6th Circuit Denies Qualified Immunity for Arrest of Man Wearing “F” the Police Shirt

In 2016, police officers in Ohio pulled a man out of a crowd because he was wearing a “F” the police T-shirt, taunted him about the shirt, and ultimately arrested him under a “disorderly conduct” law. A few days ago, the Sixth Circuit issued an opinion denying qualified immunity to these officers in the pending civil rights lawsuit. I recently discussed a West Virginia case where police apparently thought they had the power to be the language police. This has been a widespread problem for many years. It’s not really that the police have sensitive ears, or that they’re concerned about the sensitive nature of innocent bystanders. It’s about respecting what they perceive to be their authority, as well as for use as a pretext to harass or detain people who are relevant to their interests.

The Court emphasized once again that it’s illegal for police officers to arrest people for using profane language alone, including the “F” word:

“The fighting words exception is very limited because it is inconsistent with the general principle of free speech recognized in our First Amendment jurisprudence.” Baskin v. Smith, 50 F. App’x 731, 736 (6th Cir. 2002). Therefore, “profanity alone is insufficient to establish criminal behavior.” Wilson v. Martin, 549 F. App’x 309, 311 (6th Cir. 2013)….

Further, both the Supreme Court and this court have made clear that “police officers . . . ‘are expected to exercise greater restraint in their response than the average citizen.’” Barnes v. Wright, 449 F.3d 709, 718 (6th Cir. 2006) (quoting Greene, 310 F.3d at 896). “Police officers are held to a higher standard than average citizens, because the First Amendment requires that they ‘tolerate coarse criticism.’” D.D., 645 F. App’x at 425 (quoting Kennedy, 635 F.3d at 216); see also City of Houston v. Hill, 482 U.S. 451, 462–63 (1987) (“The freedom of individuals verbally to oppose or to challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”)….

We have routinely protected the use of profanity when unaccompanied by other conduct that could be construed as disorderly. See Sandul, 119 F.3d at 1255 (“[T]he use of the ‘f-word’ in and of itself is not criminal conduct.”)….

We therefore conclude that the First Amendment protected Wood’s speech and thus his disorderly conduct arrest lacked probable cause. This conclusion is consistent with those of other circuits to have considered similar issues. See Payne v. Pauley, 337 F.3d 767, 776 (7th Cir. 2003) (“[T]he First Amendment protects even profanity-laden speech directed at police officers. Police officers reasonably may be expected to exercise a higher degree of restraint than the average citizen and should be less likely to be provoked into misbehavior by such speech.” (citing City of Houston, 482 U.S. at 461)); United States v. Poocha, 259 F.3d 1077, 1082 (9th Cir. 2001) (holding that yelling “fuck you” at an officer was not likely to provoke a violent response and “[c]riticism of the police, profane or otherwise, is not a crime”); Buffkins v. City of Omaha, 922 F.2d 465, 472 (8th Cir. 1990) (plaintiff’s “use of the word ‘asshole’ could not reasonably have prompted a violent response from the arresting officers”).

The Court denied Qualified Immunity to the officers, finding that the case law was full of similar examples of illegal arrests, where officers were found to have violated constitutional rights by making similar arrests, including in cases out of Ohio, where this incident occurred. As the U.S. Supreme Court has held, “The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state,” a “conclusion [that] finds a familiar echo in the common law.”

Not only did the Sixth Circuit find that the officers had committed a false arrest in violation of the Fourth Amendment, but they also likely committed the civil rights violation of First Amendment retaliation. The three general elements of a First Amendment Retaliation claim are that:

  1. “that he engaged in constitutionally protected speech,”
  2. “that he suffered an adverse action likely to chill a person of ordinary firmness from continuing to engage in protected speech,” and
  3. “that the protected speech was a substantial or motivating factor in the decision to take the adverse action.”

[T]he defendants do not contest that Wood’s shirt was constitutionally protected speech, nor could they. Wood’s “Fuck the Police” shirt was clearly protected speech. “It is well-established that ‘absent a more particularized and compelling reason for its actions, a State may not, consistently with the First and Fourteenth Amendments, make the simple public display of a four-letter expletive a criminal offense.’” Sandul, 119 F.3d at 1254–55 (alterations omitted) (quoting Cohen, 403 U.S. at 26)…..

Here, police officers removed Wood from a public event under armed escort. That act was neither “‘inconsequential’ as a matter of law,” Wurzelbacher v. Jones-Kelley, 675 F.3d 580, 585 (6th Cir. 2012), nor just a “petty slight[] or minor annoyance[],” Burlington N. & Santa Fe Ry. Co., 548 U.S. at 68. Wood satisfies the adverse action element….

While the defendants argue that they removed Wood from the fairgrounds because he was filming people, Wood alleges that Blair walked up to him flanked by the defendants and yelled “Where’s this shirt? I want to see this shirt.” DE 55-2, Wood Dep., Page ID 468. As the officers surrounded Wood and escorted him from the building, one of them said to Wood, “You’ve been given an order to vacate the property. So you’re leaving.” Troutman Cam #1, 00:32–35. While walking Wood through the fairgrounds, with Wood repeatedly questioning whether the defendants had taken an oath to uphold the Constitution, one of the officers said they were “escorting . . . [Wood] to the front gate.” Johnson Cam 2:29–35. And while en route to jail, one officer said to Wood, “How’s that work? You got a shirt that said, ‘f the police,’ but you want us to uphold the Constitution?” Troutman Cam #2, 17:15–21. A reasonable jury, considering these facts, could conclude the officers were motivated to surround Wood and require him to leave in part because he wore a shirt that said “Fuck the Police.” We reverse the grant of summary judgment to the defendants on this claim.

Thus the case was sent back to the trial court so that the case could proceed to jury trial. You would think that police agencies and officers would get the memo by now that profane language alone doesn’t somehow trigger martial law….