MONTROSE, Colo. — Josh Smith wanted a burger, some chicken strips and his favorite frozen treat – but ended up in the middle of a legal battle over his First Amendment rights and what a police officer accused him of doing wrong.
It all started on the afternoon of Oct. 8 in Montrose – a town located about an hour’s drive southeast of Grand Junction on Colorado’s Western Slope – when police stopped a stolen Kia and arrested two people. It happened outside a fast food joint known as Humdingers. Smith is a regular customer there.
“It's like less than a mile away from where we live, so we go there,” Smith told 9NEWS.
But when he pulled in that afternoon, three Montrose police vehicles clogged the path to the drive-thru window.
Officers had stopped a SUV that had been rented months earlier from Hertz but never returned. They had arrested two people and were in the process of sorting through potential evidence in the vehicle – including drug paraphernalia.
Body camera footage obtained by 9NEWS Investigates shows the officers finding a sex toy, leading to laughter. One of the officers stuck the toy onto the car’s rear fender, where it stayed for a time, looking like a pornographic radio antenna.
Smith knew none of that. He knew only that he wanted food for his girlfriend – and a Reese’s Polar Swirl for himself.
“They’re like a [Dairy Queen] Blizzard type of deal,” he said.
When Smith got there, all he saw were three police vehicles in his path to the menu board.
“I could barely squeeze through to get into the drive-thru, and I just rolled my window down and I yelled,” Smith said.
What he yelled – “Move your s--- out of the way, d---heads!” – was captured on two officers’ body cameras.
One officer chuckled as she repeated Smith's words. Moments later, a sergeant walked to the drive-thru lane where Smith was parked waiting to order.
“Quit yelling or you’re going to get a citation. Understood?” the sergeant said. “The lights are there. That means don’t go by ‘em.”
“Get the f--- out of the way. I'm ordering my food,” Smith responded.
“Quiet, quiet,” the sergeant replied. “Order your food.”
The Montrose sergeant walked away and, according to a police report, “moved [the] patrol vehicle closer to the contact vehicle we were searching to not block access to the drive-through while still trying to keep the scene secure.”
That might have been the end of it. But when Smith got to the window, a Humdingers worker told him he was the first customer in a half hour. She thought the drive-thru lane had been closed off by the police.
“As I was sitting there waiting for my food, I kind of just realized like, 'You know, he just threatened me and I didn't even do anything wrong,'” Smith said.
After picking up his order, Smith pulled around the building. He was yelling as he drove toward an officer, who approached his car.
“What’s the problem?” she asked.
“You guys are blocking the f------ road,” Smith responded. “They said nobody could get through the drive for a half an hour.”
After some back and forth, the officer asked Smith his name.
“F--- you,” he replied and drove off.
That officer conferred with the sergeant, who decided that Smith had broken the law.
“I’m going to go stop him and write him a ticket,” the sergeant said.
He climbed into his patrol vehicle and headed off in pursuit of Smith, stopping him about a mile away.
“You’re going to get a citation. I need to see your driver’s license,” the sergeant said after walking up to the driver’s side window of Smith’s car.
“For what?” Smith asked.
“You can’t be flipping people off,” the sergeant answered.
A short time later, the sergeant returned with a ticket for disorderly conduct for making an obscene gesture.
“You can’t be going around flipping people off, yelling at people,” the sergeant said.
“You’re a dumba--,” Smith replied.
“That’s why you’re getting a citation,” the sergeant said.
“Yeah, yeah, a citation,” Smith replied. “I’ll beat it when I go to court.”
Editor's Note: The video below contains language some viewers may find offensive. 9NEWS edited the video for clarity.
According to Montrose’s municipal code, a person can commit disorderly conduct in multiple ways, including by making “an obscene gesture to another person in a public place in a manner likely to provoke a violent or disorderly response.”
“There is nothing prohibiting someone from using basically any language they want to protest the actions of a police officer,” said David Lane, a Denver-based civil rights attorney. “The United States Supreme Court decided that back in the ‘70s.”
Smith’s language – even if some might find it offensive – is protected free speech, Lane said.
“Disturbing the police, as it turns out, is not a crime,” Lane said. “Contempt of cop is also not a crime. What is a crime is violating the constitutional rights of citizens.”
On Nov. 7, Montrose’s city attorney amended the charge by dismissing the allegation of disorderly conduct and accusing Smith of interference with an officer, writing in a court motion that the change “accurately reflects the evidence to be presented at trial.”
The city’s ordinance defines interfering with an officer as “using or threatening to use violence, force or physical interference or obstacle, to obstruct, impair, or hinder the enforcement of the law or preservation of the peace by a peace officer.”
Lane said that charge conflicts with numerous court rulings.
“If you are physically interfering with the police doing their official business, then they can arrest you for that,” he said. “Interference generally requires a physical obstruction or you are right in their faces while they're trying to do something that involves official police business and they can't really do it because you are so close to them yelling and screaming.”
After watching the body camera footage, Lane said he saw no evidence Smith did anything to interfere with police.
“There was no physical obstruction,” Lane said. “There's case law that talks about how any interference charge has to involve a physical obstruction of the police.
“Yelling at the cops, calling them idiots, calling them names, you know, and flipping them off doesn’t interfere with anything," Lane said. "It just hurts their feelings."
“I didn’t do anything wrong,” Smith told 9NEWS.
Even so, he faces a date with a municipal judge. Lane said he expects the actions of the police officers involved to end up in federal court.
“They have each taken an oath to preserve, protect and defend the Constitution of the United States of America,” Lane said. “That implies that they understand it. And apparently these officers have absolutely no understanding of free speech.”
The Montrose city attorney who is handling the case did not respond to a request for comment from 9NEWS.
While Smith has been arrested several times over the years, most recently on traffic charges, he said he has not had issues with Montrose police in the past. He does not believe he’s ever encountered any of the officers involved in this situation.
He questioned the officers’ actions after they discovered the sex toy – especially in light of the fact one of them wrote him a ticket after being offended by his use of coarse language.
“They were just joking around, throwing it around the car,” Smith said. “To me, that's not professional behavior. That’s not where I want to see my tax money go.”
More important to him is that he believes the officers violated his First Amendment rights.
“I want them to get First Amendment training for all of their police officers, so this doesn’t happen,” he said. “Obviously, this has been happening for who knows how long.”
Smith said it’s about the principle – not the fine he faces.
“It’s just like they’re extorting money – $120,” Smith said. "That’s not a lot of money to a lot of people, but they can just pay it rather than go through court.”
Smith is committed to fighting the citation in court, and Lane predicts there’d also be a fight in federal court.
“These cops are going to end up in federal court explaining to a federal judge why they don't understand the Constitution of the United States,” Lane said.
Lane filed a motion seeking the dismissal of the charge. He said the city attorney told him the charged would be dropped if Smith agreed not to file a civil lawsuit. Lane called that offer "unethical" and rejected it.
Now, Smith is due in Montrose Municipal Court on Thursday.
Contact 9NEWS investigator Kevin Vaughan with tips about this or any story at kevin.vaughan@9news.com or 303-871-1862.