BY FALSELY ARRESTING MR. BURGESS THESE OFFICERS (BOTH INDIVIDUALLY AND CONSPIRING IN A GROUP) VIOLATED HIS FIRST AMENDMENT RIGHT UNDER THE FREE SPEECH CLAUSE AND SUBJECTED BOTH THEMSELVES AND ITS POLICE DEPARTMENT TO BOTH CRIMINAL (18 USC §§241-242) AND CIVIL (42 USC. §1983) PROCESS. UPON CONVICTION THE OFFICERS COULD FACE UP TO ONE YEAR IN A FEDERAL CORRECTIONAL INSTITUTION AND A FINE OF UP TO $10,000, AND THE OFFICERS AS INDIVIDUALS AND THE CITY COULD ALSO FACE CIVIL MONEY DAMAGES. AS THE VIOLATION OF HIS RIGHTS WERE OF A WELL ESTABLISHED CONSTITUTIONAL RIGHT DATING BACK TO THE RATIFICATION OF THE BILL OF RIGHTS (IN WHICH THE FIRST AMENDMENT AND FREE SPEECH CLAUSE ARE INCLUDED) BY THE SEVERAL STATES ON DECEMBER 15, 1791, NEITHER THE OFFICERS OR THE CITY CAN USE "QUALIFIED IMUNITY" AS A DEFENSE.
PER THE SUPREME COURT IN "HOUSTON VS. HILL" (1987), USING "OBSCENITIES" AND/OR "FLIPPING THE BIRD" AT POLICE OFFICERS IS CONSTITUTIONALLY PROTECTED SPEECH UNDER THE FIRST AMENDMENT AND THUS DOES NOT CONSTITUTE "BREACH OF THE PEACE" OR "DISORDERLY CONDUCT"
The US Supreme Court in "Houston vs Hill" (1987) and "Cohen vs California" (1971), and the US Court of Appeals for the Ninth Circuit in "Duran vs City of Douglas" (1990) have all held that using "obscenities" and "flipping the bird" at police officers is First Amendment protected speech, do not constitute a "breach of the peace" or "disorderly conduct", and that "[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers."
U.S. Supreme Court
City of Houston vs. Hill, 482 U.S. 451
June 15, 1987
The First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.
"Speech is often provocative and challenging. . . . [But it] is 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." Terminiello v. Chicago, 337 U. S. 1, 4 (1949). In Lewis v. City of New Orleans, 415 U. S. 130 (1974), for example, the appellant was found to have yelled obscenities and threats at an officer who had asked appellant's husband to produce his driver's license. Appellant was convicted under a municipal ordinance that made it a crime "'for any person wantonly to curse or revile or to use obscene or opprobrious language toward or with reference to any member of the city police while in the actual performance of his duty.'" Id. at 415 U. S. 132 (citation omitted).
We vacated the conviction and invalidated the ordinance as facially overbroad. Critical to our decision was the fact that the ordinance "punishe[d] only spoken words," and was not limited in scope to fighting words that, "by their very utterance, inflict injury or tend to incite an immediate breach of the peace.'" Id. at 415 U. S. 133, quoting Gooding v. Wilson, 405 U. S. 518, 405 U. S. 525 (1972); see also ibid. (Georgia breach-of-peace statute not limited to fighting words held facially invalid). Moreover, in a concurring opinion in Lewis, JUSTICE POWELL suggested that even the "fighting words" exception recognized in Chaplinsky v. New Hampshire, 315 U. S. 568 (1942), might require a narrower application in cases involving words addressed to a police officer, because "a properly trained officer may reasonably be expected to 'exercise a higher degree of restraint' than the average citizen, and thus be less likely to respond belligerently to 'fighting words.'"
“Flipping the Bird”
U.S. Court of Appears, Ninth Circuit
Ralph & Alice Duran vs. City of Douglas, Arizona et al. 904 F.2nd 1372
June 4, 1990
Duran's conduct is not totally irrelevant, however, as it suggests a possible motive for his detention, one upon which law enforcement officers may not legitimately rely. The Durans contend, and the district court held, that Aguilar stopped their car at least partly in retaliation for the insult he received from Duran. If true, this would constitute a serious First Amendment violation. "[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers." Hill, 482 U.S. at 461, 107 S.Ct. at 2509. The freedom of individuals to oppose or challenge police action verbally without thereby risking arrest is one important characteristic by which we distinguish ourselves from a police state. Id. at 462-63, 107 S.Ct. at 2510. Thus, while police, no less than anyone else, may resent having obscene words and gestures directed at them, they may not exercise the awesome power at their disposal to punish individuals for conduct that is not merely lawful, but protected by the First Amendment.
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
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.
No less well established is the principle that government officials in general, and police officers in particular, may not exercise their authority for personal motives, particularly in response to real or perceived slights to their dignity. Surely anyone who takes an oath of office knows--or should know--that much. See Hill, 482 U.S. at 462, 107 S.Ct. at 2510. Whether or not officer Aguilar was aware of the fine points of First Amendment law, to the extent he is found to have detained Duran as punishment for the latter's insults, we hold that he ought to have known that he was exercising his authority in violation of well-established constitutional rights.
United States Supreme Court
"Paul Robert Cohen vs State of California" 403 U.S. 15
June 7, 1971
"To many, the immediate consequence of this freedom may often appear to be only verbal tumult, discord, and even offensive utterance. These are, however, within established limits, in truth necessary side effects of the broader enduring values which the process of open debate permits us to achieve. That the air may at times seem filled with verbal cacophony is, in this sense not a sign of weakness but of strength. . . . We cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process. Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views. We have been able, as noted above, to discern little social benefit that might result from running the risk of opening the door to such grave results. . . . The State may not, consistently with the First and Fourteenth Amendments, make the simple public display [use] of an expletive a criminal offense."
