Our Asshole System: Contempt of Cop Charges and the First Amendment

By Brianne Megahan, Staff Writer Vol. 20

Contempt of Cop Charges

Theoretically, those in the U.S. are protected in expressing opposition to law enforcement officers. In reality, those who express this kind of disrespect to law enforcement officers are often arrested on “contempt of cop” charges. When an officer does not like what a subject says or how they say it, they have a slew of criminal charges they can arrest for including: resisting arrest, failure to comply, disorderly conduct, and interference with an officer.

In the Summer of 2020, thousands of people took the streets in protest of police killings of Black men and women. In cities all over the country, protestors were arrested for these kinds of charges.  However, this is not just a recent issue. In March of 1987, Lu Ann Buffkins was on a flight from Denver to Omaha. As she exited the plane, law enforcement officers stopped her. These officers were acting on a tip that a Black person would importing cocaine into Omaha on a plane arriving from Denver before 5:00pm that day. They stopped Buffkins because she happened to be the only Black person on that flight. Officers took her to the security room to interrogate her. When Buffkins did not consent to her luggage being searched, the officers told her she was free to go, and she responded with either “asshole system” or “I will have a nice day, asshole”. The officers then arrested her for disorderly conduct.

Buffkins challenged the arrest and charge successfully, but many arrested in these situations do not have the resources to fight and face sanctions for their legal conduct as a result. For decades, courts have recognized the chilling effect these “contempt of cop” charges can have on First Amendment rights, yet they remained used with frequency.

Even in the massive discussions of police power in 2020, the overuse and misuse of criminal law to address issues in society often goes overlooked.  When the “issue” criminal law ends up addressing is law enforcement officers feeling disrespected by the public rather than traditional concepts of disorderly conduct, this problem becomes more expansive. The use of these contempt of cop charges to arrest those that express opposition to law enforcement officers infringes on First Amendment rights and needs to be abandoned.

Disrespectful Words are not Fighting Words

The Supreme Court has held that “fighting words” -words which “by their very utterance inflict injury or tend to incite an immediate breach of the peace”- are excluded from First Amendment protections. However, the court also recognized that statutes criminalizing speech in this way need to be narrowly drawn to criminalize fighting words only. Additionally, courts have specifically stated that the First Amendment “protects a significant amount of verbal criticism and challenge directed at police officers.” In Lewis v. New Orleans, the court struck down as overbroad a statute that criminalized  “for any person wantonly to curse or revile or to use obscene or opprobrious language toward or with regard to” law enforcement officers.

While the statutes used may have different language, the statute struck down in Lewis is the heart of contempt of cop charges. Protecting lawful dissent has been a priority since the founding of this nation. This priority is not diminished when the dissent in question is expressed towards law enforcement officers. As mentioned earlier, there may be more leniency in cases of opposition to police authority because society expects law enforcement officers to adequately handle significant opposition.

Stifling this right, especially with criminal sanctions that often go unchecked due to the nature of the U.S. criminal justice system, is in direct conflict with the core values of the First Amendment. Despite the protections put into place by the courts, contempt of cop charges are still being used with frequency and little oversight.

The Ferguson Report and Current Contempt of Cop Cases

            In the investigation of the Ferguson Police Department following the killing of Michael Brown, the Justice Department highlighted the department’s use of contempt of cop arrests noting “these incidents . . . are propelled by officers’ belief that arrest is an appropriate response to disrespect.” Not only do the officers believe what they are doing is lawful, but supervisors explicitly condone it.  

As is the fear with any overbroad policy, the potential that implicit bias impacts this vast discretion is a concern. It is well understood that Black people in the U.S. are viewed as more dangerous and more hostile. This implicit bias leads to conduct being viewed as disrespectful when coming from a Black person but tolerated when coming from a White person. This is exacerbated by these charges being largely based on the officers’ subjective descriptions of the interactions.

The Ferguson Report outlines several examples of the department using this power against Black subjects for conduct like cursing, talking back, and giving the middle finger. This conduct is lawful opposition, and at times it clearly did not meet the statute’s requirements, but that did not matter to the law enforcement officers. Subjects were arrested and charged; many plead guilty. Even when charges are dismissed and the system “gets it right,” collateral consequences of arrest and indictment have already impacted the subject’s life.

Conclusion

Despite the decades of concern surrounding criminalizing speech and specifically criminalizing people opposing police action, contempt of cop charges are still on the books. Even those that are narrowly drawn are not enforced consistently with their purpose. Changes are overdue in both legislation and enforcement.

Criminal statutes need to be restructured and narrowed to explicitly ensure that speech in opposition to police action is not included, even when police view it as disrespectful. Police departments need to prioritize de-escalation training and ensure their officers know the rights of the people they are employed to protect.