***********************************************
    The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.

   All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.

   The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
              STATE v. LIEBENGUTH—DISSENT

   DEVLIN, J., concurring in part and dissenting in part.
I agree with the majority that the evidence was suffi-
cient to support the trial court’s verdict of guilty on
the charge of tampering with a witness in violation of
General Statutes § 53a-151. I write separately because
I also believe that the evidence was sufficient to support
the guilty verdict on the charge of breach of the peace
in the second degree in violation of General Statutes
§ 53a-181 (a) (5). Contrary to the majority, I do not
believe that State v. Baccala, 326 Conn. 232, 163 A.3d
1, cert. denied,     U.S. , 138 S. Ct. 510, 199 L. Ed. 2d
408 (2017) requires a different result.
   As related to the breach of the peace charge, the trial
court reasonably could have found the following facts.
On August 28, 2014, between 9 a.m. and 9:30 a.m., New
Canaan Parking Enforcement Officer Michael McCargo
was patrolling a municipal parking lot in the town’s
commercial district. Although there were a few parking
spaces that permitted up to fifteen minutes of free park-
ing, the majority of parking spaces required that the
motorist pay a fee to park. McCargo observed the defen-
dant’s car in space number two, which required pay-
ment of a parking fee that had not been paid by the
defendant. Accordingly, McCargo stopped his parking
enforcement vehicle in the parking lot’s travel lane near
the defendant’s car and issued a parking ticket.
McCargo noted a second unpaid vehicle parked in a
space near the center of the parking lot. He left his
vehicle, still parked near the defendant’s car, and
walked to the car at the center of the lot. McCargo was
in the process of issuing a ticket for the second vehicle
when the driver of that vehicle showed up. The driver
said that she did not know that she had to pay to park
there. The driver just left it at that.
   McCargo then walked back to his parking enforce-
ment vehicle. The defendant approached him stating:
‘‘[N]ot only did you give me a ticket, but you blocked
me in.’’ McCargo responded jokingly: ‘‘[T]hat’s because
I didn’t want you to get away.’’ The defendant explained
why he was parked in the lot and McCargo stated why
he had issued the ticket. McCargo noted the free fifteen
minute parking spaces nearby. Unhappy with the expla-
nation, the defendant said that the New Canaan Parking
Department was ‘‘unfucking believable.’’ As the defen-
dant said this, his demeanor changed as he emphasized
the profanities. At one point, McCargo advised the
defendant to watch what he said, to which the defen-
dant responded: ‘‘It’s freedom of speech.’’
    The encounter then escalated and the defendant said:
‘‘I know why you gave me a ticket. . . . [Y]ou gave me
a ticket because my car is white.’’ McCargo looked at
the defendant. The defendant continued: ‘‘[N]o, you’re
giving me a ticket because I’m white.’’1 The defendant
then turned and walked back to his parked vehicle. As
he walked, the defendant said ‘‘remember Ferguson.’’
    McCargo understood ‘‘Ferguson’’ to reference the
then recent incident in Ferguson, Missouri in which a
police officer had shot a black male. McCargo believed
the events in Ferguson had been quite recent—within a
few days of the encounter with the defendant. McCargo
considered the defendant’s comment to be a threat and
believed that the defendant was implying that what
happened at Ferguson was going to happen to him. He
felt that the defendant was trying to ‘‘rile [him] up’’ and
‘‘just take it to a whole other level.’’
  Mallory Frangione, who was in the parking lot, wit-
nessed the confrontation between the defendant and
McCargo. She saw the defendant yelling and motioning
with his hands back and forth and up and down in an
aggressive manner and taking steps toward McCargo.
She also overheard the defendant reference Ferguson
and say ‘‘f’ing unbelievable.’’ Even though she was
approximately seventy feet away, witnessing the inci-
dent made her feel nervous and upset.
   After the ‘‘Ferguson’’ comment, the defendant and
McCargo returned to their respective vehicles. As they
were getting inside their vehicles, McCargo testified
that he heard the defendant say ‘‘fucking niggers.’’
McCargo pulled away and the defendant backed out of
his space and drove behind McCargo. The defendant
drove his vehicle around McCargo’s vehicle and, as he
passed, he looked at McCargo and again said: ‘‘[F]uck-
ing niggers.’’ This was said louder than the first time.
While saying this, the defendant had an angry expres-
sion on his face and spoke in a loud and angry tone.
   McCargo was shocked and appalled by the remarks.
When McCargo advised his supervisor of the incident,
he was clearly upset. His supervisor encouraged him
to make a report to the New Canaan Police Department,
and he did so.
    In considering the defendant’s challenge to his con-
viction for breach of the peace in the second degree, we
apply a two-part test. ‘‘First, we construe the evidence
in the light most favorable to sustaining the verdict.
