Police speak out on their ability to arrest people for disturbing the peace

Paul K. writes:

I participate in a firearms-oriented internet forum whose membership includes a lot of police officers, and not a liberal among them. This afternoon I posed the following message to get their reaction:

Until the Gates incident, I had never heard it proposed that one is free to insult and berate a police officer and that the officer has to take it. In the last few days, I’ve heard this notion from liberals, libertarians, the mainstream-type conservatives, and even a Southern police chief interviewed on National Public Radio’s “All Things Considered.”

I can understand that the police might not arrest someone shouting insults at them at a political demonstration, but when an officer shows up at someone’s home to investigate a reported crime and meets an uncooperative person there who subjects him to a torrent of abuse, and continues it as a crowd gathers, is that also to be meekly endured?

I can’t accept the idea that it is appropriate that a police officer who is trying to do his job should have to put up with this. It breeds a dangerous contempt for the law and its representatives.

I am curious to get the views of others on this matter.

Here are some of the responses from police officers. It appears that my attitude as to how one should respond to an officer of the law has little or no legal backing:

1. Yep, we pretty much have to grin and bear it—courts all over the country have agreed that unless a person’s words/conduct rise to a level beyond them expressing their “opinion” of us and our conduct it is protected speech. Also applies to flying the middle finger, etc. In our jurisdiction, the “words” or other conduct have to be such that they are a threat or inciting a fight (“I’m gonna kick your ass”) or be in such a manner as to create a disturbance to someone else, and then maybe we can arrest for disorderly conduct (or Threatening a Law Enforcement Officer), but words, by themselves, are pretty much just that. For Disorderly Conduct, it must take place in a public place, not in the privacy of one’s home where you pretty much have an absolute right to speak your mind. On the other hand, we have the ability to record pretty much everything anymore, and the more someone runs off at the mouth the better it makes us look. There are lots of people on juries that just can’t believe the things people say to us and are more than willing to hammer them after they’ve had a chance to listen to the tape. Although, after 23 years of listening to pretty much everything said to me, I pretty much have to agree with the old “sticks and stones may break my bones, but words will never hurt me.”

2. It depends on the judge! I worked in Ohio as a municipal police officer for 24 years. In one incident, I arrested a fellow I had observed stealing a Christmas tree from an outdoor sales and storage area. During the arrest the suspect told me quite a lot about what he thought about police, and me personally. I endured this since I considered the source. I did charge him with “Disorderly Conduct,” in addition to the theft. The judge later told me in court, quite condescendingly, that being insulted went with territory…

3. It is not a helpful way for a subject to respond. However, we don’t have a “be nice to cops” law to arrest them under.

If I correctly follow the line of reasoning, the police are the first-line interaction they have with the government. They are complaining about the government’s actions, and therefore, it’s First Amendment protected speech. Cops are supposed to have thick skin and be big enough boys to take it.

From the other side of the equation, they’re only words. (If they touch me, it then becomes felony assault on a public servant and all bets are off.) If you take the verbal encounter further, you may be escalating the confrontation. If you escalate it, you may be forced to use force or arrest somebody. That means paperwork. Swear out an affidavit. Spend time in front of a magistrate. Or, ignore what you can, finish up the call and go get coffee and donuts.

4. Way back when in poleece skule, an attorney teaching penal code, I think it was, said however mad they make you, how offensive they are, you really can’t do a thing about it. You can however, ask an innocent bystander (hopefully a little blue-haired lady that never heard cussing before) if the subject’s language offended them and caused a reaction. If yes, then they have created a public disturbance and we can go to work. Disorderly Conduct statutes have become very specific and a peace officer, himself, often cannot be the “victim.” However, when the conduct is such as to disturb the neighborhood, or neighbors, then you’ve got the guy.

So, there we are! I respect the professionalism of these officers; personally, I could not tolerate the conditions under which they have to work.

LA replies:

Thank you very much for this. You have eloquently expressed your shock at finding out that people can carry like this against an officer without consequences.

We’ve learned a couple of things here. First, that as part of the systematic destruction of local authority that has been wrought by the Incorporation Doctrine (which applied the Bill of Rights restrictions to states and localities instead of just to the Congress, thus giving federal courts power over states and localities that they never had before and are not supposed to have) and the work of the liberal Supreme court generally, is the denial of the ability of police to stop individuals from speaking in an abusive way to police officers. From the post 1960s period we have the voiding of local laws on loitering, local laws on vagrancy, local laws on pornography, state laws on sexual behavior, state and local laws on school prayer, and on and on, stripping states and municipalities of self government, robbing them of the ability to uphold community standards. Now we realize that yet another part of that destruction of moral order by the “living Constitution” and judge-made law has been the voiding of the authority of police to stop a person from publicly berating, insulting, making obscene comments at a police officer.

Second, we now understand more clearly Crowley’s grounds for arresting Gates. It was not Gates’s outrageous behavior to Crowley, it was the public disturbance Gates created by continuing to shout invective from his front porch into a public street where there were seven passersby who had stopped to see what was happening. That’s why Crowley said in his report that the people in front of Gates’s house were surprised and upset by Gates’s behavior. That’s what gave Crowley the formal grounds for arresting Gates. Crowley had to operate within the limits of the current established (though, as I’ve said, wrong and baseless) reading of the Constitution, but within those limits, he found a proper way to arrest Gates.

Paul K. replies:

Several of the officers touch on your point that Crowley arrested Gates for creating a public disturbance. Apparently it is difficult to make such charges stick. However, before this incident I had no idea that the police had to endure any virtually any amount of verbal abuse that is thrown at them without response.

LA replies:

Yes, it’s wrong, in every way.

Posted by Lawrence Auster at July 27, 2009 10:30 PM | Send