DBTC Law Firm

Criminal Law

Foul Language and Free Speech: Does Being Offended Justify an Arrest?

While most people treat law enforcement officers with respect, there are occasions when a citizen will voice his/her dissatisfaction with law enforcement officers. One such case occurred in Fort Smith, when a driver yelled “f*** you!” through his car window as he passed an Arkansas State Trooper who was performing a traffic stop related to a different vehicle. After the trooper noticed the reaction of two children to the profane language, he promptly tracked down the driver in his vehicle, stopped him, and arrested him for “disorderly conduct.” The driver spent several hours in jail, but was eventually released and all charges against him were dropped. Despite this apparent resolution, questions remained – was the profane language unprotected or protected speech and was his profane yelling actually a violation of Arkansas’s disorderly conduct law?

Following his release, the driver filed a civil rights lawsuit alleging violations of his First Amendment right to free speech and Fourth Amendment right against unreasonable seizure.  In its opinion in Thurairajah v. City of Fort Smith, 2019 U.S. App. LEXIS 16573, __ F.3d __ (8th Cir. 2019), the Eighth Circuit Court of Appeals recognized that “the law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions . . . for speaking out.”  The driver was able to show that (1) his speech was protected; (2) the trooper’s adverse action against him would have a chilling effect on persons wishing to continue in the same type of speech; (3) the motivation for the arrest was at least partially related to the driver’s exercise of a protected activity; and (4) there was no probable cause or arguable probable cause for the arrest.

In this case, the key elements of the analysis related to whether the profane language was considered free speech and whether there was probable cause for an arrest for disorderly conduct.  The protected nature of the speech is clear.  In Thurairajah, the Eighth Circuit Court of Appeals explains that the profane language is in fact protected speech, citing to a Vietnam War era United States Supreme Court opinion finding a jacket with a similarly profane anti-draft message was protected speech.  Furthermore, the Eighth Circuit went on to explicitly confirm that “[c]riticism of law  enforcement officers, even with profanity, is protected speech.”

Although the content of the language is thus clearly protected, the scope and volume of the language could still potentially render it a violation of Arkansas’s disorderly conduct law, as the applicable Arkansas statute penalizes “unreasonable or excessive noise.”  However, in its opinion, the Eight Circuit Court of Appeals highlights the fact that “Arkansas courts have not previously concluded that a two-word yell could violate the disorderly conduct statute’s unreasonable or excessive noise provision.”  In fact, the Court of Appeals cites to one Arkansas case in which “the Arkansas Court of Appeals held that 20 seconds of public shouting involving foul language did not establish disorderly conduct.”  Based upon the applicable facts and the established case law, the Eighth Circuit Court of Appeals held the trooper failed to meet the minimum standard of” arguable probable cause” for the driver’s arrest, acknowledging that the “conduct may have been offensive, but it was not an unreasonable or excessive noise.”  While it may be appropriate for the driver’s mother to wash his mouth out with soap, it was unlawful for the trooper to arrest him for making the profane statement.


Dancing to the Beat of Your Own Drum: Refining the Definitions of Assault and Battery

What happens when a nightclub is sued by a patron who was accidentally injured while he was being forcibly removed from the nightclub? One would expect that an insurance company would enter the picture to pay for the legal defense of the nightclub and for any judgment, if one is issued against the insured nightclub. However, that is not always the case.

The recent case of E B Mgmt. Co., LLC v. Houston Specialty Ins. Co., 2019 Ark. App. 294 (Ark. Ct. App. 2019), dealt with one such situation. In E B Management, a patron of a nightclub who wanted to play a drum accompaniment to the piano music paid the piano player $20.00 for the privilege. Once the music started and it was clear that the patron could not keep a beat on the drums, the piano player stopped the music. Incensed, the patron demanded the return of his $20.00, but the piano player refused. The nightclub’s bouncer then promptly removed the patron from the stage and threw him out the door of the establishment, causing the patron to hit his head on the concrete curb. A little more than a year later, the patron filed a negligence lawsuit against the nightclub and the bouncer.

While the nightclub’s commercial insurance policy had coverage limits of $1,000,000.00, it had a special exclusion that only allowed coverage of $100,000.00, including the costs of a legal defense, for any “assault and battery incident[s].” Claiming the negligence lawsuit was actually based upon an “assault and battery incident,” the insurance company refused to cover any legal fees, settlement amount, or judgment which commutatively exceeded $100,000.00. The nightclub, on the other hand, relied upon the allegations in the Complaint, which specifically claimed that the injury was caused by negligence rather than by an intent to commit harm or assault the patron. The determination of coverage was thus dependent upon whether the trial court found the events set forth in the Complaint to be “an assault and battery incident.”

