"...When They're Being Pushed Around"

07/30/2009

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Pepin Tuma, 33, was walking with two friends along Washington’s hip U Street corridor around midnight Saturday, complaining about how Gates had been rousted from his home for not showing a proper amount of deference to a cop. “We’d been talking about it all day,” said Tuma. “It seems like police have a tendency to act overly aggressively when they’re being pushed around,” Tuma recalled saying.

Then the group noticed five or six police cruisers surrounding two cars in an apparent traffic stop on the other side of the street. It seemed to Tuma that was more cops than necessary.

“That’s why I hate the police,” Tuma said. He told the Huffington Post that in a loud sing-song voice, he then chanted, “I hate the police, I hate the police.”

One officer reacted strongly to Tuma’s song. “Hey! Hey! Who do you think you’re talking to?” Tuma recalled the officer shouting as he strode across an intersection to where Tuma was standing. “Who do you think you are to think you can talk to a police officer like that?” the police officer said, according to Luke Platzer, 30, one of Tuma’s companions.

Tuma said he responded, “It is not illegal to say I hate the police. It’s not illegal to express my opinion walking down the street.”

He got arrested for disorderly conduct.

I’m actually driven crazy by jackasses like Pepin Tuma. You started chanting “I hate the police” because you thought they had too many cars at what might have been a traffic stop, or something else entirely?

This is also the kind of case where I can see the reason behind disorderly conduct laws. Were citizens to start verbally abusing police on the street without cause and while they’re trying to handle a different situation, one can easily see how it might spread disorder and lead to dangerous situations.

Without more details, I can’t really say whether I think Mr. Tuma should have been arrested, but if not, he’s about the least sympathetic wrongful disorderly conduct arrest one can imagine. There is actually no way to write the law so that things will come out justly in every situation. A healthy relationship between the citizenry and the police requires a mutual reasonableness that can’t be codified into legalistic standards governing every situation. People like Mr. Tuma poison that relationship. He may not deserve arrest, but he certainly deserves opprobrium.

Agreed about Tuma. Which does not detract from the fact that I hate the police.

— Sanjay · Jul 30, 07:28 PM · #
Oh, come on, Conor. Tuma’s own words certainly paint him as an asshole, but if the cop did indeed say, ““Hey! Hey! Who do you think you’re talking to?.. Who do you think you are to think you can talk to a police officer like that?” then that’s a case of a cop brimming with the fake authority implicit in his badge, baton, and gun.

That’s not a cop who said, “Hey, this is a tense situation, quit it.” Or, “Stop, you’re making it worse.” Or even, “You don’t know what the fuck’s going on, move on or get arrested.” No, that cop — if he behaved as reported — behaved in a fashion designed to assert his power over someone else because it had been impugned.

— Erik Vanderhoff · Jul 30, 08:08 PM · #
Every police officer I’ve ever dealt with has been basically an asshole. That said, everyone knows this and Mr. Tuma is being stupid and obtuse. Anyone who chants “I hate police” knows that police are often cocky and insecure, so he got what he asked for. No sympathy here.

That said, is it ok to make obscene gestures at police? I mean, I’d probably expect to be harassed and/or arrested for flashing a middle finger, but is there any conceivable way I could actually be charged?

— Joel Martin · Jul 30, 08:10 PM · #
“People like Mr. Tuma poison that relationship.” This is only partially correct, people like Mr. Tuma with badges, guns and in uniform poison that relationship.

— mrpopo · Jul 30, 09:45 PM · #
What what whaaaaaaaaaaaaaaaaaaaat! You’re saying that you and I don’t have the right, in this country, to say “I hate the police” if it strikes us? Are you fucking serious, Conor?

— Freddie · Jul 30, 09:55 PM · #
Freddie, that isn’t what I said, is it? We certainly have the right to say, “I hate the police,” and probably even to shout “I hate the police” unprovoked at officers in the middle of conducting police business — though the latter case might justify a response depending on the circumstances.

As I said, without knowing more details, I don’t want to weigh in on the arrest here, but suffice it to say that even if, as is quite possible, Mr. Tuma had the right to do what he did, he still shouldn’t have done it.

— Conor Friedersdorf · Jul 30, 10:24 PM · #
There will probably be rash of such incidences, with people trying to get their 15 minutes of fame and a free beer at the White House.

— mike farmer · Jul 30, 10:31 PM · #
Sure, and he’s an idiot. But people invoking their constitutional rights are not the reason for disturbing the peace or disorderly conduct laws. Those laws are written to prevent rioting or other kinds of real civil unrest that can cause genuine harm to property or person.

