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Police video of Malik McDowell’s arrest shows no apparent wrongdoing

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“Criticism of the police, profane or otherwise, is not a crime”—United States Ninth Circuit Court

NFL: Combine Brian Spurlock-USA TODAY Sports

Note: Includes transcriptions of gendered insults.

Early Sunday the celebrity news site TMZ reported Seattle Seahawks rookie Malik McDowell got arrested and charged in Georgia for disorderly conduct. McDowell Monday apologized for the episode, specifically asking forgiveness of his teammates and the Atlanta Police Department.

Wednesday, TMZ released partial video from the incident under the headline “Cusses out cops like a maniac.” The provocative headline and NSFW content surely works to invite viewers to click the link, or encourage internet onlookers to express their scorn for the 21 year old McDowell without even bothering to watch the footage. However, although the video does portray McDowell swearing at arresting officers and is selectively edited without including the inciting dispute that led up to his arrest, in the clip the police are the first ones to curse at McDowell. It also shows McDowell calmly questioning his treatment by the police and attempting to assert his rights before later losing his temper.

Based on a history of Supreme Court decisions holding that foul language, even when directed toward law enforcement, is protected speech under the first amendment, the released video seems to validate McDowell’s complaints as it contains no direct evidence he committed a crime. Take a look:

The scene is a parking lot of the SL Lounge, a nightclub nearby the Dekalb-Peachtree regional airport outside Atlanta, north of the Druid Hills neighborhood. The segment begins with the cop recording McDowell from behind while trying to loosen his handcuffs. Meanwhile, another officer holds a pepper spray canister close to his face (according to the original TMZ report, the officer claimed she “had to almost tase” McDowell).

“I’ve got cuffs on, what can I do to you?” McDowell asks. “Please can you tell me that—why are you scared of me?”

“Why you sound so fucking ignorant?” the officer with the pepper spray replies.

McDowell later asks what he’s being arrested for. The cop answers, “Disorderly conduct.”

“For when?” McDowell says—then there’s an exchange when they talk over each other that ends in McDowell calling the officer a “bitch”. “That’s disorderly conduct,” she says.

“I can call you a bitch if I want to, right?” McDowell tries to clarify.

“That’s disorderly conduct,” the officer affirms. “That’s why you’re going to jail.”

Later, McDowell sits in the back of a patrol car and uses the n-word to describe the police, which seems to provoke the officer to pull him back out of the vehicle to search him out of spite. Again, McDowell asks, “What are you arresting me for?” and now the recording officer says, “Disorderly; disorderly and using fighting words.”

“That’s not fighting words that’s freedom of fucking speech,” McDowell says.

McDowell continues talking throughout the inspection—at one point screaming for help as he accuses an officer of attempting to plant incriminating evidence while going through his pockets. Again, McDowell tries to understand the charge. He asks for a breathalyzer test, insisting he’s not drunk. Presumably, McDowell confuses the criminal label “disorderly conduct” for a so-called “drunk and disorderly” charge. According to the legal resource FindLaw, public intoxication is a separate offense under Georgia criminal law.

Indeed the Georgia Criminal Code § 16-11-39 says disorderly conduct includes:

(3) Without provocation, uses to or of another person in such other person's presence, opprobrious or abusive words which by their very utterance tend to incite to an immediate breach of the peace, that is to say, words which as a matter of common knowledge and under ordinary circumstances will, when used to or of another person in such other person's presence, naturally tend to provoke violent resentment, that is, words commonly called “fighting words”;

The other provisions involve actual violence or destruction of property, or swearing in the presence of a minor under 14 years old. The crime is a misdemeanor.

According to the police, McDowell’s behavior at the club involved a dispute over 600 dollars, shouting at security and pouring out bottles of tequila and cognac—any of which might reasonably be labeled disorderly conduct and could be corroborated by witnesses outside of video evidence. But judging purely from the actions in the video and specifically the cops’ statements made on tape, this section about “opprobrious” language and “fighting words” is what’s pertinent here.

“I can just talk loud and it can be disorderly conduct?” McDowell asks after the exchange about drunkenness.

In fact, a variety of federal appeals court rulings have affirmed Americans’ rights to use profanity or otherwise yell at police, and found local statutes limiting “fighting words” to be too broad to be constitutional. In 1972, Gooding v Wilson, for example, dealing expressly with Georgia law, the court held that “no meaningful attempt has been made to limit or properly define these terms” and found prior precedent limited such proscriptions “to words that ‘have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.’” It seems safe to interpret McDowell wasn’t really trying to cause the officer to spray him with mace or use her taser. The majority went on: “The dictionary definitions of ‘opprobrious’ and ‘abusive’ give them greater reach than ‘fighting’ words.” In 1974, Lewis v New Orleans reversed a similar ordinance in Louisiana that had called it “a breach of the peace for any person wantonly to curse or revile or to use obscene or opprobrious language toward or with reference to any member of the city police while in the actual performance of his duty”.

