Why Is That Even A Law?

The other day someone asked me how I come up with topics to blog about.  

I'll admit that some topics are, well,...topical....but some just come out of left field and catch my attention.

Take, for example, this blog post.

See, the other day as I was perusing the Internet, I came upon a case from 2010.  

In People v. Morales, 212 Cal.App.4th 583, 150 Cal.Rptr.3d 920 (Cal. App. 2013), a man impersonated a woman’s boyfriend and had sex with her while she was asleep.  

Can you say RAPE?!

While the Court acknowledged the law was outdated and urged the Legislature to fix it, the California Court of Appeal ruled he could not be convicted of rape, because the law only criminalized impersonation of a husband, not a boyfriend.

Wait, what?!

Yeah.  Up and until 2013, California Penal Code § 261 read:

Rape is defined as sexual intercourse with a person: who is not the spouse of the perpetrator, and accomplished under circumstances such as fraud—including where the victim submits under the belief that the person committing the act is the victim’s spouse.

Essentially, fraud-based rape required the victim to think she was having sex with her husband. Impersonating a boyfriend or fiancé did not qualify under § 261 at that time.

While that law was changed tout suite, it was not before the woman in question was attacked and the perp walked scot free.

Sad, that.

Sadder still is that there are GOBS of laws on the books that shouldn't be there but that cause more problems than they ever solved.

Take, for example, Oregon Revised Statutes § 538.430 which in 1925 read:

This statute granted the City of Medford exclusive rights to all remaining unappropriated water in the Big Butte Creek watershed, effectively reserving those waters for municipal use and withdrawing them from future appropriation by others.

Why this is a problem was because in Harrington v. Water Resources Department, 216 Or. App. 16, 171 P.3d 1001 (Or. Ct. App. Nov. 7, 2007), Gary Harrington, a landowner near Medford, Oregon, was convicted and sentenced to 30 days in jail (along with fines) for constructing dams to collect large volumes of water in reservoirs on his property—water he claimed was simply "rainwater". 

The court ruled his reservoirs intercepted flowing water or runoff, not mere rooftop collection, thus falling under the scope of the state’s regulated water sources.

I understand where the court is coming from but, and call it what you want, but can you imagine that you can be jailed and fined for collecting rainwater?  

Sure glad I don't live in Oregon.

Thing is there are a number of situations where laws, though once thought was a good idea, became out of control monsters causing havoc and mayhem on a scale never imagined by their creators, such as:

1. Maine (Sunday car sales ban):  Under Maine Revised Statutes Title 17, § 3203, selling any motor vehicle on Sundays is illegal—punishable by up to six months in jail, a $1,000 fine, and license revocation.

2. Alabama (five‑minute voting rule): Since 1961, under Alabama Code § 11‑46‑42, Alabama law mandates that voters must cast their vote within five minutes of entering the booth. Although originally intended to prevent delays, the rule historically targeted Black voters in the Jim Crow era. 

3. Beacon, New York (pinball ban):  Under the Beacon Municipal Code, the city has maintained an anti-pinball law dating back decades—originally enacted to curb gambling-related youth behavior.  In 2009–2010, it was used to shut down a retro arcade museum, imposing fines of up to $1,000 per day. 

4. Rhode Island (fake death notices & acting like governor): R.I. Gen. Laws § 11‑18‑3: Filing a false death notice to a newspaper remains a misdemeanor (penalty ~$100)—a bizarre statute rarely relevant today.  § 11‑43‑7: Anyone “acting like the governor” (i.e. impersonating or exercising gubernatorial functions) faces life imprisonment.  Clearly overkill for what was likely symbolic deterrence in the 1890s, it still sits on the books.

5. Missouri (state ban on enforcing federal gun laws):  In 2024, Missouri passed a law (Missouri Revised Statutes §§ 1.410–1.485 (2021), known as the Second Amendment Preservation Act) declaring federal gun restrictions infringements - prohibiting state law enforcement from cooperating.  It allowed private enforcement claims seeking $50,000 in liability per violation, discouraging officers from doing their federal duties. The law was ultimately struck down as unconstitutional—but only after damaging confusion and chilling enforcement efforts.  Local commentators described it as “poorly written with unintended consequences,” citing risk to public safety and legal exposure for troopers.

6. D.C. (300-year-old Statute of Anne used against modern sports betting): A Delaware LLC used the British Statute of Anne (D.C. Code § 16–1702—a law over 300 years old) to sue major sports betting operators in D.C. under rules allowing third-party loss recovery exceeding $25 (half going to the city).  This triggered legal chaos, prompting City Council to consider retroactive repeal to stabilize the industry.  Modern legalized betting stands in direct conflict with the archaic statute, causing uncertainty and market disruption.

