The First Amendment and Insulting Cops

Monday, July 27th, 2009

Andrew Sullivan finds an eloquent opinion from federal appeals court judge Alex Kozinski. The plaintiff was suing under federal civil rights statutes after a police officer stopped and arrested him, apparently in retaliation for a series of obscenities the plaintiff had earlier directed at the cop. Kozinski writes:

Defendant relies heavily on the fact that Duran was making obscene gestures toward him and yelling profanities in Spanish while traveling along a rural Arizona highway. We cannot, of course, condone Duran’s conduct; it was boorish, crass and, initially at least, unjustified. Our hard-working law enforcement officers surely deserve better treatment from members of the public. But disgraceful as Duran’s behavior may have been, it was not illegal; criticism of the police is not a crime.

[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers…

The freedom of individuals to oppose or challenge police action verbally without thereby risking arrest is one important characteristic by which we distinguish ourselves from a police state…

Thus, while police, no less than anyone else, may resent having obscene words and gestures directed at them, they may not exercise the awesome power at their disposal to punish individuals for conduct that is not merely lawful, but protected by the First Amendment.

Inarticulate and crude as Duran’s conduct may have been, it represented an expression of disapproval toward a police officer with whom he had just had a run-in. As such, it fell squarely within the protective umbrella of the First Amendment and any action to punish or deter such speech–such as stopping or hassling the speaker–is categorically prohibited by the Constitution…

No matter how peculiar, abrasive, unruly or distasteful a person’s conduct may be, it cannot justify a police stop unless it suggests that some specific crime has been, or is about to be, committed, or that there is an imminent danger to persons or property.

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122 Responses to “The First Amendment and Insulting Cops”

  1. #1 |  Marty | 

    Dave-

    You nailed it-

    ‘As naive as it sounds, a cop’s first reaction should be to defuse the situation by trying to be a friend rather than becoming an adversary just looking for a way to fuck them up for their rude insulting attitude.’

    cops have tons of subtle ways to deal with assholes. escalating situations is how people get hurt. This guy could’ve walked away and Gates would’ve been left stirring his own shit. smart cops get even with assholes without exposing themselves. they call the health dept to report ‘rats behind a house’ to create headaches. they have a buddy bust you for speeding. they issue ‘ghost tickets’ and the asshole ends up with a warrant because he didn’t pay his fine. date a cop’s ex at your own risk!

    these tactics aren’t fantastic, but they make more sense to me than escalating a volatile situation. anyone who responds to a lot of 911 calls has been in tight spots. medics talk about ‘being armed at least as well as our patients’, firemen are on the lookout for meth labs built under waterbed pedestals, and cops are supposed to hold it all together- direct traffic, keep medics from being attacked, and watch for arsonists trying to harm firefighters. A great cop is an unbelievable asset. Great cops focus on de-escalating situations- not shooting dogs, getting in useless pissing matches with high-strung people, or trying to set a dept record for tickets in a two hour period.

  2. #2 |  omar | 

    they call the health dept to report ‘rats behind a house’ to create headaches.

    Any public official exacting personal revenge by abusing his power should be thrown in jail, hanged. It’s the lowest of the low form of corruption. I’d rather see a cop take a bribe.

    I thought these people were supposed to be heros. WTF kind of hero goes around getting revenge on people (creating false warrants!) who don’t give him his due?

  3. #3 |  fwb | 

    The FIRST Amendment DOES NOT APPLY to government (police) at the State level. The First Amendment ONLY applies to Congress regardless of what everyone wants to believe.

    Now, the Courts have created out of thin air a similar provision under the 14th Amendment extending the First Amendment to the States. But that extension is not verbatim from the First and leaves numerous holes for those in power to regulate speech, the press, etc.

    If this case was filed on First Amendment grounds and If the judge in this case know any SH-T, he/she should have thrown the case out because the First Amendment DOES NOT APPLY. The Framers NEVER wanted to use the First Amendment to stop the States from controlling speech, the press, religion, etc. The published statements that occurred during the discussion of the First Amendment prove that the states were left to their own constitutions regarding speech, press, religion, etc. So the fact that the case was brought under the First, and decided under the First are further evidence of the stupidity of the people of this Union.

