Black Lives Matter protest

Kevin Hernandez was cited for criminal provocation after uttering “f**k Donald Trump” in the direction of a Trump supporter who punched him.

When Kevin Hernandez denigrated the president in the direction of a man wearing a pro-Trump hat, he was met with a fist to his face and a criminal citation for picking a fight.

The scuffle happened June 14 near Town Square on the sidelines of a peaceful racial justice protest. The incident brings up questions about the applicability of criminal provocation, a rarely used town ordinance. And the fallout of the fight ranges from regret over a missed opportunity for civil dialogue to First Amendment questions about what constitutes political speech in an era of intense political division.

After marching to the Town Square as part of the protest, a group of friends were given some chalk and went to the northwest corner of the park to draw the phrase “Black Lives Matter.” There they encountered a man who was displaying opposite political views on his hat.

“I said, ‘f--k Donald Trump.’ He turned around and said, ‘what did you say?’ So I turned around and said, ‘I said f--k Donald Trump,’” Hernandez, 20, told the News&Guide after the fight. “It was pretty fast. He came up and punched me with his right fist.”

Hernandez wasn’t the only one to walk away with a criminal charge. Clay Erwin, 62, the man who punched Hernandez, was cited for battery.

“It was a colossal mistake on my part,” Erwin told the News&Guide on Tuesday, “an overreaction to something said, and I missed a great opportunity to have some dialogue with young people about what I believe and what they believe.”

Two other men, who Hernandez and a witness said came to his defense using their own fists, were also cited for assault and battery.

“[Defendant] said a slur directed at [suspect] to elicit response,” the Jackson Police Department officer wrote on Hernandez’s citation for criminal provocation, a town ordinance.

Hernandez isn’t due in court until next month.

The ACLU of Wyoming says political speech is protected under law.

“The ability to express your opinion about political issues is one of the most fundamental guarantees of the First Amendment,” said Andrew Malone, staff attorney for the ACLU of Wyoming. “And the Supreme Court has recognized that one of the key functions of free speech is to spark public debate by inviting dispute. They’ve also acknowledged that this dispute may make some people very angry, but that is not a good enough reason to prohibit it.”

Malone said even speech considered to be crass is fair game in the eyes of the law.

“While there are some situations where speech can lose its protection if it qualifies as fighting words, that exception only applies to direct personal insults that are inherently likely to provoke a violent reaction,” Malone said. “The exception does not allow the government to punish someone for expressing their political views even if they do so in a vulgar fashion. So, except in very narrow circumstances, the government is not allowed to punish people because their speech may cause other people to react violently. And just because someone says something vulgar or offensive — especially when they’re speaking on an issue like politics — should not mean that they lose their First Amendment protection.”

Black Lives Matter protest

Clay Erwin, who punched Kevin Hernandez for dissing the president, touches a wound near his eye. Hernandez’s friends fought back when Erwin hit Hernandez, police and witnesses said.

Criminal provocation has been an ordinance on the town of Jackson’s books since 1961, according to a records search.

It reads: “Whoever, by words, signs or gestures, provokes or attempts to provoke another, who has the present ability to do so, to commit an assault, or an assault and battery upon him is guilty of criminal provocation, and upon conviction shall be punished as provided in Section 1.12.010 of this code.”

Elected officials write town ordinances. They also have the ability to change them.

“We have a right to make sure our ordinances are constitutional,” Jackson Mayor Pete Muldoon told the News&Guide.

Muldoon didn’t say he thought the ordinance was unconstitutional.

Because Hernandez’s case is pending, he spoke generally about protected speech.

“I think political speech should be highly privileged,” he said. “And criticizing the president is the ultimate protected speech.”

He said the ordinance should only be applied if the person enforcing the law is completely certain the words were used against someone to provoke a violent attack.

“That ought to be the goal of it,” he said.

No one was seriously injured in the June 14 fist fight. But four people did walk away with criminal charges. The first of the four court hearings is today, July 8.

The Jackson Police Department said its officers applied the ordinances based on what they believe happened.

“These can be difficult cases to put together, with everyone wanting us to take their side in the argument, but we don’t take sides, and apply the law as best we can,” Lt. Roger Schultz wrote on Facebook. “The 20-year-old was cited for a crime called Criminal Provocation, (Call it picking a fight in simple terms).”

Erwin said no matter what happens to the charges in court, he has accepted his own responsibility for the fight.

“Why I snapped on this occasion, who knows, but it did happen,” he said. “And you have to pay the price if you’re going to react like that.”

Rebecca Huntington contributed to this story.

The online headline of this story was changed to reflect that Hernandez, 20, is not a teen. – Eds.

Contact Emily Mieure at 732-7066 or courts@jhnewsandguide.com.

Emily Mieure covers criminal justice and emergency news. She also leads the News&Guide’s investigative efforts. She has reported for WDRB TV in Louisville, Ky., WFIE TV in Evansville, Ind., and WEIU TV in Charleston, Ill.

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(14) comments

Jimmy Richie

I want all readers to imagine they were at an Obama rally, and a youth got in someone's face and yelled , "F*** Obama!" (Which, of course, a respectful conservative would never do) How would he have been treated? For just a moment, be honest with yourselves. No President has ever been met with so much anger and disrespect as this one. Likely because as the first citizen-legislator since Grant, he represents an existential threat to the ruling-class Elites from both sides. So he's universally feared and hated. Which is precisely why he got elected, and will be resoundingly re-elected.

Konrad Lau

Mr. Frank,

No offense but I believe your statement “…there is no Right or Left” (sic) willfully ignores facts on the ground.

BLM has openly admitted they are “trained Marxists” (i.e. the Left).

Academia has been self-described as “progressive” for decades and they take every opportunity to indoctrinate our youth in socialist/communist doctrines.