It is very, very scary, to me, to see the number of people in our media who seem to think that the police should have the discretionary power to arrest someone for whatever reasons they dream up. In a society of laws and rights, if police don’t have a statutory basis for conducting an arrest, they can’t arrest. If not the very idea of limits on police power is meaningless.

— Freddie · Jul 30, 10:31 PM · #
He’s about the least sympathetic wrongful disorderly conduct arrest one can imagine.

My candidate for “least sympathetic” is the plaintiff in McCormick v. City of Lawrence, 2008 WL 1793143 (D.Kan. 2008). Here are the facts.

When plaintiff returned home, he could not enter his driveway because defendant Crouse’s patrol car was parked there. After waiting behind the patrol car with his turn signal flashing, plaintiff honked his horn. Defendant Crouse then moved his patrol car out of the way. Plaintiff turned into his driveway, exited his automobile, and carried several items into his house.

Plaintiff then returned outside and “stood in [his] yard and asked Crouse why he had been illegally parked in front of [his] driveway.” At first, he did not yell or use profane language; he was calm and jovial, albeit slightly perturbed at how defendant Crouse had been illegally parked and failed to move his car for several minutes after being alerted to Mr. McCormick’s presence. When defendant Crouse responded that he was not illegally parked, plaintiff called him a “cognitively impotent pig.” Defendant Crouse then “yelled with great fury that if [Mr. McCormick] did not watch it, ‘this pig [was] going to take [him] to jail.’ “ This angered plaintiff, he told defendant Crouse to hold on one minute, and he went back inside his home to retrieve his video camera. The rest of the incident is captured on video.

That video establishes that plaintiff walked around the police car to the middle of the street near the driver’s door of the patrol car to confront defendant Crouse. He asked if defendant Crouse was going to arrest him, and Crouse responded that he might take him to jail for disorderly conduct. Mr. McCormick proceeded to call defendant Crouse a “pig” and a “stupid ass pig,” commenting that he was using the camera “to film you fucking pigs all the time, ‘cause you pigs make me sick.” He explained that defendant Crouse was threatening to violate his rights by threatening to arrest him for coming out there and asking what his “pig ass” was doing parked in front of his driveway. In response to defendant Crouse’s remark that the arrest would be for being disorderly, Mr. McCormick asked, “Am I being disorderly?” And, defendant Crouse responded, “You are when you’re out here calling me a pig.” Mr. McCormick told defendant Crouse to get out of his neighborhood and they debated the issue of whether it was permissible for defendant Crouse to have been parked in front of his driveway. The dialogue concluded with Mr. McCormick telling defendant Crouse to “have a good evening, pig” and to “[t]ry not to park in front of my driveway, anymore.”

The standard for First Amendment retaliation claims is that, generally, the plaintiff must show:

(1) that the plaintiff was engaged in constitutionally protected activity; (2) that the defendant’s actions caused the plaintiff to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and (3) that the defendant’s adverse action was substantially motivated as a response to the plaintiff’s exercise of constitutionally protected conduct.

Here’s the analysis by the court (long excerpt):

Defendant Crouse contends that he is entitled to summary judgment on the grounds that Mr. McCormick was not engaged in constitutionally protected activity because he used “fighting words .” In Houston v. Hill, 482 U.S. 451 (1987), the Supreme Court reasoned that “the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers,” and that “[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” Id. at 461-63. That freedom is not without limits, however, in that “ ‘fighting words’ which ‘by their very utterance inflict injury or tend to incite an immediate breach of the peace’ are not constitutionally protected.” Id. at 463 n. 12 (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)). The fighting words doctrine has an even narrower application where, as here, an individual’s speech offends a police officer. Id. at 462. This is because a properly trained police 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. Chaplinsky, 315 U.S. at 571-72. As the Supreme Court observed in Hill, speech is often provocative and challenging, but it is nevertheless protected unless it is shown likely to produce a “clear and present danger or a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” Id. at 461. Thus, the Tenth Circuit has defined “fighting words” as “epithets (1) directed at the person of the hearer, (2) inherently likely to cause a violent reaction, and (3) playing no role in the expression of ideas.” Burns v. Bd. of County Comm’rs, 330 F.3d 1275, 1285 (10th Cir.2003) (quotation omitted); accord Cannon v. City & County of Denver, 998 F.2d 867, 873 (10th Cir.1993).

