A video (below) posted to YouTube on July 22 shows a police officer using a Taser on a man for swearing in Ellwood City, Pennsylvania, on March 5.
The incident began when police issued Perry Russell Malcolm a parking ticket for allegedly parking his car too close to an intersection, notes the Beaver Countian.
Malcolm secretly recorded his interaction with Officer Matthew Kennedy. The incident begins with Kennedy demanding that Malcolm pay his ticket, which Malcom says he is not going to do.
"I'm not going to pay it," Malcolm states. "I'm going to talk to Officer Kingston [a supervisor] and I’m going to wonder why you’re such an a**hole."
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Kennedy tells Malcolm to pay his ticket again, but Malcolm responds: "Not going to happen, f***head."
Malcolm then appears to be inside a building, possibly the police station, where Kennedy follows him.
Kennedy demands to know what Malcolm called him, but Malcolm refuses to answer and says it does not matter. Kennedy insists it does because the language amounts to "disorderly conduct."
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Kennedy challenges Malcolm to say it again, and demands Malcolm pay his ticket, an issue that is between Malcolm and the court.
According to Malcolm, he returned to his truck and prepared to leave when Officer Robert Magnifico arrived:
I was trying to put up my tailgate and my latch was stuck and it kept falling back down. I was trying to leave and it wouldn’t shut and I was like, "OK, great, this is just prefect." I was facing my tailgate when one officer came up on my left hand side and the other officer came up behind my right side.
Magnifico tells Malcolm: "What makes you think you can talk to us like that?
Malcom replies, "Talk to you like what?"
Magnifico responds: "'Mother-effer.' Why do you think you can do that in a public street? You can't, it’s against the law."
Malcolm says no one heard him use profanity, but Magnifico adds: "You still can’t do it. In a public place, you can't do it ... You're in a public street ... You can't cuss and swear in public, it's against the law."
Malcolm then says Kennedy cursed in public, and Magnifico tells Kennedy: "Cite him [Malcom]. He's an idiot. He doesn't know no better. He's a dumbass and he's always been a dumbass."
Magnifico then goes on an angry rant against Malcolm:
Why don't you say it to my face? I’m standing right here, you think you’re such a tough guy? Why don’t you say it to my face, huh? Why don’t you make a move? Because you can't. Because you'd get your a** kicked that’s why, because you’re an idiot.
Kennedy arrests Malcolm, who insists he is not resisting. "I don't care," Kennedy responds.
The police scream at Malcolm to turn around, and an officer is heard tasing Malcolm.
Malcolm apparently grabs a hold of the Taser, and begs the police not to tase him again. The cops get the Taser back and tase him again.
"Get on the ground right now, don't you f***ing move!" Magnifico curses loudly in public. "You understand me? Don't you you f***ing move! Now you're in for it! OK, you want to f*** around? This is what happens!"
Malcolm tells the police that he can't breathe, and one of them replies, "I don't care."
Malcolm took his recording of the incident with him to court on May 18, and the district attorney dismissed a felony charge of disarming a police officer and a misdemeanor charge of resisting arrest in exchange for Malcolm's guilty plea to a disorderly conduct citation for obscene language.
"I wasn’t going to plead guilty to anything, but I would have had to pay my lawyer at least another $2,000 to start going forward, so it was either pay that or the $300 fine," Malcolm recalled. "Mathematically in my situation pleading guilty to disorderly conduct is what I could afford to do."
The Associated Press reported in 2011 that the Pennsylvania state police agreed to stop citing people for cursing per a settlement of a federal free speech lawsuit filed by the American Civil Liberties Union of Pennsylvania.
ACLU of Pennsylvania lawyer Mary Catherine Roper said at the time: "Using profanity toward someone, whether an officer or not, is just not one of those things that you can put someone in jail for. It may not be very smart, but you have a constitutional right to do that."
The Marshall Project noted in 2011 that courts have repeatedly ruled cursing at police is not against the law as long the profanity does not constitute fighting words, yet police have continued to arrest people for using foul language.
Bruce Ledewitz, a law professor at Duquesne University, told the Beaver Countian that people cannot be convicted for foul language:
I think every law professor in America would tell you that you can not be convicted of [swearing in public] today. Every time this has been invoked in modern times, since the 1960s, the convictions have been reversed on appeal. Any time you see that statute being charged it should raise red flags ... If someone in a circumstance like this went to the ACLU I think the department would have some problems.
Vic Walczak, legal director of the ACLU of Pennsylvania, concurred:
There is a long, and I stress long, line of Pennsylvania cases, including recent ones from the Pennsylvania Supreme Court, that say you can not charge someone with the use of profanity in public. For an officer not to know that reflects a serious lack of training. This goes back many years. We have filed a lot of lawsuits on this issue and we have won a lot of people a lot of money doing it.
Ellwood City Police Lieutenant David Kingston defended his officers: "How one officer handles a case verses another officer is going to be different. Could the officers have de-escalate it? Possibly, but I think [Malcolm] was pushing the limit."
Kingston added that the cops said Malcolm threatened them by saying, "I’m going to kick your f***ing a**" but the Beaver Countian could not hear the threat on Malcom's recording.