The very term “Progressive” indicates an agenda that continually (progressively) moves society toward Marxist goals. Many, if not most, “progressives” are offended when this fact is pointed out. Some are actively trying to hide their agenda. Some are simply ignorant of the wider plan they have been drawn into.

The “Right” (from the right bank of the river Seine) was where the establishment lived in Paris. At that time, they supported the aristocracy and hence were considered “conservative” because they wanted to preserve the status quo. Today, mainstream conservatives are concerned with preserving American ideals…including the concept of free speech.

Even a brief perusal of today’s news will clearly indicate the struggle between the two is still alive, even if the terms have changed somewhat.

The French Revolution…led by he Left…resulted in the needless deaths of thousands (40,000) of French citizens.

That all started with an unwillingness of the Left to even entertain the possibility that those on the other side were honestly concerned with the support of the nation or their right to express their opposing opinion(s).

TERRENCE MILAN

Think of "progressive" as another way of saying "What's in your wallet?". Just another way of saying they want what's in your wallet to put in their wallet. They are adherents to the Maynard G. Crebs work ethic school, not Marxism. I guess they can add "progressive" to their resume, but it doesn't matter unless they run for office: the domain of the truly lazy.

Gail Metcalfe Wegner

After watching a GOP in my village in FL a man raise his arm and yelled "White Power". It was disgusting, the opposition yelled other fowl words back. Where does free speech start and end. We all know which side we stand on. I will not get involved other than in the voting booth on 11/3

Don Frank

Free speech is protected period. Each participant in this episode is responsible for their choice and actions. It is interesting to observe that our President has public sky encouraged physical confrontations instructing peace officers to arrest citizens saying “rough them up, don’t be so nice”. So one asks “If our President incites violence do we wonder that a man wearing a pro-Trump hat assaults another man exercising free speech, do we have a leadership problem AND/OR has this President condoned physical violence to suitors free speech? Better to go to the ballot box and exercise free speech in November. This citizen will vote for non violence, free speech and a peaceful transfer of power. Please join me.

Ken Chison

So, if I read it correctly, the vulgar mouthed man shouted obscenities and got his clock cleaned by a 62 year old man, minding his own business? Then, 2 of the younger man's friends had to step in to fight his battle. Obviously, the respect your elders was never taught in that family. To save the embarrassment, I think I would have tried sneaking away. Maybe the fine ol ACLU can start screaming victimhood. Sounds like the circumstance was handled appropriately. You talk the talk, you best be able to walk the walk.

Bob Settle

Sadly, this is a one-way street. Nothing is off limits that is anti-Trump. The only thing you can be certain of is that that those who disagree with anything he says or does will win out in the end.

Konrad Lau

Of course the anti-Americans acting in a mob. Its what they do.

I am glad that all concerned were cited.

Protesting is one thing.

Insulting someone while shouting and cursing in their face is NOT protest.

It is instigating a disturbance.

Any bets??? The 62 year old pays his own fines and the Left absconds.

Don Frank

Konrad. Spoken ever so gently. There is no left and there is no right but there is an agenda to make America divided. Who, why and to what purpose is the essential question you and ai might ask ourselves. What we the people need are public servants who serve the public rather than lobbyists. In the meantime I’m an independent interested in liberty with justice for all. The center is a useful place from which to view public policy questions. It puts one a little bit closer to seeing all sides of an issue.

James Thorburn

This applies to the pro Trump guy too right?

Marilyn May

Mr. Irwin took the high road in acknowledging his remorse for his actions. Not having witnessed the altercation, this “appears” to be the case of an inexperienced, hot headed young person without a great deal of life experience deciding to attack a community member for expressing his freedom of his political choices. The difference is Mr Irwin didn’t verbally attack anyone like Mr Hernandez did. This was an unfortunate reaction on Mr Irwin’s part, but he obviously felt offended or threatened and probably should just have walked away. Just seems it wouldn’t have happened had Mr Hernandez not approached a stranger in such a vile and aggressive way. Very sad.....

Steven Kardas

Mr.Hernandez is not a teen, he is 20 years old according to the article.  He clearly instigated  a fight and got one and should have known better.  It is immature to  walk up the strangers who are minding their own business  and curse at them and think that nothing is going to happen. Mr. Erwin manned up and took responsibility for his actions. Mr. Hernadez has not.  If the situation was reversed, and Mr.Erwin was the verbal aggressor and was punched by Mr. Hernandez, we would never hear from the ALCU.   The ALCU  believes that conservatives and Trump supporters have no rights to free speech, are racist, and deserve relentless abuse.Thus,  the ALCU thinks its ok to walk up to strangers and curse them because of their conservative political views. This is patently unfair and unsustainable in a civilized society and is rapidly creating much more trouble.

Matt Chorney

#1 The "if" hypothetical argument is not what happened and is making an assumption on what you think "would have happened". It's not relevant.

#2 Mr. Hernandez's comment was non-threatening. He was stating his political opinion. Because he used an explicit word does not make him an "aggressor"... it might be immature, but not criminal.

Malone is right "speech considered to be crass is fair game".

The ALCU represents ALL Americans (regardless of political views) your comment believing the ALCU is politically biased against Trump supports is wildly inaccurate. The exact opposite, the ALCU has represent many controversial far right entities in defense of free speech.

I encourage you to learn more about the ALCU here - https://www.aclu.org/about-aclu

Konrad Lau

Standing in someone's face and screaming epithets is in fact not just exercising "free speech". He was trying to provoke a physical altercation and he was successful.

He fully expected the police to either stand idly by or cite the 62 year old while he walked away.

Thankfully, the police saw the whole thing and probably thought to themselves the 20 year old was lucky to get what he did...and not more.

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