Introduction Under what circumstances, if at all, can police officers
arrest citizens for ¡°contempt of cop,¡± verbal challenges, profanity, or
disrespect? Under what circumstances is criticism of police, even if couched in
abusive or profane terms, constitutionally protected free speech? This article
briefly looks at some key U.S. Supreme Court cases on the topic. It then
examines lower court decisions in which a broad right of freedom of expression
to criticize police was found. That is followed by a presentation of some cases
in which courts have upheld arrests that were arguably speech-related because
the arrestee.s conduct crossed the line from pure advocacy of ideas to fighting
words, active obstruction of officers, or incitement to imminent unlawful
actions, including violence.
302
ľ Supreme Court Rulings
An important decision establishing a
dividing line concerning what words alone can be criminalized is Brandenburg v.
Ohio, #492, 395 U.S. 444 (1969), setting forth the legal standard that even
advocacy of unlawful acts may not be criminally punished unless they amount to
¡§incitement to imminent lawless action.¡¨ This was distinguished from ¡§mere
advocacy¡¨ of unlawful conduct, including violence.
In Lewis v. City of New Orleans, #70-5323, 415 U.S. 130 (1974), a woman
yelled obscenities and threats at an officer who had asked her husband to show
his driver.s license. She was convicted of violating an ordinance making it a
crime ¡°for any person wantonly to curse or revile or to use obscene or
opprobrious language toward or with reference to any member of the city police
while in the actual performance of his duty.¡± The U.S. Supreme Court held that
such an ordinance was overbroad and vacated the conviction, commenting that ¡°a
properly trained officer may reasonably be expected to exercise a higher degree
of restraint¡± than an average private person, and therefore be less likely ¡°to
respond belligerently¡± to fighting words.
The leading modern U.S. Supreme
Court case on the right of members of the public to express criticism of the
police is Houston v. Hill, #86-243, 482 U.S. 451 (1987). In this case, a man
shouted at police officers to try to divert their attention from his friend
during a confrontation. He was then arrested for willfully interrupting an
officer by verbal challenge during an investigation. The arresting officers
claimed that this violated an ordinance making it unlawful to ¡°to assault,
strike or in any manner oppose, molest, abuse or interrupt any policeman in the
execution of his duty.¡± The arrestee was acquitted of the charges, and sued,
claiming that the ordinance was unconstitutional and violative of his First
Amendment rights. The U.S. Supreme Court held that it was unconstitutionally
overbroad and therefore invalid on its face. Taken literally, it criminalized a
substantial amount of constitutionally protected speech, the Court stated. It
further provided officers with unbridled discretion as to who to arrest for
purported violations.
“The freedom of individuals verbally to oppose or challenge police action
without thereby risking arrest is one of the principal characteristics by which
we distinguish a free nation from a police state,” the Court concluded. In a
myriad of cases, the lower courts have applied these principles, allowing
members of the public broad freedom of expression to criticize police, even very
harshly, while drawing the line at speech, or speech joined with conduct, that
involves the utterance of fighting words, active obstruction of officers
performing their duties, or incitement to imminent acts of violence or other
unlawful acts.
Broad freedom of expression Criticism of police officers, cursing at them,
and even making disrespectful or profane gestures towards them, such as ¡°giving
them the finger¡± have been held to be protected First Amendment speech by many
courts.
In Kennedy v. City of Villa Hills, #09-6442, 2011 U.S. App. Lexis
5985 (6th Cir.), the court ruled that an officer who arrested a man for
disorderly conduct after he called the officer an ¡°SOB¡± and a ¡°flat slob¡±
was not entitled to qualified immunity from a federal civil rights claim. The
arrestee.s voice may not have been loud enough to be unreasonable, and the
officer.s decision to arrest him may have been motivated by retaliation against
the arrestee for exercising his First Amendment rights.
Similarly, in Duran
v. City of Douglas, Arizona, #89-15236, 904 F.2d 1372 (9th Cir. 1990), a federal
appeals court held that profanities and obscene gestures directed at ao
police officer by a car passenger were speech and conduct protected by the
First Amendment.
See also Nichols v. Chacon, #99-5180, 110 F. Supp. 2d 1099 (W.D. Ark.
2000), in which a federal trial court ruled that a motorist.s gesture of
displaying his middle finger to an officer driving by was protected First
Amendment speech. The officer was not entitled to qualified immunity and could
be held liable for arresting the motorist for disorderly conduct.
General
criticism of police, even if expressed in abusive terms, is generally protected
free speech. In Resek v. City of Huntington Beach, #01-56029, 41 Fed. Appx. 57
(9th Cir. 2002), the court found that a police officer did not act reasonably in
arresting a man for shouting abusive comments at officers and answering them
with sarcasm, which ¡°amounted to no more than criticism of the police¡± and did
not constitute either fighting words or incitement of others to imminent
unlawful violence.
See also, Johnson v. Campbell, #02-3580, 332 F.3d 199 (3rd
Cir. 2003), in which a federal appeals court granted judgment as a matter of law
to an African-American high school basketball coach arrested by a police officer
solely for calling him a ¡°son of a bitch.¡± The arrestee.s statement did not
constitute ¡°fighting words,¡± and were therefore protected by the First
Amendment.
