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Woman Ticketed for Screaming Profanities at Overflowing Toilet:
Here's an interesting legal story:
  A Scranton, Pennsylvania, woman who allegedly shouted profanities at her overflowing toilet within earshot of a neighbor was cited for disorderly conduct, authorities said.
  Dawn Herb could face up to 90 days in jail and a fine of up to $300.
  "It doesn't make any sense. I was in my house. It's not like I was outside or drunk," Herb told The Times-Tribune of Scranton. "The toilet was overflowing and leaking down into the kitchen and I was yelling [for my daughter] to get the mop."
  Herb doesn't recall exactly what she said, but she admitted letting more than a few choice words fly near an open bathroom window Thursday night.
  Her next-door neighbor, a city police officer who was off-duty at the time, asked her to keep it down, police said. When she continued, the officer called police.
  So you're wondering, is that really a crime? The answer is 'no, it's not.' Civil libertarians and those with bad bathroom plumbing, rejoice: In Pennsylvania, you can scream at your overflowing john all you want without violating the state's disorderly conduct offense. Here's the text of 18 Pa.C.S. § 5503(a), Pennsylvania's prohibition on disorderly conduct:
A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
(1) engages in fighting or threatening, or in violent or tumultuous behavior;
(2) makes unreasonable noise;
(3) uses obscene language, or makes an obscene gesture; or
(4) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.
  Let's assume that Herb's yelling amounted to "unreasonable noise" or "obscene language." The statute only prohibits such yelling "with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof." Did Herb do that? It seems pretty clear she didn't. The word "public" is defined in § 5503(c):
As used in this section the word "public" means affecting or likely to affect persons in a place to which the public or a substantial group has access; among the places included are highways, transport facilities, schools, prisons, apartment houses, places of business or amusement, any neighborhood, or any premises which are open to the public.
  The definition is rather oddly drafted; "neighborhoods" and "apartment houses" have both public and private spaces within them. But Pennsylvania caselaw is clear that the annoyance or incovenience must be that of the general public, not just one or two specific people who happen to be nearby. The Pennsylvania Supreme Court stressed this in an early case involving a man who operated a "go kart" track, Commonwealth v. Greene, 410 Pa. 111 (1963). Use of the track to race go-karts made a lot of noise that apparently annoyed the neighbors, and the operator of the track was then charged with and convicted of disorderly conduct. The Pennsylvania Supreme Court reversed in an opinion by the always-colorful Justice Musmanno:
  The cardinal feature of the crime of disorderly conduct is public unruliness which can or does lead to tumult and disorder. Engaging in clamor and outcry in the public streets in a manner which arouses attention and causes people to draw together, whereby the highway may be obstructed, is the classic example of disorderly conduct. . .
  While noise may break tranquility, upset rest, destroy sleep and fracture serenity, it does not of itself break the public peace, an indispensable feature of the crime of disorderly conduct, when the traveling public is not disturbed. If the production of noise alone made out the crime of disorderly conduct, then the coffers of the Commonwealth and municipalities entitled to monetary returns could be filled with fines assessed and collected from cheering football and baseball fans, riveting hammer operators, gong-clanging street car motormen, airplane pilots, siren-sounding ambulance drivers, missile testers, amusement park devotees, bathroom soloists, fife and drum players, trombone zealots, fireworks enthusiasts, etc. . . .
  The crime 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 the ferment of a community.
  Given the plain language of the statute and the Greene decision, I think it's pretty clear that Herb isn't guilty of disorderly conduct. Herb and her daughter were at home, and it sounds like the neighbor was the only one else around. Annoying your neighbor by being really noisy may be inconsiderate. But it's not the crime of disorderly conduct, even if your annoyed neighbor happens to be a police officer. Free Dawn Herb!

  Thanks to Victor Steinbok for the link.
George Weiss (mail):
thank you so much for this post

proud to be an American (a rare feeling after an OK post on criminal law)
10.17.2007 1:12am
rlb:
Okay-- say I'm a hangin' judge. I see:

1) Obscene language.
2) In public. The statute clearly says any neighborhood is "public." Exactly how is the "general public" going to be in a neighborhood, anyway? Am I unprotected by the statute because I don't open my porch to the general public? Clearly not.
3) Musmanno's opinion addresses noise, not obscene language. Noise must also be "unreasonable" (or "unseemly" as was the case at the time) but obscenity has no such requirement under the statute. Noise also has a civil remedy that obscenity doesn't. And, even if one applies the dicta from Greene, yelling obscenities loud enough to be heard by neighbors, who are attempting to enjoy the peace of their homes, where their children reside, even, clearly can risk a disturbance of the peace under some circumstances.

