Dog Poop Complaint Leads to Free Speech Lawsuit

By Christopher Coble, Esq. on August 23, 2017 | Last updated on March 21, 2019

'F*** you. F*** you. F*** you.'

Not always the most diplomatic tack to take with a police officer, but should it get you arrested? Tracy Smith doesn't think so, but then again, he probably didn't think he'd end up in handcuffs after a neighbor complained about a dog that he didn't own, pooping in a yard that wasn't his.

So what did the Founding Fathers say about dropping F-bombs to the fuzz regarding some furry friend's fecal matter?

Felonious F-Word

Now if I told you Thomas Tinklepaugh was involved in this story, you might guess that he was the four-legged fugitive, allegedly doing his business in an empty lot on Rockwell Street. But nope, Tinklepaugh was the Jackson Police Officer called to Smith's home by angry neighbor Robin Robinson. Officer Tinklepaugh initially spoke with Smith's wife, then says Smith began cussing at him, despite his insistence that Smith "Be nice," and stop swearing in front of children.

When Officer Tinklepaugh threatened to arrest him for disorderly conduct, Smith responded, "F*** you. F*** you. F*** you."

Resisting Charges

According to his lawsuit, Smith claims he was slammed onto the hood of a police SUV and then tackled to the ground during his arrest, required emergency treatment for his injuries, and spent two days in jail. Smith was charged with assaulting-resisting-obstructing an officer based on his swearing. That didn't work, because the Michigan Court of Appeals had thrown out the state's obscenity law in 2004.

Prosecutors tried to appeal the dismissal of Smith's charges by arguing that Smith interfered in the investigation into the doggy deuce by interrupting Officer Tinklepaugh's conversation with his wife. When that also didn't work, prosecutors tried to argue Smith's words were loud enough to violate the city's noise ordinance. Ultimately, the Michigan Court of Appeals also threw out Smith's charges, finding there was no probable cause for his arrest.

F***ing Free Speech

Smith is now suing Officer Tinklepaugh for violating his Fourth and First Amendment rights, claiming he "arrested and sought institution of criminal charges against ... Smith in retaliation for his use of constitutionally protected speech." When it comes to whether "F*** you" is protected free speech, we refer to our criminal law blog, Blotter:

While it's probably not a great idea to antagonize a police officer, in most cases you won't get arrested for insulting a cop. Courts have found that flipping off a cop isn't enough to warrant a traffic stop, and that verbally challenging officers during an investigation isn't enough to warrant an arrest. You may even get away with calling cops "pigs," although, again, we wouldn't recommend it unless you're comfortable with increased police scrutiny.

Smith is also claiming he was the victim of assault by Officer Tinklepaugh and was falsely imprisoned. All because of one "distasteful" word.

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