For example, say a police officer arrests someone for giving them the finger. As I understand it this action is protected under the first amendment.
Can any criminal charges be brought against an officer that does this?
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Yes.
Examples of officers charged with false imprisonment for making an arrest without a valid legal basis to do so can be found here, here, and here (the exact name of the criminal offense varies somewhat between the federal criminal justice system and the various respective state criminal justice systems).
In general, police do not have immunity from criminal charges if they can be proven, and the legal protection that law enforcement officers enjoy when making an arrest apply only to arrests that was lawful or that a law enforcement officer reasonably believed was lawful.
As a practical matter, it is rare for police officers to be charged with false imprisonment criminally, and much more common for a civil lawsuit under 42 U.S.C. § 1983 to be brought against an officer by the victim of the wrongful arrest (see, e.g., here).
But no legal doctrine prohibits the criminal charge if the officer knew that the arrest was unlawful.
ohwilleke
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1"As a practical matter, it is rare for police officers to be charged with false imprisonment criminally" But why is this? We have bodycameras now. There's overwhelming evidence. Seems to me like a lot of these cases would be easy to prosecute. Is it just that prosecutors will not prosecute police officers? – Ameet Sharma Feb 05 '24 at 02:32
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34@AmeetSharma Because district attorneys rely on police to support them in bringing criminal cases against defendants who are not police officers. Charging a police officer with a crime undermines the relationship between the District Attorney and the entire law enforcement community (usually one self-organized by a police officer's union). Likewise, police officers tend to not want to work up criminal cases against other police officers. Unless a case is so shocking that even other police officers will not have sympathy for their fellow officer, it is very hard to prosecute these cases. – ohwilleke Feb 05 '24 at 02:41
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1@AmeetSharma along with the other answer, you have to realize a police officer is exactly like a deputy DA attorney, and both of them are exactly like a judge, or bailiff, and you, and me. ie, we're all just people. Our vocations should not dictate how much integrity and/or honor we conduct ourselves with. Unfortunately, the world is not perfect. People are different. Some behaviors seen as problematic, particularly without context, can be corrected or at the very least curtailed. And that is all without approaching the fact that socially kind looks after kind. It is a complex tapestry... – Tank R. Feb 05 '24 at 12:06
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7@AmeetSharma "We have bodycameras now. There's overwhelming evidence": look at some trials with video evidence to see how uncertain such evidence can be. First, video has little to say about an officer's state of mind, that is, what the officer knew or thought about the law or the facts, with respect to whether the officer believed that the arrest was lawful or whether that belief was reasonable. Second, people can even disagree about the events depicted in a video, for example whether a blurry object is or resembles a gun or knife. – phoog Feb 05 '24 at 13:20
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@ohwilleke But wouldn't a DA NOT charging a police officers undermine the relationship of the Defense Attorney with the people it defends from such infractions? I suppose the DA makes a bet that the people, through the laws they set through representatives, don't actually mean it when they say that nobody is above the law. Almost each and every time the DA wins this bet, but ultimately the outcome depends entirely on the people. – Andrei Feb 05 '24 at 14:24
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3@Andrei DA stands for "District Attorney" and is another way of saying the prosecutor's office. Criminal defense attorneys represent people charged with crimes and they have a relationship with the police and with the DA that is adversarial. – ohwilleke Feb 05 '24 at 14:42
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@Andrei No it does not. To think that it does is super idealistic. That's just how corrupt the system is. The defense attorneys see the prosecuting attorneys far more often than the one-off clients they are assigned to defend to the point they know each other and work together. They are not opponents. You often hear about how defense attorneys cooperating with the prosecution pressure their clients into accepting pleas for crimes they did not commit. – DKNguyen Feb 05 '24 at 15:18
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4@phoog Police BC seem to malfunction at the most odd of times. Also,they can turn the body camera off at any time. While suspicious, that coupled with the fact prosecutors, police, and (sometimes) judges think they are part of the same team makes charges of spoliation of evidence even harder to press. – Mindwin Remember Monica Feb 05 '24 at 18:42
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5@DKNguyen: Defense attorneys advise their clients to accept plea bargains, because of the trial penalty, not because they are lazy or in cahoots with the prosecutor. A defense attorney who does not zealously represent the interests of their client is committing a serious act of professional misconduct, and the verdict may also be challenged under the Sixth Amendment. – Kevin Feb 05 '24 at 19:19
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5@DKNguyen: I'm very familiar with the problem of false arrests, false confessions, false convictions, etc. What I'm saying is that the defense attorney is seldom the cause, not that the problem does not exist. – Kevin Feb 05 '24 at 19:37
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@ohwilleke I knew already what a District Attorney is, but thanks. The prosecutor defends the people from criminals. That's its role. If a police officer happens to also be a criminal and the District Attorney is not prosecuting, then it doesn't do its job as assigned by its boss, which is the District, more specifically, the people of the district. – Andrei Feb 07 '24 at 08:46
Traditionally, behaviour likely to cause a breach of the peace has been arrestable; has needed to be in the street or a public building; even in public 'fingering' the fuzz could hardly qualify by itself. That broadly meant if I directly threatened you or your crew.
Recent legal changes bump that way beyond anything direct, as is to be explained in the next episode.
More…
– Robbie Goodwin Feb 09 '24 at 18:19Recent changes criminalize anything said or done within the hearing or sight of a person likely to be caused harassment, alarm, or distress.
Once when I crashed into your car and you leapt out, jumping up and down, scream and perhaps waving a tyre iron, that might have been a nuisance to the passing public but broadly, it would have been between us.
Today's law suggests you may not do that not because I might mind, but because a little old lady, a small child or any other by-stander might be alarmed.
Who defines 'likely to be' and how 'free' are we?
– Robbie Goodwin Feb 09 '24 at 18:31