In this case, the summary judgment record contains issues of fact as to whether Mr. McCormick’s speech to defendant Crouse involved fighting words. Viewed in the light most favorable to Mr. McCormick, after he went in the house he came back out and asked defendant Crouse-calmly and jovially-why he had been illegally parked in front of his driveway. It was in response to defendant Crouse’s insistence that he was not illegally parked that plaintiff first called him a “cognitively impotent pig.” Defendant Crouse then escalated the incident by threatening to take Mr. McCormick to jail. The video footage of the ensuing encounter demonstrates that plaintiff was trying to get clarification as to defendant Crouse’s purported justification for the arrest and defendant Crouse came up with an after-the-fact justification that Mr. McCormick was being disorderly. When plaintiff then proceeded to call defendant Crouse names, he insisted that he was exercising his constitutional rights in doing so and that it would constitute a violation of his rights if defendant Crouse were to arrest him for that reason. Mr. McCormick’s speech certainly consisted of epithets directed at defendant Crouse. But, the overall theme of his banter, as he himself proclaimed, was the expression of his idea that “you pigs make me sick.” The court has reviewed the video footage of a portion of the incident, and based on Mr. McCormick’s demeanor it hardly seems likely that his chiding posed such a clear and present danger that it was inherently likely to produce a violent reaction from defendant Crouse, whose professional duty is to uphold the peace. Rather, a trier of fact could conclude that he was simply voicing his opposition and challenging defendant Crouse’s police action and, as such, his speech was entitled to First Amendment protection. See, e.g., Gilles v. Davis, 427 F.3d 197, 205 (3d Cir.2005) (genuine issues of material fact as to whether “unpleasant but petty” derogatory language was sufficiently provocative to constitute fighting words).

Defendant Crouse also contends that his threat was justified because plaintiff was being disorderly in violation of K. S.A. § 21-4101©. This argument is without merit for two reasons. First, the record does not demonstrate that Mr. McCormick was being disorderly. Rather, he was just discussing the matter with defendant Crouse in a confrontational manner. He was not yelling and screaming, albeit his voice reflected a certain degree of energy and excitement about the encounter. Second, and more obviously, § 21-4101© prohibits only fighting words. State v. Huffman, 228 Kan. 186, 612 P.2d 630, 635-36 (1980); see generally United States v. McKinney, 9 Fed. Appx. 887, 2001 WL 565745, at *1-*2 (10th Cir. May 25, 2001) (defendant could not be convicted of disorderly conduct under K. S.A. § 21-4101© for telling military police officer to go fuck himself where defendant did not threaten or offer to fight the officer because the statute only prohibits fighting words and such language would not incite an immediate breach of the peace). As explained above, the record presents a fact question for the jury as to whether plaintiff’s speech constituted fighting words.

The analysis would be very similar in the Tuma’s case. I could probably be more on point by using direct authority, but you get what you pay for in the comboxes.

— Kristoffer V. Sargent · Jul 30, 10:46 PM · #
Freddie — agreed — I also see this on the tv cop shows — they make it appear cool and macho to violate rights.

— mike farmer · Jul 30, 10:50 PM · #
“We certainly have the right to say, “I hate the police,” and probably even to shout “I hate the police” unprovoked at officers in the middle of conducting police business — though the latter case might justify a response depending on the circumstances.”

What? In an ordinary liberal democracy “I have the right to do X” means “If I do X, the agents of the state will not punish me for it.” Now, maybe you mean that Tuma’s actions would justify the police swearing at him, or his friends laughing at him. But it sure sounds like you are saying that Tuma probably has a right, and the police might be justified in arresting him for exercising it. That’s just incoherent.

— DavidS · Jul 30, 11:40 PM · #
I feel like you’re making this too complicated.

Humans (particularly males) are often assholes who respond with anger when confronted or humiliated.
Polices offers are humans (and often male).
Therefore, police officers will often respond with anger when confronted or humiliated.

The question is, what can a police officer do when so angered? Is there any constraint? The status quo seems to be that a police officer, when so angered, can do anything he (or she, I guess) damn well pleases. Apparently a police officer can choke an ambulance driver, taze an old woman, arrest an innocent man in his own home, beat up a deaf, mentally handicapped man, etc, etc, when so angered. Because people, especially angry people, are not rational and will tend to use whatever force is at their disposal to overcome their embarrassment or threat to authority. Unless there are very clear, very consistent, very stark guidelines to induce some fear of reprisal into the equation, anger will win out.

And ‘benefit of the doubt’ arguments like this, Conor, serve primarily to undercut any such guidelines.

— sidereal · Jul 31, 01:05 AM · #
I love it when white privileged people debate their “rights” to say “F the police.” I really do. It shows that the police have done such a good job maintaining order that these idiots feel safe enough to “exercise their rights.”

The same people who think that the police have no right to maintain public order (except in ways they and their stupid drunk friends deem suitable) believe that its the job of the police to protect them when that order breaks down. I would love for these people to call 911 in the middle of the night when someone is breaking in their home and for the cops to say “F you idiot.” The cops do have that constitutional right to express themselves in such a way, don’t they?

— Joe Carter · Jul 31, 03:44 AM · #
The cops do have that constitutional right to express themselves in such a way, don’t they?

