STATE v. LINDA M. HIPP AND OTHERS.
No. 43042
Supreme Court of Minnesota
December 7, 1973
213 N. W. 2d 610
Affirmed.
MR. JUSTICE YETKA and MR. JUSTICE SCOTT, not having been members of this court at the time of the argument and submission, took no part in the consideration or decision of this case.
Warren Spannaus, Attorney General, Keith M. Stidd, City Attorney, and Edward C. Vavreck, Assistant City Attorney, for respondent.
ROGOSHESKE, JUSTICE.
Following a joint trial, defendants-appellants were found guilty by a Hennepin County Municipal Court jury of unlawful assembly in violation of
“When three or more persons assemble, each participant is guilty of unlawful assembly, which is a misdemeanor, if the assembly is:
* * * * *
“(3) Without unlawful purpose, but the participants so conduct themselves in a disorderly manner as to disturb or threaten the public peace.”
On May 7, 1970, a “demonstration protesting the Red Barn organization,” presumably over the propriety of erecting a Red Barn restaurant in an area known as “Dinkytown” near the University of Minnesota campus, took place in front of an existing Red Barn restaurant also near the campus of the University of Minnesota and close to the intersection of Oak Street and Washington Avenue Southeast in the city of Minneapolis. When city police officers were called to the scene and failed in negotiating with the participants to voluntarily reduce the size and number of pickets, about 30 persons were arrested. Of those subsequently charged with violation of
The issues properly before us on this appeal are (1) whether the statute quoted is unconstitutionally vague or overbroad on its face under the First and Fourteenth Amendments to the Federal Constitution; (2) whether it is unconstitutional as applied to the conduct or activity of the alleged participants; and (3) whether the evidence is sufficient to support the conviction of defendants Hipp, Schendel, and Enga.
Upon our limiting construction of the statute, we hold the statute constitutional on its face and as applied and affirm the convictions except as to the three defendants whose convictions are reversed for want of sufficient evidentiary support.
Viewing the evidence most favorably to sustain the convictions, as we must, the jury could find these facts: The demonstration in question commenced at about 2 p. m. on May 7, when 100 to 150 demonstrators crowded into the Red Barn restaurant dining area, designed for a capacity of about 80, and announced their intention to remain until the restaurant was closed for the day. They interrupted the normal business being carried on; pasted “Ban the Barn” signs on the windows; blocked the entrance to nondemonstrators; bent the frames of the two side doors; blocked the front door; and grabbed the keys from Russell Swanson, assistant manager of the restaurant, and threw them into the crowd. Swanson called Robert Lafferty, a vice president of the Red Barn Company, who in turn notified the city police and requested their assistance. Mr. Lafferty and several police officials arrived and succeeded in persuading the demonstrators
“But, the situation was the chanting was getting louder and the crowd was getting larger. I took the bull horn and said—indicated once again—asked them to limit the number of pickets. Somebody said, ‘How many—Fourteen? Can‘t do that. Don‘t have the right.’ I said, ‘I am not here to exercise any rights or to take yours. I am just suggesting.’ There was no response to that. Then I said, ‘I‘m declaring this an unlawful assembly.’
“Q. Because they had rejected your offer of 14 pickets?
“A. No. Because the street was blocked; crowd was getting noisier; the emotions were running high; the sidewalk was completely blocked; the private property of the Red Barn was completely filled; the profanities and the shouting, as I said before, in the street. In my opinion it was an unlawful assembly. I indicated to the group we would give them time to disperse. And a great many of them did leave.”
The deputy chief, who had served with the Minneapolis Police Department for over 19 years, concluded:
“* * * [B]ased upon my experience, the situation had deteriorated and if we hadn‘t taken action there would have been destruction of property and possible injury.”