    Feckin ejits!

  4. #4 |  JS | 

    MacK lol no problem brother I’m not a dudette!

  5. #5 |  JS | 

    “I’d like to point out one more thing, if it has come down to me to be the arbiter of good taste, judgment, and class then some of you have some serious issues.”

    lol post of the day Tokin!

  6. #6 |  Yizmo Gizmo | 

    “The FIRST Amendment DOES NOT APPLY to government (police) at the State level. The First Amendment ONLY applies to Congress regardless of what everyone wants to believe. ”

    What are you saying, that if you post a pamphlet
    criticizing a cop or public official, or city policy, local cops can legally imprison you?
    Or that speech uttered by police is not protected?
    I’m not getting it.

  7. #7 |  LibCop | 

    As much as some of y’all might not like it, I think Tonkin has a point. As a Cop, I know it doesn’t matter what people do so long as it’s not criminally detrimental to others, so let them say to and about me what they will, it’s their right.

    But as a black man, a citizen and a professional, I know I have a personal responsibility regarding my own behavior, I know what i do has an impact on how others percieve not only me, but everyone with the same color skin (and prefessionally , everyone with the same color uniform).

    Gates did not fullfil his (wholly personal) obligation as a black man to other black people. He cried wolf, and becuse of that we’ll have a harder time dealing with REAL discrimination and racial profiling which does occur in this society.

  8. #8 |  LibCop | 

    Oh and excus the spelling, my keyboard fails, time for a new one.

  9. #9 |  Marty | 

    #99 | omar –

    ‘I thought these people were supposed to be heros. WTF kind of hero goes around getting revenge on people (creating false warrants!) who don’t give him his due?’

    the self-delusional bastards who think they’re heroes or should be afforded special behavior are the ones who created the problem. heroes are normal people put in extraordinary situations and they figure out a way to deal with it. sometimes it does happen to be a cop, but being a hero isn’t in their job description.

    you walk around being an asshole to people, you will face repercussions. everyone has access to different ways of dealing. walk into an emergency room and be an asshole to the triage nurse- you better pack a lunch before you’re seen. be an asshole to a paramedic and you could find yourself strapped to a backboard with a couple of large bore IVs for ‘precautions’. be an asshole to a fire marshall and your business may have issues. be an asshole to a waitress and your dining experience will not be ideal.

    everyone has a special way of dealing with special assholes. I’m not advocating getting even with anyone, but I know it happens. anyone can call the health dept and say they saw a rat behind someone’s house. anyone can accuse someone of being a drug dealer and slander them. I think the possibility of being screwed over by anyone is a great incentive for many people to not be assholes. it’s a subtle art to figure out where the line is…

  10. #10 |  Marty | 

    ‘The FIRST Amendment DOES NOT APPLY to government (police) at the State level. The First Amendment ONLY applies to Congress regardless of what everyone wants to believe.’

    this flies in the face of everything I’ve read. where are you coming up with this?

  11. #11 |  Les | 

    fwb,

    You might have had something like a (very grumpy, arrogant) point 50 years ago. But now there is plenty of legal precedent for claiming protection from state law by the Bill of Rights.

    Whether or not it’s what the Founders intended is irrelevant. I’m a big fan of the Founders, but they never intended of lot of stuff that they probably should have.

  12. #12 |  Les | 

    Regarding the 14th Amendment:

    http://www.usconstitution.net/consttop_bor.html

  13. #13 |  Tokin42 | 

    One more rant…

    People want to put the blame on legislatures and cops for the incredible amount of laws out there when the reason behind those laws are people thinking they’re entitled to be assholes. Meaning, if people weren’t doing it, there wouldn’t be a law against it. (old joke: of course middle aged men want to diddle your teen daughter. if not there wouldn’t be a law against it.)

    voters put people in office then harangue them to do something when our neighbors behave badly. our society decided long ago that it was easier to turn to the law to settle disputes than to have individuals make on-the-spot corrections. If we’re going to heap scorn on cops/legislatures we better put the same amount of energy slapping down the assholes who start the mess to begin with.

