Is It Illegal To Flip Someone Off In Texas? Understanding Disorderly Conduct Charges

Disorderly Conduct Defense Attorney

214-321-4105

Without fail, our criminal defense attorneys will get hired for a disorderly conduct charge where the facts are alleged that our client “flipped off” another person or a police officer.  The question then becomes, “is it illegal to flip another person off?”  The answer to that question is based on the facts of each individual case.  However, in most cases, the answer is no.  This article is intended to help those that are trying to determine what is and what is not illegal when it comes to certain speech in Texas and across the country.  If you have specific questions or would like to discuss hiring our criminal defense lawyers for a disorderly conduct charge in North Texas, feel free to call our office after reading this article.

Disorderly Conduct Statute In Texas

§ 42.01. Disorderly Conduct

(a) A person commits an offense if he intentionally or knowingly:

(1) uses abusive, indecent, profane, or vulgar language in a public place, and the language by its very utterance tends to incite an immediate breach of the peace;

(2) makes an offensive gesture or display in a public place, and the gesture or display tends to incite an immediate breach of the peace;

(3) creates, by chemical means, a noxious and unreasonable odor in a public place;

(4) abuses or threatens a person in a public place in an obviously offensive manner;

(5) makes unreasonable noise in a public place other than a sport shooting range, as defined by Section 250.001 of the Local Government Code, or in or near a private residence that he has no right to occupy;

(6) fights with another in a public place;

(7) discharges a firearm in a public place other than a public road or a sport shooting range, as defined by Section 250.001 of the Local Government Code;

(8) displays a firearm or other deadly weapon in a public place in a manner calculated to alarm;

(9) discharges a firearm on or across a public road;

(10) exposes his anus or genitals in a public place and is reckless about whether another may be present who will be offended or alarmed by his act; or

(11) for a lewd or unlawful purpose:

(A) enters on the property of another and looks into a dwelling on the property through any window or other opening in the dwelling;

(B) while on the premises of a hotel or comparable establishment, looks into a guest room not the person’s own through a window or other opening in the room; or

(C) while on the premises of a public place, looks into an area such as a restroom or shower stall or changing or dressing room that is designed to provide privacy to a person using the area.

(a-1) For purposes of Subsection (a), the term “public place” includes a public school campus or the school grounds on which a public school is located.

(b) It is a defense to prosecution under Subsection (a)(4) that the actor had significant provocation for his abusive or threatening conduct.

(c) For purposes of this section:

(1) an act is deemed to occur in a public place or near a private residence if it produces its offensive or proscribed consequences in the public place or near a private residence; and

(2) a noise is presumed to be unreasonable if the noise exceeds a decibel level of 85 after the person making the noise receives notice from a magistrate or peace officer that the noise is a public nuisance.

(d) An offense under this section is a Class C misdemeanor unless committed under Subsection (a)(7) or (a)(8), in which event it is a Class B misdemeanor.

(e) It is a defense to prosecution for an offense under Subsection (a)(7) or (9) that the person who discharged the firearm had a reasonable fear of bodily injury to the person or to another by a dangerous wild animal as defined by Section 822.001 Health And Safety Code.

(f) Subsections (a)(1), (2), (3), (5), and (6) do not apply to a person who, at the time the person engaged in conduct prohibited under the applicable subdivision, was a student younger than 12 years of age, and the prohibited conduct occurred at a public school campus during regular school hours.

(g) Noise arising from space flight activities, as defined by Section 100A.001 of the Civil Practice And Remedies Code, if lawfully conducted, does not constitute “unreasonable noise” for purposes of this section.

Understanding The Disorderly Conduct Law In Texas – Flipping Off Another Person

What all defense lawyers are required to understand is what is and what is not considered disorderly when it comes to certain actions and speech.  It is imperative as criminal defense attorneys that we do a good job of defending the right of speech.  And not all speech is pretty.  Some speech can be shocking and can be rude.  But that is still a right that must be protected for all citizens so that everyone has the ability to speak freely.  In the context of a disorderly conduct charge, what our criminal defense lawyers normally see is when a person flips off another person and is charged with disorderly conduct under part (A)(2) of the statute above.

The most common example is a person that flips off a police officer or another driver on the highway.  The question then becomes was this conduct so offensive that the gesture or display in a public place tends to incite an immediate breach of the peace.  At it’s first reading, one can be led to believe that anything could be seen as a “breach of the peace.”  However, the Supreme Court has clearly outlined that in order to rise to the level of a breach of the peace that the language must be “fighting words” meant to incite violence against another.  A great example of this can be found in a case out of Georgetown, Texas in 2015.  This case involved a man who had flipped off a police officer while driving down the road.  The officer then pulled him over for no front license plate and then gave him a ticket for disorderly conduct for the “offensive gesture” of flipping him off.  In that case, the man ended up filing a lawsuit against the officer for the issuance of the disorderly conduct ticket.  The court went on to explain the burden of proof in issuing these types of charges as follows:

United States District Court, W.D. Texas, Austin Division.

Lance BROWN, Plaintiff,

v.

Shawn WILSON, Defendant.

CV No. 1:12–CV–1122–DAE.

Signed July 9, 2015.

