Appellate judges slam the county for a botched investigation.

Longtime readers may recall the tale of Nicolas Aquino, the U.S. Air Force officer who in 2013 was tackled and detained by sheriff’s deputies outside his home for, essentially, being a hoodie-wearing Hispanic in Carmel. Aquino, a first-generation American, was a cyber warfare specialist and an officer so highly prized by the Air Force they used him as a recruiting tool in an “American Airman” video.

Back in 2013, Aquino and his wife had lived in their Carmel Woods residence for about 10 months while he worked on his master’s degree at the Naval Postgraduate School. It was a Saturday afternoon in December, and Aquino was kicking back when his dogs began barking the relentless bark that meant someone was outside. Aquino opened the front door, found a Monterey County Sheriff’s deputy in his yard and was told they were investigating a report of a suspicious Hispanic man in a hoodie creeping around the house.

The deputy, Ivan Rodriguez, asked for ID. Aquino held up his military ID, but refused to hand it over. The deputy told him it didn’t prove he lived there, and when Aquino tried to go inside to fetch mail showing he lived there, the deputy tackled him, cuffed him and detained him before letting him go.

No charges were filed then, but six weeks later, Aquino received a call from the senior Air Force officer at NPS telling him not to report to that base or any other because there was a warrant out for his arrest. 

Three weeks after I first wrote about the case, the Monterey County District Attorney’s office announced it was dropping the charge that Aquino had obstructed a peace officer. District Attorney Dean Flippo said he and his team reviewed the case and decided to drop it because they couldn’t win it. He only reviewed it because it received publicity, prompting a few retired Army officers (Flippo is one himself) to call and ask him to consider whether prosecuting Aquino was the right thing to do. 

It seemed like a win for Aquino: Charges were dropped and he could move on with his life. But skip forward to 2017. Aquino is no longer in the Air Force because, as Salinas-based litigator Nina Patane tells me, the criminal case was a career-ender despite the charge being dropped. 

Aquino sued the Sheriff’s Office and Rodriguez in 2014, arguing his Fourth Amendment rights were violated. On Sept. 12, the case made its way to the Ninth Circuit Court of Appeals as the county argued Rodriguez should be due “qualified immunity” because his actions were reasonable under the circumstances. U.S. District Court Judge Edward Davila dismissed some of the allegations against Rodriguez, including one that his action was driven by racial animus, but let other allegations stand. 

You can never predict what a court will do. But a video of the hearing, available on YouTube (at bit.ly/aquinocase), shows a clearly frustrated Judge Alex Kozinski smacking around Deputy County Counsel Michael Philippi for appealing the lower court’s ruling in the first place. (It’s worth watching. I suggest you first make popcorn – and throw on some extra butter.)

Aquino, Kozinski says, “did nothing suspicious [and] nothing illegal, and the next thing you know he’s on the ground.

“I don’t know why you’re here. Why are you appealing this case? I am a little baffled. Your officers shouldn’t be violently attacking people outside their own houses.”

Philippi argues Rodriguez was acting within the bounds of the law, by responding to a 911 call, entering the yard, then withdrawing when he sees someone inside move the blinds then come outside.

It devolves from there. After the judges finish pummeling Philippi, Kozinski tells him, “This is on tape. You should go back and look at this and you should have your supervisor look at this.” 

It could take a year for the Ninth to issue a decision. If they rule in Aquino’s favor, the case will likely end up before a jury unless the county agrees to settle. And I don’t think they’re going to settle.

“My understanding is that Deputy Rodriguez is a good officer and was trying to do what’s right under the law,” County Counsel Charles McKee tells me. “If the court doesn’t think Deputy Rodriguez was reasonable, then we’ll end up at trial.”

Mr. McKee, you should probably watch that video.