Ellwood City, PA — Perry Russell Malcolm, 33 of Patterson Township, PA was smart enough to secretly record his encounter with Ellwood City police officers when he decided to confront the officer for citing him for parking too close to an intersection. It’s highly probable Ellwood City police operate under a quota system and are forced to issue petty citations for infractions which would summarily have been ignored in times past. But it’s what Ellwood City police did to Malcolm for exercising his freedom of speech which will likely get him a payday in civil court at the expense of taxpayers.
Malcolm politely asked Officer Matthew Kennedy if he would exercise his discretion and withdraw the ticket he was given for parking too close to an intersection. He says he measured the distance with a tape measure and believed the citation to be in error. Kennedy refused, and Malcolm told him he would take up the matter with Kennedy’s superior, but added a few expletives in the process.
I’m not going to pay it. I’m going to talk to Officer Kingston [supervisor] and I’m going to wonder why you’re such an asshole.
Kennedy told him he should pay the fine, or not pay it, and get taken to court over the matter. But Malcolm was not yet done expressing his opinion of the officer who seemed more concerned with how closely he parked to an intersection than with his rights to free speech. Malcolm said:
Not going to happen, fuckhead
Not content with allowing Malcolm to have his own opinion of the officer, Kennedy fired back:
What did you say sir…What did you call me?”
Does it make a difference?
That’s when the officer decided to arrest the man who was freely expressing his opinion and attempting to reason with the man who’d frivolously cited him. Kennedy claimed:
It does make a difference, it’s called disorderly conduct.
Malcolm apparently knew the law a bit better than Kennedy and contended:
It’s not disorderly conduct. It’s not.
From there, the conflict escalated and Malcolm was not only taken down, but he was tased, and some might contend he was tortured for challenging the officer’s knowledge of the law as well as his authority.
But Malcolm is right. The PA Supreme Court has decided long ago that swearing at an officer and in the presence of an officer is protected free speech, so long as the person is not threatening the officer’s safety, a contention Kennedy will most likely claim.
Unfortunately, for the officers, there’s video proof Malcolm was reserved, remained calm, and was still allegedly victimized.
The ACLU’s Mary Catherine Roper explained the freedoms citizens have and how the law should be interpreted in a similar civil case they successfully won in PA court back in 2011.
If somebody’s making a threat, or pushing and shoving and fighting, that’s a different thing…But if people are cursing each other, you can’t issue a criminal citation and subject them to hundreds of dollars in fees for bad manners.
Making matters worse for Ellwood City PD is the fact that other officers were involved and appeared to be joining in on the torture and punishing Malcolm for expressing his constitutionally protected free speech rights.
Officer Robert Magnifico joined Kennedy. Kennedy told him:
He wants to come down here and tell me how it is.
Officer Magnifico replied:
Well that’s normal for him, that’s what he always does, he thinks he knows the law better than everybody else.
That’s when the two took him down and tasered him. According to the Beaver Countian, Malcolm was right. The law was and is on his side, and the officers were not only out of line, their actions were illegal. According to Duquesne University Law Professor Bruce Ledewitz, case law is extensive on the matter, and Malcolm was correct. He said, speaking in general terms:
I think every law professor in America would tell you that you can not be convicted of [swearing in public] today,” said Ledewitz. “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.
The ACLU agrees. Vic Walczak is the Legal Director of the American Civil Liberties Union of Pennsylvania. He said:
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.
Worse still, Ellwood PD officer Magnifico can then be heard threatening Malcolm with bodily harm. It’s almost always cowardly for police officers to challenge citizens to a fight while wearing a badge and gun. As TFTP has reported, several officers have lost their jobs for fighting citizens while wearing a badge. Maybe Magnifico (if he can be called that) didn’t get the memo. He told Malcolm, who was secretly recording the interaction:
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 ass kicked that’s why, because you’re an idiot…You have never learned one thing in your life have you.
Malcolm’s plan worked. He successfully recorded police not only infringing on his federally protected civil rights, but was eventually arrested under false pretenses, and tortured in the process. With the help of the ACLU, residents of Ellwood PA will likely now have to foot the bill in a civil lawsuit which Malcolm will probably win. Not only will all of his charges be dropped but he’ll get a payday from having his rights violated.
Unfortunately, many officers will never learn that the citizens have more rights than they do and they must be protected.
Surveillance footage of the incident below.