Lead Opinion
OPINION
delivered the opinion of the Court,
The defendant was convicted of disorderly conduct and sentenced to thirty days in jail, to be served on probation. On direct appeal, the Court of Criminal Appeals reversed, holding that the evidence was insufficient. This Court granted the State permission to appeal in order to consider the admissibility of a racially derogatory term, to review the sufficiency of the evidence, and to determine whether the conviction violated the constitutional right to free speech. Because the disput
Background
A rally was scheduled at 2:00 p.m. on June 24, 2006, at the Hamblen County Courthouse grounds in Morristown by a group attempting to raise public awareness of the effects of illegal immigration. Organizers promoted the event with a pamphlet that extended a general invitation to attend the rally, “[b]ring your family, wave the American flag proudly, and display signage that educates.”
Lieutenant Chris Weisgarber, a training officer with the Morristown Police Department, was placed in charge of the planning and coordination of security for the rally. Because he had received information that between three and five hundred members of an Hispanic organization, having views on the immigration issue that were in conflict with the organizers of the event, also planned to attend, Officer Weisgarber, with the assistance of the Hamblen County Sheriffs Department and the Tennessee Highway Patrol, arranged a security force of between seventy-five and ninety law enforcement officers in an effort to avoid possible confrontations between the two groups. Some officers were stationed on the roofs of buildings, a number of squad cars were present, designated parking areas were established, and the perimeter of the rally area was marked with temporary orange fencing. At a checkpoint established by the police, attendants were screened and searched in order to assure that no weapons were present. The security plan permitted the American flag, but did not permit flagpoles of any size to be carried into the demonstration area for fear that they might either contain a hidden weapon or be used as a weapon. A single flagpole displaying the American flag was placed near the speaker stand, which was separated from those in attendance by a fence and several officers.
The course of the events that led to the arrest of Teddy Ray Mitchell (the “Defendant”) for disorderly conduct was reflected not only by testimony at the Defendant’s November 3, 2007 trial, but also by two digital video recordings made exhibits at the trial, one taken with a camera placed by the Tennessee Highway Patrol (“THP video”) on an upper floor of the courthouse (lasting one minute, forty-four seconds) and another taken from a different angle by a spectator (lasting one minute, thirty-eight seconds). Both video recordings were submitted as exhibits and were used in cross-examination of officers.
The THP video depicts only a portion of the event, beginning with the Defendant walking toward the rally after parking his vehicle, and the filming is partially obscured by a hedge and orange plastic fencing. Although the Defendant can be heard speaking or shouting, little is intelligible. The officers cannot be heard. The Defendant is arrested shortly after his arrival. The second video recording, which was not in a fixed position, begins shortly after the Defendant’s arrival at the checkpoint. The audio portion is marginally better than the THP recording. Neither video recording used time-stamping to reference specific portions of the video.
At trial, Andre Kyle, a patrol officer with the Morristown Police Department, testified that he had received instructions in advance of the rally to prohibit parking along the sidewalk near the front of the courthouse. When the Defendant attempted to park his vehicle in that area, Officer Kyle, an African-American, in
Officer Stuart, a fifteen-year veteran with the Department, testified that he was first alerted to the Defendant who, while still inside his car and some distance away, began to “scream” and “holler.” In an effort to assist Officer Kyle, Officer Stuart explained to the Defendant that the area was restricted and that the Chief of Police had established the parking rules for the event. The officer recalled that the Defendant, in response, made derogatory remarks about the Chief, but moved his vehicle. He described the Defendant as cursing, “real belligerent,” and “irate.” After seeing the Defendant park in another “no parking” area, Officer Stuart notified Detective Chris Blair, who was at the front entrance, of the Defendant’s objectionable demeanor and the possibility of “problems.” According to Officer Stuart, the Defendant continued at “a fast pace” toward the entrance and was visibly upset. At the checkpoint, he informed the Defendant that the rules established to ensure safety at the event precluded the use of flagpoles in the rally area. The Defendant objected, stating he would not comply with the rule. Acting in response to the radio communication, Officer Stuart informed the Defendant that he was under arrest and initiated the process of taking the Defendant into custody.
