EDITORIAL
By Robert Phillips  
Deputy District Attorney (ret.)  

I’ve been preaching for years that law enforcement officers must have a thick skin in those circumstances where a citizen is openly critical of an officer while that officer is attempting to perform his or her duties, so long as that person doesn’t physically interfere with the officer to the point where Pen. Code § 148(a)(1) is violated. (I.e. “...willfully resist(ing), delay(ing), or obstruct(ing) any public officer, peace officer...in the discharge or attempt to discharge any duty of his or her office or employment.”) But somehow, not everyone has gotten the word.  

Take for instance San Diego’s Municipal Code § 56.27, where the powers-that-be enacted this ordinance and determined: 

"That it shall be and is hereby declared to be unlawful for any person to be guilty of any offensive or disorderly conduct in or upon any of the streets, alleys, sidewalks, squares, parks, or in any store, or other public place in said city, and it shall be unlawful for any person to make any loud noise, or disturbance, or use any loud, noisy, boisterous, vulgar, or indecent language on any of the streets, alleys, sidewalks, square, park, or in any store or other public place in said city.”  

Well, along comes a San Diego park ranger who used this ordinance in citing William Dorsett when Dorsett had the audacity to criticize (while videotaping, which he also had the legal right to do – an issue not discussed here.) the ranger who, at the time, was issuing a citation to a different individual. Dorsett then challenged his ticket in court, only to be found guilty in a bench trial by a judge who apparently also doesn’t read the California Legal Update (or, possibly, the issue was never raised by the attorneys during the trial). Dorsett filed a timely notice of appeal, resulting in the Appellate Department of the Superior Court’s published decision overturning Dorsett’s conviction. (See People v. Dorsett (May 24, 2024) 2024 Cal.App. LEXIS 492.) 

The issue in this appeal was whether Dorsett had a First Amendment free speech right to openly criticize the officer as the officer was citing another individual. Without providing any legal analysis on the issue, the court simply ruled that Dorsett’s conduct was in fact protected by the?First Amendment of the U.S. Constitution, holding that “(t)he freedom to speak without risking arrest is ‘one of the principal characteristics by which we distinguish a free nation.’” (Quoting City of Houston, Texas v. Hill?(1987) 482 U.S. 451, 463.)  

In a much more helpful concurring opinion, Judge Frank L. Birchak suggested that they go out on the limb and simply declare San Diego’s Municipal Code § 56.27 to be unconstitutional, as a violation of the First Amendment. Noting that the U.S. Supreme Court declared in City of Houston that the very similar Houston ordinance was unconstitutional, based upon the court’s conclusion that it was “overly broad” and “not narrowly tailored to prohibit only disorderly conduct or fighting words,” and that it “criminalized a substantial amount of protected speech,” Judge Birchak submitted that the San Diego ordinance at issue here should meet the same fate.  

As noted, a statute such as Municipal Code § 56.27 is constitutional only if it is “limited to language demonstrating a clear and present danger of violence or when it is intended to disturb.” If it is not so limited and can be used to penalize free speech such as by criminally charging a person for simply criticizing the actions of a law enforcement officer, then it violates the First Amendment and is unenforceable.  

What law enforcement officers, attorneys and judges need to glean from this decision is that it is a violation of the First Amendment to arrest or cite someone merely because that person is openly criticizing a law enforcement officer’s actions, even as that officer is in the process of arresting or citing someone at the time. This has been the rule for many years and will continue to be so until the First Amendment is repealed; hopefully not in our lifetime.