The only factual question I see is whether it was "recklessly creating a risk [of annoyance, alarm, or inconvenience]" to shout obscenities loud enough that the neighbors could hear.

Now, then, since we don't have all the facts we can't say for sure, but I imagine that it'd be simple to show recklessness as to the risk, since "annoyance, alarm, or inconvenience" is very broad. It'd be an easy case if woman knew the cop had kids, or knew of his aversion to obscenities, (or simply didn't know one way or the other), etc., etc.
10.17.2007 3:16am
Dave N (mail):
Of course, she may decide to take the Larry Craig route and plead guilty just to avoid going to court.
10.17.2007 3:19am
JB:
Disorderly Conduct = Annoying a cop, these days.

Glad to see the winds blowing the other way for once.
10.17.2007 3:19am
HappyConservative:

But it's not the crime of disorderly conduct, even if your annoyed neighbor happens to be a police officer.


This is an outrageous statement by Orin, who should be more sensitive to the needs of law enforcement. The police officer represents the public. Therefore, annoying the police officer should count as creating a "public inconvenience." And surely, continuing to yell profanities after being warned is both immoral and "recklessly" creates a risk of "public inconvenience" (i.e. annoying a police officer).

This biatch should spend 90 days in jail to think about her actions. But only if the off duty police officer showed her his badge so she knew that annoying him would be a public inconvenience. Otherwise, she should get 60 days.
10.17.2007 3:56am
OrinKerr:
rlb,

If you get a chance, check out the other Pennsylvania cases on the "public" requirement; I think they foreclose the kind of reasoning you have in mind.
10.17.2007 4:01am
hsh:
"Of course, she may decide to take the Larry Craig route and plead guilty just to avoid going to court."

Or, she could adopt the well known "wide stance" defense.
10.17.2007 4:08am
HappyConservative:

I think they foreclose the kind of reasoning you have in mind.


Bad precedent is meant to be overturned.
10.17.2007 4:13am
rlb:
Well, a cursory search for a PA court clarifying the circumstances under which a neighborhood is public didn't turn up anything, but I did find what's probably a determinative case:

The [Trial] Court found that while in the public place of her neighborhood, Maerz yelled profanities across the street and in doing so recklessly created a risk of public inconvenience and annoyance.
(...)
Again, the present charge came solely under Section (a)(2) “unreasonable noise.” Section (a)(2) proscribes the act of making disorder-producing noise, as differentiated from Sections 5503(a)(1) and (3), which proscribe the act of speaking certain disorder-producing language. Here, there was no Section (a)(1) “fighting words” charge because there existed no evidence that retaliation was even contemplated, let alone attempted, against a 70 year old woman making comments from a distance and immediately retreating into her home afterwards. Even Mr. Skowronek testified that Appellant's rather rote, cliché string of generalized profanities was “kind of standard.” Nor was this a Section (a)(3) “obscene language” case because Appellant did not offer her [profanities] in a sexual context appealing to one's prurient interests.

879 A.2d 1267 (2005). Very strange.
10.17.2007 4:33am
Jay:
Am I really going to be the first one to get in a "potty mouth" line?
10.17.2007 4:45am
Public_Defender (mail):
You missed the real offense--Insulting the Ego of an Officer of the Law.

An off duty cop was annoyed and asked her to stop. She didn't, so he had her arrested. Even if acquitted, she'll have the humiliation of an arrest and the expense and inconvenience of defending herself.

Self-indulgent Cop 1. Innocent Citizen 0.

Cops must face penalties for arrests like this. Unfortunately, I doubt this either this cop or the ones who actually arrested the innocent woman will even get a wrist slap.
10.17.2007 7:11am
Public_Defender (mail):
And by penalties for the cop, I mean job discipline that hurts, not a lawsuit that the cop's employer will pay off. We justifiably give cops huge amounts of power, but they must be held accountable when they abuse or misuse the power.

