State v. Liebenguth

• Citation: 336 Conn. 685,250 A.3d 1
• Decision Date: 27 August 2020
• Docket Number: SC 20145
• Court: Supreme Court of Connecticut
• Parties: STATE of Connecticut v. David G. LIEBENGUTH

336 Conn. 685

250 A.3d 1

STATE of Connecticut

v.David G. LIEBENGUTH

SC 20145

Supreme Court of Connecticut.

Argued March 29, 2019

Officially released August 27, 2020^**

Timothy F. Costello, assistant state's attorney, with whom, on the brief, were Richard J. Colangelo, Jr., state's attorney, and Nadia C. Prinz, former deputy assistant state's attorney, for the appellant (state).

John R. Williams, New Haven, for the appellee (defendant).

Robinson, C. J., and Palmer, McDonald, D'Auria, Mullins, Kahn and Ecker, Js.^*

PALMER, J.

Under General Statutes § 53a-181 (a) (5), a person is guilty of breach of the peace in the second degree when, with the intent to cause inconvenience, annoyance or alarm, he uses abusive language in a public place.¹ That broad statutory proscription, however, is limited by the free speech provisions of the first amendment to the United States constitution,² which prohibit the government from "restrict[ing] expression because of its message, its ideas, its subject matter, or its content"; (internal quotation marks omitted) Ashcroft v. American Civil Liberties Union , 535 U.S. 564, 573, 122 S. Ct. 1700, 152 L. Ed. 2d 771 (2002) ; thereby protecting speech "without regard ... to the truth, popularity, or social utility of the ideas and beliefs [that] are offered." National Assn. for the Advancement of Colored People v. Button , 371 U.S. 415, 445, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963). These safeguards, however, although expansive, are not absolute, and the United States Supreme Court has long recognized a few discrete categories of speech that may be prosecuted and punished, including so-called "fighting words"—"those personally abusive epithets [that], when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction." Cohen v. California , 403 U.S. 15, 20, 91 S. Ct. 1780, 29 L. Ed. 2d 284 (1971). In this certified appeal, we must determine whether certain vulgar and racially charged remarks of the defendant, David G. Liebenguth, which included multiple utterances of the words "fucking niggers" directed at an African-American parking enforcement official during a hostile confrontation with that official following the defendant's receipt of a parking ticket, were "fighting words" subject to criminal sanctions. As a result of his conduct, the defendant was arrested and charged with breach of the peace in the second degree in violation of § 53a-181 (a) (5) and, following a trial to the court, was found guilty.³ On appeal to the Appellate Court, the defendant claimed, inter alia, that the evidence was insufficient to support the trial court's finding of guilty because the words he uttered to the parking official constituted protected speech that could not, consistent with the first amendment, provide the basis of a criminal conviction. See State v. Liebenguth , 181 Conn. App. 37, 47, 186 A.3d 39 (2018). Although acknowledging that the defendant's language was "extremely vulgar and offensive" and "meant to personally demean" the official; id., at 53, 186 A.3d 39 ; the Appellate Court, with one judge dissenting, agreed with the defendant that his speech was constitutionally protected and that, consequently, his conviction, because it was predicated on that speech, could not stand. See id., at 54, 186 A.3d 39 ; see also id., at 58, 186 A.3d 39 (Devlin , J ., concurring in part and dissenting in part). We granted the state's petition for certification to appeal, limited to the question of whether the Appellate Court correctly concluded that the defendant's conviction must be reversed because the first amendment barred his prosecution for the verbal statements at issue. See State v. Liebenguth , 330 Conn. 901, 189 A.3d 1231 (2018). We now conclude that the defendant's remarks were unprotected fighting words and, therefore, that his conviction does not run afoul of the first amendment. Accordingly, we reverse the judgment of the Appellate Court in part and remand the case to that court with direction to affirm the trial court's judgment with respect to his conviction of breach of the peace in the second degree.