And that's just the tip of the iceberg.  I suspect there are hundreds of laws on the books that are just waiting to cause mayhem to future litigants, like:

Ala. Code § 11-41-14: misdemeanor for failing to return a borrowed item after 60 days; $25 fine

R.I. Gen. Laws § 11‑6‑2 – Adultery:  Every person who shall commit adultery shall be fined not exceeding five hundred dollars ($500); and illicit sexual intercourse between any two (2) persons, where either of them is married, shall be deemed adultery in each.

Minnesota Statutes § 343.36: No person shall operate, run or participate in a contest, game, or other like activity, in which a pig, greased, oiled or otherwise, is released and wherein the object is the capture of the pig…”  Violations are classified as a misdemeanor. 

Under California Fish & Game Code § 6883, frogs used in frog‑jumping contests cannot be eaten or used for any purpose if they die during the event—they must be destroyed promptly and may not be consumed.

Idaho Code § 18‑5003:  (1) Any person who willfully ingests the flesh or blood of a human being is guilty of cannibalism; (2) Affirmative defense: the act was taken under extreme life‑threatening conditions as the only apparent means of survival; (3) Penalty: imprisonment in state prison for up to 14 years. 

Georgia Code § 39‑2‑17:  Prohibits the sale, apprenticeship, or employment of minors under 12 years of age for performances such as rope or wire walking, begging, gymnastics, contortionism, circus riding, acrobatics, or clowning, as well as for any indecent, obscene, or immoral exhibition or practice. Violations are classified as misdemeanors. 

Chapter 8.44 of the Carmel (California) Municipal Code, titled "Permits for Wearing Certain Shoes" prohibits wearing shoes with heels exceeding two inches in height and with a base of less than one square inch on public streets and sidewalks, unless the wearer obtains a permit from the City Clerk. 

Tenn. Code Ann. § 49‑6‑1301(7) defines “gateway sexual activity” as sexual contact that could lead to non‑abstinent behavior—even actions like kissing or hand-holding.   

Tenn. Code Ann. § 49‑6‑1304(b)(1) explicitly prohibits instruction that “promote, implicitly or explicitly, any gateway sexual activity” as part of the family life curriculum in schools.   

Under Tenn. Code Ann § 49‑6‑1306(b)(1), a parent can sue instructors or outside organizations for promoting gateway sexual activity—with potential fines up to $500, actual damages, and attorney’s fees if they win ⁠—though these provisions exclude teachers directly employed by the school district.

Blasphemy Laws:

• Massachusetts Statute General Laws, Chapter 272, Section 36 Prohibits the willful blasphemy or profanation of the Lord's Day. 

• Michigan Penal Code, Act 328 of 1931, Section 750.102: Criminalizes blasphemy, defined as the act of cursing or reviling God.

• Title 19; Chapter 17; Pennsylvania Code § 17.5: States that an association name may not contain words that constitute blasphemy, profane cursing or swearing or that profane the Lord’s name.
   
• South Carolina Code of Laws, Title 16, Section 16-17-520 makes it a misdemeanor to use "blasphemous, profane, or obscene language" at or near a place of religious worship, carrying penalties of a fine ($20–$100) or imprisonment for 30 days to one year. This law, which also prohibits disturbing religious meetings.

• Wyoming Statutes, Title 6, Chapter 6, Section 1-29-106 prohibits the publication of blasphemous or indecent matter. 

Now I'm not going to go around and spout blasphemy but that's me.  Who am I go to off saying you can't say what you want?! 

Thing is there's a whole lot of laws out there in legal land - and that's not necessarily a good thing.   Consequently you might want to lawyer up before you go and violate something you didn't even know there was a law against it!

I'm just sayin.

Do You Know Why I Pulled You Over?

The other day, I was riding along with a buddy on a bright and sunny supposedly winter day and wouldn't you know it we got pulled over.  

Police strides up to the driver's side, buddy rolls down window, and the first thing police says is, "Do you know why I pulled you over?" which I thought was funny because, shouldn't the cop know why they pulled us over?  

I mean, I would have said, "NO!" simply because I'd never want to admit anything to a cop.  Turns out, after some digging I discovered a number of reasons why police ask why they pulled you over, like:

1. To See If You'll Admit to a Violation

When it comes to driving and traffic stops, there is no such thing as "Officer Friendly."  So, if you say something like “Yeah, I was speeding,” that’s an admission.  Admissions can strengthen the officer’s case if a citation is issued and you later decide to challenge it in court.  As noted below, police often lie to people to collect information they can later use against them in court.  

