Justices throw out protester’s conviction > Constitutional right to free speech cited

PORTLAND — The Maine Supreme Judicial Court ruled Friday that a bystander’s obscene taunts directed at police as they were making an arrest qualifies as constitutionally protected free speech, a decision that set off expressions of outrage among law enforcement officials.

“I’m appalled at this decision,” said Charles Jackson, executive director of the Maine Chiefs of Police Association. “Those people who sit on the Maine supreme court are not out there at two in the morning, dealing with people who are half drunk and full of drugs.”

Sagadahoc County District Attorney William R. Anderson, who represented the state before the law court, agreed that the ruling could make police work more difficult if the public gets the message that it’s within the law to subject officers to abuse.

“There’s got to be a limit somewhere,” Anderson said. “I just don’t believe that the vast cross-section of Americans think that’s the sort of conduct police officers ought to have to deal with every day.”

Attorney David S. Severance of Kezar Falls, who argued for the appellant, said his client had the right to protest the arrest of another individual if he believed it was being carried out improperly.

“I don’t think this is going to have a broad impact on how police officers handle situations,” Severance said.

In upholding the appeal of Stanley W. Janisczak, the supreme court said society’s interest in free expression outweighed any danger that could have resulted from the vulgar language the Richmond resident shouted at police.

A minority opinion agreed that Janisczak’s conviction for obstructing government administration should be set aside, but disagreed with the conclusion that police must tolerate derisive and taunting language that threatened to interfere with their law enforcement efforts.

The case centered on an incident on the evening of Dec. 26, 1988, when a crowd of up to 40 spectators gathered in Richmond as police tried to arrest Nicholas Kovtuschenko for driving with a suspended license.

Kovtuschenko had locked himself in his van and police did not want to break into the vehicle for fear of hurting a child inside the vehicle. After a 90-minute standoff, when the child was safely passed out a window to a bystander, officers broke into the van and struggled to arrest Kovtuschenko, who resisted being placed in handcuffs.

Janisczak bolted from the crowd of spectators, screaming to police that they were violating Kovtuschenko’s rights, according to trial testimony. Cpl. Bill Robbins of the Richmond police testified that Janisczak called officers abusive names in vulgar and offensive language.

When the other officers had Kovtuschenko under control, Janisczak stepped within inches of Robbins and said, “f— you.” At that point, Robbins arrested Janisczak, who at no point had made physical contact with the officers.

The majority opinion, written by Justice Samuel W. Collins and endorsed by Justices Caroline Glassman and David G. Roberts, said the evidence failed to show that Janisczak intimidated the officers or engaged in a criminal act — in this case disorderly conduct — with intent to obstruct the arrest.

The three justices agreed that while the state may in some instances properly prohibit “fighting words,” Janisczak’s abusive language was addressed at police officers trained to exercise a higher degree of restraint than ordinary citizens.

In their decision, the justices applied a 1980 case, State of Maine v. John W., in which the court set aside the disorderly conduct conviction of a juvenile who verbally harassed police officers after they arrested his sister.

The concurring opinion, embraced by Justices Robert W. Clifford and Daniel E. Wathen, took issue with the majority conclusion that Janisczak’s words merited constitutional protection.

“In my judgment the court reads John W. too broadly, and in doing so sanctions pernicious interference with legitimate law enforcement activity that could paralyze and endanger not only law enforcement officers but the public as well,” Clifford wrote.

The concurring opinion agreed that Janisczak’s conviction should be set aside because the jury was given no instructions about the section of the disorderly conduct statute applicable to the case.