The opinion of the Appellate Court sets forth the following relevant facts and procedural history. "Michael McCargo, a parking enforcement officer for the town of New Canaan, testified that he was patrolling the [Morse] Court parking lot on the morning of August 28, 2014, when he noticed that the defendant's vehicle was parked in a metered space for which no payment had been made. He first issued a [fifteen dollar parking] ticket for the defendant's vehicle, then walked to another vehicle to issue a ticket, while his vehicle remained idling behind the defendant's vehicle. As McCargo was returning to his vehicle, he was approached by the defendant, whom he had never before seen or interacted with. The defendant said to McCargo, ‘not only did you give me a ticket, but you blocked me in.’ Initially believing that the defendant was calm, McCargo jokingly responded that he didn't want the defendant getting away. When the defendant then attempted to explain why he had parked in the lot, McCargo responded that his vehicle was in a metered space for which payment was required, not in one of the lot's free parking spaces. McCargo testified that the defendant's demeanor then ‘escalated,’ with the defendant [having said] that the parking authority was ‘[fucking] [un]believable’ and [having told] McCargo that he had given him a parking ticket ‘because my car is white. ... [N]o, [you gave] me a ticket because I'm white.’ As the defendant, who is white, spoke with McCargo, who is African-American, he ‘flared’ his hands and added special emphasis to the profanity he uttered. Even so, according to McCargo, the defendant always remained a ‘respectable’ distance from him. Finally, as the defendant was walking away from McCargo toward his own vehicle, he spoke the words, ‘remember Ferguson.’ " State v. Liebenguth , supra, 181 Conn. App. at 39–40, 186 A.3d 39.

McCargo also testified that, "[a]fter both men had returned to and reentered their vehicles, McCargo, whose window was rolled down ... thought he heard the defendant say the words, ‘fucking niggers.’ This caused him to believe that the defendant's prior comment about Ferguson had been made in reference to the then recent [and highly publicized] shooting of an African-American man by a white police officer in Ferguson, Missouri [on August 9, 2014, approximately three weeks earlier]. [McCargo] thus believed that the [defendant's reference to Ferguson was a ‘threat’] meant to imply that what had happened in Ferguson ‘was going to happen’ to him. McCargo also believed that, by uttering the racial slur and making reference to Ferguson, the defendant was trying to rile him up and [to] escalate the situation [by ‘taking it to a whole other level’]. That, however, did not happen, for, although McCargo found the remark offensive, and he had never before been the target of such language while performing his duties, he remained calm at all times and simply drove away to resume his patrol." Id., at 40, 186 A.3d 39. McCargo further testified, however, that, "[s]hortly thereafter ... as [McCargo] was driving away, the defendant [cut through the parking lot in his vehicle, approached McCargo, and then] drove past him." Id., at 40–41, 186 A.3d 39. As the defendant was driving past McCargo, "the defendant turned toward him, looked directly at him with an angry expression on his face, and repeated the slur, ‘fucking niggers.’ McCargo [also] noted in his testimony that the defendant said the slur louder the second time than he had the first time.

"After the defendant drove out of the parking lot, McCargo [who was shocked and personally offended by the encounter] called his supervisor, who instructed him to report the incident to the New Canaan police. In his report, McCargo noted that there might have been a witness to the interaction, whom he described as a young, white female. The defendant later was arrested in connection with the incident on the charge of breach of the peace in the second degree." Id., at 41, 186 A.3d 39.

"Next to testify was Mallory Frangione, the young, white female witness to the incident whom McCargo had mentioned in his report. She testified that she parked in the [Morse] Court parking lot around 9:45 a.m. on ... August 28, 2014, and, as soon as she opened her car door, she heard yelling. She then saw two men, McCargo and the defendant, who were standing outside of their vehicles about seventy feet away from her. She observed that the defendant was moving his hands all around, that his body movements were aggressive and irate, and that his voice was loud. She heard him say something about Ferguson, then say that something was ‘[fucking] unbelievable.’ [Frangione] further testified that she saw the defendant take steps toward McCargo while acting in an aggressive manner. She described McCargo, by contrast, as calm, noting that he never raised his voice, moved his arms or gesticulated in any way. McCargo ultimately backed away from the defendant and got into his vehicle. The defendant, [Frangione] recalled, drove in two circles around the parking lot before leaving. Frangione testified that witnessing the interaction made her feel nervous and upset."⁴ Id.

"After the state rested [its case], the defendant moved for a judgment of acquittal ... which the court denied. The defendant elected not to testify. The court, ruling from the bench, found the defendant guilty .... It reasoned as follows: ‘In finding that the defendant's language and behavior [are] not protected speech, the court considers the words themselves, in other words, the content of the speech, the context in which [they were] uttered, and all of the circumstances surrounding the defendant's speech and behavior.

" ‘The court finds that the defendant's language, fucking niggers directed at ... McCargo twice ... is not protected speech....