A PoliceOne.com Special Report
By Scott Buhrmaster, PoliceOne Columnist
Malachi Robinson apparently doesn't think too highly of law enforcement officers, and on Oct. 8, 2000 he decided to let his feelings be known in the middle of a busy Missoula, Mont. crosswalk.
Earlier this month, the Montana Supreme Court ruled that Robinson's conviction for disorderly conduct will stand because the comments he made to a deputy were in fact likely to result in a violent response, thus constituting "fighting words."
At the time of the 2000 encounter, Deputy David McGinnis was sitting in his marked Missoula County Sheriffs patrol unit at a red light. As he watched a stream of pedestrians pass in the crosswalk in front of him, he noticed a man -— Robinson —- glaring at him. Moments later, the man greeted him with a loud, "Fucking pig!" and kept walking.
As startled pedestrians quickly distanced themselves from Robinson, Deputy McGinnis parked his patrol car and approached him to let him know that he "had his attention" and to see if he "wanted to talk about something." Robinson, apparently not interested in further discussion, loudly replied, "Fuck off, Asshole!" and earned himself an arrest for disturbing the peace.
The State of Montana charged Robinson in Justice Court with "disorderly conduct by disturbing the peace by using threatening and profane language." Robinson responded with a motion to dismiss the charge arguing that his statements to Deputy McGinnis were protected under the First Amendment. The Justice Court denied the motion and Robinson entered into a plea agreement with the State that levied a $100 fine, half of which was suspended, and 10 days in Missoula County jail, all of which was suspended.
The plea also reserved Robinson's right to appeal the denial of his motion to dismiss in district court, which he did. Here, Robinson based his case on the premise that his comments should be interpreted as legally protected observations, not as catalysts to violence, using United States v. Poocha (9th Cir. 2001), 259 F.3d 1077 as support.
In the Poocha case several people, including Poocha, began loudly protesting as National Park Service rangers were arresting someone. One of the rangers specifically told Poocha to disperse to which the man replied, "Fuck you." Poocha was charged with disorderly conduct by violating the federal prohibition against using "fighting words" and found guilty.
Later, the Ninth Circuit Court of Appeals reversed the decision claiming that Poocha's profanity was not such that there was a "likelihood that the person addressed would make an immediate violent response." Further, the Appeals Court stated that the concept of fighting words is subject to a narrower definition when it involves police officers because "a properly trained officer may reasonably be expected to exercise a higher degree of restraint than the average citizen, and thus be less likely to respond belligerently to 'fighting words.'"
In Robinson's case, the Montana district court disagreed with the contention that the Poocha case was the controlling precedent. The Montana Supreme Court agreed and presented the 1985 Montana case of City of Whitefish v. O'Shaughnessy as a more applicable precedent. In response to Poocha, the Supreme Court wrote, "As to whether the Ninth Circuit's decision in Poocha is even persuasive, we fail to see the logic in concluding that words (such as 'fucking pig') may or may not be deemed 'fighting words' depending upon the intended recipient. If the object is a fellow citizen, they are considered fighting words. If, on the other hand, the object is a police officer, who, if well-trained to exercise restraint, will be less likely to respond belligerently, the words are somehow less provocative. Were we to adopt this 'who is likely to respond belligerently' rationale, any troglodyte could wander the streets calling young children and old men 'fucking pigs' because, due to their age or infirmity, they, like the well-trained policeman, will not be able to respond in a violent fashion."
In the O'Shaughnessy case, an officer approached the defendant and his friend at about 2 a.m. and asked them to lower the volume of their rowdy conversation. After several unheeded appeals, the officer warned O'Shaughnessy that he would have to arrest him if he continued to refuse to lower his voice. With that, the defendant climbed in the back of the officer's unit voluntarily. After getting in and out of the car several times O'Shaughnessy approached the officer as if to shake hands. When the officer refused to make contact, O'Shaughnessy called him a "Motherfucker" and said he would continue to "holler and yell when and wherever" he wanted. The man was arrested for disturbing the peace.
During O'Shaughnessy's trial, jurors were given specific insight into deciphering whether comments can be considered "fighting words." They were told that "the words and language of the defendant must have been of such nature that men of common intelligence would understand the words to be likely to cause an average person hearing such words to fight. Threatening, profane, and obscene words without a disarming smile, and generally to be considered 'fighting words.'"
In their decision this month, the Montana Supreme Court wrote, "If the statements in question had been uttered in the context of a political rally or protest, free speech concerns might well prevail. However, we fail to see how randomly goading a police officer by calling him a "fucking pig" adds to our constitutionally protected social discourse.
"It is one thing to expect peace officers to exercise more restraint than the average citizen. However, it is quite another to allow the likes of Malachi Robinson to gratuitously test that restraint without fear of being charged with disorderly conduct."
Now THOSE words are music to the ears of law enforcement!