Curse a cop, face arrest, take a pounding – without legal redress

Wednesday, May 4, 2011

Cursing a cop in Virginia may be hazardous to your health and the legal system may not afford you any legal redress.

Instead the police can arrest you under an anti-cursing law that is probably unconstitutional. That appears to be the lesson from a recent federal appeals court case arising out of Prince William County.

In October 2005 Robert Harrison was riding in the front passenger seat of a car driven by his friend. As they entered an apartment complex in Woodbridge, Va., they found vehicles blocking the road. The driver rolled down his window and asked a woman near one of the cars if they could pass.

The woman turned out to be Prince William County police officer Jennifer Evans. She told another officer, John Mora, that Harrison and the driver had made inappropriate sexual comments to her. After Mora told the men to desist from making such comments, Harrison called Mora a “bitch.”

Mora arrested Harrison for violating a state anti-profanity law, which says that “if any person profanely curses or swears or is intoxicated in public … he shall be guilty of a Class 4 misdemeanor.” Harrison alleged that Mora and other officers used excessive force by pounding him into the pavement. A magistrate later charged Harrison with violating two other disorderly conduct-type ordinances.

In July 2008 Harrison sued the Prince William County Police Department and Officer Mora for alleged violations of numerous constitutional rights, including illegal seizure, false arrest, excessive force and other claims. The case proceeded to a jury. The trial judge submitted instructions to the jury — standard practice in court cases — that included the language of the anti-cursing law and other statutes. The jury ruled in favor of the police defendants, including Prince William County Police Chief Charlie T. Deane.

Harrison appealed to the 4th U.S. Circuit Court of Appeals, contending that the cursing statute was constitutionally invalid on its face and that the officer had violated his rights by arresting him for a “single curse word to a trained police officer.”

Harrison argued that an officer should have known that he could not be arrested under a clearly unconstitutional law. He contended that the officers had no probable cause to arrest him because the law was invalid.

But the 4th Circuit reasoned in its April 29 opinion in Harrison v. Deane that the officer had the right to arrest Harrison under the ordinance unless it was clear that the law was “grossly and flagrantly unconstitutional.”

“Although Harrison makes a compelling argument that Virginia Code § 18.2-388 is unconstitutional, he fails to show that it is so grossly and flagrantly unconstitutional that Mora should have anticipated its invalidation,” the appeals court wrote. “Mora therefore had probable cause to believe that Harrison violated a presumptively valid state law.”

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