City of Cincinnati v. Karlan, 72-842

• Decision Date: 27 June 1973
• Docket Number: No. 72-842,72-842
• Citation: 35 Ohio St.2d 34,298 N.E.2d 573
• Parties: , 64 O.O.2d 20 CITY OF CINCINNATI, Appellee, v. KARLAN, Appellant.
• Court: Ohio Supreme Court

Page 34

35 Ohio St.2d 34

298 N.E.2d 573, 64 O.O.2d 20

CITY OF CINCINNATI, Appellee, v. KARLAN, Appellant.

No. 72-842.

Supreme Court of Ohio.

June 27, 1973.

Syllabus by the Court

Where epithets, used in a public place and wilfully directed at those who can hear them, are likely to provoke the average person to a retaliatory breach of the peace, they are fighting words and the utterance thereof may be punished as a criminal act. (Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213; Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031; Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284; Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408.)

On January 19, 1971, appellant was arrested by a Cincinnati police officer for an alleged violation of that city's 'disorderly conduct' ordinance. (Section 901-d4, Cincinnati Municipal Code). The cause was tried to a jury in the Hamilton County Municipal Court, and on September 24, 1971, appellant was found guilty. He was sentenced to pay a fine of $50 and the costs of the proceeding.

The arrest and subsequent conviction stemmed from appellant's alleged direction of abusive language at the arresting officer. In his motion for new trial and upon appeal to the Court of Appeals, appellant challenged the constitutionality of the ordinance, both upon its face and as applied, as being repugnant to the First and Fourteenth Amendments to the Constitution or the United States. Specifically, it was his contention that he was convicted only for what he said and not for any conduct that the ordinance proscribed. In addition, he challenged the admission of evidence at his trial, over objection, relating to his prior arrest for assault and battery, since there was no evidence that it had resulted in a criminal conviction.

The Court of Appeals, finding no merit in any of appellant's claims, affirmed the judgment of conviction. The cause is now before this court pursuant to our allowance of a motion for leave to appeal.

Thomas A. Luebbers, City Solicitor, Ralph E. Cors and John S. Moraites, Cincinnati, and Dolores Hildebrandt, for appellee.

Andrew B. Dennison, Cincinnati, for appellant.

HERBERT, Justice.

At the trial of this cause, the arresting officer testified upon direct examination as follows:

'Q. Directing your attention to that date, did you have occasion to come in contact with the defendant, Steve Karlan?

'A. Yes, sir; I did.

'Q. Tell the jury on what date and what time you first came in contact with him.

'A. It was January the 19th, this year, at about 5:05 p. m.

'Q. Where did you see him?

'A. In the rear lot of District 3's police station.

'Q. Where is District 3 located?

'A. 3201 Warsaw Avenue.

'Q. Is that in Cincinnati, Hamilton County, state of Ohio?

'A. Yes, sir; it is.

'Q. Prior to January the 19th, did you have any contact with the defendant?

'A. No, sir; I didn't.

'Q. Had you ever seen him before?

'A. No, sir.

'Q. Your first contact was January 19th, at 5:00 o'clock p. m., at District 3?

'A. Yes, sir.

'Q. When you arrived at the District on that date, what called your attention to the defendant?

'A. The defendant was tampering with an automobile parked on the police lot.

'Mr. Dennison (defense counsel): I am going to have to object to the word 'tampering.'

'The Court: Sustained as to the word, 'tampering.' Just describe what you saw with regards to this car.

'A. (continued) He was doing something with the automobile parked on District 3's lot.

'Q. Was he in the front of the car or in the back?

'A. In front of it.

'Q. Was he looking under the hood or on top on the car?

'A. He had the hood up.

'Q. Were his arms inside of the car?

'A. I don't remember.

'Q. Did you see him remove anything from the car?

'A. No sir.

'Q. Did you see him with anything in his hands, at any time, that afternoon?

'A. Yes, sir.

'Q. What time did you see this?

'A. After I got out of my automobile. He had a radiator in his hands, an automobile radiator.

'Q. Can you recall where he had obtained the radiator?

'A. No, I don't know where he obtained it.

'Q. After you saw him with the radiator, did you approach the defendant?

'A. Yes, sir; I did.

'Q. What was your reason for walking up towards the defendant?

'A. We've had several things taken from automobiles impounded at District 3's lot, and anyone who takes a car, or part of a vehicle from that lot, has to have a release from the district station to take anything from the car or the vehicle, itself.

'Q. How much time, at this point, had lapsed from the time you pulled up to the District until you first walked up and had the conversation with the defendant?

'A. A couple of minutes, I guess.

'Q. Was any one with you when you pulled into the lot?

'A. Yes, there was.

'Q. Who was with you?

