*1 viсe, The reason to be admitted hac attorneys seeking pro based be must nonresidents is to upon comity, attorneys prevent are who not Hcensed in Arkansas from law here ad hoc. practicing If residents Hcensed elsewhere were in that permitted practice manner, the could swaUow the rule. exception easily
While there is Httle doubt that Mr. SulHvan is qualified Willett, it is that there is a lack represent equally apparent XIV, with Rule and we have before us neither compfiance argu- ment nor citation to that there is or authority should be suggesting an case. this exception BAILEY v. STATE of Doyle Arkansas
James
CR 97-1442
Opinion July *4 Etoch, Firm, Etoch Louis A. for Law by: appellant. Gen., S. Winston Ass’t Kelly Att’y Bryant, Att’y by: Terry, Gen., for appellee. The W.H. “Dub” Chief appellant, James Arnold, Justice. was convicted in Monroe Circuit Court County
Doyle Bailey, conduct, intoxication, arrest, and and resisting disorderly public $625.00. was ordered fines Mr. to pay totaling Among on four is his contention that the con arguments appeal statute, duct Ark. Code Ann. 5-71-207 is uncon 1997), (Repl. stitutional and the as written as to him under First applied Thus, Amendment the United Constitution. our States juris diction is to Ark. Ct. and (b)(6) 1-2(b)(3) pursuant Sup. We find no merit to Mr. of error and affirm Bailey’s allegations the trial court’s judgment.
At 12:30 a.m. on October Mr. Bai- approximately Brock, and his Brenda were involved in a ley one-vehi- girlfriend, cle accident Mr. near after Bailey’s apartment Brinkley. Shortly accident, Police Officer Bill Geater went to Mr. Bai- Brinkley residence to of the ley’s wreck. He observed a investigate report in the vehicle and found damaged Mr. driveway Bailey sitting outside on concrete to the front of his steps leading up porch Brock Ms. from the at apartment. residence Officer emerged Geater’s but went back inside when Arkansas State request, Newton arrived. Officer Trooper Geater followed her Ricky inside Geater, and her back out. brought Officer According “Mr. was me at this time. He on the was front Bailey cussing He called me MF or SB. I asked tо be porch. mainly him quiet.” meantime, In the Police Officer Ed had Randle arrived. Brinkley that, Officer testified Randle when he Mr. approached steps, Bailey arm,
stood grabbed byme up upper my part said some biceps. things to me told me to profane leave his friend alone. I him told to sit down and be He quiet. did and be sit down quiet. testified Newton that the officers were
Trooper to Ms. tending Brock when Mr. Bailey “starting getting belligerent.” “first said in the form ‘You all something the hell from get away Newton, here and leave us alone.’” observed who Trooper intoxicated, was him responded asking quiet *5 down.
The officers took Ms. to the Brock street in front of Trooрer car Geater, Newton’s to examine her. to patrol Officer According to use Mr. remained on the but porch, pro- Bailey “continu[ed] let us conduct I told him several times to be and at us. quiet fanity testified that Mr. our Newton Bailey investigation.” Trooper “Fuck and fuck too.” you, stated at this you, nigger, point, loud that became and “very Officer Randle testified Mr. Bailey his It Officer with was Geater’s testimony profane language.” down,” that, to or ten times he after him telling “eight quiet he Mr. and told him that was under arrest for walked to Bailey up conduct and intoxication. public who was on the Geater instructed Mr. Bailey, sitting Officer on to stand and his hands the banister. It was frоnt put steps, up to Mr. and Officer Geater’s intention handcuffs on Bailey place However, down to check for Mr. who Bailey, him weapons. pat officers, to direct at the “stiffened and continued up profanity Newton, be he wasn’t to cuffed.” who decided going Trooper Brock, came over to Officer Geater. was with Ms. assist dealing Newton, to Mr. had his arm “in Bailey right According Trooper not it.” firm control where Officer Geater could budge Trooper an left arm in arm lock behind his Newton then Mr. Bailey’s put Officer still could not Mr. Bailey’s back. When Geater get right back, told arm his Newton Officer Geater that behind Trooper to the Randle thеn needed to “take him Officer they ground.” behind, over, held from and his foot to take came Mr. used Bailey held him feet as the other two officers his arms. off his Mr. still four men fell to the and contin- ground, All ued at the with his arms. He officers struggle. began swing times, At he would his arms underneath his chest so that the put not the officers were officers could handcuff them. When still Mr. Newton instructed the unable to handcuff Bailey, Trooper he him two officers to “roll off” so that could with other spray Newton used the Officer pepper spray. Trooper spray, pepper with Neither chemi- Randle a chemical foam. sprayed head like cal on Mr. “shook his had effeсt who Bailey, simply off the and looked at us and said fuck came ground you on