Petition for Writ of Certiorari — Larkin v. Johnson

(~) Suprema Court, U.S.

SY FILED

No, 1 981 DEC 2 6 200k

GFAGE OF Trt Ce

In The

Supreme Court of the United States

WARD S. LARKIN,

Petitioner,

VS.

MICHAEL JOHNSON and COMPUSA, Inc.,

Respondents.

On Petition For Writ Of Certiorari

To the Texas Court Of Appeals For The

Four:centh Judicial District Of Texas

PETITION FOR WRIT OF CERTIORARI

Warp LARKIN

15327 Pebble Bend Drive

Houston, TX 77068-1839

Tel.: 281-444-3840

Fax: 281-895-9939

Pro Se Petitioner

QUESTION PRESENTED

While off-duty working as a security guard for

Respondent CompUSA, Inc., Respondent Harris County

Deputy Sheriff Michael Johnson arrested Petitioner Ward

S. Larkin. Larkin sued Respondents for damages alleging

false arrest, false imprisonment, battery, malicious pros-

ecution, and intentional infliction of emotional distress.

The Texas courts granted Respondents summary judg-

ment from trial on the grounds that Johnson acted as a

Texas peace officer when he arrested Larkin, and that he

was entitled to qualified official immunity. The question

is whether the Texas courts misapplied the Fighting

Words Doctrine from Chaplinsky v. New Hampshire, 315

U.S. 568 (1942), and related U.S. Supreme Court deci-

sions, by holding that “What the hell are you doing?” are

fighting words.

TABLE OF CONTENTS

Page

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Fee OE Gia ov. c:k Kiran eRe aeecadiies > cone ii

Teen Ge PIII 5 dsc co's Seed evewenaicrgieeessans iii

Citation of Lower Court CE v.90. vedere ddnees 1

i 8. . ry ee e e n 1

Constitutional Provisions Involved................. 2

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Seay OF APGMTATN 5.4 5 Ski ka ENO 8

RIOR oo. ci cbivcnseessecunsuncenyeheeess ianaes 9

1. “What the hell are you doing?” are not fighting

WORD 0.0 0.k0'0- 66 bes kaisaans eabek eae eeeer aes 12

2. Respondent Deputy Johnson did not have rea-

sonable suspicion under the Fourth Amend-

ment to detain Petitioner Larkin for disorderly

ee Pree ere Pyre i eo So ey 16

3. Respondent Deputy Johnson did not have

probable cause under the Fourth Amendment

to arrest Petitioner Larkin for disorderly con-

duct or evading detention ................... 20

4. Respondent Deputy Johnson was not entitled

to Qualified Official Immunity ............... 22

5. Summary Judgment was granted Respondent

Deputy Johnson and Respondent CompUSA in

CUE ove ccctvcvsvasedeee des tend danenunceuses 26

Cot 6 oc kad kd cana decleeeeeeeeee 27

ill

TABLE OF AUTHORITIES

Page

Cases

Alabama v. White, 496 U.S. 325 (1990)................ 20

Brown v. Texas, 443 U.S. 47 (1979)............ 17, 20, 21

BSA v. Dale, 530 U.S. 640 (2000) ............. cee eeee 11

Cantwell v. Connecticut, 310 U.S. 296 (1940)....... 12, 13

City of Lancaster v. Chambers, 883 S.W.2d 650 (Tex.

NU FEV UNERS MA ne honor SON eeee sis verses 10, 22, 23

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)

Sb Uhh naGabe eee we dé pee eis dneevncses 3, 7, 8, 12, 13, 18

Cohen v. California, 403 U.S. 15 (1971) ............ 12, 13

Dunaway v. New York, 442 U.S. 200 (1979) ........... 21

Duran v. Furr’s Supermarkets, Inc., 921 S.W.2d 778

(Tex. App. — El Paso 1996, writ denied)..... 8, 18, 21

Florida v. Royer, 460 U.S. 491 (1983) .............. 17, 22

Gooding v. Wilson, 405 U.S. 518 (1972)........ 5, 7, 8, 12

Insurance Co. of North America v. Security Ins. Co.,

790 S.W.2d 407 (Tex. App. - Houston [1st Dist.]

EE NGL Ch NbN Weddwkw rev ebes vwonec cess 23

Hill v. City of Houston, 482 U.S. 451 (1987)....... 13, 18

Hurley v. Irish-American Gay, Lesbian and Bisexual

Group of Boston, Inc., 515 U.S. 557 (1995).......... 11

Jimmerson v. State, 561 S.W.2d 5 (Tex. Crim. App.

DE Mbabane ee Sade uA 48405 bauald 040.05 600s oop ue sees 6

Larkin v. Johnson, 44 S.W.3d 188 (Tex. App. -

Houston [14th Dist.] 2001, pet. denied) ............ 1

Lamar v. Banks, 684 F.2d 714 (11th Cir. 1982) ........ 15

iv

TABLE OF AUTHORITIES - Continued

rage

Leake v. Half Price Books, Records, Magazines, Inc.,

918 S.W.2d 559 (Tex. App. - Dallas 1996, no

OREGRe en meer mea Pa ye, SLA tre AK Se Rene ee 27

Lewis v. City of New Orleans, 415 U.S. 130 (1974)....13, 15

New York Times Co. v. Sullivan, 376 U.S. 254 (1964) .... 11

Nixon v. Mr. Property Management Co., 690 S.W.2d

Pe Ss Eo bi 5.600 ia 5 Hee kqaresasivasesyres 9, 26

Pennsylvania v. Hock, 556 Pa. 409 (Pa. 1999) ...... 14, 15

Plexchem International, Inc. v. Harris County

Appraisal District, 922 S.W.2d 930 (Tex. 1996)...... 10

Post v. City of Fort Lauderdale, 7 F.3d 1552 (11th Cir.

ee Een tm ey ea Cnr aes a me Poe 10

Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d

Ge Se SUE 55 644 so ein capecesercencdsaeekasekas 26

Ross v. State, 802 S.W.2d 308 (Tex. App. - Dallas

ROU WO GD oi kc cncWrennkeeis eke sieenstes 18, 21

Srey OCR, FOE WB. F Cin a sicncckceicensiks 17

Texas v. Rivenburgh, 933 S.W.2d 698 (Tex. App. -

Sam Abani TIER, WH WORD 55 os sn ceca s ca cccneesas 17

Wadewitz v. Montgomery, 951 S.W.2d 464 (Tex.

Dg Re ere i ee Ney Bip mere eer y eee 24

Whren v. United States, 517 U.S. 806 (1996) .......... 17

Woods v. State, 213 S.W.2d 685 (Tex. Crim. App.

BOOED. & 60 3:05 0k eA oka od kate as beeen kane a eee 8

Vv

TABLE OF AUTHORITIES - Continued

Page

STATUTES AND RULES

Tex. Cope Crim. Proc. Ann. art. 14.01(b) (West

SO a ds ihe nk cack do hd nae Ak oee bbe i eax 21

Tex. Penal Code Ann., § 9.41(a) (West 1995) .......... 15

Tex. Penal Code Ann., § 28.03(a)(3) (West 1995)....... 15

Tex. Penal Code Ann., § 38.04(a) (West 1995) ..... passim

Tex. Penal Code Ann., § 42.01(a)(1) (West 1995)... passim

pe se re 24

Be gs a5 8 oa ARES 1

CONSTITUTIONAL PROVISIONS

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Back ea IIE Bg in wih 5d cede yi ones scenes 2, 16, 20

Caw Ce, GN MEV, © Do. occ cccce ces a % 11,23

OTHER AUTHORITIES

American Heritage Dictionary of the English Lan-

Po Ae eee rere 16

L. Carroll, Alice’s Adventures in Wonderland,

Candlewick Press (1999) .. 2... cc ccc cece cccccces 10, 11

Op. Tex. Atty. Gen., JM-900 (1988).................. 2

CITATION OF LOWER COURT OPINION

Larkin v. Johnson, 44 S.W.3d 188 (Tex. App. - Houston

[14th Dist.) 2001, pet. denied) [App. 1-5]

7

BASIS FOR JURISDICTION

Pursuant to 28 U.S.C. § 1257(a), the Supreme Court

has jurisdiction of this matter because Petitioner seeks

enforcement of his rights and privileges under the Con-

stitution of the United States of America. Review on a

writ of certiorari is appropriate because the Texas court of

appeals has decided an important federal question in a

way that conflicts with relevant decisions by this Court.

