The case of William Barboza that sprung up in Liberty, has been printed in at least 135 newspapers across the country, and sparked countless Internet posts questioning why he was ever arrested in the first place.

Barboza got a speeding ticket in Liberty in 2012. Before returning the ticket with payment, he wrote on it a string of obscene words, “F**K YOUR SH**TY TOWN B**CHES, and he was subsequently arrested and charged with aggravated harassment. A federal court ruled on September 10, that Barboza’s First Amendment rights had been violated and that the assistant district attorney who ordered the arrest, Robert Zangala, was liable.

On September 17, Sullivan County Attorney Sam Yasgur informed the legislature that he does not agree with the federal court’s ruling and that his office is examining the possibility of appealing the decision.

It is understandable that officials would want to prosecute Barboza for his clearly offensive language, which could be interpreted to be a threat against the female clerks who worked in the town court.

But now two judges have said that the speech—those offensive words on that ticket—is protected. First, Town of Fallsburg Justice Ivan Kalter said it in 2013 when he dismissed the charges against Barboza. Now, federal justice Cathy Seibel has agreed with Kalter. She cited many legal precedents and said, “The words at issue here are not inherently likely to provoke a violent reaction; they were not directed at anyone in particular, and could not be interpreted as threatening any particular action.”

It may be that Yasgur agrees with this part of the ruling because, after all, nobody appealed when the charges were dismissed in 2013. So, perhaps, Yasgur disagrees with another part of the Seibel’s decision, which said Zangala is liable. Well, if Barboza’s First Amendment rights were violated, somebody has to be liable, and the judge said the officers who arrested him are not liable essentially because they were doing what Zangala told them to do.

The judge agreed with Zangala that a wide range of actions by prosecutors is covered by absolute prosecutorial immunity. She wrote, “A district attorney is not only absolutely immune from civil liability for initiating a prosecution and presenting the case at trial, but also immune for conduct in preparing for those functions; for example, evaluating and organizing evidence for presentation at trial or to a grand jury, or determining which offenses are to be charged.”

But, she said, when a district attorney or assistant district attorney steps into the role of a police officer and gets involved in an arrest, the immunity changes. She wrote, “Zangala is entitled to absolute immunity for his decision to charge plaintiff… But if he ordered a warrantless arrest of plaintiff as opposed to say a desk appearance ticket, which would not have entailed an arrest, he does not have absolutely immunity for that decision.”

She also said that Zangala should have known that Barboza would have a First Amendment defense against the aggravated harassment charge, and in fact “Zangala and [district attorney Jim] Farrell discussed the fact that plaintiff might have a First Amendment defense to the charge, but Farrell instructed Zangala to file the charge.”

She later added, “Zangala argues that he did not believe there was a constitutional bar to charging plaintiff with a crime. I don’t quite see how one can at once believe that the First Amendment could be raised as a defense to the charge and at the same time be unaware of any constitutional impediments to bringing the charge.

“It almost sounds like [detective sergeant Steven] D’Agata and Farrell knew the arrest was unconstitutional but were willing to go forward and wait and see if plaintiff would realize it. I’m not sure that’s what Zangala means; I hope not.”

The fact that Farrell signed off on the charge does not let Zangala off the hook because, Seibel said, Zangala is a trained lawyer and should have been able to do the “relatively simple legal research” it would have taken to see that the charge would not stand.

In the end, the taxpayers get the bill, whether it goes to pay salaries in the county attorney’s office, or a legal settlement with Barboza, or both. But if we were county legislators, we would vote in favor of cutting the taxpayer’s losses and settling the case.