the once After officers again.” put ground time, more, This he “was with arms.” just flailing away try Newton used his baton Bailey’s police pry Trooper After Mr. arm free so that it could be handcuffed. right *6 secured, he was still with his away arm was finally “flaying right “a and left arm back After lot of roll- wrestling get up.” trying Geater, the around on to Officer ing ground,” according they were able handcuff Mr. Bailey. finally continued, however, the The even after officers struggle on the handcuffs Mr. When tried to him placed Bailey. they place car, in the he the stood outside door and refused to in patrol get the car. After Officers Geater and Randle Mr. placed physically car, he the to kick the officers. After Bailey attempted being the Police Mr. was transported Brinkley Department, Bailey interviewed. A of the videotape exchange depicts officers, at the such words as shouting profanities using “motherfucker,” “asshole,” and “nigger.” was information with three charged by felony officer, counts of a second-degree battery against police resisting arrest, officer, interference with a law enforcement con- disorderly duct, trial, and intoxication. Prior to the trial court public dis- missed two of the and the interference-with-a- battеry charges trial, law-enforcement-officer charge. Following jury jury found Mr. not of the guilty but remaining battery charge, arrest, found conduct, him of the guilty and resisting intoxication for which the public trial court charges, imposed $500.00, $75.00, $50.00, fines of Fie now respectively. these convictions. appeals —
I. the evidence arrest and Sufficiency resisting intoxication public error, For first allegation Bailey essentially claims that trial court should have directed a verdict on the resisting-arrest public-intoxication because the State’s charges evidence insufficient was these claims. willWe review support the State’s evidence as it relates to еach of these offenses under the standards: following for
Motions
directed verdict are treated as
to the suffi-
challenges
State,
3,
evidence.
ciency
326 Ark.
929 S.W.2d
Johnson
State,
707 (1996); Penn v.
319 Ark.
to the state. Dixon
if the trier
is sufficient to
conviction
(1992). Evidence
support
*7
to resort to
having
specu-
can reach a conclusion without
of fact
evidence is that which is
or
Id. Substantial
conjecture.
lation
to
to
reasonable minds
reach conclu-
forceful enough
compel
the
the other. Id.
evidence
ver-
Only
supporting
one
orway
sion
State,
315
S.W.2d
will be considered. Moore
Ark.
864
dict
863
State,
332 Ark.
Lloyd
State,
458, 466-7, 956
McGeheev.
(1997);
330 Ark.
S.W.2d
404, 410,
Ark.
Mr. claims his Bailey resisting-arrest failed that he used cannot stand because the State to prove physical found the officers. The statute is at force against resisting-arrest Ann. 5-54-103 and states in that: 1997), Ark. Code (Repl. part § A commits the offense of arrest if he know- (a)(1) resisting person him to a law resists a known be enforcement ingly person arrest; officer an effecting subsection, “Resists”, using as used in this means or (2) threatening creates to use force or other means that a substantial any physical added.) injury any person. risk of to physical (Emphasis the of subsection the actual use (a)(2), language According plain “resist” under the statute. force is one toway of only physical that a can threaten to use This subsection also provides person Thus, and the “resist” element. Mr. Bai- force thus satisfy physical that the State was that he actu- contention prove ley’s required never used force is While Mr. Bailey ally physical unpersuasive. officers, there evidence or struck was ample any punched that he with them when continuously struggled they indicating at the handcuffs on him. He repeatedly swung place attempted to kick two them even after he was officers and attempted in car. Under these cir- handcuffed and finally placed patrol cumstances, evidence Mr. Bailey’s there was substantial supporting arrest. conviction resisting charge,
Regarding public-intoxication he intoxicated. Par that the State failed to that was prove argues at the scene never administered he officers asserts ticularly, that he was or to administer test to confirm intoxi- attempted issue, cated. Ark. Ann. 5-71-212 The statute at Code (Repl. in relevant that: 1997), part provides A if he (a) commits offense intoxication person public in a under the influence of alco- appears public place manifestly hol or a controlled substance to the and under circum- degree stances such that he is himself or other endanger persons or or that he unreasonably annoys property, persons vicinity. trial,
At
admitted that he had two drinks at a
private
club on the
of his arrest.
testified that he
Officer Geater
night
was
intoxicated”
because he
thought
“extremely
alcohol,
smelled of
had
glassy, blurry,
watery eyes,
because of the
that he was
The officer’s
way
testi-
acting.
opinion
*8
State,
was admissible to
intoxication. Mace v.