This petition is filed within 90 days after the Texas

Supreme Court’s September 27, 2001 decision overruling

Petitioner’s motion for rehearing from denial of petition

for review. [App. 12]

The 133rd Texas District Court granted final sum-

mary judgment on April 9, 1998 [App. 7 and App. 8], and

denied Petitioner’s motion for new trial on June 15, 1998.

[App. 14] The 14th Texas Court of Appeals rendered

judgment [App. 6] and issued an opinion [App. 1-5] on

March 22, 2001. The court of appeals overruled Peti-

tioner’s motion for rehearing on April 26, 2001. [App. 9]

The Supreme Court of Texas denied Petitioner’s Petition

for Review on August 9, 2001 [App. 10-11], and denied

his motion for rehearing on September 27, 2001. [App. 12]

+

CONSTITUTIONAL PROVISIONS INVOLVED

1. U.S. Const., amend I:

Congress shall make no law ... abridging the

freedom of speech,

2. U.S. Const., amend. IV:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirma-

tion, and particularly describing the place to be

searched, and the persons or things to be seized.

3. U.S. Const., amend. XIV, § 1:

. . . No State shall make or enforce any law

which shall abridge the privileges or immunities

of citizens of the United States; nor shall any

State deprive any person of life, liberty, or prop-

erty, without due process of law; nor deny to

any person within its jurisdiction the equal pro-

tection of the laws.

STATEMENT OF THE CASE

On September 17, 1996 at approximately 7:30 p.m.,

Petitioner Ward Larkin went to Respondent CompUSA’s

store at 330 F.M. Road 1960 in Harris County, Texas to

buy a mouse for his computer. After he paid for the item

the checkout clerk told him to show his receipt to the man

at the door. (Trial Clerk’s Record (CR) Page 199.) This was

Michael Johnson, a uniformed off-duty Harris County

deputy sheriff working for CompUSA as a security guard

with the approval of the Harris County Sheriff's Depart-

ment. (CR 162, 165) Johnson was stationed inside the

store a few feet from the exit. (CR 168) His job was to stop

each customer leaving the store to make sure that his or

her receipt matched the purchased merchandise. (CR 164)

Larkin walked up to Johnson and held his receipt up

just below Johnson’s eye level. (CR 199) Johnson did not

identify himself, ask to see Larkin’s receipt, or ask to see

Larkin’s purchase.! (CR 211) Without consent Johnson

tried to take Larkin’s receipt. Simultaneously, and also

without consent, Johnson marked on the receipt with a

highlighter pen. Surprised, Larkin pulled the receipt

away from Johnson, took a step back and asked, “What

the hell are you doing?” (CR 199) Larkin’s tone of voice

was Slightly louder than conversational. (CR 214) Johnson

testified in his deposition that neither he nor anyone else

in the store was incited to breaching the peace. (CR 177)

After Johnson forcibly marked on and tried to take

Larkin’s receipt, Johnson politely explained that he was

checking the receipts to prevent theft. Larkin said “Oh,

OK”, then turned from Johnson and walked to the exit.

Larkin entered the vestibule to CompUSA’s store when

Johnson called from behind: “What did you say back

there? Do you know that it’s against the law to use foul

and abusive language with a peace officer?”2 Larkin

1 Johnson claims that he did ask permission to see Larkin’s

receipt. (CR 152)

2 There is no Texas statute that expressly prohibits foul and

abusive language with a peace officer, and Johnson admitted in

deposition that he knows there is no such law. (CR 171)

stopped in the vestibule, turned and faced Johnson. John-

son had also entered the vestibule. Larkin explained that

he was surprised by and didn’t understand why Johnson

marked on and tried to take his receipt. Then Larkin said,

“You marked my receipt. Everything’s OK. I’m in a hurry.

I've got to go.” Larkin turned and walked outside onto

the sidewalk. Johnson again called Larkin from behind.

Larkin stopped on the sidewalk, turned and faced John-

son. Johnson had followed Larkin onto the sidewalk.

Johnson identified himself as a Harris County deputy

sheriff, and Larkin said, “I’m in a hurry. I’ve got to go.”

Larkin turned and walked about 20 feet into the parking

lot. Johnson stayed on the sidewalk. Johnson called

Larkin again: “I’m a Harris County deputy sheriff, and I

order you to come back here.” Larkin stopped, turned,

faced Johnson and said, “If you want me to stay here,

then you will have to arrest me.” Larkin turned and

walked away. When Larkin reached his car Johnson

arrested him, stating “you are under arrest for using foul

and abusive language with a peace officer and for evad-

ing detention.” Larkin was handcuffed and escorted back

into CompUSA to an office in the back of the store where

Johnson telephoned the Harris County Sheriff’s Depart-

ment. (This whole paragraph is from CR 26v-201.)

Larkin was transported to the Harris County Jail and

was held in custody until the next morning when he

appeared before a magistrate. Larkin was charged with

the offense of evading detention under Tex. Penal Code

Ann., 38.04(a) (“a person commits an offense if he inten- °

tionally flees from a person he knows is a peace officer

attempting lawfully to arrest or detain him.”) Bond was

set at $500, posted and Larkin was released. (CR 201-2)

On September 25, 1996, at his initial appearance before

the Harris County Criminal Court at Law No. 6, the

charges against Larkin were dismissed for insufficient

evidence. (CR 4)

Represented by counsel, Larkin filed suit in the 133rd

Texas State District Court afiinst CompUSA, Inc. and

Michael Johnson alleging “false arrest, false imprison-

ment, battery, malicious prosecution, and intentional

infliction of emotional distress.” (CR 3) In Larkin’s

response to Johnson and CompUSA’s motions for sum-

mary judgment Larkin raised the federal question of

Freedom of Speech under the Fighting Words Doctrine.

Whether particular words are fighting words is

a question of fact. Chaplinsky v. New Hampshire,

315 U.S. 568, 573, 62 S.Ct. 766, 770, 86 L.Ed. 1031

(1942); Op. Tex. Arry. Gen., JM-900 (1988) [See

App. 15-18]. The test is what a person of com-

mon intelligence would understand to be words

likely to cause an average addressee to fight.

Gooding v. Wilson, 405 U.S. 581 (sic), 523, 92 S.Ct.

1103, 1106, 31 L.Ed.2d 408 (1972); Op. Tex. Arry.

Gen., JM-900. [See App. 15-18] Speech punish-

able under [Tex. Penal Code Ann.] Section 42.01

does not include language that is merely harsh

and insulting. Gooding, 504 (sic) U.S. at 525, 92

S.Ct. at 1107. Derisive and annoying words can

be taken as coming within the purview of the

statute only when they have this characteristic

of plainly tending to excite the addressee to a

breach of the peace. Gooding, 504 (sic) U.S. at

522, 92 S.Ct. at 1106. (CR 223)

Larkin also raised the specific issue of his right to

Freedom of Speech: “[w]hether Plaintiff committed the

crime of disorderly conduct or was exercising his right to

Free Speech is a fact question in dispute.” (CR 228)

The district court granted summary judgment to

CompUSA [App. 7] and Johnson. [App. 8] Judgment

became final on April 9, 1998. Represented by the same

counsel, Larkin filed a timely motion for a new trial,

raising the exact same Fighting Words Doctrine argu-

ment. Larkin also made clear that the Texas courts have

ruled that “Tex. Penal Code Ann. § 42.01(a)(1) ... applies

only to ‘fighting words’ which by their very utterance

tend to incite an immediate breach of the peace. Jimmer-

son v. State, 561 S.W.2d 5, 7 (Tex. Crim. App. 1978).” (CR

262-63) The district court denied Larkin’s motion for a

new trial on June 15, 1998. [App. 14]

Represented by the same counsel as at trial court,

Larkin filed an appeal to the 14th Texas Court of Appeals.

Larkin was allowed to file this appeal out-of-time. Larkin

raised word-for-word the same Fighting Words Doctrine

argument as he did at trial court in his response to

Respondents’ motions for summary judgment. On March

22, 2001 the court of appeals denied Larkin’s appeal,

affirming judgment of the trial court, [App. 6] and issued

its opinion. [App. 1-5] The court of appeals acknowl-

edged that Larkin had made a Freedom of Speech claim -

“Larkin contends summary judgment was unwarranted

because Johnson maliciously arrested him for what

Larkin said as he left the CompUSA store where the

deputy worked an off-duty job.” [App. 1] - but the court

of appeals did not otherwise address it.

