NY court dismisses charge for swearing at officer
Posted at: 02/08/2013 3:27 AM
By: Associated Press | WHEC.com
New York's highest court on Thursday dismissed a disorderly conduct charge against a Rochester man who swore twice at a police officer, concluding the verbal exchange didn't threaten the public peace.
Police said the "abusive statements" by Trevis D. Baker, who also accused the officer of harassing his girlfriend, led to his 2006 arrest by the officer and later discovery of 25 bags of crack cocaine.
The Court of Appeals, ruling unanimously, concluded the initial arrest was invalid, so the cocaine must be thrown out as evidence.
"Isolated statements using coarse language to criticize the actions of a police officer, unaccompanied by provocative acts or other aggravating circumstances, will rarely afford a sufficient basis to infer the presence of 'public harm' mens rea necessary to support a disorderly conduct charge," Judge Victoria Graffeo wrote.
The court also threw out Baker's guilty plea to the related drug charge and a separate assault charge from a previous altercation with police. That plea deal was for a concurrent six-year prison sentence, which Baker, now 35, began serving almost six years ago.
According to court papers, the incident began one spring evening on a residential Rochester street where two police cars were parked, an officer in each. One, identified only as Officer Johnson, noticed Baker's girlfriend videotaping him, ran a background check on the Cadillac parked in her driveway and determined its license plate was issued for a Toyota.
Johnson stepped out and asked who owned the car, and she said her grandfather. Johnson got back in his patrol car. Baker approached and asked him, through the open passenger window, why he checked the plate, and Johnson replied he could run a plate if he wanted. Baker called the officer an expletive while backing away and said it was harassment, was asked what he said, and repeated the profanity.
"Look at federal case law or other states, it's quite clear that unless it's fighting words, challenging an officer to fight basically, it's constitutionally protected," said attorney Timothy Davis, who represented Baker. New York's court decided the case based on precedents and the statute and didn't reach his First Amendment argument, something to bring back in another case, he said.
New York Penal Law says: "A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof ... in a public place, he uses abusive or obscene language, or makes an obscene gesture."
Monroe County Assistant District Attorney Geoffrey Kaeuper said while disappointed, the district attorney's office respects the court's ruling and intends to pursue the remaining assault charge against Baker, who had some prison and parole time left from his earlier plea bargain.
Asked whether the ruling clears the way for New Yorkers to swear at police, Kaeuper said he'd prefer to let the court speak for itself. "I think it's a very fact-specific decision," he said.