Prickett: What Do You Mean I Can’t Arrest Someone For Political Speech?

Ed. Note: This is a guest post by Fort Worth, Texas, criminal defense lawyer Greg Prickett.[1]

Every time I think I’ve seen the dumbest thing a cop can do, all I have to do is wait and they will prove me wrong. Sheriff Troy Nehls is apparently upset at the political speech of one of the citizens of his good county, and he intends to put a stop to it.

On Wednesday, he posted the message below on Facebook, and it immediately went viral. In addition to the “offensive” words that are blacked out, there is also a drawing of a middle finger in the center of the F**K.

Sheriff Nehls is an elected Republican in Fort Bend County, Texas, which is just to the southwest of Houston, Texas. The county overwhelmingly voted for the Clinton-Kaine ticket over the Trump-Pence ticket in the presidential election, but the county is generally Republican.[2] So there’s a disconnect between the county citizens and the elected officials, at least as far as national politics are concerned.

Sheriff Nehls is apparently offended by the window sticker, but he also hasn’t tried very hard to find the truck. It took a local news station less than 24 hours to find the owner, Karen Fonseca. Fonseca told ABC-13 in Houston that she put up the sticker about 11 months ago to voice her family’s disapproval of President Trump.

 

Sheriff, that’s political speech, and it’s protected speech. You don’t get to silence it because you don’t like it, or even because it offends you, the District Attorney, or anyone else. The Disorderly Conduct[3] statute in Texas is very clear on this.

You can charge someone with Disorderly Conduct if “the language by its very utterance tends to incite an immediate breach of the peace,” or if the “display tends to incite an immediate breach of the peace…”  That hasn’t happened here. If Fonseca and her family have been driving around for almost a year and there have been no fights, no disturbances, no riots or so forth, you are not going to be able to prove that there was a danger of an “immediate breach of the peace.”

What you may have, instead, is another crime, a much more serious crime, being threatened by Sheriff Nehls. If Nehls goes through with his threat, it could very well meet the elements of the offense of Official Oppression,[4] which states:

(a) A public servant acting under color of his office or employment commits an offense if he:

(1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful;

(2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful…

So if Nehls is trying to shut Fonseca up, Nehls should be subject to prosecution for violating Fonseca’s rights. He won’t be, but he should. In any event, Nehls immediately drew backlash from his comments on Facebook, so he did what all cops do—he held a press conference and doubled down on his bet.

Nehls stated that the language was “fighting words.” No, really, he said that, even though there hasn’t been a problem in the year the truck has been on the roads of Fort Bend County. Nehls did give lip service to the 1971 Supreme Court decision[5] that stated that a jacket in a courtroom that bore the message “F**k the Draft” did not disturb the peace or lead to violence, but still wants to get the message changed.

Thankfully, the ACLU immediately jumped on this (along with over 5,000 comments on the Facebook post).

And the ACLU is right. You can’t prosecute speech because it contains offensive language. But they are missing the bigger point: you cannot shut down political speech because it is directed at your political party and is offensive. You cannot use the power of an elected law enforcement office to stifle speech you don’t like. You don’t get to wrap yourself in a flag and pretend that you’re protecting the community, or ludicrously, that you’re trying to protect Fonseca from an injury that she hasn’t suffered in almost a year.

Nehls, who is eyeing a run for a seat in Congress in 2018, may just be looking for ways to get his name in the news, to build up a potential campaign. Or, he could just be an idiot who doesn’t understand the Constitution he swore to protect. In either case, his actions indicate problems with his leadership.

[1] Greg is a former police officer and supervisor who went to law school, hung out a shingle, and now practices criminal defense and family law in Fort Worth, Texas.

[2] One County Commissioner and one Justice of the Peace are Democrats. Everyone else is a Republican.

[3] Texas Penal Code, § 42.01.

[4] Texas Penal Code, § 39.03.

[5] Cohen v. California, 403 U.S. 15 (1971).