Acting on his own behalf, Larkin filed a timely

motion for rehearing with the court of appeals, and

7

argued that the court did not properly apply the analysis

of this Court’s ruling in Chaplinsky v. New Hampshire, 315

U.S. 568 (1942) or Gooding v. Wilson, 405 U.S. 518 (1972).

The court did not properly measure [Larkin’s]

conduct against the accepted standard objective

reasonableness of landmark U.S. Supreme Court

cases Chaplinsky v. New Hampshire, 315 U.S. 568,

and Gooding [v. Wilson, 405 U.S. 518 (1972)], and

Texas Attorney General Opinion No. JM-900.

[App. 15-18] Against these accepted objective

standards of what conduct constitutes disor-

derly conduct under Penal Code 42.01(a)(1), say-

ing “What the hell are you doing?” in a slightly

louder than conversational tone of voice doesn’t

even register a blip on the meter. (Larkin’s

Motion for Rehearing, pg. 6)

The court of appeals overruled Larkin’s motion for

rehearing on Apri: 26, 2001. [App. 9] Acting on his own

behalf, Larkin filed a timely Petition for Review with the

Supreme Court of Texas, arguing that the lower courts

misapplied this Court’s ruling in Chaplinsky v. New Hamp-

shire, 315 U.S. 568 (1942) and Gooding v. Wilson, 405 U.S.

518 (1972).

To support his argument that “What the hell are

you doing?” is not language which violates Dis-

orderly Conduct, Larkin uses the objective legal

reasonableness of Chaplinsky v. New Hampshire,

315 U.S. 568 (1942), Gooding v. Wilson, 405 U.S.

518 (1972) and Texas Attorney General Opinion

JM-900. [See App. 15-18]. (Larkin’s Petition for

Review, pg. 3)

and,

8

Texas courts have uniformly held that TPC [Tex.

Penal Code Ann.,] § 42.01(a)(1) applies to “fight-

ing words”, words that “by their very utterance

tend to incite an immediate breach of the

peace.” Duran v. Furr’s Supermarkets, Inc., 921

S.W.2d 778, 785 (Tex. App. — El Paso 1996, wiit

denied) citing Chaplinksy v. New Hampshire, 315

U.S. 568. The concept of “breach of the peace”

includes actual or threatened violence as an

essential element, Woods v. State, 152 Tex. Crim.

338, 213 S.W.2d 685, 687 (Tex. Crim. App. 1948).

Speech that is merely harsh and insulting is not

punishable. Gooding v. Wilson, 405 U.S. 518, 525

(1972). (Larkin’s Petition for Review, pg. 7)

The Supreme Court of Texas denied Larkin’s Petition

for Review on August 9, 2001. [App. 10-11] Acting on his

own behalf, Larkin filed a timely motion for rehearing.

The Supreme Court of Texas denied Larkin’s motion for

rehearing on September 27, 2001. [App. 12-13]

.

vy

SUMMARY OF ARGUMENT

Instead of applying the analysis mandated by this

Court’s precedents on fighting words, the Texas court of

appeals ignored them. The opinion of the Texas court of

appeals did not address the Fighting Words Doctrine

whatsoever. By affirming summary judgment the Texas

court of appeals held, by default, that Johnson had proba-

ble cause to arrest Larkin, reasonable suspicion to detain

him, and, because Johnson offered no other objective

justification for Larkin’s detention, that “What the hell

are you doing?” is criminal activity, specifically fighting

words.

This case turns on whether “What the hell are you

doing?” are fighting words. It is the central, supporting

and cohesive element of this whole case. For if “What the

hell are you doing?” are not fighting words, then the

subsequent conclusions of law and judgments of law

topple one after the other. Specifically, “What the hell are

you doing?” are not fighting words; so there’s no reason-

able suspicion to detain Larkin for disorderly conduct; so

there’s no probable cause to arrest Larkin for evading

detention; so Johnson didn’t act in good faith when he

arrested Larkin; so Johnson wasn’t entitled to qualified

official immunity; and finally the Texas trial court was in

error to grant Johnson, and consequently CompUSA,

summary judgment from Larkin’s suit for damages.

Larkin’s Constitutional right to equal protection of the

laws was violated, and in turn he was deprived of his day

in court.

¢

ARGUMENT

This is an appeal from summary judgment. In

reviewing summary judgment the Texas courts must take

all evidence favorable to the non-movant (Larkin) as true,

resolving all doubts and indulging all reasonable infer-

ences in the non-movant’s favor. Nixon v. Mr. Property

Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). More

importantly, the Texas court of appeals doesn’t address

the elements of Larkin’s arrest. There’s no analysis of

fighting words, disorderly conduct, or evading detention,

even though Larkin raised each of those issues at every

level with the Texas courts. In fact, its opinion doesn’t

even mention the crime for which Larkin was arrested:

10

“As Larkin started to get in his car, Johnson arrested

him.” Larkin’s sole issue on appeal before the 14th Texas

Court of Appeals was that “the trial court erred in grant-

ing summary judgment for both defendants”. The

Supreme Court of Texas has ruled that such language

preserves all possible grounds upon which summary

judgment should have been denied. See Plexchem Interna-

tional, Inc. v. Harris County Appraisal District, 922 S.W.2d

930, 930-31 (Tex. 1996).

It appears that the justification by the Texas court of

appeals for its silence on the issues of fighting words,

disorderly conduct, and evading detention is provided by

the second to last sentence of its opinion: “[The doctrine

of qualified governmental immunity] renders facts relat-

ing only to the substantive causes of action immaterial.”

But one of the tests on qualified governmental immunity

is objective legal reasonableness. City of Lancaster v. Cham-

bers, 883 S.W.2d 650, 657 (Tex. 1994) (quoting Post v. City

of Fort Lauderdale, 7 F.3d 1552, 1557 (11th Cir. 1993),

regarding the standard of review for objective legal rea-

sonableness: the plaintiff must produce evidence that “no

reasonable person in the defendant’s position could have

thought the facts were such that they justified the defen-

dant’s acts.”)

The Texas court of appeals’ refusal to reveal its rea-

soning confuses and frustrates Larkin much the way the

Cheshire Cat did Alice when she asked for directions in

Wonderland.

“In THAT direction,” the Cat said, waving

its right paw around, “lives a Hatter: and in

THAT direction,” waving the other paw, “lives a

11

March Hare. Visit either you like: they’re both

mad.”

“But I don’t want to go among mad peo-

ple,” Alice remarked.

“Oh you can’t help that,” said the Cat:

“we're all mad here. I’m mad. You’re mad.”

“How do you know that I’m mad?” said

Alice.

“You must be,” said the Cat, “or you

wouldn’t have come here.”

Alice didn’t think that proved it at all ....

(L. Carroll, Alice’s Adventures in Wonder-

land, p. 104, Candlewick Press, 1999).

Exactly, that didn’t prove it at all, for the question

Larkin presents to this Court is one of First Amendment

Freedom of Speech, applicable to the State of Texas by the

Fourteenth Amendment. This case involves conclusions

of law that are implicitly inseparable from the findings of

fact. Thus, the U.S. Supreme Court must “independently

review the factual record to ensure that the state court’s

judgment does not unlawfully intrude on free expression.

See Hurley v. Irish-American Gay, Lesbian and Bisexual

Group of Boston, Inc., 515 U.S. 557 at 567-568 (1995).” BSA

v. Dale, 530 U.S. 640, 648 (2000). The U.S. Supreme Court

must assure itself that the judgment of the Texas court of

appeals “does not constitute a forbidden intrusion on the

field of free expression.” New York Times Co. v. Sullivan,

376 U.S. 254, 285 (1964).

12

1. “What the hell are you doing?” are not fighting

words.

“There are certain well-defined and narrowly limited

classes of speech, the prevention and punishment of

which have never been thought to raise any Constitu-

tional problem. These include ... ‘fighting’ words -

those which by their very utterance inflict injury or tend

to incite an immediate breach of the peace... . ‘Resort to

epithets or personal abuse is not in any proper sense

communication of information or opinion safeguarded by

the Constitution, and its punishment as a criminal act

would raise no question under that instrument.’ Cantwell

v. Connecticut, 310 U.S. 296, 309-310.” Chaplinisky v. New

Hampshire, 315 U.S. 568, 571-72 (1942).

“a

Fighting words are “ ‘what men of common intel-

ligence would understand would be words likely to cause

an average addressee to fight. . .. Derisive and annoying

words can be taken as coming within the purview of the

statute . . . only when they have this characteristic of

plainly tending to excite the addressee to a breach of the

peace..... ’ 91 N. H. 310, 313, 320-321, 18 A. 2d 754, 758,

762 (1941).” Gooding v. Wilson, 405 U.S. 518, 523 (1972).