If the article accurately reflects the events in this case (sometimes journalists get things wrong), all cops involved should face at least some unpaid leave.
10.17.2007 7:32am
wb (mail):
As the neighbor cop called the police rather than intervening on-duty, it seems a plain old civil suit does not get the department to get the the neighbor's defence or to pay the fine.
10.17.2007 8:40am
PersonFromPorlock:
Hmm... by uttering "near an open bathroom window," wasn't she 'in public' by virtue of not having a 'reasonable expectation of privacy'?
10.17.2007 8:46am
njones:
... whenever I hear stories like this I wonder if there is not more going on. Why would the cop even care? My guess is there is a history of bad-blood between these neighbors...
10.17.2007 9:39am
great unknown (mail):
What are the odds of a §1983 on this?
10.17.2007 9:58am
John Mitchell (mail) (www):
Thanks, Great Unknown. I was thinking 1983 from the start. If the First Amendment means you can't get upset and yell profanities at your overflowing toilet in the midst of a household crisis, it means nothing at all. It is one thing to charge someone who is acquitted, it is quite another to unreasonably stretch the law to use the courts as a substitute for "shut up, neighbor!" The offer would have been more within his rights to yell "shut the f*** up you d*** nut, and take your f***' meds."
10.17.2007 10:23am
bellisaurius (mail):
I'm curious. If I'm reading all this correctly, then playing my stereo really loudly in a house <i>wouldn't</i> be cause for a disorderly conduct, unless I happened to be drawing a crowd, or it was the monty python penis song?

If so, then how do I explain something like that to the inevitable arrival of the 5-0? (Of course, I live in chicago, where I believe we do have a noise ordinance, so perhaps this is more of a curiosity question than a useful one).
10.17.2007 10:43am
Sk (mail):
I'm in an odd situation of disagreeing with the case, and disagreeing with the argument against the case at the same time.
1) It seems reasonable that you should be able to cuss at your own toilet.
2) It seems reasonable that you shouldn't be able to cuss loud enough for 'the public' to hear you.

The argument against this case (in the post, above) makes no sense to me.
"But Pennsylvania caselaw is clear that the annoyance or incovenience must be that of the general public, not just one or two specific people who happen to be nearby."
What's the legal distinction between 'general public' and 'one or two specific people who happen to be nearby'? And if you can draw a distinction, how does that distinction also not apply between the 'general public' and '10 or 20 people who happen to be nearby'? In other words, can't you draw such a distinction between the 'general public' and any number of 'X people who happen to be nearby' i.e. if you can draw such a distinction at all, can't you draw such a distinction in every instance, and thus essentially invalidate the concept of 'general public'?
'Annoying your neighbor by being really noisy may be inconsiderate'
I'm sure she wasn't charged for being really noisy-she was charge for saying obscenities in a really noisy manner. Strawman argument.

Nevertheless, it appears that the original post is correct-Dawn isn't guilty of disorderly conduct.

But aren't anti-obscenity laws still constitutional? Could she have been charged under one of those?

Can I say 'fuck' whereever and whenever I want? If you believe yes, can I say it around your pre-teen children or grandchildren? Around your family when they are at a park for a picnic?

Sk
10.17.2007 10:48am
PJT:
Even if its not disorderly conduct, dont all jursdictions have "disturbing the peace" laws that prohibit your neighbors from being too loud? If not, why are cops always showing up at parties and telling people to be quiet.
10.17.2007 10:49am
Joel B. (mail):
Yeah the more I read this comment thread the more I'm like what are we expecting neighbors to put up with. I don't think Orin's right on the reading of this, if you're being loud enough that your neighbors hear you yelling and screaming at your toilet that they can discern the words that seems a reasonable risk of creating an annoyance. Golly, and the people sticking up for this women? Have you no concept of living in peace and quiet.

Libertarianism, also known as, living at the lowest common denominator. Thanks but no thanks.
10.17.2007 11:04am
Adeez (mail):
"Can I say 'fuck' whereever and whenever I want? If you believe yes, can I say it around your pre-teen children or grandchildren? Around your family when they are at a park for a picnic?"

With respect SK, "fuck" is a sound; a movement of the vocal chords. It has no other meaning than that which we ascribe to it. It's utterance is also far from legally obscene.

And to answer your question: while I don't have children, I wouldn't mind it too much if people stated it around them at the park. And if I did, I'd leave. My parents had potty mouths for as long as I can remember, yet, they loved me to death and reared a two kids with decent morals.

I ain't beefin'. It's just that society's ridiculous obsession with "curse words" is one of my biggest pet peeves.
10.17.2007 11:07am
JaredS:
Joel B.:

Sticking up for this woman is not so much an issue of libertarianism as a basic sense of fairness and proportionality of punishment. This woman is being charged with a crime, not merely some sort of civil infraction, because she swore loudly in her own home. Being convicted of any crime, even if the punishment is light, is a serious matter simply due to the creation of a criminal record. If you think a disorderly conduct conviction is an appropriate punishment for this, you either fail to recognize the severity of a criminal conviction or have a grossly exaggerated concern with quiet. If the woman had merely been cited for violating a noise ordinance, this wouldn't be such a big deal.