Under Frazier v. Cupp, 394 U.S. 731 (1969), the U.S. Supreme Court held that police misrepresentation of evidence during an interrogation did not automatically render a defendant’s confession inadmissible as a matter of constitutional law.  In that case, police falsely told the suspect that his cousin had already confessed to the crime. The suspect then confessed.  The Court ruled that the deception was relevant to voluntariness but did not by itself make the confession involuntary under the Fifth and Sixth Amendments.

Moral to this is being funny is not something you want to do/be at/during a traffic stop.  Let the cop talk.  You just listen.

2. To Gauge Your Awareness

Police want to know whether you noticed your behavior (speeding, rolling a stop sign, broken light) or if you’re unaware of it, which can affect how they handle the stop.  

In Arizona v. Johnson, 555 U.S. 323, 129 S. Ct. 781, 172 L. Ed. 2d 694 (2009), the Supreme Court confirmed that after a lawful traffic stop, an officer’s inquiries into matters unrelated to the justification for the stop do not convert the encounter into something unreasonable, as long as they do not lengthen the detention beyond its purpose.

Yeah, like that never happens. 

So a question like “Do you know why I stopped you?” — which is brief and designed to assess awareness — generally doesn’t turn a lawful stop into an unlawful seizure.

3. To Assess Honesty and Attitude

Your response helps the officer assess whether you’re being truthful, cooperative, evasive, or argumentative. This can influence whether you get a warning or a ticket (which, after sleeping on this, is total BS).  Police lie and weasel all the time to get people to admit to crimes.  In fact, as noted above police have a predisposition to lie to people.  

In fact, a key tactic that police officers use is lying elicit confessions, or pressure to meet arrest quotas.  Police also habitually fib because of their belief that "noble cause corruption" justifies bending rules for the "greater good," leading to issues like false confessions and wrongful convictions, with tactics including fabricating evidence or promising leniency, though these are obviously unethical.

4. To Check for Impairment or Distraction

Confused or inconsistent answers may indicate distraction, fatigue, or impairment (alcohol, drugs, or phone use).  In Delaware v. Prouse, 440 U.S. 648 (1979), the Supreme Court held that police cannot stop a motorist without at least reasonable suspicion of unlawful conduct (e.g., unlicensed driver, unregistered vehicle). A random, arbitrary stop is unconstitutional.  

However, once a stop is justified, courts apply the same Fourth Amendment reasonable suspicion standard to evaluate whether an officer can detain and investigate further.  In United States v. Arvizu, 534 U.S. 266 (2002), the SCOTUS held that once a stop is justified, courts apply the same Fourth Amendment reasonable suspicion standard to evaluate whether an officer can detain and investigate further (such as asking, "Do you know why I pulled you over").

5. To Control the Conversation

It lets the officer start the interaction calmly while observing your speech, behavior, and demeanor for safety reasons. 

Police control the conversation (or, at least, they want to think they do) during a traffic stop primarily to ensure their own safety, manage potential threats, and gather evidence efficiently. This tactic, often referred to as establishing "command presence" or "norming," allows officers to assess the driver's demeanor, identify inconsistencies in their story, and prevent the situation from escalating. 

6. To See If You Noticed a Safety Issue

If the stop is for something like a broken taillight or expired tag, your awareness (or lack of it) helps the officer decide how to proceed.  In United States v. Weaver, 9 F.4th 129 (2d Cir. 2021), the Second Circuit explicitly recognized that:

“Brief, casual questioning aimed at gauging risks or deescalating a situation” during a traffic stop may be justified as part of ordinary interactions that also serve officer safety. For example, “rapport-building questions” can help an officer assess coherence, agitation, impairment and other observable cues relevant to safety.

As such, asking "Do you know why I pulled you over" is still a viable questions used to help police fully assess the situation.

7. It’s a Standard Policing Technique

Many officers are trained to ask this question as part of routine traffic-stop procedures. 

Courts treat questions like “Do you know why I pulled you over?” as reasonable police conduct because:

• They are brief and non-coercive.
• They help an officer assess awareness, behavior, or demeanor.
• They fall within the scope of routine interaction during a lawful, limited detention.

I guess the moral to this story is....when a cop saunters up to the drivers side and pops THE question, just be cool.  Maybe be clever (but not too clever) and say something like: Because it’s my lucky day?

