Using Vulgarities When Speaking to a Police Officer Isn't a Crime

You'd think that would have been clear by now to prosecutors and judges.

|The Volokh Conspiracy |

From Commonwealth v. Mueller, decided Wednesday by a Pennsylvania Superior Court appellate panel:

On June 8, 2018, police conducted a traffic stop in Brookhaven Borough. During the course of the stop, Appellant, who was a bystander and not involved with the traffic stop, approached the scene. Appellant stood over the vehicle's occupants, and Officer Hughes asked her to step back. Appellant refused to comply. Officer Hughes asked Appellant to step away from the immediate area, and he told her that she could observe from across the street. Officer Barth arrived, spoke with Appellant, and asked her to move.

Appellant began to videotape the scene with her cell phone and refused to move. Officer Barth threatened to arrest Appellant if she did not move, and Appellant moved into the intersection and obstructed traffic. Officer Barth asked Appellant to move again.

Appellant said: "This is fucking ridiculous." Appellant subsequently walked away and went to work. The police issued a citation, charging Appellant with disorderly conduct at Section 5503(a)(3) (uses obscene language or makes obscene gesture) [for which Appellant was convicted and (a)(4) (creates hazardous or physically offensive condition by any act which serves no legitimate purpose) [for which she was acquitted]

A person is guilty of disorderly conduct under Section 5503(a)(3) if, "with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, [she]…uses obscene language, or makes an obscene gesture." Where a person uses profane language or other "angry words" that are not used to describe an act of sex or to appeal to anyone's prurient interest, this Court has found insufficient evidence to sustain a conviction under Section 5503(a)(3). See, e.g., Pennix, supra (reversing conviction under subsection (a)(3) where appellant became agitated during search of her book bag in courthouse and screamed: "Fuck you I ain't got time for this," "Fuck you police" and "I don't got time for you fucking police"; while appellant's words were disrespectful, insulting and offensive, they were not "obscene" within meaning of Section 5503(a)(3)); Commonwealth v. McCoy, 69 A.3d 658 (Pa.Super. 2013), appeal denied, 623 Pa. 761, 83 A.3d 414 (2014) (reversing conviction under subsection (a)(3) where appellant shouted "fuck the police" multiple times during funeral procession for police officer; record showed no evidence that appellant's chant was intended to appeal to anyone's prurient interest or to describe sexual conduct in patently offensive way).

Instantly, the record shows Appellant uttered "this is fucking ridiculous," after police had repeatedly asked her to back away from the scene of a traffic stop. Nothing in the record indicates that Appellant intended to describe an act of sex or appeal to anyone's prurient interest.

The Commonwealth agrees the evidence was insufficient to sustain the conviction under Section 5503(a)(3). Accordingly, we reverse Appellant's conviction and vacate the judgment of sentence. {Due to our disposition, we do not have to consider Appellant's challenge under the First Amendment.}

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  1. Glad even the government conceded on appeal that the evidence was insufficient. Disappointed that the prosecutors at trial level (and the Judge presiding over the case) did not. Any case that involves a complete concession like that should never have resulted in a conviction in the first place.

  2. “Using Vulgarities When Speaking to a Police Officer Isn’t a Crime

    Most police videos involve the Police calling the suspect a F’ing MF’er every 5th word.

  3. A great place for information on police-related censorship involving ostensible vulgarity is a blog that engages in police-related censorship involving ostensible vulgarity.

    This blog, for example, censors the term “c*p succ*r.”

    (Artie Ray was unavailable for comment.)

    Carry on, conservative champions of free expression.

  4. “Nothing in the record indicates that Appellant intended to describe an act of sex or appeal to anyone’s prurient interest.”

    I’m having a difficult time thinking of what someone could yell in the street which arouses prurient interest.

    Perhaps I have a lack of imagination?

    Maybe if I were hotter…

    1. Perhaps some Mardi Gras celebration imagery would help you out.I’m pretty sure Google could help you find some.

      1. Thank you very much for your kind assistance.

  5. Looking at the cases cited by the decision, the test for whether the evidence suffices to establish the language was “obscene” is, unsurprisingly, based on the Miller test. Thus, while the case was resolved on insufficient evidence grounds, the analysis would seem to be exactly the same as to the First Amendment challenge as it does not appear from the text that the appellant made a facial challenge.

    In other words, the conviction did violate the First Amendment because the statute has been interpreted to only reach the types of obscene types that the Supreme Court says is unprotected speech. This isn’t a case where the evidence was insufficient for some reason unrelated to the content of the speech itself (e.g. a finding that the Commonwealth failed to establish the defendant actually said “fuck the police” as opposed to, “frickin’ police” or some such).

  6. I’ll agree with Brett B. on this one – sometimes the process is the punishment.

    1. And hence the need to deal with the consequences of that…

  7. Small-town Pennsylvania cops can be as bad or worse than the stereotypical cracker sheriff when it comes to disregarding the Constitution. Before he was done the chief in this case, https://www.lehighvalleylive.com/nazareth/2014/06/three_charged_in_nazareth_stic.html Thomas Trachta, wound up costing the Borough of Nazareth (pop. about 6000) around a million dollars in settlements, attorneys’ fees, buying him out, and so forth. Note the chief’s justification for the charges against one of the three defendants:
    The chief said once Peters was in custody he remained obstinate.
    “He was uncooperative,” Trachta said. “He refused to speak with us.”
    Miranda, anyone? (Trachta could not claim ignorance of the law, as his prior policing experience was with the NYPD, from which he’d retired before applying for and getting this chief’s job.)
    The Via Dolorosa is well over 20 articles long….

    1. Trachta could not claim ignorance of the law, as his prior policing experience was with the NYPD

      I see you’re unfamiliar with the NYPD.

  8. I’ve always felt that “Disorderly Conduct” and “Disturbing the Peace” are unconstitutionally vague in the first place….

    1. Virginia’s Disorderly Conduct statute is essentially a fighting words statute. That being said, it’s routinely charged in situations where a person is just loud and obnoxious. I don’t think the statute is vague on its face, but I wonder if there’s some kind of argument that it is vague in its application.

  9. There’s a troubling elitism at work here. Prof. Volokh, state employee, obviously doesn’t permit people to say “fuck” in his classroom (not sure if you can say it on his blog), and most of the commenters would be on board with that. To say that there is right to speak that way on the street is part of the system of private opulence, public squalor that our ruling class has built over the past half century, and which arouses such resentment among the people who don’t get to attend the University of California, just to pay taxes to support is. (For the record, I went to Boalt, so I’m not motivated by resentment.)

  10. You’d think that would have been clear by now to prosecutors and judges.

    It is.
    And, as suggested earlier in the comments, they know the process can be the punishment.

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