Federal lawsuit filed against officer filmed drawing gun over cellphone video

Rohnert Park Public Safety Officer Dave Rodriguez is the subject of a lawsuit for his actions captured in a cellphone video that went viral last fall.

In the above video that has gained more than 675,000 views since it was posted last August, Rodriguez can be seen interacting with area resident Don McComas. The five-minute video shows Rodriguez drive his marked unit on the roadway in front of McComas’s house, where the homeowner was hitching his boat trailer to his vehicle.

After filming Rodriguez with his cellphone for a couple minutes, McComas captures the officer first filming him in return, then stepping from his vehicle and drawing his pistol after ordering McComas to take his hand out of his pocket without compliance.

The interaction ends with Rodriguez reholstering and leaving the scene after McComas contends he is unarmed.

Rodriguez was put on leave by the city soon after the incident and subsequently cleared of wrongdoing two months later by an internal investigation whose findings were not made public.

Now, McComas has filed suit against both the city and Rodriguez in U.S. District Court for the Northern District of California citing violations of the his civil rights under the First and Fourteenth Amendments, claiming he was not allowed freedom of speech and has since suffered physical, mental, and emotional injury and pain, mental anguish, humiliation, and embarrassment.

The attorney representing McComas, Evan Livingstone, told Guns.com that the right his client is trying to protect and vindicate by filing the suit lawsuit against officer and Rohnert Park is to videotape police officers performing their duties in public and that the actions of Rodriguez had a chilling effect on that right.

“It is well settled case law that citizens enjoy a First Amendment right to photograph police officers performing their responsibilities in public places,” said Livingstone. He cited Fordyce v. City of Seattle and Glik v. Cunniffe — each holding that there is a constitutionally protected right to videotape police carrying out their duties in public — as well as Smith v. City of Cumming, which states, “The First Amendment protects the right to gather information about what public officials do on public property,” including right “to photograph or videotape police conduct.”

Livingstone contends the motivation for Rodriguez to get out of his vehicle and draw his sidearm while advancing towards McComas, was to intimidate McComas from exercising his right to take video.

“The City of Rohnert Park will argue that Officer Rodriguez properly drew his firearm, because Mr. McComas refused to take his hand out of his pocket thus creating an officer safety issue for Officer Rodriguez,” said Livingstone. “A careful review of the YouTube video will show that Mr. McComas took his hand out of his pocket and placed the contents of his pocket on his vehicle as soon as Officer Rodriguez drew his firearm.”

Continuing, he explained, “Once Mr. McComas had removed his hand from his pocket, Officer Rodriguez continued to advance upon Mr. McComas with his firearm drawn. At no time did Officer Rodriguez articulate a reason why he got out of his vehicle and approached Mr. McComas other than stating that Mr. McComas had taken a picture of Officer Rodriguez.”

Rohnert Park officials have not replied to a request for statement on the case from Guns.com.

The suit seeks compensatory and exemplary damages, injunctive relief, an award of costs, attorney fees, and such other relief as the Court deems just and proper.