“Is it illegal to point your finger at a cop?”

Imagine this. A guy in Florida shapes his finger like a gun and points his finger at a cop. As he’s doing that, he tells the officer, “I got you now!” You may be thinking, “Well, that’s not a bright thing to do.” Well, I don’t disagree with you. The question that I’d like you to ponder is, “Is what he did a criminal offense?”

Well, that’s not an imaginary scenario. It happened. Not surprising to many, it happened here in Florida. (or “Flori-duh,” as many call it when hearing about stuff like this) Alex Romero, who allegedly has an extensive criminal record, actually chose to threaten an off-duty Hialeah police officer in this manner. The officer, Scarlett Hernandez, was picking up her daughter from daycare. The officer apparently had a number of previous run-ins with Romero and felt that her life was threatened by his actions.

Romero’s attorneys argued that his actions are protected as “free speech” under the constitution. They challenged the statute used to charge Romero with threatening the officer. They argued that the law is way too broad and criminalizes speech and actions that are legally permissible. One of Romero’s attorneys argued that no one has ever been injured or killed by someone pointing their finger at them in the shape of a gun. He maintains that there is no real objective threat from Romero’s actions.

Prosecutors argue that these cases need to be handled on a case by case basis. They maintain that jurors should simply apply common sense to each case to determine whether the conduct is a threat or not.

As a result of Romero’s challenge to the statute, four Miami-Dade county court judges were empaneled to hear legal arguments. The ruling was that the statute is constitutional. That means that they found that the misdemeanor law under which Romero was charged does not infringe on his, or anyone else’s right to free speech. Judge Maria Ortiz wrote, “True threats to injure persons are not protected by the First Amendment.” Romero’s attorneys are considering appealing the judges’ decision.

Whether Romero’s actions constitutes a crime or not hinges on the totality of the circumstances. This particular officer had a history with Romero. Apparently, it wasn’t a pleasant one. Thus, this officer knew information about this alleged offender that a stranger wouldn’t. That made the threat a lot more real and believable to her. Add to that what he did and how he did it, you can see how someone could reasonably feel threatened. I don’t believe the judges’ ruling will be reversed should it be appealed.

This statute is similar to disorderly conduct. While many of the arrests made for disorderly conduct are meritless because the arrestees’ conduct is constitutionally protected, there are some disorderly conduct arrests that are legally justified. For example, the guy charged with disorderly conduct for yelling on a crowded street corner, the very disturbing words: “The Holocaust never happened. Jews suck!” should have his charges dropped as what he’s spewing is constitutionally protected, albeit extremely offensive. On the other hand, the fella that yells “Fire!” in a crowded movie theater has committed a criminal offense. These cases, like the statute that Romero was charged under, should be handled on a case by case basis.

So, the first obvious lesson is don’t mess with cops. The second lesson here is even when you think your behavior may be innocuous and non threatening, you may run into others who feel differently. As I’ve noted in many other previous articles, there are limits on our freedom of speech.

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