Giving Police Officers the One Finger Salute – How Disorderly Can A Single Finger Be?

I am going to be honest; the one finger salute is by far one of my favorite symbols for expressing various emotions.  And as a Cleveland Browns fan, I utilize the one finger salute as a sign of frustration every Sunday afternoon during the football season.  But that comes with the territory of being a Browns fan.

The use of the middle finger in human culture is nothing new.  The gesture has been around since the time of Aristotle and was used throughout the ancient Greek and Roman times, the Middle Ages, and eventually modern society.  Society’s continued use of the middle finger, however, seems to have made a once very obscene gesture into an everyday common occurrence.  We see movie stars, professional athletes, and even politicians use the middle finger as a sign of jest versus a sign of obscenity.   In a video from 2005, former president George W. Bush is shown flicking off the camera after he jokingly told his aide to leave him alone.  You can hear the aides and President Bush laughing about giving the camera guy the middle finger.  President Bush states that it is his “one finger victory salute.”

Now that we are in the age of social media, we are inundated with pictures and videos of individuals throwing up the middle finger as a sign of jest and comedy.  Whether it is through Facebook, Instagram, or any other social media outlet, society sees the middle finger gesture on a daily basis.  Some pictures and videos can be construed as being obscene, but for the most part they are funny.

Setting the comic relief aside, using the middle finger in public towards private individuals or even government authority can, more often than not, lead to a citation or arrest for Disorderly Conduct.  Before going any further, I believe it would be helpful to take a quick look at the Disorderly Conduct Statute.

Disorderly Conduct, under R.C. 2917.11 states:

(A) No person shall recklessly cause inconvenience, annoyance, or alarm to another by doing any of the following:

(1) Engaging in fighting, in threatening harm to persons or property, or in violent or turbulent behavior;

(2) Making unreasonable noise or an offensively coarse utterance, gesture, or display or communicating unwarranted and grossly abusive language to any person;

(3) Insulting, taunting, or challenging another, under circumstances in which that conduct is likely to provoke a violent response;

(4) Hindering or preventing the movement of persons on a public street, road, highway, or right-of-way, or to, from, within, or upon public or private property, so as to interfere with the rights of others, and by any act that serves no lawful and reasonable purpose of the offender;

(5) Creating a condition that is physically offensive to persons or that presents a risk of physical harm to persons or property, by any act that serves no lawful and reasonable purpose of the offender.

As you can tell by reading this statute, it is very easy to see how the use of the middle finger or similar obscene language could be construed into the Disorderly Conduct statute.  Now you may be thinking to yourself how can the government criminalize this type of language and not violate my right to free speech under the First Amendment?  Is it not my right to express myself as I see fit if I want to protest the government or the police?  Those issues were put to test with the Ohio Supreme Court and the United States Supreme Court.  Specifically, when does free speech become unprotected fighting words in the context of police interaction?

In the hallmark case of Cincinnati v. Karlan, the Ohio Supreme Court was asked to determine if Section 901-d4 of the Cincinnati Code of Ordinances only punished spoken words. (The ordinance at issue is very similar to R.C. 2917.11, stated above).  In Karlan, Defendant Karlan was asked by a uniformed police officer if he had permission to tamper with an automobile parked in a police impoundment area.  Karlan shouted back at the police officer, “I hate all you f*cking cops, get out of my way you f*cking prick-ass cops.”  Soon after this dialogue, Karlan was arrested under Section 901-d4 of the Cincinnati Code of Ordinances.

At the time of Karlan’s arrest, there was much debate over the definition of protected speech.  The United States Supreme Court laid this to rest with a majority of opinions finding that “no matter how rude, abusive, offensive, derisive, vulgar, insulting, crude, profane or opprobrious spoken words may seem to be, their utterance may not be made a crime unless they are fighting words defined by that tribunal.”

Based on this rationing, the Ohio Supreme Court found that “persons may not be punished under Section 901-d4 of the Cincinnati Code of Ordinances, for speaking boisterous, rude, or insulting words, even with the intent to annoy another, unless the words by their very utterance inflict injury or are likely to provoke the average person to an immediate retaliatory breach of the peace.”  Unfortunately for Karlan, his words towards the police officer were construed to be fighting words, which are unprotected speech.

