‘Whoop ass’ comment doesn’t rise to level of harassment

Monday, April 16, 2012

The criminal charge of harassment in Colorado requires a repeated volley of insults, taunts or other offensive communications, a federal district judge has ruled.

LaShanda Steele faced charges under a Colorado harassment statute, Colorado Rev. Stat. § 18-9-111, which provides in part: “A person commits harassment if, with intent to harass, annoy, or alarm another person, he or she … (h) repeatedly insults, taunts, challenges, or makes communication in offensively coarse language to, another in a manner likely to provoke a violent or disorderly response.”

On Nov. 2, 2011, Steele allegedly made profane comments to Scarlett Rivers, with whom she has an acrimonious history. Both women are spouses of U.S. Army enlisted men. That morning Steele was in federal court on assault and harassment charges against Rivers for an incident that occurred in June 2011. On lunch break from the court proceedings, Steele went to a Fort Carson shop to buy gasoline. When she encountered Rivers at the same store, she told her that she would “whoop ass.” Rivers alleged that Steele called her a “bitch,” as well.

Steele then faced charges under the harassment law as a result of this verbal exchange. In federal court (because the incident occurred on a military base), witnesses for Rivers offered conflicting versions of what happened. One witness testified that Steele called Rivers a “bitch,” while another witness said it was the other way around. Steele admitted that she made a remark about whooping Rivers’ ass.

On April 9, U.S. District Judge Michael E. Hegerty ruled in United States v. Steele that Steele’s “whoop ass” comment did not rise to the level of repeated harassment. Steele had made a First Amendment defense against the charges, but the judge did not address those arguments.

Instead, Hegerty reasoned that the Colorado harassment statute “requires repeated incidents” and, at best, Rivers was only able to show that Steele made one “whoop ass” comment.

The decision shows that sometimes the best arguments in cases are those based on fundamental statutory requirements instead of larger constitutional arguments. Steele’s lawyer was able to show that an isolated profane remark did not fall within the ambit of the law.

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