Court Confirms: Thick Skin Is a Job Requirement

ALISON BERRY WILKINSON
Principal Attorney
Berry Wilkinson Law Group
(Of Counsel, Messing Adam & Jasmine LLP)

A trainer asked me the other day, “If you could only give one piece of advice to cops on the street today, what would it be?” My response: “Stay calm, and mind your manners.” The ubiquity of video compels it.

In this day where so many police interactions go viral, having a thick skin, being polite in the face of adversity and remaining unflappable when chaos erupts have become increasingly important. The recent case of Wood v. Eubanks (6th Cir. 2022) 25 F. 4th 414 illustrates how letting someone get your goat can get you in trouble.

In July 2016, Michael Wood wore a shirt to the county fair that said “fuck the police.” After a citizen called to complain about the shirt, three sheriff’s deputies approached Wood and asked him to identify himself. He declined. The deputies then wisely walked away.

Several hours later, the deputies were again called, this time to a building where Wood was located but no longer wearing the profane shirt. The deputies were joined by the executive director of the fairground, who then approached Wood and allegedly stated, “Where’s the shirt? I want to see this shirt.” Wood did not answer but instead asked if he had committed a crime or was being detained. The executive director replied that Wood was “not welcome” and should leave the fairgrounds. Wood agreed, so long as his $3 entrance fee was refunded. After the refund was given, the deputies escorted Wood to the exit. He did not go quietly.

During the walk to the exit, which was recorded on the deputies’ body-worn cameras, Wood protested that the executive director’s order to leave the Fairgrounds was unlawful because he was engaged in protected speech on public property and threatened to charge the deputies with battery if they touched him during the escort. The protest was colorful, loud and vehement. It included a barrage of profane and harsh insults toward the deputies, referring to them variously as “thugs with badges,” “fucking thugs with guns,” included the term “motherfuckers” more than once, as well as referred to the deputies as “bitch ass fucking pigs,” “dirty rat bastards,” and “pussies with badges.” During the exchange, the executive director stated: “You got a lot of mouth, boy.”  

As the argument between the executive director and Wood escalated, the deputies decided to arrest Wood for disorderly conduct. They were in a “damned if you do, damned if you don’t” scenario. A scene was being made. They were being made to look ineffective and foolish, and the executive director was insisting Wood be arrested because he was “disturbing my peace.”

Under Ohio law, a disorderly conduct charge has two elements: First, a person must “recklessly cause inconvenience, annoyance, or alarm to another”; and second, the person must cause the disturbance by making “unreasonable noise or an offensively coarse utterance, gesture or display, or communicating unwarranted and grossly abusive language to a person.” It seemed appropriate to the deputies. But they hadn’t considered that speech only becomes a crime when it reaches the level of “fighting words” (State v. Hoffman [1979] 57 Ohio St. 2d 129), that is, words that “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” (Chaplinsky v. New Hampshire [1942] 315 U.S. 568, 572.) After concluding that it did not have sufficient evidence to prove that Wood’s speech involved fighting words, the local prosecutor dismissed the charges against him. 

Wood sued the deputies, alleging that his arrest was not lawful and thus violated his civil rights, including his right to free speech under the First Amendment. The district court dismissed the case after granting summary judgment to the police officers. On appeal, the Sixth Circuit Court of Appeals reviewed the case. At issue was whether a reasonable police officer would find the language used and conduct exhibited to be so “annoying or alarming” that the officer “would be provoked to want to respond violently.” 

In concluding that Wood’s conduct did not amount to “fighting words,” the court noted that his mere use of profanity and epithets alone, without threatening conduct, was insufficient to establish probable cause for his arrest for disorderly conduct. Thus, the arrest was unlawful and violated Wood’s right to free speech. If the court had come to the opposite conclusion, that the arrest was lawful because Wood’s speech constituted fighting words, his arrest would not have raised First Amendment issues. In its analysis, the court noted that officers are held to a higher standard than average citizens because the First Amendment requires officers to tolerate “coarse criticism.”

Although profane and offensive, the court ruled that the speech, standing alone, did not create a situation where violence was likely to result, specifically noting that none of the officers “appeared to view Wood’s words as ‘an invitation to exchange fisticuffs.’” The court held that while the language was consistent with rudeness that “may violate the golden rule,” it was not punishable absent threatening conduct. 

The takeaways here are pretty obvious. This case is an abject lesson in why officers avoid making an arrest simply because an involved citizen is insistent and a scene is being made. The citizen is not the one who is going to be held liable by the federal court — you are. While it may be easier said than done, sometimes, the best thing to do is mind your manners, stay patient and professional, and don’t get goaded into acting.

Police officers must develop a thick skin to withstand obnoxious people who feel emboldened by the First Amendment to yell harsh and offensive barrages of invective while stopping short of threatening violence. Unfortunately, as noted by the court in this case, suffering coarse criticism professionally has now become a job requirement.

About the Author

Alison Berry Wilkinson is of counsel to the law firm Messing Adam & Jasmine LLP and is also principal attorney for the Berry Wilkinson Law Group. In both those roles, Alison is dedicated to providing effective, quality representation to public safety employees in civil, criminal, disciplinary and collective bargaining matters. Alison was honored in 2021 and 2022 to be named a “Lawyer of Distinction” in police liability law, and to be rated by her peers as a “Super Lawyer.”