Judge orders Alabama driver to apologize or face jail for telling officer, 'Get your ass out of the way'

An Alabama man who told a police officer, “Get your ass out of the way” after he was ticketed during a traffic stop last year says he was ordered by a judge to either apologize to the officer for having cursed at him or face up to 30 days in jail.

But Reginald Burks says he is prepared to sacrifice his freedom because he believes his First and Eighth Amendment rights have been violated. He contends that his freedom of speech has been imposed upon and that he is facing a cruel and unusual punishment. While Alabama law prohibits using “abusive or obscene language” in public, Burks has not been charged with disorderly conduct and he does not believe the word “ass” is barred under the law.

“It’s not a curse word,” Burks, 39, said in an interview Monday. “It’s in the Bible.”

On Dec. 13 at approximately 7:38 a.m., Burks was stopped by a police officer in the small town of Ozark in southeast Alabama while he was taking his son and daughter to school.

Burks, who lives in Skipperville about 10 miles from Ozark, said he had gotten out of work at 4 a.m., slept for about two hours and woke up to get his kids, who were 14 and 8 at the time, ready for school.

Burks said the officer who pulled him over told him that he had been driving above the 25 mph speed limit, without being specific. Burks didn’t believe that to be true, so he said he asked the officer how fast he had been traveling. He said the officer told him that his radar gun was broken so he used the cruise control on his vehicle to estimate Burks’ speed. Burks said he told the officer that he didn’t find that a credible approach and to just write him a ticket. After writing the ticket, the officer stood in front of Burks’ car, he said.

“He was standing there and wouldn’t move,” Burks said. “I had asked him politely at least twice.”

“I said, ‘Sir, step back, get out the way,’” Burks said. “He said, ‘You can go. Go around.’”

Burks said he responded: “Get your ass out of the way so I can take my kids to school. That’s why y’all underpaid because y’all act dumb.”

Burks drove off and apologized to his daughter for the exchange.

The Ozark Police Department said Burks case was no longer a law enforcement matter because the fine had been paid, but did not answer additional questions about the incident.

Burks appeared in court last month prepared to plead guilty, pay the fine and put the ordeal behind him. But after he paid the fine, which totaled $211.12, including a $20 fine, as well as service and court fees, Ozark Municipal Court Judge Nicholas Bull told him that he must also write an apology to the officer for allegedly having cursed at him, according to a copy of the order shared with NBC News.

Burks declined. If he does not submit the letter at his next court appearance June 4, he will have to serve up to 30 days in jail, he and his attorney said.

“My client is being punished for a protected speech that has got nothing to do with the traffic situation, which to me is just good ol’ boy Alabama,” David Harrison, the attorney, said Monday. “And what I mean by that is that this system is not equal for African Americans and white people.”

“This man is being convicted for something they couldn’t charge him with and win at trial,” Harrison continued. “The crime here is not apologizing and that’s my issue. It’s not constitutionally sound. It’s probably the most unsound decision that I’ve seen in 33 years of practicing law.”

The police officer, the judge and Harrison are white.

Bull, the judge, did not immediately return requests for comment.

Jenny Carroll, a professor at the University of Alabama School of Law, said she agrees with Burks that the word ass is not an obscenity, at least not as defined by the Federal Communications Commission.

Carroll said judges have discretion in sentencing and can order a condition as part of a sentence, that can include things like requiring a defendant to apologize. And it is not uncommon for a judge to punish a defendant for an absence of remorse or not being apologetic.

But, she said, the judge’s order raises the question of whether the punishment fits the crime.

“The charged offense was the speeding, not anything to do with the profanity,” Carroll said. “So not only is the judge punishing a crime for which the individual is not charged, but beyond that, I think you would be hard-pressed to find a person who would say 30 days seems like an appropriate sentence in jail for somebody who uttered the word ass in frustration. Which is, I think, if you look at the facts of this case, is what happened.”

And what distinguishes this case from others is not the ordering of the apology, she said, but the “disproportionate punishment.” It’s the consequences of failing to be remorseful that the judge is imposing.

“And that I think, makes it really unusual,” she said. “And I think raises some questions about proportionality.”

Burks said he is not only fighting the decision because he and his attorney believe it to be constitutionally unsound but because he fears it would set a bad precedent and result in other drivers, particularly those of color, being wrongfully punished.

“I think I deserve an apology and my kids deserve an apology before he does,” Burks said. “Because they got a tardy in school.”

This article was originally published on NBCNews.com