Local laws continued to try to define these limits more narrowly, including measures worded more directly around the interference of officers performing duties. But the 1987 result of Houston v Hill overthrew the conviction of a man who had said, “Why don’t you pick on somebody my size?”—a more specific invitation to fight, and in this case an intervention in an arrest—declaring that “in the face of verbal challenges to police action, officers and municipalities must respond with restraint” while at the same time agreeing with Terminiello v Chicago (1949) that “speech is often provocative and challenging but is nevertheless protected against censorship or punishment, unless shown to produce a clear and present danger ... that rises far above public inconvenience, annoyance or unrest.” USA v Poocha similarly dismissed a disorderly conduct complaint in 2001, against a man who had said “fuck you” to a cop, again holding that “criticism of the police, profane or otherwise, is not a crime.” Obscene language, according to the ruling, constitutes neither “disturbing the peace” nor “fighting words”.

For these reasons, when at the end of the video McDowell calmly debates the booking officers—“I need to know, is that deemed disorderly conduct, that’s all I’m asking. She say something to me, and I say, ‘Fuck you bitch, is that disorderly conduct?’ and y’all say, ‘He said bitch. Lock him up.’ I’m just not understanding”—he is totally right, on legal grounds.

(The video is so specifically edited to highlight this freedom of speech issue it almost makes me wonder if McDowell’s lawyers were the ones who leaked it—although nahhh that’s ridiculous. More likely TMZ strategically crafted it to rally multiple sides, although I haven’t seen it engender any debate. Still it’s weird the last segment, which is most sympathetic to McDowell, is included at all if the cops provided it. Maybe the web site paid more for a bit with Leek’s face.)

Almost certainly, McDowell will find it wiser and easier to simply make a plea agreement and pay a small fine than go through a protracted trial process—especially considering we haven’t seen the interaction with the cops before he got handcuffed, or what happened inside the nightclub that started the whole thing.

It’s also true McDowell shouldn’t be proud of using gendered insults that would get you banned at Field Gulls, or for lording his wealth over people on a public payroll. At one point McDowell talks about how many millions of dollars he made in the last two months, something certain to arouse bitterness from Seahawks fans since McDowell hasn’t contributed anything on the field to earn that money in the same interim, while recovering from his brain injury during the summer. Later on the ride back to the precinct, McDowell raves that the million he paid in taxes this year means “If I get to call that bitch a bitch, I can” and the officer driving him correctly interjects: “I think that’s a bad way of thinking about things, man.”

At the same time, the TMZ headline paints McDowell’s circumstance inaccurately—and even engages in mental health shaming that’s as inappropriate as the words it pillories McDowell for using. I’m sure the fan responses already tend toward the same kind of exaggerated piety. But McDowell, who never seems particularly drunk or out of control in the video even when shouting himself hoarse, makes sound legal critiques and is also reasonably bewildered at his treatment—the condescending circular statements by police who don’t in fact seem to know on what actual suspicion McDowell is being charged—and probably appropriately scared.

McDowell already must be painfully aware how at risk he is of jeopardizing his whole career. When he starts squealing about planted evidence, even if you think it’s a little paranoid you can hear the realization that he is powerless to the possibility that everything can be snatched away from him at this moment. He’s got another man’s hand in his pocket, and he himself is physically restrained. It’s a terrifying and real danger—however poorly he’s protected his football assets so far, McDowell’s privileges also give him more to lose.

The police appear to relish taking advantage of that dynamic as if to level the field against his telling them how broke they are. That’s fucked up. The cop driving him even mentions how he’s not getting any of McDowell’s tax money, undermining his previous circumspect sentiment: “You ain’t pay us. You can go to the city of Seattle and call everyone that you want a bitch.”

As a somewhat experienced defendant myself—I sometimes joke that the police are like my exgirlfriend; we never seem to get along but always find ourselves attracted—I can say that frustration or anger as a football fan is nothing compared to frustration or anger facing police harassment and abuse, and never more than when you’re handcuffed or already locked up. Even when dehumanized, nevertheless it is paramount to know your rights and insist on those rights. And while you may not get the greatest expected value out of cursing at law enforcement it is still constitutionally legal in this country. Treating that behavior as an actual crime because it annoys cops violates the first and 14th amendments, according to the courts.

You may take a dim view of Malik McDowell already; many fans do, fair or not. But don’t get carried away about this episode because a video caught him using adult language in an adult situation.

The classic response is how he should avoid such scenarios to begin with. The classic defense is that he’s a very young man adjusting to wildly new conditions in his life. Neither of those tracks mean much to me here. Everything about it sucks, without having to assign blame or scruples to every actor. McDowell’s reputation will take an even greater blow from this incident, but being wrong in the first place, if he even was, or verbally out of line, doesn’t in itself validate captivity and gaslighting by the state. If football doesn’t work out perhaps McDowell has a future as a legal scholar.