Defense Digest

The United States District Court for the Western District of Pennsylvania, in the case of Brown v. City of Pittsburgh, 2007 U.S. Dist. LEXIS 6411 (W.D. Pa., Jan. 30, 2007), analyzed prior precedent on the issue of whether or not a person has a First Amendment right to challenge, criticize or shout profanities at a police officer in the context of the Pennsylvania disorderly conduct statute. In general, a person does have a First Amendment right to do so. Therefore, such speech cannot support a conviction of disorderly conduct, but only if the speech does not "produce a clear and present danger of serious substantive evil that rises far above public inconvenience, annoyance or unrest."

In Brown, the plaintiff Gerald Brown went outside of his residence in Pittsburgh to sit on his front porch during halftime of a Steelers exhibition game on August 9, 2003. The defendant police officer Faquar Holland of the City of Pittsburgh Police Department and three other police cars were in the area investigating an aggravated assault involving juveniles. When Brown came out of his house, Officer Holland had arrested a juvenile, placed her in his patrol car and was questioning the juvenile's grandmother, who lived next door to Brown and with whom Brown shared a common porch. Brown was only four feet away from Officer Holland and began shouting various profanities at Officer Holland, criticizing him and commenting on his arrest of the juvenile girl. Officer Holland then proceeded onto Brown's portion of the porch, yelling profanities back at him, but then he continued to conduct his interview of the juvenile's grandmother. After another exchange of words, Officer Holland returned to Brown's portion of the porch, handcuffed and arrested him. Upon being transported to the Allegheny County Jail, Brown claimed that he was not seatbelted, was handcuffed and was jostled around in the back of Officer Holland's patrol car, which allegedly caused an exacerbation of his back pain.

Officer Holland charged Brown with two counts of disorderly conduct - one count as a misdemeanor and the other count as a summary offense. After Officer Holland failed to appear at the initial hearing, the district justice dismissed the charges, but Officer Holland then refiled them. After an eventual hearing, Brown was found guilty of the summary offense of disorderly conduct. Brown filed an appeal to the Court of Common Pleas, which dismissed the charges, holding that Brown's comments were protected by the First Amendment. Brown then commenced an action pursuant to 42 U.S.C. § 1983 alleging inter alia that Officer Holland violated his First Amendment rights and arrested him without probable cause. He also asserted a claim against the City of Pittsburgh alleging that it failed to adequately train, supervise and discipline its police officers.

At issue before the District Court was Officer Holland's and the City's joint motion for summary judgment. Officer Holland claimed that he was entitled to qualified immunity, which shields governmental agents from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of a which a reasonable person would have known. The impact of Brown's comments on the situation was obviously disputed. According to Brown's version of the facts, it was quiet on the street until Officer Holland started yelling at him. Bystanders, consisting of neighbors, did come out of their homes, not as a result of the yelling, but because of the presence of the police cars. The bystanders were not provoked or incited by Brown's comments and did not impede Officer Holland's investigation.

In performing its qualified immunity analysis, the District Court examined the case of City of Houston v. Hill, 482 U.S. 451 (1987). In Hill, the United States Supreme Court, in overturning a conviction for disorderly conduct based on shouting at a police officer, held that "verbal criticism, challenges and profanity directed at police officers is protected by the First Amendment unless the speech is 'likely to produce a clear and present danger of serious substantive evil that rises far above public inconvenience, annoyance or unrest.'" Brown, 2007 U.S. Dist. LEXIS 6411 at *7-*8 (quoting Hill, 482 U.S. at 461) (citations omitted)). Upon examining Pennsylvania precedent, the Court took notice of the Pennsylvania disorderly conduct statute, which provides that "[a] person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (1) engages in fighting or threatening, or in violent or tumultuous behavior; (2) makes unreasonable noise; (3) uses obscene language, or makes an obscene gesture; or (4) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor." 18 Pa. C.S. § 5503. Additionally, the District Court examined two Pennsylvania appellate court cases - Commonwealth v. Hock, 556 Pa. 409, 728 A.2d 943 (1999) and Commonwealth v. Gilbert, 449 Pa. Super. 450, 674 A.2d 284 (1996).

