Is Criticism of a Police Officer Constitutionally Protected Free Speech?

Being pulled over by a police officer is not a fun situation for anyone. Many times you may concede that you were in fact speeding or committing some other traffic infraction, but other times you may feel as though the officer had no legitimate reason to stop you.  While I would suggest that anyone who is pulled over should be polite and respectful to the police, the question I am often asked is whether you may legally question a police officer when you feel a stop was not warranted.  Although it will likely not help your situation, the First Amendment of the United States Constitution protects a fair amount of verbal criticism and challenges directed at police officers. See Ford v. City of Yakima, 706 F.3d 1188 (9^th Cir. 2013).

In the above cited Ford case, the driver/plaintiff was pulled over for allegedly violating a noise ordinance by playing loud music in his car.  The driver questioned the officer, believing the stop had been racially motivated.  After a back and forth, another officer arrived and convinced the first officer to arrest the driver for “copping” an attitude.   On the way to the police station the arresting officers told the driver that he had “talked his way into jail.”

The driver was acquitted of the charges and then commenced a civil lawsuit against the officer and the City, alleging First Amendment retaliation by their booking and jailing him following his verbal criticism of the officer.

The Federal Court said, “a reasonable officer would have understood that he did not automatically possess the authority to book and jail an individual upon conducting a lawful arrest supported by probable cause simply because the individual mouthed off.”

In other words, even where probable cause existed for an arrest, if you wouldn’t have been arrested if you hadn’t said anything, and if what you said wasn’t unreasonable under the circumstances, then the arrest is invalid as it violated your constitutional rights. 

However, as a practical matter, you should choose your battles carefully, as talking back to a police officer will likely only worsen your situation.

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