Disorderly Conduct Charge for Giving Officers the Finger

[Mr. Knowitall]

I live in a small town in the middle of Missouri with what many consider a corrupt police force. Last week to show my disapproval for the the P.D. I gave 2 officers the finger while in a drive thru line. They came over to the car, told my friend who was driving to pull over and get out of line. They told me to get out and give them my I.D., I complied. I was then arrested and charged with Disorderly Conduct and taken to jail where I was held for a full 24 hours.

Do you have a copy of the incident report? It may contain a different version of events than the one you relate here, and it would be helpful to know their version.

I do not see a DA dropping the charges. The police are well within their rights to issue a charge they feel sustainable. The DA is within the law to prosecute.

A prosecutor should not pursue a charge unless there's at least probable cause that a crime was committed, and that the person accused is the person who committed the crime. Here, it's not clear that a crime was committed. If the prosecutor finds nothing more to have been involved that "the bird", the prosecutor should dismiss the charge.

And in my state the courts have ruled that flipping someone the bird can be a challenge to fight or an action likely to provoke a violent response. In theory doing this to the police is lawful, but this is not the standard everywhere.

I don't believe that there are any remaining jurisdictions in which offensive words or gestures, of themselves, as directed to the police would be deemed "fighting words". When it comes to provocation the police, quite correctly, are held to a higher standard of conduct than members of the public. See, e.g., Hammond v. Adkisson, 536 F.2d 237, 239 (8th Cir. 1976), addressing offensive language (Missouri is in the 8th Circuit). The language in that case seems considerably more provocative than the gesture described here, and the analysis should be similar. (The OP's effort to turn his actions into political speech seem, to me, to be a lost cause under the facts, but that's not necessary.)

Maybe I'm just old fashioned, but I'd never give my worst enemy the finger - much less someone who holds power over me! Such overt rudeness just grates on me ... it's entirely uncalled for, is a personal affront for a largely political matter, and is almost certainly going to result in some form of confrontation. No good can come from it at all.

Once, many years ago, my brother 'gave me the finger', and I thanked him and kept it for about a minute before giving it back (don't worry - it remained attached to his hand). He was subsequently considerably less "giving" with his digits, at least to me.

[jk]

If you have made a conscious decision to go through life intentionally offending people and imparting as much offense as possible then of course you should never apologize when you are successful. If, after creating a huge hassle for yourself (getting arrested, getting your ass kicked a few times) you realize that your course of action was in error and that you want to rethink your position, an apology would be a nice thing. The OP asked for advice. I gave it. I did not require the person to apologize. I told them that offering an apology to someone deserving of an apology might help. This seems so very straightforward to me, but I guess it's the nature of this forum to quibble over nonsensical things.

Did you mean to infer the cops will "kick my ass"? I surely hope not as that suggests their actions are based on retribution and punishment (at their hands as opposed to a courts hands). That would surely show a real problem with the cops.

[jkl1234]

Do you have a copy of the incident report? It may contain a different version of events than the one you relate here, and it would be helpful to know their version.

I plan on going back to the police station tomorrow to get the report ( I was there last week but it wasn't ready yet) hopefully it doesn't have any unexpected details on it

A prosecutor should not pursue a charge unless there's at least probable cause that a crime was committed, and that the person accused is the person who committed the crime. Here, it's not clear that a crime was committed. If the prosecutor finds nothing more to have been involved that "the bird", the prosecutor should dismiss the charge.

that's what I'm hoping for and if the charges aren't dropped that's what I'm going to argue in court

I don't believe that there are any remaining jurisdictions in which offensive words or gestures, of themselves, as directed to the police would be deemed "fighting words". When it comes to provocation the police, quite correctly, are held to a higher standard of conduct than members of the public. See, e.g., Hammond v. Adkisson, 536 F.2d 237, 239 (8th Cir. 1976), addressing offensive language (Missouri is in the 8th Circuit). The language in that case seems considerably more provocative than the gesture described here, and the analysis should be similar. (The OP's effort to turn his actions into political speech seem, to me, to be a lost cause under the facts, but that's not necessary.)

thanks for that link, I've been looking for cases in my state or circuit

Once, many years ago, my brother 'gave me the finger', and I thanked him and kept it for about a minute before giving it back (don't worry - it remained attached to his hand). He was subsequently considerably less "giving" with his digits, at least to me.

...

[jkl1234]

I've gotten the report and I'd like to get some opinions on it.

"While on a traffic stop I observed a car in the drive through to McDonald's. While conducting my traffic stop I observed 3 male subjects inside the vehicle. I continued to conduct my traffic stop and while doing so I observed the front seat passenger signing loudly while looking towards my location. I continued to watch the three subjects and while doing so I observed the back seat passenger lean towards the passenger side door extending his right arm out the window and extend his middle finger towards me. The subject continued with this action for several seconds.

While the vehicle was in the drive through there was serial other vehicles with customers in the drive through awaiting derbies. The position the vehicle was located in the drive through, customers awaiting service would have been able to witness the male subjects actions directed towards me.