There is also a serious issue of abuse of power, because it is almost a certainty that the police would not have arrested the woman had the complainant not been a cop. This also has almost nothing to do with libertarianism.

Allowing people to be arbitrarily noisy in their homes without any consequence would be an example of libertarian extremism. Complaining because a woman is charged with a crime for what amounts to annoying a cop is most certainly not.
10.17.2007 11:43am
Hoosier:
But isn't it well-known that screaming obscenities at a toilet is a lesbian pick-up move? Like gay guys tapping their feet?

Or am I confusing this with something else?
10.17.2007 11:56am
Dave D. (mail):
..When I was in the police academy it was explained to us that, while we were not on-duty 24 hours a day, we were always cops, whether on-duty or off. And as cops, representives of the State, not ourselves, our peace could not be disturbed. Nor could we make private persons arrests ( citizen arrests ) off duty.
...Many years have elapsed, but I think this is still the law in California.
10.17.2007 12:09pm
Dave N (mail):
But isn't it well-known that screaming obscenities at a toilet is a lesbian pick-up move?
It certainly explains how Rosie O'Donnell meets other women.
10.17.2007 12:17pm
Tony Tutins (mail):
Remember the cussing canoeist in Michigan? The ACLU defended him on a charge more specific than disorderly conduct. They lost in the trial court but won on appeal.

Boomer was convicted in August, 1998 for yelling a stream of profanities in earshot of a woman and her two children after he fell out of his canoe on the Rifle River. The 1897 law that he allegedly violated prohibited using indecent, immoral, vulgar or insulting language in the presence or hearing of women or children.
10.17.2007 12:28pm
phalkon (mail):
Chapter 336: PEACE AND GOOD ORDER
[HISTORY: Adopted by the City Council of the City of Scranton 9-26-1979 as Secs. 21-1, 21-2, 21-5, Arts. II and III of Ch. 21 of the 1979 Code. Amendments noted where applicable.]
....
§ 336-4. Obscene, insulting language.

It shall be unlawful for any person to use any vulgar, obscene, profane, boisterous or insulting language, tending to a breach of the peace or tending to the disturbance or annoyance of peaceable residents or travelers nearby.


Perhaps Disorderly Conduct is an improper charge for this case. But it's clear that she broke the town code. It's hard to have sympathy for her since she was asked to stop and then continued.
10.17.2007 12:33pm
Archon (mail):
The Pennsylvania Supreme Court in Commonwealth v. Hock, 556 Pa. 409 (1999) held that a single profrane word shouted at a police officer did not support the charge of disorderly confuct.

Furthermore in Commonwealth v. Kelly, 2000 PA Super 254 the Pennsylvania Superior Court reserved a disorderly conduct conviction where the defendant shouted "fuck you asshole" and raised a middle finger when driving by a borough streets worker.

Also, in Brockway v. Shepherd, 942 F. Supp. 1012 the a federal district court held that the middle finger did not qualify as an obscene gesture under the PA disorderly conduct statute and was protected speech.

Then, there is always the standard parade of US Supreme Court case law that always comes out in these types of cases - Goodling, Hess, and Cohen.

I think it is safe to say that this citation will get dismissed and that police officer will be finding himself on the losing end of a federal lawsuit soon.
10.17.2007 12:41pm
John M. Perkins (mail):
Libby got less than 90 days.

A good neighbor would have helped with the plumbing.
10.17.2007 12:44pm
Tony Tutins (mail):
It's hard to have sympathy for her since she was asked to stop and then continued.

If he could hear her words so clearly, why didn't the cop just get a f'in mop and help? Answer: He'd rather go on a power trip than help a neighbor.
10.17.2007 12:47pm
hattio1:
JaredS states;

There is also a serious issue of abuse of power, because it is almost a certainty that the police would not have arrested the woman had the complainant not been a cop. This also has almost nothing to do with libertarianism.

I don't claim to be a libertarian, but I don't think this is true. Aren't libertarians all about preventing abuses of government power by giving the government the minimum power necessary.
10.17.2007 1:05pm
OrinKerr:
Joel B writes:
Yeah the more I read this comment thread the more I'm like what are we expecting neighbors to put up with. I don't think Orin's right on the reading of this, if you're being loud enough that your neighbors hear you yelling and screaming at your toilet that they can discern the words that seems a reasonable risk of creating an annoyance. Golly, and the people sticking up for this women? Have you no concept of living in peace and quiet.

