For most people, avoiding an avoidable confrontation with a police officer was the objective. Just as nobody got a happy feeling when they heard a siren and saw lights flashing behind them, why put yourself in a position where things could go bad quickly and, well, right or wrong, nobody sought out the opportunity for a tune up by cop.
That hasn’t been the case for some lately.
“In these riots, you see people getting up in officers’ faces, yelling in their ears, doing everything they can to provoke a violent response,” Carroll said. “I’m not saying the officers do that, but there has to be a provision within that statute to allow officers to react to that. Because that does nothing but incite those around that vicinity and it furthers and escalates the riotous behavior.”
Indeed, there has been a great deal of conduct that historically never happened. From affirmatively provoking police, whether by ‘getting up in officers’ faces,” throwing things at them or, in a surprising number of instances, physically challenging cops. pushing, shoving, even striking them. While these things occasionally happened in the past, it was largely considered stupid, if not wrongful, conduct and the consequences, usually a beating and arrest, were neither captured on video or met with widespread approval.
In other words, you didn’t get up into a cop’s face unless you were asking for it. This was legally wrong, as a person has every bit as much right to stand face to face with a police officer and tell them that they do not care for the way they are behaving as anyone else. But there was little support for those who do so. That’s changed, and so a Kentucky state senator decided to do something about it.
Sen. Danny Carroll, R-Benton, a retired police officer and lead sponsor of Senate Bill 211, told the committee his legislation was a response to “riots” seen in many cities throughout the country last summer, including Louisville.
“This is not about lawful protest in any way, shape, form or fashion,” Carroll said. “This country was built on lawful protest, and it’s something that we must maintain — our citizens’ right to do so. What this deals with are those who cross the line and commit criminal acts.”
Of course, what constitutes a “criminal act” is a matter of what the legislature decides to make criminal, and Carroll offered his version.
[The Bill made] a person guilty of disorderly conduct — a Class B misdemeanor with a penalty of up to 90 days’ imprisonment — if he or she “accosts, insults, taunts, or challenges a law enforcement officer with offensive or derisive words, or by gestures or other physical contact, that would have a direct tendency to provoke a violent response from the perspective of a reasonable and prudent person.”
Physical contact is one thing, but “offensive or derisive words” or “gestures” is entirely different. What this seeks to create is a variant of the “fighting words” exception to the First Amendment, a Brandenburg-type offense when words would have a “direct tendency to provoke a violent response” from a reasonable person.
While the “fighting words doctrine” is constantly invoked of late, and almost never applicable, the bill is written in such a way as to align with the Brandenburg test and fit within the doctrine. After all, it doesn’t criminalize speech per se, but only that speech which tends to “provoke a violent response” from the “reasonable and prudent person.” And who is more reasonable and prudent than a cop?
[Sen. David] Yates said that language “makes my stomach turn,” saying the good officers he knows are too professional to retaliate violently because of words.
“I don’t believe that any of my good officers are going to be provoked to a violent response because somebody does a ‘yo mama’ joke, or whatnot,” Yates said.
Yate’s point, that a well-trained and professional police officer would never be provoked by words or gestures, no matter how offensive, because they’re better than that is a good one. If police were capable of the restraint we would hope they possess, this would never be in issue. So what if some dumb kid gets all “up in his face” and says mean things about the way he performs his job and his attitude toward certain oppressed groups? Just words, right?
Then again, words seem to have taken on a power far beyond “just words” these days. Some argue that words are violence, and if so, then words screamed in a cop’s face would assume the attributes of violence as well. On the other hand, as those who are disinclined to adopt the claim that words are so inherently awful that they cause trauma by their mere utterance argue, if they’re just words when someone says something unwoke, they are still just words when shouted into a cop’s face. Both sides of this argument point to the other to justify their own “tu quoque” moment. Neither has the upper hand on who is more hypocritical.
While it’s not surprising that Carroll, feeling a bit over-protective of his team, wants to extend the protections provided police officers to address this newfound tactic of people coming into the personal space of cops to challenge and provoke them, even if its otherwise protected expression under the First Amendment, Yates clearly has the better point.
As cops know that protesters are doing this to provoke them, and they make say every provocative things to the police but it’s not as if they know them personally, have any particular insight into their thoughts and feelings or spent the night before with their momma, no reasonable and prudent cop with adequate training and the psychological stability to be entrusted with a weapon would be provoked to retaliate with violence.
While many of us would feel differently if we were in the position of either protester or cop, don’t confuse your (our?) sensibilities toward being screamed at or offended with that of a properly trained police officer. Somebody says mean things to you? So what? You’re a cop. Get over it and do your job, which means honoring the Constitution rather than indulging your hurt feelings.
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