Whether Spoken or Gestured, Cops Should Usually Ignore the F-bomb

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Thurairajah v. City of Fort Smith, 2019 (8th Cir. 2019)

A trooper was performing a traffic stop on a van pulled to the shoulder of a busy five-lane highway. Inside the van were a mother and her two young children. As they were stopped, Eric Thurairajah drove past and yelled “F**k you!” out of his car window. The trooper noted both the two young children visibly reacted to Thurairajah’s shouted expletive.

The trooper ended the traffic stop of the van and pursued Thurairajah, stopping and arresting him for disorderly conduct. The trooper believed the shout constituted “unreasonable or excessive noise” under the law. Thurairajah spent several hours in jail, but no formal charges were filed.

Thurairajah sued the trooper, alleging retaliation for exercising his First Amendment right to curse at an officer and his Fourth Amendment right to be free from unreasonable seizure. The trooper countered he should be protected by qualified immunity because he had probable cause, or at least arguable probable cause, to arrest Thurairajah for disorderly conduct.

Publicly shouting foul language that doesn’t involve extended loud shouting and disruptive behavior or amplified sound was not prohibited by the state’s disorderly conduct statute.

The appellate court held qualified immunity did not apply because the law was clearly established: Publicly shouting foul language that doesn’t involve extended loud shouting and disruptive behavior or amplified sound was not prohibited by the state’s disorderly conduct statute. Thus, there was no probable cause to arrest for disorderly conduct.

Citing the black letter rule of the Supreme Court decision in Cohen v. California (403 U.S. 15 (1971)) (a defendant walked through a courthouse corridor wearing a jacket bearing the words “F**k the Draft”), the court also held Thurairajah’s speech directed at the trooper was clearly established and protected by the First Amendment. Therefore, Thurairajah had a right to be free from retaliation for his offensive speech.

In the March issue of Xiphos, we considered the case of Cruise-Gulyas v. Minard. In that case, the court held, “[a]ny reasonable officer would know that a citizen who raises her middle finger engages in speech protected by the First Amendment.” The same lesson applies to shouting the f-bomb. Whether shouted or gestured, being told to f-off or anything similar may be evidence of poor breeding, but is also the burden of today’s public servants.

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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