Police, rude citizen criticism, and the First Amendment

|The Volokh Conspiracy |

From Zorzi v. Town of Norwood (Mass. Civ. Serv. Comm'n), an interesting example of how one controversy related to the police and citizen speech played out; the decision was handed down March 17 but just posted several days ago on Westlaw:

1. Paul Zorzi, a Norwood police officer, stopped a driver for running a red light. According to Zorzi, "All the parking spaces along Washington Street were occupied by parked vehicles so the Motorist had to stop his vehicle in the travel lane and Officer Zorzi had to pull up directly in the roadway behind him." Zorzi "recognized the Motorist as a former college classmate," and as they talked, another car drove by. "Zorzi and the Motorist saw the female passenger leaning out the window and heard her shout at Officer Zorzi that he was blocking the road and calling him a 'prick.'"

2. "According to Officer Zorzi, the encounter between the female passenger and Officer Zorzi was noticed by 'numerous' patrons who were standing outside Limey's Pub. Officer Zorzi heard one patron say 'whoa.'" So Zorzi followed the car, intending (according to his own testimony) to arrest the woman.

Zorzi did indeed arrest the woman "for disorderly conduct and disturbing the peace." Zorzi's theory was that the passenger "[d]isturbed the peace by shouting at me from a vehicle which caused the patrons to stop what they were doing and stare at her. She was disorderly because her behavior served no legitimate purpose." The Clerk Magistrate of the Dedham District Court eventually threw out the disorderly conduct charges, on the grounds that there was no probable cause for them. But "[t]he Clerk-Magistrate found probable cause did exist to charge the female passenger for disturbing the peace but that charge also would be dismissed upon payment of $100 court costs. The female passenger paid the $100 and the complaint for disturbing the peace was dismissed."

3. To her credit, the passenger complained; the police department investigated, and concluded that Zorzi had behaved improperly. A department report concluded that "Officer Zorzi lacked probable cause for both the charge of Disorderly Person or Disturbing the Peace, and the arrest lacked merit. … I believe that Officer Zorzi was embarrassed in front of an old college friend, and felt shown up by whatever [the female passenger] said. I think he reacted poorly to escalate rather than de-escalate an already bad situation, and the result was a bad arrest that was poorly thought out." The report also noted that Zorzi had other misconduct on his record:

In an incident occurring in August 2013, you were found to have used excessive force and been verbally abusive toward a prisoner while fingerprinting and moving her to a holding cell; you ultimately agreed to accept a one-day suspension for that incident. While no excessive force or verbal abuse is alleged in this incident described above, I am concerned that you once again failed to control your temper, resulting in an inappropriate and unprofessional encounter with a member of the public.

Because of this, Zorzi was given a four-day suspension, though Norwood Town Manager John Carroll reduced it on appeal to two days, "in the 'hope that you can quickly put this behind you and move forward serving the best interests of the citizens of Norwood.'" The Chief of Police "sent [the passenger] a written apology and remitted the $140 she had paid for court costs to have her criminal case dismissed."

4. Zorzi, however, continued to appeal, this time to the Massachusetts Civil Service Commission; but the Commission held against him:

"… Police officers must comport themselves in accordance with the laws that they are sworn to enforce and behave in a manner that brings honor and respect for rather than public distrust of law enforcement personnel. They are required to do more than refrain from indictable conduct. Police officers are not drafted into public service; rather they compete for their positions. In accepting employment by the public, they implicitly agree that they will not engage in conduct which calls into question their ability and fitness to perform their official responsibilities." …

First, the evidence fully supports Chief Brooks's conclusion that Officer Zorzi's decision to arrest the passenger on charges of disturbing the peace and disorderly conduct was a violation of his duty to know the law and to enforce it properly. Officer Zorzi, by training and experience, knew that the First Amendment protects a citizen's right of free speech and that merely uttering a vulgar complaint directed at a police officer cannot be penalized by criminal sanctions. The passenger's complaint clearly meant to express displeasure with how Officer Zorzi had placed his cruiser behind the Motorist in the travel lane of a main thoroughfare and requiring the vehicle in which she was sitting to veer around them, was clearly protected speech. It was not accompanied by any conduct involving physical force or violence, or "fighting words" that threatened such violence against any specific person that must be present to justify an arrest, as Officer Zorzi knew or should have known….

The distinction must be drawn between the issue presented to the Commission as to "just cause" for discipline and the decision of the Clerk-Magistrate of Dedham District Court in deciding whether "probable cause" existed to issue a criminal complaint. Neither the Clerk Magistrate's dismissal of the charge of disorderly conduct, nor the decision to issue a complaint on the … charge of disturbing the peace subject to dismissal on payment of court costs, are necessarily dispositive to the question of civil service law before the Commission. The Commission is not a court of criminal jurisdiction. Whether or not the discipline imposed on Officer Zorzi was justified under civil service law turns on whether there was "just cause" for Chief Brooks to conclude that the arrest was improper, not whether or not the evidence supports the conclusion that a crime was committed.

Norwood presented compelling evidence that Chief Brooks's conclusion that the arrest should not have been made was supported by sound judgment and the Commission is not warranted to substitute its own judgment on that subject….

Second, Norwood proved by a preponderance of the evidence that Officer Zorzi's decision to arrest the female passenger was motivated not by a desire to protect the public or preserve the peace, but by anger due to her insulting him. By his own repeated admissions, Officer Zorzi acknowledged that the passenger's vulgarity bothered him personally and he regretted that he let it get to him. This behavior, which clearly weighed in Chief Brooks assessment, was a direct violation of the NPD code of ethics. Chief Brooks was fully warranted to conclude that this violation clouded the judgment of Officer Zorzi and caused him to act on his personal feelings when any reasonable officer should know better.