“ ‘The statute, as construed, does no more than pro-

hibit the face-to-face words plainly likely to cause a

breach of the peace by the addressee... .’” Id.

Proscribed speech must be “personally abusive

epithets which, when addressed to the ordinary citizen,

are, as a matter of common knowledge, inherently likely

to provoke violent reaction.” Cohen v. California, 403 U.S.

15, 20. Additionally, the offensive words must be

13

“directed to the person of the hearer.” Id., quoting Cant-

well v. Connecticut, 310 U.S. 296, 309 (1940).

In sum, to be fighting words the expression spoken

must (1) constitute a personally abusive epithet (2)

addressed in a face-to-face manner (3) directly to the

person of the hearer and, (4) as a matter of common

knowledge, be inherently likely to provoke an immediate

violent response by an average addressee. If any of these

elements is missing, then the Fighting Words Doctrine

doesn’t apply for the purpose of punishing that expres-

sion.

Because this case also involves speech directed to a

police officer, Hill v. City of Houston, 482 U.S. 451, 462

(1987), is especially important:

“Moreover, in a concurring opinion in Lewis [v.

City of New Orleans, 415 U.S. 130 (1974)], JUS-

TICE POWELL suggested that even the “fight-

ing words” exception recognized in Chaplinsky v.

New Hampshire, 315 U.S. 568 (1942), might

require a narrower application in cases involv-

ing words addressed to a police officer, because

“a properly trained officer may reasonably be

expected to ‘exercise a higher degree of

restraint’ than the average citizen, and thus be

less likely to respond belligerently to ‘fighting

words.’ ” 415 U.S. at 135.”

Regarding the facts of this case, Larkin did speak

directly to Johnson in a face-to-face manner, but those are

the only elements of fighting words that Larkin’s “what

the hell are you doing?” utterance met. “What the hell are

you doing?” does not constitute a personally abusive

epithet, nor is it language that is inherently likely to

14

cause an immediate violent response, particularly from a

properly trained police officer. Larkin asked one single

question to Johnson, acknowledged Johnson’s answer,

then walked away. Larkin was not hurling abuse at John-

son in a persistent manner. The Supreme Court of Penn-

sylvania held in Pennsylvania v. Hock, 556 Pa. 409, 416 (Pa.

1999), that a single profane remark (specifically, “F

you, a .”) spoken in a normal tone of voice

directed to a police officer does not constitute fighting

words.

In many ways Pennsylvania v. Hock, 556 Pa. 409 (Pa.

1999) is similar to this case. Ms. Hock was questioned by

a police officer on suspicion of a traffic violation. She

made her profane remark as she walked away from the

officer. The officer pursued Ms. Hock and advised her

that she was under arrest for disorderly conduct. The

disorderly conduct statute in Pennsylvania is also based

on the Fighting Words Doctrine. As the officer placed

handcuffs on Ms. Hock, she shouted protestations and

then kicked the officer several times. Hock was charged

with disorderly conduct and resisting arrest. The

Supreme Court of Pennsylvania held that Ms. Hock’s

remark didn’t constitute fighting words,.therefore the

officer didn’t have probable cause to arrest her. Also,

since Ms. Hock wasn’t lawfully under arrest, she couldn’t

have committed the offense of resisting arrest.

Especially compelling is the Supreme Court of Penn-

sylvania’s caution against police abuse of the disorderly

conduct statute:

“Moreover, the offense of disorderly conduct is

not intended as a catchall for every act which

annoys or disturbs people; it is not to be used as

a dragnet for all the irritations which breed in

15

the ferment of a community. It has a specific

purpose; it has a definite objective, it is intended

to preserve the public peace; it has thus a lim-

ited periphery beyond which the prosecuting

authorities have no right to transgress any more

than the alleged criminal has the right to oper-

ate within its clearly outlined circumference.”

Pennsylvania v. Hock, 556 Pa. 409, 418 (Pa. 1999).

In deciding whether words are fighting words, “the

circumstances surrounding the words can be crucial, for

only against the background of surrounding events can a

judgment be made whether [the] words had ‘a direct

tendency to cause acts of violence’ by [the addressee].”

Lamar v. Banks, 684 F.2d 714, 719 (11th Cir. 1982). Also, see

Lewis v. City of New Orleans, 415 U.S. 130, 135 (1974)

(Powell, J., concurring) (observing that “words may or

may not be ‘fighting words’ depending upon the circum-

stances of their utterance”).

Johnson had just forcibly marked on and tried to take

Larkin’s receipt. Larkin had the right to protect his prop-

erty under Tex. Penal Code Ann. § 9.41(a): “A person in

lawful possession of ... tangible, movable property is

justified in using force against another to the degree the

actor reasonably believes that the force is immediately

necessary to ... terminate the other’s ... unlawful

interference with the property.” Larkin was also pro-

tected from Johnson marking on his receipt without con-

sent. Tex. Penal Code Ann. § 28.03(a)(3) provides that “a

person commits an offense if, without the effective con-

sent of the owner, he intentionally or knowingly makes

markings ... on the tangible property of the owner.”

Additionally, the Texas court of appeals appears to say

that Larkin was in the wrong for not freely releasing his

16

receipt: “Johnson was marking receipts at CompUSA as a

security guard when Larkin, a customer leaving with

merchandise, resisted releasing his receipt.” [App. 1-2]

Possibly some find the word “hell” offensive. How-

ever, as Larkin used it, the American Heritage Dictionary

of the English Language, Third Edition, 1992 defines

“hell” as “Informal, Used as an intensive”. This is word-

for-word synonymous with such innocent words and

terms as “devil”, “deuce”, “dickens” and “in the world”.

Not even the most grammatically squeamish would find

“What in the world are you doing?” personally abusive,

by its very utterance likely to cause an immediate violent

response. Synonymously, only the supersensitive would

find “What the hell are you doing?” personally abusive,

likely to cause an immediate violent“ response by the

average addressee. “What the hell are you doing?” spo-

ken in the circumstances in which Larkin uttered it, are

not fighting words.

2. Respondent Deputy Johnson did not have reason-

able suspicion under the Fourth Amendment to

detain Petitioner Larkin for disorderly conduct.

There are two ways to examine this issue. Either the

issue is moot because the proper standard of review is

whether Johnson had probable cause to arrest Larkin

without a warrant, or, if reasonable suspicion is the

proper standard of review, then whether Johnson had

sufficient objective reasonableness for an investigative

stop on suspicion of disorderly conduct.

One, Johnson testified in deposition (CR 177) and on

affidavit (CR 153) that he attempted an investigative stop

17

of Larkin for the offense of disorderly conduct. But, John-

son knew all of the facts prior to the stop; further investi-

gation would reveal nothing. Either Larkin had

committed disorderly conduct beforehand, or he had not.

Therefore, the issue is whether Johnson had probable

cause to arrest Larkin without a warrant, not whether

Johnson had reasonable suspicion to attempt an investi-

gative stop. See Texas v. Rivenburgh, 933 S.W.2d 698,

700-701 (Tex. App. San Antonio 1996, no pet.) (citing

Whren v. United States, 517 U.S. 806, 816-19 (1996) (“issue

where stop followed observed traffic violation was

whether probable cause existed”).)

Two, to justify an investigative stop an officer must

have specific articulable facts, taken in light of his or her

experience and general knowledge together with rational

inferences from those facts, that would reasonably war-

rant the intrusion. See Terry v. Ohio, 392 U.S. 1, 21-22

(1968). “The person approached, however, need not

answer any question put to him; indeed, he may decline

to listen to the questions at all and may go on his way.

Terry v. Ohio, 392 U.S., at 32-33 (Harlan, J., concurring);

id., at 34 (WHITE, J., concurring). He may not be detained

even momentarily without reasonable, objective grounds

for doing so; and his refusal to listen or answer does not,

without more, furnish those grounds.” Florida v. Royer,

460 U.S. 491, 497-498 (1983). Ultimately, to justify any

detention there must be reasonable suspicion that crimi-

nal activity is afoot. See Brown v. Texas, 443 U.S. 47, 51

(1979).

