At least once or twice each year we review a case of involving “contempt of cop”. You know – those cases where somebody says something – we get offended – and the next thing you know the person spouting off is cuffed and sitting in the back of the car. I get it – we are, after all, human – not robots – and we have “feelings”. But when you elect to pursue the profession of policing it comes with many requirements – one of them being to quickly grow a thick skin – our citizens require it and, more importantly, the courts require it.
So, as we look at this case today out of Arkansas, Thurairajah v. City of Fort Smithi, I suppose I should be happy that we only see these cases a couple of times a year. That said, even one or two are too many. So, let’s take a look at the facts in this case and see what the courts had to say about the officer’s action.
An Arkansas State Police Trooper conducted a routine motor vehicle stop of a mini-van operated by a mother with two small children in the back seat. During the course of the stop the defendant, Eric Roshaun Thurairajah, was operating his vehicle in the opposite direction on the 5- lane road, yelled out – FUCK YOU! Thurairajah was driving at about 35 MPH at the time of the incident and his actions did not impede traffic. The Trooper testified that the operator and both children reacted to the shout from the defendant.
The trooper completed the traffic stop and took off after the defendant. The trooper arrested the defendant for Disorderly Conduct and Thurairajah spent several hours at the county jail before being released. Ultimately, all charges were dropped.
Thurairajah filed suit alleging claims under the 1st and 4th Amendment. The defendants filed a Summary Judgment motion claiming the defendants were entitled to Qualified Immunity because the arrest was based on probable cause or, at least, arguable probable cause for the arrest or, in the alternative, the law was not sufficiently clear to provide notice that an arrest would violate 4th Amendment protections. The trial court denied the Summary Judgment motion after concluding that the trooper had violated the defendant’s clearly established rights. This appeal followed.
8th Circuit Findings
The 8th Circuit first addressed the 4th Amendment issues. Typical of most Disorderly Conduct statutes, under the Arkansas law “A person commits the offense of disorderly conduct if, with the purpose to cause public inconvenience, annoyance, or alarm or recklessly creating a risk of public inconvenience, annoyance, or alarm, he or she makes unreasonable or excessive noise.”
The court reviewed Arkansas case law and determined that there were no cases under Arkansas law where the courts had found a “two-word unamplified outburst constituted disorderly conduct”. The court determined that Thurairajah’s actions could not constitute Disorderly Conduct where “Thurairajah’s shout was unamplified and fleeting, no crowd gathered because of it, city traffic was not affected, no complaints were lodged by anyone in the community, business was not interrupted, nor were an officer’s orders disobeyed. Thurairajah’s conduct may have been offensive, but it was not an unreasonable or excessive noise”.
Based on Arkansas case law, the trooper lacked probable cause or even arguable probable cause to make the disorderly conduct arrest and the law was clearly established at the time of the arrest.
Moving on to the 1st Amendment claim the court laid out the 4 elements required to make a 1st Amendment claim:
- Thurairajah engaged in protected activity;
- The defendant trooper took adverse action that would chill a person of ordinary firmness from continuing in the activity;
- The adverse action was motivated, in part, by speaker’s exercise of the protected activity; and
- The officer lacked probable cause or arguable probable cause.
Reviewing these elements, the court concluded that:
- Thurairajah’s profane shout was protected activity;
- Arresting Thurairajah was an action that would chill continued activity;
- The arrest was motivated, at least in part, based on the content of the shout; and
- The trooper lacked PC or even arguable PC to make the arrest.
Finally, the court determined that 1st Amendment guidelines were clearly established at the time of the incident –
“The law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions. . . for speaking out. With limited exceptions not relevant here, even profanity is protected speech.”
This case will now go back to the district court for further proceedings. It remains to be seen whether the case settles or continues to trial. That said, I can’t emphasize enough the importance of growing that thick skin and letting inconsequential remarks roll off your back. It is also important to remember that in most of these cases plaintiffs will have 2 bites at the apple – they will bring a 4th Amendment claim for the improper seizure AND a 1st Amendment claim for inhibiting protected speech.