Disorderly Conduct Charge for Making an Obscene Gesture

My question involves criminal law for the state of: Texas

My 20 year old daughter lives across the street from a junior high, while attending college. She was coming home from class and found that her driveway was blocked by cars and the crossing guards. They would not allow her to pull into her drive way. I don't think they realized she lived there. Anyhow, she flipped off the crossing guard who immediately called over a traffic cop and my daughter was cited for disorderly conduct for flipping her off. The cop saw nothing, my daughter admitted to nothing. She was wrong, she should have never of done that. She did it from inside her car. The cop didn't want to hear anything she had to say and told her he would arrest her if she opened her mouth.

She has never been in trouble for anything, ever. This scared the crap out of her. She just wants to plead guilty and pay the fine. I'm on the other side of Texas and don't know what she should do. I'm more concerned about having this on her record.

I would love some suggestions,

Kay

Many courts have held flipping off police officers is freedom of expression. I would imagine a lowly crossing guard does not even rate that high. Tell her to plead not guilty and let the state make its case. By law the act must have created a breach of the peace. It is a defense if the person had provocation for their threatening conduct. Conviction is a class C misdemeanor which can cause her to not gain employment after college. A lawyer is a good idea. I also suggest she exercise her right to remain silent. Even if the guard testifies she did it, all she needs to do is establish provocation and not admit guilt.

http://www.statutes.legis.state.tx.u.../htm/PE.42.htm

Thank you for responding. She does not want to fight it. She just wants to pay the fine and move on. I really want her to challenge it, but she doesn't want to. She's really a nice quiet girl, I don't know what got into her.

I wanted to add that she is attending college in a very christian town.

Kay

Ask her if she is wasting 4 years of her life going to college to give away a potential dream job over flipping off an idiot. That is likely what she is doing by not fighting this. The officer was being a jerk for citing her IMO. Sometimes in life we do things we have to do whether we want to or not.

I will talk to her today. I am concerned with the cost of the attorney etc. I also don't know of anyone in her town that we can use.

Kay

The crossing guard is not a police officer and the same standards of tolerance likely do not apply.

Here is the law (assuming this is what she was charged with):

http://www.statutes.legis.state.tx.u.../htm/PE.42.htm

It would appear she is guilty of 42.01(a)(2)

Sec. 42.01. DISORDERLY CONDUCT. (a) A person commits an offense if he intentionally or knowingly:
(2) makes an offensive gesture or display in a public place, and the gesture or display tends to incite an immediate breach of the peace;

Whether the gesture alone is sufficient to meet the legal requirements that it "tends" to incite a breach of the peace or not, I can't say. But, it certainly was not intended as a gesture of "it's okay" or "peace and love."

If this is an offense that can carry jail time, she should have the right to have an attorney assigned to her by the court if she cannot afford one. However, if it is such that it is a fine only, appointed counsel may not be an option.

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Quoting kaybaby

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She's really a nice quiet girl, I don't know what got into her.

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That's what people invariably say about those who take up firearms and massacre groups of crowded people.

She probably

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Quoting kaybaby

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She's really a nice quiet girl, I don't know what got into her.

a very christian town.

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What does that have to do with anything?

Ever hear of the Crusades?

She was frustrated with her drive way being blocked. Comparing this to massacre groups is ludicrous. I mention it being a christian town because they frown heavily on cussing etc.

Kay

This is not a traffic ticket, it is a misdemeanor criminal charge that will stay on her record. Please, have her get some professional advice before paying the fine and moving on. I don't think she understands the potential consequences. It is dangerous to proceed when you don't know what you don't know. A consultation with an attorney should not be very expensive, and then she can decide what to do. Many lawyers will give you a short consultation for a very reduced rate so you can sort things out a bit.

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Quoting cdwjava

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The crossing guard is not a police officer and the same standards of tolerance likely do not apply.

Here is the law (assuming this is what she was charged with):

http://www.statutes.legis.state.tx.u.../htm/PE.42.htm

(2) makes an offensive gesture or display in a public place, and the gesture or display tends to incite an immediate breach of the peace;[/indent]

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Don't overlook the word "and" in that statute. I don't see any immediate breach of the peace in the facts of this occurrence. No fight broke out.

Thank you all, I have called an attorney and am waiting on a call back.

Kay

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Quoting Bubba Jimmy

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Don't overlook the word "and" in that statute. I don't see any immediate breach of the peace in the facts of this occurrence. No fight broke out.

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It said "tends" it did not say that a breach of the peace had to occur.

Similar statutes have been long upheld in other states, maybe even Texas as well. My state doesn't have this rule, but many local courts even here have ruled that an obscene gesture qualifies as an incitement to violence.

The OP can certainly take it to court, but only a local attorney can say whether this is likely to be pursued locally or not, and what the chances are it will succeed.

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Quoting kaybaby

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Thank you all, I have called an attorney and am waiting on a call back.

Kay

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Keep in mind that it will be your daughter that will have to deal with this, not you. YOU can (in theory) be called by the state as a witness against your daughter, so the less you are involved the better.

Spoke with attorney who is almost certain he can get it dismissed. Fingers crossed.