Even after the Karlan case, there have been additional cases that address the same issue raised in Karlan, but not too many deal with the use of the middle finger.  In looking for a case specifically dealing with the use of the middle finger towards police officers, I came across a case out of the U.S. Court of Appeals for the Second Circuit where the court spoke in detail about the use of the middle finger towards a police officer and how it relates to Disorderly Conduct.  Now, this case has been circulating on various website pages and social media pages where the commentators not only talk about the case but on some levels encourage people to extend the middle finger to police officers because there is no fear of being charged with Disorderly Conduct!  Hey, if it is on the internet it must be true, right?!?  The case in question is Swartz v. Insogna.

In Swartz v. Insogna, John Swartz was driving with his wife on their way back from a game; John was in the passenger seat.  While John’s wife was driving, he noticed a police cruiser using a speed detecting radar device at an intersection.  Not liking what the police officer was doing, John extended his right arm outside the passenger side window and extended his middle finger over the car’s roof.  John and his wife made it back home, got out of their vehicle, and then noticed police car coming up the street and eventually stopping at their house.  John and Officer Insogna went back and forth over whether or not Officer Insogna had the right to stop them, which eventually led to the arrest of John for Disorderly Conduct.  This charge was ultimately dismissed on speedy trial grounds.  John and his wife soon after file suit against the police department and Officer Insogna.

In his deposition, Officer Insogna stated that after John gave him the middle finger, he decided to follow the car “to initiate a stop on it.”  The reasons for the stop are (1) John’s gesture “appeared to me he was trying to get my attention for some reason,” (2) “I thought that maybe there could be a problem in the car.  I just wanted to assure the safety of the passengers,” (3) “I was concerned for the female driver, if there was a domestic dispute.”  Officer Insogna further stated in his deposition that he did not observe any indication of a motor vehicle violation.

Needless to say, the U.S. Court of Appeals in the Second Circuit did not buy what Officer Insogna was stating in his depositions.  The Court stated:

“Perhaps there is a police officer somewhere who would interpret an automobile passenger’s giving him the finger as a signal of distress, creating a suspicion that something occurring in the automobile warranted investigation.  But the nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness.  This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity.  Surely, no passenger planning some wrongful conduct toward another occupant of an automobile would call attention to himself by giving the finger to a police officer.  And if there might be an automobile passenger somewhere who will give the finger to a police officer as an ill-advised signal for help, it is far more consistent with all citizens’ protection against improper police apprehension to leave that highly unlikely signal without a response than to lend judicial approval to the stopping of every vehicle from which a passenger makes that gesture.”

Based on this, the Court found the stop unlawful which would negate the Disorderly Conduct arrest.  Although the Court did a great analysis of the use of the middle finger towards a police officer, this analysis mainly went to reasonable suspicion to stop a vehicle, not to the Disorderly Conduct charge.  The Disorderly Conduct charge as it related to the use of John’s middle finger, the Court simply stated “such a gesture alone cannot establish probable cause to believe a disorderly conduct violation has occurred.”

Looking at the Karlan case, I do not believe giving the middle finger towards a police officer in certain situtations will rise to the level of unprotected fighting words.  And the very popular Insogna case circulating the internet lends very useful arguments to combat a Disorderly Conduct charge based on the use of the middle finger.  But, what I believe and what these internet commentators are preaching will not stop a police officer from placing you under arrest for Disorderly Conduct if you give him the middle finger.  Bottom line is that when facing a charge of Disorderly Conduct for giving a police officer the middle finger, you will have to fight the charge and most likely fight that charge at the appellate level to be acquitted.

So, if you want to avoid an arrest and costly legal bills, I would caution you from extending your middle finger towards a police officer.  However, if you just cannot resist that urge to show your frustration, make sure your attorney is on speed dial because you are going to need one!

The Perils of Pleading No Contest

There are four pleas an Ohio criminal defendant can enter to a complaint or indictment: (1) not guilty, (2) not guilty by reason of insanity, (3) guilty and (4) no contest.  Many people believe the correct thing to do when they are of the belief they have actually committed the crime is to simply plead no contest.  In my experience defendants are not quite sure why this is the case other than perhaps friends and family members advised them that it is the correct course of action.  Hey, your not pleading guilty, and it gets the case over with, right?

Pleading no contest is often the correct thing to do, but an interesting appellate decision in State v. Martin, 2013-Ohio-5050 shows why this might not always be the best idea.  Before delving into the specifics of Martin, let’s first address the theory behind no contest pleas and why defendants may want or need to enter that particular plea.

