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Cursing charges get pair payments

Two charged with disorderly conduct for offensive language settle for $19K each.

Two area people who were charged with disorderly conduct for using curse words have agreed to settle claims they filed against police departments in Lackawanna and Luzerne counties for $19,000 each, according to their attorney.

Attorney Barry Dyller of Wilkes-Barre said the city of Scranton has agreed to settle a claim filed by Dawn Herb of Scranton, who was charged after a neighbor heard her cursing at a toilet inside her home.

Dyller said he also secured a settlement with Larksville in the case of Stephen Kita of Wilkes-Barre, who was arrested after he referred to a police officer as an offensive name referring to a body part. Both settlements include damages for the plaintiffs and attorneys fees.

Dyller said he believes officers in both cases over-reacted to the situations, leading them to file unwarranted charges in violation of his clients’ First Amendment Right to free speech.

“Some may consider these small cases, but I consider them of paramount importance,” Dyller said. “There is no freedom more important than the freedom of speech.”

Herb was charged in October 2007 after Patrick Gilman, an off-duty Scranton police officer, heard her cursing though an open window at a toilet that had overflowed.

A Lackawanna County judge later found Herb not guilty of the offense.

Dyller, who represented Herb in the criminal case, had threatened to file a lawsuit. The city agreed to the settlement to avoid the suit, Dyller said.

In Kita’s case, Kita was driving through Larksville in May 2007 when he stopped to look at smoke that was rising from a fire at a culm field, according to a federal lawsuit Dyller filed on Kita’s behalf.

The suit says Kita saw a police car approaching and flagged down the officer, Charles Benson, to tell him where the fire was. Benson replied in a sarcastic tone “I know. I can see it. I’m not blind.”

Insulted by Benson’s tone, Kita stated “Thanks, (expletive),” and began to walk back to his car. Benson, angered by the statement, exited his cruiser, handcuffed Kita and arrested him for disorderly conduct, according to the suit. Kita was later found not guilty of the charge.

Dyller said appellate courts have repeatedly ruled that the use of curse words by themselves is not sufficient to prove disorderly conduct. There must be more to a defendant’s actions, such as creating unreasonable noise that causes public annoyance, alarm or inconvenience. In the Herb and Kita cases that burden clearly was not met, he said.

Dyller said there have been a number of recent cases in which citizens were charged with disorderly conduct for using offensive language.

He hopes the Herb and Kita cases send a message to area police departments.

“Our cities and towns need to train officers better. You can’t arrest someone for the content of their speech, even if the speech is offensive,” he said.

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