Kay

One thing should be added to those who are talking about it keeping her from getting a job, etc.: If one is not arrested but only cited and released, a criminal charge will not likely show up on a background record check. Only physical arrests in which a person is fingerprinted will show up as an arrest record.

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Quoting cdwjava

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It said "tends" it did not say that a breach of the peace had to occur.

Similar statutes have been long upheld in other states, maybe even Texas as well. My state doesn't have this rule, but many local courts even here have ruled that an obscene gesture qualifies as an incitement to violence.

The OP can certainly take it to court, but only a local attorney can say whether this is likely to be pursued locally or not, and what the chances are it will succeed.

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Keep in mind that it will be your daughter that will have to deal with this, not you. YOU can (in theory) be called by the state as a witness against your daughter, so the less you are involved the better.

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Sec. 42.01. DISORDERLY CONDUCT. (a) A person commits an offense if he intentionally or knowingly:
(2) makes an offensive gesture or display in a public place, and the gesture or display tends to incite an immediate breach of the peace;

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http://scholar.google.com/scholar_ca...en&as_sdt=4,44

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A person commits the offense of disorderly conduct if: (1) he intentionally and knowingly makes an offensive gesture or display in a public place; and (2) the gesture or display tends to incite an immediate breach of the peace. Tex. Penal Code Ann. § 42.01(a)(2) (Vernon 1994). In order to pass constitutional muster, the offensive gesture or display must amount to "fighting words." Ross v. State, 802 S.W.2d 308, 315 (Tex.App.—Dallas 1990, no pet.); see also Duran v. Furr's Supermarkets, Inc., 921 S.W.2d 778, 785 (Tex.App.—El Paso 1996, writ requested). In general, the issue of whether particular words constitute "fighting words" is a question of fact. Duran, 921 S.W.2d at 785. Language which is merely harsh and insulting does not generally rise to the level of "fighting words;" derisive or annoying words only rise to such level when they plainly tend to excite the addressee to a breach of the peace. Id.

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read the dissenting opinion in this case:

http://scholar.google.com/scholar_ca...en&as_sdt=4,44


While flipping a person off was in that case adequate to sustaining the charge of disorderly conduct, the dissenting judge speaks wisely. Even the judge writing the opinion upholding the conviction states this:\

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While Farris testified that he did not attack Estes, and under no circumstances would have attacked him or retaliated physically, he still had to resist his "animal instinct to retaliate." Farris was a professional in the field of adolescent education who had developed his emotional self-control as a part of his position as a high school principal. Under the same circumstances, we hold such gesture to an average person could have constituted "fighting words". It is not the function of this court to substitute its finding for that of the jury. There was sufficient evidence to justify the jury's finding of guilty. Appellant's first ground of error is overruled.

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so the question is: 31 years after that case, is flipping off a person adequate to incite the average person to commit an immediate breach of the peace?

I suggest it doesn't. It has become so common that only the most reactive people would feel compelled to commit an immediate breach of the peace. The average person is either going to ignore the presenter or at most, respond with a comment expressing their disgust.

The fact the crossing guard was not so incensed they felt compelled to retaliate and commit a breach of the peace. That alone shows the average person does not tend to commit an immediate breach of the peace when being flipped off.

Unless there is a court decision that states definitively that flipping the bird does NOT qualify, then I suggest that a court (or the trier of fact) is free to rule as it sees fit based upon the facts as presented.

Oh, and I have seen people go to town (i.e. kick the bat-guano) out of people who have flipped them off. So, to say that most people ignore it may be true of MOST people, but, if it tends to incite an immediate breach it is still unlawful.

Ultimately, the police were called, the officer cited the suspect using what was likely the only code section he had available to him, and his part was done (after the report, of course). Now, it will be up to a prosecutor to decide whether or not to pursue it.

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Oh, and I have seen people go to town (i.e. kick the bat-guano) out of people who have flipped them off. So, to say that most people ignore it may be true of MOST people, but, if it tends to incite an immediate breach it is still unlawful.

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but that applies to the general populace. Not some cocked and primed hothead. So, even by your statement, MOST people would not be incensed such that it would cause a breach of the peace. That means it would not tend to cause such in such a manner that it would fall under the "fighting words" doctrine. Even in that case I cited it stated that it is how the general populace would react to it, not some limited demographic, that is the determining factor.

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Ultimately, the police were called, the officer cited the suspect using what was likely the only code section he had available to him, and his part was done (after the report, of course). Now, it will be up to a prosecutor to decide whether or not to pursue it.

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if you haven't noticed I feel the citation is way out of line as well as the law itself. If you want to argue flipping off a person qualifies as disorderly conduct, even with your acknowledgment that MOST people would not be incited to violence, then I will argue that anytime anybody uses the term "whatever" is just as egregious as I want to smack those people upside the head for using that word. In fact, I am more insulted by the word "whatever" than I am being flipped off.

If a person is so overcome by a person flipping them off, I suggest it is not the giver but the recipient that has a problem and that problem should not be a justification to charge a person who has a Constitutional right to express themselves in any manner that does not truly incite violence.