Yes, which is why they presumably wouldn’t be arrested for it. They would, however, be fired.

— John Schwenkler · Jul 31, 03:51 AM · #
<em>Yes, which is why they presumably wouldn’t be arrested for it. They would, however, be fired.</em>

Well, I’m sure Freddie and all the others concerned with personal rights above all would come to their defense and say they shouldn’t be fired.

— Joe Carter · Jul 31, 03:56 AM · #
such a good job maintaining order that these idiots feel safe enough to “exercise their rights.”

What? What exactly would be particularly ‘unsafe’ about ‘saying “F the police.”’ in an environment with less public order? Or are you saying that any activity other than ducking and bleeding is evidence that the police are doing a wonderful job?

I’m sure Freddie and all the others concerned with personal rights above all would come to their defense and say they shouldn’t be fired

Their right to not be fired for not doing their jobs? Who advocated for that right?

The fact that your arguments are nonsensical is sure evidence that you should more closely examine your assumptions.

— sidereal · Jul 31, 04:21 AM · #
What? What exactly would be particularly ‘unsafe’ about ‘saying “F the police.”’ in an environment with less public order? Or are you saying that any activity other than ducking and bleeding is evidence that the police are doing a wonderful job?

Let’s change this up a bit. Imagine that if instead of saying “I hate the police” these folks had said “I hate [insert racial/ethnic slur here]!” Should the police have chosen not to arrest them for disorderly conduct? I suspect that the attitude of a lot of people on this thread would change drastically.

This bizarre disrespect for cops is a sign of immaturity. Sure you have as much right to say “F the police” as the neo-Nazis have to march in parades. But is this really the type of behavior you want to be defending?

We live in a strange world where its perfectly acceptable to show open disrespect for people we hired to do a job of protecting us and then are shocked when they don’t treat us as respectfully.

— Joe Carter · Jul 31, 04:39 AM · #
I don’t think anyone’s defending the behavior, Joe; indeed, the central premise of Conor’s post was that it was stupid and uncalled-for. But that clearly doesn’t mean it was worthy of arrest.

— John Schwenkler · Jul 31, 05:13 AM · #
Let’s change this up a bit. Imagine that if instead of saying “I hate the police” these folks had said “I hate [insert racial/ethnic slur here]!” Should the police have chosen not to arrest them for disorderly conduct? I suspect that the attitude of a lot of people on this thread would change drastically.

First, contrary to your mindreading, no I don’t believe (but I leave it up to the other ‘lot of people in this thread’ to defend themselves) that someone should be arrested for shouting ‘I hate [racial slur]’. Your endorsement of the use of the lethal force of the state to terminate behavior you don’t approve of is unfortunate and, I believe, mistaken. Second, there’s a significant difference between [profession] and [racial slur]. If someone stopped in front of a street performer and shouted ‘I hate mimes!’ to one of his friends do you believe they should be arrested? If I stopped in front of the County court building and loudly said ‘I hate lawyers!’ to a friend, would you endorse my being shoved against the wall by a police officer and detained?

We live in a strange world where its perfectly acceptable to show open disrespect for people we hired to do a job of protecting us and then are shocked when they don’t treat us as respectfully.

Second first, the choice between ‘perfectly acceptable’ and ‘calls for rough restraint and arrest’ is, of course, a false dilemma and the chasm of choice between the two is vast. Second second, the police officer in question was entirely within his rights to not treat the douchebag in question ‘respectfully’. The range of disrespectful actions he could have taken runs from giving him a dirty look to yelling ‘I hate idiots on the street corner who hate cops!’ to waggling a finger at him to whatever other disrespectful activity he could imagine. However, arresting him isn’t one of his choices. Because arresting people is his profession, not his hobby. He doesn’t get to use the force of the state to take care of his own personal grievances.

— sidereal · Jul 31, 07:27 AM · #
Defending the right of people to be jerks, or racists, is not the same as claiming that jerkiness, or racism, is the preferred way of being. It’s dangerous to suggest justice should not be blind and should take into account such subjective considerations as the snotty whiteness of individuals, or their views on race, when making law enforcement decisions.

— mike farmer · Jul 31, 01:12 PM · #
“Second, there’s a significant difference between [profession] and [racial slur]. If someone stopped in front of a street performer and shouted ‘I hate mimes!’ to one of his friends do you believe they should be arrested?”

Not per se, though if it is occurring in public and enough people are doing it, it risks becoming a public disorder and potentially a cause for police involvement.

But more importantly and pertinently, there is also a significant difference, with respect to public order, between “police” and (presumably any) “[profession].” The former necessarily have a privileged position.

— Victor Morton · Jul 31, 04:56 PM · #

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