Constitutional Law

6th Circuit: Man who called cop a 'fat slob' can sue over arrest

By By The Associated Press

LOUISVILLE, Ky. ? Calling a police officer a "fat slob" is not an offense that can usually get someone charged, a federal appeals court ruled yesterday, allowing a lawsuit over the arrest to go forward.

Kevin O. Kennedy sued the city of Villa Hills, Ky., and Joseph Schutzman, a police officer and building inspector, after he was arrested in May 2005 during a dispute over permits to expand a strip mall near his home.

The argument arose at the Villa Hills city building when Kennedy confronted Schutzman, according to court documents. When Schutzman refused to discuss the strip mall's permit because of pending litigation, Schutzman went into the parking lot, while Kennedy spoke with three city employees.

Later, Schutzman came back into the building and confronted Kennedy. Kennedy then called Schutzman a "fat slob," according to court documents.

Kennedy sued in 2007, shortly after charges of disturbing the peace were dismissed.

Judge Karen Nelson Moore, writing for the 6th U.S. Circuit Court of Appeals, noted that Kennedy was likely yelling during the dispute. Schutzman arrested Kennedy on a charge of disorderly conduct, writing on the citation "verbal abuse in front of public works employees."

The unanimous three-judge 6th Circuit panel sent Kennedy?s lawsuit back to federal district court so his Fourth Amendment claim of wrongful arrest and First Amendment claim for retaliatory arrest could go forward.

The appeals panel found in Kennedy v. City of Villa Hills that Kennedy's hurling of the insult was legally protected speech and that, given the description of the incident in court documents, there was no cause for Kennedy's arrest.

"Indeed, because the First Amendment requires that police officers tolerate coarse criticism, the Constitution prohibits states from criminalizing conduct that disturbs solely police officers," Moore wrote.

A federal judge previously had dismissed the lawsuit against the northern Kentucky municipality.

Full post as published by First Amendment Center on March 24, 2011 (boomark / email).