In January 2014, Richard P. Kearns—a 72-year-old National Guard veteran with no criminal history—was cited for harassment and disorderly conduct by a Littleton police officer after allegedly calling a parking enforcement officer an expletive while he was in a public space.
Mr. Kearns denies calling the officer an expletive. Nonetheless, Mr. Kearns has long been active in politics and holds opinions about how to maintain a vibrant downtown, which includes, among other things, encouraging business by providing free downtown parking. Mr. Kearns expressed these views peacefully to the parking enforcement official.
Mr. Kearns’ arrest and prosecution violated his constitutional rights. The law is clear that swearing (cursing or using profanity) in public or to enforcement officers is protected speech under the First Amendment. Therefore, disorderly conduct and harassment citations and arrests for profanity (usually termed “obscenity” in the citations) are unconstitutional. Countless courts have repeatedly held for the last two decades that police cannot arrest people for either using profanity in public or directing it at enforcement officers or civilians.
The rationale for these decisions is straightforward. As the U.S. Supreme Court has held, “[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principle characteristics by which we distinguish a free nation from a police state.” Houston v. Hill, 482 U.S. 451, 462-63 (1987). Thus, criticism of enforcement officers, profane or otherwise, is not (and cannot under the First Amendment to the Constitution) be a crime.
On June 11, 2014, the ACLU-NH wrote to the Littleton Police Department demanding that all charges be dismissed. Our letter is here. In response to the ACLU-NH’s letter, the State dismissed all charges on June 16, 2014—one day before the scheduled trial. Mr. Kearns, with the ACLU-NH’s assistance, sought civil damages for this violation of his First Amendment rights.
On January 5, 2015, the case was settled, with the Town of Littleton paying a $17,000 settlement and promising to engage in training efforts to protect free speech rights in the future. The settlement agreement is here.
Cooperating Attorney: Leonard D. Harden of Harden Law Offices (for criminal case)