On cross-examination, Officer Stuart acknowledged that Tom Lowe, a Hamblen County Commissioner who had been invited to speak at the event, had been allowed to place a flagpole displaying the American flag near the speaker’s stand. Officer Stuart was cross-examined with excerpts of both videotapes, but the record does not indicate whether portions or all of the
Officer David Hancock, who had been assigned to the checkpoint at the front entrance of the courthouse but was not involved in the arrest, first noticed the Defendant when he walked briskly past an officer who had tried to stop him. Officer Hancock testified that the Defendant, despite the presence of the officers at the entrance, “wasn’t paying attention to anything except what was head on ... [and] was not paying any attention to us.” Although Officer Hancock heard the Defendant shouting, he neither heard the Defendant curse nor saw him fight with the arresting officers.
Detective Blair was stationed at the main gate at the front of the courthouse. He used a metal detection wand to assure that no weapons came into the event site. As Detective Blair was informing a man and woman that they could not take a pocket knife into the courtyard, his attention was drawn to the Defendant, who was speaking in a loud voice. He recalled that even though he tapped the Defendant on the shoulder and informed him that the flagpole was not permitted, the Defendant ignored his presence. Before the Defendant was placed under arrest, however, Detective Blair had turned his attention back to the couple with the pocket knife. He did not hear any cursing by the Defendant. Detective Blair was shown portions of both videotapes on cross-examination. The portions of the videotape used in his cross-examination are not referenced in the record. Detective Blair, however, could not identify any portion of the videotape in which the Defendant used the flagpole to either fight or threaten the officers present at any time before the arrest was initiated.
Officer Tony Wallen, who had searched the grounds for explosives prior to the event, also had a metal detection wand at the front entrance in order to check for weapons. He confirmed that the officers had been specifically directed to prohibit flagpoles, sign sticks, and blunt or sharp objects. When the Defendant, who, the officer said, also had a sign in his possession supported by a stick, began to angrily “rant and rave” “about not being able to bring his flag” into the rally area, Officer Wallen recalled that he explained to the Defendant “more than once” that only the pole was prohibited, not the flag. According to Officer Wallen, as the Defendant continued to object vociferously, he shook the pole up and down, making contact with Officer Wallen “two or three times.” The officer stated that he grabbed the end of the pole to prevent it from striking anybody and to keep it from falling to the ground. He testified that the Defendant cursed and loudly demanded to know whether Mexican flags were permitted. Officer Wallen, who had previously seen the videos, was also cross-examined by the use of portions of the THP videotape that were not identified in the record. He could not identify on the tape specifically when the Defendant cursed and acknowledged that he had control of the flag and had not yet been “poked” when the Defendant was placed under arrest by Officer Stuart.
Officer Frank Lane, a detective with the Hamblen County Sheriff’s Department, worked part-time as a patrolman with the Morristown Police Department at the time of this incident. While standing near the
Lieutenant Weisgarber, who also served as a SWAT team commander and a general departmental instructor, testified that he had planned security for the rally and coordinated the officers participating in the event. He instructed the officers not to allow metal objects, lawn chairs, flagpoles, or anything that could be used as a weapon inside the fenced area. He was standing near the courthouse, some distance away from the Defendant, when his attention was drawn to loud screaming and yelling near the front entrance — “loud over everything else that was going on.” Almost immediately, he sent a radio message “to get [the] person out of there” who was creating the scene. When Weisgarber arrived at the checkpoint, the Defendant was being handcuffed by the other officers. On cross-examination, he stated that the reason he told the officers to “get him out of there” was that there were many people present and it was “alarming other individuals.”
Patricia Stephens, an organizer of the rally, testified for the defense. She stated that the purpose of the rally was to educate people about the cost of illegal immigration. Flyers had been distributed in order to promote attendance. She stated that when she arrived at the courthouse, she found “unbelievable” the number of law enforcement personnel present. She recalled that the Defendant approached the front entrance of the rally area carrying a sign, a lawn chair, and a flag attached to a flagpole. She explained that when she entered the marked area, officers required her to remove the sticks from the several small flags in her possession and put them in her car; she was upset that no one could enter with a flag on a pole or even on “a little tiny stick.” While acknowledging that the Defendant appeared angry and raised his voice at the officers, she did not hear any cursing and did not see the Defendant either push an officer or shake his flag at an officer. Ms. Stephens, who wore a larger flag to the event that was draped around her shoulders, never heard any of the officers inform the Defendant that he was under arrest. In her opinion, the Defendant did not resist the arrest.