Libertarianism, also known as, living at the lowest common denominator. Thanks but no thanks.
Joel, you seem to be overlooking the difference between a legal argument and a policy argument. I'm not making a policy argument; I'm not evaluating the law as a normative matter. I'm just saying that if you take the law and the facts, they don't match up. It's a rule-of-law thing.
10.17.2007 1:08pm
EIDE_Interface (mail):
Nice to see the slow steady descent into fascism. AmeriKKKa indeed.
10.17.2007 1:14pm
Sk (mail):
"With respect SK, "fuck" is a sound; a movement of the vocal chords. It has no other meaning than that which we ascribe to it. It's utterance is also far from legally obscene.

And to answer your question: while I don't have children, I wouldn't mind it too much if people stated it around them at the park. And if I did, I'd leave. My parents had potty mouths for as long as I can remember, yet, they loved me to death and reared a two kids with decent morals."

So is 'nigger.' Does your argument still apply?

Sk
10.17.2007 2:29pm
markm (mail):
Sk: Directed at a particular person in anger, "nigger" is a fighting word. There's plenty of precedent to ban speech that is likely to cause "a breach of the peace", e.g. start a fight. But in rap songs, "nigger", several insulting words for women, and a steady stream of profanity are all protected speech, partly because none of it is directed at a particular person.

Nothing shouted at a toilet can be a fighting word. At least not unless the toilet is equipped with an artificial intelligence capable of being insulted, and the capability of coming over and punching the potty-mouth...
10.17.2007 2:51pm
Adeez (mail):
SK: I'd love to answer your question, really. I'm a bit unclear as to what it is, as well as what you perceived my "argument" to be.

If by "argument," you refer to my assertion that "fuck" per se means essentially nothing and can never be obscene; and if by "so is 'nigger'" you mean to ask whether I'd feel the same about this word, then my answer follows.

NO word per se can be obscene, ever. It doesn't matter whether it's a "curse" or a racial slur.

And it's funny you ask about "nigger," because that's another controversial word that evokes such preposterous debate. The funny thing is, me and my fellow NYCers were doing a great job of destroying the original word's meaning into something much less offensive. Most kids I grew up with---mainly Hispanic, but plenty of blacks, whites, and Asians as well---used the word all the time, to the point where it bore no resemblence whatsoever to the slur it used to be. It meant, instead, more like "guy," or "man" or any other way to refer to an anonymous male. The word, in it's "new" context, was so far removed from a slur that one of us trying to call another a "nigger" in order to offend would be laughed at by the insultee. I mean, it wouldn't even make sense.

However, because the language police continue to make such a stink about it, it continues to retain its power to offend so that real bigots have an additional weapon in their arsenal of ways to offend.

Oh, and none of this is meant to refute markm's point. But in light of what I already wrote, I'd be a hypocrite to be in favor of the Fighting Word doctrine. I try not to be a hypocrite whenever possible.
10.17.2007 3:29pm
cottus (mail):
Whoop to do. Hire a lawyer ($5,000 retainer) and battle for your rights, or pay the fine* ($300 max.)

Not a hint in any of the comments about this awful truth. Can't we just have a one - time payoff and get you stinking lawyers off our backs? Lawyers might have made sense back in the dark ages when few could read, but today, with all the tools of science and engineering, when we can put men on the moon, it is an oppressive, enraging joke to have such 'justice' meted out by arrogant men in medieval robes. I'll skip the Shakespeare. It's not funny - it never was.
10.17.2007 7:11pm
Gullyborg (www):
QFT:

"A good neighbor would have helped with the plumbing."

That's it in a nutshell. If this was the last episode of "Seinfeld," the cop would be the one in trouble for not helping a person in distress.
10.17.2007 7:22pm
theobromophile (www):
Will I have to be the one to say it? Were the "curse words" necessarily obscene, given that a few rude words are also very accurate descriptors of the contents of an overflowing toilet?

I could see a small fine, but arrest is completley out of line with the harm (even assuming that this was harmful). As for the cop: if you don't want to hear your neighbours cuss every so often, move into a cave in the middle of the woods.
10.17.2007 7:23pm
~aardvark (mail):
The cop could not understand what all the fuss was about because he's never had to deal with a backed up toilet--his head is so far up his ass, it is simply not an issue.

When a friend read the last line of the story, he remarked, "I like the parallel between a cop and a toilet."
10.17.2007 7:51pm
Shawn Levasseur (mail) (www):
"Trombone Zealot"???
10.17.2007 9:15pm
Joel B. (mail):
Jared S. and Orin,

It's a matter of how one reads the statute. I see this disorderly conduct statute as probably something similar to "Disturbing the Peace." A minor misdemeanor to be sure, in California a Wobblet meaning it could be reduced, and in this case probably would be reduced to something like a misdemeanor.

