The Cato Institute's Amicus Briefs
Cogito Ergo Kill?

Quick! Pin Something on Him

Ajai Raj was arrested for disorderly conduct after behaving like a farm animal during Ann Coulter's recent speech at the University of Texas.  But as Eugene Volokh noted, the arrest probably violated Mr. Raj's free speech rights.  As the arrest warrant shows, Mr. Raj's protected speech was the predicate act for the disorderly conduct charge. 

Many of you might wonder whether Mr. Raj will sue under section 1983 for violations of his First and Fourteenth Amendment rights.  He might; and he very well could lose.

Under Devenpeck v. Alford, an unconstitutional arrest magically becomes constitutional if the police can find an after-the-fact justification for the arrest.  In Alford, police officers pulled over a motorist.  While questioning the motorist, police noticed that Mr. Alford had a tape-recorder running. The police then arrested Mr. Alford for violating a Washington law that prohibited the nonconsensual taping of private conversations.

But since Washington caselaw established that the police have no expectation of privacy in conversations made during traffic stops, the privacy act charges were dropped, and the Ninth Circuit held that the arrest was unconstitutional.

Reversing, the Supreme Court held that since the police had probable cause to arrest Mr. Alford for another offense, the arrest was constitutional.  Thus, even though Mr. Raj's disorderly conduct charge was predicated on protected speech, it's quite likely that police and prosecutors, if they think hard enough, will find something else to pin on him. 

Alakazam!  An unconstitutional arrest would then become constitutional.