Disturbing the Peace for cursing at a bartender?

[taylorweber]

This took place in Lincoln, NE.

I was in a bar and had a disagreement with the bartender. I said "**** You" to him and flipped him off. He got mad and came around the bar table and threw me on the ground like I was fighting him. I never touched him and they had never asked me to leave. Next thing I know I'm being dragged out and arrested for Disturbing the Peace. I admitted to the officer that I said that to him. But there is video tape evidence of me being non-violent and flipping him off. I spoke with the arresting officer after reviewing the tape and he agreed I did not act violently, and I also had a friend of mine vouch for me as not being irrational or overly-intoxicated. However he chose not to void the ticket.

I am aware the cursing at someone constitutes "fighting words" which means I technically did fall under Disturbing the Peace I believe. I am unsure how I should plead in court, I don't want to make this a long, dragged out process; but I don't want to plead guilty to something that could easily be dropped.

 

[CdwJava]

At or soon before the arraignment you should have the opportunity to ask for assigned legal counsel if you cannot afford your own attorney. It might even be possible that the state will not pursue the matter - particularly if there exists video to show that you were the victim of an attack that was not legally considered as provoked. If, however, your state and the local court interpretation excuses such a reaction when in response to a provocation such as yours, then you may be in trouble.

Under what statute have you been charged (code section, please)?

 

[tranquility]

State v. Groves, 363 NW 2d 507 - Neb: Supreme Court 1985

We hold that the words "[fire truck]head" and "mother[fire truck]er" are such fighting words,

See also:
State v. Broadstone, 447 NW 2d 30 - Neb: Supreme Court 1989
State v. Boss, 238 NW 2d 639 - Neb: Supreme Court 1976

While you may very well be guilty under the laws of Nebraska, I would never plead guilty to a crime without speaking to an attorney first.

 

[taylorweber]

I would like to talk to a lawyer, however its such a small ticket that I can't justify paying for one. My arraignment is tomorrow, it sounds like I should plead Not Guilty and assess the situation. My only prior offense on my adult record was a .02 Violation and MIP.

I believe the number you're asking for is 9.20.050

 

[justalayman]

Unless there is a possibility of incarceration, it is not likely you will be offered a public defender, even if you qualify for one financially. Most states I have seen do not provide PD's unless there is a possibility of incarceration.

so, what is the specific statute charged?

 

[quincy]

I would like to talk to a lawyer, however its such a small ticket that I can't justify paying for one. My arraignment is tomorrow, it sounds like I should plead Not Guilty and assess the situation. My only prior offense on my adult record was a .02 Violation and MIP.

I believe the number you're asking for is 9.20.050

Lincoln Municipal Code Section 9.20.050(a)(3), Disturbing the Peace: Using abusive, threatening, or other fighting language or gestures directed toward another person or persons. *

Disturbing the peace is a misdemeanor, with jail time of up to 3 months possible and a fine of between $150 and $500.

Because a conviction on this charge is a misdemeanor, and a misdemeanor can affect how much you pay for insurance and loans (or whether you can even get insurance or loans), and can affect school opportunities and employment opportunities, and can restrict your travel out of the US (for just a partial list of ways a misdemeanor can play havoc with your life and finances), I am thinking you cannot afford to NOT have an attorney.

Yes, you should plead not guilty at your first appearance tomorrow. Then you should look for an attorney - borrowing funds from family or friends or asking the attorneys you speak with for a payment plan - to help you. I don't know what a ".02 Violation" is, but with that violation and an MIP on your adult record already, a judge may be less likely to give you a break. I recommend you have an attorney assist you in court.




*Section 9.20.050 seems to focus more on speech than conduct. . . . hmmm.

 

[CdwJava]

I suspect a .02 violation is an underage drinking and driving offense.

 

[justalayman]

Lincoln Municipal Code Section 9.20.050(a)(3), Disturbing the Peace: Using abusive, threatening, or other fighting language or gestures directed toward another person or persons. *
.

9.20.050 Disturbing the Peace.

(a) It shall be unlawful for any person to intentionally or knowingly disturb the peace and
quiet of any person, family, or neighborhood, or any public assembly, or assembly of persons for
religious worship. The offense of disturbing the peace shall include, but shall not necessarily be
limited to, the following:

(1) Engaging in fighting;

(2) Exhibiting threatening or violent conduct directed towards another person
;
(3) Using abusive, threatening, or other fighting language or gestures directed
towards another person or persons; or

(4) Picketing or demonstrating on a public way within 150 feet of any primary or
secondary school building while the school is in session and during the one-half hour before the
school is in session and during the one-half hour after the school session has been concluded.

(b) Any person who shall violate this section shall be deemed guilty of a misdemeanor and
upon conviction thereof shall be imprisoned in the county jail for a period not to exceed three
months, or fined not less than $150.00 nor more than $500.00. (Ord. 19749 §1; August 6, 2012:
prior Ord. 16141 §1; June 29, 1992: Ord. 15621 §5; July 9, 1990: P.C. §9.52.030: Ord. 13762 §3;
February 13, 1984: Ord. 3489 §21-203; July 6, 1936).

Sounds like a 1st amend defense. The statement and gesture, to me, is at the most, abusive. Even that is questionable given the minimal level of conduct in question. Since when is abusive language not a legal right of ours to express. I know flipping somebody off (a cop specifically) has already been addressed by the courts and is not a criminal act. I suspect the minimal verbal gesture argument has also been through the courts and likely to have been ruled a lawful right.

Of course, all we have is the OP's statement as to what happened. Most people I know don't arbitrarily flip off a bartender and tell him to F off without some other interaction preceding it.

