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Yep, Can't Arrest Someone For Saying 'Damn' and 'Hell'

By William Peacock, Esq. on November 01, 2013 | Last updated on March 21, 2019

On September 9, 2010, Monique Wilkerson was at a bar enjoying a meal and the first football game of the year, presumably the season-opening game between the then-defending-champion New Orleans Saints and the Minnesota Vikings, a rematch of the previous year's NFC title game. After hearing multiple pages from the DJ about her vehicle, which was legally parked, she went outside to investigate.

Her car was legally parked. Other cars weren't. But an off-duty police officer, Thedious Seymour, who was working security, told her that her car was about to be towed. He also explained that it would be easier to interrupt her meal, and have her move her legally-parked car, than to have all of the fools with illegally-parked cars move theirs.

Arrested for Loud Talking

She was obviously displeased, and expressed as much loudly, using the words "damn" and "hell." Officer Seymour slapped the cuffs on, and arrested her for violating the DeKalb County Disorderly Conduct ordinance, which constitutionally-questionably states:

(a) It shall be unlawful for any person to act in a loud and boisterous, reckless, unruly or violent manner for the purpose of insulting, degrading, or inciting another or a group of individuals in a public place.

(b) It is not the intent of this section to restrict any individual's right to free speech.

The court notes that the constitutionality of this odd ordinance is not at issue (though seriously, no loud and boisterous speech?). The actual issue is qualified immunity.

Violation of Clearly-Established Rights?

At first glance, a duh, right?

An arrest without probable cause violates the Fourth Amendment. Borderline "arguable probable cause" cases go to the officer, but this case wasn't even close. Wilkerson concedes that she was loud, and that she was in public. But her protestations over the officer's ridiculous request, using only mildly-uncouth language, don't meet the second element, "for the purpose of insulting, degrading, or inciting another ..."

Officer Seymour argues that he isn't a lawyer, and shouldn't have to know every element of every law before arresting a perp. He contends that "two out of three prongs is close enough."

The court's response? Though it is true that showing probable cause for an arrest does not require proving every element, "but it is tautological that a constitutional arrest must be based on a reasonable belief that a crime has occurred, rather than simply unwanted conduct."

There's no qualified immunity here (at least for Officer Seymour), because there was nothing even resembling criminal conduct.

Supervisor Gets Off

After Wilkerson was already arrested, and in the back of a squad car, Officer Seymour's supervisor showed up. He was named as a co-defendant, but because he had no reason to believe that the arrest was unconstitutional, and because he relied upon Officer Seymour's account and reasonable presumptions of constitutional behavior and good faith.

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