Wednesday, February 13, 2013

Contempt of cop may be really dumb but it's legal

The federal 9th Circuit Court of Appeals just handed down a ruling that insulting a copy, aka, "contempt of cop" is Constitutionally protected speech in the Ford v. City of Yakima case 02/08/2013. Bob Egelko blogs about it at in Sassing a cop may be unwise, but it’s constitutionally protected 02/13/2013.

From the opinion: "Ford has alleged facts that would establish a violation of his clearly established First Amendment right to be free from police action motivated by retaliatory animus, even if probable cause existed for that action."

The opinion recounts the kind of contempt-of-cop which in this case made the cops decide it was okay to break the law:

Urlacher then returned to his patrol car and checked Ford’s driver’s license for warrants. While doing so, he told another officer, “I think I’m going to arrest him for [a] city noise ordinance violation right now. He might only get a ticket if he cooperates. But with that attitude, he’s going to get cuffed.” The officer then returned to Ford’s car and, with the assistance of a backup officer, handcuffed Ford.

An exchange then ensued in which Urlacher stated: 1) "Stop running the mouth and listen"; 2) "If you talk over me, you are going to go to jail, sir. Do not talk over me"; 3) “If you cooperate, I may let you go with a ticket today. If you run your mouth, I will book you in jail for it. Yes, I will, and I will tow your car"; 4) "If you cooperate and shut your mouth, I'll give you a ticket and you can go."
This is pretty telling about the one cop's attitude toward the citizens he's supposedly protecting:

Ford invoked his right to free speech. Urlacher replied:

I have the freedom to take you to jail, too. And that’s what’s going to happen. ... You exercise [your freedom of speech] all you want, okay? If you just cooperate and treat the police like humans, we’ll treat you like that. But when you act like that, like an animal, you’ve got to get treated that way, you know.

Youre going to jail for numerous reasons. The crime you’re going to jail for is the city noise ordinance. A lot of times we tend to cite and release people for that or we give warnings. However ... you acted a fool ... and we have discretion whether we can book or release you. You talked yourself — your mouth and your attitude talked you into jail. Yes, it did.
[italics in original]
The opinion describes why such an attitude by the police was unacceptable before the law:

A reasonable officer would have understood that he did not automatically possess the authority to book and jail an individual upon conducting a lawful arrest supported by probable cause. Washington law clearly enumerates the limited factors that would allow a police officer to book and jail an individual who has been arrested for a misdemeanor. ... A reasonable officer would have been aware of the law governing his ability to book and jail an individual he lawfully has arrested. Moreover, a reasonable officer would have been aware that Washington law explicitly states that its rules "shall not be construed to affect or derogate from the constitutional rights of any defendant." .... Thus, a reasonable police officer would have understood that he could not exercise his discretion to book an individual in retaliation for that individual’s First Amendment activity. Finally, Officer Urlache'’s statements indicate that he was, in fact, aware of his discretion to book an individual he has arrested: "I have the freedom to take you to jail ... we have discretion whether we can book or release you." He surely was aware that his discretion was subject to constitutional limits. Because the law concerning the right in question was clearly established at the time of Ford’s arrest, the officers are not entitled to qualified immunity. [my emphasis]
The court gives a summary of the basic Constitutional idea:

The first issue is whether the facts viewed in the light most favorable to Ford show a violation of his rights. “[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers." City of Houston v. Hill, 482 U.S. 451, 461 (1987). While an individual’s critical comments may be "provocative and challenging," they are “nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” Id. (quoting Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949)). In fact, "[t]he 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." Id. at 462–63. [my emphasis in bold]

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