SECTION: Metro; B3
LENGTH: 371 words
BYLINE: By Paul W. Valentine, Washington Post Staff Writer
DATELINE: ANNAPOLIS, Oct. 13, 1982
Court Rules '- - - -' Not Obscene
A closely divided Maryland Court of Appeals ruled today that an age-old
epithet hurled at the Hancock city police chief by an
angry citizen during a 1980 traffic incident was neither obscene, profane nor calculated to incite violence.
Further, the state's highest court suggested that while the epithet
referring to sexual activity could be considered "fighting words"
in some contexts, a police officer should generally be expected to adhere to a higher standard than the average citizen in resisting
reaction to the language.
The 4-to-3 ruling, which revolves around First Amendment issues of free
speech, stemmed from the arrest by Police Chief
Vincent Gavin of Robert Diehl, a passenger in a car Gavin had stopped in Hancock for squealing its tires on Jan. 8, 1980.
According to Gavin, Diehl cursed him loudly, drawing a crowd, after
Diehl got out of the car and Gavin ordered him back into it.
"---- you, Gavin . . . I know my rights . . . You can't tell me what to do," Gavin testified Diehl yelled at him.
Gavin said he then arrested Diehl for "screaming obscenities and. .
. drawing a crowd" and Diehl struggled with him during the
arrest. Diehl was ultimately acquitted of assault but convicted of disorderly conduct and resisting arrest. The court of appeals
today threw out the two convictions.
Much of the ruling turned on whether Diehl's language justified the
arrest. The appeals court noted that the U.S. Supreme Court
has held that simply uttering the first word of the epithet "is not punishable in the absence of compelling reasons."
Diehl's language, "though characterized by Gavin as loud and hostile,
was no more than an emotional and emphatic response to
Gavin's order" to get back into the car, wrote Judge Harry A. Cole for the majority. "It was not a personally abusive epithet
hurled to invoke immediate and violent response."
Also, Cole said, the offending four-letter word was neither profane
-- calculated to be irreverent to "God or holy things" -- nor
obscene -- designed to arouse sexual desire.
Finally, the court majority said Diehl, who was a passenger and not
the driver of the car, had every right to walk away from the
scene and thus was unlawfully detained by Gavin.
Copyright 1982 The Washington Post