I contacted officer and officer to respond to my location to assist.

I exited my marked patrol car a made contact with the drive advising him of the reason for the contact. I advised him to drive his vehicle to a parking spot. I then remade contact with the driver, front seat passenger and the back seat passenger advising all three the reason for contact.

While speaking with the driver the back seat passenger stated he didn't see what he had done wrong as it was freedom of speech. All three subjects where requested to exit the vehicle at which time they complied.

At that time the back seat passenger was advised he was being placed under arrest for disorderly conduct. While conduct was made i could smell a strong odor of intoxicants coming from his person as he spoke to myself. He was place into double locked handcuffs behind his back without incident. He was placed in the back a a marked patrol car to be transported to the police department for processing.

I made contact with the other 2 subjects who advised they were sorry for his actions as they was just trying to get some food and take him home as he had been drinking."


I think this report helps my case a great deal, the way he described it proves i did nothing illegal.

Opinions?

Also on the report the officer lists himself as the complainant.

[cdwjava]

Most of this will hinge on what whether your state courts have previously ruled on whether or not such derisive action towards an officer is considered disorderly conduct under state law. Arguably, it is. However, if the courts have not made a distinction, the arrest might very well be legal even if the state chooses not to prosecute.

Only time will tell.

It pays to behave in a civilized manner ... behaving crudely can result in the attention you seek.

[jk]

It pays to behave in a civilized manner ... behaving crudely can result in the attention you seek.

Wow, a new division for the police: the nanny cops. God save the soul that farts or belches in public.

if crude, rude, and uncivilized behaviors such as this were criminal, I'm afraid the majority of the population would be on the other side of they jailhouse door.

the cop was an idiot. It's obvious that he was having a God complex moment evidenced by the fact the cop made sure to note they apologized for the behavior, behavior that wasn't even theirs to appgize for. I wonder if they too would have been arrested if they had not apologized.

I surely hope those cops get their militaristict heads out of their respective butts and quit trying to turn anything and everything into a crime simply because they want to show the world how much power they have.

[cdwjava]

Wow, a new division for the police: the nanny cops. God save the soul that farts or belches in public.

Civil behavior is always best as it avoid problems with friends, strangers, and even the police.

Once again, all because someone CAN do something doesn't mean they SHOULD.

And, if you choose to engage in behavior that gets you noticed, don't complain when you get the attention you seek. Flip off a cop, don't be surprised if he watches you and pulls you over for the first violation he sees. Yeah, it may be cheesy, but it's a predictable reaction in many instances - and would be perfectly lawful as the subjective reasoning for a stop and a cite is not important so long as the objective legal reason is met. I personally don't waste my time on people like that because I find they are usually at the low end of the gene pool and not worth my time and concern. But, late at night, this sort of behavior is also very often synonymous with inebriation and can be a good indicator of impairment, in my experience.

the cop was an idiot. It's obvious that he was having a God complex moment evidenced by the fact the cop made sure to note they apologized for the behavior, behavior that wasn't even theirs to appgize for. I wonder if they too would have been arrested if they had not apologized.

Maybe ... but, if it is also a crime in his state to act in the way he did, then it was also proper.

I personally find rude and crude behavior distasteful. It's not usually criminal here (though it can be considered a challenge to fight, and certain gestures and words can also lead to a serious "hate crime" allegation ... something I have serious problems with, but a discussion for another day), but it says a lot about the person engaging in the behavior - and nothing it says is good.

[Welfarelvr]

Maybe ... but, if it is also a crime in his state to act in the way he did, then it was also proper.

Is not that "if" the question? Supreme court precedent would tend to say it is protected speech unless the law is written in such a way the only "speech" punished is one that could cause an imminent breach of the peace. Since the police officer was across the street giving a citation to another and the OP was in a drive through lane it seems to me that if a police officer was not properly trained to the level to not breach the peace if flipped the bird, then said potential breach is not "imminent".

[cdwjava]

Without knowing the status of such law in the state in question, I can't make that determination with certainty. I suspect it will probably not be filed due to such case law, but, there may be some other ruling in the OP's state that says otherwise. In the OP's state that might be considered an imminent breach of the peace such that it might be considered a challenge to fight or a threat. I know that some courts here have seen such a gesture to be a challenge to fight, though not against a peace officer. What the status is where the OP lives, I can't say.

The officer may well have been out of line. Or, he might be very knowledgeable of the laws in his state in this regard and acted accordingly. I don't know. I suspect we'll have the answer when/if the OP ever posts back as to whether the prosecutor filed charges or not.

[Disagreeable]

I provided case law earlier in this thread, in OP's legal district, supporting his right to bird the police. However, if you were my son, I would smack you top side the head for exercising this right.

Most of this will hinge on what whether your state courts have previously ruled on whether or not such derisive action towards an officer is considered disorderly conduct under state law. Arguably, it is. However, if the courts have not made a distinction, the arrest might very well be legal even if the state chooses not to prosecute.

Only time will tell.

It pays to behave in a civilized manner ... behaving crudely can result in the attention you seek.