Ark.
mony
328
prove
536, 540,
II. Ark. Code Ann. 5-71-207 Constitutionality (Repl. 1997) § of
Next, Mr. contends that his conviction for disorderly conduct cannot stand the because statute under which he was convicted, Ark. Ann. Code 5-71-207 is 1997), unconsti- (Repl. § overbroad both as written and as him. tutionally At the applied evidence, conclusion of all the was instructed on the first jury 5-71-207, three subsections of which provides: § if, (a) A person commits offense of disorderly conduct with inconvenience, to cause purpose public or alarm annoyance, thereof, or recklessly a risk he: creating violent, (1) in or Engages or fighting tumultuous threatening, behavior; or noise; (2) Makes unreasonable or excessive or (3) In а public uses abusive or obscene place, language, or makes an obscene in a manner gesture, a violent or provoke disorderly . . . response
52 it to have found subsection(s) which did not identify The jury However, in his brief that it is violated. apparent been that the he maintains subsection as (a)(3), is challenging to be critical of “First Amendment right violates his conduct law believed to be conduct he officers for the governmental inappropriate.” constitutionality
Our review challenges
are
to be
that statutes
with the
presumed
statutes begins
principle
Murders,
& Fish Comm’n
Arkansas Game
constitutional.
429,
426,
burden of
S.W.2d 854 (1997).The
proving
Ark.
unconstitutional,
said,
we have
is
challeng
upon
party
statute
constitutional, we
as
it
to construe
statute
it. Id. If
is
ing
possible
that
statute is one
is designed
must do so. Id. An overbroad
but which
the state
conduct which
may rightfully punish,
punish
Id.;
conduct.
constitutionally
includes within its sweep
protected
359-360,
speech, prevention punishment to raise Constitutional These include the thought any problem. obscene, libelous, lewd and and the or insulting profane, —words those which their utterance inflict “fighting” very or tend to incite an immediate breach of the injury peace. Id. at 571-572.
In
of his
that
conduct statute
support
argument
disorderly
overbroad,
Hill,
is
relies on Houston v.
in
facially
supra,
which the United States
Court struck down as
facially
overbroad a
ordinance that made it “unlawful for
city
any person
molest, abuse,
tо ...
manner
or
any
oppose,
interrupt any
in the execution of his
Subsection
of the
(a)(3)
conduct statute
disorderly
pros
cribes
in a
speech
gestures,
that are “abu
spoken
public place,
sive or obscene” and
a violent or
“likely
provoke
disorderly
from the listener.
It
response”
“no
for us to
requires
great leap”
interpret
violent or
“likely
provoke
disorderly response”
in subsection
language
as
(a)(3)
words”
incorporating
“fighting
rule in
v. New
Chaplinsky
See United Food &
Hampshire, supra.
Commercial
Inc.,
WorkersInternational
IBP,
Union v.
In any must Bailey’s argument inevitably fail because the conduct statute was disorderly properly applied his conduct. words, While he refers us to his use of the “motherfucker,” “asshole,” and inter “nigger” during taped station, view at the it was Mr. conduct police at his resi dence that his аrrest for conduct. prompted As Officer testified, Geater him, to curse him “MF” Bailey began calling *10 At the residence. Brock out of he Ms. when brought or “SB” stated, Newton, Mr. Bailey one according Trooper point, Randle too.” When Officer and fuck “Fuck you, you, nigger, Mr. arrived at scene Bailey arm, the my biceps. me upperpart
stood and
up
grabbed
me to leavehis
to me and told
things
said some
profane
sit
and be
He did
him to sit down
quiet.
alone. I told
friend
added.)
down and be quiet. (Emphasis
words to the
direct various
did Mr. Bailey’s
fighting
Not only
conduct,
stand-
officers,
such as
his surrounding
when considering
arm,
he
conclude that
Randle’s
we
Officer
ing
grabbing
up
a violent or disоr-
manner
words “in a
provoke
used these
Moreover,
act of
under
5-71-207(a)(3).
derly response”
§
in and
itself
Randle’s arm
Officer
grabbing
standing up
conduct
under
as this
(a)(1),
a conviction
subsection
supported
behavior.”
constituted “threatening
addition,
5-71-207
cannot challenge
In
in
be
that it
conceivably
applied
hypothetical
on
ground
may
v.