Now, it's a matter of how one reads the law, but yelling and screaming at my toilet with my window open seems like it's reasonably likely and therefor reckless that I would be an annoyance to my neighbors and people in the street (a public place.)

More importantly, it's easy to focus on relevant and irrelevant facts. First, woman is apparently screaming obscenities at her toilet. This is probably her story, and her neighbor asks her to keep it down, she apparently keeps screaming at the toilet. This is in the business known as a red flag. It does NOT make sense. Your BS meter should go up. Most people when asked to stop screaming at their toilet do not keep doing it...it's an inanimate object and it doesn't "unclog" it by force of sound waves. We do know that the "defendant" admits that she continues to yell obscenities but can't remember what she said. Yeah that makes a lot of sense too. So when I read this "case" it looks pretty cut and dry okay, at least in California it'd seem a fairly straight forward, probably 415 infraction...Probably pay the $300 and move on.

Good luck letting the ACLU fight it, that's just dumb, because jurors are going to associate a lot more with the neighbor who asks to keep it down then the neighbor supposedly screaming at her toilet.

People are making a big deal that a COP called the police on her neighbor, big freaking deal so cops don't have a right to enjoy peace and quiet and they can't call the police during a 415?

Sorry again, my point is your reading of the "law" does not square with a real life interpretation of the facts nor with the law you've cited as the conduct seems within the purview of the statute.
10.17.2007 10:31pm
Hoosier:
Dave N--"It certainly explains how Rosie O'Donnell meets other women."

OK. That was the funniest thing I've ever read on a law-related blog.
10.17.2007 10:55pm
OrinKerr:
Joel B writes:
More importantly, it's easy to focus on relevant and irrelevant facts. First, woman is apparently screaming obscenities at her toilet. This is probably her story, and her neighbor asks her to keep it down, she apparently keeps screaming at the toilet. This is in the business known as a red flag. It does NOT make sense. Your BS meter should go up. Most people when asked to stop screaming at their toilet do not keep doing it...it's an inanimate object and it doesn't "unclog" it by force of sound waves. We do know that the "defendant" admits that she continues to yell obscenities but can't remember what she said. Yeah that makes a lot of sense too.
I'm confused by this. The woman's toilet was *overflowing,* not sitting there being an inanimate object. Presumably she had human feces and urine spilling out on to her floor all over the place, leaking, we know from the story, into her kitchen. She was yelling to her daughter to get a mop. I don't know what you say when that happens to you, but yelling in that circumstances doesn't strike me as all that weird.
10.18.2007 1:10am
Joel B. (mail):
"It doesn't make any sense. I was in my house. It's not like I was outside or drunk," Herb told The Times-Tribune of Scranton. "The toilet was overflowing and leaking down into the kitchen and I was yelling [for my daughter] to get the mop."

Herb doesn't recall exactly what she said, but she admitted letting more than a few choice words fly near an open bathroom window Thursday night.

Her next-door neighbor, a city police officer who was off-duty at the time, asked her to keep it down, police said. When she continued, the officer called police.


Yelling for your daughter to get a mop would be a normal response, she admits herself that she swore multiple times at the toilet. If it was merely yelling for daughter to get a mop that'd be one thing, but we know that it's more then that, and yelling at the overflowing toilet again doesn't stop it from overflowing. The point is the story the woman gives does not make sense, she admits that she continued yelling at the toilet.

Also you state "presumably she had human feces and urine spilling out on to her floor all over the place." That seems like a big presumption to make a lot of times the clog is going to be lodged into the pipe while the water flows in from the top and "normal" water is the vast majority of the water spilling over. Also stopping a toilet is fairly easy. IF water is coming up from the sewer that's one thing, but that seems like the far less likely scenario.

It's also really hard to know that the toilet is the only issue going on. Simply we know that the woman was screaming about something, her neighbor asked her to quiet down because she was being loud and obnoxious and she continued to scream. Broken down to its most basic facts thats what happened.
10.18.2007 2:08am
JKB:
If we use the case cited by rlb at 3:33am, her profanity was not obscene as it should be safe to assume that she "did not offer her [profanities] in a sexual context appealing to one's prurient interests." If not, this story is a whole lot more interesting.

