Disorderly Conduct Charges for Wearing Motorcycle Club Patches?

Dear San Antonio Law Enforcement:

Please Seek Training on the First Amendment

from Someone Other Than Your Chief.

 

Love,

Millie

 

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My clients’ Disorderly Conduct cases were set for trial today in San Antonio Municipal court. They were charged with Disorderly Conduct for wearing motorcycle club patches showing they were in a motorcycle club. The cases were dismissed this morning. I was disappointed. Someone needed to explain the First Amendment to the officer that issued the citation. I had hoped I would get to during cross-examination. For some reason, the licensed attorney that is running the City Attorney’s Office refuses to properly explain the law to LE in SA.

The complaint against my clients stated that they committed a crime by wearing their motorcycle club patches as follows: “defendant…intentionally or knowingly made an offensive display by wearing of gang colors or paraphernalia, in a public place and the said display tended to incite an immediate breach of the peace.”

 

There is a lot wrong with this charge, but here are just a few of the issues:

 

 

1.     The Right to Associate & Symbolically Express Association Via Clothing

 

Americans enjoy a freedom to associate, even with groups law enforcement may dislike. United States v. Robel, 389 U.S. 258, 269 (1967). The government may not sanction us based solely on our membership with an unpopular group. Id.;and Scales v. United States, 367 U.S. 203 (1961). The Supreme Court has long ruled against government action that imposes criminal sanction or denies rights “solely because of a citizen’s association with an unpopular organization.” Healy v. James, 408 U.S. 169, 185-86 (1972). This is true even if some members of the organization do engage in criminal activity. NAACP v. Claiborne Hardware Co., 458 U.S. 886, 920 (1982).

  Wearing motorcycle club garb is protected by the First Amendment. Sammartano v. First Judicial District Court, 303 F.3d 959 (9th Cir. 2002); Piscottano v. Murphy, 511 F.3d 247, 274 (2nd Cir. 2007).

 

2.    The Fifth Amendment Protects Our Liberty Interest to Dress as We Please

The Fifth Amendment protects various liberty interests, including that of dress and appearance: “Regarding the existence of a liberty interest in dress and appearance….  a substantial majority of the courts considering the issue had held that such a liberty interest does exist.” Hodge v. Lynd, 88 F. Supp. 2d 1234, 1246 (D.N.M. 2000). Moreover, “[o]rdinances attempting to regulate what the general public wears, on public streets and in other public areas, have not fared well.” Hodge v. Lynd, 88 F. Supp. 2d 1234, 1243 (D.N.M. 2000) (citing DeWeese, 812 F.2d at 1369–70; see also City of Harvard v. Gaut.

 

3.    The First Amendment Protects Our Speech, Except for “Fighting Words”

         Now, I’m going to discuss the First Amendment protection for profane language directed at officers. My clients did not cuss out the cop. The reason I address cussing at cops is because even if my clients were wearing clothes that said “ACAB,” or the classic “Fuck the Police,” or any other insulting language, they still could not have been constitutionally prosecuted for it.

         The rights to associate and express association are sufficient by themselves to say that this charge was unconstitutional. BUT – even if we assume that the right to associate and symbolically express association didn’t cover my clients, the officer still should not have charged them with Disorderly Conduct for mere words.

         Courts across this country have correctly applied First Amendment principles to prevent the police from criminalizing those who direct language at them, no matter how hostile and abusive the language used. In the Matter of the Welfare of SLJ, 263 N.W.2d 412 (Minn. 1978) (reversing conviction for disorderly conduct for “fuck you, pigs” to police officers); Diehl v. State, 451 A.2d 115 (Md. 1982) (conviction reversed for disorderly conduct for saying “fuck you, Gavin” to a police officer); City of Bismarck v. Schoppert, 469 N.W.2d 808 (N.D. 1991) (reversing disorderly conduct conviction for saying “fucking bitching cop,” “fuck you” three times, “fuck my ass,” and “you don’t know who you’re fucking with” to the police); LAT v. State, 650 So.2d 214 (Fla. 1995) (reversing conviction for “you fucking cops, what the fuck do you think you’re doing? You are full of bullshit. This is bullshit. This is abuse,” and more directed at police); Swann v. City of Huntsville, 455 So.2d 944, 950 (Ala. Crim. App. 1984) (“this is some shit… damn you”); Ware v. City & County of Denver, 182 Colo. 177, 511 P.2d 475 (1973) (“fuck you”); People v. Justus, 57 Ill.App.3d 164, 372 N.E.2d 1115 (1978) (hysterical yelling and screaming over parking ticket); People v. Gentry, 48 Ill. App.3d 900, 363 N.E.2d 146 (1977) (stating the defendant’s presence in a neighborhood was “none of [the officer’s] fucking business”); Cavazos v. State, 455 N.E.2d 618 (Ind. App. 1983) (“asshole”); State v. John W., 418 A.2d 1097 (ME 1980) (“hey, you fucking pig, you fuckin’ kangaroo”); and my favorite State v. Hampton, 66 Ohio App.3d 30, 583 N.E.2d 400 (1990) (“just because you’ve got a fucking badge you think you can fuck with poor people…fuck you and your gun”); and more.