'A. Patrolman Norman Stewart.

'Q. Is he your partner?

'A. He was my partner that date.

'Q. When you got out of your car, what did Patrolman Stewart do?

'A. When we pulled in, we moved to the left of the parking space and Patrolman Stewart went into the garage area and I went to the rear lot.

'* * *

'Q. Were there any other vehicles in the parking lot at the time?

'A. Yes, sir; there was.

'Q. Were there police cruisers or other cars?

'A. There were both. There were other cars and police cars.

'Q. Were there other impounded cars on the lot? Do you know?

'A. The only cars that are allowed on the lot are city vehicles and the impounding lot.

'Q. Were you and your partner in full uniform at the time?

'A. Yes, sir.

'Q. Were you operating the police cruiser or was your partner operating the police cruiser?

'A. I don't remember who was driving that day, but we were in a police car, a marked police car.

'Q. Was any one else out in the lot?

'A. No. sir.

'Q. Did you see any one, any time, during the conversation that you had with the defendant?

'A. I did not.

'Q. As you approached the defendant, who spoke first?

'A. The defendant did.

'Q. What did he say to you?

'A. He asked me what I was looking at.

'Q. What was your response?

'A. I asked him if he had permission to tamper with this car.

'Q. What was his response to that?

'A. He said, 'I hate all of you fucking cops.'

'Q. Did he appear to be angry at this time?

'A. He appeared to be wild.

'Q. Tell the jury what he was wearing at the time. How was he dressed?

'A. He was wearing slacks and a jacket. I don't remember the color.

'Q. He wasn't in a coat and a tie?

'A. No, sir; he was not.

'Q. You say he appeared wild. When he had conversation with you, was this normal conversation, or was he shouting?

'A. He was shouting.'

'Q. Demonstrate to the jury, repeating the conversation, the initial conversation, demonstrate exactly how loud he said it to you. Just shout it out the way he shouted it out.

'A. (Demonstrating) He said, 'I hate all you fucking cops.'

'Q. After he said that to you, what did you do?

'A. I said, 'Wait a minute.' I said, 'Do you have permission to fool with this automobile?'

'Q. What did he say at this point?

'A. He said, 'Get out of my way you fucking, prick-ass cops.'

'Q. What was your response to this?

'A. At this time I stopped him from going to the car and I warned him about his language.

'Q. Then, what did he say?

'A. He called me a 'prick-ass cop', again.

'Q. Now this was the second time?

'A. This was the third time.

'Q. Then what did you do?

'A. Then I told him, I warned him again, and he called me a 'prick-assed' cop again.

'Q. Did you tell him that if he said it again you were going to arrest him?

'A. The fourth time-Before the fourth time, I put him under arrest.

'Q. What happened immediately after you placed him under arrest?

'A. I just took him by the arm and started leading him to the District.

'Q. Did he have any other conversation with you at this point?

'A. He just told me I couldn't do it.'

Section 901-d4, Cincinnati Municipal Code, reads as follows:

'It shall be unlawful for any person to willfully conduct himself or herself in a noisy, boisterous, rude, insulting or other disorderly manner, with the intent to abuse or annoy any person * * *.'

As construed by this court, the above ordinance has recently been held not to prohibit the lawful exercise of any constitutional right or the lawful enjoyment of any constitutionally protected freedom. Cincinnati v. Hoffman (1972), 31 Ohio St.2d 163, 285 N.E.2d 714, certiorari denied 410 U.S. 920, 93 S.Ct. 1370, 35 L.Ed.2d 583. ¹

However, appellant contends that Hoffman involved conduct and the case at bar concerns only speech. Thus, he reasons, the two causes are distinguishable and the ordinance is constitutionally defective under the facts at bar. To reach this conclusion, appellant is driven to categorize the language he employed as being constitutionally protected freedom of expression. To gain that harbor of refuge, he necessarily assumes that the abuse he chose to heap upon the police officer cannot be defined as 'fighting words.' At this juncture, the persuasiveness of appellant's advocacy wanes perceptibly.

The doctrine of 'fighting words' has its roots in Cantwell v. Connecticut (1940), 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213. There, the defendants were attempting to influence others to adopt a particular religious philosophy. Unfortunately, their efforts included the playing of a phonograph record which was highly insulting to another religious group. Two members of the latter faith were incensed by the record and the defendants were arrested. In reversing the convictions, Mr. Justice Roberts noted, at page 309, 60 S.Ct. at page. 906:

'One may, however, be guilty of the offense if he commit acts or make statements likely to provoke violence and disturbance of good order, even though no such eventuality be intended. Decisions to this effect are many, but examination discloses that, in practically all, the provocative language which was held to amount to a breach of the...