Carswell v. Ferrari, 1:23-cv-00468

Plaintiff Jack Christopher Carswell brought a civil rights action alleging First Amendment retaliation after being charged with disturbing the peace for repeatedly yelling “fuck the police” at a neighbor, a retired officer.
Officer Kyle Ferrari, Nampa PD, was the defendant, who based the charges partly on the plaintiff’s loud and profane statements, which disturbed the neighbor and his wife.
Plaintiff’s First Amendment retaliation claim survived initial screening; other claims were dismissed.
Defendant moved for summary judgment on the basis of qualified immunity and lack of protected speech under the “fighting words” doctrine.
Plaintiff declined to participate further in the case, filed no response to summary judgment, and presented no further evidence.
The court independently analyzed whether summary judgment was appropriate, given the lack of factual dispute but also the standards for First Amendment retaliatory arrest claims.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was Plaintiff’s speech protected?	Speech was political criticism protected by the 1A	Speech was unprotected "fighting words"	Speech was protected; not fighting words
Probable cause for arrest?	No probable cause; charge based on content of speech	Probable cause existed due to loud, disruptive conduct	Probable cause for "loud/unusual noise" existed
Qualified immunity for officer?	Clearly established right not to be arrested for speech	No violation; reasonable officer could believe conduct OK	No immunity for arrest because of speech, but moot here
Nieves exception to probable cause?	No evidence presented, but officer’s motive was clear	Plaintiff failed to show similarly situated treated better	No objective evidence of differential treatment; claim fails

Houston v. Hill, 482 U.S. 451 (First Amendment generally prohibits punishment for criticizing police)
Duran v. Douglas, 904 F.2d 1372 (9th Cir. 1990) (verbal challenge to police is protected speech)
Cohen v. California, 403 U.S. 15 (profanity as political speech not subject to fighting words exception)
Virginia v. Black, 538 U.S. 343 (defines "fighting words" as those likely to provoke immediate violence)
Nieves v. Bartlett, 587 U.S. 391 (retaliatory arrest claims require no probable cause or evidence of differential treatment)
District of Columbia v. Wesby, 583 U.S. 48 (probable cause standard)
Collins v. Jordan, 110 F.3d 1363 (angry or inflammatory speech in a public forum is protected)
State v. Suiter, 138 Idaho 13 (Idaho Supreme Court on disturbing the peace and protected speech)