Florida Judge: Cops Can Decide What is ‘Obscene’ While Making Arrests

LAKE CITY, Fla. — Florida Judge Marcia Morales Howard ruled this week that the police officers that arrested and charged a local man for “obscenity” over a First Amendment-protected rear window sticker reading “I EAT ASS” are not liable to be sued for the financial and emotional harm they caused the driver because of the controversial doctrine of “qualified immunity.”

Judge Morales Howard decided that the obscenity laws are unclear and that therefore the police had reason to arrest Webb, who invoked his First Amendment rights during the traffic stop, only based on their own notions and interpretations of “obscenity” and “derogatory language.”

In May 2019, 23-year-old northern Florida resident Dillon Webb was arrested by police officers near Lake City, an inland city halfway between Jacksonville and Tallahassee, because he was driving a Chevrolet pickup with an “I EAT ASS” decal on the rear window.

The official police report explicitly said the only reason Webb had been stopped at 5:50 PM while traveling on Highway 90 was because cops had “observed white letters that stated ‘I EAT ASS’” on the back windows and had decided that “this sticker violates Florida State Statute 847.011 (2), which is a second degree misdemeanor.”

The cited statute, also per the police report, criminalizes “possession of obscene material.”

Driver Invoked 1st Amendment During Arrest

The police officers, Deputy English and Corporal Kirby, then confronted Webb and his passenger and, according to him, “Dillon [sic] became  very defensive about the sticker on his truck and stated: ’Their [sic] just words.’”

The police officers then admitted they “asked Dillon how a parent or a small child would explain the meaning of the words ‘I EAT ASS.’ Dillon then told me that it would be up to the parent.”

The cops also readily admitted issuing a citation “due to the derogatory statement on the back of Dillon’s window” and took photos of the sticker to “be placed into evidence at that Columbia County Sheriff’s office.”

After handing Webb the ticket, the cops said they “allowed him to remove on of the letters of from the word ‘ASS’ so that the statement would no longer be derogatory. Dillon refused and informed me he would not remove the sticker because of his First Amendment right.”

The cops proceeded to arrest Webb, place him in his patrol car and had the pickup towed to a yard.

Webb was then booked into the Columbia county jail charged with “obscene writing on vehicles and resisting an officer without violence.”

Charges Dropped, But Harm Inflicted

Within a week, the Florida State Attorney office confirmed that Webb had been correct about his First Amendment rights

“Having evaluated the evidence through the prism of Supreme Court precedent it is determined the Defendant has a valid defense to be raised under the First Amendment of our United States Constitution. Given such, a jury would not convict under these facts,” the Florida State Attorney office confirmed in writing to Webb’s lawyer Andrew Bonderud.

Bonderud told the local press that the arrest was “a joke. We don’t criminalize jokes in this country. It’s not obscenity. It’s protected by the First Amendment. If they don’t like it, they can respond with their own bumper sticker or look the other way.”

But before that, Webb had to pay $2,500 bail, had been suspended from his job without pay, had to pay fees to recover his truck, and was convincingly entitled for compensation for emotional and reputational damage.

So, as attorney Bonderud wrote on Facebook back in May 2019, “now we transition from defense to offense. The First Amendment was our defense. What is Sheriff Hunter’s defense? We will find out!”

Cops’ Get Out of Jail (and Liability) Card: ‘Qualified Immunity’

The Columbia County Sheriff Department, however, had a familiar card up their sleeve: his officers, their lawyers claimed, had “qualified immunity,” and therefore were not liable for the harm they had caused to Webb.

Over two years after the arrest, a Florida district court judge has now decided that “the law is unclear enough” about obscenity, “that a police officer was entitled to qualified immunity based on his arresting a man for the sticker,” reports noted legal analyst Eugene Volokh of The Volokh Report.

According to Volokh, and most legal scholar, the sticker “wasn’t obscene under the Florida statute, which tracks the Supreme-Court-approved definition of obscenity: “Obscene means the status of material which: the average person, applying contemporary community standards, would find, taken as a whole, appeals to the prurient interest; depicts or describes, in a patently offensive way, sexual conduct as specifically defined herein; and taken as a whole, lacks serious literary, artistic, political, or scientific value.”

To be obscene, Volokh added,  an expression “must be, in some significant way, erotic, and must tend to arouse lustful thoughts or sexual responses and not just refer to sexual acts. Hard-core pornography might be obscene, especially if displayed in public; but this sort of vulgar verbal reference to a sexual act is far from hard-core pornography.”

Cops Can Decide What’s ‘Obscene,’ to Be Sorted Out Later at Defendant’s Expense

This week Judge Morales Howard ruled that “Deputy English and Corporal Kirby subjectively interpreted the Sticker as depicting a sexual act and believed that the Sticker violated Florida’s obscenity statute. While Webb denies the Sticker was in fact obscene, in interviews he repeatedly acknowledged the sexual nature of his Sticker, albeit couched as an attempt at humor, showing that the notion that an erotic message was more than hypothetical—it could reasonably be viewed as the predominant message being communicated.”

Indeed, the judge continued, “others in the videos similarly acknowledged, both directly and indirectly, that the Sticker described a sexual act. Given this evidence, including Webb’s own statements, it is beyond dispute that reasonable officers possessing the same knowledge as Deputy English and Corporal Kirby could have thought the Sticker depicted a sexual act, and as such [was arguably obscene].”

“Deputy English and Corporal Kirby’s determination that the Sticker lacked serious value under Florida law was not inherently unreasonable under the circumstances,” the judge also decided. “As such, the Court finds reasonable officers in the same circumstances and with the same knowledge as Deputy English and Corporal Kirby could believe Webb’s Sticker was obscene, making it an arrestable offense under Florida law.”

Legally Untrained Cops With Moralistic Biases

First Amendment expert and adult industry attorney Lawrence Walters, from the Walters Law Group told XBIZ that Judge Morales Howard’s decision “illustrates the inherent problem with the qualified immunity defense. Law enforcement officers cannot be held liable for violating the constitution unless there is binding precedent (here, from the Eleventh Circuit or U.S. Supreme Court) that holds this kind of bumper sticker to be not obscene. Since no such case has been decided, the officer is let off the hook on qualified immunity.”

When the issue comes down to obscenity, Walters continued “there will rarely be a case with facts similar enough to make the violation of the First Amendment ‘clearly established’ as required to impose liability under civil rights statutes. This is particularly true now, since obscenity charges are rare — leaving the legal status of most content undetermined.”

Walters told XBIZ his firm had handled a similar case years ago in Florida involving a bumper sticker that read “Fuck You, You Fucking Fuck.”

“We got the criminal charges dismissed, but in the federal lawsuit against the officer, the court found that qualified immunity protected him since it was not clearly established that the words were not obscene,” Walters explained.

“Until Congress does something to fix the qualified immunity defense, which the courts created from whole cloth, it will be difficult to punish law enforcement officers who violate First Amendment rights based on bogus obscenity charges,” Walters said. “In our experience, most police officers have no training in obscenity law or the Miller Test, which exacerbates the problem.”

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