III. instructions Jury the trial court further Mr. Bailey argues three instructions erred in jury following refusing give that he proffered:
55 FREEDOM OF SPEECH The free communication of and is one of thoughts opinions the invaluable of man and shall not be rights abridged. Arkansas, of the of Authority: Constitution State Article Constitution, Sect. 6 and United States Amendment One.
Defendant’s Proffered Instruction Jury No.l.
FREEDOM OF SPEECH The free of communication is one thoughts opinions of rights invaluable of man. Arkansas, Constitution of the of Authority: State Article Sect. 6.
Defendant’s Proffered Instruction 2. Jury No. OF
FREEDOM
SPEECH
An individuаl
be
may not
for
or
punished
words
conduct
that are
or
simply
offensive.
annoying
Houston,
Hill,
Authority: City
Texas v.
On
cites no case law or
appeal,
other
authority
sup-
his contention that the trial
port
court erred in
refusing
give
these instructions to the
We have
stated
jury.
often
that we will
not consider an
where the
argument
no citation
appellant presents
or
no
makes
authority
of
convincing argument
support
error,
it
of
is not
allegation
without further research
apparent
that the
State,
is well-taken.
Williams v.
argument
325 Ark.
IV. Cross-Examination Trooper *12 he denied contends that was Finally, Bailey Newton. Particu his cross-examine effectively Trooper right ask to allow Mr. Trooper the trial court refused larly, to Monroe because County whether he was transferred Newton The his had the of an accident involving girlfriend. he left scene issue, in 608(b), rule at A.R.E. perti relevant evidentiary provides nent that: part witness, for the of the conduct of a purpose instances
[sjpecific
other than conviction
credibility,
or
his
attacking
of
supporting
in
not be
extrin-
may
a crime as
Rule
proved
of
provided
court,
however, in
of
the discretion
the
They may,
sic evidence.
untruthfulness,
on
be
into
inquired
if
of truthfulness or
probative
his
for
(1)
the witness
character
concerning
cross-examination of
. . .
truthfulness or untruthfulness
conduct on
rule to
into
We have
this
inquiries
interpreted
permit
or
of truthfulness
cross-examination
are clearly probative
untruthfulness,
into
but
to disallow cross-examination
specific
State,
of
v.
dishonesty.
instances that are merely
Laughlin
probative
489, 498,
have
we
316 Ark.
Based on the we affirm the trial court’s foregoing, judgment. and concur in dissent in Imber, JJ., part, part. Newbern in Newbern, Justice, part dissenting concurring David case, Ann. As in this Ark. 5-71-207 Code part. applied violates First Amendment to Constitution of 1997) (Repl. the United States. Mr. conviction of conduct Bailey’s be The should reversed. majority correctly rejеcts to the evidence his challenge sufficiency supporting convictions and resisting-arrest public-intoxication rejects instructions and the arguments concerning cross-examination jury Newton. Trooper *13 The received instructions on the jury conduct disorderly based the three subsections of charge upon 5-71-207: following § if,
(a) A commits the offense of person disorderly conduct inconvenience, with the to cause purpose or public annoyance, thereof, alarm or the recklessly risk he: creating violent, in (1) Engages or in fighting threatening, or behavior; tumultous or noise;
(2) Makes unreasonable or excessive or (3) In a uses or publiс place, abusive obscene language, or makes an obscene in gesture, a manner provoke violent or disorderly .... response; The verdict of finding conduct guilty disorderly did not the or specify on which it statutory ground grounds rested. We can therefore affirm Mr. conduct Bailey’s disorderly conviction if each is only subsection constitutional “on face” its If, and “as “in of the applied.” light instructions the trial given by the could have jury rested its verdict on of a of judge, number any and if grounds,” conviction on a “would violate particular ground Constitution,” the conviction must be reversed even if it could Bachellar and constitutional” ground. have rested on a “severable U.S. 569-70 (1970). Maryland, sufficient a dis that the evidence was to support Conceding on or of (a)(1) (a)(2) conduct conviction either subsection orderly statute, remains a conviction whether pursuant question That subsection violate the First Amendment. pro would (a)(3) or from “abusive obscene hibits a “in using public place” person in a “an obscene manner likely or making gesture, language,” to Mr. Bai a violent or In disorderly response provoke response.” overbroad, the is (a)(3) major that subsection ley’s charge facially as that it must be construed only holds ity correctly prohibiting decisions as that has been by words” “fighting concept dеveloped U.S. As Court Court. Supreme Judicial observed, of crimi Maine has narrow interpretation judicial “[a] is in order to insure that nal statutes necessary affecting speech which is not they prohibit only constitutionally protected.” speech construed, W., 1980). 