PHOENIX (CN) — A man accusing the Phoenix Police Department of First Amendment retaliation testified in federal court Wednesday in the second day of trial, insisting he broke no laws before he was unfairly detained.
Phil Martinez, a known critic of the Phoenix Police Department, was arrested at a 2019 protest he didn’t attend. Martinez was riding the light rail when police ordered him to get off the train and walk to the next stop nearly a mile away. Protesters challenging the treatment of migrant children outside a U.S. Immigration and Customs Enforcement building had blocked the tracks and part of the road.
But another group of officers refused to let him pass through, instead ordering Martinez to walk further out of his way. Martinez argued with the officers, calling them “fucking pussies,” and was eventually arrested for refusing orders to leave the area.
Martinez said Wednesday morning in a Phoenix courtroom that he never heard an unlawful assembly order from Lieutenant Benjamin Moore or other officers, and claims that Moore ordered officers to arrest him only because of the colorful language he used when insulting the police, in violation of his First Amendment right to free speech.
Attorney Mart Harris, representing Martinez, said that dozens of protesters sat on the light rail tracks for more than an hour through nearly 100 dispersal orders, though they weren’t arrested.
Martinez also admitted to “between three and five” subsequent arrests, all while protesting police violence.
“For exercising my right to protest the government,” he clarified. Reasons for the arrests are similar — blocking a roadway, unlawful assembly and resisting arrest.
Martinez insisted that he never resisted arrest in the latter incidents, nor during the 2019 protest.
On cross examination, defense attorney John Masterson asked Martinez if it would be reasonable for police to arrest him if he refused to follow a dispersal order. Martinez said no, but had told Masterson in a previous deposition that while he never heard a dispersal order, he agrees it would be reasonable to arrest him if he defied one.
Masterson spent nearly an hour asking Martinez about other negative interactions he has had with police. Though he’s given up the practice, Martinez regularly recorded officers around the time of the protest, he says, to hold them accountable.
Masterson named occasions on which Martinez called officers white supremacists and “fucking Nazis,” as well as a time he referred to an officer as “Tiny Tim.”
Both Martinez and a juror stifled smirks as Martinez explained the interaction.
When Martinez was arrested in 2019, police also arrested his fellow plaintiff Jorge Soria, who waved a large Soviet Union flag on a long pole and held a sign calling police officers baby killers.
Phoenix Police Sergeant Jeffrey Miel said he observed Soria waving the flag pole “within very close distances of officers’ faces,” and considered the aggressive gestures to be aggravated assault.
Harris brought a long bamboo stick into the courtroom and asked Miel to demonstrate what he watched Soria do with the flag pole. Miel waved the stick about three feet from Harris’ face.
“And you’d consider that aggravated assault?” Harris asked.
“In that context, absolutely,” he replied. He said if he were responding to a 911 call, he would have considered the flagpole a weapon.
But Miel included nothing about Soria waving the flagpole in his police report, and Harris said no video evidence of Soria waving the flagpole exists. Another officer who testified earlier said he saw the flag but never saw Soria swing it, and would have included it in a police report if he observed it.
Instead, Soria claims that officers arrested him in retaliation because they were offended by his sign calling police baby killers.
Harris played more than 30 minutes of video footage while examining Phoenix Police Sergeant Erick Selvius, asking him to identify where in the video Soria violently waved the flagpole as he and other officers described. Selvius was unable to do so, but insisted that he and other officers observed it in person.
“I don’t think it’s recorded on video,” Selvius said.
Selvius couldn’t identify which officers observed it aside from him, but said it was broadcast over the radio. But he retracted his statement when Harris suggested they listen to the radio recordings.
“I guess I’m just assuming we did,” Selvius said, adding that he didn’t recall if he indeed heard it on the radio.
He later said the violent waving may have been only for a moment, rather than continued throughout the protest.
Moore took the stand in the final minutes of the day, and will continue his testimony Friday morning.