Like It Or Not, These Are Your Rights

Radley Balko presents this find by Andrew Sullivan, from a 1990 decision by 9th Circuit Judge Alex Kozinski.  Sullivan repeated it. Balko repeated it.  I repeat it too. 

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.

Some people possessed of less than thoughtful rightwing political ideology think this is some silly liberal construct.  Others suggest, as Lou Dobbs did last night, that we have elevated the rights of jerks at the expense of the rights of our police, who are there to protect and serve us. 

But this is no liberal plot, as Judge Kozinksi has yet to make it to any of the clubhouse meetings, and wouldn’t get in anyway since he doesn’t know the secret handshake.  Dobbs, whose stint on CNN only makes sense in light of the fact that Rick Sanchez is on the air, is confused as always.  And citizens retain those rights they have not given up to the government.

This cannot be made clear enough: Hurting a police officer feelings by saying mean things to him, being uncooperative, even belligerent, making obscene gestures, berating the officer, even dressing his mother in imaginary army boots, is not a crime.  It’s not necessarily the smartest thing to do, but it is not a crime.  It’s not.  No, it’s not.  It’s just not a crime.

And you officers reading this (and I know you do), suck it up. 

19 thoughts on “Like It Or Not, These Are Your Rights

  1. Ken

    Others suggest, as Lou Dobbs did last night, that we have elevated the rights of jerks at the expense of the rights of our police, who are there to protect and serve us.

    This, of course, presupposes a right not to be offended, a right not to have your feelings hurt.

    Thus this particular group of police-supporters find themselves in league with, for instance, the folks who support “defamation of religion” laws that would criminalize saying mean things about Islam.

    The censorious mind makes strange bedfellows.

  2. SHG

    Yup.  But it’s not a brotherhood of ideation, just convenience.  And they never remember each others’ birthdays.

  3. Windypundit

    No Lou, we haven’t. That’s just plain wrong: Both jerks and police have the right to angrily say abrasive and abusive things to other people. Neither has the right to subdue and restrain other people without a good legal reason. It seems straightforward to me. I guess that’s why it’s so hard to argue it…

  4. JKB

    Of course, you’re not charged with offending an officer, you are charged with one of the myriad of other crimes you’re unaware of but the officer knows the elements of. You’re disrupted even if the charges are dropped before you see a judge.

    Now if you getting arrested anyway and still offend the officer’s sensibilities, you get extra charges that won’t remain just to increase your bond and the cost to you of arranging that bond.

  5. Rick Horowitz

    And why, I wonder, is it okay for police officers to act disrespectfully toward non-law-enforcement citizens on a daily basis, but Dobbs and others complain about people being allowed to exercise their constitutional rights to return the favor?

    Explain that one, Dobbs!

  6. Jdog

    Sheesh. When I’m made King — it’s only a matter of time — there will be Royal Penalties inflicted upon the persons of those of my subjects who show disrespect for my minions, and those minions who overstep their bounds in inflicted said penalties will be flayed, as who doesn’t like flayed minion?

    Until then, maybe it’d be a good idea if a lot of folks, including Lou Dobbs, get with the present program: people have rights. Even those who Dobbs — or even I — think, correctly, are jerks.

  7. Tommy Justice

    The other day I sent the link to this article to all my friends who keep asking my opinion of this matter as the real learning moment.

    For some reason, the idea of contempt of cops being a crime is the common patter heard from the good little boys and girls that the American citizenry have become? What happened to the Question Authority generation?

    Thirteen years ago I sat on an six-person jury in Middlesex County — an OUI trial, the arresting dept. was the Cambridge Police. The jury broke down as three men, three women, as did our initial vote on guilt (3 gals G, 3 guys NG). At trial we watched a video of the defendant in the Cambridge Police Dept. The three women all agreed that the defendant must have been drunk because he “talked back to the police” and “kept asking them questions and talking back to them instead of following their orders.” Whereas the men on the jury, myself included, thought nothing of what he had said or how he had acted towards the cops on the video. We saw him as merely asserting his rights and asking intelligent questions, like why he can’t call his lawyer before deciding whether or not to take the breathalyzer (he declined, and since Mass. law allows this evidence to be excluded it was risky for the lawyer to put it in). Anyway, after two days of deliberating the verdict was NG.

