The Charleston Gazette
CHARLESTON, W. Va. (AP) -- A Dunbar police officer who ignored a man’s orders to leave his property and then arrested the man after he yelled and cursed at the officer violated the man’s constitutional rights, a federal judge has ruled.
U.S. District Judge Joseph R. Goodwin’s May 13 ruling came in a lawsuit filed in 2002 by Ray Floren of Dunbar against police Sgt. Earl Whittington, the police chief, the mayor and the city.
Goodwin upheld Floren’s claims that Whittington violated his rights to free speech and freedom from unreasonable search and seizure. Goodwin also upheld Floren’s claim that Whittington falsely arrested him in retaliation for cursing the officer.
A trial is scheduled this summer on Floren’s other claims of battery, assault, outrage, malicious prosecution and abuse of process and negligence. Goodwin dismissed the city officials and the city as defendants but said Whittington will remain a defendant because he violated Floren’s First and Fourth Amendment rights.
“The U.S. Supreme Court has made it abundantly clear that individuals have a right to question police officers, even if police officers find the speech that they use to be offensive. Police officers don’t have the right to be censors,” Jason Huber, Floren’s lawyer, said Thursday.
Whittington’s lawyer, Mike Mullins, declined comment because the case is ongoing.
Whittington arrested Floren for disorderly conduct on Sept. 27, 2000. A Kanawha County circuit judge later dismissed the charge on appeal.
Whittington had accompanied Tim Ashley to Floren’s residence at Ashley’s request. Ashley claimed he felt threatened when he called Floren and told him that he wanted to retrieve his welder, which Floren had borrowed from a mutual friend.
When Whittington and Ashley arrived at Floren’s residence, Floren approached the officer’s cruiser and yelled at him, telling Whittington that he could not enter Floren’s property without a warrant.
Whittington got out of his cruiser, stepped onto Floren’s property, and told Floren that he needed to calm down. Floren continued to yell and curse at the officer, telling him to leave, as Ashley retrieved the welder from Floren’s garage. However, Floren did not threaten Ashley, Goodwin’s ruling said.
After Ashley left, Floren again told Whittington to leave his property and the officer “grabbed Floren’s wrists and handcuffed them behind his back,” Goodwin wrote.
Whittington contended that he had probable cause to arrest Floren but Goodwin rejected that argument. The judge said Whittington did not have reason to believe anyone was in danger when he entered Floren’s property.
“From the moment he stepped onto Floren’s property against express orders, Whittington was a trespasser,” Goodwin wrote.
“Crucially, Floren’s first and continuing message to Whittington was, in essence, ‘stay off my property’ and ‘get off my property’ ... this case does not turn on whether a person may rant and rave with impunity if he is on his own property,” Goodwin wrote.
While Floren’s speech was “profane and boisterous,” it was protected by the U.S. Constitution, Goodwin ruled.