Crime

Is pointing a ‘finger gun’ at a cop a constitutional right? An ex-con just found out

From left to right, Miami-Dade County judges Robin Faber, Maria Ortiz, Andrea Ricker-Wolfson and Edward Newman earlier this month listen to arguments about the constitutionality of a Florida law governing threats against police officers.
From left to right, Miami-Dade County judges Robin Faber, Maria Ortiz, Andrea Ricker-Wolfson and Edward Newman earlier this month listen to arguments about the constitutionality of a Florida law governing threats against police officers. dovalle@miamiherald.com

Bad action-movie dialogue and a finger gun pointed at a cop don’t qualify as protected free speech just yet.

A judge has ruled that a Florida law used to arrest a man accused of threatening a Hialeah police officer is perfectly constitutional. The judge joined two others in Miami who have ruled that the misdemeanor law does not infringe on constitutionally protected free speech.

“ ‘True threats’ to injure persons are not protected by the First Amendment,” Miami-Dade County Judge Maria Ortiz wrote in her order earlier this month.

She ruled in the case of Alex Romero, an ex-con with “305” tattooed on his right eyelid who is accused of threatening an off-duty Hialeah police officer picking up her daughter at daycare. Prosecutors say Romero pointed a finger at her like a pistol and blurted “Officer Hernandez, I got you now!”

Officer Scarlett Hernandez had past run-ins with Romero, and said the threat made her fear for her life.

The rulings, for now, are a blow to an effort by the Miami-Dade Public Defender’s Office to challenge a 2016 Florida law that made threatening cops, judges, and even firefighters with “death or great bodily harm” a misdemeanor crime.

It was unclear Monday if the Public Defender’s Office will appeal the rulings.

The claim: The law is too broad and infringes on constitutionally protected free speech, the latest in a long history of complicated legal fights across the county over the limits of free speech and what actually constitutes a “true” threat.

“As almost everyone who was ever a child can testify, no one has ever been killed or injured by forming fingers into the shape of a gun and dropping the hammer [thumb],” Assistant Public Defender Paul Nuñez wrote in his motion to declare the law unconstitutional. “There is no objective true threat here from that gesture.”

The challenges led to a unique hearing earlier this month, with four Miami-Dade county-court judges sitting together listening to legal arguments. Miami-Dade prosecutor Christine Zahralban said juries on a case-by-case basis should be the ones to decide whether a police officer or another government official was indeed being threatened.

“It's common sense,” Zahralban said. “Jurors know what a threat is.”

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