Commissioner Lowe, a pharmacist by profession, testified that he had planned to talk at the rally about health issues related to immigration. He assisted the organizers by contacting the county mayor for permission to use the courthouse lawn as the site of the demonstration. Commissioner Lowe described the courthouse lawn as “completely cordoned off,” without any access to parking. He stated that numerous law enforcement vehicles were present and that in addition to the police, the sheriffs department, the highway patrol, and a SWAT team in full body armor attended the rally. Commissioner Lowe testified that a “half-track,” looking much like a tank, was also parked near the site, and that there were three “snipers” on the rooftops.
On rebuttal by the State, Lieutenant Weisgarber acknowledged that a large number of officers were present at the rally. He explained that he expected “both sides” of the immigration issue to be in attendance and also pointed out that it was routine for the highway patrol to be involved in demonstrations of this nature.
Verdict and Appeal
The Defendant was tried on charges of disorderly conduct and resisting arrest. At the conclusion of its deliberations, the jury found the Defendant guilty of disorderly conduct and imposed a fine of twenty-five dollars. The Defendant was acquitted of resisting arrest. At the sentencing hearing, the Defendant requested and was granted judicial diversion. Afterward, he appealed, alleging error by the admission of his statement to Officer Kyle, challenging the sufficiency of the evidence, and arguing that his conviction violated constitutional protections of free speech. The Court of Criminal Appeals dismissed the appeal, pointing out that an appeal of right exists only when there is a final judgment of conviction, Tennessee Rule of Appellate Procedure 3(b), and that the grant of judicial diversion did not involve a conviction. State v. Mitchell, No. E2007-02807-CCA-RS-CD,
After the dismissal of the appeal, the Defendant filed a motion in the trial court to withdraw his application for judicial diversion. The trial court granted the motion and entered a judgment of conviction, sentencing the Defendant to thirty days of jail confinement. In the second appeal, the Court of Criminal Appeals set aside the conviction for disorderly conduct, holding that the video recordings of the incident conflicted with much of the officer’s testimony in significant ways. State v. Mitchell, No. E2008-02672-CCA-R3-CD,
This Court granted the application by the State for permission to appeal to consider (1) whether the trial court erred by the admission of potentially prejudicial evidence; (2) the sufficiency of the evidence in the context of the physical facts rule; and (3) whether the words expressed by the Defendant were protected by the right to free speech.
I.
The Defendant first argues that the trial court erred by allowing into evidence the statement he made to Officer Kyle while he was attempting to park his vehicle. The Defendant submits that the evidence was not relevant to the charged offenses and should have been excluded because of the danger of unfair prejudice.
As noted, the Defendant was charged with both disorderly conduct and resisting arrest. The disorderly conduct statute states that “[a] person commits [the] offense [of disorderly conduct] who, in a public place and with intent to cause public annoyance or alarm ... [e]ngages in fighting or in violent or threatening behavior[.]” Tenn.Code Ann. 39-17-305(a)(l) (2003); see also T.P.I. — Crim. 30.13 (6th ed. 2006). The law prohibiting resisting arrest provides that “[i]t is an offense for a person to intentionally prevent or obstruct anyone known to the person to be a law enforcement officer ... from effecting a[n] ... arrest ... of any person, including the defendant, by using force against the law enforcement officer or another.” Tenn. Code Ann. § 39-16-602(a) (2003); see also T.P.I. — Crim. 27.04 (6th ed. 2006).