         I’m going to summarize the law on this, and you can read the more elaborate version below, if you like.* Simply: The police can’t arrest people for words alone. The words must be so extreme that they would cause an average person on the receiving end of words to want to physically fight and hurt the speaker. If the words are directed at a police officer, we expect police to control themselves. Words that would make a civilian want to fight the speaker cannot be criminalized if they’re directed at a cop because we hold the police to a higher standard.

More simply:

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Restated again, for the cheap seats in the back, these clients could not be constitutionally criminalized for merely wearing motorcycle club patches, no matter what law enforcement thinks of them. They have a constitutionally protected right to associate and express their association. And, law enforcement can’t constitutionally criminalize mere words that aren’t “fighting words.”

 

Curious about why the police in San Antonio think they can get away with stuff like this? Watch this press conference by the San Antonio PD Chief of Police and the City Attorney (who should know better):

https://www.youtube.com/watch?v=Mkg0Kt3c1Rw

When was the First Amendment repealed in San Antonio? And, who told them they had the power to do that?

 

The conviction they discuss in the press conference involved a man that represented himself (and he wasn’t qualified to do so) in a bench trial (no jury of his peers), and he (unfortunately) raised no constitutional arguments during his trial. The police and prosecutor crowing about this conviction are like a pro football player bragging about how he beat up a petite woman while the rest of the team kept her from leaving the room. That’s not what you call a fair fight.

 

The chief claims you cannot insult a police officer in an “aggressive” way. I beg to differ. Now, if a person cussing out an officer interferes with the officer, that could be a charge (TPC §38.15), but words directed at officers are themselves protected by the First Amendment.

 

For an officer to legitimately claim that words directed at him were “fighting words,” he would have to state under oath that he, the cop, was about to physically fight and hurt the speaker. An officer moved to violence based on speech alone SHOULD NOT BE AN OFFICER. But, I digress.

 

I’m glad my clients weren’t dragged through a jury trial, but I regret that the officer wasn’t.

 

 

* Words directed at a police officer, or read by him, cannot satisfy the “fighting words” requirement to provide probable cause to arrest or cite someone for disorderly conduct. Brooks v. City of W. Point, 639 F. App’x 986, 999 (5th Cir. Feb. 11, 2016) (citing Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2008)).

The United States Supreme Court has clearly mandated that statutes that outlaw “fighting words” must be narrowly limited to punish only that which “have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.” Gooding v. Wilson, 405 U.S. 518, 524 (1972). The Supreme Court has referred to this protection as one that implicates one of our “fundamental societal values.” Cohen v. California, 403 U.S. 15, 24-25 (1971). Because the protection is so fundamental, the legal interpretation of fighting words statutes must be narrow and must not be used to punish protected speech so as to ensure that the freedom of expression is not harmed. Gooding, 405 U.S. at 522.

Utterances that are abusive, vulgar, offensive, harsh, disgraceful, or insulting are not qualified as fighting words merely because they are abusive, vulgar, offensive, harsh, disgraceful, or insulting, as a matter of constitutional law. The key element is that there must be an objective likelihood that the person to whom the comments are addressed would be moved to an immediate violent reaction in retaliation. Id. at 528.

Physical proximity and immediacy are important in the fighting words analysis to determine whether words were used as a non-verbal tool to provoke violence. Id at 523; and see Coggin v. State, 123 S.W.3d 82, 91-92 (Tex. App.—Austin 2003). In this way, states are permitted to criminalize fighting words, not as words, but because they carry that key non-speech element of provoking violence. R.A.V. v. City of St. Paul, 505 U.S. 377, 386 (1992). Proximity and immediacy, however, do not end the inquiry because the official status of the addressee is also key.

Most Jurisdictions Expect Police to Control Themselves (Except San Antonio):

When words are uttered at police officers, the fighting words doctrine requires an even narrower interpretation. City of Houston v. Hill, 482 U.S. 451, 462 (1987); Spiller v. City of Texas City, Police Dep’t, 130 F.3d 162, 165 (5th Cir. 1997). We as a society expect police officers to be able to exercise a greater degree of restraint than the average person because the First Amendment “protects a significant amount of verbal criticism and challenge directed at police officers.” Hill, 482 U.S. at 461. Our jurisprudence narrows the inquiry with words directed at the police because of “the constitutional shield [that protects] criticism of official conduct.” New York Time Co. v. Sullivan, 376 U.S. 254, 273 (1964).

Allowing a police officer, who is the recipient of words, to then arrest and/or charge the person for those words constitutes content-based discrimination, or viewpoint discrimination, which is presumptively unconstitutional. R.A.V., 505 U.S. at 382. Courts must carefully guard against the danger that an officer may arrest someone because he felt personally insulted. Hill, 482 U.S. at 465-67 (“[…] we have repeatedly invalidated laws that provide the police with unfettered discretion to arrest individuals for words or conduct that annoy or offend them.”).

Free speech is at its most protected, “with respect to criminal prosecution for speech directed at public officials.” U.S. v. Poocha, 259 F.3d 1077, 1081-82 (9th Cir. 2001) (overturning disorderly conduct conviction for yelling “fuck you” to a police officer).