The first issue raises for the first time a constitutional challenge to our unlawful assembly statute adopted as part of the 1963 revision of our criminal laws. In addressing this issue, we start with the fundamental that a law which forbids conduct or activities in language so vague that “men of common intelligence must necessarily guess at its meaning and differ as to its application” is unconstitutional on its face. Connally v. General Const. Co. 269 U. S. 385, 391, 46 S. Ct. 126, 127, 70 L. ed. 322, 328 (1926). Such laws violate the Federal constitutional standard of due process under the developing doctrine of vagueness and overbreadth when the language employed fails to define the
thetically be applied to others. Dombrowski v. Pfister, 380 U. S. 479, 85 S. Ct. 1116, 14 L. ed. 2d 22 (1965); N. A. A. C. P. v. Button, 371 U. S. 415, 83 S. Ct. 328, 9 L. ed. 2d 405 (1963).
“* * * And if the law is found deficient in one of these respects, it may not be applied to him either, until and unless a satisfactory limiting construction is placed on the statute. * * * The statute, in effect, is stricken down on its face. This result is deemed justified since the otherwise continued existence of the statute in unnarrowed form would tend to suppress constitutionally protected rights.” Coates v. City of Cincinnati, 402 U. S. 620, 91 S. Ct. 1691, 29 L. ed. 2d 221 (White, J., dissenting).2
As we construe
While the requirement that the participants “conduct themselves in a disorderly manner” may be, as defendants argue, vague, uncertain, or susceptible of application which could infringe on protected First Amendment rights, such argument ignores the context in which the words appear. A fair and full reading compels the conclusion that the only misbehavior intended to be prohibited is that which disturbs or threatens the public peace, that is, “that tranquillity enjoyed by a community
when good order reigns amongst its members.” State v. Winkels, 204 Minn. 466, 468, 283 N. W. 763, 764 (1939). Both the language and intent of the statute are directed at regulating conduct and not pure speech. That intention is reflected by the commentary of the advisory committee which drafted the Criminal Code of 1963.3 The emphasis, as was true of the common-law crimes of unlawful assembly, rout, and riot from which the statute is derived, is placed upon a breach of the peace, coupled with the committee‘s recognition of “the effect of crowd psychology which promotes the commission of crime.” Its purpose is to discourage assemblies which get “out of hand,” which interfere with the public, and thus disturb the public peace and provoke the commission of other and more serious crimes. So construed, the statute neither prohibits activity which is merely annoying to others nor invites discriminatory enforcement. It is limited to regulating only criminal conduct or activities, not peaceful protest, general obnoxiousness, or deviant life styles. See, Papachristou v. City of Jacksonville, 405 U. S. 156, 92 S. Ct. 839, 31 L. ed. 2d 110 (1972).
The Federal Constitution does not render the states powerless to regulate the conduct of demonstrators and picketers. Gregory v. City of Chicago, 394 U. S. 111, 113, 89 S. Ct. 946, 947, 22 L. ed. 2d 134, 137 (1969) (Black, J., concurring); Coates v. City of Cincinnati, 402 U. S. 611, 617, 91 S. Ct. 1686, 1690, 29 L. ed. 2d 214, 219 (White, J., dissenting). Indeed, demonstrating, picketing, and parading are “subject to regulation even though intertwined with expression and association.” Cox v. Louisiana, 379 U. S. 559, 563, 85 S. Ct. 476, 480, 13 L. ed. 2d 487, 491 (1965).
Because of the nature of the offense, which contemplates a form of conduct repugnant to good order and not a specific act, the language of the statute must, as a practical necessity, be general to cover the countless variations of assemblies which can disturb or threaten the public peace. Accordingly, we cannot say that the language of
common understanding cannot know that it forbids three or more assembled participants to so conduct themselves as to disturb or threaten the rights of other members of the public to have peace and good order prevail. We believe that any law-abiding person would have no difficulty in understanding what conduct is prohibited. Moreover, mere use of general language does not support a vagueness challenge, as the United States Supreme Court recently stated in Colten v. Kentucky, 407 U. S. 104, 110, 92 S. Ct. 1953, 1957, 32 L. ed. 2d 584, 590 (1972):
“* * * The root of the vagueness doctrine is a rough idea of fairness. It is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited.”
