Monday, January 21, 2013

The "Finger" vs. the "Constitution"

In 2006, Mr. John Swartz of New York flipped off an officer who was running radar. The officer stopped him, and arrested him for “disorderly conduct”. The charge was dropped, and Mr. Swartz filed a civil right...s suit against the officer.

It’s 2013, and they’re still in court. According to the New York Times, the cop at deposition “suggested that he saw the finger as a potential call for help and followed the car because he thought Mr. Swartz ‘was trying to get my attention for some reason’ and because he ‘wanted to assure the safety of the passengers.’

Wow – now that’s service! I’ll just bet Mr. Swartz felt bigtime safe after that…

So – do you have the right to flip officer friendly the bird?

Maybe. Virginia has this crime called “curse and abuse”. In Virginia, if you curse at someone in a “under circumstances reasonably calculated to provoke a breach of the peace”, you can be convicted of a crime. There is an actual statute – Code of Virginia 18.2-416.

But wait there’s more! There is even actual case law on this. If you tell your neighbor “go f*** yourself” when you are “face to face”, it’s a crime. But at a distance of 55-60 feet, separated by a chain link fence, it’s not. Hershfield v. Commonwealth, 14 Va. App. 381 (1992). I swear -- you can’t make this stuff up.

At 50 feet, or 40, or 30, or with just a picket fence, or ditch, or driving by, or just the gesture with no words – who knows? Whatever facts you’re thinking of, the case probably hasn’t been decided yet. This is what lawyers call a “chilling effect”. The law should be clear – but it almost never is.

No one wants to test it because there’s a big risk ($ for legal fees, and potential criminal conviction) and not much reward if you win (a grudging “not guilty” accompanied by a lecture from the judge on civility). There’s supposed to be a requirement of clarity in order for the law to be enforceable – to avoid that chilling effect --but in practice, that argument almost never works.

The best advice is to be polite if you can. And why not? There’s no real downside there. However, if you do find yourself having pushed that particular envelope, a good criminal defense attorney will have your back. It’s who we are. It’s what we do.

Andre Hakes
Criminal Defense & Traffic Partner
Tucker Griffin Barnes
Charlottesville, VA (434-973-7474)

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