Idaho man who cursed at cop loses case on appeal
By The Associated Press,
BOISE, Idaho A divided Idaho Court of Appeals has upheld the misdemeanor conviction of a Canyon County man for disturbing the peace by using an obscene four-letter word to express his exasperation after getting no help from a sheriff's deputy.
The court split over whether the statement was protected speech under the First Amendment.
"Such a personally provocative epithet, delivered in the manner and setting here, cannot be reasonably interpreted as the communication of information or opinion safeguarded by the Constitution," Judge Darrel Perry wrote in the majority opinion.
But in a rare dissent among the usually unanimous three-judge panel, Judge Karen Lansing said that while the use of the common obscenity is insulting, it was not enough to provoke someone to violence or to significantly disrupt the activity or routine of others as required for a disturbing-the-peace conviction.
Lansing also warned that legitimizing arrest if "an individual uses the 'f-word' in an agitated conversation with a police officer or with any other person" simply creates a new circumstance for officers without any other justification to arrest someone and then conduct a search of the person or the vehicle subsequent to the arrest.
The majority upheld the conviction of Patrick Sheldon Suiter, who had gone to the sheriff's office 3 1/2 years ago at the request of a friend to speak to a detective about a check-fraud case in which the friend was the victim. The detective said he could do nothing without some verification from the victim that Suiter was authorized to act on the victim's behalf.
Suiter became agitated as the conversation progressed, and when the detective asked him to calm down, Suiter raised his voice, said the obscenity and turned to leave. It was then that two other
deputies arrested him.
Two other department employees and two citizens also heard the statement.
Suiter, who represented himself during the trial, invoked the 1971 U.S. Supreme Court decision in Cohen v. California. In that Vietnam War-era case, the high court dismissed a disturbing-the-peace conviction against Paul Cohen who had the message "F--- the Draft" on the back of a jacket he wore to the courthouse. The Supreme Court dismissed the conviction on First Amendment grounds, writing "one man's vulgarity is another's lyric."
But Perry and 4th District Judge Joel Horton, who sat in for Chief Judge Alan Schwartzman, contended Suiter's case was different because he said the word out loud.
They cited a state Supreme Court decision last year that upheld the disturbing-the-peace charge against a Rathdrum woman who, while two other children were present, used the same word and another vulgarity in yelling at her 14-year-old daughter to stop talking.
But Lansing said that a vulgar and insulting harangue directed at a teen-ager should not be used to justify an arrest for a markedly milder comment made to an adult and a police officer.
"It was crude, vulgar, boorish, obnoxious, discourteous and distasteful," Lansing wrote. "It was not, however, a personal insult maligning the detective or his lineage. Rather, it was a dismissive expression of disapproval of what the detective had been saying the vulgar equivalent of 'Go jump in a lake.'"
Horton, in a separate opinion concurring with Perry, claimed that Lansing was overly concerned about how police would use obscene statements to make arrests so they can conduct warrantless
"Every trial judge in this state has seen cases where an officer has exercised his discretion to arrest for 'contempt of cop,'" Horton wrote. "The present reality is that if law enforcement officers are tempted to arrest citizens as a result of their behavior, it will almost invariably happen, regardless of this court's ruling in this case."
He still admitted some concern about the potential fallout from ruling either way in the case since court decisions can affect public conduct.
"Police-citizen contacts are, with increasing frequency, characterized by distrust and hostility," Horton wrote. "A decision which has the effect of issuing a license to citizens to direct language which is offensive and devoid of communicative content to an officer would tend to exacerbate this sad state of affairs."
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