Second, we determine whether upon the facts so con-
strued and the inferences reasonably drawn therefrom
the [finder of fact] reasonably could have concluded
that the cumulative force of the evidence established
guilt beyond a reasonable doubt.’’ (Internal quotation
marks omitted.) State v. Cook, 287 Conn. 237, 254, 947
A.2d 307, cert. denied, 555 U.S. 970, 129 S. Ct. 464, 172
L. Ed. 2d 328 (2008). More specifically, as to the present
case, to establish the defendant’s violation of § 53a-
181 (a) (5), the state was required to prove beyond
a reasonable doubt that the defendant’s words were
‘‘fighting words’’ that were likely to ‘‘induce immediate
violence by the person or persons to whom [they were]
uttered because of their raw effect.’’ State v. Caracoglia,
78 Conn. App. 98, 110, 826 A.2d 192, cert. denied, 266
Conn. 903, 832 A.2d 65 (2003).
   ‘‘In cases where [the line between speech uncondi-
tionally guaranteed and speech which may be legiti-
mately regulated] must be drawn, the rule is that we
examine for ourselves the statements in issue and the
circumstances under which they were made to see if
they are consistent with the first amendment. . . . We
undertake an independent examination of the record
as a whole to ensure that the judgment does not consti-
tute a forbidden intrusion on the field of free expres-
sion.’’ (Citations omitted; internal quotation marks
omitted.) State v. Baccala, supra, 326 Conn. 251.
  The majority is correct that, in announcing its verdict,
the trial court conflated the physically aggressive
aspects of the encounter with the racial epithets that
came later. The record is clear that the two aspects of
the incident were separate. Notwithstanding the trial
court’s remarks, in my view, the evidence supports the
defendant’s conviction of breach of the peace in the
second degree.
   The first amendment constitutional right to freedom
of speech, while generally prohibiting the government
from proscribing speech based on disapproval of its
content, does not protect ‘‘fighting words’’ that tend to
incite a breach of the peace. (Internal quotation marks
omitted.) Chaplinsky v. New Hampshire, 315 U.S. 568,
571–72, 62 S. Ct. 766, 86 L. Ed. 1031 (1942). ‘‘[F]ighting
words’’ are ‘‘personally abusive epithets which, when
addressed to the ordinary citizen, are, as a matter of
common knowledge, inherently likely to provoke vio-
lent reaction.’’ (Internal quotation marks omitted.)
Cohen v. California, 403 U.S. 15, 20, 91 S. Ct. 1780, 29
L. Ed. 2d 284 (1971).
   In State v. Baccala, supra, 326 Conn. 232, our
Supreme Court considered whether the angry outbursts
of a dissatisfied customer directed at a manager of a
supermarket were sufficient to support her conviction
for breach of the peace in the second degree. This was
no ordinary dispute. The defendant became very angry
when she became aware that she would not be able to
pick up a Western Union money transfer. Id., 235–36.
The defendant, in a loud voice, called the store manager
a ‘‘fat ugly bitch’’ and a ‘‘cunt’’ and said ‘‘fuck you, you’re
not a manager’’ all the while gesticulating with a cane.
(Internal quotation marks omitted.) Id., 236.
  In concluding that the defendant’s words were pro-
tected by the first amendment, our Supreme Court
noted several concepts pertinent to the fighting words
exception. First, the court noted that there are no per
se fighting words but, rather, words may or may not
be fighting words depending upon the circumstances
of their use. Id., 238–39. Second, ‘‘[a] proper contextual
analysis requires consideration of the actual circum-
stances as perceived by a reasonable speaker and
addressee to determine whether there was a likelihood
of violent retaliation. . . . A proper examination of
context also considers those personal attributes of the
speaker and the addressee that are reasonably apparent
because they are necessarily a part of the objective
situation in which the speech was made.’’ (Citations
omitted.) Id., 240–41. Finally, the court’s task is to
‘‘determine on a case-by-case basis all of the circum-
stances relevant to whether a reasonable person in the
position of the actual addressee would have been likely
to respond with violence.’’ Id., 245. It is the ‘‘tendency
or likelihood of the words to provoke violent reaction
that is the touchstone of the Chaplinsky test . . . .’’
(Internal quotation marks omitted.) Id., 247.
   Given the Baccala decision, one may fairly pose the
following question: If angrily calling a store manager a
‘‘fat ugly bitch’’ and a ‘‘cunt’’ is not breach of the peace,
how can the words used in the present case be consid-
ered fighting words that would support a conviction
for breach of the peace? This is essentially the position
of the majority. The majority rests its reversal of the
breach of the peace in the second degree conviction
on two grounds. First, that, under the circumstances
in which the defendant used the language, it was not
likely to provoke a reasonable person in McCargo’s
position to immediately retaliate with violence. Second,
that a parking official should expect frustration from
persons who receive parking tickets and therefore not
be likely to retaliate with immediate violence.
