You probably wouldn’t expect to get into trouble for telling someone to “be nice.” The First Amendment and freedom of speech must protect such a harmless phrase, right?
A Yukon resident thought that until a deputy sheriff wrestled him into handcuffs.
If you haven’t seen the video of a Canadian County Sheriff’s Office deputy arresting a Yukon man, you can view it here. This incident offers an opportunity to look at interactions between citizens and law enforcement and analyze precisely what you can and cannot say to a police officer or deputy without risk of arrest.
How did “be nice” lead to an arrest?
According to the Yukon resident, he was in a public area of the sheriff’s office with his teenage daughter, attempting to file a public records request. A woman ahead of him in line was speaking with a deputy who was taking her into custody because of outstanding arrest warrants.
The Yukon man took offense at how the deputy was speaking to the woman and told him to “be nice.” The deputy threatened to arrest the man if he spoke again.
When the man told the deputy that he could not be arrested for speech and again said, “Be nice,” things quickly escalated. Multiple deputies swarmed into the small room while the first deputy put handcuffs on the Yukon resident and took him into custody.
The sheriff gave an interview explaining how the Yukon man ignored a lawful order issued by the deputy, which resulted in his arrest under Oklahoma law. According to the sheriff, failure to obey verbal commands given by a deputy or a police officer is a criminal offense.
Oklahoma law makes it a misdemeanor for any person to willfully refuse or fail to comply with lawful orders given by law enforcement officers while performing their duties. Obstructing law enforcement officers from performing their duty may be grounds for arrest under a state law that makes obstruction a criminal offense.
But do these Oklahoma statutes infringe on free speech rights granted by the First Amendment of the U.S. Constitution? A look at what the U.S. Supreme Court has to say about freedom of speech and its limits may help clarify what can and cannot be said to police in Oklahoma.
Free speech limitations when dealing with police
A city ordinance that prohibited people from engaging in verbal abuse of police officers was declared unconstitutional by the U.S. Supreme Court in 1987. The High Court ruled that verbally challenging the actions of a law enforcement officer was protected by the First Amendment. The Court also ruled that police officers confronted by verbal abuse were expected to exercise a higher level of restraint than would be expected of an average person under similar circumstances.
The 1987 case involved a man who saw police making an arrest and shouted: “Why don’t you pick on somebody your own size?” Police arrested the man under a law making it a crime to willfully interrupt police in their official duties.
However, the Court concluded that the First Amendment protected his words against restriction by the state. As a general rule, state or federal laws may restrict so-called fighting words, threats, and speech intended to incite imminent lawless action.
When does protected speech become grounds for arrest?
In regard to interactions with law enforcement, when and where you say something may be equally, if not more, important than the words themselves. For example, an obscenity shouted at a police officer driving by in a patrol car may qualify as protected speech. The same obscenity shouted while a law enforcement officer attempts to get control over a group of disorderly people could be labeled as words of incitement.
It's a fine line separating protected speech from words and actions that laws may criminalize to allow law enforcement officers to perform their duties. Before engaging with an officer, remember that the validity of your arrest and whether you can claim First Amendment protection depends on are view and interpretation of your actions and the law by the courts.
That means you might have to deal with an arrest and everything that comes along with it before you can challenge law enforcement’s actions in reaction to your speech. You’ll need representation by an experienced criminal defense attorney to be successful.
