The First Amendment guarantees a number of our most fundamental rights, freedom of speech among them. However, as with all rights, this constitutional protection is not absolute. Government still has the power to set certain limits on it. Consequently, the history of court interpretations of the constitutionality of those limitations has been one of guarding freedom of expression while at the same time forbidding abuses of it.
In the fire service, First Amendment cases most frequently arise internally, such as when a fire department member is critical of department management publicly. However, sometimes cases occur when a member of the public claims that remarks directed at fire personnel are protected speech. This was the case with Margarito A. Iboa.
Iboa, who lived in Lancaster, Calif., was known to be the leader of a gang called the Mid Town Criminals (MTC). One night, firefighters responded to a call at Iboa’s address. Upon arrival, they saw 10-foot flames visible from the street. When firefighters entered the backyard, they found Iboa asleep near a 10- to 12-foot pile of burning debris. One of the firefighters woke Iboa, who initially tried to assist in putting out the fire.
The situation deteriorated, though, when Capt. Jim De’Evelyn tried to speak with Iboa about the fire. An argument ensued, with Iboa cursing and assuming such an aggressive posture that another firefighter became concerned that Iboa was going to assault the captain and stepped between the two. Iboa then ran toward the house, saying something to the effect of, “I’m going to show you.” The firefighters became concerned that he was getting a weapon and left the yard, though the fire was not extinguished.
Iboa then threw the fire hose out of the backyard. He yelled obscene comments at the firefighters to get off his property and asked who they thought they were. He cursed them, saying that they didn’t know who he was and that he would “show them who” he was. At that point, the firefighters waited for sheriff’s deputies to get there.
When the deputies arrived, they found the fire still was burning. One of them tried to talk to Iboa, but he continued with his obscenities. He told them that they needed a warrant, and that he could burn whatever he wanted. Iboa then lifted his shirt, exposing his MTC gang tattoos, and profanely yelled that they couldn’t “mess” with him because he was with MTC. Iboa’s fists were clenched and he was yelling and walking back and forth within 8to 10feet of the deputies.
The deputies judged it unsafe for the firefighters to go back onto Iboa’s property to extinguish the fire and called for backup. When additional deputies arrived, they entered Iboa’s property and he ran into the house. With their guns drawn, the deputies told firefighters to put out the fire, which they quickly did. Iboa did not come back outside.
Iboa ultimately was charged with and convicted by a jury of seven counts of violating California Penal Code Section 69, which provides in part:
“Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty, is punishable ….”
On appeal in the case of The People v. Iboa, 207 Cal.App.4th 111 (2012), 143 Cal.Rptr.3d 143, Iboa argued that his convictions violated his First Amendment right to free speech because there was insufficient evidence that anything he said was a “serious expression of intention to commit an act which would result in bodily harm” to the firefighters and deputies. In other words, he claimed that he had threatened no one and had a constitutional right to speak his mind.
The court noted that Section 69 prohibits two distinct types of activities, threats and violent conduct, when either activity constitutes an attempt to deter or prevent any executive officer from performing any duty imposed upon the officer by law. The court specifically observed that where physical violence does not accompany the threat, courts must be mindful of the risk of punishing First Amendment speech. The First Amendment protects expression that engages, in some fashion, in public dialogue. But, the court said, where speech strays from the “values of persuasion, dialogue and free exchange of ideas,” and moves toward willful threats to perform illegal acts, the state has greater latitude to regulate expression. Then, the state may punish threats falling outside the purview of the First Amendment, even if the threat is pure speech.
Although Iboa argued that this law requires a showing that his threat was a “serious expression of intention to inflict bodily harm,” the court said that threats must be placed and understood in their context. If not, the line between heated but protected political hyperbole and an unprotected threat of unlawful violence will not be easily drawn. The court said that what mattered was that the threat’s “circumstances are such that there is a reasonable tendency to produce in the victim a fear that the threat will be carried out.”
The court also said that to sustain Iboa’s conviction, there must be sufficient evidence that he threatened unlawful violence. The court conceded that Iboa did not utter the word “kill” or directly or unambiguously threaten to inflict bodily harm on the firefighters or the deputies. However, it said that his words could not be considered to be mere “political hyperbole.” They were, instead, threats of unlawful violence.
The court noted that Iboa swore at the firefighters, told them to get off his property, and said that he would show them who he was. He threw the fire hose out of his backyard. He had such a heated argument with De’Evelyn that another firefighter became concerned that Iboa would assault him and stepped between them. Iboa’s comments as he went into his house led the firefighters to believe that he was getting a weapon and caused them to leave the property, even though the fire had not been completely extinguished.
When the deputy sheriffs arrived on the scene, Iboa continued to behave belligerently by cursing at them and telling them that they needed a warrant. The court said that harsh words alone might not constitute a threat of unlawful violence, but Iboa underscored his words with action by lifting his shirt to expose his gang tattoos and profanely telling the deputies that they couldn’t “mess” with him because he was from MTC.
The court ruled that Iboa’s threatening statements, combined with his physical conduct of pacing, clenching his fists, showing off his gang tattoos, and aggressively approaching De’Evelyn, constituted the type of threat of unlawful violence that
Section 69prohibits. His conduct gave context to his threatening speech, which was intended to and did deter the firefighters and deputies from performing their official duties. The court then affirmed Iboa’s convictions.
Firefighters continue to work in increasingly challenging environments, not all of them caused by fire. Some things to remember are the following:
- The public’s right to expression, while broad, is not unlimited.
- Freedom of speech used to express ideas will always be balanced against protection from threats resulting from that speech.
- Freedom of speech issues can arise from non-fire department members, too.