Last fall, Chief Ken Wallentine covered the legal aspects of two traffic stops involving profanity directed at a police officer:
- The 6th Circuit decided an officer wasn’t entitled to qualified immunity for violating the plaintiff’s First and Fourth Amendment rights. The officer let the plaintiff off with a warning for speeding, then stopped her and cited her after she flipped him off when she was driving away. (I get the constitutional principles, but can reasonable minds agree it's felony stupid to thank a cop with “F*#k you?”)
- The 8th Circuit held an officer similarly unprotected from litigation and damages when he stopped a motorist who yelled “F*#k you!” as the motorist drove by the officer. The profane motorist was charged with disorderly conduct.
Chief Wallentine’s article is a good read on the law and the courts’ reasoning. Bottom-line – if you can’t let such provocation roll off you like water on a duck’s back, you may be writing your tormentor a check.
THEN THERE’S THE CODE OF ETHICS
The 6th and 8th Circuit decisions aren’t new. In the over 25 years I taught at the Alaska DPS Academy, I encountered plenty of similar cases. In addition to using them to teach the recruits about qualified immunity and constitutional law, I invited recruits to apply the Law Enforcement Officer’s Code of Ethics to these encounters they were bound to experience as officers.
The recruits identified the following passages from the Code as relevant to a citizen dropping the F-bomb on an officer.
“As a law enforcement officer, my fundamental duty is to … respect the constitutional rights of all to liberty, equality, and justice.
I will maintain courageous calm in the face of … scorn or ridicule; develop self-restraint[.]
I will never … permit personal feelings … to influence my decisions.
I recognize the badge of my office as a symbol of public faith, and I accept it as a public trust to be held so long as I am true to the ethics of police service.
I will constantly strive to achieve these objectives and ideals[.]”
In the humble opinions of my recruits, the officers in the 6th and 8th Circuit cases, and others I taught, fell short of the objectives and ideals of the Code. I agree.
It’s easy to respect the constitutional rights of citizens that respect you. The challenge comes when they don’t. I’ve had officers tell me, “I’ll respect them when they respect me.” Hmm.
I ask recruits if there’s any flaw in that thinking. They’re quiet. I sense their mental gears grinding. Eventually, one or more replies, “That lets the worst of the worse determine what kind of officer you’re going to be.” Bingo!
Using your granted authority to stop, detain and charge someone because they engaged in junior high taunting is neither calm nor courageous. Nor does it demonstrate self-restraint in the exercise of your publicly granted power. It’s a knee jerk reaction based on personal feelings, which the Code decries.
I know we hold you to an incredible standard of character and conduct. That’s why so few are up to the challenges of “the noble profession of policing.”
THEN THERE’S THE COURTROOM
Not persuaded by my recruits’ analysis of the Code of Ethics? Take it from an experienced litigator – if those 6th and 8th Circuit cases don’t settle, the defendant officers in the lawsuits will be asked to commit to the importance of the Code of Ethics. Then they’ll be asked to read those relevant passages of the Code aloud to the jury and, after each passage, they’ll be asked if they think their conduct lived up to the Code. It won’t matter what the officers answer. The point will be made with the jurors.
A WINNING SOLUTION THAT HOLDS TO THE IDEAL
It’s great to hold to the Code’s ideals. But how about a “how-to” tactic when someone’s flipping you off, and
- it’s been a tough day, and
- one of your kids is sick, and
- another is having problems at school, and
- you squabbled with your spouse, and
- your chief has given you grief about running a personal errand while on duty and you know he played at least one round of golf while at a conference on taxpayer money?
I got this tactic from Alaska State Trooper Sergeant Eric Spitzer. He was leading a group of recruits on a morning run when a local citizen started screaming obscenities at the group. With the recruits as his witnesses, Sergeant Spitzer called out in reply, “Congratulations, sir, on exercising your constitutional rights.”
The citizen was stunned into silence, at which point the Sergeant added, “And, bless your heart!” Sometimes self-restraint can be fun.
Stay safe out there and thank you for your service.