Freedom of Speech-Teacher Taught Students How to Get Arrested

Yesterday, I asked my Twitter friends to give me some suggestions as to what they wanted me to blog about. Several wanted me to discuss some real cases that I’ve been involved with that stand out over the course of my over twenty years as a prosecutor and defense attorney. This one, I’ll never forget.

A teacher at a local high school wanted to provide his students with the ultimate civics lesson. He decided to take his students on a field trip to teach them about the U.S. Constitution. His plan was to take them to a highly publicized and emotionally charged demonstration/protest to teach them, first hand, about cherished constitutional rights like Freedom of Assembly and Freedom of Speech.

It was the time of Elian Gonzalez- the young Cuban refugee whose custody battle set off an international firestorm. He was rescued at sea after a boat carrying Cuban refugees headed toward Miami capsized. His mother died at sea on the voyage. Miami was deeply divided on the issue of whether he should be returned to Cuba to live with his biological father or to remain in the U.S. with his Miami relatives. It was difficult to find anyone who was apathetic. The sentiment was either a strong: “Send him back,” or “Keep him here.” In fact, I remember several occasions around that time that I gave presentations at local public schools. When I mentioned that my first boss was Janet Reno, some students looked at me as if I just stated, “I worked for Adolf Hitler.” It was obvious that these kids were getting from their parents and relatives daily doses of harsh comments and/or criticism concerning Ms. Reno and the issue itself.

The teacher and his students attended a demonstration on a street in Miami Beach. Several hundred passionate people also attended, most of who were Cuban Americans who didn’t want Castro to win by getting Elian back. The teacher, in a premeditated and deliberate act, walked into the middle of the anti-Castro crowd and yelled, “Send him back! Send him back!” His students watched as the crowd immediately reacted with raging anger. The Miami Beach police officers immediately pulled the teacher from the crowd and promptly placed him under arrest. The charge: disorderly conduct. The officer alleged (in his arrest report) that,”The defendant’s intentional actions created a concern for the safety of the people and property in the area.”

When I first met with the teacher, he was distraught. He couldn’t believe how his civics lesson went so awry. He explained that some of his students were literally crying as a result of watching their teacher being stripped of his liberty. He pleaded with me to defend him, noting that on a teacher’s salary, he had very little to pay.

I took the case on a pro bono basis (without fee) because I really wanted to help him. I strongly believed that law enforcement screwed up badly in this particular case. I understood what the police were thinking in pulling him from the crowd. However, I took exception to them arresting him. I also have always had a soft spot for cases involving defendants who appear to get arrested solely because of something that they said. He was so elated when I conveyed to him that I was going to take his case for free. I assured him that I was going to do all I could to see that the charges were dropped.

I prepared a Sworn Motion to Dismiss the Case (also known as a C-4 Motion, after 3.190 (c)(4) of the Florida Rules of Criminal Procedure). That motion is only filed in the rare instances when the defense doesn’t dispute any of the facts alleged by the prosecutor. The motion suggests that as a matter of law the case should be dismissed because what the prosecutor is alleging is not a crime.

In the motion, we alleged that there was absolutely no disagreement on the facts. Both the State prosecutor and the defendant agreed to what the officer alleged that he did. However, the motion alleged that, as a matter of law, no crime was committed because his actions were protected by the constitution.

I remember the prosecutor being extremely friendly, yet inexperienced. She reviewed the case and believed that the arrest was lawful. I shared with her the case of L.A.T. vs. State, 650 So.2d 214 (Fla. 3d DCA 1995) (L.A.T. are the initials of the juvenile defendant involved in the case. They use initials to protect the privacy of juveniles.), decided in 1995. It’s one of my favorite cases because the facts are so helpful to defendants who find themselves accused of crimes based on the same or similar conduct as the teacher’s.

The facts in L.A.T are as follows: It was March 17, 1993. Police were dispatched to a Hardee’s restaurant, located in South Miami. Three juveniles had refused to leave the restaurant. When the officers arrived, they approached L.A.T. and two other juveniles who were gathered outside. After officers spoke with them, the juveniles walked away and entered a nearby Publix. Shortly thereafter, for reasons unknown to L.A.T., one of his juvenile friends was arrested inside the supermarket. While police were putting the cuffs on the juvenile, L.A.T., who didn’t approve of the officer’s arrest, yelled at the top of his lungs, “Is everybody watching this?. . .Police brutality Rodney King style.” L.A.T.’s screaming continued from inside the Publix toward the officer’s patrol car outside. Backup officers arrived on the scene. By that time, L.A.T.’s yelling had caused approximately twenty to twenty-five people to gather. L.A.T. then began to curse at the officers, “You fucking cops, what the hell do you think you’re doing?. . . You are full of bull shit. . .This is abuse…Police brutality… Look at this people, Rodney King style.” Officers instructed L.A.T. on numerous occasions to “calm down” and “relax.” L.A.T.’s reaction to the officers was just the opposite. He appeared to the officers to become even more agitated and angrier by waving his arms and continuing to scream obscenities. After several attempts failed to calm L.A.T. down, he was placed under arrest for disorderly conduct.
The trial court found that L.A.T.’s conduct was unlawful. On appeal, L.A.T. argued that his conduct was protected by the First Amendment. In reversing his conviction, the court of appeals found that L.A.T. had been punished for simply passionately asserting his right to free speech. The court noted that even though L.A.T.’s actions may have been offensive to the police, they still warranted protection under the constitution. The higher court cited numerous examples where defendants, whose conduct included making derogatory and/or offensive remarks towards law enforcement officers, were constitutionally protected and did not constitute disorderly conduct. Furthermore, the court noted that the only category of speech that does not warrant first amendment protection is “fighting words.” Fighting words are “statements that inflict injury or tend to incite an immediate breach of the peace.” Obvious examples of fighting words include yelling “fire” in a crowded movie theatre and/or inciting a crowd of gatherers by yelling, “Let’s all beat up these police officers!!!” In L.A.T.’s case, although a number of people gathered at the scene to observe what was happening, the court found that L.A.T.’s words neither urged the crowd to respond nor had this effect. The court further noted that L.A.T.’s words did not cause anyone to interfere with the arrest or commit a breach of the peace. Therefore, L.A.T.’s rant, although loud and profane and offensive, was found to be a constitutionally justified expression of what he thought was the abusive conduct of the police. That is the beauty of the U.S. Constitution’s First Amendment.

After the prosecutor spent some time reviewing the case and the sworn motion to dismiss that I filed, she agreed to drop the charges. That result enabled my client to move to have his record expunged. Now he can legally announce to the world that he’s never been arrested. (with few minor exceptions).

I think about this case often. On countless occasions, I have informed clients and anyone who cares to listen that the constitution grants citizens wide latitude to express themselves regardless of whether their actions are deemed offensive and/or popular. That being said, I make sure to emphasize that there’s an enormous difference between street law and court law. What citizens are legally allowed to do, and what cops think citizens are allowed to do, are often two different things. The legal thing for officers to do in this case would have been to protect my client from the crowd and afford him the opportunity to lawfully speak his mind. The reality is that, for the most part, it doesn’t work that way on the street. After handling this case, I’ve defended dozens of people who were arrested for simply exercising their constitutional rights.
The one positive thing ensued from this case was that the students learned a lot more than expected on that day. What they learned can’t adequately be expressed in their text books. I’m certain that the life lessons learned that day and in the days that followed for the teacher in court will be ones that they will never forget.