Word of the Month for March 2026: Fake News

I know you've heard the term Fake News.  It was Trump's rallying cry for several years and he says it whenever any news organization reports something he really (or marginally) doesn't like.

That's not what we're talking about here.  

What I'm looking at here are those cases where the plaintiff (or defendant) is being castigated by the press notwithstanding the fact that the plaintiff (or defendant) in a real case actually has a legitimate claim but the press is pushing the narrative against that of the defendant (or plaintiff).

So, let's dispense with pleasantries and define Fake News in this context.

FAKE NEWS constitutes a subset of intentionally or negligently disseminated pseudo-journalistic content, characterized by the deliberate fabrication, distortion, or strategic omission of verifiable empirical data, disseminated via digital or traditional media channels under the guise of legitimate reportage, with the intent or foreseeable consequence of influencing cognitive biases, socio-political perceptions, or behavioral responses within target populations, thereby undermining the epistemological integrity of information ecosystems and the democratic discourse reliant upon them.

Ummmmmm, sorry about that.  My inner-journalist generator took over for a second.  Let's try that again:

FAKE NEWS is false or misleading information presented as news, typically to influence public opinion, generate clicks, or cause confusion.

OK, that's better - a story used to generate or cause confusing information - sounds about right.

So, how might this apply in real life?  Remember a few years ago, the media flipped out on a story about a bunch of kids and some Indians marching in D.C.?

In January 2019, Nick Sandmann, a Covington Catholic High School student, was filmed wearing a MAGA hat while standing face-to-face with Native American elder Nathan Phillips during the March for Life in Washington, D.C. A short video clip went viral, with media outlets and social media users accusing Sandmann of mocking or intimidating Phillips.

Later, fuller video footage showed that Sandmann was standing silently and that Phillips had approached Sandmann, while a different group (Black Hebrew Israelites) was yelling insults at the students.

Sandmann filed defamation lawsuits against major media outlets (CNN, Washington Post, NBC, etc.), claiming the coverage was "false and damaged his reputation." Several settlements were reached and Sandmann’s case became a key example in debates over media bias, viral outrage, and defamation.

See, that's what we're talking about.  Instead of reporting the actual events, news media is going around reporting lies and misstatements - instead of what is actually happening.

Another example?  

Recently, a Minnesota family, the Moedings, were sued by their neighbors, the Ramoses, over the location of their basketball hoop and the subsequent retrieval of balls that bounced into the Ramos' yard.  The lawsuit, which included claims of trespass and a request for an injunction to prevent the hoop's use, was ultimately dismissed by a judge. 

On first read (and media makes it look like), this sounds like a petty case where an older couple is trying to keep kids from using their (clearly) portable basketball hoop.  However, this case had little to do with basketball as much as the Ramoses were trying to keep the kids from trespassing on their land.  

See, the kids would play on their side of the property line but, as kids are wont to do, the ball would get away from them, bounce/roll to the Ramoses property and the kids would run across the property line trampling grass, flowers, whatever else is in their way to get their ball.

From a property owner standpoint, that would piss me off and if you know anything about getting old and how little things really annoy, it really rakes the nerves.  Anyway, the court eventually dismissed the case leaving the Ramoses little recourse but to sit and fume.  

While an easy remedy would be to have the Moedings install a net/fence behind the basketball hoop to keep the balls on their side of the property line - but that would be admitting fault. 

Some other cases found in the annals of history include: 

Richard Jewell - Atlanta Olympic Bombing (1996)
Plaintiff: Richard Jewell (security guard wrongly suspected).
Claim: Defamation against media outlets (NBC, Atlanta Journal-Constitution, CNN).
Media narrative: Initially pushed the FBI and law enforcement leaks implying Jewell was the bomber.
Reality: Jewell was innocent and later cleared, but the press framed him as seeking attention.
Outcome: Jewell settled with NBC and CNN; won undisclosed settlements.
Press alignment with defendant narrative: The FBI’s suspicion narrative was amplified despite thin evidence, harming Jewell’s life while media framed him as the villain.

Gibson’s Bakery v. Oberlin College (2019) 
Plaintiff: Gibson’s Bakery (family bakery in Ohio).
Claim: Defamation and tortious interference.
Media narrative: Many outlets leaned toward framing the bakery as racially discriminatory after an incident with Black students.
Reality: The students had shoplifted; evidence showed no racial discrimination.
Outcome: Jury awarded $44 million (later reduced to about $25 million) to Gibson’s Bakery.
Press alignment with defendant narrative: Several academic and progressive outlets pushed Oberlin’s framing that the bakery was targeting students based on race, despite facts supporting Gibson’s position.

