Daniel Denvir is a Rhode Island-based contributing writer to CityLab and a former staff reporter at Philadelphia City Paper.
U.S. courts have made this clear again and again and again.
"Fuck the police!" The protest refrain provokes feelings of sympathy, ambivalence, or dismay, depending on the listener. It is also the inspiration for a song by the rap group N.W.A., and a young man named Cesar Baldelomar was blasting that song from his car last Thanksgiving when Hialeah, Florida, police officer Harold Garzon took offense.
"Really?" Garzon allegedly said to Baldelomar. "You're really playing that song? Pull over."
Police response to perceived disrespect is not unusual, as the tragic case of Sandra Bland, who died of a reported but disputed suicide in a Texas jail, has reminded us this week. Bland was driving when she was pulled over on July 10, and a video from arresting State Trooper Brian T. Encinia's dashcam released this week shows that the officer appears to have escalated a simple traffic stop into a violent arrest—all because he didn't like that Bland admitted that yes, she was annoyed at being pulled over.
Being rude to police, however, is protected by the First Amendment. And it doesn't even seem that Bland was particularly rude. Rather, she just honestly responded to his statement: "You seem very irritated." That should have come as no surprise.
"Newsflash: people don't like getting pulled over," says Jason Williamson, staff attorney with the ACLU Criminal Law Reform Project. "People don't enjoy interactions with police if they can avoid it."
Encinia's reaction, however, didn't surprise him either.
"The police officer in the Sandra Bland case and police officers everywhere often respond in kind when they think people are being disrespectful to them," says Williamson.
Such police responses can be dangerous. Bland's offense appears not to have been rudeness but rather her failure to be sufficiently deferential to Encinia's authority and ego. In short, she did not grovel. Bland was well within her right to speak out. And Trooper Encinia's escalation of the situation appears to have been in retaliation for her exercising that right.
"The police officer is supposed to be the professional in this situation and he could have very easily deescalated that encounter, and we would't be talking about this today," says Willamson. Instead, "he took it to another place."
And the thing is, the right to be rude to cops is well established.
"People generally have a right to mouth off to (or give the finger to) members of law enforcement, as long as they do not interfere with (i.e., obstruct) ordinary law-enforcement operations," emails Ira Robbins, a professor at American University's Washington College of Law and the author of the law review article, "Digitus Impudicus: The Middle Finger and the Law." "This doesn't necessarily mean that it is a wise thing to do, however, as many police officers are thin-skinned and have not been trained well enough to let these slights roll off."
The slightest insult, perceived or real, sets some cops off. And sometimes those insults are imaginary, or profoundly misconstrued. In March, a video of NYPD Detective Patrick Cherry delivering a three-minute-plus rant to an Uber driver became an internet sensation. The offense that merited mockery of the driver's English, threats, and insults? Reportedly, he had either gestured or honked at the officer's unmarked car because it was blocking the street. The detective said that he was trying to park. A passenger said that could not be discerned because he had not activated his turn signal, though the detective said he had his turn signal on.
A similar case took place in 2011, when an East Harlem man allegedly gave the finger to what he described as an annoying driver—who turned to be a cop. The cop then allegedly opened the driver's car door, pushed him, pulled his key out of the ignition and broke it. It was only the man's provocatively aggressive behavior, according to K.C. Okoli, the complainant's lawyer, that made him realize the aggressor was a cop.
“My client’s a big guy compared to the detective. He understood then if you weren’t a cop, you wouldn’t be doing this,” he told the Daily News.
Okoli says that a lawsuit over the incident is in state court.
Policing, in both its historical origins and in practice, is in large part about maintaining public order, and police operate within a street-level symbolic economy centered on respect and offense. They expect to be respected.
Police respond harshly "once their authority gets challenged, and once an order is not being complied with," says David B. Rankin, a civil rights lawyer at the New York firm Rankin & Taylor, PLLC. "The ultimate noncompliance is running and trying to evade their authority."
Met with defiance, he says, "the cop will use overwhelming force, either verbal force or physical force, to deal with that. And that asymmetric reaction is what we see again and again."
