STATE ex rel. Fred M. WILMOTH v. Arthur N. GUSTKE, Judge of the Circuit Court of Wood County, and Harry G. Deitzler, Wood County Prosecuting Attorney.
No. 18357.
Supreme Court of Appeals of West Virginia.
July 22, 1988.
Dissenting Opinion Oct. 21, 1988.
373 S.E.2d 484
Prohibition may be used as a means to test the constitutionality of a statute. See syl. pt. 1, Simms v. Dillon, 119 W.Va. 284, 193 S.E. 331 (1937), overruled on other grounds, State Road Commission v. Milam, 146 W.Va. 368, 120 S.E.2d 254 (1961). In State ex rel. Daily Mail Publishing Co. v. Smith, 161 W.Va. 684, 248 S.E.2d 269 (1978), aff‘d, 443 U.S. 97, 99 S.Ct. 2667, 61 L.Ed.2d 399 (1979), this Court prohibited proceedings under a statute which was ultimately found violative of the first amendment to the United States Constitution. Because the case now before us involves first amendment considerations, discussed infra in the body of this opinion, and for the reasons hereinafter stated, we find that prohibition is proper in this case.
Lonnie C. Simmons, Ditrapano & Jackson, Charleston, for Fred M. Wilmoth.
Silas B. Taylor, Jill Miles, Asst. Attys. Gen., Charleston, for appellees.
McHUGH, Chief Justice:
This case is before this Court upon a petition for a writ of prohibition against the respondents, the Honorable Arthur N. Gustke, Judge of the Circuit Court of Wood County and Harry G. Deitzler, the Wood County Prosecuting Attorney, to prohibit the scheduled trial of the petitioner, Fred Wilmoth, who is accused of violating
The statements of fact provided in the briefs of both parties do not differ on any significant point. There is no contention that the appellant used “fighting or insulting words” or physically hindered the officer in any way during their remonstration, discussed infra in the body of this opinion. In the interests of judicial economy, we are of the opinion that further proceedings in this case would be unnecessary. See Hinkle v. Black, 164 W.Va. 112, 118, 262 S.E.2d 744, 748 (1979).
On November 29, 1986, a police officer in the city of Vienna, West Virginia, was pursuing a vehicle whose license had expired. The police officer activated the flashing lights on his patrol car and began pursuing the driver. The driver pulled into a shopping center parking lot owned by the petitioner, and the officer followed, parking around the area of the main exit. While the officer was issuing a traffic citation, the petitioner approached the scene, asked the officer to leave his property and requested that the officer issue the citation elsewhere.
The petitioner indicated that he was concerned that the officer may be scaring away customers. The officer assured the petitioner that he would talk with him once he completed issuing the citation. The petitioner responded that he would get somebody to remove the officer from the premises. The officer then told the petitioner that if he persisted that he would be arrested for obstructing an officer. After warning the petitioner to cease, the officer arrested him and charged him with violating
The petitioner was subsequently tried in magistrate court and found guilty of obstructing an officer. He appealed his conviction to the Circuit Court of Wood County, which denied his motion for dismissal of the case.
II
Any person who by threats, menaces, acts or otherwise, shall forcibly or illegally hinder, obstruct, or oppose, or attempt to obstruct or oppose, or shall counsel, advise or invite others to hinder, obstruct or oppose any officer in this State (whether civil or military) in the lawful exercise or discharge of his [or her] official duty, shall, for every such offense, be guilty of a misdemeanor[.]
The petitioner contends that enforcement of
In State v. Johnson, 134 W.Va. 357, 59 S.E.2d 485 (1950), this Court interpreted
More recently, in applying
Our observation in Jarvis is consistent with the general rule that when done in an orderly manner, merely questioning or remonstrating with an officer while he or she is performing his or her duty, does not ordinarily constitute the offense of obstructing an officer. See, e.g., State v. Avnayim, 24 Conn.Sup. 7, 8-12, 185 A.2d 295, 297-98 (Super Ct.1962); McCook v. State, 145 Ga.App. 3, 5, 243 S.E.2d 289, 291 (1978); People v. Weathington, 82 Ill.2d 183, 187, 44 Ill.Dec. 496, 500, 411 N.E.2d 862, 864 (1980); State v. Leigh, 278 N.C. 243, 251, 179 S.E.2d 708, 713 (1971); State, In re Goodman, 531 P.2d 478, 479 (Utah 1975); 67 C.J.S. Obstructing Justice § 7 (1978); see generally annotation, What Constitutes Obstructing or Resisting an Officer, In the Absence of Actual Force, 44 A.L.R.3d 1018, §§ 6 and 7 (1972).