Accordingly, we hold that
However, defendants contend that as
After listing the essential elements of the offense, the trial court, consistent with our construction of the statute, limited its application by instructing the jury:
“Now, keeping in mind the Minnesota Statute that I have just explained, you may not find the defendants guilty of breach of that Statute if their conduct was protected under the United States Constitution. You may find their conduct was protected under the Constitution, specifically under the First Amendment of the United States Constitution, which says: ‘The Legislature shall make no law abridging the freedom of speech or the right of the people peaceably to assemble.’ The defendants, under the United States Constitution, have a right to free speech and assembly. Sometimes the function of free speech under our system of government is to invite dispute. It may, indeed, best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with the conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have a profound unsettling effect as it presses for acceptance of an idea. Likewise, an assembly in itself may cause conditions of apprehension
and unrest. If the only threat or disturbance arose out of the anger of others, and that anger arose because of their disagreement with the views expressed by the defendants, then the defendants are not in violation of this Statute. However, the Constitutional rights of speech and assembly and use of the public streets as a form, [forum] to express ideas, are not absolute. These rights may not be exercised so as to deny the rights of others. The rights of free speech and assembly, while fundamental in our democratic society, still does not mean that everyone with an opinion or belief may express such in an assembly at a public place. The Constitutional guarantee of liberty implies the existence of an organized society maintaining public order. Therefore, if you decide that the evidence established that the defendants unreasonably denied or interfered with the rights of others to peacefully use the streets and sidewalks without obstruction, interference or disturbance, their conduct is not protected by the Constitution.” (Italics supplied.)
In addition, the trial court stated that the jury was not required to accept the opinion of the deputy chief of police that the assembly was unlawful, instructing them:
“* * * The fact that in [the deputy chief‘s] opinion this was an unlawful assembly, is not binding in any way upon this jury. It is the sole and exclusive function of this jury to decide whether there was, in fact, an unlawful assembly.”4
We therefore hold that the trial court did not unconstitutionally apply the statute to the participants in the unlawful assembly.
There remains the claim of defendants Linda Hipp and Anne Schendel that the evidence is insufficient to support their convictions. Without passing upon the propriety of the court‘s refusal to grant separate trials and its denial of motions to dismiss at the close of the state‘s case in chief, or the accuracy of the instructions to the jury as to what degree of participation
was required to find each defendant individually guilty, our careful examination of the evidence, considered in its entirety, compels the conclusion that neither defendant‘s conviction can be sustained. Defendant Hipp‘s unimpeached and unrefuted testimony makes clear that she did not arrive at the site of the demonstration in time to observe the picketing. When she did get there, she was told that two friends for whom she had been waiting “had been arrested and had been hurt.” After her inquiries to police officers proved futile and upon being restrained from approaching the police van, she asked if she “could please be arrested,” believing this to be “the only way” possible to find her friends. There is simply no evidence which would support a finding that she either engaged in, or intended her presence to be in aid of, the demonstrators’ activities.
Likewise, the evidence is insufficient to support defendant Schendel‘s conviction. Although she did not testify in her own behalf, evidence of codefendants that she pleaded with a police officer not to arrest one of her girl friends, and thereafter physically tried to prevent him from doing so, at best could only support a charge of violating
The remaining defendants, except defendant Richard Enga, either admitted active participation in the demonstration or the evidence permitted the jury to infer such participation, or at least conduct which was intended to give aid to active participants. As to defendant Enga, who was not represented by counsel in this court, we are not satisfied that the record contains sufficient evidence of his wrongful participation, and we conclude,
Affirmed except as to defendant Enga, who is granted a new trial, and as to defendants Hipp and Schendel, whose convictions are reversed and the charge against each dismissed.
Affirmed in part and reversed in part.
KELLY, JUSTICE (concurring in part and dissenting in part).
I concur in the decision and opinion with one exception. I dissent to that portion of the opinion which would reverse the conviction of defendant Schendel. The defendant‘s proved attempt to prevent a police officer from arresting a participant in the disorder is evidence that she participated in the unlawful assembly. True, her conduct could support a charge of violating
PETERSON, JUSTICE (concurring in part and dissenting in part).
I join in the opinion of Mr. Justice Kelly.
MR. JUSTICE YETKA and MR. JUSTICE SCOTT, not having been members of this court at the time of the argument and submission, took no part in the consideration or decision of this case.