  14. #14 |  Chet | 

    Gates did not fullfil his (wholly personal) obligation as a black man to other black people. He cried wolf

    No, he really didn’t. A cop was told “two men with suitcases, maybe it’s their own home.” What he says he heard was “two black men with backpacks, maybe breaking in.”

    If that’s not racist, and racial profiling to boot, then I’m black. Gates didn’t “cry wolf”, he accurately apprehended racism and called the cop on it – and the cop responded with an arrest on fabricated charges.

    I’m sure that some of the cop’s best friends are black, or whatever. So what?

  15. #15 |  Nick | 

    @ #53,

    The reason that police can do DUI checkpoints is that the Supreme Court decided that DUI was such a giant problem that it necessitated an exception to normal 4th amendment rules. Normal criminal conduct ( ie murder, theft, assault ) is not important enough to over ride your 4th amendment rights, but thanks to bogus numbers provided by MAD, DUI is considered different.

  16. #16 |  PW | 

    “I’m sure that some of the cop’s best friends are black, or whatever. So what?”

    And don’t forget! Officer Crowley once performed CPR on a black basketball player 16 years ago. That’s simply gotta prove he’s not racist, because we all know that a racist would NEVER perform CPR on a dying black man under any circumstances.

  17. #17 |  Chris in AL | 

    I got to give props to my state of residency on this one. Other cops may be shooting dogs and tasering children, but Alabama calls that amateur hour.

    You’re not a real badass cop until you are pepper spraying and tasering the deaf and mentally disabled. Why you ask? For not obeying verbal commands.

    You must respect our AUTHORITAH!

    http://www.suntimes.com/news/nation/1688422,w-police-taser-disabled-deaf-man-072809.article

  18. #18 |  Chris in AL | 

    Got the link from Fark, BTW.

    This is worse than tasering the old lady on the side of the road. Tasers should be taken away from these assholes. They no longer even try to handle a situation with their brain.

  19. #19 |  Dave Krueger | 

    #113 Tokin42

    voters put people in office then harangue them to do something when our neighbors behave badly. our society decided long ago that it was easier to turn to the law to settle disputes than to have individuals make on-the-spot corrections

    That’s a bunch of hooey. Legislatures don’t pay any attention to voters.

    Legislatures enact laws and people think, “Well, that’s nice. That must have been a serious problem if a law had to be passed to solve it. People must have been really raising a lot of shit about that. Nice to know the legislature listens to people.”

    All that really happened was that a bunch of legislators just repaid a campaign contribution with a favor and labeled it “The Kindness to Children and Cute Puppies Act”.

  20. #20 |  FREE HUGS for Cops | 

    I never needed a cop! EVER!! The role of the police has never been to fight crime and preserve justice, it is to maintain social control and to ensure the protection of property. A little dissent is healthy for everyone, especially for those who carry around guns, but the best way to fuck with those assholes is to be so nice and kind that they think you are crazy and harmless. The cops can’t beat you unless you first hate them, then, and only then you really defeat yourself. What can they charge you with,,, being too kind, too friendly? it is great to see how uncomfortable they get when they just can’t figure you out… ACAB!!!!

  21. #21 |  Matt I. | 

    Just a little aside as to the whole ‘First Amendment not applying to states’.

    Believe it or not, this used to be true and as the guy said, originally none of the bill of rights applied to the states, only to the federal government, until the Supreme Court interpreted some elements as applicapble via the 14th amendment. More specifically it was Gitlow v. New York (in 1925) that mandated the First Amendment to the states as well. Of course – today more than ever – having the bill of rights not apply to state or local governments is the same as not having them at all.

  22. #22 |  KhhinCA | 

    #113

    Tokin42

    I dont need legislation to tell me that pedophilia is wrong.
    just like I dont need the Ten Commandmant to tell me not to kill somebody.