418 A.2d So (Me. State v. John facial-overbreadth chal 5-71-207(a) survives (3) § Therefore, a conviction based on subsection would (a)(3) lenge. not be unconstitutional on account overbreadth. for 5-71-
A conviction conduct based upon § would, however, rest “an unconstitutional ground,” on 207(a)(3) subsection, “as 397 U.S. at if Bachellar Maryland, for in short to Mr. him Bailey, speech applied” engaging punished of Mr. falls into that words.” None Bailey’s speech “fighting Therefore, disor- if the convicted for jury category. it con- 5-71-207(a) (3), conduct derly necessarily pursuant the First victed him for engaging speech protected *14 Amendment. that, “in First Court has directed cases
The Supreme
raising
court has an
Amendment
issues ...
an
obligation
appellate
‘make
examination of the whole record’ in order
an independent
a
to make sure that ‘the
does not constitute
forbidden
judgment
” Gentile v. State Bar
intrusion on the field of free expression.’
Nevada,
1030,
omitted).
1038 (1991) (citations
501 U.S.
...
a rule
review
is
independent
The
“requirement
appellate
us
.... This
rests
obligation
upon
of federalconstitutionallaw.”
59
beсause the reaches of the First Amendment are ultimately
simply
embrace,
defined
it is held to
and we must thus
by
facts
decide for ourselves whether
course of conduct falls on
given
the near or far side of the fine of constitutional protection.
v. Irish-American
Lesbian & Bisexual
515 U.S.
Hurley
Gay,
Group,
557,
McPherson,
567
See also Rankin v.
(1995)(citations omitted).
378,
483
386 n.9
ultimate
U.S.
issue—whether the
(1987)(“The
is
Bachellarv.
law”);
speech
protected-
question
Maryland,
—is
A review of the “whole record” in this case shows that Mr. did not utter words” that could have sub- any “fighting him to under jected punishment 5-71-207(a) (3) consistently § with the First Amendment. are words” words “which “Fighting their utterance inflict by very or tend to incite an immedi- injury ate breach of the v. New 315 peace.” U.S. Chaplinsky Hampshire, 568, 572 Such in order to fall outside the language, pro- Amendment, tection of the First must “have a direct tendency whom, cause acts of violence by person individually, addressed,” remark is Wilson, 405 U.S. Gooding and it must (1972), a likelihood “that produce person addressed would make an immediateviolent Id. at 528 response.” The added). Court has (emphasis con- Supreme “consistently strued words’ set forth in ‘fighting nar- exception Chaplinsky Paul, R.A.V. v. St. rowly.” U.S. 428 (1992)(Stevens,J., also concurring See Diehl v. 451 A.2d judgment). 120 (Md. decisions 1982)(“Later indicate the following Chaplinksy Court’s desire to limit the broad of the doc- implications trine and to that the use of an offensive recognize does expletive not, itself, 4 Ronald D. deprive speech protection”); E. Nowak, Rotunda & Treatise on Constitutional John 20.40, at ed. (2d Law: Substance and Procedure p. Court “does not look with favor on 1992)(stating Supreme prose- cutions for ‘fighting words’”).
60 abusive
The
conveys
majority opinion adequately
Mr.
of the words used
addressing
by
offensive quality
and Randle. After
Newton and Officers Geater
listing
Trooper
concludes that
majority
some of
expletives,
that, when
to the officers” and
various
words
fighting
“directed]
conduct,
“his
such as stand-
with
surrounding
considered together
arm,” Mr.
. . . Officer Randle’s
ing up
grabbing
a violent or
“in
manner
provoke
speech
employed
[a]
5-71-207(a) (3)).
disorderly response” (quoting §
the utterance must first be examined to
As
context of
“[t]he
”
words,’
v.
are
determine whether the words
truly ‘fighting
People
267,
525,
N.Y.S.2d
273
Prisinzano,
(N.Y.