“[E]vidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence” qualifies as relevant. Tenn. R. Evid. 401. While irrelevant evidence should be excluded, relevant evidence is generally admissible unless prohibited by the state and federal constitutions, other rules of evidence, or “other rules or laws of general application in the courts of Tennessee.” Tenn. R. Evid. 402. Tennessee Rule of Evidence 403, however, provides that relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of the unfair prejudice.” In State v. Banks,
In this instance, the Defendant filed a motion in limine to exclude his comments to Officer Kyle, who had not included the word “nigger” in his original police report and who explained that he had chosen to substitute the term “black boy” in the report rather than the more derogatory word the Defendant had actually used. The trial court overruled the motion, holding that the evidence was reflective of the Defendant’s state of mind.
In our view, the trial court acted within the bounds of its discretionary authority. The term “nigger” is offensive and thus prejudicial. Nevertheless, the use of that word is also probative as to the charge of disorderly conduct. The Defendant reacted angrily after being told not to park in a prohibited area, directly challenging
Disorderly conduct is not necessarily a single act or deed. There is a nexus between the Defendant’s initial conduct toward Officer Kyle and his confrontation with the police stationed at the checkpoint. The use of the offensive term is particularly probative of whether the Defendant “[e]ngage[d] in fighting or in violent or threatening behavior” “with intent to cause public annoyance or alarm” during the short interval leading to his arrest. The trial court did not, therefore, abuse its discretionary authority by admitting the evidence. See Neil P. Cohen et al., Tennessee Law of Evidence § 4.03(8) at 4-67 (5th ed. 2005).
II.
After considering the trial testimony, seeing the video tapes, and receiving the trial court’s instructions,
Initially, when the sufficiency of the evidence is at issue, well-established principles apply. On appeal, “the State must be afforded the strongest legitimate view of the evidence and all reasonable inferences that may be drawn therefrom.” State v. Vasques,
The Court of Criminal Appeals found that the events captured by the video cameras so conflicted with portions of the officers’ testimony that a conviction for disorderly conduct was not warranted. For example, the court pointed out that the video recordings did “not show the Defendant shaking the flag[pole] up and down and striking Officer Wallen in the chest ... two or three times, or at all” as indicated by Officer Kyle, and that the videos are “void of any actions ... that could be deemed physically threatening.” Mitchell,
From its extensive discussion of the videotape and conclusion that the videotape “belies the testimony in very significant ways,” id. at *5 (majority opinion), the Court of Criminal Appeals appears to have reweighed the evidence and concluded that the videotape was necessarily more reliable than the testimony of the witnesses testifying on behalf of the State. It is of course, the role of the jury to determine the credibility of the witnesses and to resolve the conflicts in the evidence. Here, the jury, properly instructed on the statutory elements of the crime, saw the witnesses, heard their testimony firsthand, and also saw the videotapes. The evidence is sufficient when, even if by a small margin, a rational jury could unanimously conclude from all of the evidence, direct and circumstantial, that the Defendant, “in a public place with the intent to cause public annoyance or alarm ... [e]ngage[d] in ... threatening behavior.” Tenn.Code Ann. § 39-17-305(a)(l).
It is undisputed that the rally was held in a public place. Considering the issue in the light most favorable to the State, as we are required to do, the rally attracted individuals supporting each side of the issue of illegal immigration. The jury heard testimony that the Defendant, over a short interval of time, disregarded the parking
As stated, the jury was entitled to resolve any differences in the testimony, assess the credibility of the witnesses, and draw inferences from all of the evidence as to the behavior of the Defendant. State v. Campbell,
III.
The Defendant also asserts that his conviction violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution because First Amendment protections entitled the Defendant to vociferously challenge police authority
While acknowledging there is no constitutional abridgement so long as a statute does no more than prohibit face to face words “ ‘likely to provoke the average person to retaliation, and thereby cause a breach of the peace,’ ” Texas v. Johnson,
First and foremost, “[i]n evaluating the constitutionality of a statute, we begin with the presumption that the act ... is constitutional.” State v. Pickett, 211 5.W.3d 696, 700 (Tenn.2007). “Our charge is to uphold the constitutionality whenever possible.” Waters v. Farr,
As indicated, the jury, instructed as to the applicable law, found that the Defendant’s aggressive conduct and his loud and rude behavior violated the terms of the statute. There is proof, direct and circumstantial, of each and every element of the crime of disorderly conduct. Further, while words and also conduct expressive of an idea may qualify as protected “speech,” the threatening behavior demonstrated by the Defendant does not, in our view, fall within either category.
