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Man sues Jackson police officer over his right to say "f--- you"

Posted: 2:28 PM, Aug 18, 2017
Updated: 2017-08-18 14:28:41-04

What started as an investigation into dog poop has turned into a federal lawsuit over the infamous "f word." Tracy Smith of Jackson was arrested in August of 2015. Almost two years to the day later, Smith is suing Jackson police officer Thomas Tinklepaugh, claiming his civil rights were violated by an illegal stop, search and arrest as well as excessive force.

According to the lawsuit, Officer Tinklepaugh was called to Rockwell Street in Jackson on August 19, 2015 by a neighbor who complained that Smith was letting his dog defecate in an empty lot. She directed the officer to Smith's home on Williams Street. Tinklepaugh first talked with Smith's wife, Michelle Barlond-Smith. Tracy Smith admits he was profane, repeatedly saying "f--- you" to the officer while his wife asked him to "Be nice." Tinklepaugh asked him to stop swearing in front of children and threatened to charge him with being disorderly. Smith responded by saying "f--- you" three more times at which point he was arrested. Smith claims he was slammed onto the hood of the police SUV and then tackled to the ground. He says he required emergency treatment for his injuries at Allegiance Hospital.

Smith was charged with Assaulting-Resisting-Obstructing an Officer. He claims that was changed from a disorderly charge once Tinklepaugh realized the Michigan Court of Appeals had thrown out the state's obscenity law in 2004. The 12th District Court found there was no probable cause for an arrest and refused to bind Smith over for trial on the felony charge. The 4th Circuit Court and the Court of Appeals later shot down the prosecutor's attempt to establish probable cause by arguing that Smith interfered in the investigation into the dog poop by interrupting Officer Tinklepaugh's conversation with his wife. Those courts also rejected the prosecutor's argument that probable cause could have been based on Smith's words being loud enough to violate Jackson's noise ordinance.

Smith's lawsuit makes the following claims:
- that his 4th Amendment rights were violated by an illegal stop, illegal search, excessive force and an illegal arrest

- that his 1st Amendment rights were violated when he was arrested for saying "f--- you." His lawyer writes in the complaint, "While the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric; and, our law has clearly established this word as constitutionally protected speech."

- that he was a victim of assault and battery by Officer Tinklepaugh

- that he was falsely imprisoned

Smith's lawyer, Robert Gaecke, turned down wilx.com's interview request. Jackson County Prosecutor Jerry Jarzynka was out of the office at not available for comment at this time. An email seeking comment has been sent to Jackson Director of Police and Fire Services Elmer Hitt. This story will be updated if and when any of them respond. Stay with News 10 and wilx.com for updates on this lawsuit.