The offense of disorderly conduct under Tex. Penal

Code Ann. § 42.01(a)(1) is committed when a person inten-

tionally or knowingly uses abusi' , indecent, profane, or

18

vulgar language in a public place, and the language by its

very utterance tends to incite an immediate breach of the

peace. The Texas courts have ruled that Tex. Penal Code

Ann. § 42.01(a)(1) applies only to “fighting words” which

by their very utterance tend to incite an immediate

breach of the peace as required by Chaplinsky v. New

Hampshire, 315 U.S. 568, 86 L. Ed. 1031, 62 S. Ct. 766

~ (1942). Ross v. State, 802 S.W.2d 308, 314-15 (Tex.App. -

Dallas 1990, no pet.) (Section 42.01(a)(1) applies only to

“fighting words” and is not unconstitutionally vague).

See Duran v. Furr’s Supermarkets, Inc., 921 S.W.2d 778, 785

(Tex. App. - El Paso 1996, writ denied). This was also

Texas’s legislative intent: “The ‘practice commentary’ in

the annotated Code confirms that this section is designed

to track the ‘fighting words’ exception set forth in Chap-

linsky v. New Hampshire, 315 U.S. 568 (1942). Tex. Penal

Code Ann. § 42.01, pp. 124-125 (1974 and Supp. 1987).”

Hill v. Houston, 482 U.S. 451, 463 (Fn. 10) (1987).

Even though this is an appeal from summary judg-

ment and the courts are required to view the evidence in

a light favorable to Larkin, there is no substantive dispute

on the record as to what happened immediately after

Johnson marked on and tried to take Larkin’s receipt.

Larkin testified in deposition that he “pulled the

receipt back, and asked [Johnson] ‘What the hell are you

doing?’” (CR 199) Johnson swore in his affidavit that

Larkin “grabbed the receipt from my hand and stated

‘What the hell are you doing, that’s my receipt!’” (CR

152) Larkin and Johnson also agree that Johnson imme-

diately explained why he was checking the receipt, and

afterwards that Larkin walked away toward the exit. (CR

200 and CR 152, 171, respectively)

19

Johnson swore in his affidavit that he decided to

detain Larkin for disorderly conduct under Tex. Penal

Code Ann. § 42.01(a)(1). (CR 153) His justification to

detain Larkin was because (1) Larkin’s “actions were

highly unusual”, (2) Larkin’s “actions toward me caused

me to be alarmed and concerned as to his immediate, past

or future actions”, (3) and Johnson “needed to maintain

control over the situation in order to protect the safety of

the individuals in the area”. (CR 152-154) First, Tex. Penal

Code Ann. § 42.01(a)(1) only applies to speech. It doesn’t

apply to physical conduct. Johnson’s use of the word

“action” applies only to Larkin having said, “What the

hell are you doing?” Second, with nothing more, highly

unusual speech is not an.element of disorderly conduct.

Third, there is a crisp and bright distinction between

speech causing alarm and speech having a direct ten-

dency to cause immediate violent response. More impor-

tantly, there’s evidence that Johnson wasn’t alarmed.

Larkin gave deposition testimony that Johnson’s response

to “What the hell are you doing?” was polite and reason-

able. (CR 200) Fourth, Johnson was being disingenuous

by implying that there was a breach of the peace at the

time. He gave deposition testimony that he did not see

Larkin’s behavior incite anyone to breaching the peace.

(CR 177) Thus, Johnson provided no specific articulable

facts to support reasonable, objective grounds to detain

Larkin for suspicion of disorderly conduct. Thus, Johnson

did not have reasonable suspicion to detain Larkin for

disorderly conduct.

Additionally, the opinion by the Texas court of

appeals appears to allow police officers their own discre-

tion to decide what speech constitutes fighting words.

—

20

The opinion states that “Johnson followed [Larkin] out-

side, and attempted an investigative stop for suspicion of

disturbing the peace.” But disturbing the peace is not

defined as an offense in Texas, nor is it an element of an

offense. Disturbing the peace was a statute in Texas -

Title 9, Chapter 3, Article 474 — but it was amended and

renamed disorderly conduct by Texas Act of June 10,

1969, 61st Leg., p. 1510, ch. 454, § 1, eff. June 10, 1969.

Then it was repealed by Texas Acts of 1973, 63rd Leg., p.

883, ch. 399, § 1, eff. January 1, 1974. Because disturbing

the peace is not an offense, it can not be lawful justifica-

tion to detain someone. Brown v. Texas, 443 U.S. 47, 51

(1979), (Police officers must “have a reasonable suspicion,

based on objective facts, that the individual is involved in

criminal activity.”) Not only does the opinion by the

Texas court of appeals give the police authority to detain

persons for non-criminal activity (that is, disturbing the

peace), it leaves the definition of disturbing the peace up

to individual officers’ personal and subjective initiative.

3. Respondent Deputy Johnson did not have probable

cause under the Fourth Amendment to arrest Peti-

fioner Larkin for disorderly conduct or evading

detention.

As shown in section 2 above, Johnson didn’t have

reasonable suspicion to detain Larkin for disorderly con-

duct. Also, reasonable suspicion is a less demanding stan-

dard than probable cause. See Alabama v. White, 496 U.S. |

325, 330 (1990). Therefore, since Johnson didn’t have the |

lower standard of reasonable suspicion to detain Larkin

for disorderly conduct, Johnson can’t have higher stan-

dard of probable cause.

i

21

Evading detention under Tex. Penal Code Ann.,

§ 38.04(a) is committed when a person intentionally flees

from a person he or she knows is a peace officer attempt-

ing lawfully to arrest or detain him or her. Thus, a valid

charge for evading detention requires underlying lawful

detention, which in turn requires that the arresting officer

have reasonable suspicion that criminal activity is afoot.

See Brown v. Texas, 443 U.S. 47, 51 (1979). In this case

Johnson’s reasonable suspicion to detain Larkin was

predicated upon disorderly conduct under Tex. Penal Code

Ann., § 42.01(a)(1), which the Texas courts have ruled

only applies to fighting words. Ross v. State, 802 S.W.2d

308, 314-15 (Tex.App. - Dallas 1990; no pet.) (Section

42.01(a)(1) applies only to “fighting words” and is not

unconstitutionally vague); See Duran v. Furr’s Super-

markets, Inc., 921 S.W.2d 778, 785 (Tex. App. - El Paso

1996, writ denied).

A peace officer may arrest an offender without a

warrant for any offense committed in his presence or

within his view. Tex. Code Crim. Proc. Ann. art. 14.01(b).

Probable cause which will justify an arrest without a

warrant by police officers exists where the facts and the

circumstances within the officers’ knowledge and of

which they have reasonably trustworthy information are

sufficient in themselves to warrant a man of reasonable

caution in the belief that an offense has been or is being

committed. Dunaway v. New York, 442 U.S. 200, 208 (1979).

“What the hell are you doing?” are not fighting

words, as shown in section 1, and disorderly conduct

under Tex. Penal Code Ann., § 42.01(a)(1) only applies to

fightirig words, Ross v. State, 802 S.W.2d 308, 314-15

(Tex.App. — Dallas 1990, no pet.), thus “What the hell are

22

you doing?” is not speech that constitutes the offense of

disorderly conduct. Johnson provided no more objective

reasonableness to detain Larkin for suspicion of disor-

derly conduct than Larkin having said “What the hell are

you doing?”, thus Johnson did not have the lawful

authority to detain Larkin for suspicion of disorderly

conduct. Florida v. Royer, 460 U.S. 491, 498 (1983) (an

individual “may not be detained even momentarily with-

out reasonable, objective grounds for doing so; and his

refusal to listen or answer does not, without more, fur-

nish those grounds.”) Since Johnson did not have the

lawful authority to detain Larkin, a predicate element of

evading detention, the circumstances within Johnson’s

knowledge were not sufficient to warrant a prudent offi-

cer to believe that Larkin had committed the offense of

evading detention. Thus, Johnson did not have probable

cause to arrest Larkin for evading detention.

4. Respondent Deputy Johnson was not entitled to

Qualified Official Immunity.

Under Texas law, a defendant seeking a summary

judgment on an affirmative defense of immunity must

prove, without dispute and as a matter of law, that when

the event in question occurred, he or she was: (1) per-

forming a discretionary function, (2) acting in good faith,

and (3) acting within the scope of their authority. See City

of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994).

This is correctly stated and cited of the opinion of the

Texas court of appeals. [App. 4]

Also, when a trial court’s order does not specify the

grounds relied on for its ruling, as in this case, the

|

23

summary judgment will be affirmed if any of the theories

advanced are meritorious. Insurance Co. of North America

v. Security Ins. Co., 790 S.W.2d 407, 410 (Tex. App. -

Houston [1st Dist.] 1990, no writ). However, this distinc-

tion is moot here. Johnson and CompUSA each specified

only one ground for summary judgment. Johnson’s claim

was for qualified official immunity. CompUSA’s claim

was that once Johnson witnessed Larkin commit a crime,

it was no longer liable for Johnson’s actions.