Conclusion
The Defendant’s reference to an African-American officer as “nigger” was properly admitted into evidence. The Defendant’s use of that term, his refusal to obey the officer’s directive to remove his vehicle from a no-parking area until a white officer intervened, his angry response, and his loud and belligerent confrontation of the officers at the rally area checkpoint qualified as threatening behavior designed to annoy or alarm in a public place. Moreover, the Defendant’s conduct is not entitled to the protections of free speech. For these reasons, the judgment of the Court of Criminal Appeals is reversed and the conviction and sentence is reinstated. Costs are adjudged against the Defendant, Teddy Ray Mitchell, for which execution may issue if necessary.
SHARON G. LEE, J., filed a separate opinion concurring in part and dissenting in part.
Notes
. Because the instructions the trial court made to the jury were not made a part of the record, this Court must presume that they were proper. See Tillery v. State,
. After so holding, the majority on the panel, of course, found it unnecessary to address either the constitutionality of the statute's application to the Defendant’s conduct or the admissibility of the Defendant's comment to the African-American police officer.
. The First Amendment to the United States Constitution prohibits any law "abridging the freedom of speech,” U.S. Const, amend. I, while the Tennessee Constitution acknowledges that "[t]he free communication of thoughts and opinions, is one of the invaluable rights of man, and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty.” Tenn. Const, art. I, § 19. The Tennessee provision has been "construed to have a scope at least as broad as that afforded” the freedoms of speech and of the press by the First Amendment. Leech v. Am. Booksellers Assoc.,
. In Chaplinsky, a defendant who had cursed a municipal officer, calling him a "[g-]damned racketeer” and "damned fascist” in a public place, was convicted of violating a state statute. Id. at 574,
Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words— those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.
Id. at 571-72,
. See State v. Creasy,
In State v. Read,165 Vt. 141 ,680 A.2d 944 (1996), the Vermont Supreme Court observed that
[t]he fact that police officers ... are trained to deal calmly and authoritatively with disorderly persons does not guarantee that police officers are immune from reacting instinctively in the face of an abusive tirade- While police officers are experienced at handling unruly persons, the corollary is that police officers are obligated to confront such persons frequently. We may rightly expect that a police officer will act in accordance with his or her training or disciplinary rules. But to fashion from this expectation a judicial rule that relieves a person from the reach of a criminal statute solely because the victim is a police officer is to invite the use of abusive language toward police officers. We do not believe that such a rule is sound in practice or in principle.
Id. at 950 (emphasis added).
. “Although the [United States Supreme] Court has long accepted the premise that certain 'expressive' acts are entitled to First Amendment protection, ... not all activity with an expressive component will be afforded First Amendment protection.” 5 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law § 20.49(a), at 540-41 (4th ed. 2008). We disagree with the dissent's assertion that the words and conduct for which the Defendant was arrested constituted a matter of public concern. "Deciding whether speech is of public or private concern requires us to examine the 'content, form, and context' of that speech, ‘as revealed by the whole record.' " Snyder v. Phelps, - U.S. -,
Moreover, even assuming that the Defendant’s words and actions were protected, his choice of where and when to express himself is "not beyond the Government’s regulatory reach — it is ‘subject to reasonable time, place, or manner restrictions' that are consistent with the standards announced in this Court's precedents.” Snyder, - U.S. at -,
A government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.
Concurrence Opinion
concurring in part and dissenting in part.
I write separately to dissent from the majority’s decision to affirm the defendant’s conviction for disorderly conduct. After giving proper deference to the jury’s verdict, I cannot agree that the evidence is sufficient to support Mr. Mitchell’s conviction for disorderly conduct. Moreover, I conclude that Mr. Mitchell’s conduct was protected as free speech.