170 Misc.2d
648
City
Paul,
v.
In Cohen
403 U.S.
California,
held that the defendant had not used
words”
Court
“fighting
with the
when he wore a
in a courthouse hallway
jacket
inscrip-
“Fuck the Draft” on the back. The
Court of
tion
Maryland
once observed that “the use of the word ‘fuck’ is not pun-
Appeals
State, ishable in the absence of
reasons.” Diehl v.
compelling
See,
in accord.
R.I.T. v.
A.2d at 122. Other cases are
e.g.,
*16
statement,
to officer held not to be
“fuck you,”
supra (juvenile’s
Mr. used almost at Bailey his resi- every expletive imaginable arrest, dence and at the station but the record is following officers, devoid of that the or any testimony else who anyone scene, have been at either might were present likely respond with immediate violence. residence,
While at Mr. the officers Bailey’s to his responded remarks him to be and allow them to conduct requesting quiet their The officers never in their investigation. suggested testimony incited, incite, that Mr. tirade or was even them to violence. Even when Mr. Officer Randle’s Bailey grabbed arm, the officer not with violence but responded by instructing “to sit down and be directive with which Mr. quiet,” arrested in was not Bailey immediately complied. Randle. Officer movement against to his physical response Rather, use of continuous profanity, spite it was Mr. Bailey’s Officer Geater to be the officers’ quiet, prompted request conduct. for disorderly arrest Mr. Bailey station, but, at the also used police profanity that his tended to there is no testimony suggest speech again, *17 with violence. listeners to immediatеly incite respond potential were amused that the officers by the record shows To contrary, invective. Mr. Bailey’s addition, that Mr. Bailey in the record suggests
In nothing his verbal assault. to the officers was situated during closely cannot be classified as held that “fighting Courts have speech he or she is defendant and the addressing words” unless the person “face to another and are essentially situated to one are closely Prisinzano, at 272 and 274 n.3 (stat- v. 648 N.Y.S.2d face.” People have examined the face-to-face “the courts which require- ing close it as for calling extremely physical ment have interpreted 381, Commonwealth, v. 14 Va.App. proximity”)(citing Hershfield 876, 383-385, v. 537 S.W.2d 878 (1992); 417 S.E.2d Garvey 709, As the 1975)). Supreme 711 (Tenn.Crim.App. Judicial direct, observed, a has words’ Court of Maine “‘fighting implies . . .” v. and . State face-to-face confrontation provocation John W., A.2d at 1105-06. 418 officers, as he was arrest occurred addressing street, No evi- from the of his front
located on the
steps
porch.
encounter.
that there was
face-to-face
dence suggests
consider the
to whom
it is
to
—
Finally,
important
people
Powell
remarks
officers. As
directed his
police
Justice
New
in Lewis v.
in his
City
concurring opinions
suggested
of
and
63 tice Powell’s was Court quoted by opinion favorably Hill, 451, v. more in Houston 482 462 and (1987), U.S. recently states, has been see courts other State approved by John 1104; W., Grince, 418 A.2d at Toledo 48 Ohio City App.3d 548 N.E.2d not unreasonable (1989)(“It is that a officer should be able to withstand such insults expect police without well as as the drafters of the Model Penal retaliating”); Code. See American Institute, Law Model Penal Code 250.2, Comment 349-53 at pp. and Commentaries however, courts, Other have declined rule adopt any would alter the words” on the basis that the “fighting analysis addressee See, is officer. Hock, Commonwealthv. police e.g., A.2d 225 A officer’s 1997). and (Pa.Super. police background are at the least factors relevant in training very determining whether as speech words.” qualifies “fighting officers,
Law-enforcement while “hard-working” of “better treatment from deserving members still public,” must “boorish, crass, endure a fair amount that is speech least, at initially, Ariz., Duran v. unjustified.” Douglas, City of *18 F.2d Cir. (9th Such conduct on the 1990). of an part individual is but “it not criticism of “disgraceful,” illegal; [is] Hill, is not a Id. crime.” police Houston v. (citing supra). acted toward the officers on clearly disgracefully scene, but absent show that officers were testimony violence, to Mr. with immediate respond Bailey’s speech the First Amendment that we reverse the requires conviction for conduct.
I dissent. respectfully
Imber, J., joins in this dissenting opinion.