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It’s unclear what exactly Nolan Poocha said to the Yosemite National Park ranger who told him to leave the Curry Village Lodge while two other officers were wrestling a suspect to the ground. But whether he yelled “f— you” to the ranger, or just exclaimed, “that’s f—ed,” it’s protected speech, the 9th U.S. Circuit Court of Appeals ruled Tuesday. “Poocha’s unpleasant response to the rangers, tasteless as it may have been, falls squarely within the protection of the First Amendment,” wrote Judge Stephen Reinhardt in U.S. v. Poocha, 01 C.D.O.S. 6770. In reversing Poocha’s disorderly conduct conviction, Reinhardt wrote that whatever Poocha said, his intent was to offer his two cents, not start a civil disturbance. “Whether Poocha said ‘f— you’ or ‘that’s f—ed,’ the natural import of his speech was an expression of criticism of the police, not an incitement of the crowd to act,” Reinhardt said. “In fact, the question is not even a close one.” Judge A. Wallace Tashima disagreed. Pointing to the accounts of officers who testified about Poocha’s body language — clenched fists and thrust-out chest — Tashima said it amounted to “a direct challenge to the authority of the rangers in the immediacy of their facing a hostile crowd of 50. “The line between a hostile crowd and a riotous mob is as thin as a razor’s edge, and history teaches time and again that a minor incident, such as Poocha’s confrontation, immediately following the officers’ physically restraining another individual for interfering with their attempted arrest, can turn the tide.” Judge Marsha Berzon concurred with Reinhardt but wrote separately to dispute Tashima’s take on Poocha’s posturing. “That the officer who was the object of the hostile gestures apparently did not see them would certainly undercut any physical threat theory,” she wrote.

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