Rolling Stone “A Rape on Campus” Defamation (2016)
Plaintiff: Nicole Eramo (UVA dean) and fraternity members.
Claim: Defamation over false rape allegations reported in Rolling Stone.
Media narrative: Rolling Stone and supporting outlets pushed the narrative of institutional coverup and fraternity violence.
Reality: The story was fabricated; no evidence supported the claims.
Outcome: Eramo won $3 million; fraternity settled for $1.65 million.
Press alignment with defendant narrative: Rolling Stone and sympathetic media initially defended the article despite growing evidence of its falsehood, framing plaintiffs as silencing victims.

Duke Lacrosse False Allegation (2006–2007)
Plaintiff: Three lacrosse players—Reade Seligmann, Collin Finnerty, and David Evans
Claim: Defamation of false rape allegations reported by CBS News.
Media narrative: In March 2006, Crystal Mangum, an exotic dancer hired to perform at a Duke University lacrosse team party, was raped by the three boys.
Reality: The story was fabricated and in December 2024, Mangum publicly admitted on a podcast that she had fabricated the rape allegations.
Outcome:

1. Prosecutor Mike Nifong aggressively pursued the case but withheld exculpatory DNA evidence.  
2. On April 11, 2007, North Carolina Attorney General Roy Cooper dropped all charges.  
3. The team’s season was canceled. 
4. Coach Mike Pressler was fired.
5. Nifong was later disbarred and convicted for misconduct.  
6. The players sued Duke and the city, reaching settlements. 
7. Mangum never faced charges for the false claims.  
8. Nifong served a day in jail for contempt.

Press alignment with defendant narrative: The charges triggered intense media coverage and national outrage, with debates over race, class, and campus culture fueling the story.

I guess the moral to this story is: Take everything big media says with a grain of salt realizing that the press is in the game to make money.  

...and, as it appears, the only way the Press can make money is to make-up stuff to stir up the blood of their victims (in this case, victim=anyone willing to listen).

Testify!

I don't know if you know, but there are a whole lot of myths about what police can and can't (or shouldn't) do.

Take, for example these 10 (in no particular order) myths about police and their conduct with, around, or towards the general public:

MYTH 1: Police must always read you your Miranda rights when arresting you.
TRUTH: Miranda rights (Miranda v. Arizona, 384 U.S. 436 (1966)) are only required before questioning a suspect in custody.  If you’re arrested but not interrogated, officers don’t have to read you your rights.  Berkemer v. McCarty, 468 U.S. 420 (1984) clarified that Miranda applies to all custodial interrogations, including traffic stops IF they become custodial. 

MYTH 2: You have to answer all police questions.
TRUTH: You have the right to remain silent. You can (and should) say, “I’m exercising my right to remain silent” and “I want a lawyer.” Under Salinas v. Texas, 570 U.S. 178 (2013), silence before being read Miranda rights can be used against you unless you explicitly invoke the right to remain silent.  Whereas Edwards v. Arizona, 451 U.S. 477 (1981) notes that once a suspect asks for a lawyer, all questioning must stop until counsel is present.

MYTH 3: Police can’t lie to you.
TRUTH: They legally can lie during investigations or interrogations (e.g., “Your friend already confessed”).  However, lying on official reports or under oath is a crime.  Frazier v. Cupp, 394 U.S. 731 (1969) held that police deception during interrogation does not automatically make a confession involuntary.  Additionally, Oregon v. Mathiason, 429 U.S. 492 (1977) reinforced that voluntary stationhouse questioning, even if deceptive, doesn’t automatically require Miranda warnings.

MYTH 4: If you film the police, they can confiscate your phone or arrest you.
TRUTH: Recording police in public is protected under the First Amendment — as long as you don’t interfere with their duties.  They can’t legally delete, seize, or demand your footage without a warrant (though some still do).  Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011) held that recording police in public is protected by the First Amendment and Fields v. City of Philadelphia, 862 F.3d 353 (3d Cir. 2017) reaffirmed citizens’ right to record police performing public duties.

MYTH 5: Police are legally required to protect you from harm.
TRUTH:  The Supreme Court has ruled multiple times (e.g., DeShaney v. Winnebago County, 489 U.S. 189 (1989)) that police have no constitutional duty to protect individuals, only the public at large.  Also, under Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005) the court found that even with a restraining order, police are not constitutionally required to enforce protection.

MYTH 6: Police can offer you a deal to avoid charges.
TRUTH: Only prosecutors can make plea deals. Officers might suggest cooperation, but their “promises” aren’t legally binding. Under United States v. Goodwin, 457 U.S. 368 (1982), the court confirmed that prosecutorial discretion is broad but police cannot promise immunity or deals.

