Austin Criminal Defense Lawyer : Austin Criminal Defense Lawyer & Attorney : Jamie Spencer Law Firm : DWI, DUI, Drug Possession : Serving Georgetown, Round Rock, San Marcos, Travis, Williamson, and Hays County, Texas

Here’s a quiz for you.

A young woman is trying to use a depleted and/or somehow otherwise broken fire extinguisher to put out the flames engulfing her car. (Right now. This is happening right in front of you.)
You tell her to wait while you run and get another extinguisher. Having made that promise, you decide not to dilly dally, but instead to run across the street to the nearest establishment that might have one.

Unfortunately, you don’t technically make it all the way across the street, because you are hit by a car. You are flung 15 to 20 feet, you require medical attention in the form of a staple in your head and a neck brace at the ER, you will walk around with a limp for a few days, but good grief, you were hit by a car and you’ll survive. Quit complaining, right?

So here’s the quiz part. You…

(a)     Are given a key to the city by the Mayor for your good deed .

(b)    Are awarded a free scholarship for the rest of your studies (let’s say, hypothetically, to finish the last two years of your finance degree at Texas A&M).

(c)     Are given the first ever million dollar Good Samaritan award from the Bill and Melinda Gates Foundation.

(d)    Are given a $300 ticket for failure to yield the right of way, or not using the crosswalk by College Station Police Officer B. Fife while you are still in the hospital.

If you picked (d) you are well suited to join the Aggieland police force, currently accepting applications. And what does the actual police department in question have to say about the fact that the prosecutor was so embarrassed by this set of facts that they felt compelled to dismiss the ticket?

College Station police said they are reviewing the case to see if the ticket was warranted.

"I have talked to the commander of the officer involved in that, and he is looking into it," said Lt. Rodney Sigler, a spokesman for the College Station Police Department. "There is a time to utilize discretion, and this may be a case where we need to."

Maybe. We’re not 100% sure, so we’re forming an entire “Special Committee of Wise Men” to look into it. If they determine that in fact he needs to be prosecuted then we’ve got the whole two year statute of limitations to refile the charges.

Insert appropriate Aggie Joke here.

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Austin defense lawyer Kiele Linroth Pace posts about an American Statesman article out today, “Some Austin police buying suspension insurance”:

Several Austin police officers, fearful that a misstep on the street will result in an unpaid suspension, demotion or firing, have begun taking out insurance policies to protect themselves from a potential monetary hit.

As Kiele notes, “I wouldn't begrudge the officers' efforts to protect themselves except that I'm pretty sure there's no insurance coverage available to cover missed or lost employment due to wrongful arrest.” Indeed. According to the article:

The insurance would cover financial losses for more routine suspensions, which result from incidents such as minor patrol car accidents, tardiness or rudeness, but could not be used in situations in which officers' actions injure a person or in which they knowingly violate the law or demonstrate "intentional wrongdoing."

For example, the policies would not cover officers suspended for drunken driving, drug use or excessive use of force, company officials said.

The Austin chapter of the ACLU has a different take:

Debbie Russell, president of the Austin chapter of the American Civil Liberties Union of Texas and a frequent police critic, said she thinks officers have a right to protect themselves financially. However, she said, she is concerned about the insurance purchase.

"I'm not sure if that is a good message for them to send, as if they are expecting to be fired or suspended," she said.

“Not sure”. Well I don’t know how I feel about it either. From a purely PR standpoint, it cries out for smart alec defense lawyers to amuse themselves by writing “aren’t-I-clever” titled posts. But apparently this sort of insurance is available in other professions, why should police be automatically excluded?

Like most things, we’ll have to wait and see what the final result here is to know the effect. How will the minor/major infraction rule be enforced?

For example, what about the “rudeness exception”? How is that measured? If police interaction with the citizenry is rude enough to warrant suspension, can it be completely unintentional? (Or is it only “major” if you’re rude to the police chief?)