An anti-immigration rally was planned for the afternoon of June 24, 2006, on the lawn of the Hamblen County Courthouse. The rally organizers encouraged participants to attend and “wave the American flag proudly and display signage that educates.” Teddy Mitchell attempted to do
Anticipating a possible confrontation between pro-immigration and anti-immigration participants at the rally, the Hamblen County Sheriffs Department assembled between eighty and ninety police officers from various police agencies in and around the rally site. The police presence included officers from the Hamblen County Sheriffs Department, the Morristown Police Department, the Sevierville Emergency Rescue Squad, and the Tennessee Highway Patrol. Most of the officers were in uniform; some were in riot gear, many were in full body armor and carried loaded M-16 weapons; and others carried AK-47 weapons. Police officers were on the ground, snipers on rooftops, and a half-track tank was hidden in the bushes of the courthouse lawn.
Parking around the courthouse was restricted. When Mr. Mitchell attempted to park in a restricted area, he had a verbal exchange with two police officers and used a racial epithet. As Mr. Mitchell drove off to park his car elsewhere, the two officers walked to the rally entrance and told the officers there “Hey, this guy coming, he’s mad.” Mr. Mitchell, then sixty-one years old, arrived at the rally entrance carrying in his right hand a soft drink can and in his left hand an American flag, poster, and a folding lawn chair. There were at least seven officers standing at the sidewalk entrance to the courthouse lawn. As Mr. Mitchell attempted to enter the sidewalk, he was stopped by Officer Stuart and was told that he could not take his flag into the rally. Mr. Mitchell protested loudly. On the video, he can be heard saying “Can you take the damn Mexican flag in there? Can you take the Mexican flag in there? You are telling me that American flag....” The videos depict a scene where Mr. Mitchell is agitated, but the police officers and bystanders appear undisturbed by Mr. Mitchell’s conduct. Indeed, not a single person testified that he or she felt threatened by Mr. Mitchell.
At this point, an order came across the radio from Officer Weisgarber, who was stationed next to the courthouse, to remove Mr. Mitchell. Officer Weisgarber never saw Mr. Mitchell until after his arrest. Officer Stuart, who made the arrest, explained:
An order came across the radio to remove Mr. Mitchell. A place like this right here at times other than the news that you see on a rally of this effect, one person causing a problem can get the whole crowd of people irate and it could escalate real quick. So, we thought we would eliminate the problem and everyone else could have a peaceful rally.
When asked what Mr. Mitchell did that was disorderly conduct, Officer Kyle, who also participated in the arrest, explained “Sir, when you cause a scene in public you are disorderly.”
Sufficiency of Evidence
Mr. Mitchell was arrested and indicted for disorderly conduct and resisting arrest. He was found not guilty of resisting arrest, but was convicted of the crime of disorderly conduct. At trial, the state had the burden of proving beyond a reasonable doubt that Mr. Mitchell was 1) “in a public place,” 2) “with intent to cause public annoyance or alarm,” and 3) “engag[ing] in ... violent or threatening behavior.” Tenn.Code Ann. § 39-17-305(a)(l) (2003) (emphasis added).
Although Mr. Mitchell’s conduct was rude and belligerent, the fatal flaw in the State’s case was its failure to establish that Mr. Mitchell’s conduct was violent or threatening. There is an important and critical distinction between belligerence and violent or threatening conduct. “Bel
This distinction between belligerent behavior and violent or threatening behavior was evident in Millsaps. Police officers responded to a disturbance call at a restaurant and learned that the defendant had been a participant in the disturbance. Id. at *1. When the officers asked the defendant to step outside for additional questioning, the defendant became “belligerent,” .refused to go with them, and “toss[ed]” his car keys at one of the officers. Id. Once he was outside, the defendant began “cussing,” “hollering,” and became “very belligerent.” Id. Although the police officers testified that the defendant’s actions were violent or threatening, neither officer regarded the defendant’s tossing of his car keys as threatening or menacing. Id. at *2. The Court of Criminal Appeals reversed the disorderly conduct conviction, finding that the “[bjelliger-ent actions do not rise to the level of violent or threatening.” Id.
The distinction between belligerent behavior and violent or threatening behavior was also evident in State v. Scott, No. 17,
Other decisions reveal what is required for the State to establish “threatening conduct” for a disorderly conduct conviction. In State v. Creasy,
In State v. Roberts,
Likewise, in Melton, the defendant was convicted of disorderly conduct after refusing to move his illegally parked truck as instructed by a police officer, calling the officer a number of profane names, and throwing his driver’s license at the officer, striking him in the chest.