So her charge would rest upon being unreasonable noise in public. How much shouting while your toilet overflows into your kitchen is unreasonable? Also, the story doesn't elaborate so let us hope that this isn't just a case of the noise propagating across the property line onto the cops property or the charge is totally bogus as there is no public. By the definitions offered in this entry, public is "a place to which the public or a substantial group has access." So if the noise didn't hit the sidewalk or street, it might be hard to meet the public annoyance threshold.
10.18.2007 2:16am
rlb:
JKB, you didn't read the whole case (and I guess I didn't quote enough of it)-- it concluded that shouting profanities at a neighbor across the street was not "unreasonable noise."

If that's the case then shouting at a toilet loud enough for the neighbors to hear clearly isn't, either.
10.18.2007 2:40am
OrinKerr:
Joel B writes:
Simply we know that the woman was screaming about something, her neighbor asked her to quiet down because she was being loud and obnoxious and she continued to scream. Broken down to its most basic facts thats what happened.
Precisely. And that is not a crime in Pennsylvania, based on the statute and the many cases interpreting it.
10.18.2007 3:13am
OrinKerr:
Or I should say not the crime of disorderly conduct -- of course it could be some other offense.
10.18.2007 3:14am
fishbane (mail):
risk of public inconvenience and annoyance

I have to say, "risking public inconvenience and annoyance"?

Maybe I've lived in NYC for too long, but if there isn't a term of art involved here that invalidates what I think of when I hear that phrase, I think I accrete about 15 complaints a day (assuming NY has similar laws).

Seriously, risking inconvenience? That's silly. At best, actual inconvenience could be a tort, of the sort that Overlaywered makes fun of.
10.18.2007 5:01am
Joel B. (mail):
Or I should say not the crime of disorderly conduct -- of course it could be some other offense.

Which is possible. I'm comparing it of course to California which is what I know, and it sounds somewhat like our Disturbing the Peace statute, and it seems somewhat like conduct that may be disturbing the peace.

But, if the issue is what the cop put on the ticket and we concede that the conduct may be a crime like Disturbing the Peace, then what's the real issue this would be FAR from the first time a cop in writing a ticket wrote down the wrong code section in writing a ticket.
10.18.2007 9:57am
phalkon (mail):
Or I should say not the crime of disorderly conduct -- of course it could be some other offense.

Exactly. It's not disorderly conduct. But it is against the law in Scranton, Pa as I cited above.
10.18.2007 10:02am
Fub:
Joel B. wrote at 10.18.2007 8:57am:
I'm comparing it of course to California which is what I know, and it sounds somewhat like our Disturbing the Peace statute, and it seems somewhat like conduct that may be disturbing the peace.
Heh. Reminds me of something that happened to a friend some 20 years ago. I swear it's true, since she told me shortly after it happened.

She lived in a snooty little coastal town I don't need to name, in a small cottage. One Sunday afternoon after imbibing a taste of a nice red, she decided to put some Wagner on her stereo, lie down on her parlor floor, and sing along with Brunhilde.

A member of the local constabulary drove by, heard her attempted grand opera, and (so he said) decided a life-threatening crime was in progress. He knocked on her cottage door to no avail. Having failed in that attempt to rescue a damsel in grave distress, he went around back and climbed in through the kitchen window.

He confronted her supine and ardently vocalizing form on the parlor floor. Her eyes met his. Even higher decibel hilarity ensued. But no PC 415 citation was issued. He was too busy backing out the front door apologizing.
10.18.2007 2:46pm
Mary Katherine Day-Petrano (mail):
"Yeah the more I read this comment thread the more I'm like what are we expecting neighbors to put up with. I don't think Orin's right on the reading of this, if you're being loud enough that your neighbors hear you yelling and screaming at your toilet that they can discern the words that seems a reasonable risk of creating an annoyance. Golly, and the people sticking up for this women? Have you no concept of living in peace and quiet."

JoelB, LOL. This reminds me of the chic rich area of San Francisco where the big mansions near the Presidio overlook the Golden Gate, where the mansions are so close this could really happen, for sure. A toilet cus in one mansion would no doubt be heard in several mansions built out to lot size with their windows practically so close you could hold hands.

Can you imagine? Paying THAT kind of $$ for a mansion with a toilet everyone in the neighborhood can hear, clearly?

Give true meaning to peace and quiet.
10.18.2007 3:35pm
Mary Katherine Day-Petrano (mail):
"With respect SK, "fuck" is a sound; a movement of the vocal chords. It has no other meaning than that which we ascribe to it. It's utterance is also far from legally obscene."

Actually, such sounds could come from conduct, not mere speech, and then what?
10.18.2007 3:38pm
TruePath (mail) (www):
Yes, the obvious solution to all the worries about noise that were mentioned above is a nice content neutral noise statute (preferably in decibels but maybe some other measure).

