Wood v. Eubanks, 2022 WL 369350 (6th Cir. 2022)
Most officers have, at one point or another (or maybe even often), been told to “f— off” or “f— you” and likely didn’t appreciate the sentiment. Michael Wood took it a step or two further at the Clark County Fair. Wood showed up in a shirt bearing the words “F— the Police.” Once at the fair, Wood saw several officers whom he believed had treated him poorly in the past.
Challenged by a fair official about his shirt and told to leave, Wood retorted that the officers were “thugs with badges…1, 2, 3, 4, 5, 6 motherf—ers. Six b—- a– f—ing pigs.” As he walked out, Wood continued: “F—ing thugs with guns that don’t uphold the United States Constitution. F— all you. You dirty rat bastards.”
As they escorted Wood from the grounds, the officers discussed the possibility of arresting Wood for disorderly conduct. They did so. The charges were subsequently dismissed and Wood sued, alleging false arrest and retaliation. The trial court granted summary judgment on the basis of qualified immunity for the false arrest claim and insufficient evidence of retaliation. Wood appealed and the circuit court reversed.
For Wood to succeed on his claim of false arrest on the charge of disorderly conduct, he only needed to show there was no probable cause for the arrest. But even if the arrest lacked probable cause, if the officers reasonably—but erroneously—believed there was probable cause, they could be entitled to qualified immunity.
Numerous courts have ruled that vulgar language that does not incite an immediate breach of the peace cannot support a criminal charge.
Under the disorderly conduct statute Wood was charged with violating, a person may be guilty if he “recklessly causes inconvenience, annoyance, or alarm to another,” and “causes this disturbance by engaging in specific enumerated conduct.” This includes “making unreasonable noise or an offensively coarse utterance, gesture, or display or communicating unwarranted and grossly abusive language to any person.” The offensive words spoken must amount to “fighting words,” or “words spoken [that] are likely, by their very utterance, to inflict injury or provoke the average person to an immediate retaliatory breach of the peace.”
Numerous courts have ruled that vulgar language that does not incite an immediate breach of the peace cannot support a criminal charge. The Supreme Court has held that police officers must endure more verbal abuse than the general public when the abuse is directed at challenging police actions (City of Houston v. Hill, 482 U.S. 451 (1987)). Specifically, courts consistently rule the police must endure gestures of the middle finger and liberal use of the “F-bomb” tossed their way.
The court of appeals held that Wood’s potty mouth “did not create a situation where violence was likely to result.” His vulgar speech was protected by the First Amendment as a matter of clearly established law. Thus, there was no probable cause for his arrest. His right to be free from an illegal arrest was clearly established, so it was improper for the trial court to grant qualified immunity for the officers.
The appellate court also held that a reasonable jury could conclude the officers were motivated to surround Wood and require him to leave in part because of his offensive shirt with the protected message of “F— the Police.” The court remanded the case for further action, either a trial or some other resolution. Just as officers should know by now that the First Amendment generally allows video recording of officers performing their duties, it also protects citizens who wish to complain about the officers’ performance of their duties and punctuate their complaints with profanity.