Rankin says that his firm has litigated hundreds of civil rights cases alleging police misconduct. Most, he says, have a police officer's insistence on imposing their authority at their root. One client is Cecile Gogol, 47, who says she was walking to take the crosstown bus near Carnegie Hall, in Manhattan, when she saw that the street was closed down. When an officer passed, she asked what was going on. He allegedly said, "step away!," and "very rudely. And I'm like, step away where?" As she started to walk away, she says, she called out "hey, courtesy and respect," repeating a portion of the the NYPD slogan emblazoned on squad cars citywide.
"And then I hear him behind me say, 'do you have ID?" She continued to walk toward the subway, she says, and he followed. He asked for ID again. Gogol, according to her account, asked whether she was under arrest. "He said, 'I'm going to arrest you if you don't show me ID.' And I put my hands behind my back." Gogol was charged with disorderly conduct, resisting arrest and obstruction of government administration. She agreed to an adjournment in contemplation of dismissal, or ACD, which means that she has not admitted to any wrongdoing and that the charges will be dropped if she doesn't get arrested again soon.
Gogol is now suing in federal court.
"I didn’t feel I should have my civil rights violated, so I was adamant about that," says Gogol. "I was born in Russia and my parents came here in the mid-’70s for personal freedom, for civil rights basically. He touched off a special nerve with me, asking to show my papers for no reason."
Gogol works for the Sheraton hotel chain and lives on the Upper East Side, and says that the officer related that he'd previously been posted in the South Bronx. She suspects he had been accustomed to greater deference.
"I didn't feel I should be intimidated by him," she says.
Chuck Wexler, executive director of the Police Executive Research Forum, says that the Bland case shows the importance of a current push to train officers in deescalation. Wexler, who says that watching the Bland video was "painful on a number of levels," mentions the 2009 arrest of Harvard Professor Henry Louis Gates, Jr. in Cambridge—an arrest that was followed by President Obama's comment that the officer had “acted stupidly” and the famously strange "beer summit" held after that remark sparked controversy.
"When we were asked to examine the [Gates] arrest… we came away with the conclusion that in these kind of encounters it is very important for the police to recognize that by stepping back from a heated encounter (that is only being fueled by the officer’s presence) you achieve the best possible outcome," emails Wexler, a Boston Police Department veteran. "At the same time we forget that police are human and subject to the same frailties of all humans and therefore hope that another officer is there to be able to intervene and take over should an officer begin to act unprofessionally."
I've seen police officers act with the sort of restraint Wexler advocates myself. Last year, I walked past a porch in West Philadelphia where an intoxicated-seeming man was engaged in some sort of altercation. I watched in awe as officers calmly let him spin his belligerent wheels, refusing to contribute to the problem. Emails one of the Philadelphia Police officers involved, who spoke on the condition of anonymity because he is not authorized to speak to the press:
"I remember it came over the radio as a priority call 'Person Screaming' ... but when we got there we realized it was a neighbor dispute about loud music or something. … We tried to cool everyone out, and then we left.
"Basically, when you have people that are loud, upset, rude … you want to act like a professional. What that means specifically is that you make eye contact and listen; let them 'get it out,' whatever it is. … [E]xude a calm demeanor, and don't say anything until you've gathered enough info to make an educated suggestion to the parties. Then suggest a solution or two and leave; sometimes a police presence by itself can escalate a situation… . If things get heated again, they can always call back."
This officer says that most cops he knows are like that. But clearly not all.
“You can see in the [Sandra] Bland video, the trooper is almost like this naive guy who is used to this Mayberry-type, bucolic setting where everyone on a car-stop is courteous and respects law enforcement and will do anything he says."
U.S. courts have made it clear that individuals have a right to insult police officers. In 1987, the U.S. Supreme Court decided in City of Houston v. Hill that the First Amendment allows for a "significant amount of verbal criticism and challenge directed at police officers," ruling against a Houston, Texas, ordinance making it "unlawful for any person to assault, strike or in any manner oppose, molest, abuse or interrupt any policeman in the execution of his duty, or any person summoned to aid in making an arrest."
The case involved a gay rights activist who had been arrested numerous times for allegedly interfering with the police.
The First Amendment, the court noted, does not protect "fighting words," statements "that by their very utterance inflict injury or tend to incite an immediate breach of the peace." But criticism, even when angrily voiced, is protected.
