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Police Civil Liability and the First Amendment: Retaliation Against Citizens Who Criticize and Challenge the Police

NCJ Number
161377
Journal
Crime and Delinquency Volume: 42 Issue: 1 Dated: (January 1996) Pages: 50-75
Author(s)
M S Vaughn
Date Published
1996
Length
26 pages
Annotation
This article explores the civil liability of police officers who retaliate against citizens exercising their first amendment rights.
Abstract
The right to free expression and law enforcement's desire to control dissent and challenges to authority pose vexing problems for police officials. By combining police sanction concepts, citizen demeanor literature, and case law on civil liability, the author shows how police officers increase liability risks by arresting or otherwise retaliating against vocal critics, uncooperative suspects, and citizens with an attitude problem. After identifying the retaliation standard articulated by the U.S. Supreme Court in Mt. Healthy City School District Board of Education v. Doyle (1977), the author examines lower cases pursuant to Mt. Healthy's three-pronged test: (1) whether plaintiff conduct is protected by the first amendment; (2) whether plaintiff's protected first amendment activity is a substantial or motivating factor in police officer conduct; and (3) whether a police officer would respond the same in the absence of the protected first amendment activity. He concludes that police officers need more training in anger management and interpersonal communication to avoid liability for violating the first amendment right of citizens to verbally confront and challenge the police. 120 references and 18 notes