Wednesday, August 8, 2001
Page 5
Epithet Hurled at Ranger Protected by First Amendment, Court Rules
By a MetNews Staff Writer
A tourist arrested outside the Curry Village Lodge at Yosemite National Park was improperly convicted of disorderly conduct for yelling “f—- you” in response to a ranger’s command that he leave the area of a disturbance, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
“Criticism of the police, profane or otherwise, is not a crime,” Judge Stephen Reinhardt wrote for the court. Nolan Poocha’s comment was protected by the First Amendment, Reinhardt said, rejecting the government’s contention that it constituted “fighting words” under the circumstances.
The panel did, however, uphold Poocha’s conviction on a related charge of refusing a lawful order by a government agent “authorized to maintain order and control public access and movement during…law enforcement actions.”
Rangers testified that Poocha was part of a hostile crowd that gathered outside the lodge when were attempting to arrest another man, who struggled. One ranger said he ordered the crowd to disperse, and specifically told Poocha, who was using loud and angry language, that he had to leave the area.
Poocha, the ranger said, responded by clutching his fist, sticking out his chest, and swearing at him. Another ranger confirmed the account, while two defense witnesses—one of them Poocha’s girlfriend, claimed that Poocha was never specifically told to leave and that he didn’t swear at the officer, although he did express disapproval of the way the situation was being handled.
Poocha was not arrested the night of the disturbance, but a citation was issued the next day. He was eventually tried without a jury by Chief U.S. District Judge Robert E. Coyle of the Eastern District of California, who found him guilty on both counts and sentenced him to a year of probation, including 10 days of intermittent confinement, concurrently on both counts.
Poocha should not have been convicted of disorderly conduct, which under National Park Service regulations cannot consist of mere language unless “likely to inflict injury or incite an immediate breach of the peace,” Reinhardt said.
“Poocha’s speech is not stripped of its constitutional protection simply because it is accompanied by the aggressive gestures involved — clenching his fists and sticking out his chest,” the judge said.
“We therefore conclude that Poocha’s speech did not constitute fighting words prohibited by [the regulations},” Reinhardt wrote.
“Poocha’s statement was neither intended to nor likely to incite the crowd at the scene to riot,” the judge continued. “Whether Poocha said ‘f—- you’ or ‘that’s f—-ed,’ the natural import of his speech was an expression of criticism of the police, not an incitement of the crowd to act.”
Reinhardt rejected, however, the defense contention that there was insufficient evidence to convict Poocha of disobeying a lawful order. The trial judge, Reinhardt said, could reasonably have concluded that the ranger “clearly communicated to Poocha that he was directing him to leave the area, and that Poocha intentionally defied that order by standing his ground, shouting an obscenity at the ranger, and refusing to leave until after he was subsequently threatened with arrest by another ranger and persuaded to leave by a friend or acquaintance.”
While Poocha’s response to the ranger was protected by the First Amendment, the judge added, it is still evidence that he heard and understood the ranger’s order.
Judge Marsha Berzon concurred separately, emphasizing that the defendant was charged with using “language” in a manner likely to cause a breach of the peace, and not with acting in a threatening manner, which would violate a different provision of the same regulation.
“Any such physical threat, if it in fact occurred, would not be protected by the First Amendment, I would agree,’ Berzon wrote. “But focusing on what Poocha said and the context in which he did so, I agree with Judge Reinhardt that his speech was protected under the First Amendment, as it was addressed to police officers and concerned their conduct.”
Judge A. Wallace Tashima dissented, arguing that both convictions should be affirmed.
“Defendant Poocha was not charged with or convicted for the use of foul language or calling the park ranger names, as much of the majority’s discussion infers,” the judge declared. “Poocha was convicted of using language that was likely to incite an immediate breach of the peace.”
Given that Poocha was one of eight to 10 “angry and emotional” people surrounding the rangers, the short distance between him and the ranger at the time of the confrontation, the ranger’s lack of success in trying to calm Poocha down, and the fact the defendant would have been arrested if his girlfriend hadn’t intervened, “a rational trier of fact could find that Poocha’s language and expressive conduct, at that time and place, was likely to incite an immediate breach of the peace,” the dissenting jurist wrote.
The case is United States v. Poocha, 00-10283.
Copyright 2001, Metropolitan News Company