 

[tranquility]

Sounds like a 1st amend defense. The statement and gesture, to me, is at the most, abusive. Even that is questionable given the minimal level of conduct in question. Since when is abusive language not a legal right of ours to express. I know flipping somebody off (a cop specifically) has already been addressed by the courts and is not a criminal act. I suspect the minimal verbal gesture argument has also been through the courts and likely to have been ruled a lawful right.

Of course, all we have is the OP's statement as to what happened. Most people I know don't arbitrarily flip off a bartender and tell him to F off without some other interaction preceding it.

While the main issue in the first case I cited was if you can commit disorderly conduct against a cop, they found those particular words to be "fighting words" and not subject to the protections of the first amendment.

 

[justalayman]

While the main issue in the first case I cited was if you can commit disorderly conduct against a cop, they found those particular words to be "fighting words" and not subject to the protections of the first amendment.

Chaplinsky said:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting words" those that by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

— Chaplinsky v. New Hampshire, 1942

while the F word might have been considered a fighting word in 1942, the use of the word (http://www.youtube.com/watch?v=xZkb4TPI-Lo) as common parlance removes it from being considered a fighting word without specific intent to inflame.

In a case where a person wore a shirt emblazoned with the phrase F*** the draft" it was ruled that there was no personally abusive epithets involved and hence, was not considered to be a fighting word. As such, it is apparently not considered vulgar or profane such that it is eligible to be censored. When spoken to an individual, obviously that would not apply but due to the common use of the term, it is no more abusive than telling somebody to jump in lake or take a hike. It is a gesture of frustration or disgust, not a fighting word

Cohen v. California

.Chaplinsky still remains viable for the principle that “the States are free to ban the simple use, without a demonstration of additional justifying circumstances, of so-called ‘fighting words,’ those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction.”

so, anytime somebody says the word F*** to me, I can hit the person and claim a defense that he uttered a "fighting word" which caused such a violent reaction in me I could not restrain myself? Seriously? If so, it's time the courts were brought into the 21st century, as vulgar as it is.

 

[CdwJava]

Yes, there are cases and courts where making such personally derogatory and inflammatory comments could be considered justification for a retaliatory assault. That is not to say they will be - it all depends on the specifics of the case, the laws in the state in question, and the preference of the local prosecutor. Our prior DA here pretty much gave people a green light to take a couple of punches at anyone that flipped them off or cursed them out. Once the first two cases hit the papers, we had a slew of additional ones ... it really did us no favors because we had people goading others into making an appropriate;y offensive comment or gesture, and the fight was on. We got to the point where he arrested everyone - some for disturbing the peace for the words or gestures, the other for battery and/or fighting in public. It stopped the problem.

 

[justalayman]

Yes, there are cases and courts where making such personally derogatory and inflammatory comments could be considered justification for a retaliatory assault. That is not to say they will be - it all depends on the specifics of the case, the laws in the state in question, and the preference of the local prosecutor. Our prior DA here pretty much gave people a green light to take a couple of punches at anyone that flipped them off or cursed them out. Once the first two cases hit the papers, we had a slew of additional ones ... it really did us no favors because we had people goading others into making an appropriate;y offensive comment or gesture, and the fight was on. We got to the point where he arrested everyone - some for disturbing the peace for the words or gestures, the other for battery and/or fighting in public. It stopped the problem.

bad move, in my opinion. The courts need to go to a " sticks and stones" position. Sorry but if one cannot maintain their own composure if somebody flips them off or tells them to F*** off, then it is they who should go to jail. Time for society to show some level of maturity above that of a 5th grader.

 

[Willlyjo]

Chaplinsky said:




while the F word might have been considered a fighting word in 1942, the use of the word (http://www.youtube.com/watch?v=xZkb4TPI-Lo) as common parlance removes it from being considered a fighting word without specific intent to inflame.

In a case where a person wore a shirt emblazoned with the phrase F*** the draft" it was ruled that there was no personally abusive epithets involved and hence, was not considered to be a fighting word. As such, it is apparently not considered vulgar or profane such that it is eligible to be censored. When spoken to an individual, obviously that would not apply but due to the common use of the term, it is no more abusive than telling somebody to jump in lake or take a hike. It is a gesture of frustration or disgust, not a fighting word

Cohen v. California



so, anytime somebody says the word F*** to me, I can hit the person and claim a defense that he uttered a "fighting word" which caused such a violent reaction in me I could not restrain myself? Seriously? If so, it's time the courts were brought into the 21st century, as vulgar as it is.

I have to agree totally with Justy! What about the fact the bartender threw the Op on the floor and started fighting with him? This looks like unwanted and unwarranted touching to me, so it should be considered assault. If I were in this situation, I'd at least attempt to press charges for assault against the bartender.

 

[quincy]

Lincoln's Municipal Code, Disturbing the Peace, Section 9.20.050, was actually amended in 2012 - but only to have the penalties for violations correspond to the state statute.

There was a Nebraska Supreme Court, First Amendment case decided in 2010, State v Drahota*, 280 Neb. 627, over the disturbing the peace law. Eugene Volokh volunteered his services to Darren Drahota, a student convicted of disturbing the peace for sending inflammatory emails to one of his former professors.

It is possible that more than just words were spoken and gestures made in taylorweber's situation, but having an attorney review the matter and help him with his defense makes sense whatever the case.

I like that quote from Chaplinsky, justalayman.


*I have links to both the case and articles on the case, but can't seem to get them to work here. Googling the case should work to turn up something.

 

[tranquility]

Chaplainsky is referenced in the decision(s) I referenced. The specific terms referenced WERE considered fighting words. If you disagree, bring it up with the Nebraska Supreme Court.