Cops challenged on citations

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Over a 20-month period, Pittsburgh police officers wrote 188 disorderly conduct citations to people for swearing, making profane gestures or just generally acting like jerks.

That, said Witold Walczak, legal director for the American Civil Liberties Foundation of Pennsylvania, is 187 more than the city claimed, and is an unacceptable number that shows that the Pittsburgh Police Bureau continues to fail to adequately train its officers.

Profanity directed at police officers, though it might be disrespectful and distasteful, is a protected form of speech under the First Amendment.

That means, Mr. Walczak said, police were wrong for citing a woman who said, "I'm a [expletive] passenger," during a traffic stop.

For citing a woman "swearing profanities to a companion in front of the Girl Scouts."

For citing a man "engaged in loud noise, racial slurs and pig remarks."

"Nobody likes to get sworn at, but you can't make it a crime," Mr. Walczak said.

He came across the citations after filing a Right to Know request with the municipal courts office in relation to a federal lawsuit.

David Hackbart is suing the city and a police sergeant, saying he was improperly cited for giving another driver, and then the sergeant, the finger on Murray Avenue in Squirrel Hill.

Mr. Hackbart was trying to parallel park on April 10, 2006. However, he said that as he attempted to back into a space, the car behind him pulled up too close, blocking his path.

Mr. Hackbart showed his discontent to the driver by flipping him off.

"As [he] gave the other driver the middle finger he heard a voice outside of the vehicle instruct him, 'Don't flip him off,'" the lawsuit said. "Upon hearing this, [Mr. Hackbart] proceeded to give the middle finger to the person speaking to him."

That person was Sgt. Brian Elledge, who turned his police car around and pulled Mr. Hackbart over.

He wrote him a ticket for disorderly conduct, writing on the citation: "Driver made an obscene gesture towards me. Flipped me off while driving by. Also flipped off another driver."

In a recent court filing, the city has said that the disorderly conduct citation was not for Mr. Hackbart's gestures, but because he was blocking traffic on Murray Avenue.

While working on the civil suit, Mr. Hackbart's attorneys requested from the city the number of similar citations that had been written.

The city did not provide any. Disbelieving, the plaintiff's attorneys filed the request with the courts and discovered that 188 such citations had been written from March 1, 2005, to Oct. 31, 2007.

"That's a huge amount," Mr. Walczak said, noting that it represents the city's "deliberate indifference" to the need for training.

Especially, he added, in light of the fact that the city lost another federal lawsuit in 2002 for citing a man who said to officers, "You said I have an attitude. Maybe you have a [expletive] attitude, too."

John Neidig won a $3,000 jury verdict in that case for malicious prosecution.

City attorney Michael Kennedy said he could not comment on the Hackbart case because it is pending litigation. He also could not explain the discrepancy between the police saying there were no other instances, and the 188 citations produced by the courts.

Phone calls to the police training academy and Sgt. Elledge's zone commander, Kathy Degler, were not returned.

Eugene O'Donnell, a lecturer at John Jay College of Criminal Justice in New York City, said that police officers are trained to de-escalate difficult situations -- that they should be peace officers.

There are many forms of protected speech, he continued, and various things for which people will disagree with the police. The important thing for a police officer to remember, Mr. O'Donnell said, is to never take things personally.

"It's not you. They don't know you. It's your uniform."

David L. Hudson Jr., with the First Amendment Center, said that the constitution requires police officers to tolerate a significant degree of criticism.

"It is a form of expressive conduct," he said. "Opposition to authority is certainly a form of political speech."

Sometimes speech can rise to the level of "fighting words," which means that the mere utterance could prompt a reasonable person to respond with violence.

"Most profanity is not fighting words," Mr. Hudson said. "Generally, it has to be more than just flipping the bird. There has to be threatening language combined with profanity."

Disorderly conduct is a hard law to define, Mr. O'Donnell said, and gives officers "broad leeway to basically make the law up as you go along."

That's why it's important to have oversight of citations when they're written.

According to a filing in the Hackbart case, supervisors are not required to review citations, though they may.

When asked in a deposition if Mr. Hackbart's gesture to the officer was a crime, Cmdr. Degler said she had to go back and review training materials.

That, the plaintiffs wrote in a court brief, "indicates that there is an utter failure to train Pittsburgh Police Bureau employees -- from commanders on down -- that profane language and gestures are constitutionally protected conduct."

More than that, it went on, when police supervisors were informed of the law, they never disciplined any of those other officers who wrote the citations.

"If there are no consequences for the action, why bother listening to the messages in the first place?" Mr. Walczak said. "Officers realize they can get away with that conduct and do it with impunity. That's a tired old tale."


Paula Reed Ward can be reached at pward@post-gazette.com or 412-263-2620.


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