I have heard that a as a peace officer, you cannot be offended. Where is this exception found? I cannot find it in any TX statute (any applicable case law?).
And after conversing with a municipal judge in a major DFW suburb, their opinion was basically that while a peace officer should expect/have a high tolerance for a certain amount of oral abuse in your typical PO/violator contact situation, that to say a peace officer can never be offended is not correct as a matter of law. A peace officer can be the complaining witness in a DOC case, i.e., it is not necessary for a third-party citizen to be present.
Whether the language rises to a level so as to be considered DOC PC 42.01(a)(1) or PC 42.01 (a)(4) is a question of fact for any potential jury.
You could always use the test, "What would offend a prosecutor?" Since the threshold is inciting an immediate breach of the peace, I would think there's very little that would rise to that level for a cop. Now if it's a threat, I would only file a case if it rose to the level of retaliation.
Federal Courts have stated there is a "heightened standard" for police officers WRT tolerance of "fighting words." See: United States v. Hazelwood, Civil Action No. SA-06-CR-160-XR, 2007 U.S. Dist. LEXIS 50983.
But, as far as I can tell, no Texas court has ever adopted this standard, and the Fourth COA has recently suggested Texas courts might not do so. See: In the Matter of J.A.P., No. 04-08-00453-CV, 2009 Tex. App. LEXIS 1836.
I do not usually make comments on here. I have asked a few questions in the past about different matters but I wanted to put in my 2 cents. Give my view from the field.
I am a Chief Deputy for a small county in the Texas Panhandle. I have been in law enforcement for over 20 years now. I have heard from several different people and agencies that a peace officer cannot be offended but I have never been shown the statute or anything else.
This way I do business out on the street and the way I instruct new officers. If there is only the peace officer and the violator then I will take just about any tongue-lashing that he/she can give. It changes drastically when others are present.
If anyone else is present when the tongue lashing starts, ONE warning is giving and then the next foul word and the offender gets to leave with me. Remember it does not have to incite an immediate breach of peace, just tend to incite. The statute does not say that anyone has to be offended.
There also is an underlying issue here as well. Respect and authority. Just the same as Judges and Prosecutors have to have respect and their authority not challenged in their arena, I have to have the same in my arena.
Just my 2 cents....
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