The petitioner submits that a factual situation similar to the one in the case before us was recently addressed by the Supreme Court of the United States in City of Houston v. Hill, 482 U.S. 451, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987). In Hill, two police officers approached and questioned a person who was stopping traffic on a busy street, evidently to allow a vehicle to enter traffic. While the officers were questioning his friend, the defendant began shouting at the officers in an attempt to divert their attention. One of the police officers then asked the defendant if he was trying to interrupt him in his official capacity as a Houston police officer to which the defendant replied yes and suggested to the officers that they pick on someone their own size. The defendant was arrested for “wilfully or intentionally interrupt[ing] a city policeman . . . by verbal challenge during an investigation” in violation of a Houston city ordinance.3
In Hill, the court determined that the first amendment protects a significant amount of verbal criticism and challenge directed at police officers.4
Moreover, the record in Hill contained ample evidence that the statute had been applied in many instances to persons who were doing nothing more than talking or arguing with the police. The court concluded that the ordinance criminalized a substantial amount of constitutionally protected speech and impermissibly accorded the police unguided discretion in enforcement. 482 U.S. at 467, 107 S.Ct. at 2512, 96 L.Ed.2d at 415.6
We agree with the petitioner and find that the United States Supreme Court‘s decision in Hill controls our disposition of the case now before us. Under the facts of this case, the application of
For the foregoing reasons, the writ of prohibition seeking to prevent the petitioner‘s scheduled trial for allegedly violating
WRIT GRANTED.
BROTHERTON, Justice, dissenting:
I must dissent from the opinion of the majority which holds that the application of
I agree with the majority that every person has a right to question or challenge the authority of a police officer, but with cer-
The majority relies on the United States Supreme Court decision in City of Houston v. Hill, 482 U.S. 450, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987), in support of their conclusion. Hill, however, can be easily distinguished from the facts at hand. Hill dealt with an overbroad ordinance which prohibited any interruption of an officer in the execution of his duty. The Court specifically held the ordinance punished a verbal interruption rather than the core criminal conduct.3 Justice Brennan, speaking for the majority, struck down the ordinance as facially overbroad and found the ordinance “criminalized” a substantial amount of constitutionally protected speech.4
In this case, the plaintiff did not allege, nor did the majority find, that
In any case, today‘s decision does not leave municipalities powerless to punish physical obstruction of police action. For example, Justice Powell states . . . “that a municipality constitutionally may punish an individual who chooses to stand near a police officer and persistently attempt to engage the officer in conversation while the officer is directing traffic at a busy intersection.” We agree, however, that such conduct might constitutionally be punished under a properly tailored statute, such as a disorderly conduct statute that makes it unlawful to fail to disperse in response to a valid police order or to create a traffic hazard. What a municipality may not do, however, and what Houston has done in this case, is to attempt to punish such conduct by broadly criminalizing speech directed to an officer-in this case by authorizing the police to arrest a person who in any manner verbally interrupts an officer.
(citations omitted). 482 U.S. at 462-463, 107 S.Ct. at 2510, 96 L.Ed.2d at 412-13.
Justice Brennan then noted that:
Justice Powell also observes that “contentious and abusive” speech can interrupt an officer‘s investigation, and offers as an example a person who “run(s) beside (an officer pursuing a felon) in a public street shouting and cursing the officer.” But what is of concern in that example is not simply contentious speech, but rather the possibility that by shouting and running beside the officer the person may physically obstruct the officer‘s investigation. Although that person might constitutionally be punished under a tailored statute that forbade individuals from physically obstructing an officer‘s investigation, he or she may not be punished under a broad statute aimed at speech.
I believe the case at hand falls squarely within the exception identified by both the majority and the dissent in Hill. Surely the majority would have to concede this situation is analogous to the examples described in Hill, where Justice Brennan concluded an individual could constitutionally be punished under a properly tailored statute which prohibited the obstruction of an officer‘s investigation.
Unlike the ordinances struck down in Lewis and Hill,
Critical to the analysis is Justice Brennan‘s observation that in the listed examples, the concern was not simply contentious speech, but the possibility the individual would physically obstruct the officer. One must recall that in the facts at hand, the plaintiff threatened to have the officer removed from the premises if he did not stop performing his official duty. Certainly a clear possibility existed that the plaintiff would attempt to make good on his threat. Neither the Supreme Court in Hill nor
Notes
This approach is consistent with the United States Supreme Court‘s invocation of the concept of “substantial overbreadth,” a criterion developed to avoid striking down a statute on its face simply because it might be applied in an unconstitutional manner. Secretary of State v. Joseph H. Munson Co., 467 U.S. 947, 964, 104 S.Ct. 2839, 2851, 81 L.Ed.2d 786, 801 (1984). This concept is appropriate in cases, where, despite some impermissible application, the “remainder of the statute . . . covers a whole range of easily identifiable and constitutionally proscribable . . . conduct[.]” United States Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 580-81, 93 S.Ct. 2880, 2898, 37 L.Ed.2d 796, 817 (1973). In such cases, a litigant is required to demonstrate the statute “as applied” to him or her is unconstitutional. Munson, 467 U.S. at 965, 104 S.Ct. at 2851, 81 L.Ed.2d at 801.
Recently, we applied the overbreadth doctrine, as opposed to the concept of “substantial overbreadth,” in holding that the sweeping language of a challenged statute,
Admittedly, the language embodied in
However, the court observed in Hill that the “fighting words” exception recognized in Chaplinsky may “require a narrower application in cases involving words addressed to a police officer, because ‘a properly trained officer may reasonably be expected to “exercise a higher degree of restraint” than the average citizen, and thus be less likely to respond belligerently to “fighting words.“‘” 482 U.S. at 462, 107 S.Ct. at 2510, 96 L.Ed.2d at 412 (citation omitted).