16 comments on “Prickett: What Do You Mean I Can’t Arrest Someone For Political Speech?

  1. David

    I’m originally from Fort Bend county, and for years we had Tom Delay as our congressman. So it is no surprise that they would elect this asshat, for sheriff or to Congress in the future.

  2. DaveL

    It sounds like their prosecutor is, like the sheriff himself, an abject moron. The part that reads “Our prosecutor has informed us she would gladly accept Disorderly Conduct charges” should read “I asked our prosecutor about charges and she came at me with a letter opener”.

    1. Ben W

      KHOU 11 News reports that they contacted the Fort Bend District Attorney: “he says the Sheriff never consulted him before posting the suggestion the driver may be charged with disorderly conduct.
      He made it clear his office would not accept charges against that driver simply because of the profanity and message on the truck. “

  3. Mike Paar

    The DA is denying that told Nehls he would accept charges. Indeed, he claims the sheriff is lying and that he wasn’t even consulted. [Ed. Note: Link deleted per rules.]

  4. wilbur

    Mr. Prickett, it would seem very anomalous that a county would be generally Republican oriented and then vote “overwhelmingly” for Clinton in 2016. Any accounting for this?

    1. Greg Prickett

      Yes, two. First, gerrymandering. The Houston area has a tremendous amount of blue-collar, union workers and has a large Democrat contingent. Second, they didn’t like Trump.

  5. Fubar

    Sheriff Troy Nehls is apparently upset at the political speech of one of the citizens of his good county, and he intends to put a stop to it. …

    Sheriff Nehls is an elected Republican in Fort Bend County, Texas, which is just to the southwest of Houston, Texas.

    Message in a ancient bottle, recently discovered in the Brazos river:

    I sailed wine dark seas as a boy,
    Saw a trireme and bellowed “Ahoy”.
    On its stern (the rear end)
    Was a note for Fort Bend,
    Emblazoned in boldface: “Sack Troy!”

  6. Greg Prickett

    UPDATE: The owner of the truck was arrested on an outstanding felony warrant for Fraudulent Use or Possession of Identifying Information, a state jail felony (up to 2 years).

    You know, if you are wanted on warrants, it is usually not a good idea to flip off the police, in a manner of speaking.

  7. M. Kase

    “Nehls, who is eyeing a run for a seat in Congress in 2018, may just be looking for ways to get his name in the news, to build up a potential campaign. Or, he could just be an idiot who doesn’t understand the Constitution he swore to protect. ”

    I’m fairly sure that the second option is a precondition to get into Congress these days.

  8. j a higginbotham

    “The owner of the truck with a “F (expletive) Trump and f (expletive) you for voting for him” sticker has been arrested for an outstanding warrant out of Rosenberg.

    Karen Fonseca was arrested for an outstanding warrant from August. Records show she was accused of fraud. A spokeswoman for the Fort Bend County Sheriff’s says they received a tip about the warrant. Fonseca’s husband, Mike Fonseca, says she was arrested at their home in Stafford in front of her 6-year-old daughter and he questions the timing.

    Fonseca’s bond is set at $1500 and is expected to be released sometime Thursday night”

    1. SHG Post author

      It’s always interesting to see who wants so badly to be the guy with the new info that he doesn’t read the comments before he starts typing.

  9. Grey Ghost

    I wish more churchgoing grandmothers would get their Buicks decorated like Fonseca’s truck. It seems like every time a good rousing case about political speech comes up, where some Neanderthal cop comes out of his cave with club at the ready, the speaker has some sort of outstanding warrant or other issue that allows most people to discount what she says with “Oh, one of THOSE sorts of people.”

    It’s a distinction beyond a casual perusal of the facts to realize that she can and perhaps should be arrested on the warrant, but that her truck sticker is still protected political speech – a distinction I’d bet many won’t make. Net chilling effect.

  10. Frank

    They found an open warrant and arrested her anyway. Pro-tip: If you’re going to piss off people with guns, make sure you’re clean.

Comments are closed.