An Occupy D.C. protester who claims he was unconstitutionally arrested for using profanity can proceed with his claims, a Washington federal judge ruled.
U.S. District Judge Ketanji Brown Jackson yesterday denied the government’s bid to dismiss claims against three U.S. Park Police officers. Based on facts alleged in the complaint, the judge said no officer would have reasonably found probable cause to arrest the protester, Anthony Michael Patterson, for disorderly conduct.
Jackson highlighted the First Amendment's protection of profanity. She said there was no evidence in Patterson's complaint that his speech risked provoking violence—one of the standards spelled out in the D.C. Code for disorderly conduct arrests.
Patterson was part of the Occupy D.C. protest movement in McPherson Square in 2012. According to court filings, he was in the square when he spotted three teenagers entering the park carrying pro-Tea Party movement signs.
Patterson claimed he then said, to no one in particular, "Ah, this fucking bullshit." Although the teens didn't respond to Patterson's comment, he was approached by several U.S. Park Police officers. He claimed a sergeant told him he couldn't use profanity, to which he replied with more curse words. After a brief back and forth, the officers arrested Patterson for disorderly conduct. One month later, the government dropped the case.
One of the officers filed an affidavit claiming Patterson initially yelled, "Fuck white people," when the teens entered the park, an allegation Patterson denied. The police argued they had probable cause to arrest Patterson for causing a disturbance.
After Patterson filed his lawsuit, the individual officers moved to dismiss the claims against them. Patterson also sued the United States, but yesterday's order didn't address that part of his complaint.
At this stage of the case, the judge found she couldn’t consider the affidavit filed by the U.S. Park Police officer detailing his version of events. Based on the allegations in Patterson's complaint alone, Jackson denied the individual officers' motion to dismiss.
The officers argued they were entitled to immunity because the arrest was lawful. But the judge found the version of events Patterson claimed, if true, showed there wasn't probable cause for the arrest.
A person can't be arrested solely for offensive speech, the judge said. Instead, D.C. law—as is the case in most jurisdictions nationwide—requires that for speech to be illegal, it has to carry a "substantial" risk of provoking violence.
The D.C. Code's disorderly conduct statute also explicitly carved out an exception for speech directed at on-duty police officers, the judge noted. The idea behind that exception, she wrote, was to prevent retaliatory "contempt of cop" arrests.
Based on the facts Patterson alleged, the judge found no "reasonable" officer could have thought his profane language rose to the level of disorderly conduct.
"The complaint alleges that the Tea Party supporters did not react to Patterson’s statements at all, and certainly not in any way that would cause a reasonable officer to conclude that there was any real threat of a violent reaction," she wrote. Patterson's subsequent cursing was directed only at the officers, meaning it couldn’t be the basis for probable cause under the D.C. Code's disorderly conduct law.
Patterson was represented by local solo practitioner Jeffrey Light, who praised the ruling. "The law is pretty clearly established that police officers cannot arrest people for using profanity in a way that’s not going to encourage or incite violence, particularly when it's part of a political protest," he said.
A spokeswoman for the U.S. Park Police declined to comment.