   As to the second ground, there is nothing in the record
to support the assertion that a ‘‘parking official’’ is less
likely to respond to a provocative racial insult than
any other person. In McCargo’s experience, there were
people who were not happy about receiving a parking
ticket. He testified, however, that no one had ever used
the level of language employed by the defendant.
   Turning to the first ground, that the language was
not likely to provoke a reasonable person to retaliate
with violence, I believe that this does not account for
the truly inflammatory and provocative language used.
The word ‘‘nigger’’ is commonly used and understood as
an offensive and inflammatory racial slur. See Merriam-
Webster’s Collegiate Dictionary (11th Ed. 2011) One
commentator describes its effect this way: ‘‘American
society remains deeply afflicted by racism. Long before
slavery became the mainstay of the plantation society
of the antebellum South, Anglo-Saxon attitudes of racial
superiority left their stamp on the developing culture
of colonial America. Today, over a century after the
abolition of slavery, many citizens suffer from discrimi-
natory attitudes and practices, infecting our economic
system, our cultural and political institutions, and the
daily interactions of individuals. The idea that color is
a badge of inferiority and a justification for the denial
of opportunity and equal treatment is deeply ingrained.
The racial insult remains one of the most pervasive
channels through which discriminatory attitudes are
imparted. Such language injures the dignity and self-
regard of the person to whom it is addressed, communi-
cating the message that distinctions of race are distinc-
tions of merit, dignity, status, and personhood. Not only
does the listener learn and internalize the messages
contained in racial insults, these messages color our
society’s institutions and are transmitted to succeeding
generations.’’ (Emphasis added; footnotes omitted.) R.
Delgado, ‘‘Words that Wound: A Tort Action for Racial
Insults, Epithets, and Name-Calling,’’ 17 Harv. Civil
Rights-Civil Liberties L. Rev. 133, 135–136 (1982).
   In Baccala, the court recognized the particularly hei-
nous nature of racial epithets in citing to In re Spivey,
345 N.C. 404, 480 S.E.2d 693 (1997) and In re John M.,
201 Ariz. 424, 36 P.3d 772 (App. 2001). State v. Baccala,
supra, 326 Conn. 242–43. In re Spivey, supra, 408, con-
cerned a removal proceeding for a district attorney who
repeatedly called a black bar patron ‘‘nigger.’’ In denying
the respondent’s claim that his use of the word was
protected by the first amendment, the Supreme Court
of North Carolina took judicial notice of the following:
‘‘No fact is more generally known than that a white
man who calls a black man ‘a nigger’ within his hearing
will hurt and anger the black man and often provoke
him to confront the white man and retaliate.’’ Id., 414.
The court went on to describe the respondent’s
repeated references to the bar patron as a ‘‘nigger’’ as
a ‘‘classic case of the use of fighting words tending to
incite an immediate breach of the peace . . . .’’ (Inter-
nal quotation marks omitted.) Id., 415.
  In In re John M., supra, 201 Ariz. 424, a juvenile
leaned out a car window and yelled ‘‘fuck you, you god
damn nigger’’ to an African-American woman walking
to a bus stop. Id., 425. In concluding that these words
were not protected speech, the Court of Appeals of
Arizona observed: ‘‘We agree with the [s]tate that few
words convey such an inflammatory message of racial
hatred and bigotry as the term nigger. According to
Webster’s New World Dictionary, the term is generally
regarded as virtually taboo because of the legacy of
racial hatred that underlies the history of its use among
whites, and its continuing use among a minority as
a viciously hostile epithet.’’ (Internal quotation marks
omitted.) Id., 428.
  In re Spivey and In re John M. are by no means the
only cases that have categorized the word ‘‘nigger’’ as
a fighting word. See, e.g., In re H.K., 778 N.W.2d 764,
767, 770 (N.D. 2010) (following a teenage girl of African-
American ancestry into a bathroom during a dance,
yelling at her and calling her a ‘‘nigger’’ and then ‘‘telling
[her she doesn’t] own this town, that they own this
town, and they don’t want niggers in their town and
that [she needed] to watch out’’ were fighting words
likely to incite a breach of the peace); Lee v. Superior
Court, 9 Cal. App. 4th 510, 518, 11 Cal. Rptr. 2d 763
(1992) (denying request of African-American applicant
to legally change his name to ‘‘Misteri Nigger’’ and stat-
ing: ‘‘We opine that men and women . . . of common
intelligence would understand . . . [the word, nigger]
likely to cause an average addressee to fight’’ [internal
quotation marks omitted]).
