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Do You Have the Right to Flip Off a Cop?

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  • Do You Have the Right to Flip Off a Cop?

    From: Here

    David Hackbart was mad, and he wanted to show it, but he didn't think he would end up in federal court protecting his right to a rude gesture and demanding that the city of Pittsburgh stop violating the First Amendment rights of its residents.


    Hackbart, 34, was looking for a parking space on busy Murray Avenue in the Squirrel Hill neighborhood on April 10, 2006. Spotting one, he attempted to back into it, but the driver of the car behind him refused to back up and give him sufficient room. Hackbart responded in the classic way. "I stuck my hand out the window and gave him the finger to say 'Hey, jerk, thanks,' " says Hackbart. "That's all I was trying to say - 'Thanks, thanks a lot.' "


    At that moment, a voice rang out telling Hackbart not to make the rude gesture in public. "So I was like, How dare that person tell me? They obviously didn't see what happened. Who are they to tell me what to say?" he says. "So I flipped that person off. And then I looked, and it was a city of Pittsburgh cop in his car right next to me."


    That turned out to be police sergeant Brian Elledge, who happened to be passing in the other direction in his cruiser. Elledge whipped around and pulled Hackbart over, citing him under the state's disorderly-conduct law, which bans obscene language and gestures. And here's where the problem lies, says state American Civil Liberties Union (ACLU) legal director Witold (Vic) Walczak: the middle finger and equivalent swear words are not legally obscene. In fact, courts have consistently ruled that foul language is a constitutionally protected form of expression. A famous 1971 Supreme Court case upheld the right of a young man to enter the Los Angeles County Court House wearing a jacket emblazoned with the words "F___ the Draft." (Read about how disorderly conduct is often a cop's call.)


    "The law is clear that people have the constitutional right to use profanity, especially when it comes to government officials, because that is a form of political speech," Walczak says. "But despite that, we have police officers regularly misapplying the law to punish people who offend them - that's really what it comes down to." (Read a brief history of disorderly conduct.)


    U.S. District Judge David Cercone ruled in March that the citation, along with the $119.75 court costs imposed by a city court, was clearly unconstitutional. The question, however, is whether the city has a pattern of tolerating this kind of constitutional violation. The ACLU says it found 188 cases from 2005 to 2007 in which people were cited under similar circumstances, despite an entry in the police department's training manual making clear that vulgar speech is not illegal.


    The question was set to go to trial in Federal District Court last week, but the matter was delayed at the last moment while the two sides explored a settlement. The city's law department declined to comment on the case.


    The problem is not confined to Pittsburgh. In 2007, a woman in Scranton, Pa., was cited for yelling obscenities at an overflowing toilet in her home - a tirade overheard by her neighbor, an off-duty police officer. She was later acquitted on constitutional grounds, and the city paid her a $19,000 settlement. "We probably handle a dozen of these cases every year," Walczak says. "We're actually negotiating with the state police right now, trying to force them to change their training and written materials to make clear you can't do this."


    It is, of course, part of a larger question. The recent controversy over the arrest of historian Henry Louis Gates Jr. - who was charged with disorderly conduct in his home after police arrived to investigate an erroneous report of a burglary in progress - was cast in racial terms: a white officer distrusting a black homeowner. But Walczak says this issue seems to have more to do with a police officer being confronted by an angry and disrespectful person and turning disorderly-conduct laws into a "contempt of cop" law, as he puts it. "Frankly, I think having someone dropping the F-bomb is better than resisting arrest or taking a swipe at a police officer," Walczak says. "But what we're seeing too often is that police who are offended by a lack of respect, often manifested by profanity or cursing, will punish people for that." (Read Ta-Nehisi Coates on the Henry Louis Gates Jr. affair.)


    Elledge and the city police department have consistently refused to comment on the case. But Jim Pasco, executive director of the Fraternal Order of Police, says police officers are not out to systematically punish people who mouth off. "There is certainly no substitute for good judgment on the street," says Pasco, whose organization represents officers nationwide, including Pittsburgh, "and if in the officer's judgment, maintenance of order is going to be preserved by giving a citation or making an arrest, then the officer is going to use his judgment to make that arrest or issue that citation." (See pictures of Henry Louis Gates Jr.)


    Officers clearly have varying levels of tolerance for rudeness from the people they encounter, he says, but he expressed little sympathy for anyone making rude remarks to or gestures toward officers. "Police officers have better things to do than give people citations," he says. "And if people are doing things to distract police officers from doing those things, then they should be held accountable in some way."