In Hock, the Pennsylvania Supreme Court stated that "[u]nder the [Pennsylvania disorderly conduct] statute, whether a defendant's words or acts rise to the level disorderly conduct hinges upon whether they cause or unjustifiably risk a public disturbance. 'The cardinal feature of the crime of disorderly conduct is public unruliness which can or does lead to tumult and disorder.'" Accordingly, the Supreme Court in Hock properly reversed a conviction of disorderly conduct where the defendant shouted an expletive at a police officer while she was walking away from the officer and after the officer had indicated to the defendant that she would receive a citation by mail for driving with a suspended license. Similarly, the Pennsylvania Superior Court in Gilbert reversed a disorderly conduct conviction where a defendant expressed his disagreement with a police officer's stated intent to tow his neighbor's car and where the defendant's remarks did not incite any neighbors or endanger the police. The Superior Court in Gilbert, holding that a person has a protected right as a citizen to disagree with a police officer, stated "that the [Pennsylvania] disorderly conduct statute must not be used as a catchall or dragnet for the prosecution of conduct that is uncivil, annoying or irritating."

Based on the well-established and aforementioned case law and based on Brown's version of the facts, the District Court in Brown denied Officer Holland's motion for summary judgment because the court held that "a reasonable fact-finder could conclude that Brown did not interfere with the investigation or provoke a dangerous reaction by the onlookers" but that he was merely exercising his First Amendment rights. As a result thereof, the court also held that a jury could conclude that Officer Holland did not have probable cause to make the arrest. Accordingly, Officer Holland's claim of qualified immunity was denied because "the law is clear that mere verbal criticism of police is protected speech and does not constitute disorderly conduct . . .."

Citing the case of McGriff v. Vidovich, 699 A.2d 797 (Pa. Cmwlth. 1997), Officer Holland argued that, because Brown was convicted of disorderly conduct by the district justice, probable cause to make the arrest was conclusively established despite the fact that the Court of Common Pleas later dismissed the charges. The Commonwealth Court in McGriff noted that Pennsylvania adopted Section 667(1) of the Restatement (Second) of Torts, which provides that "'[t]he conviction of the accused by a magistrate or trial court, although reversed by an appellate court, conclusively establishes the existence of probable cause, unless the conviction was obtained by fraud, perjury or other corrupt means.'" The District Court in Brown disagreed, however, that Section 667(1) is applicable to a Section 1983 action, relying on the holding in the case of Montgomery v. DeSimone, 159 F.3d 120 (3d Cir. 1998). In Montgomery, the Third Circuit Court of Appeals held that Section 667(1) "was developed to establish probable cause in a malicious prosecution action against a private citizen . . . not probable cause for [an] arrest by police." In remanding the case due to factual discrepancies, the Third Circuit in Montgomery also held that "the question of probable cause in a section 1983 damage suit is one for the jury." Accordingly, because of the existence of disputed facts and the holding in Montgomery, the District Court in Brown likewise dismissed Officer Holland's argument that probable cause had been conclusively established by the district justice conviction.

As for the City of Pittsburgh, Brown attempted to establish liability against it by alleging the existence of policies, practices or customs that violated his constitutional rights - one of which was the alleged failure to properly train and supervise Officer Holland. To prove as such, Brown was required to establish that the City of Pittsburgh was deliberately indifferent to known or obvious consequences. Additionally, a "stringent standard" is to be applied to such allegations in that a plaintiff must demonstrate that the municipality consciously disregarded an obvious risk that an officer would subsequently inflict the particular constitutional injury he allegedly suffered. Again relying on the Third Circuit precedent in Montgomery, the District Court in Brown stated that the "failure to supervise can only be a basis for municipal liability if [a] plaintiff can show knowledge of a prior pattern of similar incidents and that supervision communicated a message of approval to the offending officer."

In attempting to defeat the City of Pittsburgh's motion for summary judgment, Brown argued that the City should be liable due to known marital troubles of Officer Holland, a list of comments on performance appraisals, and Officer Holland's transfer from narcotics and vice to a stationhouse in an affluent area of the City. The District Court, however, noted that there was only one similar incident of misconduct toward the public, which occurred five years prior to the subject incident. Additionally, despite the fact that there were numerous criticisms of Officer Holland's performance, the District Court concluded that there was no evidence that could support a claim that the City knew or should have known that Officer Holland posed an "obvious risk" to the constitutional rights of the general public. Lastly, it was determined that the record revealed that the City of Pittsburgh provided specific training to its police officers regarding the holding in Hock that the Pennsylvania disorderly conduct statute is not to be used to protect police officers from profane comments. Accordingly, the District Court held that the plaintiff fell "far short" of satisfying the "stringent standard" to impose liability against the City of Pittsburgh based on a "failure to train" theory.

*Christian is an associate in our Pittsburgh, Pennsylvania, office and can be reached at (412) 803-1142 or cdmarquis@mdwcg.com.