Just recently a former client called me with a new problem. He was driving on a residential street and saw a police officer he believed to be the same officer who arrested him several years ago. Even though he was acquitted of the crime, a drug distribution offense, he still harbored animosity towards the arresting officer. So, seeing this officer he did what most people wouldn’t have done. He gave him the middle finger. And guess what? He received a summons in the mail charging him with disorderly person. This incident prompted me to write about what happens if you give a cop the middle finger in Massachusetts.
The First Amendment Protects Expressions of Disapproval Towards Police Officers
Two years ago the Massachusetts Supreme Judicial Court decided the case of O’Brien v. Borowski, 461 Mass. 415 (2012). Borowski was a police officer who had charged O’Brien with a crime years earlier. Borowski subsequently encountered O’Brien in a bar. O’Brien swore at Borowski and gave him the middle finger. On another occasion O’Brien drove past Borowski’s house and gave him the finger. O’Brien supposedly repeated this conduct several minutes later. A harassment prevention order issued and O’Brien appealed. Citing a United States Supreme Court case the SJC reversed and vacated the order and held that “’obscene gesture’ and profanities directed to police, while ‘[i]narticulate and crude,’ ‘represented an expression of disapproval toward a police officer’ that ‘fell squarely within the protective umbrella of the First Amendment’”.
Does Giving the Middle Finger Constitute Disorderly Conduct?
So lets get back to the charges that the man is facing for these actions. Is this disorderly conduct? It shouldn’t be. Disruptive or crude behavior is not criminal in nature. Being loud does not constitute disorderly conduct nor does disobeying a police officer. To sustain a complaint for these charges the district attorney has to prove beyond a reasonable doubt disturbing conduct through acts other than speech. Giving someone, even a police officer the middle finger will not permit a successful prosecution for disorderly conduct.
Now by no means am I suggesting that you should ever drive by a cop and give him the finger. For nearly thirty years I have been practicing criminal law and one of the many things that remains constant is that cops will lie. They figure out just what is necessary to put in their report to satisfy the elements of a criminal offense and they will often do so to someone who flips them off. So yes, while you can do this you probably shouldn’t. Nothing good is going to come from it.
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