    But Hackbart, a paralegal who learned about court rulings on vulgar language in a communications-law class, says police should not be able to punish people by issuing citations they know to be unconstitutional. Elledge "shouldn't be allowed to conduct himself like that with no repercussions," he says. "Does everybody have to go through this to defend themselves against a bogus charge?"



  • #2
    Although I disagree with many of the assertions in the article, the general answer to your question is "Yes." Of course, that is not always true. If when the officer gives you a lawful order and your response is to give him the finger, you are communicating forcefully that you are refusing to comply, which has consequences of its own.
    Facts do not cease to exist because they are ignored. -- Aldous Huxley
    Two things are infinite: the universe and human stupidity. -- Albert Einstein

    Comment


    • #3
      That turned out to be police sergeant Brian Elledge, who happened to be passing in the other direction in his cruiser. Elledge whipped around and pulled Hackbart over, citing him under the state's disorderly-conduct law, which bans obscene language and gestures.
      The sergeant cited him under their state law. It may not hold up down the road but as they say "we don't make 'em, we just enforce them".
      Disclaimer: The writer does not represent any organization, employer, entity or other individual. The first amendment protected views/commentary/opinions/satire expressed are those only of the writer. In the case of a sarcastic, facetious, nonsensical, stirring-the-pot, controversial or devil's advocate-type post, the views expressed may not even reflect those of the writer.

      Comment


      • #4
        What DAL wrote i the reason why ALL cops have have truly thick skins.

        Comment


        • #5
          Yes you can flip off a cop.
          It was ruled in Bucks County Pa back in the 90's. A woman did, was cited for it and convicted. She appealed and the DA said the cop had no right to sight her, free speech.
          The DA refused to assign anyone to prosecute the matter. Back then the DA would have to have been Alan Rubenstein. He was pro police.
          Case was dismissed. There was not an abundance of people flipping off cops in Pa after that.

          Comment


          • #6
            Yeah, sounds like the vague nature of the law is the problem, as it leaves open to interpretation the meaning of "obscene" or "vulgar."

            And it doesn't sound like this was a case of "can we flip off a cop" necessarily as "can we flip off ANYONE."
            If I tell you what I know, I'd have to kill you. Fortunately, I don't know much.

            Comment


            • #7
              Originally posted by BrickCop View Post
              The sergeant cited him under their state law. It may not hold up down the road but as they say "we don't make 'em, we just enforce them".
              In general, you are entitled to assume that the laws that you enforce are valid. However, once the law is determined to be invalid your enforcing it will be unreasonable and you will not be entitled to qualified immunity if sued for violating the person's civil rights.

              In this case, the D.A. or C.A. could have avoided these consequences by dismissing the citation before trial.

              I think that invalidity becomes clear only after there is a binding appellate decision on the issue, but I am not sure.
              Facts do not cease to exist because they are ignored. -- Aldous Huxley
              Two things are infinite: the universe and human stupidity. -- Albert Einstein

              Comment


              • #8
                LOL had a hitchhiker flip off my shift partner. He was told in no uncertain terms that if he did it again. my partner would stick it up his ***

                The hitchhiker complained to the Lt who after listening told him that Trooper ...........would probably do just that!
                "a band is blowing Dixie double four time You feel alright when you hear the music ring"


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                • #9
                  Originally posted by DAL View Post
                  In general, you are entitled to assume that the laws that you enforce are valid. However, once the law is determined to be invalid your enforcing it will be unreasonable and you will not be entitled to qualified immunity if sued for violating the person's civil rights.
                  I am making the assumption that the sergeant knew the law was indeed valid. As a vet cop I'm sure he gets the mandated law updates and in service training from his PD/state.

                  Or did you mean the sergeant's interpretation of the law?
                  Last edited by BrickCop; 09-15-2009, 11:30 PM.
                  Disclaimer: The writer does not represent any organization, employer, entity or other individual. The first amendment protected views/commentary/opinions/satire expressed are those only of the writer. In the case of a sarcastic, facetious, nonsensical, stirring-the-pot, controversial or devil's advocate-type post, the views expressed may not even reflect those of the writer.

                  Comment


                  • #10
                    Originally posted by DAL View Post
                    I think that invalidity becomes clear only after there is a binding appellate decision on the issue, but I am not sure.
                    Thats correct.