A plea of no contest is essentially this: you as the defendant are not going to contest the factual allegations as stated on the face of the charging instrument (complaint or indictment), but you are not admitting your guilt, either.  If the face of the complaint or indictment contain all of the necessary elements of the offense, and thus providing a factual basis for the charge, then the court will proceed to find you guilty.  If the charging instrument is deficient for some reason (e.g., it fails to state an essential element of the charge), the court will have to find you not guilty.  Again, in theory, the idea is that you are simply not contesting the allegations, it is not as if you are acquiescing in state’s request to convict you.  While defective indictments/complaints are not necessarily uncommon, they are hardly something criminal defense attorneys encounter daily.  While we always review the indictment or complaint for legal sufficiency, it’s rare that you hit the jackpot.

So, the logical follow-up question for the layperson is, “if the judge is most likely going to find me guilty anyway, what is the purpose in pleading no contest?”  In truth, there are a few important reasons aside from the fact the indictment might fail to adequately charge a crime.  First, if your conduct resulted in damages to another person (e.g. an OVI crash), it is important to plead no contest so that your criminal conviction cannot be introduced against you in a subsequent civil trial.  If you plead guilty, the plaintiff in the civil suit can introduce a certified judgment of conviction at trial to prove that you were in fact driving impaired when you crashed.  Because you admitted guilt in the OVI criminal case, you cannot later deny that you were in fact drunk.  However, by pleading no contest, the plaintiff in the civil suit would retain the burden of having to prove that you were a drunk driver when you caused the accident and damages to the other party.

Another common reason, and perhaps the most important for criminal practitioners, is to preserve for appeal an objection to the trial court’s pre-trial rulings (motion to dismiss, motion to suppress evidence).   For example, if the court overrules a motion to suppress evidence, a defendant must plead no contest in order to appeal that decision.  If the defendant pleads guilty, by making a complete admission of guilt, he or she waives any right to later claim the trial court erred in its decision not to suppress the evidence.  Nobody cares if the cops violated your fourth amendment protections when you freely admit you are guilty.  Remember, when a court suppresses evidence it is not declaring the defendant is innocent of the crime.  Rather, the court merely prohibits the state from using the illegally obtained evidence against you in its effort to prove your guilt.

Now that we’ve engaged in a macro-level refresher on no contest pleas, let’s take a look at the Martin decision and why it may be a bit of a pit fall for criminal practitioners.  The defendant in Martin was charged with felony domestic violence (DV), which essentially requires the accused to “knowing cause or attempt to cause physical harm to a family or household member.”  Martin argued in the trial court that the victim, his step-sister, was not a “family or household member” as that term is defined under statute.  The defendant and the state both submitted briefs to the trial court regarding their respective legal positions.  After considering the arguments of both sides, the trial court issued a written decision stating how it intended to instruct the jury as to the definition of “family or household member,” and without going into the minutia here, let’s just say it was adverse to the defendant.  Based upon the trial court’s written decision, the jury instructions it intended to provide at trial was certainly going to allow the jury to find beyond a reasonable doubt that a step-sister falls within the definition of a “family or household member.”  Upon seeing the writing on the wall the defendant decided to cut-bait, plead no contest to the DV and have his legal argument decided by the court of appeals.  Or so he thought.

The Second District Court of Appeals quickly overruled his argument that the trial judge erred in finding him guilty of the DV because the victim was not a family or household member under law.  The appellate panel determined that by pleading no contest to the offense of domestic violence, the defendant did not contest the factual allegations in the complaint, including that the victim was a “family or household member.”  The defendant can’t first admit that she is a family or household member at the trial level and then claim she wasn’t when the case is on appeal.  If the defendant wished to contest that issue, he had to have a trial and argue that the state failed to prove that essential element of DV.

So, where does this leave us as criminal practitioners?  Aren’t there many factual allegations contained in indictments that we essentially admit upon a no contest plea after the trial court overrules a pre-trial motion?  The answer is yes, of course.  The difference between this situation and a case where the judge fails to suppress evidence or dismiss a case for violating the right to speedy trial boils down to nature of what was ruled upon by the lower court.  When the court determines the police did not violate the Fourth Amendment, he is ruling on something outside the four corners of the indictment.  The State does not alleged in the charging instrument that police acted constitutionally when they discover a defendant’s heroin.  Therefore, when the Defendant enters a no contest plea to the possession of heroin charge, while not contesting he was in possession of the drug, he is not admitting to the constitutionality of the search, thus preserving that issue for appeal.  The corollary of the Martin case for our heroin hypothetical would be if the defendant was contesting that substance was actually heroin at all.  That is a factual allegation in the indictment.  If the Defendant pleaded no contest to the indictment, he could not later argue on appeal that the court erred in finding him guilty because the substance recovered was not actually heroin.  The no contest plea admitted that fact.

