The Volokh Conspiracy

Charges Dismissed Against Woman Who Screamed Profanities at Overflowing Toilet:
I was pleased to learn, in light of my blog post urging the Pennsylvania courts to "Free Dawn Herb!", that the trial court did just that. Thanks to Howard for the link.
Oren:
We should test your newfound powers! I suggest that your next post be entitled "Free Mumia".
12.15.2007 5:30pm
Thomass (mail):
How about "Fry Mumia".
12.15.2007 7:05pm
CrazyTrain (mail):
Orin: On this one, I don't think you are going to be filing an amicus brief in favor of the cop who had her arrested -- her arrest was so obviously constitutional that she should sue and win. No qualified immunity here, and the policeman totally abused her power if the article's recitation of the facts is correct -- that an off duty police officer gets told to f-ck off and then has the person saying that arrested by an on-duty officer (note that the article seems to just be saying what happened, and not making judgments so I am inclined to believe it).
12.15.2007 7:30pm
A.:

Free Mumia


...with the purchase of another Mumia of equal or greater value.
12.15.2007 7:30pm
CrazyTrain (mail):
. . . so obviously UNconstitutional, that is.
12.15.2007 7:32pm
Oren:

...with the purchase of another Mumia of equal or greater value.


Limited time offer, void where taxed or prohibited.
12.15.2007 8:00pm
A.:

...with the purchase of another Mumia of equal or greater value.



Limited time offer, void where taxed or prohibited.


The thirteenth amendment has an exception for "punishment for crime whereof the party shall have been duly convicted," so prohibition isn't the greatest concern, and the time of the offer has been depressingly unlimited--it's been twenty-six years, and supplies have not yet run out.
12.15.2007 9:42pm
Mr. Liberal:
I think it is ridiculous that taxpayer dollars were wasted on this case at all.
12.15.2007 10:04pm
HowardWasserman (mail):
CrazyTrain: Good thought. But where is the state action? An off-duty cop who calls the police to file a complaint about a neighbor is the same as an ordinary citizen who does the same thing. Did the off-duty cop use her authority as an officer to do anything to force the arrest? I doubt it. On the other hand, she probably has a good claim against the cop who (at the off-duty cop's request) actually performed the arrest.
12.15.2007 10:17pm
whit:
what kind of MORON cop would arrest for something like this?

now THIS is a case of STUPID force (not quite the same thing as excessive force)
12.16.2007 1:27am
dearieme:
Will no-one think of the toilet? Doesn't it have the right not to be offended? Is disrespect OK with you people? You must be Republicans.
12.16.2007 6:12am
PersonFromPorlock:

On the other hand, she probably has a good claim against the cop who (at the off-duty cop's request) actually performed the arrest.

Sue everyone, God will know His own. ;^)
12.16.2007 7:43am
Crimso:
"off duty police officer gets told to f-ck off and then has the person saying that arrested by an on-duty officer"

Out of curiosity, in terms of discharging their duties, are cops ever "off-duty?" My father was a cop for quite a few years, and I know for a fact he witnessed criminal acts when "off-duty" and arrested the perpetrator (at least that's how I recall it). If they're in their jurisdiction but "off-duty," don't they still have their full police powers?
12.16.2007 9:35am
Orangello (mail):
Thank God she didn't criticize her congressman 30 days before an election. For that she should be locked up.
12.16.2007 10:22am
Tom952 (mail):
This is truely the land of the free.
12.16.2007 11:30am
Oren:
Off Topic Link but it's sort of relevant. This is how cops in OR handle things (as opposed to busting the truck's window and dragging him out).
12.16.2007 12:03pm
Eli Rabett (www):
Why am I tempted to say Oh sh__
12.16.2007 12:31pm
Cornellian (mail):
Did anyone think to ask how the overflowing toilet felt?

Will someone pleeeeeease think of the toilets???
12.16.2007 1:01pm
whit:
in my jurisdiction, cops when "off duty" are "discouraged" from taking action in MINOR incidents. we are supposed to be a good witness - rape, murder, felonious assault, etc. - nobody will fault us for acting (and probably praise us except for the usual suspects depending on the race, etc. of the arrestee).

we recently had an officer shoot and kill somebody who was robbing somebody at gunpoint in seattle. he was considered "on duty" at the time he identified himself as a police officer, and certainly praised for his action.

but in general, when it comes to "annoyance" and "quality of life" incidents, most agencies encourage their cops to look the other way and move on.

unfortunately, due to our litigious society, most cops when viewing your average property crime off duty (mail theft, auto theft, etc.) have an incentive not to do anything to intervene. i personally know more than one who when witnessing such crimes off duty did absolutely nothing because they figured they didn't want the hassle of being investigated etc. for taking any action.
12.16.2007 1:05pm
HowardWasserman (mail):
State action generally looks to whether the individual used his public office/position to engage in the challenged conduct--could he have done this but for his public position. So when an officer identifies himself as a copy or engages in conduct that officers are permitted to do in a different manner than non-officers (such as using deadly force) it may be different than the situation in PA, where you have one homeowner annoyed at her neighbor and that homeowner just happens to work as a police officer. Still could be an interesting lawsuit to watch.
12.16.2007 1:15pm
whit:
"So when an officer identifies himself as a copy or engages in conduct that officers are permitted to do in a different manner than non-officers (such as using deadly force)"

true. also note that in many jurisdictions, a civilian has generally BROADER discretion in deadly force (for self defense and defense of others) than a cop does.

a (off-duty) cop at home in his residence, defending his home would thus ( i believe) be judged by the civilian standard of deadly force (looser in WA state than the officer standard). i asked my dept. legal advisor about this very issue several years ago, and it has never been specifically tested fwiw.
12.16.2007 5:14pm
Dave Hardy (mail) (www):
At least in AZ, civilians have less power of arrest, and *slightly* less power to use deadly force (slightly, because LEOs have somewhat greater in the case of an escaping prisoner, otherwise the same). Now, an LEO might in practice be held to a bit higher standard on the theory that he's gotten some training in the area. On the other hand, prosecutors will be more loathe to charge a member of a unit they want to be on friendly terms with.

And in practice, if the use of force or arrest seems reasonable, juries tend to acquit either, on a theory that criminals are best arrested or, if bad, killed. If burglars, "he needed killing" is an absolute defense, whether written in the statutes or not.

That said, busting a person for screaming at an overflowing toilet suggests that someone had no judgment at all. There are times and places where, while disorderly conduct is broadly defined, "it just needed cussing at" is an absolute defense.
12.16.2007 10:48pm
Dave Hardy (mail) (www):
Besides, we should cut some slack to anyone stuck with the name of Dawn Herb.
12.16.2007 10:50pm
whit:
"At least in AZ, civilians have less power of arrest,"

true almost everywhere. for example, in all jurisdictions, cops can arrest based on probable cause, whereas in most if not all places, civilians need to actually witness the offense.

cops also have way more liability protection in arrest situations.

" and *slightly* less power to use deadly force (slightly, because LEOs have somewhat greater in the case of an escaping prisoner, otherwise the same)."

in WA, citizens have more leeway in deadly force in general, but i was specifically excepting the escapee thing, but just referring to proteciton of life, etc.

citizens have broader justification in firing for defense of self/others than cops do, in WA
12.17.2007 11:32am