Friday, May 10, 2013

Criminal Defense Attorney - The "Finger" vs. the "Constitution"

Charlottesville Criminal Defense Attorney
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)


Sanjay Sethi said...

Hello, I love reading through your blog, I wanted to leave a little comment to support you and wish you a good continuation. Wish you best of luck for all your best efforts.

Robert Jacko said...

Thank you for sharing the information.

Any crime may it be small or big can't be consider lenient as it not only create lot of problem but, it creates a bad effect on life if charged or faced with an investigation.

So to eradicate such types of crimes many criminal attorneys are providing the service of criminal cases like violent crimes, drug crimes, dui etc and one such criminal firm is Crim Law Firm who is providing the service of criminal attorney since 35 years.

Lee Neidorf said...
This comment has been removed by the author.
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Guy Miflin said...

This just funny. I think he was smart getting a lawyer. I also think that the cop over-reacted. This is why I always have a legal consultant.

Sergio Freddson said...

I had no idea that criminal defense attorneys were required to argue cases like this. It's sad that things like this make it to court. I mean it shouldn't be happening in the first place in a perfect world, but it's really sad that there need to be decisions about every little thing. Thanks for sharing your tips with us!

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Leah Graham said...

I want to take this opportunity to thank all the lawyers who sacrifice and give their best on every case that they handle.
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Anonymous said...

after being cursed this am by my drunk neighbor i went to the mathews county police who refuse to enforce the varginia statute in this or any other case... oops they may actually have to work.. if there is a law on the books ststing curse and abuse it should be enforced otherwise it should be removed as law and if the local police wont enforce current laws they should be removed from thier job

Unknown said...

According to a city of Charlottesville magistrate it is not a crime in Virginia. Anyone can express his or her opinion using whatever language they choose anywhere any time or place. At a distance or in your face. Just happened today 55 year old woman verbally assaulted by a 30 year old male in front of 4 young children.