MYTH 7: You can’t sue police officers personally.
TRUTH: You can — but it’s very difficult due to qualified immunity, which protects officers from personal liability unless they violate “clearly established” rights.  Kisela v. Hughes, 138 S. Ct. 1148 (2018) Reinforced how broadly courts interpret qualified immunity in police conduct cases.

MYTH 8: Police can use deadly force whenever they feel threatened.
TRUTH:  Deadly force can only be used when a reasonable officer believes there’s an imminent threat of death or serious injury.  Excessive or retaliatory force violates the Fourth Amendment.  Kingsley v. Hendrickson, 576 U.S. 389 (2015) clarified the standard for excessive force claims by pretrial detainees and Scott v. Harris, 550 U.S. 372 (2007) authorized high-speed chase interventions (e.g., PIT maneuvers) when the suspect poses a significant threat to public safety.

MYTH 9: Police can search your car just because they want to.
TRUTH:  They generally need probable cause, your consent, or a warrant.  Examples of probable cause: visible contraband, smell of drugs, or other evidence in plain sight.  According to Payton v. New York, 445 U.S. 573 (1980), police cannot enter a home without a warrant to make a routine felony arrest (absent exigent circumstances). Also Brigham City v. Stuart, 547 U.S. 398 (2006) noted police may enter a home without a warrant to stop ongoing violence or render emergency aid.

MYTH 10: Resisting arrest is legal if the arrest is unlawful.
TRUTH:  Almost all states make resisting arrest illegal, even if the arrest was unjustified. You must challenge it later in court, not during the arrest.  United States v. Ferrone, 438 F.2d 381 (3d Cir. 1971) affirmed that resisting arrest is not justified, even if the arrest is unlawful.

If I may, and while we're on the subject of myths, I'd like to add another myth:  police can lawfully arrest you if you flip them off or swear at them. 

The reality is that courts have repeatedly held that verbally criticizing, cursing, or flipping off police officers is protected by the First Amendment, as long as you’re not making a true threat, inciting violence, or interfering with police duties. 

 

While profanity or rude gestures alone are protected, you could be arrested if your behavior crosses certain lines, such as:

• “Fighting words” – Words likely to provoke immediate physical retaliation (though this standard is rarely met).

• True threats – Saying something like “I’ll kill you” or “I’m going to attack you.”

• Obstruction / Interference – If your yelling physically interferes with police performing their duties.

• Disorderly conduct – If your words are combined with aggressive actions that disturb the peace (not merely causing offense).

Even though it’s illegal, officers sometimes still arrest people anyway, often under vague charges like “disorderly conduct” or “resisting arrest.”  While these charges often get dismissed later, the person still has to deal with handcuffs, court, and lawyer fees.

So, say you flipped a cop the bird and s/he arrested you.  What can you do about it?

If you’re arrested or cited only because you used profanity, insulted, or flipped off a cop, you can typically sue under 42 U.S.C. § 1983, a federal law that lets citizens sue government officials (like police officers) for violating constitutional rights.

You would be suing for:

• Violation of your First Amendment rights — retaliation for protected speech; and

• Violation of your Fourth Amendment rights — unlawful or retaliatory arrest without probable cause.

To win a § 1983 case for retaliatory arrest or unlawful arrest, you generally have to show:

1. You engaged in protected speech (swearing or flipping off is protected).

2. The officer took adverse action (e.g., arrest, detention, ticket).

3. The officer’s action was motivated by your speech — that is, they arrested you because of what you said or did.

4. There was no probable cause for the arrest (e.g., “disorderly conduct” was bogus).

So, do people actually win cases against the police if they are wrongfully arrested (particularly for swearing at a cop)?  

Well, if you can prove that the you engaged in protected speech, the officer took adverse action, that the officer's actions were motivated by your speech and there was no probable cause for the arrest, qualified immunity (the doctrine shielding officers in many cases) often won’t apply — because the courts have long made clear that arresting someone for rude but protected speech is unconstitutional.  

Following are several important and successful cases:

• Duran v. City of Douglas, 904 F. 2d (9th Cir. 1990); Arizona

  • Duran flipped off and cursed at a police officer.

  • Officer stopped and arrested him for disorderly conduct.

  • Court ruled the officer violated Duran’s rights and denied qualified immunity — the officer could be personally liable.

• Swartz v. Insogna, 704 F. 3d 105 (2nd Cir. 2013); New York

  • Swartz gave a cop the middle finger and was stopped.

