It should not be a crime to spit on the police

Punishing people to flatter cops is weird and cruel

In Pennsylvania, there is currently no law specifically penalizing the act of spitting on a police officer.

When House Rep. Louis Schmitt (R-Blair) introduced HB2016 last session to criminalize the act of spitting on a law enforcement officer, he said it was because the police in his constituency had informed him of a certain “loophole” in the criminal code that allowed people to do this “degrading” thing with, it seemed, no consequences.

This is a situation where somebody intentionally and knowingly spits in the face of the law enforcement officers, and that, Mr. Speaker, should be a crime. It is not a crime as of this point. There is a loophole in Pennsylvania law that this is not a crime. This is not a felony. It is not a misdemeanor. It is at most a summary offense.

—Rep. Louis Schmitt

Pennsylvania’s criminal code does specify an offense where someone “causes an officer to come into contact” with any bodily fluid, but only when inside of, or in transport to, a correctional facility. If a person on the street happens to hock one at an officer, there’s technically no penalty against it. Hence the so-called loophole.

Mr. Schmitt’s legislation—which did not pass last session, but has been introduced again this session (as HB103)—would correct for this discrepancy by creating a crime in which spitting on a cop is the primary or sole offense: a third-degree felony if the actor has a communicable disease, otherwise a first-degree misdemeanor.

The problem, however, is not that the law currently falls short of “just” or “appropriate” retribution, or that it fails to protect the police in some way. It’s just that police officers feel that they are disrespected by a particular sector of the public and they want to be indemnified for it. They want the legislature to stand behind the thin blue line with them and condemn dissent in one of its most direct, univocal, and indignifying forms. Which is not a good reason to change the law.

A law against spitting on the police would serve no practical purpose.

Mr. Schmitt claims that spitting is “at most a summary offense,” but this is plainly untrue. In most cases, those who do it are charged with not just one but several misdemeanors, typically a combination of disorderly conduct, reckless endangerment, resisting arrest, simple assault, and harassment. Moreover, since police officers are enumerated under Pennsylvania’s aggravated assault statute, any attempt to cause them bodily harm (say, by spitting in their face) could constitute a first-degree felony offense.

I do believe that at times our august body spends a little bit too much time in creating new statutes of law. The Crimes Code, in particular, is one that I find to be infuriating in relation to the size of it, meaning that in the 47 years since I have been on this planet, the Crimes Code has astronomically increased.

—Rep. Dan Miller

Contrary to Mr. Schmitt’s “loophole” claim—contrary to the very premise of his legislation, really—it would appear that the law not only finds a way to punish acts of spitting, but punishes them in particular to protect police officers. It is almost as if the loophole doesn’t exist, and doesn’t have to exist to do what it is intended to do: justify a frivolous gimme to police power.

The COVID-19 pandemic does not make this law any more necessary.

It’s worth considering in this discussion that HB2016 was first introduced in October of 2019, but didn’t really gain traction with the House until May of 2020, about two months into the COVID-19 pandemic. By that point, a general fear of all bodily fluids plus a few well publicized stories of angry, spitting customers allowed the bill to essentially rebrand as pandemic mitigation. Now more than ever, as they like to say, it was incumbent on the legislature to equip the law against the public’s growing saliva problem.

Except the law hasn’t really failed to respond to COVID. There is, again, a litany of misdemeanors available to cover any and all acts of spitting, and where the pandemic has appeared to present new challenges, cops and prosecutors can well rely on existing law. In one case from last March, for instance, a woman who intentionally coughed on produce at the supermarket was charged with two counts of felony terroristic threats and one county of felony bomb threat. If anything, the virus has expanded the punitive limit of the law, not challenged it.

The applicability of the law doesn’t really matter anyway, since the legislature does not want HB2016 to apply to everyone, deadly virus or none. If that had been the legislature’s intent, then it would have expanded the legislation to penalize spitting in all cases, regardless of job status or circumstance. But the House specifically voted against an amendment by Rep. Dan Miller (D-Allegheny) that would have done just that.

[Y]ou know what, you dump a bucket of urine on somebody, it is a problem in the State of Pennsylvania no matter who you are, whether you have a job or whether you do not have a job.

—Rep. Dan Miller

Mr. Schmitt, asking for a “no” vote on that amendment, argued to his colleagues in the House that the narrow scope of the law was necessary because of the “unique degrading effect that these offenses have on law enforcement.” He did not, however, bother to establish why these acts should be any more offensive to one group of people than another. Nor, notably, has he ever attempted to show that the police are any more susceptible to body fluid attacks than the general population.

The basis for this law is not protection, not pandemic, not even really law and order: it is, in Mr. Schmitt’s own words, simply the fact that law enforcement wants it. That’s that.

Police will manipulate this law to their advantage.

In another failed amendment to HB2016, Mr. Miller sought an exception for saliva expelled incidentally in the exercise of constitutionally protected speech, citing a concern over the potential for police to use the law to suppress legitimate, free expression.

And what I am concerned about, in particular, is the ability for someone to be perhaps outside […] and having a law enforcement officer there and in the course of conduct of speech having any saliva from that normal course of conversation be in some way exuded in a way that would contact the officer and then trigger the felony charge perhaps or at least a charge.

—Rep. Dan Miller

Mr. Miller’s point is that by criminalizing the byproduct of speech, the legislature may inadvertently criminalize speech itself, chilling the right of Pennsylvanians to organize and protest without fear. That is, police forces could use the anti-spitting statute as a pretext for the breaking up of crowds: getting up in the faces of protesters, yelling, hoping to catch a little spit—or, a common police tactic, simply lying about it, saying that they have spat—and then making mass arrests.

One thing Mr. Miller fails to understand, though, is that chilling is the purpose: not to preempt dissent, per se, but to brand it. To make a permanent underclass out of dissidents, not only in times of protest but anytime at all. HB2016 exists precisely to be an easy charge, based on evidence that is easy to exaggerate or even make up altogether. (Who’s to say that wasn’t spit?) And what it serves to do, really, is grant the police maximum feasible control over the determination of the criminal class. That is, under an anti-spitting statute everyone is almost a criminal; everyone with spit in their mouth has the potential to embody evidence of a crime. Literally, crime is on the tip of all our tongues. All that remains is for the cops to decide it’s there.