While this was certainly a strange case in some respects, it does make logical and legal sense.  And this case is a helpful reminder that criminal defense attorneys must be aware of what they are preserving on appeal.  If you want to argue a fact that is alleged in the indictment, a no contest plea will foreclose that possibility.


Posted by Charles W. Morrison on November 20, 2013.




Remain Silent: Never Talk to the Police, Or Should You?

How Invoking Your Fifth Amendment Privilege Will Protect Your Ability To Remain Silent

remain silentIt is common to hear people give advice regarding how to act when they encounter the police.  Often, the advice is something along the lines of “don’t say anything at all.”  But, is this actually sound legal advice?  The answer is quite definitely, “No.”  Your failure to respond to police questioning can and will be used against you, according the recent decision by the Supreme Court of the United States in Salinas v. Texas.

In Salinas, the defendant voluntarily accompanied the police back the stationhouse for questioning about a murder.  The defendant was not in “custody” and was free to leave at any time he desired.  The defendant initially answered all of the detectives’ questions.  However, upon being asked whether the ballistics results from the shell casings recovered from the crime scene would match his weapon, the defendant said nothing in response.  Instead of saying, “I invoke my Fifth Amendment right to remain silent,” the defendant simply looked down at the floor and acted nervously.  The prosecutors later argued to the jury that the defendant’s silence and demeanor was evidence of his guilt.  After all, if you were asked that question as an innocent man, wouldn’t you have said something?

The jury ultimately convicted the defendant and he subsequently appealed the case all the way to the Supreme Court, arguing that the admission of this evidence at his trial violated his Fifth Amendment right to be free from providing testimony that may incriminate him.

So why did the Supreme Court rule that it was constitutional for the prosecutor to present this evidence at trial and argue its relevance to the jury?  The reason is that a person being questioned by law enforcement must affirmatively and unambiguously assert his Fifth Amendment right remain silent (the privilege against self-incrimination).  Oddly enough, and contrary to commonsense, simply remaining silent is not enough to invoke your right to remain silent in the face of police questioning.  Instead, the suspect must state something that unequivocally announces that he is refusing to answer questions and is asserting his Fifth Amendment privilege against self-incrimination.  If the suspect fails to affirmatively invoke his constitutional right against self-incrimination, he has waived the right and the state is free to introduce evidence of his silence at his trial.

Moreover, the “invocation rule” applies whether or not the suspect is in custody.  In fact, the defendant Salinas was not in custody and, therefore, police were not required to provide the well-known Miranda warnings to him at any time.  The Salinas decision was based in part on the Supreme Court’s 2010 decision in Berghuis v. Thompkins, in which the court ruled the defendant had waived his constitutional right, after having been provided his Miranda warnings, by remaining silent for more than two consecutive hours in response to persistent police questioning.  When he ultimately made incriminating statements to the police after breaking his prolonged silence, he did so at his own peril and without any constitutional protections.

However, the Salinas case presented a somewhat different factual scenario than Berghuis, as the dissent in Salinas correctly points out:  In Berghuis, the state introduced incriminating statements made by the defendant after he failed to properly assert his privilege (i.e. by only remaining silent); in significant contrast, the prosecutors in Salinas sought to introduce the defendant’s actual silence as evidence of guilt.  Nonetheless, a plurality of the court determined that this distinction did not warrant a different outcome than in Berghuis.  Therefore, failure to invoke the right to remain silent means that both statements made after silence while in custody, as well as the actual silence if you are not in custody, are admissible at trial.  It should be noted, that if you are in custody and simply remain silent, that silence may not be introduced into evidence – only statements made after silence.  However, this is a distinction that is important, yet probably difficult for most citizens to apply in practice.

In short, it is best not to say anything incriminating to the police, no matter how pressured you feel to do so.  However, you should not simply remain silent.  Instead, you should say only one line to the police: “I am refusing to answer your questions and I am invoking my Fifth Amendment privilege against self-incrimination.”  That should sufficiently protect your ability to remain silent whether you are in custody or out of custody and whether or not you have been provided Miranda warnings.