                    See 08-1105 in the 10th circuit.
                    http://www.ca10.uscourts.gov/opinions/08/08-1105.pdf

                    From the opinion:
                    In this 42 U.S.C. § 1983 action, the plaintiffs contend these stops violated
                    their clearly established Fourth Amendment right to be free from unreasonable
                    seizures. The district court denied the defendants’ request for qualified
                    immunity, and the defendants brought this interlocutory appeal.
                    Because these traffic stops outside municipal boundaries did not violate
                    clearly established Fourth Amendment law at the time of the violations, we
                    REVERSE.

                    ...

                    “Although Plaintiff does not need to find a
                    case with an identical factual situation, he still must show legal authority which makes it ‘apparent’ that ‘in the light of pre-existing law’ a reasonable official . . . would have known that [the conduct in question violated the constitutional right at issue].” Id. (citation omitted). Therefore, for a right to be clearly established we look for “Supreme Court or Tenth Circuit precedent on point,” or clearly established weight of authority from other courts that “found the law to be as the plaintiff maintains.” Cordova v. Aragon, 569 F.3d 1183, 1192 (10th Cir. 2009).
                    Last edited by Oddball-Six; 09-15-2009, 11:28 PM.
                    -------------------------------
                    You can't fix stupid, but you can arrest it. - LINY

                    "Their house, their rules. And when they get robbed, they can call 911 and ask them to send a hippie to protect them." - ateamer

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                    • #11
                      Originally posted by Oddball-Six View Post
                      Thats correct.

                      See 08-1105 in the 10th circuit.

                      From the opinion:
                      In this 42 U.S.C. § 1983 action, the plaintiffs contend these stops violated
                      their clearly established Fourth Amendment right to be free from unreasonable
                      seizures. The district court denied the defendants’ request for qualified
                      immunity, and the defendants brought this interlocutory appeal.
                      Because these traffic stops outside municipal boundaries did not violate
                      clearly established Fourth Amendment law at the time of the violations, we
                      REVERSE.

                      ...

                      “Although Plaintiff does not need to find a
                      case with an identical factual situation, he still must show legal authority which makes it ‘apparent’ that ‘in the light of pre-existing law’ a reasonable official . . . would have known that [the conduct in question violated the constitutional right at issue].” Id. (citation omitted). Therefore, for a right to be clearly established we look for “Supreme Court or Tenth Circuit precedent on point,” or clearly established weight of authority from other courts that “found the law to be as the plaintiff maintains.” Cordova v. Aragon, 569 F.3d 1183, 1192 (10th Cir. 2009).
                      The standard as articulated here is broader than the one I articulated because it includes "clearly established weight of authority from other courts." And I know that the different federal courts of appeals have different standards as a matter of fact regardless of how they articulate them. The Ninth Circuit is very quick to find a legal principle established even when the result has to be inferred from other decisions dealing only with related principles.

                      However, the primary reason I hedged is that we are dealing here with a state statute; the standard could be articulated differently. Furthermore, the import of decisions in other courts may be harder to discern, because state courts do not always interpret essentially identical statutes in the same way. However, I think that in this case, the issue is pretty clear, and a police officer should know that.
                      Facts do not cease to exist because they are ignored. -- Aldous Huxley
                      Two things are infinite: the universe and human stupidity. -- Albert Einstein

                      Comment


                      • #12
                        Legal? Yeah. Smart? No. You'd probably want to be sure you're doing everything else just exactly right in case the cop takes offense.

                        Carry it to far and you can end up falling under a disorderly conduct or a provocation charge.
                        I miss you, Dave.
                        http://www.odmp.org/officer/20669-of...david-s.-moore

                        Comment


                        • #13
                          Originally posted by CruiserClass View Post
                          Carry it to far and you can end up falling under a disorderly conduct or a provocation charge.
                          True. However, "disorderly conduct" statutes often have been found unconstitutional or so severely limited by appellate decision that their meaning bears little resemblance to the text of the statute.
                          Facts do not cease to exist because they are ignored. -- Aldous Huxley
                          Two things are infinite: the universe and human stupidity. -- Albert Einstein

                          Comment


                          • #14
                            In Montana, flipping of the pooleece is disorderly conduct. It has been to the MT supreme court and they affirmed the conviction based on cops are people too and it ****es them off as well.

                            Comment


                            • #15
                              Originally posted by ArmouredSainT View Post
                              In Montana, flipping of the pooleece is disorderly conduct. It has been to the MT supreme court and they affirmed the conviction based on cops are people too and it ****es them off as well.
                              I doubt that the Ninth Circuit would agree, and Montana is in the Ninth Circuit.
                              Facts do not cease to exist because they are ignored. -- Aldous Huxley
                              Two things are infinite: the universe and human stupidity. -- Albert Einstein

                              Comment

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