by law enforcement after he complained about the arrest on YouTube.

“Law enforcement officials abused their state power and participated in a retaliatory campaign against him simply because he used his First Amendment rights,” law student Courtney Czochara told a three-judge panel in Phoenix on behalf of her client, Corey Drew.

U.S. District Judge Krissa Lanham agreed that Lieutenant John Johnson of the Yavapai County Sheriff’s Office likely took retaliatory action against Drew when he ordered deputies to reopen an investigation and charge Drew with disorderly conduct and resisting arrest, but all the same dismissed Drew’s claim because he didn’t properly assert a lack of probable cause in his original complaint, which he filed without the help of an attorney.

U.S. Circuit Judge Andrew Hurwitz, a Barack Obama appointee, told Czochara the panel disagrees with the lower judge’s ruling and agrees Johnson’s actions were retaliatory.

James Jellison, representing the officers, argued that even if the panel finds Drew properly asserted a lack of probable cause, there is nothing retaliatory about reopening an investigation upon receiving new information.

Still, the panel indicated it is likely to defer to the trial judge on that point.

The rest of Drew’s claims don’t fare so well.

Drew was stopped in his truck by two officers at a campground in Cottonwood, Arizona, on Dec. 8, 2022. The officers were called to give a park manager a civil escort, and nowhere in the 911 call was Drew accused of a crime.

The officers placed Drew under arrest and demanded that he exit his vehicle while others investigated the scene and interviewed witnesses. After deciding Drew had committed no crimes, they apologized and let him be.

Drew emailed Johnson and asked him what disciplinary actions would be taken against the officers, and responded in anger when told they would simply be given more education. He then asked Johnson to escalate the complaint to his superior, Captain Tom Boelts, and posted a video of the encounter to YouTube, where it received a million views in just the first 24 hours. After multiple citizens called the sheriff’s office to complain on Drew’s behalf, Johnson stopped responding to Drew, reversed his decision on Drew’s initial complaint and reopened an investigation into Drew.

Drew was eventually arrested and charged with disorderly conduct, resisting arrest, intimidation, failure to comply and failure to stop and provide identification. A state judge dismissed all the charges months later.

Drew sued Johnson, Boelts and the officers who first encountered him at the campground in April 2024, though the latter officers were dismissed because they were never properly served.

Drew says Boelts chilled his First Amendment freedom of speech by preemptively escalating all of Drew’s future encounters with police. Czochara told the panel that Boelts distributed Drew’s name and picture to all Yavapai County Sheriff substations, engaged a terrorism liaison adviser to give a threat assessment and referred investigating officers to Drew’s YouTube channel.

The judges were unconvinced.

“All that’s internal,” U.S. Circuit Judge Susan P. Graber said. “So how does that chill a person that doesn’t know about that?”

Czochara, working under Arizona State University First Amendment Clinic Director Gregg Leslie, argued that it chills Drew’s speech because he eventually found out about it, but the judges said they must treat it as an internal communication. Without discovery in this litigation, Drew never would have known what was said, and therefore, he could not have been discouraged from speaking out against the police in the future.

Boelts also effectively cut off communication between Drew and the sheriff’s office, but Graber, a Bill Clinton appointee, said that still isn’t enough.

“They didn’t threaten him directly,” she said. “Focus on the facts here.”

Czochara also argued Boelts was an active participant in the investigation itself, but the judges pointed out that Drew never asserted that in his original complaint.

The panel, rounded out by U.S. Circuit Judge Roopali Desai, a Joe Biden appointee, didn’t indicate when it will rule.

Follow @JournalistJoeAZ