VICTORY! The State just dismissed all charges against NHCLU client Richard Kearns, who was unlawfully arrested simply for swearing at a parking enforcement officer.
In January 2014, Mr. Kearns—a 72-year-old National Guard veteran with no criminal history—was charged with harassment and disorderly conduct by the Littleton Police Department after allegedly calling a parking enforcement officer an expletive while he was in a public space. Mr. Kearns has long been active in politics and holds strong opinions about how to maintain a vibrant downtown, which includes, among other things, encouraging business by providing free downtown parking. Mr. Kearns’ alleged speech directed at the parking enforcement officer was expressing these views peacefully.
Mr. Kearns’ arrest and prosecution violated his clearly-established constitutional rights. The law is clear that swearing (cursing or using profanity) in public or to enforcement officers is protected speech under the First Amendment. Therefore, disorderly conduct and harassment citations and arrests for profanity (usually termed “obscenity” in the citations) are unconstitutional. Countless courts have repeatedly held for the last two decades that police cannot arrest people for either using profanity in public or directing it at enforcement officers or civilians.
The rationale for these decisions is straightforward. As the U.S. Supreme Court has held, “[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principle characteristics by which we distinguish a free nation from a police state.” Houston v. Hill, 482 U.S. 451, 462-63 (1987). Thus, criticism of enforcement officers, profane or otherwise, is not (and cannot under the First Amendment to the Constitution be) a crime.
On June 11, 2014, the NHCLU wrote to the Littleton Police Department demanding that all charges be dismissed. Our letter is here. In response to the NHCLU’s letter, the State dismissed all charges on June 16, 2014 — one day before the scheduled trial.