"The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest," Justice William J. Brennan Jr. wrote for the majority, "is one of the principal characteristics by which we distinguish a free nation from a police state."
That case built upon the 1974 decision in Lewis v. City of New Orleans, when the court ruled against an ordinance in that city making it "unlawful and a breach of the peace 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."
The Lewis case involved a couple following behind a squad car that was taking their young son away. Another officer pulled them over and, after the woman got out, allegedly said, "you get in the car woman. Get your black ass in the god damned car or I will show you something." The police officer testified that the woman said, "you god damn m.f. police – I am going to [the Superintendent of Police] about this." The woman denied using any profanity. Either way, the court ruled that the ordinance under which she was arrested was so broad as to apply to "speech, although vulgar or offensive, that is protected by the First and Fourteenth Amendments."
Justice Lewis F. Powell Jr., in a concurring opinion cited by Justice Brennan in the 1987 case, wrote that police should be able to deal with more offensive language than a private citizen—meaning that verbal abuse had to reach a higher threshold to count as fighting words when they are directed at a cop.
That abuse can run quite high and stay within constitutional bounds, something that a cottage industry of people who make a point of testing cops on their First Amendment knowledge by giving them the middle finger has proven.
In May, a Saratoga Springs, New York, police officer was placed on administrative leave after he was videotaped arresting Adam Rupeka. Rupeka had given him the finger and was told he was being placed under arrest (and pepper sprayed) for disorderly conduct. All the while, he is audibly explaining to the officer that he has a legal right to flip off police. Rupeka, who has a YouTube channel dedicated to filming the police, says that he came to Saratoga Springs at the request of a resident, who wanted him to film police there. He said the resident was a friend of Darryl Mount, Jr., a man who died last year after allegedly falling from scaffolding during a police chase the year prior—an account that Rupeka and others have called suspicious.
"I am a normal person that has had enough of police acting badly," emails Rupeka, who is white. "When I arrived in the city I just randomly gave the middle finger to the first cop I saw. I knew it was rude but also not illegal."
Earlier this month, it was reported that the officer, Nathan Baker, resigned in the face of a plan to fire him. During the incident, Rupeka announced, "I'm going to sue the shit out of you guys." And indeed, he tells me, he has a lawyer and is in the process of doing so.
He could stand a very good chance.
In 2013, the Second Circuit Court of Appeals, which covers New York, ruled in favor of a man who was arrested for disorderly conduct after he reportedly "expressed his displeasure at" an officer using a radar gun "by reaching his right arm outside the passenger side window and extending his middle finger over the car’s roof."
America's most famous middle-finger-to-the-man aficionado is Robert J. Ekas, who won a small settlement after being stopped twice by Clackamas County, Oregon, Sheriff's deputies in 2007 after flipping them off. Ekas was mocked and celebrated on The Colbert Report as a fighter for the right to be an asshole.
Ekas is white. It's not clear how many, if any, black people are engaged in such middle-finger-first free speech surveys. It's probably wise that they don't, says Williamson.
"For people of color that's not something I would advise folks to do. It's part of the privilege of being white in the United States just to test and see what happens. And as we've seen over the past couple of years… young black men and women don't have that luxury, and you could very well end up dead."
In Rankin's practice, white victims of police mistreatment or abuse are often fuming mad. Black victims are afraid. Earlier this week, Rankin was speaking to a client who "was clearly getting arrested unlawfully and he wanted to emphasize to me how compliant he was to the officers at every point in the interaction… what was coming through in that conversation was his terror that he was going to be beaten or killed." Black people in America, he says, are "terrified that they're not going to be able to leave the situation with all their limbs intact."
It is entirely understandable for people to be annoyed or angry about their treatment by police, says Williamson. But he encourages citizens to be polite and closely document police mistreatment with an eye toward filing complaints and lawsuits later—and avoid eliciting a retaliatory charge or violence.
"Part of why we stress being wise about this, particularly for people and communities of color, is because there's the law, and then there's the practical reality of how the law works on the ground. If your life or your safety are at stake, we're certainly not going to encourage people to put their lives on the line in order to make sure a police officer knows that you understand your rights."
Whether or not being rude or critical or assertive is wise, it is nearly always legal. Speaking one's mind, as long as the words are not threatening, is no reason to end up in a Texas jail.