# Petition for Writ of Certiorari — Larkin v. Johnson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0998%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2002 - **Citation:** 535 U.S. 928 ## Text (~) 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 Crees FOIE 5 bic ok 6 eck cha gae een ai tieiees i 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 eee OE GD CN cn. 6 6 v0.6 0 net cccnsosaeeus 2 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 cn ee ai od waded a, 5, @ a3 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