  • Court said the gesture was protected, and the officer could be sued for unlawful stop and retaliation.

• Wood v. Eubanks, 459 F. Supp. 3d (6th Cir. 2020); Ohio

  • Man cursed at police and was arrested for disorderly conduct.

  • Court ruled swearing at police is protected speech, the arrest was unlawful, and the officers were not immune from being sued.

• Thurairajah v. City of Fort Smith, 925 F.3d 979 (8th Cir. 2019); Arkansas

  • A driver yelled “F--- you!” out of his window at a state trooper.

  • The trooper arrested him for disorderly conduct.

  • Court said the arrest violated the First Amendment, and the officer could be personally sued.

So, let's say you sue for being arrested.  What can you get out of it?  Well, IF you win, you can typically get:

• Compensatory damages — for emotional distress, lost wages, or costs of arrest.

• Punitive damages — if the officer acted maliciously or recklessly.

• Attorney’s fees — under § 1988, courts often make the government pay your legal costs.

Examples:

• In some cases, plaintiffs have received $20,000–$75,000 settlements for wrongful arrest or retaliation based solely on swearing or gestures.

• A few received six-figure awards when the arrest was aggressive or caused serious consequences (e.g., job loss, jail time, humiliation).

While this has a "alls well that ends well" warm and fuzzy feel to it, do you really want to go through the hassle of flipping off a cop (as comforting as that may feel, sometimes), THEN getting arrested, THEN filing a lawsuit in federal court only to THEN hope you win and THEN go after the individual cop who arrested you only to discover that said cop doesn't have a pot to piss in?

That's a whole lot of if's and there is no guarantees that you'll win anything other than maybe the inner satisfaction that you were right all along. 

The core bottom line here is that lawsuits against police for merely swearing or making rude gestures tend to be unsuccessful unless accompanied by some deprivation of rights. While police departments risk financial payouts and judicial mandates, the payout is often not worth the hassle of litigation.  

So maybe just keep those phallic symbols gloved and out of sight.

How Do You Solve a Problem Like the FDA?

If there is one thing that really bugs me (these days) is how big and worthless government is.  Take, for example the FDA (aka Food and Drug administration).  

The FDA is a regulatory agency within the Department of Health and Human Services (HHS).  Historically, its job is/was to protect public health by ensuring that many products Americans use every day are safe, effective, and properly labeled.

Officially, the FDA regulates:

• Prescription and over-the-counter drugs (human and veterinary).

• Biologics (vaccines, blood products, gene therapies).

• Medical devices (from pacemakers to tongue depressors).

• Food safety (except most meat, poultry, and some egg products, which are regulated by USDA).

• Cosmetics (ensuring products are safe and not mislabeled).

• Tobacco products (authority granted in 2009).

• Radiation-emitting products (like X-ray machines and microwaves).

The problem is that it's not doing a very good job of any of this.

When this is brought up, proponents of the FDA always point to the fact that they are underfunded and understaffed.  The problem is that no matter how much more money is budgeted or how many more people are hired, they always say that.  

In point of fact, for fiscal year 2025, the FDA's budget is/was a whopping $7.2 BILLION.  If the IRS can hire tens of thousands of employees, bringing its total workforce to over 100,000, then certainly the FDA can loosen the purse strings and get a few dozen more employees on its payroll.

I'm just sayin.

So, who actually runs the FDA?  Well,...... 

Congress created the FDA’s legal authority through statutes (mainly the Food, Drug, and Cosmetic Act of 1938 and its amendments).

The President / Executive Branch appoints the FDA Commissioner (who leads the agency), with Senate confirmation.

Finally, Federal Courts can review FDA decisions if challenged (e.g., whether FDA exceeded its statutory authority, or if its actions were arbitrary or capricious under the Administrative Procedure Act).

So, in summary, the FDA is not independent; it’s an Executive Branch agency under HHS. Congress writes the laws that give FDA power.  The President (through HHS) appoints its leadership and shapes its policy direction and Courts can step in if FDA overreaches. 

Got all that? 

So, what's the problem with the FDA?  Mostly, the argument is that the FDA is too cozy with the industries it regulates and, consequently, fails to regulate food and drug safely.  While RFK, Jr. is working to change all this, it's still business as usual.

Um, so why is this important?

Well, all this coziness can lead to public health risks like unsafe drugs or contaminated food. In fact, the FDA's response to food safety crises is often too slow, and concerns exist about the use of unsafe agricultural chemicals, food additives, and processing techniques.  

So, wait, too slow?  How does this play out in real life?

