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For example, say a police officer arrests someone for giving them the finger. As I understand it this action is protected under the first amendment.

Can any criminal charges be brought against an officer that does this?

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  • Just commenting to say that "giving [a cop] the finger" is not an arrestable offense. Neither is cursing at an officer. Provided you have not drawn the officers attention in order to do so. Otherwise it would be considered distracting a police officer, which can more problematic for your immediate freedoms. If they're already looking at you, it is protected expression to flip them the bird. But you cannot say, "Hey! Officer!" and then do so, and/or follow it with, say, "[fornicate] you!" However this does not mean they won't decide to perform a 'randon stop'.... So....YMMV.
    – Tank R.
    Feb 5 at 11:56
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    @TankR. two questions: first, in what jurisdictions is distracting a police officer an offense? I am unfamiliar with it. Second, wouldn't one element of such an offense be distracting the police officer from some official business and for some frivolous or malicious purpose? Otherwise it would also be illegal to say to an officer who is standing on the corner watching the world go by, "help, someone's just stolen my wallet!"
    – phoog
    Feb 5 at 13:14
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    @TankR. .... Distracting a police officer is a lot more involved then yelling 'hey officer' and giving them the bird... Pretty sure that is still covered under freedom of speech. Distracting an officer is probably more on the lines of pretending to be a drunk driver when you leave a bar so that everyone who is toasted can escape unnoticed...
    – Questor
    Feb 5 at 16:05
  • @TankR. Cursing at a police officer can be an arrestible offense if those words rise to the level of "fighting words".
    – Peter M
    Feb 5 at 18:30
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    Although the question is about the USA, some readers might benefit from being warned that you can be arrested, charged, trialed, and briefly jailed for giving a cop the finger or cursing at one in some countries, even developed countries.
    – user253751
    Feb 6 at 22:33

1 Answer 1

35

Yes.

Examples of officers charged with false imprisonment for making an arrest without a valid legal basis to do so can be found here, here, and here (the exact name of the criminal offense varies somewhat between the federal criminal justice system and the various respective state criminal justice systems).

In general, police do not have immunity from criminal charges if they can be proven, and the legal protection that law enforcement officers enjoy when making an arrest apply only to arrests that was lawful or that a law enforcement officer reasonably believed was lawful.

As a practical matter, it is rare for police officers to be charged with false imprisonment criminally, and much more common for a civil lawsuit under 42 U.S.C. § 1983 to be brought against an officer by the victim of the wrongful arrest (see, e.g., here).

But no legal doctrine prohibits the criminal charge if the officer knew that the arrest was unlawful.

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  • 34
    @AmeetSharma Because district attorneys rely on police to support them in bringing criminal cases against defendants who are not police officers. Charging a police officer with a crime undermines the relationship between the District Attorney and the entire law enforcement community (usually one self-organized by a police officer's union). Likewise, police officers tend to not want to work up criminal cases against other police officers. Unless a case is so shocking that even other police officers will not have sympathy for their fellow officer, it is very hard to prosecute these cases.
    – ohwilleke
    Feb 5 at 2:41
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    @AmeetSharma "We have bodycameras now. There's overwhelming evidence": look at some trials with video evidence to see how uncertain such evidence can be. First, video has little to say about an officer's state of mind, that is, what the officer knew or thought about the law or the facts, with respect to whether the officer believed that the arrest was lawful or whether that belief was reasonable. Second, people can even disagree about the events depicted in a video, for example whether a blurry object is or resembles a gun or knife.
    – phoog
    Feb 5 at 13:20
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    @phoog Police BC seem to malfunction at the most odd of times. Also,they can turn the body camera off at any time. While suspicious, that coupled with the fact prosecutors, police, and (sometimes) judges think they are part of the same team makes charges of spoliation of evidence even harder to press. Feb 5 at 18:42
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    @DKNguyen: Defense attorneys advise their clients to accept plea bargains, because of the trial penalty, not because they are lazy or in cahoots with the prosecutor. A defense attorney who does not zealously represent the interests of their client is committing a serious act of professional misconduct, and the verdict may also be challenged under the Sixth Amendment.
    – Kevin
    Feb 5 at 19:19
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    @DKNguyen: I'm very familiar with the problem of false arrests, false confessions, false convictions, etc. What I'm saying is that the defense attorney is seldom the cause, not that the problem does not exist.
    – Kevin
    Feb 5 at 19:37

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