1. 1. Citation for Disorderly Conduct

In addition to citing Plaintiff for a missing front license plate and for failure to acquire a Texas driver’s license within 90 days of residing in Texas, Defendant also cited Plaintiff for disorderly conduct based on Plaintiff’s display of his middle finger. (Wilson Aff. ¶ 3.) The relevant portion of Texas’s disorderly conduct statute provides that “[a] person commits an offense if he intentionally or knowingly makes an offensive gesture or display in a public place, and the gesture or display tends to incite an immediate breach of the peace.” Tex. Penal Code § 42.01(a)(2). Because the First Amendment prohibits laws that abridge the freedom of speech, Texas courts have “uniformly held that section 42.01 applies to fighting words,” which are not protected under the First Amendment. Coggin v. State, 123 S.W.3d 82, 87 (Tex.App.2003); see also Spiller v. City of Tex. City, Police Dep’t, 130 F.3d 162, 165 (5th Cir.1997) (reviewing Texas case law on the application of the disorderly conduct statute to speech); Vela v. White, 703 F.2d 147, 152 (5th Cir.1983) (“As explained in the Commentary printed in Vernon’s Penal Code, that section [42.01] is designed to punish so-called ‘fighting words,’ defined in Chaplinsky v. New Hampshire and Gooding v. Wilson.” (citations omitted)).

Fighting words are “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). Stated differently, fighting words are “those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction.” Virginia v. Black, 538 U.S. 343, 359, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003) (quoting Cohen v. California, 403 U.S. 15, 20, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971)). Texas courts construing the disorderly conduct statute have held that “[a]ctual or threatened violence is an essential element of a breach of the peace.” Coggin, 123 S.W.3d at 90(quoting Woods v. State, 213 S.W.2d 385, 387 (Tex.Crim.App.1948)). Whether an act or utterance constitutes fighting words is a question of fact considered in light of all of the circumstances. See Spiller, 130 F.3d at 165–66; Coggin, 123 S.W.3d at 90.

It has long been the law that Texas’s disorderly conduct statute prohibits only fighting words, Woods, 213 S.W.2d at 387, and that fighting words are limited to those “personally abusive epithets … inherently likely to provoke violent reaction,” Black, 538 U.S. at 359. Defendant argues, however, that whether the right allegedly violated was clearly established must be examined in the “particularized factual context” of the circumstances at issue. (Dkt. # 61 at 6.) Under Defendant’s view, the Court should ask whether the display of the middle finger was clearly established as a protected form of expression under the First Amendment. (Id.) Defendant argues that under Fifth Circuit precedent, it is not clearly established that citing a person for gesturing with the middle finger under Texas’s disorderly conduct statute violates the person’s constitutional rights, and that Defendant is therefore entitled to qualified immunity. (Id.)

As stated above, however, it is not necessary that the very action in question have “previously been held unlawful”; it is sufficient that the unlawfulness of the official action be apparent “in the light of pre-existing law.” Anderson, 483 U.S. at 640. The “contours of the right” at issue have long been clear—speech or expressive conduct cannot be criminalized as disorderly conduct unless it would be “likely to provoke the average person to retaliation, and thereby cause a breach of the peace.” Chaplinsky, 315 U.S. at 575. Fifth Circuit precedent is to the same effect. See Spiller, 130 F.3d at 165 (holding that yelling at a plainclothes police officer to move his “damn truck,” while the plaintiff waited inside her vehicle, could not reasonably be interpreted as fighting words); Vela, 703 F.2d at 152 (holding that only “words which would likely have a direct tendency to incite an ordinary person to violence” could be charged under section 42.01). The Court thus finds that the law was clearly established that only fighting words are subject to regulation under the disorderly conduct statute.

Here, the undisputed facts show that Plaintiff, while driving his car, “firmly gave the middle finger” to Defendant as Plaintiff drove by. (Brown Dep. 7:6–14.) Plaintiff gestured through the closed window of his moving vehicle, and “was not part of a confrontational face-to-face exchange.” See Spiller, 130 F.3d at 165. While offensive, Plaintiff’s gesture, directed toward an on-duty police officer while Plaintiff was driving by, was not “a direct personal insult or an invitation to exchange fisticuffs.” See Texas v. Johnson, 491 U.S. 397, 398, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989); see also Spiller, 130 F.3d at 165 (noting that a police officer “may reasonably be expected to exercise a higher degree of restraint than the average citizen, and thus be less likely to respond belligerently to fighting words” (quoting Lewis v. City of New Orleans, 415 U.S. 130, 135, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974) (J. Powell, concurring) (internal quotation marks omitted))). Without any indication of “actual or threatened violence,” Woods, 213 S.W.2d at 387, Plaintiff’s gesture could not reasonably be interpreted as “tend[ing] to incite an immediate breach of the peace,” Tex. Penal Code § 42.01(a)(2).

Based on the undisputed facts, the Court finds that Plaintiff’s conduct did not amount to fighting words and thus did not violate section 41.02, and that Defendant’s citation of Plaintiff under that statute based was therefore unreasonable. As a result, Defendant is not entitled to qualified immunity on the part of Plaintiff’s § 1983 claim based on his citation for disorderly conduct.

Evaluating Disorderly Conduct Charges

As a criminal defense lawyer, it is important to understand this constitutional standard because it is tied directly to all of our freedom of speech rights.  Should a person flip off a police officer?  Probably not in most cases.  But should that action be considered illegal?  Absolutely not.  And the same goes for others.  We all have thicker skins than to be incited to violence over someone flipping us off.  And this is why in most cases a simple flipping of the bird will not arise to the level of a criminal charge.  Does that mean it won’t rise to that level in every case? No.  But in most cases, it will not be considered criminal.

Hire A Lawyer For A Disorderly Conduct Charge

If you would like to discuss a disorderly conduct charge with an experienced legal professional, feel free to contact our criminal defense lawyers in North Texas at 214-321-4105.  We would be happy to sit down with you and discuss the particular details of your case.