The Texas court of appeals correctly held that John-

son’s arrest of Larkin was undisputedly discretionary.

[App. 4] Whether Johnson acted within the scope of his

authority is now moot. It does not comprise a subsidiary

question fairly included within this petition’s Question

Raised. However, whether Johnson acted in good faith

when he arrested Larkin for “using foul and abusive

language with a peace officer and for evading detention”

does go to whether the Texas courts misapplied the Fight-

ing Words Doctrine.

Citing City of Lancaster v. Chambers, 883 S.W.2d 650,

656 (Tex.1994), the Texas court of appeals correctly held

that a court must measure good faith in official immunity

cases against a standard of objective legal reasonableness,

regardless of the officer’s subjective state of mind. Then

the Texas court of appeals incorrectly stated that “the

evidence clearly supports the officer’s objective legal rea-

sonableness, and the appellant has not controverted it

with probative evidence that ‘no reasonable person in the

defendant’s position could have thought that the facts

were such that they justified the defendant's acts.’ Cham-

bers, 883 S.W.2d at 657.” No reasonable police officer in

Johnson’s position is going to think that the facts were

24

such that they justified Johnson in making an arrest

absent probable cause. No reasonable police officer is

going to feel justified in arresting someone for disorderly

conduct when he or she says, “What the hell are you

doing?” This is especially true after provoking the person

by trying to take something out of his or her hands

without consent.

Included with his motion for summary judgment

Johnson presented three expert witness affidavits. One

was his own. The others were from Mike Faas, a Harris

County Sheriff’s Department instructor (CR 146-48), and

Scott Durfee, an Assistant Harris County District Attor-

ney. (CR 142-44) All three concluded that Larkin had

committed the offenses of disorderly conduct and evad-

ing detention. “An expert’s testimony will support sum-

mary judgment only if it is ‘clear, positive and direct,

otherwise credible and tree from contradictions and

inconsistencies, and could have been readily contro-

verted’ Tex. R. Civ. P. 166a(c).” Wadewitz v. Montgomery,

951 S.W.2d 464, 466 (Tex. 1997). However, instead of

presenting credible testimony, all three ignored contradic-

tory evidence and other damaging proof. For example,

each incorrectly stated that Larkin was verbally abusive,

that his tone of voice was disruptive, and that this created

a disturbance. Larkin gave evidence that his tone of voice

was “not loud”, (CR 214) and Johnson gave evidence that

no one in the vicinity was incited to breaching the peace.

(CR 177) Thus, all three expert witnesses failed to estab-

lish that Johnson acted in good faith when he arrested

Larkin because not one of them complied with Tex. R.

Civ. P. 166a(c).

25

More importantly, Mike Faas used evidence that is

not on the record. Faas overwhelmingly based his expert

witness testimony on the unsubstantiated idea that

Larkin had said, “What the hell are you doing, mother-

fucker?” Similerly, the Texas court of appeals incorrectly

states the same idea: “The parties dispute whether Larkin

actually did refer to the officer as ‘motherfucker’.” [App.

2] On the record, however, there is no dispute; Larkin and

Johnson agree. Larkin gave deposition testimony that he

said, “What the hell are you doing?” (CR 200) Johnson

swore under oath on his affidavit that Larkin said, “What

the Hell are you doing, that is my receipt!”(CR 152)

Johnson swore in his deposition that he could not recall

what Larkin said. (CR 167) Johnson based his deposition

memory of the incident solely upon reading a copy of his

original offense report. (CR 167) However, the offense

report itself was not entered into summary judgment

evidence. It was only in their unsubstantiated pleadings

that Johnson and CompUSA allege that Larkin said,

“What the hell are you doing, motherfucker?” (CR 14-15

and CR 156 fn. 1, respectively) Larkin did state in his

original pleading that “Johnson ... accused Plaintiff of

saying the word ‘motherfucker’ ”, (CR 3-4) but Larkin

admitted no such fact, just that it was Johnson’s accusa-

tion.

Additionally, lawsuits in Texas alleging false

imprisonment, as does this, specifically turn on whether

3 The offense report had been expunged and turned over to

Larkin. (CR 166-67) During Johnson’s deposition Larkin

presented the offense report so that Johnson could refresh his

memory.

26

the associated detention was lawful. See Randall’s Food

Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). As

shown in section 3 above, Johnson did not have probable

cause to arrest Larkin. Johnson’s detention of Larkin was

unlawful.

In sum, Johnson did not have objective legal rea-

sonableness to demonstrate that he arrested Larkin in

good faith, and Johnson’s subjective state of mind must

be disregarded. Thus, Johnson is not entitled to qualified

official immunity.

5. Summary Judgment was granted Respondent Dep-

uty Johnson and Respondent CompUSA in error.

In Texas a movant for summary judgment must show

that there are no genuine issues of material fact and that

he is entitled to judgment as a matter of law. Nixon v. Mr.

Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985).

In determining whether there is a disputed fact issue

precluding summary judgment, the proof must be viewed

in a light most favorable to the non-movant (Larkin),

resolving all doubts and indulging all reasonable infer-

ences in the non-movant'’s favor. Id. at 548-49.

As shown in section 4, Johnson is not entitled to

qualified official immunity from his arrest of Larkin.

Whether Johnson acted in good faith when he arrested

Larkin is a material fact issue still in dispute. Thus,

Johnson is not entitled to summary judgment as a matter

of law. The Texas court of appeals was in error to have

affirmed the trial court’s grant of summary judgment to

Respondent Johnson.

27

CompUSA’s motion for summary judgment was

based on one claim, essentially expressed in two sen-

tences:

“The summary judgment record establishes that,

when Deputy Johnson observed Mr. Larkin dis-

turbing the peace and evading detention, Dep-

uty Johnson became an on-duty policy (sic)

officer and, therefore, not an employee of

CompUSA as a matter of law. Plaintiff’s sole

claim against CompUSA, based on vicarious lia-

bility for the acts of Deputy Johnson, therefore

fails. See Leake [v. Half Price Books, Records, Maga-

zines, Inc.], 918 S.W.2d at 561-64.” (CR 158).

The problem with CompUSA’s theory is that its

premise is faulty. Larkin didn’t commit a crime. Further-

more, at no time did Johnson have the lawful authority to

detain Larkin for suspicion of any criminal activity. Thus,

there is a material fact issue dispute as to whether John-

son ever assumed his duty as a Texas peace officer, or

was instead and at all relevant times an employee of

CompUSA. It is, therefore, CompUSA’s sole claim for

summery judgment that fails.

4

v

CONCLUSION

The Texas courts misapplied the analysis mandated

by this Court’s remarkably consistent precedents on

fighting words, and a cascade of erroneous conclusions of

law and judgments of law resulted. Ultimately, the Texas

courts erred by holding that Johnson and CompUSA were

entitled to summary judgment as a matter of law, thereby

28

violating Larkin’s U.S. Constitutional right to equal pro-

tection of the laws and depriving him of his day in court.

This Court should grant Larkin’s petition.

Respectively submitted,

Warp LARKIN

Pro Se Petitioner

15327 Pebble Bend Drive

Houston, TX 77068-1839

Tel.: 281-444-3840

Fax: 281-895-9939

APPENDIX TO PETITION FOR

WRIT OF CERTIORARI

Page

Texas Court of Appeals Opinion,

DEROGRE Bay. BOR <b cisctdncdrevecccesescvevevcee App. 1

Texas Court of Appeals Judgment,

PERGGN Bly SUPE hee evar hasth daeweececeseses App. 6

Trial Court Interlocutory Summary Judgment

Cee ED Mc vc dGdavededecances veces App. 7

Trial Court Final Summary Judgment Order, April

Dy WFD. vcccccrvencaccecedesvovernevescoveses App. 8

Court of Appeals Order Overruling Motion for

Rehearing, April 26, 2001. .-.............ee00. App. 9

Texas Supreme Court Order Denying Petition for

DVI, AUG F, Deeb nso ceccccccrceseseuces App. 10

Texas Supreme Court Order Denying Motion for

Rehearing, September 27, 2001............... App. 12

Trial Court Order Denying Motion for New Trial,

PON BE BR es PERCE ce Tk BN ee h era ese App. 14

Texas Attorney General Opinion No. JM-900, May

GE SPOR eve cc Versuvsissne yess bt oeeputvessens App.