Despite the fact that the terms “assault” and “battery” are well known legal terms and necessarily require an element of intent, the insurance policy at issue in E B Management utilized a unique definition of “assault and battery” defining it as any harmful or offensive contact, regardless of intent. In evaluating these competing definitions of an “assault and battery,” the trial court ignored the theory of liability alleged in the Complaint, which did not include any alleged intent, and instead focused on its interpretation of facts associated with the actions leading to the plaintiff’s injury. Applying the unique contract definition of “assault and battery” to those facts, the trial court concluded that the “assault and battery” limitation applied.

In spite of the dissenting judges’ strongly worded conclusion that the trial court had improperly “adjudicate[d] facts to justify its decision,” the majority of the Arkansas Court of Appeals affirmed the trial court’s ruling in favor of the insurance company and its limitation of coverage. In essence, the Arkansas Court of Appeals approved the insurance company’s contract definition of “assault and battery”in such a way as to deny full coverage and a legal defense to the nightclub.

There is a lesson to be learned from this situation. It is essential that businesses be familiar with the language of any liability insurance policy that they may have, paying particular attention to any defined terms in the policy that stray from the commonly understood meanings of the words utilized.


Not Red Handed: When A Gun is Found 20 Yards From a Suspect in an Unlocked Shed.

The phrase “caught red handed” is often used in police dramas to describe a suspect in possession of a key piece of evidence that leads to a conviction. However, in many real criminal investigations the evidence of a crime is more nuanced and may depend upon circumstantial evidence to support a claim of constructive possession. For instance, in the recent case of Bradley v. State, 2018 Ark. App. 586 (Ark. App. 2018), the Circuit Court convicted a suspect of illegal possession of a firearm, despite the fact that the suspect did not have physical possession of the firearm at the time he was arrested. However, that conviction was subsequently reversed on appeal.

In Bradley, the defendant was convicted of being a felon in possession of a firearm in violation of Ark. Code Ann. § 5-73-103(c)(1)(A). Prior to Bradley’s conviction for that offense, the Circuit Court dismissed five separate charges related to Bradley’s alleged actions on the night he was arrested. All of the charges stemmed from an alleged domestic disturbance at a house in Little Rock. On the night of the alleged incident, the police responded to a 911 call and found various individuals in the house, including an older teenager. The suspect was arrested in the backyard, approximately 20 yards from a metal shed that was located next to the backdoor. About the time of the suspect’s arrest, one of the police officers located a loaded Glock semiautomatic pistol inside the metal shed. The suspect subsequently identified the Little Rock house as his address on a Miranda form.

In Arkansas, “[a] conviction for violating section 5-73-103(a)(1) may be based on actual or constructive possession. Bradley, 2018 Ark. App. at *7. “To constructively possess contraband means knowing it is present and having control over it.” Id. “Control and knowledge can be inferred from the circumstances . . .” Id. at 7-8 (finding it necessary that the item be “found in a place that is immediately and exclusively accessible to the accused . . .”). The Arkansas Court of Appeals determined that the Circuit Court had improperly applied the standard by accepting circumstantial evidence of constructive possession that “did not foreclose, beyond speculation and conjecture, every other reasonable hypothesis of [the defendant’s] guilt.” Id. at 9. The Circuit Court had previously concluded that the prosecution had met its burden of proof, “based upon proof that the Glock firearm located in the rear of the defendant’s residence . . . was located in an area from which the defendant was seen by police officers to have been fleeing or running. It was located in close proximity in time from the time that the defendant was being pursued. It was located in an open space, in an area near where defendant was apprehended.”

Evaluating the circumstantial evidence, the Arkansas Court of Appeals noted that: (1) the police officers admitted that multiple people had access to the house and the shed where the gun was found; (2) no witness had explained the defendant’s relationship to the people in the house; (3) the prosecution did not present evidence that the defendant had a property interest in the house, nor did it provide evidence that he paid utility bills for the house; (4) the prosecution did not link the defendant to the gun through fingerprint analysis, ownership records, or testimony regarding the defendant having a history of prior gun ownership/use; (5) there was no testimony regarding who used the storage shed, the purposes of that use, and the period of time it had been used;(6) the gun was located approximately 20 yards from the defendant, outside of the house, in an open box, in an unlocked shed; and (7) “the police officers did not recover any personal items that may have linked [the defendant] to the metal shed, the gun, or the house.” Id. at 9-12. Based upon these deficiencies, the Arkansas Court of Appeals held that there had not been “substantial evidence to support the conviction . . .” and reversed the conviction.

While it is possible to use constructive possession to prove a crime has occurred, it is difficult to accomplish. Whenever possible, it is better to catch the suspect “red handed.”