Ruling: Disorderly conduct charge didn’t violate man’s speech

Tuesday, January 27, 2009

The First Amendment didn’t shield a man from a disorderly conduct charge for making an obscene gesture to a Maine game warden, a federal court has ruled in an opinion that appears not to have fully examined some relevant U.S. Supreme Court and lower court precedent.

Thomas Dube contended that Maine game wardens Michael Boyer and Ronald Dunham violated his free-speech rights in March 2007 when they issued him a summons for disorderly conduct after he gave one of them the middle-digit salute while snowmobiling.

As game wardens employed by the Maine Department of Inland Fisheries and Wildlife, Boyer and Dunham have the responsibility to check snowmobilers’ registrations. They stopped more than 50 snowmobiles that day for registration checks.

During their patrol, Boyer noticed four snowmobiles parked by the side of a trail and waved in what he said was a friendly gesture toward the riders. In response, Dube, who was standing near one of the snowmobiles, gave Boyer the finger twice. Boyer asked Dube what the problem was, and Dube responded: “I like you so much I just wanted to tell you you’re number one.”

Dunham, who arrived a short time later, said he thought Dube might be under the influence of alcohol and told Boyer they should investigate further. The wardens said they had trouble getting Dube to remove his helmet and produce identification. The entire encounter lasted about 15 minutes.

The game wardens issued Dube a summons for disorderly conduct under the following state law:

“A person is guilty of disorderly conduct if he knowingly accosts, insults, taunts or challenges any person with offensive, derisive … gestures or other physical conduct, that would in fact have a direct tendency to cause a violent response by an ordinary person in the situation of the person … insulted, taunted or challenged.”

A district attorney later declined to prosecute Dube on the grounds that there was insufficient evidence to maintain the prosecution.

Dube then filed a lawsuit in small-claims court; it was dismissed for lack of jurisdiction. He took his case to a county superior court, but the defendants had the case removed to federal court in May 2008. In his lawsuit, Dube alleged violations of both his First and Fourth Amendment rights.

On Jan. 13, U.S. Magistrate Judge Margaret J. Kravchuk determined in Dube v. Boyer that Dube’s constitutional claims lacked merit. Under federal law, magistrates can handle entire aspects of federal district court decisions with the consent of both sides.

As to Dube’s First Amendment claim, Kravchuk’s opinion was dismissive. “To claim that Dube’s conduct in raising the middle finger of both hands on his extended arms in a return gesture followed the wardens’ friendly wave is somehow deserving of First Amendment protection such that the officers would be prohibited from investigating the situation further is simply untenable,” she wrote.

“The entire incident was provoked by Dube’s inexplicable conduct and the officers did not violate his First Amendment rights when they approached him to investigate further into the circumstances. A brief investigatory stop and the resultant summons did not ‘chill’ any First Amendment rights that Dube may possess,” she explained.

Kravchuk cited very little precedent in her First Amendment analysis. She did not cite the U.S. Supreme Court decision City of Houston v. Hill (1987), in which Justice William Brennan wrote: “The First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.”

Some federal courts have determined that law enforcement officials have violated the First Amendment by punishing someone for a middle-finger gesture — decisions also not mentioned in Kravchuk’s analysis.

In Nichols v. Chacon (W.D. Ark. 2000), a federal district court in Arkansas ruled that law enforcement officials violated the First Amendment rights of a man when they retaliated against him for flipping them the bird. “While we agree the gesture utilized by Nichols was crude, insensitive, offensive, and disturbing to Chacon’s sensibilities, it was not obscene under the relevant Supreme Court precedent, did not constitute ‘fighting words,’ and was protected as ‘free speech’ under the First Amendment to the United States Constitution,” the opinion said.

Similarly, Judge Alex Kozinski wrote in Duran v. City of Douglas (9th Cir. 1992) that “while police, no less than anyone else, may resent having obscene words and gestures directed at them, they may not exercise the awesome power at their disposal to punish individuals for conduct that is not merely lawful, but protected by the First Amendment.”

However, the Maine game wardens in this case were allowed to “exercise the awesome power at their disposal to punish” an individual for the middle-finger gesture.

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