Peanut Corporation of America Salmonella Outbreak (2008–2009)

• What happened: Salmonella-contaminated peanut products caused over 700 illnesses and at least 9 deaths across 46 states.
• FDA'sCriticism: The FDA had been aware of previous contamination problems at the plant but failed to act aggressively before the outbreak spread. Critics said inspections were too infrequent and reactive rather than preventive.

Listeria in Cantaloupes (Jensen Farms, 2011)

• What happened: A deadly listeria outbreak linked to cantaloupes sickened 147 people and killed 33 across 28 states.
• FDA's Criticism: The FDA only ramped up produce-safety rules after this crisis, even though experts had long warned about weak oversight of fresh produce. Stronger standards didn’t come until the Food Safety Modernization Act (FSMA) was implemented later.

Spinach E. coli Outbreak (2006)

• What happened: Bagged spinach contaminated with E. coli O157:H7 caused 199 illnesses and at least 3 deaths in 26 states.
• Criticism: The FDA had known leafy greens were high-risk but hadn’t mandated stricter safety practices before the outbreak. Afterward, it issued only voluntary guidelines for leafy greens until FSMA gave it stronger authority years later.

Salmonella in Eggs (2010)

• What happened: Half a billion eggs were recalled after Salmonella contamination at two Iowa farms, sickening more than 1,900 people.
• Criticism: The FDA had finalized egg safety rules in 2009 but had not begun routine inspections before the outbreak occurred. The slow rollout left the public vulnerable.

Infant Formula Shortage & Cronobacter Contamination (Abbott, 2021–2022)

• What happened: Abbott’s Michigan plant, a major U.S. producer of baby formula, was linked to Cronobacter contamination after several infants became ill and at least two died.
• Criticism: A whistleblower had alerted the FDA months before the crisis, but the agency took four months to inspect and act on the complaint. By the time it shut down the plant, the U.S. faced a nationwide infant formula shortage.

2023–2025 Raw Milk Salmonella Outbreak Reporting Delay

• Incident: From September 2023 to March 2024, at least 171 people across five states fell ill from a Salmonella outbreak linked to raw (unpasteurized) milk.
• Criticism: The outbreak was not publicly reported until July 2025, long after illnesses occurred—raising concerns about delayed disclosure and its impact on consumer awareness and safety.

2024 Boar’s Head Listeriosis Outbreak (Listeria in Deli Meats)

• Incident: A widespread listeria outbreak tied to Boar’s Head liverwurst and deli meats affected individuals between May and November 2024, resulting in 60 hospitalizations and 10 deaths. The implicated plant had documented 69 violations, including mold, insects, and unsanitary conditions.
• Criticism: Experts and media questioned why regulatory authorities, including the FDA, allowed the plant to continue operations amid persistent safety failures.

2024 McDonald’s E. coli Outbreak (Contaminated Onions)

• Incident: From September to October 2024, 104 confirmed E. coli O157:H7 cases (including one death) were linked to slivered onions on McDonald’s Quarter Pounders in 14 states.
• Criticism: The FDA’s public warning only came October 22, over a month into the outbreak, and traceback investigations took time to isolate the source at supplier level—with criticism over delayed disclosure and slow root-cause identification.

Suspension of Food Emergency Response Network (FERN) Testing Program (2025)

• Issue: In early 2025, the FDA temporarily suspended its FERN Proficiency Testing Program, a critical system ensuring lab readiness for detecting contaminants in dairy and other products. 
• Criticism: While the agency said safety tests continued at state and federal levels, experts expressed concern that suspending this program—without a clear timeline for resumption—undermines confidence in emergency response readiness.

Delaying Enforcement of Food Traceability Rule (FSMA Section 204)

• Issue: The Food Traceability Rule—part of the Food Safety Modernization Act—had been in development for 14 years and was set to take effect in January 2026. In March 2025, the FDA announced a 30-month delay, pushing enforcement back significantly.
• Criticism: This postponement delays critical traceability infrastructure meant to speed outbreak investigations and recalls, creating concern that potentially dangerous food items will remain more difficult to track when contamination occurs.

While some of these are active outbreaks and others are regulatory shifts or resource challenges, collectively they underscore a disturbing pattern - the FDA is unable to handle detecting, response, or preventing food (and other) safety threats.

So, how do you solve a problem like the FDA?  I don't know - I just report the stuff.  

Maybe, though, it's time to re-shuffle the deck and bring in some fresh talent.  Oh, wait, didn't they do that back in November 2024?  

It will certainly be interesting to see if the FDA can get it's act together now under new management.