I don't think all the animosity at the neighbor is justified IF all he truly did was call the cops (even if they are his friends). It's whoever cited her for disorderly conduct that is the jackass.

If the excuse of not knowing the law isn't good enough for the citizen who breaks it then it shouldn't be good enough for the police officer of prosecutor who makes an obviously inappropriate arrests/charges. There ought to be an double blind review (maybe on anonymous complaints) by outside individuals with an inappropriate arrest resulting in significant personal fines for the officer. Of course the total amount we give in officer pay should remain fixed (they have a hard job) so the same sort of process should assign bonuses for clever, professional and other meritorious behavior.
10.18.2007 3:42pm
Mary Katherine Day-Petrano (mail):
"Sk: Directed at a particular person in anger, "nigger" is a fighting word."

And, directed at a particular person with known autism likewise, is "Are you blind?" a fighting word?
10.18.2007 4:15pm
Mary Katherine Day-Petrano (mail):
"Nothing shouted at a toilet can be a fighting word. At least not unless the toilet is equipped with an artificial intelligence capable of being insulted"

Is a toilet regarded like a turing machine?
10.18.2007 4:17pm
Public_Defender (mail):
The neighbor who called the cops was also a cop. This is another reason why she was cited, and another reason why all the cops involved should be considered for discipline.

The neighbor was abusing his authority as a cop to deal with a very minor neighorhood dispute. The woman was obnoxious for not quieting down when requested, but all of the cops abused their authority.
10.18.2007 7:49pm
Mary Katherine Day-Petrano (mail):
It is hard to imagine something more disgusting than the pig thread, but this cussing the toilet thread takes the cake.

And I still can't believe I was called a troll and a runamok, then when whit insults you, he cuts bait and runs. i thought he was a First Amendment expert. I am surprised he hasn't weighed in here. Its okay whit, I still enjoy your debates. Some of the more intelligent discussion on this blog.

I just keep having to look in the mirror, and I think I am worried I will see an ugly Troll staring back ... I remember all the trolls I had when I was little. Especially the little one with the grey hair that stood straight up and green eyes with a red football uniform.

I just can't reconcile being a literal autistic with a girl's vanity.
10.18.2007 11:55pm
Mary Katherine Day-Petrano (mail):
"Yes, the obvious solution to all the worries about noise that were mentioned above is a nice content neutral noise statute (preferably in decibels but maybe some other measure)."

When i first moved to Northern California, it was a nice normal place to live. But then, it became little Mexico. And that's not a joke. When I was in law school, trying to study after I got home, I got bombarded with

1. The Mexican dinner song;
2. The Mexican after dinner cervaza on the porch song;
3. The Mexican woman looking for their men song;
4. The Mexican working on the cars song;
5. The Mexican methamphetamine song;

By then it was 2 am, and my neighbors (every 4 of 5 houses surrounding an American has Mexicans and their children, aunts, uncles, mothers, fathers, brothers, sisters, friends, etc) fell asleep with the Mexican la cucaracha blaring.

They woke up again at 4 am, and while getting ready to go to work in the vineyards, my neighbors played

6. The Mexican I have a hangover song.

So I can appreciate these noise ordinances.

Unfortunately, it didn't stop even after there was a fistfight duel in the street between two boyfriends of my other neighbor (an American), the current boyfriend, and the jilted boyfriend.

I finally discovered they all hated Tchiakovsky, and that stopped it.
10.19.2007 12:11am
JBL:
I have a serious problem with the idea of a legal punishment for being annoying. I just don't see any way to establish a coherent threshold.

In my opinion, for example, most advertising qualifies as "unreasonable noise" with a substantial probability of causing "public inconvenience, annoyance or alarm".

In cases like the Herb case, there's two policy options: option A is to prohibit perfectly natural exclamations, and option B is to deal with an occasional annoying noise. I fail to see how option A is less restrictive or more beneficial than option B.
10.19.2007 4:37pm
Mary Katherine Day-Petrano (mail):
Living in little Mexico was definitely annoying.
10.19.2007 5:41pm
Mike Connelly (mail):
I think that the best way to come at this is from the absolutist side and then make your exceptions. So we start with the notion that we enjoy Freedom Of Speech. There's the absolute position. Now we add exceptions. We have the fire-in-a crowded-theater exception, established long ago by a fair minded judge. We have the fighting-words exception, again something we can pretty much all agree is a reasonable limitation.
There are further exceptions to the rule, but it seems to me that you have gone far away over hill and dale to reach a point where a tirade at a toilet within the confines of a detached house is a no-no.
My bet is that she walks in the first round.
10.23.2007 10:51am