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.