First Amendment vs. Contempt of Cop Arrests
In three days after a bystander uploaded a video titled “Cops Crash Pool Party,” the YouTube clip racked up about nine million views and raised questions in nationwide news reports about heavy-handed police tactics.
The McKinney, Texas police corporal shown in the video throwing a bikini-clad 15-year-old teen to a sidewalk was suspended pending an investigation. (UPDATE: He later resigned.) All but one of the other teens detained at the scene were released without charges.
Several questions about what comprises appropriate or lawful police conduct – and bystander conduct – arise from the video. Those questions will likely be settled in the local North Dallas court systems and among administrators at the local police department. The confrontation nonetheless raise questions about police actions sometimes called contempt of cop arrests in Oklahoma.
In this post, we will review resisting arrest laws in Tulsa, and Oklahoma resisting arrest laws. But first, we will review the Texas events as depicted in the video and news reports.
Whose Conduct Was Disorderly?
The Washington Post reported that police in the North Dallas neighborhood responded to a physical confrontation between a woman and the teen who organized the a pool party. The African American teen said the woman slapped her after an argument erupted over alleged racial comments.
An African American homeowner told CNN the confrontation started after too many kids showed up at a pool party. Homeowner association rules allow residents two pool guests. He said the teen’s friends started jumping the fence after security guards told them to leave. Then police arrived.
Throughout the video, the officer in question is seen alternately chastising teens for leaving after he ordered them to stay, and for staying after he ordered him to leave. Before he singled out the 15 year old girl for an aggressive detention, he is seen cursing:
“Y’all make me f***ing run around here with 30 pounds of goddamn gear on in the sun.”
To one group of girls standing near two boys he had ordered to the ground, he shouts “Y’all keep standing there running your mouths you’re gonna go to.”
As he shouts “leave” the girls begin to walk way. “Keep running your mouths,” he shouts, then races toward the girls, singling out the 15-year-old.
After he violently swings the girl by her arm to the sidewalk, a shout of alarm spreads among bystanders. At one point he pulls her up by the arm then slings her back to the ground. Two older boys race in, at which point he jumps up, draws his pistol and says “I’ll f***ing…”
As the officer, identified as Cpl. Eric Casebolt, kneels on the girl’s back she lifts her head off the ground. “You’re going to jail if you don’t knock it off,” he says to her.
Casebolt can be heard telling one group of girls something about “Y’all wanna film me y’all film me but you chill out,” then later says to the same girls, “I’m gonna tell you one more time, get across the street.”
Define Resisting an Officer in Tulsa
Our aim in this post is to review Tulsa resisting arrest laws. Resisting, obstruction or disorderly charges are often the official language in contempt of cop cases.
The girl singled out and thrown to the ground was not arrested, but the violent detention was typical of how a contempt of cop charge begins.
The girl was walking away as ordered. The officer did not like something she said. He charged at her with the aggressive urgency more typical of a dangerous felony arrest. Within moments, he had escalated to threatening deadly force.
Could a person be charged with resisting officers in Tulsa if police did not like their comments in a crowd control situation?
In the age when smart-phone video monitoring often means immediate publication of police actions, contempt of cop charges are probably not as likely as they once were. Without video recordings, it may be more likely that a frustrated police officer would lash out at a bystander for their otherwise lawful comments, then try justify the frustrated response with criminal charges.
Tulsa Code of Ordinaces Title 27 Section 300 (c) describe resisting officers as:
“Vocalizing or otherwise making loud noise, which repeatedly delays an officer in the performance of any official duty, after first being warned that the conduct constitutes an offense under the substances of this section.”
However, the resisting officers ordinance includes a qualifier:
“It shall constitute an affirmative defense to a violation of this section if the conduct of the defendant constituted solely protected speech, including criticism, dissent or protests directed at an officer or any manifestation of government.”
Oklahoma obstruction law is more succinct. Okla. Stat. tit. 21 § 540 says any person can be charged with obstruction of a police officer “who willfully delays or obstructs any public officer in the discharge or attempt to discharge any duty of his office…”
The circumstances under which a person might be hauled into court on a charge of resisting an officer or obstruction are myriad, but the circumstances under which a person can lawfully be convicted are more narrow.
When the U.S. Supreme Court considered the question in 1987, it concluded:
“[T]he First Amendment requires that officers and municipalities respond with restraint in the face of verbal challenges to police action, since a certain amount of expressive disorder is inevitable in a society committed to individual freedom.”
In City of Houston v. Hill 482 U.S. 451 (1987), the court struck down a Houston ordinance that made it a crime to “in any manner oppose, molest, abuse or interrupt any policeman in the execution of his duty.”
Houston’s prohibition against interrupting a police officer was very similar to Tulsa’s ordinance against delaying a police officer with a “vocalization.” Tulsa’s affirmative defense in favor of protected First Amendment criticism suggests city councilors have confronted broad latitude courts have afforded citizens within the scope of free speech.