[W]e note that, unlike the defendant in Scott, the appellant did not throw his driver’s license across the parking lot. Rather, like the defendant in Creasy, he directed his action at the police officer. Moreover, unlike the defendant in Mill-saps, the appellant did not “toss” his driver’s license in the direction of the officer. Rather, he threw the license with sufficient force to strike the officer in the chest.... Finally, unlike the officers in Millsaps, [the police officer] testified that the appellant’s behavior in throwing the driver’s license appeared menacing.
Melton, at *7 (emphasis added); see also State v. Bason, E2000-02276-CCA-R3-CD,
After considering the principles in these cases and the evidence in the record before us, I am convinced that the proof was not sufficient to sustain the conviction for disorderly conduct. In vociferously challenging the officers’ authority to deny him permission to enter the rally with his American flag, there is no doubt Mr.
Accordingly, even after giving the jury’s verdict the deference to which it is entitled, I conclude that a rational jury could have found Mr. Mitchell to be belligerent, rude, or loud, but no rational jury could have found him guilty of violent or threatening behavior beyond a reasonable doubt. I would reverse and dismiss the disorderly conduct conviction.
Free Speech
Given the absence of violent or threatening conduct, it is clear that Mr. Mitchell was arrested because the officers feared he would incite others to become irate; indeed, Officer Kyle admitted that Mr. Mitchell was arrested for “causing a scene in public,” which he equated with being “disorderly.” Although the State did not address the free speech implications of this case in its brief before this Court, it argued in its brief before the Court of Criminal Appeals that Mr. Mitchell’s actions were not protected free speech because they “had the potential to create a dangerous situation, given the proximity of the offense to others attending the rally.”
“ ‘The First Amendment reflects a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.’ ” Snyder v. Phelps, — U.S. -, -,
There is no question that Mr. Mitchell’s words and conduct at a public rally on the topic of immigration concerned a matter of “public, social, or other concern to the community.” Connick,
Since Chaplinsky, the Supreme Court’s “fighting words” cases have focused primarily on whether a defendant’s words or conduct incited imminent unlawful behavior or violence. In Cohen v. California,
Importantly, the Supreme Court has applied these principles in several cases involving a citizen’s encounters with police officers. In Norwell v. City of Cincinnati, Ohio,
[T]he petitioner was arrested and convicted merely because he verbally and negatively protested [a police officer’s] treatment of him. Surely, one is not to be punished for nonprovocatively voicing his objection to what he obviously felt was a highly questionable detention by a police officer. Regardless of what the motivation may have been behind the expression in this case, it is clear that there was no abusive language or fighting words.
Id. Similarly, in Gooding v. Wilson,
Application of these vital constitutional protections necessarily involves a close, case by case analysis. Here, the State’s brief before the Court of Criminal asserted that “the proof reveals [Mr. Mitchell] was arrested for disorderly conduct after he publicly approached officers in a loud, abrasive manner designed to call attention to his frustration over the flag pole restriction.” This characterization, with which I would completely agree, demonstrates that Mr. Mitchell may have been “loud,” “abrasive,” and “frustrated,” but he was not violent or threatening; thus, the State’s argument does nothing to limit the free speech implications of this case.
The State’s brief in the Court of Criminal Appeals, in an apparent reference to
Evidence of Defendant’s Statements
I concur with the majority’s conclusion that the trial court did not abuse its discretion in admitting into evidence statements Mr. Mitchell made to police officers while he was attempting to park his automobile before his arrival at the entrance to the rally and before his arrest for disorderly conduct. Although I do not think the statements were particularly relevant on the issue of whether he was guilty of disorderly conduct, I cannot say that it was an abuse of discretion to admit the evidence.
Conclusion
After giving proper deference to the jury’s verdict, I cannot agree that the evidence is sufficient to support Mr. Mitchell’s conviction for disorderly conduct. I conclude that absent evidence of violent or threatening conduct, Mr. Mitchell’s conduct, in which he protested his inability to “wave the American Flag proudly” at a rally on an issue of public concern, was protected speech.