    But I was always struck by the deference the women felt citizens should show cops, I guess being a lawyer and having been raised by a lawyer, I had a poor role model when it comes to kissing cop fanny.

    That said, do you still think Wendy “look at me” Murphy is hot? She’s been trying her damnedest to hog the media spotlight on behalf of her “client”, the woman who placed the 911 call(they can’t be paying her money, and this is media-hog behavior of the worst sort), but to these old eyes her botox frozen face looks like something out of a 1950’s horror movie.

  8. SHG

    I am so glad you brought up my sweetheart, Wendy Murphy.  So Whelan was a straight shooter in every way.  She was calm, accurate, not at all racist by any stretch of the imagination.  She never said what Sgt. Crowley, conveniently and post hoc claims she said.

    So how, of all the lawyers in all the world, did she end up with Wendy Murphy as her mouthpiece?  Why would Whelan do something so mind-bogglingly stupid as to allow Murhpy to be her lawyer, subjecting her claims to needless doubt?  But  Wendy Murphy is still hot, hot, hot.

  9. TKE

    Does this same freedom of speech hold in a courtroom? Can you show the same degree of disrespect to a judge?

  10. SHG

    Those are fascinating questions, which frame an equally fascinating point.  Of course not, but why not? 

    Certainly, a judge has the authority to control decorum in his courtroom for the orderly conduct of business.  But why can someone say to a judge, calmly and in deferential tone, upon  hearing a particularly thoughtful decision, “With all due respect, Your Honor, your decisions reflects the intelligence of a gnat in its formative years searching for a pile of feces in which to live out its days.”  Or, during the down time, when no business is being conducted per se, remark aloud, “You ugly and you dress funny,” assuming the judge to be from New Jersey.

    Why not, in light of the law regarding police officers?

  11. Josh

    Attorney ethics rules could come into play, even with decorous comments. You can’t say things that are substantially likely to prejudice the proceedings, and venting one’s spleen as in your example above could easily be a failure of the duty of competent representation.

  12. SHG

    But if it’s not the attorney speaking, but the defendant?  Does the duty to show the court respect, and the judge’s authority to enforce it, stem only from attorney disciplinary rules?

  13. Josh

    I think so, and (most) defendants aren’t subject to those. However, I’m guessing that reviewing courts would give judges a lot of leeway in determining what is and isn’t proper decorum in their courts.

  14. SHG

    And therein lies the problem, since judges can impose summary contempt for disrespectful conduct toward the court by a defendant or witness.  Why should it be unlawful to be disrespectful to a judge, but not a police officer?  Attorney disciplinary rules obviously don’t apply, and decorum isn’t an adequate explanation, since decorum in the courtroom isn’t any different than obedience to a cop in the performance of his duty (both of which need to be capable of doing their job without annoyance), and saying something offensive to a judge doesn’t necessarily implicate decorum at all.  One can very nicely, in sweet dulcet tones, tell a judge to suck moose kidneys, “with all due respect.”

  15. Rick Horowitz

    Unless one is obvious about how one feels about the judges, many of them are probably too dense to understand when they’ve been disrespected anyway. It’s the same lack of perception that makes it impossible for them to recognize the difference between being a judge and being a prosecutor.

    And, if one is obvious about it, then ’tis the attorney who isn’t too bright. 😉

  16. NTK

    Because with the police you are free to say what you like but in the courtroom there is no freedom of speech. Defendants can’t speak when they want, lawyers can’t even look disrespectful etc. There is a process and one authority to guide it.

  17. TKE

    Well, then. Do you have the same freedom of speech with your Congressman or U.S. Senator? What do you think would happen if you behaved the way Professor Gates allegedly behaved while you were visiting your representative at the U.S. Capital? Do you think the police might arrest you? Or how about if you behaved that way at a campaign stop where a presidential candidate was speaking. Do you think the police might taser you and drag you away? It seems that freedom of speech is okay unless it ruffles the feathers of the powerful.

  18. SHG

    Now you’re getting into a different area.  If I was sitting with my Senator in his/her office and told them they stunk, I don’t imagine there would be any problem.  That’s the epitome of free political speech.  But if I was to disrupt the Senate chambers, then it’s a different situation, as I would be intentionally interfering with its processes.  Stick with the judge comparison. I think you’ve got a much better point there.

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