The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Conviction for Use "of Racially Charged Language" to Police Officer
From Montmouth County (N.J.) Superior Court Judge Michael Guadagno's opinion in State v. Metcalfe, decided in Oct. 2024 but just affirmed earlier this month by the New Jersey intermediate appellate court. Neither court discussed whether the speech fits within an existing First Amendment exception, such as for "fighting words" (face-to-face personal insults that are likely to cause a fight).
Asbury Park Police Officer Ahmed H. Lawson testified that … he was on foot patrol … when he observed defendant talking with a security guard, Simon, who had just escorted defendant out of the [Capitoline Restaurant]. Police Officer Joseph Swansinger was standing next to Simon [by a crowd of people waiting to enter]. When Lawson stopped to talk with Swansinger, Simon was explaining to defendant why he could not be readmitted to the Capitoline. During this conversation, defendant turned to Lawson and said he felt sorry for him because he was compromising his integrity by listening to a white police officer (Swansinger is white; Lawson and defendant are black)[:]
{Brother I'm so sorry. I am so sorry that you have to deal with this shit. Here, here in this fucking County. I'm so sorry. Cause you know what, it's not even your fault. You literally even have to deal with his ass (pointing to Swansinger). This for you to get a fucking raise or anything like that too. It fucking makes no sense either. But you know what? I just want to let you know I apologize to you. You don't have to apologize to him. You don't have to apologize to nobody out here. It sucks though. For you to even speak up for that right because of this white motherfucker right here.}
Lawson testified that defendant had slurred speech and was "clearly intoxicated." He noticed that defendant's actions were drawing the attention of some of the people in the area because of what defendant was saying. As a result, Lawson told defendant he was being disorderly and asked him to leave. Defendant began to leave and walked across the street but came back and began to address Lawson in an "obnoxious" and "belligerent" fashion, calling him a "house nigger." {"You know what we call you back in my home? The House Nigger. Want to know why? Because whatever he does (pointing at Swansinger) it don't matter."}
Lawson again told defendant he was being disorderly and asked him to leave. Lawson testified that it was not his intention to arrest defendant, but when he refused to leave, defendant was arrested for disorderly conduct. On cross-examination, Lawson testified he was not upset when defendant called him a "house nigger." …
The relevant statute, N.J.S.A. 2C:33-2, provides
[a.] Improper behavior. A person is guilty of a petty disorderly persons offense, if with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof he
- Engages in fighting or threatening, or in violent or tumultuous behavior; or
- Creates a hazardous or physically dangerous condition by any act which serves no legitimate purpose of the actor.
[b.] Offensive language. A person is guilty of a petty disorderly persons offense if, in a public place, and with purpose to offend the sensibilities of a hearer or in reckless disregard of the probability of so doing, he addresses unreasonably loud and offensively coarse or abusive language, given the circumstances of the person present and the setting of the utterance, to any person present….
The trial court held that defendant was properly convicted under (a)(1), though its reasoning also seemed to discuss (a)(2) and (b):
[D]efendant's reckless and offensive conduct while he was clearly intoxicated rises to the level of tumultuous behavior…. [D]efendant clearly appeared intoxicated, acted in an agitated and aggressive manner, and engaged in a loud and profane-ridden tirade that lasted for minutes. Defendant's counsel argued that defendant was not yelling or waving his hands, but when defendant called Officer Swansinger a white motherfucker, he extended his arm and pointed his finger within inches of the officer, a far more aggressive action than hand-waiving…. Defendant's conduct was loud, profane and done in a threatening manner.
Additionally, this court concludes that defendant's use of racially charged language served "no legitimate purpose" and recklessly risked causing public inconvenience, public annoyance and public alarm by creating a physically dangerous condition.
It was also an intentional attempt by defendant to offend the sensibilities of both officers. The term "house nigger" is a pejorative term for a black person, used to compare someone to a house slave of a slave owner from the historic period of legal slavery in the United States. It is a term that evinces "unbridled disrespect." …
The appellate court (in an opinion by Judges Arnold Natali and Kay Walcott-Henderson) affirmed "based upon Judge Guadagno's thorough and well-reasoned decision," and added:
Judge Guadagno … noted defendant's language was offensive and distasteful and rejected his contention that defendant's language did not rise to the level of tumultuous behavior. We are thus satisfied that the record in this case establishes that defendant caused public inconvenience and annoyance by his threatening conduct and that such behavior constitutes disorderly conduct under N.J.S.A. 2C:33-2(a)(1).
Raymond S. Santiago, Melinda A. Harrigan, and Ryan Corbin represent the state.