15

App. 1

Affirmed and Opinion filed March 22, 2001.

In The

Fourteenth Court of Appeals of Texas

No. 14-98-00789-CV

Ward S. Larkin, Appellant

v.

Michael Johnson and CompUSA, Inc., Appellee

On Appeal from the 133rd District Court

Harris County, Texas

Trial Court Cause No. 97-30752

OPINION

Harris County Deputy Sheriff Michael Johnson dem-

onstrated with summary judgment proof that qualified

official immunity protected him when he arrested the

Appellant, Ward S. Larkin, in the parking lot outside a

CompUSA. The trial court granted summary judgment.

Larkin contends summary judgment was unwarranted

because Johnson maliciously arrested him for what

Larkin said as he left the CompUSA store where the

deputy worked an off-duty job. We find Johnson proved

as a matter of law that he acted as a Harris County

Deputy Sheriff rather than as an employee of CompUSA.

As there is no issue of material fact regarding any ele-

ment of qualified official immunity, we affirm.

Johnson was marking receipts at CompUSA as a

security guard when Larkin, a customer leaving with

en

App. 2

merchandise, resisted releasing his receipt. Larkin undis-

putedly stated, “What the hell are you doing?” The par-

ties dispute whether Larkin actually did refer to the

officer as “motherfucker” during this incident. We will

assume he did not. Johnson considered Larkin’s question

as loud. Johnson followed him outside, and attempted an

investigative stop for suspicion of disturbing the peace.

Johnson clearly identified himself to Larkin as a Harris

County Sheriff’s Deputy, and ordered him to stop. Larkin

refused, stating that if Johnson wanted him to stop, he

would have to arrest him. As Larkin started to get in his

car, Johnson arrested him.

Larkin argues that Johnson’s malice, an element of at

least one of the causes of action, arose when Johnson was

engaged in the protection of the employer’s property. See

Blackwell v. Harris County, 909 S.W.2d 135, 139 (Tex. App.

- Houston [14th Dist.] 1995, writ denied) (quoting Glen-

mar Cinestate, Inc. v. Farrell, 223 Va. 728, 292 S.E.2d 366,

369-70 (1982)). Accordingly, Larkin contends it is a jury

question whether Johnson committed the torts as a public

officer or as a servant of the employer. However, the

comparison of the objective action and actual duty

involved, not scienter, determines the immunity question.

Notably, Blackwell explains that where an officer is per-

forming a job incident to enforcing the public laws, he is

acting in the course and scope of his employment as a

police officer even if the private employer directed him to

perform the duty.

It is undisputed Johnson marked the receipt to pro-

tect CompUSA’s property while inside the store. How-

ever, this duty was complete when Larkin left the store.

There is also no contention that, Johnson enforced any

App. 3

CompUSA policy or advanced CompUSA’s interests?

when he went outside and arrested a paying customer.

Thus, there is no issue of material fact about whether

Johnson was acting as an employee of the Harris County

Sheriff’s Office when he arrested a person who refused to

comply with the officer’s attempt to detain him. See gener-

ally Bridges v. Robinson, 20 S.W.3d 104, 114 (Tex. App. -

Houston [14th Dist.] 2000, no pet. h.) (Finding officers

riding hogtied citizen and otherwise abusing him until he

died raised a “fact issue” about whether officers working

as guards at Dillards were acting in their capacity as

peace officers); Blackwell v. Harris County, 909 S.W.2d at

139; City of Dallas v. Half Price Books, Records, Magazines,

Inc., 883 S.W.2d 274 (Tex. App. - Dallas 1994, no writ)

(explaining peace officer becomes a government agent

when he begins to function as one). Johnson was acting as

an officer, not as an employee of CompUSA when he

1 Larkin attempts to assert fact issues about subjective

malice in the context of his underlying false arrest and wrongful

prosecution claims. He argues the officer’s subjective reasons

for behavior presents a jury issue on whether Johnson arrested

him out of subjective malice. To the extent Larkin is also arguing

anger arising from Johnson’s functions for CompUSA

prevented Johnson from making the arrest as an officer, we

disagree. If Clark Kent is outraged about wrongdoing he

discovers while on assignment, his anger is not kryptonite. He is

nonetheless Superman as he sallies forth to fight for truth,

justice, and the American way. A hero without feeling would be

inhuman, not superhuman. From the affidavits of Johnson’s

superiors, Johnson functioned in all ways as we would expect of

a Texas peace officer - even if Larkins’ eye could not follow the

blinding speed with which Johnson’s capacity changed as he

passed the door.

App. 4

arrested the appellant. Accordingly, CompUSA is not lia-

ble for Johnson’s actions in making the arrest.

Government employees are entitled to official immu-

nity from suit arising from the performance of their (1)

discretionary duties in (2) good faith as long as they are

(3) acting within the scope of their authority. City of

Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994). The

arrest was undisputedly discretionary. The Texas

Supreme Court observed in Chambers that a court must

measure good faith in official immunity cases against a

standard of objective legal reasonableness, regardless of

the officer’s subjective state of mind. 883 S.W.2d at 656.

The evidence clearly supports the officer’s objective legal

reasonableness, and the appellant has not controverted it

with probative evidence that “no reasonable person in the

defendant’s position could have thought that the facts

were such that they justified the defendant’s acts.” Cham-

bers, 883 S.W.2d at 657. It is undisputed that the claims

arose from Johnson making an arrest and turning the case

over to the District Attorney’s office. These functions are

within the scope of a deputy sheriff’s authority. Thus, we

do not reach Larkin’s causes of action because we con-

clude Johnson objectively functioned within the aura of

the qualified governmental immunity doctrine. This doc-

trine renders facts relating only to the substantive causes

of action immaterial. Accordingly, we affirm.

/s/ Maurice Amidei

Justice

Avp. 5

Judgment rendered and Opinion filed March 22, 2001.

Panel consists of Justices Sears, Lee, and Amidei.*

Publish - TEX. R. APP. P. 47.3(b).

* Senior Justices Ross A. Sears, Norman Lee, and Former

Justices Maurice Amidei sitting by assignment.

App. 6

March 22, 2001

Judgment

The Fourteenth Court of Appeals of Texas

No. 14-98-00789-CV |

Ward S. Larkin, Appellant

v.

Michael Johnson and CompUSA, Inc., Appellee

This cause, an appeal from judgment in favor of

appellee, Michael Johnson and CompUSA, Inc., signed

April 9, 1998, was heard on the transcript of the record.

We have inspected the record and find no error in the

judgment. We order the judgment of the court below

AFFIRMED.

We order appellant, Ward S. Larkin, to pay all costs

incurred in this appeal. We order this decision certified

below for observance.

App. 7

CAUSE NO. 97-30752

WARD S. LARKIN, § IN THE DISTRICT

Plaintiff : COURT OF

VS. a

COMPUSA, INC. and § HARRIS COUNTY, TEXAS

MICHAEL JOHNSON, :

Defendants. -§ 133rd JUDICIAL DISTRICT

ORDER

On the 2nd day of March, 1998, came on to be heard

the Motion for Summary Judgment of CompUSA, Inc.

and the Court, having considered the Motion, any

responses thereto, the evidence before it and the plead-

ings and discovery on file, is of the opinion that this

Motion for Summary Judgment is meritorious and should

be GRANTED. It is therefore

ORDERED that Plaintiff, Ward S. Larkin, take noth-

ing on his claims against CompUSA, Inc. Costs of court

are taxed against Plaintiff.

SIGNED this 25 day of March, 1998.

/s/ Lamar McCorkle

JUDGE PRESIDING

App. 8

[97-30752]

NO. 672,533

WARD LARKIN,

VS.

MIKE JOHNSON

IN THE DISTRICT COURT OF

HARRIS COUNTY, TEXAS

133RD JUDICIAL DISTRICT

MMMM

ORDER

On this-dey [March 2, 1998], came on to be heard

Defendant, Michael Johnson’s Motion for Summary Judg-

ment, and after considering same, it is the opinion of this

Honorable Court that said Motion should in all things be

GRANTED [on March 6, 1998].

SIGNED on this the 9 day of April, 1998.

/s/ Lamar McCorkle

JUDGE PRESIDING

APPROVED AS TO FORM: RECORDER’S

MICHAEL 2 FLEMING, 4.

99999939 This instrument is of poor

quality and not satisfactory

for photographic recorda-

/s/ Christopher L. Janak tion, and/or alterations

CHRISTOPHER L. JANAK were present at the time of

Assistant County Attorney filming.

