State v. BeckState v. Beck
- Reporters:
- , ,
- Before:
- Foth
Dеfendant Lenny Beck appeals from his conviction after a bench trial of disorderly conduct.
“On January 11, 1983, at approximately 1:59 a.m., Officer Campbell was dispatched to 217 The Drive, Topeka, Shawnee County, Kansas. Upon arrival, Officer Campbell met with Officer Berry and went to the rear of the residence. At that time, Officer Campbell then observed an individual, later identified as Lenny K. Beck, on the 2nd floor landing. At that time, Mr. Beck said to Officer Campbell, ‘What the fuck are you doing here?’ Officer Campbell advised Mr. Beck that they were called to a disturbance. Mr. Beck then said, ‘Come up here and I’ll fuck with you.’ The officers confronted Mr. Beck and could smell a moderate amount of alcohol upon his person. At that time, Penny A. Rice told officers that she was having a domestic problem with Mr. Beck. Mr. Beck started to becomе abusive toward Ms. Rice and ordered Officer Berry and Officer Campbell to leave the premises. Officer Campbell then told Mr. Beck that they could stay there as long аs Ms. Rice wanted them to. Mr. Beck then said, ‘Fuck you’ towards Officer Campbell. At that time Officer Campbell placed Mr. Beck under arrest for the use of fighting words under Topeka City ordinance. After a brief struggle and placing handcuffs on Mr. Beck, officers led Mr. Beck outside and at that time, Beck expectorated in Officer Berry’s face.
“Mr. Beck wаs then taken to the rear of Officer Campbell’s police vehicle. At that time, Mr. Beck kicked and broke the rear taillight on Officer Campbell’s patrol vehicle. At no time did Mr. Berry consent to Mr. Beck spitting in his face. At no time did the officers consent to Mr. Beck using abusive language toward them. All the events occurred in Shawnee County, Kansas.”
Defendant added the following stipulated facts:
“Your Honor, we have agreed to enter the fact that Mr. Beck, during the course of this domestic disturbance did seek assistance, social services assistance by calling the Can Help organization and that following that . . . that organization called the police and 3 police officers arrived at the scene; and in addition Mr. Beck had been intoxicated at the time.”
Counsel presented oral arguments to the court and rested.
In a letter decision the trial court found that defendant’s comments were fighting words prohibited by statute. It also rejected defendant’s аrgument that fighting words must be uttered in a public place. The court placed defendant on pi’obation for two years, and this appeal followed.
We turn first to- the argumеnt that disorderly conduct must occur in a public place. It is based largely on Kansas decisions under the predecessor of
Defendant’s argument ignores the language in
Defendant’s primary argument is based on the requirement that if words alone are to be punished they must be “fighting words” as defined in Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 86 L.Ed. 1031, 62 S.Ct. 766 (1942). The requirement is recognized in State v. Huffman, 228 Kan. 186, 612 P.2d 630 (1980); and State v. Heiskell, 8 Kan. App. 2d 667, 666 P.2d 207 (1983). In the present context, to be fighting words dеfendant’s language must have been such as to tend to incite an assault or other immediate breach of the peace by the officers to whom they were addrеssed.
In arguing that they were not such words defendant stresses the fact that the addressees were police officers, who were presumably accustomed to such language or worse, and are trained to restrain their natural impulse to retaliate when insulted. We reject any
per se
rule for police officers. In
Chaplinsky
itself the insults were addressed to officers, but the Court
Other jurisdictions аre divided on whether a higher degree of inflammatory language should apply when the police officer is the only offended listener. Those cases favoring a sрecial standard include: State v. Duhan, 38 Conn. Supp. 665, 460 A.2d 496, 499 (1982); State v. Nelson, 38 Conn. Supp. 349, 448 A.2d 214 (1982); Phillips v. State, 314 So. 2d 619, 621-22 (Fla. App. 1975); State v. John W., 418 A.2d 1097 (Me. 1980); Diehl v. State, 294 Md. 466, 451 A.2d 115 (1982); City of Alamogordo v. Ohlrich, 95 N.M. 725, 726, 625 P.2d 1242, 1243 (N.M. Ct. App. 1981); State v. Yoakum, 30 Wash. App. 874, 638 P.2d 1264, 1266 (1982).
Other jurisdictions have overlooked or refused to apply a special standard. Bousquet v. State, 261 Ark. 263, 548 S.W.2d 125 (1977); Duncan v. United States, 219 A.2d 110, 112-13 (D.C. 1966), remanded on other grounds 379 F.2d 148 (D.C. Cir. 1967); Bolden v. State, 148 Ga. App. 315, 251 S.E.2d 165, 166 (1978); City of Little Falls v. Witucki, 295 N.W.2d 243 at 245-46 (Minn. 1980); City of St. Paul v. Azzone, 287 Minn. 136, 177 N.W.2d 559 (1970); City of St. Paul v. Morris, 258 Minn. 467, 104 N.W.2d 902, 903 (1960), cert. denied 365 U.S. 815 (1961); State v. Brown, 62 N.J. 588, 303 A.2d 886, 888 (1973); Lane v. Collins, 29 Wis. 2d 66, 138 N.W.2d 264, 267 (1965).
We prefer the ultimate concept expressed by the Minnesota Supreme Court in City of St. Paul v. Morris, 258 Minn, at 468-69:
“While it is obvious that not every abusive epithet directed toward police officers would be sufficiently disturbing or provocative to justify arrest for disorderly conduct, there is no sound reason why officers must be subjected to indignities such as present here, indignities that go far beyond what any other citizen might reasonаbly be expected to endure.”
Although the Minnesota court there dealt with conduct which embraced more than “fighting words,” the quoted language implicitly recognizes that what is disorderly conduct depends upon the totality of the circumstances in any given case. Where
Our own court expressed the same underlying concept in State v. Stroble, 169 Kan. 167, 217 P.2d 1073 (1950), under our former statute on disturbing the peace:
“What constitutes a disturbance of the peace and quiet of a person or neighborhood, or what cоnstitutes rude behavior or disorderly conduct, depends upon the intention of the person uttering the language, the person to whom uttered, and all the surrounding facts and circumstances. All these elements are proper issues for the trier of the facts. (City of Fort Scott v. Arbuckle, 164 Kan. 49, 187 P.2d 348.) The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts, but acts and words likely to produce violence to others.” 169 Kan. at 170. Emphasis in original.
Unless it can be said that defendant’s words were not fighting words as a mаtter of law, under Stroble the ultimate determination was a question of fact for the finder of fact. And cf., State v. Heiskell, 8 Kan. App. 2d at 670-71, where the issue was how to instruct a jury to make the identical determination.
In this case the trial court found that defendant’s words were in fact fighting words, a finding presumably made in the light of all the circumstances. Significant among these were defendant’s offer to fight (“Come up here and I’ll fuck with you”) addressed to the officers before they entered the apartment, his resistance to their efforts to restore tranquility to the domestic scene, and the provocative nature of the words themselves — all in addition to the fact that the addressees were police officers.
Our scope оf review in such a case is well settled: Does the evidence, when viewed in the light most favorable to the prosecution, convince the appellate cоurt that a rational factfinder could have found the defendant guilty beyond a reasonable doubt? State v. Pondexter, 234 Kan. 208, 211-12, 671 P.2d 539 (1983). Applying that test here we cannot say no rational fact-finder could have found defendant’s words to be fighting words when uttered under these circumstances.
Affirmed.