Don’t yell at me; don’t call me names;
Don’t tell me I’m a racist pig;
Don’t push me—I’m not playing games—
Resist and you’re in trouble big!
Don’t raise your voice; don’t flip the bird;
Keep quiet, and we’ll get along;
I’m honest—you can trust my word—
Except that I’m completely wrong
You may have seen the opinion piece in the Washington Post: “I’m a cop. If you don’t want to get hurt, don’t challenge me.” It’s chock-full of good advice for people living in a police state:
Even though it might sound harsh and impolitic, here is the bottom line: if you don’t want to get shot, tased, pepper-sprayed, struck with a baton or thrown to the ground, just do what I tell you. Don’t argue with me, don’t call me names, don’t tell me that I can’t stop you, don’t say I’m a racist pig, don’t threaten that you’ll sue me and take away my badge. Don’t scream at me that you pay my salary, and don’t even think of aggressively walking towards me. Most field stops are complete in minutes. How difficult is it to cooperate for that long?
Like I said, good advice for people living in a police state. But what about our own country? Let’s see what, oh, the SCOTUS say about it. In City of Houston v Hill, for instance:
Although the preservation of liberty depends in part upon the maintenance of social order, the First Amendment requires that officers and municipalities respond with restraint in the face of verbal challenges to police action, since a certain amount of expressive disorder is inevitable in a society committed to individual freedom, and must be protected if that freedom would survive.
That was 1987. Shortly thereafter, it was cited in a Ninth Circuit case (Duran v City of Douglas Arizona) in which a man was arrested (and, in the process, injured) for swearing at, and giving the finger to, an officer:
Plaintiff Ralph Duran directed a series of expletives and an obscene hand gesture at defendant Gilbert Aguilar, a police officer. Officer Aguilar responded by detaining and arresting Duran, who, along with his wife, now brings this lawsuit for injuries he suffered during the incident.
So, while the decision makes no secret of the court’s distaste for Duran’s actions, it defends his right to them:
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. Aguilar admits that he stopped Duran because he made an obscene gesture and yelled profanities toward him. Aguilar Depo. at 85-86. Because Aguilar might have detained Duran in retaliation for engaging in this protected speech and conduct, summary judgment in favor of Aguilar would have been inappropriate. At the same time, because Aguilar claims that he had no retaliatory motive–that he honestly believed Duran’s actions indicated that criminal activity might be afoot–the district court’s grant of summary judgment in favor of Duran on this issue was also error. There remains a material issue of fact, therefore, whether Aguilar intended to hassle Duran as punishment for exercising his First Amendment rights. To the extent the trier of fact determines that officer Aguilar stopped Duran in retaliation for Duran’s method of expressing his opinion, this would constitute a separate constitutional violation that could form the basis of liability under section 1983.5
The only remaining issue, then, is whether the rights here in question were so clearly established that officer Aguilar should have known he was acting illegally when he initiated the traffic stop. We believe they were. If there is one irreducible minimum in our Fourth Amendment jurisprudence, it is that a police officer may not detain an individual simply on the basis of suspicion in the air. 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. Were the law any different–were police free to detain and question people based only on their hunch that something may be amiss–we would hardly have a need for the hundreds of founded suspicion cases the federal courts decide every year, for we would be living in a police state where law enforcement officers, not the courts, would determine who gets stopped and when.
That was 1990. But fast-forward to 2012, in the Second Circuit, with Swartz v. Insogna, a citizen’s right to give a cop the bird is once again recognized.
Perhaps there is a police officer somewhere who would interpret an automobile passenger’s giving him the finger as a signal of distress, creating a suspicion that something occurring in the automobile warranted investigation. And perhaps that interpretation is what prompted Insogna to act, as he claims. But the nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness. This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity. Surely no passenger planning some wrongful conduct toward another occupant of an automobile would call attention to himself by giving the finger to a police officer. And if there might be an automobile passenger somewhere who will give the finger to a police officer as an ill-advised signal for help, it is far more consistent with all citizens’ protection against improper police apprehension to leave that highly unlikely signal without a response than to lend judicial approval to the stopping of every vehicle from which a passenger makes that gesture.
Rights are funny things. They are yours, but only yours if others give them to you. If Officer Dutta wants us to behave respectfully, he can want it all he wants. And with force, he might be able to impose a sort of respect. No, not respect–obedience. Respect is earned, not imposed.
We do have the right to behave disrespectfully toward cops. But we only have that right as long as it is recognized by those who could deny it. And that seems to be exactly what Officer Dutta wants to do–deny our right, in the guise of offering good advice. It is good advice…for a police state.
Is it reasonable to think an officer would know about these cases? I dunno… unless they saw it in the January 2013 issue of POLICE magazine (“Court: Flipping Off Cops Is Constitutional“).