1001 Preston, Suite 634

Houston, Texas 77002

(713) 755-4985

(713) 755-8924 Fax

County Attorney

App. 9

FOURTEENTH COURT OF APPEALS

[Seal of 1307 San Jacinto, 11th Floor

Texas} Houston, TX 77002

April 26, 2001

RE: Case No. 14-98-00789-CV

[USPS Meter Mark

Houston, APR 2601]

Style: Larkin, Ward S.

v. Comp USA Inc and Johnson Michael

Please be advised that, on this date, the Court OVER-

RULED appellant’s(s’) motion for rehearing in the above

cause.

T.C. Case # 97-30752 Ed Wells, Clerk

Ward S. Larkin

15327 Pebble Bend Drive

Houston, TX 77068-1839

App. 10

[SEAL] THE SUPREME COURT OF TEXAS

Post Office Box 12248

Austin, Texas 78711 (512) 463-1312

August 9, 2001

Ms. Leslie Ashby (Garcia)

Ashby & Whitmire

1415 Louisiana, Suite 3200

Houston, TX 77002

Mr. Ryan Chadwick

Jackson & Walker

1100 Louisiana, Suite 4200

Houston, TX 77002

Mr. Michael R. Hull

Harris County Attorney’s Office

1019 Congress, 15th Floor

Houston, TX 77002

RE: Case Number 01-0501

Court of Appeals Number: 14-98-00789-CV

Trial Court Number: 97-30752

Style: WARD S. LARKIN

v.

COMPUSA, INC. and MICHAEL JOHNSON

Dear Counsel:

Today, the Supreme Court of Texas denied the peti-

tion for review in the above styled case.

Sincerely,

John T. Adams, Clerk

by /s/ Tanya Hunter

Tanya R. Hunter,

Deputy Clerk

App. 11

cc: Mr. Ed Wells, Clerk

Mr. Charles Bacarisse

Mr. Ward Larkin

App. 12

[SEAL] THE SUPREME COURT OF TEXAS

Post Office Box 12248

Austin, Texas 78711 (512) 463-1312

September 27, 2001

Ms. Leslie Ashby (Garcia)

Ashby & Whitmire

1415 Louisiana, Suite 3200

Houston, TX 77002

Mr. Ryan Chadwick

Jackson & Walker

1100 Louisiana, Suite 4200

Houston, TX 77002

Mr. Michael R. Hull

Harris County Attorney’s Office

1019 Congress, 15th Floor

Houston, TX 77002

RE: Case Number 01-0501

Court of Appeals Number: 14-98-00789-CV

Trial Court Number: 97-30752

Style: WARD S. LARKIN

Vv.

COMPUSA, INC. and MICHAEL JOHNSON

Dear Counsel:

Today, the Supreme Court of Texas denied the motion

for rehearing of the above-styled petition for review.

Sincerely,

John T. Adams, Clerk

by /s/ Tanya Hunter

Tanya R. Hunter,

Deputy Clerk

App. 13

cc: Mr. Ed Wells, Clerk

Mr. Charles Bacarisse

Mr. Ward Larkin

App. 14

CAUSE NO. 97-30752

WARD S. LARKIN § IN THE CIVIL

Plaintiff § DISTRICT COURT

vs. : - OF HARRIS

CompUSA, COUNTY, TEXAS

INCORPORATED and §

MICHAEL JOHNSON g = “A JUDICIAL

Defendant §

ORDER

(Filed Mar. 31, 1998)

On this day came on to be considered Plaintiff’s

Motion for New Trial. After duly considering the same,

the motion is hereby GRANTED [Denied].

IT IS THEREFORE ORDERED that this-cause-is

hereby-set-for-triat-orr- the — day of — 1998 [Plaintiff

motion for New Trial is denied].

Signed on this the 15 day of June, 1998.

/s/ Lamar McCorkle

JUDGE PRESIDING

_ App. 15

[Seal]

THE ATTORNEY GENERAL

OF TEXAS

May 11, 1988

JIM MATTOX

ATTORNEY GENERAL

Honorable David H. Cain Opinion No. JM-900

Texas House of Representatives é'

PO. Box 2910 Re: Whether the use

of “abusive, indecent,

profane or vulgar” lan-

guage in a public place

constitutes an immedi-

ate breach of the peace

(RQ-1378)

Austin, TX 78769

Dear Representative Cain:

Section 42.01 of the Penal Code provides in part that

(a) A person commits an offense if he inten-

tionally or knowingly:

(1) uses abusive, indecent, profane, or vul-

gar language in a public place, and the

language by its very utterance tends to

incite an immediate breach of the peace[.]

(Emphasis added.)

Penal Code § 42.01(a)(1).

You ask the following questions:

(1) Does uttering abusive, indecent, profane, or

vulgar language in a public place constitute

an immediate ‘breach of the peace?’

(2) How is ‘breach of the peace’ defined in rela-

tion to Article 42.01(a)(1)?

App. 16

In order for this provision to withstand scrutiny under

the broad guarantees for freedom of expression and due

process of law in the United States Constitution, the

utterances prohibited can only include “fighting words.”

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). See

Gooding v. Wilson, 405 U.S. 518 (1972) and Acker v. Texas,

430 U.S. 962 (1977). See also Attorney General Opinion

MW-1 (1979).#

Whether particular words are “fighting words” is a

matter of fact. Chaplinksy, supra, at 573.

The test is what men of common intelligence

would understand would be words likely to

cause an average addressee to fight. . . . Derisive

and annoying words can be taken as coming

within the purview of the statute . . . only when

they have this characteristic of plainly tending

to excite the addressee to a breach of the peace.

See Gooding v. Wilson, supra, at 522, quoting with approval

of the Supreme Court of New Hampshire, 18 A.2d 754,

758, 762 (1941). See generally, Cohen v. California, 403 U.S.

15, 20 (1971); Bachellar v. Maryland, 397 U.S. 564, 567

(1970); and Gooding, supra. The “line between speech

unconditionally guaranteed and speech which may legit-

imately be regulated, suppressed, or punished is finely

drawn,” Speiser v. Randall, 357 U.S. 513, 525 (1958).

Speech punishable under the Penal Code provision

does not include language merely harsh and insulting,

1 This statute does not concern speech legally obscene

under the standards provided by the United States Supreme

Court in Miller v. California, 418 U.S. 915 (1973). See Spears v.

State, 337 So.2d 977 (Fla. 1976).

App. 17

see Gooding, supra at 525, and it should not include

speech, actual or symbolic, that is only “inappropriate,”

“naughty,” “disgusting,” “repulsive,” “tactless,” “gross,”

or “appalling.” Annot., 2 A.L.R.4th 1331. Conviction

under a statute specifically a “breach of the peace” as an

element of the offense must be based on jury instructions

including an admonition that proof of “actual or threat-

ened violence is essential.” Woods v. State, 213 S.W.2d 685,

487 (Tex. Crim. App. 1948). In other words, anything

“ort of the use of “fighting words” does not constitute a

breach of the statute. See Jimmerson v. State, 561 S.W.2d 5

(Tex. Crim. App. 1978). Speech is protected against pun-

ishment unless “shown likely to produce a clear and

present danger of a serious substantive evil that rises far

above public inconvenience, annoyance, or unrest.” Ter-

minello (sic) v. Chicago, 337 U.S. 1, 4 (1949).

a

Finally, because the application of the statute may

turn largely on the factual setting of the speech at issue,

the test is whether, in a particular instance, an average

person would be inured to respond by fighting. An aver-

age person is not someone who is overly sensitive or

overly inured to the speech in question. Cohen, supra and

Houston v. Hill, 482 U.S. __, 96 L.Ed2d 398 (1987), quot-

ing from a concurring opinion of Justice Powell in Lewis v.

New Orleans, 415 U.S. 130, 135 (1974).

SUMMARY

Article 42.01(a)(1) of the Penal Code applies

only to speech which as a matter of fact consti-

tutes “fighting words.” As a matter of law, the

statute does not reach speech that merely causes

public inconvenience, annoyance, or unrest.

App. 18 i

“Fighting words” are words which would likely

cause an average addressee to fight. An “aver-

age addressee” is not someone either overly sen-

sitive or overly inured to the speech in question.

Very truly yours,

/s/ Jim Mattox

JIM MATTOX

Attorney General of Texas

MARY KELLER

First Assistant Attorney General

LOU MCCREARY

Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY

Special Assistant Attorney General

RICK GILPIN

Chairman, Opinion Committee

Prepared by Don Bustion

Assistant Attorney General