Judge Acquits Penis Costume-Wearing Grandma While Saying Some Dumb Stuff About Probable Cause

Last fall, an Alabama police officer decided he wasn’t going to allow a 62-year-old woman to exercise her First Amendment rights — not if she was going to do so from inside an inflatable penis costume.

Yes, these are sentences we actually have to write here at Techdirt — things that seem so implausible you’d expect them to be generated from the sloppiest of AI prompts. It’s a real thing, though. It happened to Fairhope, Alabama resident Renea Gamble. It was inflicted by Fairhope PD officer Andrew Babb, who took apparently personal offense at Gamble’s inflatable penis costume and her “No Dick-Tator” sign she carried during a “No Kings” protest.

You can watch the arrest in all of its ingloriousness below. It’s alternately comical and horrifying. Horrifying, because it involves officers assaulting a 62-year-old grandmother. Comical, because multiple attempts are made to fit the person and costume into a police cruiser before deciding it might be easier if the person and costume were separated… which then leads to an officer discovering it’s kind of difficult to shove a non-resisting inflatable penis costume into the truck of a police car.

This arrest and resulting prosecution gained national attention. Rather than encourage the city to drop the prosecution, it seemingly emboldened it. Prosecutors waited until people had moved onto the next outage before dropping additional charges on Renea Gamble, including “disturbing the peace” and “giving a false name to law enforcement.” (The latter charge stemmed from Gamble telling the arresting officers her name was “Auntie Fa.”)

Officer Babb — as captured by his own recording — presented a very subjective take on the First Amendment when arresting Gamble. He not only demanded Gamble explain what he was supposed to tell his own kids if they happened to see her costume (wtaf?), but said her particular form of expression was inherently unlawful because Fairhope was “a family town.”

The officer was as wrong about free speech as the town officials who supported this arrest and prosecution. Fair hope mayor Sherry Sullivan called the costume an “obscene display.” City council president Jack Burrell said the costume “violated community standards,” without bothering to assess what the community’s standards actually were.

Fortunately/unfortunately for him, a local radio station did exactly that, arriving at the opposite conclusion:

In December, a Mobile-based talk radio station held a listener poll to choose its annual Alabamian of the Year, with “Inflatable Fairhope Protest Penis” receiving the most votes.

Much more legitimately fortunate is the disposition of Renea Gamble’s criminal case. As AL.com reports, it has been tossed by municipal judge Haymes Snedeker. However, Snedeker’s acquittal comes with some caveats that will make it a bit more difficult for Gamble to pursue a civil rights lawsuit in this particular venue:

Judge Haymes Snedeker, after a trial lasting more than two hours, said he did not believe Fairhope Police Cpl. Andrew Babb was attempting to suppress 62-year-old Renea Gamble’s free speech rights during their encounter at the anti-Trump protest. He also said there may have been enough probable cause for Babb to arrest her.

However, Snedeker said he was not 99.9% certain that Gamble should be convicted of crimes stemming from the actions that led to her arrest. She was found not guilty of misdemeanor charges of disorderly conduct and resisting arrest, as well as a municipal violation for disturbing the peace and giving a false name to law enforcement.

Snedeker gives the officer too much credit, especially when his own statements during the arrest made it clear he was singling Gamble out because he didn’t agree with her particular form of free expression. The recording shows Gamble wanted to manhandle this penis because he was employed by a “family town” and didn’t want to have to explain to his kids what this costume might represent. He didn’t present anything approaching legal justification prior to pinning Gamble to the ground and handcuffing her.

The judge said all of this despite the officer’s testimony being completely undercut by the recording of the arrest.

Babb testified that he was using de-escalation techniques he was trained to employ as a police officer. He said he was concerned about safety and viewed Gamble’s costume as an “obstruction.” He said he did not arrest her because he was personally offended by the costume or her anti-Trump message.

[…]

[Gamble’s lawyer David] Gespass disagreed, arguing that body camera footage revealed the true nature of the arrest. In the footage, Babb tells Gamble that her costume would not be tolerated in a town that “has values.”

“That’s all he talked about when he was confronting her was, ‘I am not going to put up with this in my town,’” Gespass said. “He said nothing about her causing any problems with traffic. Certainly, if you watch the video, he is not de-escalating anything. He approached her aggressively.”

That wasn’t the only stupid thing said by the government. Here’s the prosecutor attempting to salvage an obviously bogus prosecution:

“There is no constitutional right to wear a total erect penis on the side of the road,” he said. “I’m sorry.”

Hmm. Seems wrong. Pretty sure in this context it’s protected speech. And all of these qualifiers suggest no prosecution would be happening if Gamble had simply let a little bit of the air out of the costume to appear a bit more flaccid.

Both the cop and the prosecutor (Marcus McDowell) are welcome to say dumb things in their own defense during testimony. For the judge to suggest this arrest might have been supported by probable cause demands a better explanation than what was given here. If the standard is only that one cop felt something violated the law, the First Amendment is meaningless. It’s the sort of thing that tells citizens their rights only matter once they’re violated… and even then, they still may not mean much. The judge blew the call here and the local cops know it. Gamble still has a target on her back and the cops have the judicial leeway to keep arresting protesters they personally don’t like.