Pizza man’s lawsuit over profanity arrest survives

Tuesday, February 28, 2012

A Pennsylvania pizza deliveryman’s civil rights suit against the police officer who arrested him for profane language has survived a motion for summary judgment in federal court. A federal district judge ruled that there were disputed factual issues that would need to be decided by a jury.

The controversy began in December 2009, when Matthew Walters double-parked outside the pizzeria where he worked in Mahanoy City. Walters looked out and saw police officer Christopher Zubris writing him a ticket. According to Walters, he tried to reason his way out of the ticket, explaining that he parked the way he did because he had previously gotten stuck in the snow. He also admitted to calling Zubris a “fucking asshole.”

According to Zubris’ version of events, Walters parked illegally for 30 minutes. When Walters saw the ticket, Zubris claims that Walters screamed and yelled in the presence of others and said: “Fuck you. You’re a fucking asshole.” Zubris said he arrested him not for the profane words, but because of his violent manner and because he had created a hazard by double-parking.

What was uncontested was the result of Walters’ profane language. Zubris arrested Walters for disorderly conduct and took him to the police station, where he remained for 30 minutes. The citation said Walters was arrested for the use of an “obscenity.” Later, a Pennsylvania magisterial district judge found Walters not guilty of disorderly conduct. Zubris did not attend that hearing.

After the dismissal of the criminal charge, Walters sued Zubris in federal court, contending that the Zubris violated his First Amendment and Fourth Amendment rights. (Any arrest is a “seizure” under the Fourth Amendment.) Walters broke his First Amendment action into two claims in his complaint – that Zubris arrested him for constitutionally protected speech in violation of the First Amendment, and in retaliation for his free-speech rights.

On Feb. 22, U.S. District Judge for the Middle District of Pennsylvania James M. Munley rejected Zubris’ motion for summary judgment in his opinion in Walters v. Zubris.

Munley quoted the Pennsylvania disorderly conduct statute, which provides:

“A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof; he:
(1)    Engages in fighting or threatening, or in violent or tumultuous behavior;
(2)    Makes unreasonable noise;
(3)    Uses obscene language, or makes an obscene gesture; or
(4)    Creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.”

Walters alleged that Zubris arrested him on the basis of provision (3) – for obscene language. Zubris admitted that Walters did not violate this part of the statute, as courts have held that language similar to Walters did not rise to the level of disorderly conduct. However, Zubris contended that Walters’ conduct violated provisions (1), (2) and (4) and that he could have arrested him on the basis of any of those parts of the statute.

Munley determined that a jury would need to decide the case in part because of the discrepancies in the parties’ version of the events.

“After a careful review, we find that an issue of fact exists as to whether the facts of this case would support a finding of probable cause for a violation of the disorderly conduct statute, and summary judgment is inappropriate,” he wrote. “These different versions of the facts, each supported by the evidence presented by the parties, render summary judgment inappropriate. A jury will have to examine the evidence and determine who is telling the truth and whether probable cause existed to arrest the plaintiff on the night in question.”

Munley also denied summary judgment to Zubris on a similar First Amendment retaliation claim, finding that “a jury may find that defendant did arrest plaintiff, without probable cause, for his speech.”

Zubris had also asked Munley to dismiss the action owing to qualified immunity – the doctrine that government officials are free from liability if they do not violate clearly established constitutional or statutory law.  Munley refused to grant Zubris qualified immunity, reasoning that if Walters proves his case, “qualified immunity would not be appropriate because the rights that plaintiff advances are clearly established.”

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