The devil, as always, is in the details…
 

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From the recitation of facts in the Supreme Court of South Dakota’s recent decision reversing a defendant’s disorderly conduct conviction on the grounds of free speech:

[A]t approximately 2:00 a.m. in Brookings, South Dakota, the bars on Brookings’ Main Avenue had just closed, and the bar patrons were gathering on the sidewalks outside the bars. [The defendant] Suhn was among an estimated 100 people gathered on the sidewalk.

At this same time, two Brookings’ police officers patrolled Main Avenue in their vehicle. Officer David Gibson sat on the passenger seat of the vehicle. He had his window fully open as the vehicle approached the area where the sidewalk crowd was gathered.

As the patrol car passed the sidewalk crowd, Gibson heard Suhn yell obscenities in the direction of the police car. Specifically, Suhn yelled: “Fucking cop, piece of shit. You fucking cops suck. Cops are a bunch of fucking assholes.”

Officer Gibson leaned out of the window of the police car and made eye contact with Suhn. He identified Suhn as the speaker. Gibson also observed that the others on the sidewalk had expressions of “what are you doing?” in response to Suhn’s comments.

Officer Gibson immediately left the patrol car and walked toward Suhn, who was then standing with his back to the patrol car. The officer grabbed Suhn by the arm and arrested him for his earlier utterance. Suhn was charged and convicted of disorderly conduct. Suhn appeals, raising one issue:

Whether the circuit court’s application of the disorderly conduct statute to Suhn’s utterances amounted to an abridgement of speech in violation of the First Amendment.

The decision hits some of the highlights of 20^th Century First Amendment Supreme Court jurisprudence, citing Chaplinsky v. New Hampshire, Cohen v. California (AKA “Fuck the Draft”), Gooding v. Wilson and Lewis v. City of New Orleans among others. I don’t get to dip my foot in First Amendment waters all that often, so it’s always fun to have a refresher course.

The court reverses the conviction finding that:

As offensive or abusive as Suhn’s invective to the police may have been, “when addressed to the ordinary citizen,” Suhn’s words were not “inherently likely to provoke violent reaction.” See Cohen, 403 US at 20, 91 SCt at 1785, 29 LEd2d 284 (citing Chaplinsky, 315 US 568, 62 SCt 766, 86 LEd 1031). The circuit court erred in determining that Suhn’s utterances were unprotected speech.

While I applaud the result, I don’t know that I agree that the defendant’s words were indeed not “likely to provoke a violent reaction”. In fact, let’s take a look at the dissent’s version of the “fighting words” exception to the free speech doctrine:

Under this definition, the words spoken need not actually incite an immediate breach of the peace. Rather, they need only tend to incite an immediate breach.

Furthermore, “[t]he test is what men of common intelligence would understand would be words likely to cause an average addressee to fight.” Chaplinsky at 573, 62 SCt at 770, 86 LEd 1031.

An average addressee… that is, in this case, a police officer? The dissent wants the conviction to stand, because even though it didn’t actually happen in this case, the defendant’s words are the type that would provoke an average cop to beat the hell out of someone? Is that what they’re saying?

The irony here is that I agree with the result of the majority, but agree with some (all?) of the reasoning of the dissenters. Criminal defense lawyers are quite used to clients coming in with bruises and scrapes of all kinds in cases where they didn’t exactly show the proper amount of respect to the badge. Sometimes police do overreact to this kind of situation, and our clients – while they bring it on themselves – do suffer for it. Right there in the middle of the street.

So if fighting words aren’t free speech, and the legal test to determine whether the speaker is using fighting words is whether or not the listener is likely to react violently to them, doesn’t your free speech depend on whether or not your audience has anger management problems? That seems like an odd way to measure it.

More disturbing though is the dissent’s acknowledgment that police in general would react violently to this type of speech. Don’t they teach police that they are likely to hear this kind of nonsense, especially right after closing time? And no matter how vile the words spoken may be, isn’t actually expecting a violent reaction from the police a sad comment in and of itself?

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