  The present case falls within the ‘‘fighting words’’
exception to first amendment protection for several
reasons. First, the words used by the defendant were
personally provocative. This was not a situation like
Cohen v. California, supra, 403 U.S. 20, in which the
defendant’s jacket bore the words ‘‘Fuck the Draft’’
directed at no one in particular. (Internal quotation
marks omitted.) Here, the defendant was directing per-
sonally provocative insults at McCargo. Second, the
racial animus expressed by the defendant was not
restricted to the ‘‘fucking niggers’’ comments. The
encounter between the defendant and McCargo almost
immediately took on a racial tone when the defendant
commented: ‘‘You’re giving me a ticket because I’m
white.’’ The defendant’s inflammatory reference to the
highly controversial shooting of an African-American
man by a white police officer—‘‘remember Ferguson’’—
only raised the tension more. Third, a witness approxi-
mately seventy feet away saw the defendant motion
with his hands back and forth, up and down in an
aggressive manner. Although she could not hear every-
thing, she heard the defendant reference Ferguson and
say ‘‘f’ing unbelievable.’’ She could tell that the defen-
dant was yelling and it upset her. Finally, the defendant
angrily and twice hurled the worst racial epithet in the
English language at McCargo with the ‘‘fucking nig-
gers’’ comment.2
   These were scathing insults that in many situations
would provoke a reflexive visceral response. The fact
that no such response occurred is not dispositive of
whether words are fighting words. See State v. Hoshijo
ex rel. White, 102 Haw. 307, 322, 76 P.3d 550 (2003)
(fact that violence was not precipitated is of no conse-
quence, as ‘‘proper standard is whether the words were
likely to provoke a violent response, not whether vio-
lence occurred’’ [emphasis in original]). Also, the fact
that the defendant was in his car at the moment that he
yelled his ‘‘fucking niggers’’ epithets does not eviscerate
their ‘‘fighting words’’ quality. Other cases have upheld
breach of the peace convictions on similar facts. See
In re John M., supra, 201 Ariz. 428–29 (the words ‘‘fuck
you, you god damn nigger’’ yelled at an African-Ameri-
can woman from a car as it pulled away were unpro-
tected fighting words). Moreover, the cumulative effect
of the entire incident constituted a breach of the peace.
    I recognize that there are those who advocate that
no speech, however vile and provocative, should be
subject to criminal sanction. See Note, ‘‘The Demise of
the Chaplinsky Fighting Words Doctrine: An Argument
for its Internment,’’ 106 Harv. L. Rev. 1129, 1140 (1993)
(recommending that Chaplinsky be overruled because
‘‘it is a hopeless anachronism that mimics the macho
code of barroom brawls’’ [internal quotation marks
omitted]); see also State v. Tracy, 200 Vt. 216, 237, 130
A.3d 196 (2015) (‘‘[i]n this day and age, the notion that
any set of words are so provocative that they can rea-
sonably be expected to lead an average listener to imme-
diately respond with physical violence is highly
problematic’’ [emphasis in original]).
   Steven Pinker, a psychology professor at Harvard
University, reflected on this change in attitude and
behavior when he wrote: ‘‘Centuries ago our ancestors
may have had to squelch all signs of spontaneity and
individuality in order to civilize themselves, but now
that norms of nonviolence are entrenched, we can let
up on particular inhibitions that may be obsolete. In
this way of thinking, the fact that . . . men curse in
public is not a sign of cultural decay. On the contrary,
it’s a sign that they live in a society that is so civilized
that they don’t have to fear being harassed or assaulted
in response. As the novelist Robert Howard put it, ‘[c]ivi-
lized men are more discourteous than savages because
they know they can be impolite without having their
skulls split.’ ’’ S. Pinker, The Better Angels of Our Nature
(Penguin Books 2011) p. 128.
   In Baccala, our Supreme Court left for another day
‘‘the continued vitality of the fighting words exception
. . . .’’ State v. Baccala, supra, 326 Conn. 240. In my
view, if angrily calling an African-American man a ‘‘fuck-
ing [nigger]’’ after taunting him with references to a
recent police shooting of a young African-American
man by a white police officer is not breach of the peace,
then that day has come.
  Because I believe that the evidence was sufficient to
support the defendant’s conviction of breach of the
peace in the second degree, I would affirm the judgment
of the trial court on that count.
  1
   The defendant is a white male and McCargo is an African-American male.
  2
   ‘‘The experience of being called ‘nigger’ . . . is like receiving a slap in
the face. The injury is instantaneous.’’ (Internal quotation marks omitted.)
Taylor v. Metzger, 152 N.J. 490, 503, 706 A.2d 685 (1998).
