Legal and criminal justice experts weighed in this week on how citizens should handle “stop and frisk” situations, following the disorderly conduct arrest of a Midtown resident on Feb. 1.
Tom Herder’s attorney, Josh Briskman, has said the detention and arrest of his client, while walking his dogs, was unconstitutional. The Mobile Police Department is upholding a charge of disorderly conduct, saying Herder was irate and profane.
Dom Soto, a local defense attorney, said it’s not illegal to disagree with police, but it’s not a good idea to challenge their authority, either.
“The best response would’ve been not to bow up,” Soto said. “Why give these guys any crap?”
Soto said it’s important to remain courteous and remember police are just doing their jobs. He added that while it’s not illegal to curse at police, it’s better not to do so.
“Cops are supposed to be more thick-skinned than what happened here I think,” Soto said. “It’s not illegal to curse, but if something happens, remember that the municipal judges work with police every day.”
Dr. Steve Costanza, a University of South Alabama criminal justice professor with the Center for Public Policy, agrees that the best advice is to be cooperative.
“If an officer is trying to search you and you don’t want them to, just be nice,” Costanza said. “Understand they have a job to do. This is especially true if they bring you into custody.
“The best thing to do is ask for an attorney and remember the Fourth Amendment is in your corner,” he added.
Referring generally to “stop and frisk” situations and not about the Herder case specifically, city spokesman George Talbot wrote in an email Monday that “the use of obscene language that amounts to fighting words” can be considered disorderly conduct.
He added that citizens “aren’t allowed to make unreasonable noise because an officer is attempting to prevent crime in your neighborhood.”
Briskman contends a “lawful questioning of authority” doesn’t constitute fighting words and isn’t disorderly conduct.
“There has to be an intent to cause public inconvenience,” Briskman said. “Simply saying ‘F you’ to somebody doesn’t apply. It has to be shown to be a blatant act of disorderly conduct.”
Briskman spoke further about his client.
“Tom was stopped, he questioned it, maybe cursed,” he said. “So what, he’s allowed free speech. It’s perfectly lawful.”
Police Chief James Barber said in a previous interview with Lagniappe that the charge was based on “horrible profanities” that at least one resident could hear above the volume of a television.
Soto said the determination of whether Herder crossed a line with his behavior during the incident would have to be settled by a judge.
“It sounds to me like the whole thing got out of control on both sides,” he said.
Talbot wrote that citizens could avoid similar situations by “using common decency and respect.”
“They should be aware of their surroundings before they start screaming and yelling loud and obscene language,” he said. “Our officers routinely put themselves in the line of danger in order to protect our citizens. They are vital to our shared goal of making Mobile the safest city in America by 2020.
“Answering a few simple questions is a very minor inconvenience to prevent much larger harm from occurring,” he added.
Barber said Herder was in the yard of a vacant house at the time of the detention and fit the likely description intelligence officers had developed of a suspect wanted for as many as 10 burglaries. This was based upon the burglar taking smaller items, perhaps because he was on foot or bike and lack of ancillary destruction during the burgalries, indicating it might be an older person.
Although he didn’t have identification with him, Herder said he gave police his name, phone number and Social Security number.
“Unfortunately, we’re getting to the point where citizens need to carry identification with them at all times,” Costanza said. “In the age of terrorism I would say probably yes.”
Soto doesn’t believe it’s time for citizens to start carrying identification at all times, even when walking dogs, but said that time may not be far off.
Costanza said a closing of the gap between communities and police would help future situations. For citizens this means some personal research about “stop and frisk” situations, and for the public it means more funding for community policing programs. That help bring the police and the communities they serve closer. He said such programs that had received funding before 9/11 were making inroads all over the country.
“They were having some effect,” Costanza said. “Communities had a better understanding of the police and the police had a better understanding of the communities.”
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