Self-Inflicted Wounds

There are times when "tactical language" may be the only thing some suspects respond to. But that doesn't mean profanity should be your default method of communicating with everyone with whom you come in contact.

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M Pol 98

In two previous articles, I've written about some of the implications of increased public visibility of police conduct carelessly displayed by officers on social media sites, or captured by the citizen-filmmaker in an age when everyone carries a cell phone that's able to record practically every move you make. (See "The Whole World is Watching," September 2009, and "Video and You," October 2013.) Unfortunately, I keep seeing officers lose court cases and their careers by committing the missteps highlighted in those articles.

With the growing implementation of police body cams and the greater proliferation of phone cams, your personal control over your professional behavior becomes more important than ever. Case-in-point: law enforcement use of profanity on the job.

Yes, there are times when undercover officers have to "fit in" by talking like the crooks they're trying to fool. And yes, there are times when "tactical language" may be the only thing some suspects respond to. But that doesn't mean profanity should be your default method of communicating with everyone with whom you come in contact.

Public Perceptions and Expectations

During the investigations of the "Watergate scandal," former President Nixon was forced to produce transcripts of White House recordings. When the public learned about Mr. Nixon's routine use of profanity, he lost the respect and support of a great many people who were disillusioned to learn of their president's affinity for gutter language. Why? Because people hold certain officials in high regard, and they expect those officials to justify that high level of respect by adhering to higher standards of conduct than the lowest common denominator among us.

No matter what your personal standards of behavior may be, the public holds you, as a law enforcement officer with a badge of official trust, to a pretty high professional standard. Even people who routinely use profanity themselves do not expect you to do the same. "The civilized community may not condone the use of profanity [by police officers]." (Cook v. City of Minneapolis) "It is not appropriate for a police officer during a traffic stop of a courteous and unprovoking citizen to use profanity." (Walker v. Kiousis)

At a time when police officers are being unfairly painted as nothing but undisciplined thugs, the online and televised broadcast of police profanity during citizen interactions feeds the popular misperception that cops are out-of-control bullies, undeserving of respect or public support.

Have you ever stopped to think what impact the routine resort to profanity has on an officer's ability to accomplish the law enforcement mission, and on career progression? Here's a hint: it isn't positive.

Civil Liability

In hundreds of reported cases, plaintiffs who sued police have included an allegation that officers directed profanity at them during a detention, arrest, search warrant service, etc. Plaintiffs make such an allegation precisely because it can diminish your credibility and stature in the eyes of judges and jurors and make it harder to defend yourself against allegations of abuse in a civil suit. Following are examples of language from cases in which police profanity became a negative factor in evaluating such allegations:

"Extreme and outrageous conduct [such as swearing at plaintiffs] that goes beyond all bounds of decency and is considered intolerable in a civilized community [supports a claim for intentional infliction of emotional distress]." (Mnyofu v. Village of Matteson)

"That the jury awarded plaintiffs punitive damages [of $20,000] demonstrates that it found the officers to have acted outrageously in making the arrest. On two occasions, for example, the officers used profanity in addressing plaintiffs." (Bieleviez v. Pittsburgh)

"Plaintiff became upset when the officer used profanity with his teenage daughter. Another officer said, ‘Didn't my partner tell you to shut the f__k up? If you don't shut the f__k up, I'm gonna tase you.'" (Jackson v. Pittsburgh)

"Plaintiff asserts that the officer grabbed his scrotum and said, ‘You haven't felt like this in a long time, you faggot.' If a jury finds that the physical touching and the comments occurred as described, these acts could support a finding of Fourth Amendment violation." (Love v. Town of Granby)

"The officer went to plaintiff and told her to ‘Shut the f__k up.' He also held a gun to her head and said, ‘I'm gonna blow your motherf__king brains out.'" (Wright v. U.S.)

And in a case where an officer sued the department and co-workers for hostile work environment, one allegation was that "the officers were not discouraged from using casual profanity, and the officers used profanity all the time." (Davenport v. City of Columbus)

As you can see, profanity can come back to bite you when you're being sued, or when you're answering a suppression motion that claims a search or seizure was performed in an "unreasonable manner," based partly on your crude language.

Interrogation Issues

An officer's use of profanity can also be a factor in turning a non-custodial interview into a custodial interrogation that requires Miranda warnings, as well as a factor weighing against a finding that a suspect's statement was voluntarily given. Both of these concerns were at issue in U.S. v. Artis, where the federal court found that unMirandized questioning became custodial based on several factors, including the officer's swearing at the suspect. Also, because the "nature, tone, and style of the questioning" contributed to "a measure of compulsion above and beyond that inherent in custody itself," the suspect's statements were deemed involuntary, and therefore inadmissible for any purpose.

It's a Plus Not to Cuss

Just as there are court decisions finding fault with police profanity, there are also decisions where the absence of profanity weighed in the officers' favor, such as these: "At no point in their detentions or interrogations did any officer use profanity." (Farag v. U.S.) "Worth noting is that there is no contention that the officers used profanity at any time." (Harbin v. City of Alexandria)

More Considerations

In addition to causing you trouble with civil suits and suppression motions, evidence of your unnecessary use of profanity can bring other problems, such as these:

  • Citizen complaints. You may make yourself subject to internal discipline for discourtesy or violation of professional standards.
  • Brady disclosure. In some kinds of cases (resisting arrest or assaulting an officer, for example), your use of profanity might bolster certain defenses and therefore have to be disclosed per Brady v. Maryland. This could result in your name being entered onto a "Brady list," for disclosure in future cases.
  • Unfavorable impressions on jurors. Profanity uttered during a routine traffic stop or other citizen encounter may create a bad impression with someone who could show up on a jury in a case where police credibility is on the line. Also, evidence of police use of offensive language makes it more difficult for the prosecutor to persuade a jury of the officer's trustworthiness.
  • Public embarrassment. Publicized profanity captured by body cam or phone cam may be an embarrassment not only for the officer, but also for fellow officers, the chief, the department, and the officer's family.

Best Practice

Since gratuitous profanity can hurt officers so many different ways, why would anyone use it? Isn't the job difficult enough, without self-inflicted wounds?

Devallis Rutledge is a former police officer and veteran prosecutor who currently serves as special counsel to the Los Angeles County district attorney. He is the author of 12 books, including "Investigative Constitutional Law."

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DA Special Counsel
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