The city is looking to eliminate the crime of abusing a police officer due to First Amendment issues, a couple years after the law was challenged.

City Council will vote Tuesday night on eliminating the ordinance while amending the city’s menacing ordinance to include making it a first degree misdemeanor if the crime is committed against police, corrections or traffic control officers.

Middletown Division of Police Chief David VanArsdale said while the abusing a police officer law “has been on the books for quite some time,” he and Law Director Les Landen have said “it also has some parts that raise some First Amendment issues.”

“By simply amending our menacing ordinance, we’ll be able to accomplish everything we need to accomplish that the abusing a police officer accomplishes without the First Amendment issues,” VanArsdale said. “Just because a guy says something bad to you, or mean to you, doesn’t necessarily mean it’s against the law.”

Landen said there was an incident a couple years ago following a traffic stop where a man was charged with abusing a police officer. The case was dismissed in municipal court, “and correctly so,” he said.

The charge, Landen said, is putting Middletown police officers “in an awful position.”

“Calling an officer a name is going to be First Amendment protected. We’re showing our officers an ordinance and say they can use it, but they can’t really use it,” he said of the old ordinance. “That’s just not real in the modern world. It’s time for it to find its way out of the system.”

The menacing ordinance — which defines menacing as knowingly causing another to believe that the offender will cause physical harm to another person or property — recently was amended to include an employee of a children’s service agency, or similar agency would rise from a fourth degree misdemeanor to a first degree misdemeanor. Law enforcement officers would be added to that section of the ordinance.

“It’s not everything, just some things,” said Landen. “If you actually threaten them, it becomes menacing.”

The other elements of the abusing a police officer charge are addressed in other charges “to accomplish what we need to accomplish” so the spirit of the ordinance isn’t eliminated, VanArsdale said.

“Abusing covers anyone knowingly and willfully challenging to fight, assault, strike, which is all covered other ordinances — assault on a police officer, menacing, disorderly conduct,” he said.