The Volokh Conspiracy

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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.}