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ACLU fights Pennsylvania police on profanity arrests

By The Associated Press

07.10.02

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PITTSBURGH — Erica Upshaw was having one of those days.

The mother of three was rushing a load of groceries to her sister's house when she was pulled over by an officer who said she had made an incomplete stop.

When told her driver's license was suspended, Upshaw used a profanity to describe her day. She ended up in jail for her choice of words.

"It was so humiliating," recalled Upshaw, 28, who said she was trying to get home to tend to a 6-year-old daughter who had just lost a tooth.

The American Civil Liberties Union says that when North Braddock police arrested Upshaw in the summer of 2000 for foul language, the officers joined a growing number of police who have crossed a line drawn by the courts.

Upshaw's case is at the center of one of two lawsuits the ACLU filed last week in federal court in Pittsburgh, accusing area police departments of violating people's right to free speech. The lawsuits seek unspecified damages.

The lawsuits are intended to warn police across the nation, said Witold Walczak, executive director of the ACLU's Pittsburgh chapter. He said officers need to realize they create tremendous stress on people and should expect emotions to spill out.

Every state has laws against foul language, but the courts, including the U.S. Supreme Court, have generally agreed that the words have to be used in a violent or sexually obscene context, said John Burkoff, associate dean and law professor at the University of Pittsburgh. Uttering something vulgar or profane is not, in itself, grounds for arrest, he said.

In one case out of Michigan, Timothy Boomer, a canoeist who let loose a stream of curses after falling out of a canoe, was found guilty three years ago of violating a law against cursing in front of women and children. He was fined $75 and ordered to perform four days of community service. In April, though, an appeals court struck down the 105-year-old law and threw out the conviction.

Jim Pasco, executive director of the National Fraternal Order of Police, disputed the notion that police are misusing the disorderly conduct laws. He said officers may feel it is necessary to arrest someone on a minor charge to prevent more serious crimes.

The ACLU said it has been receiving five or six complaints a year from western Pennsylvanians arrested for swearing. Last month, Pittsburgh police agreed to pay $275,000 to settle 32 cases brought by the ACLU, some of them involving profanity arrests.

In Upshaw's case, a judge threw out the disorderly conduct charge because her words were scatological but not sexually explicit. And a driving-without-a-license charge was dropped when it turned out that her suspension resulted from a computer glitch.

But she still ended up spending an afternoon in jail. She could have gotten up to 90 days in jail and a $300 fine on the disorderly conduct charge.

Upshaw contends she was calm and swore only once. "They were really hostile," she said. But a police report said officers warned her five times to stop cursing, and described her as "loud and belligerent."

"Our police aren't out there just to arrest people who swear," said North Braddock Police Chief Henry Wiehagen. "There had to be a little more involved than just her vocabulary."

The ACLU's second lawsuit stems from the arrest of Amy Johnson, 27, a Chatham University student, and Gregory Lagrosa, 29, a University of Pittsburgh student. Johnson swore at a passing Homestead patrol car.

Johnson claimed that the car came dangerously close to the couple in a crosswalk.

A judge dismissed the charges, again because Johnson's words were not sexually obscene.

Homestead Mayor Betty Esper is standing firmly by the town's officers. She said preventing officers from making foul-language arrests could have a harmful effect on society, particularly when it comes to teaching children manners.

"If every kid can tell officers to go to hell and if police officers go break up a fight, can the kids say, 'Go stuff yourself?' " Esper asked.

Related

Cussing canoeist's conviction thrown out, along with 105-year-old law
Michigan Court of Appeals rules 1897 statute barring use of vulgar language in front of women, children is unconstitutional.  04.02.02

Pennsylvania high court dismisses charges against woman who cussed at cop
'Offense of disorderly conduct is not intended as a catchall for every act which annoys,' writes court.  05.06.99

Watch what you say in Wisconsin
Two residents who were given disorderly conduct citations didn't know state law bars public swearing or using profane language on the telephone.  07.18.02

Idaho high court reverses cop-cusser's conviction
Justices find statement Patrick Sheldon Suiter made in frustration wasn't likely to provoke violence, therefore was protected speech.  10.29.02

Another Michigan man faces charges under 1897 anti-cussing law
Prosecutors say former assistant coach swore within earshot of students; man says he cursed behind closed doors.  04.27.00

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