If You Prick Us, Do We Not Bleed? New York Lawyer Prevails in Contesting Arrest for Foul Language

nicubunu_open_mouthIt took New York Attorney Joseph DePaula four years but he has finally prevailed in his false arrest claim after he was thrown into jail for calling an officer a “prick” in court in 2005.

DePaula was confronted in court by the officer when his cellphone rang in court. DePaula showed little judgment when he answered the phone. The court officer confiscated the phone. The officer later told him that he should know better (which is true), but either his manner or his actions irritated DePaula. DePaula said “You’re just being a prick.”

While DePaula insists that the exchange was “conversational,” the court officer then said “You called me a prick, you’re under arrest.” when DePaula objected, the officer simply repeated, ““You called me a prick, stand up and put your hands behind your back.” DePaula says that tried to get the officer to allow him to finish his matters on the court calendar but the officer insisted on the arrest. DePaula was left cuffed in a holding room for about 20 minutes and issued a disorderly conduct charge.

DePaula insists that he did not use the word prick to provoke the officer — an argument that was obviously more successful than President Obama’s recent insistence that he did not mean to malign an officer by calling his arrest an act of “stupidity.” Instead, DePaula told the court that he merely meant to describe a “contemptible, disagreeable, obnoxious person.” He might have been wiser to argue that he was referring to the definition of “a pointed object, such as an ice pick, goad, or thorn” used to puncture or harm him. Or that he felt the officer’s approaching him reminded him of a “hare’s track or footprint.” Indeed, he could have cited Shylock in Shakespeare’s The Merchant of Venice (Act 3, Scene 1) to say that he was simply asking for the officer to treat lawyers as people: “If you prick us, do we not bleed? if you tickle us, do we not laugh? if you poison us, do we not die? and if you wrong us, shall we not revenge? If we are like you in the rest, we will resemble you in that”

For his part, Court Officer Rey said that DePaula glared at him and argued with him. The court notes that “[o]n cross examination, Mr. DePaula conceded he was close enough to the entry doors to the courtroom that he could have left the courtroom when his phone rang, and that he knew answering the phone in the court- room was a violation of court rules.”

The court held:

While the requisite intent might be established by the Court Officer’s version of the second encounter
with Mr. DePaula, upon consideration of the conflicting testimony, the defendant has not established that the
arrest was based upon anything more than the words spoken by the claimant. The preponderance of the credible evidence establishes that Mr. DePaula’s utterance was spoken in a conversational tone, and that he did not refuse the Officer’s request to leave the courtroom before he was placed under arrest. While not entirely consistent with Mr. DePaula’s version of the encounter,
the testimony of Ms. Lewis, a disinterested witness, did not support the Officer’s version of what occurred. Nor was the Officer’s account at trial consistent with his two prior written descriptions of the encounter, made on the date of the incident (the summons [Claimant’s Exhibit 1] and the Unusual Occurrence Report [Claimant’s Exhibit 4]), neither of which made any reference to his having
asked the claimant to leave the courtroom, or that he refused to do so. . .

Thus, however reprehensible the utterance Mr. DePaula chose to make, in a courtroom and addressed to a Court Officer, the statement alone did not, as a matter of law, amount to disorderly conduct. The law is well settled that the mere use of “abusive or obscene language” in a public place does not constitute a violation of Penal Law §240.20[3]. “[T]he disorderly conduct statute challenged here applies to words and conduct reinforced by a culpable mental state to create a public (People v. Tichenor, 89 NY2d 769, 775 [1997]).

The arrest was clearly abusive act. He would have been correct to raise the matter with the judge but disrespectful comments are not a crime.

Bad language continues to be a matter of criminal and contempt actions. This includes a recent case of punishment for depositional swearing, here. In one case, a judge sentenced a lawyer to six months for swearing in his courtroom — a clearly abusive order here. However, that is a matter of contempt, not disorderly conduct. Indeed, this case might have resulted in such a warning of contempt if the officer had raised it with the court.

We have also seen recently some arrests in states like Texas for the use of profanity despite the obvious constitutional problems in such punishment for speech, here and here. The South Dakota Supreme Court recently declared such speech as protected, here. Likewise, swearing at your toilet is protected speech, here. Yet, officers continue to arrest people for swearing in public meetings another locations.

Here is Nadel’s opinion: 072409nadel

For an article on the case, click here.

9 thoughts on “If You Prick Us, Do We Not Bleed? New York Lawyer Prevails in Contesting Arrest for Foul Language

  1. I know that the New York law the lawyer here was charged with violating is not as old as the Massachusetts law Professor Gates was charged with violating, which is at least a hundred years older than the United States.

    The latter is probably the “stupidist” law in the United States, and therefore envforcing it in such circumstances is axiomatically a stupid act.

  2. Ya think this is bad, It is still a law that is used in Michigan that states: it is against the law to use profane language in the presence of minors and women. I kid you not the CoA has even upheld this law as recently as 2007.

  3. The police reaction is typical of cops around the world and suggests a mindset either before or after joining the force. I see it in certain ushers, who also have some authority over your life and choose to help or abuse. Like Skip Gates, it’s up to you to trigger the right reaction. The old “catches more flies with sugar” phrase applies.

  4. Hurrah, being a boor isn’t illegal in New York — obviously. You can tell because so many are walking around free. 😀

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