All the same, the Tulsa ordinance – as do most obstruction arguments – leaves room for police to claim verbal protests threatened to rally physical interference with their actions, which almost always would be indefensible obstruction. You cannot incite a crowd to interfere with a lawful arrest.
When are Fighting Words Obstruction?
The facts in Houston v. Hill involved more than political protest from the sidelines. Raymond Hill shouted at a police officer to “pick on someone my size” as the officer confronted Hill’s friend.
The Supreme Court allowed the shout-out as protected speech. The court noted that “fighting words” might comprise illegal obstruction, but apparently did not consider “pick on someone my size” to be such fighting words.
The court cited Gooding v. Wilson 405 U.S. 518 (1972) for guidance on what comprises fighting words as those which: “by their very utterance, inflict injury or tend to incite an immediate breach of the peace.”
An ordinance that prohibits disorderly conduct or fighting words toward police officers might pass muster, the court concluded, but the decision recalled that Justice Lewis Powell had observed in concurrence with the Gooding Court that “a properly trained 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.'”
It is interesting to note that, in 2004, the Montana Supreme Court departed from the U.S. Supreme Court’s tolerance for fighting words targeted at police officers. The 9th Circuit in U.S. v Poocha No. 00-10283 (2001) cited Gooding and New York Times Co. v. Sullivan 376 U.S. 254 (1964) as requiring such tolerance. In City of Whitefish v. O’Shaughnessy, 704 P. 2d 1021 – Mont: Supreme Court (1985) the Montana Supreme Court said it was irrational to measure fighting words according to the likelihood of a belligerent response:
“Were we to adopt this ‘who is likely to respond belligerently’ rationale, any troglodyte could wander the streets calling young children and old men ‘fucking pigs’ because, due to their age or infirmity, they, like the well-trained policeman, will not be able to respond in a violent fashion.” the Montana court concluded.
What is Disorderly Conduct in Tulsa?
Where police cannot find a basis for a resisting or obstruction charge, they sometimes charge disorderly conduct when a bystander, detainee or arrestee verbally frustrates them. Tulsa ordinances make it an offense to “willfully disturb the public peace or quietude.”
By the Hill Court’s logic, speech that primarily disturbs the peace and quiet of police officers could be protected speech police are expected to tolerate in the scope of their duties, even if the same speech would be prohibited if shouted, say, at churchgoers entering a Sunday church service. Courts are rightfully reluctant to restrain the time, place or manner in which citizens can criticize government conduct.
On the other hand, if an Oklahoma court were to follow the Montana court’s bold departure from U.S. Supreme Court jurisprudence in Hill, police could claim they have as much right to quietude when they are controlling a disturbance as you have a right to quietude when your neighbor wants to throw a loud party.
Can I Resist Illegal Arrest in Oklahoma?
Before we conclude our review of citizens’ right to criticize cops on the job, we will address another question that some might ask. Can you resist an unlawful arrest?
The answer addresses another prong of the obstructing charge: are you obstructing the officer’s lawful duty? Whether you are the subject of arrest or someone else is under arrest, the answer is more or less the same.
If a cop’s order is legal, you must comply. If you disagree with the order, you might have some latitude to express disagreement – but you might end up in court having to prove your right to express dissent.
And what if the order is illegal? That part can be tricky.
In commentary published with the Oklahoma Uniform Jury Instructions at OUJI-CR-6-47, the Oklahoma Supreme Court Committee for Uniform Civil Jury Instructions notes that “If a peace officer lacks authority to to arrest a person without an arrest warrant and attempts to do so, the officer is a trespasser, and the person sought to be arrested may resist.” But there is more to it.
The committee cites Davis v. State, 53 OK CR (1932) and four subsequent cases in concluding that a person may use only reasonable force to resist unlawful arrest. But it also cites Ajeani v. State, 29 OK CR (1980) to conclude that even an officer’s mistaken probable cause is the basis for a lawful arrest.
In U.S. v Poocha, the court overturned a disorderly conduct conviction but upheld a conviction for refusing to obey the officer’s order. As a matter if law and as a practical matter, it is almost always best to obey a police officer’s order. If the order is to shut up, you might persist to protest at your own risk, hoping an Oklahoma defense attorney can prove in court you were within your First Amendment rights.
Video Recording Okay, Unlawful Assembly, Not
The one exception you might – usually – find cause to resist would be an order to stop video recording police activities in a public place. If police order you to disperse, you must obey their orders, but anywhere you are lawfully entitled to remain as a member of the public, you are almost always entitled to video record police activities.
If you have been charged with interfering, obstructing a police officer or resisting arrest in Tulsa, contact a criminal defense attorney at Wirth Law Office to learn more about your options. If you have been roughed up while video recording police activity or while protesting a police action, you might be entitled to civil relief. Contact Wirth Law Office to learn more.