Shooting the finger -- them's fightin' words in Texas

Midlanders were enlightened this morning by the MyWesttexas.com report about the arrest of 27 year old Sean Rafael Roane following a confrontation with a peace officer.

According to the Felony Complaint PDF, this is what precipitated the confrontation and the ultimate arrest.

Meiner advised that he was driving his Midland Fire Department issued emergency vehicle, with appropriate markings, and had pulled out in traffic in front of Sean on the 4300 block of Raleigh Ct and noticed Sean shooting the finger and yelling at him. Meiner stopped at the stop sign at Raleigh Ct. and Midland Dr. and exited the vehicle. Meiner approached Sean's vehicle at which time Sean exited his vehicle and pushed Meiner.

Meiner attempted to push Sean off of him and identified himself as a peace officer. Sean pushed Meiner again and attempted to punch Meiner striking him in the left ear.

In short, the law officer confronted the defendant because the defendant yelled and flipped him the finger. One would think our constitutionally protected right to free speech would allow us to say what we wanted, either with our voices or sign language. So when do words and gestures become criminal acts?

In Texas it's when they tend to incite an immediate breach of the peace. See Texas Penal Code Title 9 Chapter 42.01:

PENAL CODE
TITLE 9. OFFENSES AGAINST PUBLIC ORDER AND DECENCY
CHAPTER 42. DISORDERLY CONDUCT AND RELATED OFFENSES
Sec. 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; ...

OK, in this case the fight broke out only because the law enforcement officer reacted. Shouldn't LEOs be a little bit less thin skinned? Absolutely, but the legal standard is an ordinary person, not a cop.

That's the ruling in Estes v. State, 660 S.W.2d 873, Court of Appeals of Texas, Fort Worth. (1983) which involved a student who shot the finger at the high school principal inches away from his face at the graduation ceremony immediately after receiving his diploma. No fight broke out, nevertheless the court held that even though the principal was a professional in the field of adolescent education, that gesture to an average person could have constituted "fighting words".

But wait. In our case they weren't inches apart, they were in separate cars when the finger made its appearance. Is that still "fighting words?" That was the situation in Coggin v. State, 123 S.W.3d 82, Texas Court of Appeals, Third District, Austin (2003). Coggin flashed his lights to get another car to pull over so he could pass. As he passed he "shot the bird" at that other driver which made that driver and his passenger so angry they called 911. And that's all they did. The court held that the bird did not tend to incite an immediate breach of the peace and that the bird shooter committed no crime.

Whether the fire marshal in our case was so insulted by that finger that he took it as fighting words is something only he knows. Since Mr. Roane threw the first punch anyway, they just might have been. Or was Mr. Roene provoked into reacting? That's what juries are for.

So Texans be careful. In some cases flipping the bird is fightin' words.

Now you should know that this isn't legal advice, this is merely a blog post. And if you had the patience to read this far you probably don't need any driving tips, but just in case, please help the traffic flow a little smoother by choosing your gestures carefully.

Comments

[Anik]

0:40 Using the bell for a back-up alarm SMART!! Interesting video-shows how it was done back in the day; love the hand-crank siren. Now if only that engine wasn't miniirfsg.

[wade]

I respect public servants and the jobs they are tasked with and carry out. I also have to remember they are individuals with all the querks of us common folk and need to be viewed in that light. This public servant almost caused an accident and took offence at the negative response shown to him. In my opinion he is one sorry individual.