Last year, Cobb County Police arrested Amy Barnes for using profanity at them. As I mentioned in a previous blog post, while using profanity or profane gestures at the police is a bad idea, it's not a crime. (It is one of Steakley's Golden Rules that just because something is Constitutional does not mean it is a good idea.)
Ms. Barnes stood her ground on Free Speech principles. She had the Constitutional right, she asserted, to express her extreme dissatisfaction with the local law enforcement authorities. To vindicate herself, she was willing to face trial, a jury, and the risk of a wrongful conviction. Fortunately, it did not have to go that far.
Amy Barnes admits to making obscene statements Easter Sunday 2012, when she saw two Cobb County police officers questioning a burglary suspect about 7 p.m. on Austell Road. As she was riding by on her bicycle, Barnes said, among other things, “F— the police,” and “police suck,” [her attorney Cynthia] Counts said, calling the statements “a protest of police abuse.”
“Upon hearing her statements, the officers left the suspect to pursue Ms. Barnes, who they stopped and arrested,” said Counts. The burglary suspect got away. Barnes was arrested and taken to jail, charged with one count of disorderly conduct under O.C.G.A. § 16-11-39(a)(4), which bars “without provocation” the use of “obscene and vulgar and profane language in the presence of a person under the age of 14 years which threatens an immediate breach of the peace.”
The police justified this charge by alleging that a child was present when Barnes made her statement, Counts said.
“After hearing testimony from two officers and viewing a video of the incident taken from a camera in one of the officer’s cars, the judge concluded that the officers simply took issue with what Barnes had said and were determined to arrest her,” Counts said.
Clayton also concluded that the alleged presence of the child was “inconclusive” and “irrelevant,” because, “the mere presence of children does not transform the defendant’s statements into ‘fighting words.’”
“Her criticism of the police was certainly caustic, but criticizing the police and other public officials is a basic right,” Counts said. “Certainly, the police cannot arrest someone for disrespecting them by the use of a curse word.”
Ken Hodges and Alex Bartko of Rafuse, Hill and Hodges also defended Barnes, saying her “First Amendment rights were clearly violated by the arrest and prosecution.”
Hodges, a former prosecutor, said, “It is a travesty that Ms. Barnes spent 23 hours in jail, including six hours in solitary confinement. She should also not have had to spend the last year awaiting vindication. The officers should have thicker skin. There was no reason to arrest a woman on a bicycle who presented no threat.”
A couple of thoughts: It's not only police officers who should have thicker skin. We all should.
The attorney who won the case for Barnes was Cynthia Counts, who also points to a NY case where "the bird" directed at police was considered free speech as well, so this case isn't outside normal court rulings. On the contrary, I think Cobb County State Court Judge Melodie Clayton did exactly the correct thing.
That all being said, allow me to remind you of the Steakley Golden Rule that says that just because something is Constitutional - protected by law, protected by free speech - that doesn't mean it's a smart thing to do.
UPDATE: Ms. Barnes settled her case for $100,000. So maybe it wasn't such a bad idea to do what she did.
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