In Greene v. Barber, #01-1247, 310 F.3d 889 (6th Cir. 2002), the
court held that an arrestee, in characterizing an officer as an ¡°asshole,¡± did
not say anything sufficient to place the statement outside the protection of the
First Amendment as ¡°fighting words.¡± Additionally, even if the officer had
probable cause to make an arrest for violation of the city.s civil disturbance
ordinance, there would be no justification for the arrest if the officer
actually was motivated by retaliation for the arrestee.s statements prior to the
arrest.
In Gulliford v. Pierce County, #96-35614, 136 F.3d 1345 (9th Cir.
1998), cert. denied, 1998 U.S. Lexis 4989, the court ruled that verbal protests
or challenges to the police are permitted, even if they knowingly hinder, delay
or obstruct the police. The appeals court ruled that, to be criminal, the words
must be fighting words.
305
Incitement of imminent lawless action was required in Spier v.
Elaesser, #C-l-01-054, 267 F. Supp. 2d 806 (S.D. Ohio 2003), before First
Amendment protection could be lost for harsh criticism of the police. The court
found that an arrestee.s chanting of words in protest of the police requirement
that persons seeking to attend a protest rally submit to a pat down search,
including ¡°two, four, six, eight, fuck the police state,¡± was constitutionally
protected speech under the First Amendment for which he could not face arrest
for disorderly conduct in the absence of any evidence that his words presented a
¡°clear and present danger¡± of a violent reaction by the crowd. The arresting
officer, however, was entitled to qualified immunity from liability, since he
believed that the arrestee was trying to incite the crowd, which had become
disorderly the previous day.
Mere distraction is insufficient for speech to
constitute interference with or obstructing an officer. In DeRosa v. Sheriff of
Collier County, Florida, #10-14046, 2011 U.S. App. Lexis 4057 (Unplub. 11th
Cir.), after a deputy stopped her husband.s car, in which she was a passenger,
and ticketed him for failing to dim its high beam lights, a woman called 911 to
express her fears of the deputy, who she described as ¡°shaking, agitated, and
nervous,¡± and requested that other officers meet the couple at a local gas
station, because the deputy had activated his lights and siren and was following
them. She had criticized him during the stop and been told to ¡°shut up.¡± At
the gas station, the deputy instructed another officer to arrest the woman for
obstructing an officer without violence. The other officer did so, grabbing her
arm as she climbed out of the vehicle, dragging her to his patrol car, pushing
her against the hood to handcuff her, and then shoving her inside. A federal
appeals court found that the deputy did not have probable cause to order the
woman.s arrest under these circumstances. Her criticisms of the deputy during
and after the traffic stop, even if distracting, did not incite others against,
interfere with, or impede the deputy from citing her husband for his traffic
infraction.ýïýïý
Similarly, in Copeland v. Locke, #09-2485, 613 F.3d 875 (8th Cir. 2010), a
police chief was not entitled to summary judgment in a false arrest lawsuit
filed by a man taken into custody for allegedly interfering with official police
conduct. The record in the case showed that the arrestee cursed at and
“distracted” the police chief, whose car was blocking access to his business.
This conduct did indicate that the arrestee intended to
Similarly, in Copeland v. Locke, #09-2485, 613 F.3d 875 (8th Cir. 2010), a
police chief was not entitled to summary judgment in a false arrest lawsuit
filed by a man taken into custody for allegedly interfering with official police
conduct. The record in the case showed that the arrestee cursed at and
¡°distracted¡± the police chief, whose car was blocking access to his business.
This conduct did indicate that the arrestee intended to
306
prevent the
chief from completing the traffic stop he was engaged in, but purely expressive
conduct, even if distracting, is protected under the First Amendment.
Arrests
based solely or largely on the content of speech critical of officers can lead
to federal civil rights liability. In Lowe v. Spears, #07-1497, 2007 U.S. App.
Lexis 29488 (Unpub. 4th Cir.), a police officer who allegedly arrested the
plaintiff for criticizing him for writing tickets, rather than for illegal
parking, was not entitled to qualified immunity in a lawsuit over alleged
violation of First Amendment rights. The officer was writing parking tickets,
and wrote one for the plaintiff, who tried to explain he was only parking on the
sidewalk temporarily in front of his apartment building to unload, and that he
was handicapped, with a handicap parking permit. When the plaintiff stepped into
the building and warned his employees working at the apartment building that
they should move their vehicles because the officer was writing tickets, the
officer allegedly stated that he was ¡°tired¡± of the plaintiff.s ¡°mouth,¡± so
that the plaintiff was going to jail, grabbing him by the arm and attempting to
pull him out of the building. Other officers arrived on the scene and told the
officer to leave the plaintiff alone. Making an arrest that was based entirely
on an arrestee.s speech opposing or questioning police actions violated the
First Amendment.
Conclusion Making inappropriate arrests of individuals for “contempt of
cop” in circumstances where courts will find their actions to be merely the
exercise of their First Amendment rights of free speech can be
counter-productive, both in terms of community relations and potential civil
liability. On the other hand, the right of free speech, which is part of the law
and guaranteed freedoms that law enforcement officers are sworn to
protect,
Resources The following are some useful resources related to the subject of
this article. Contempt of Cop. Wikipedia article. First Amendment. Case
summaries from AELE's Law Enforcement Liability Reporter. ¡°The Importance of
Privacy, Civil Rights, and Civil Liberties Protections in American Law
Enforcement and Public Safety.¡± a training video developed by the U.S.
Department of Justice.s Global Justice Information Sharing Initiative.s Criminal
Intelligence Coordinating
Council.õâ
