Thursday, March 14, 2013

Cursing out a police officer - not always illegal

Can you be arrested for disorderly conduct for cursing out a police officer? The New York Court of Appeals has thrown out a conviction because the defendant's profanity did not create any public disturbance.

The case is People v. Baker, decided on February 7. A woman was videotaping the police on a public street. The police asked her what she was doing and then ran a license check on her car, which showed that the license plate was registered to a different car. At this point, defendant came outside and cursed out the police. He was arrested for disorderly conduct. The Court of Appeals is too classy to cite the profanity, but the oral argument transcript says that the defendant said "don't fuck with me." He also said "fuck you."

Judging from the Court of Appeals' decision, few cases address when someone can get away with cursing at a police officer in public. This will be one of the leading cases in this area. Disorderly conduct convictions require proof that the defendant intended to create a public disturbance. "The significance of the public harm element in disorderly conduct cases cannot be overstated." Relevant factors include the time and place of the episode, the number of other people in the vicinity and whether they are drawn to to the disturbance.

The police had no probable cause to arrest this guy for disorderly conduct. There was no public harm. This happened in daytime and he made two abusive statements to the officer who was sitting in the patrol car and did not feel threatened by the defendant. While a few bystanders had gathered nearby, they did not endeavor to get involved.

What really makes this case noteworthy is the Court's conclusion that police officers in many instances have to put up with foul language directed at them.

[T]his case includes one more factor worthy of consideration. Here, both at its inception and conclusion, the verbal exchange was between a single civilian and a police officer. The fact that defendant's abusive statements were directed exclusively at a police officer -- a party trained to diffuse situations involving angry or emotionally distraught persons -- further undermines any inference that there was a threat of public harm, particularly since the police officer was in a position of safety and could have closed his windows and ignored defendant. We do not suggest that the public harm element can never be present in such encounters; ... But isolated statements using coarse language to criticize the actions of a police officer, unaccompanied by provocative acts or other aggravating circumstances, will rarely afford a sufficient basis to infer the presence of the "public harm" mens rea necessary to support a disorderly conduct charge.

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