Franklin V., a Minor

In re FRANKLIN V. 1 CA-JV 97-0121 DEPARTMENT C IN THE COURT OF APPEALSError! Reference source not found. STATE OF ARIZONA DIVISION ONE Filed January 13, 1998 Appeal from the Superior Court in Maricopa County Cause No. JV 515283
        The Honorable John L. Popilek, Commissioner REVERSED and REMANDED

Maricopa County Public Defender
by        Susan G. White, Deputy Public Defender        
        Attorney for Appellant        Mesa

Richard M. Romley, Maricopa County Attorney
by        Linda Alauria, Deputy County Attorney
        Attorneys for Appellee        Phoenix

NOYES, Judge
        The juvenile ("Appellant") was charged with disorderly conduct because he screamed profane protestations while being stopped and searched by an officer outside the Arizona State Fairgrounds. The court adjudicated Appellant delinquent as charged. Because we conclude that the disorderly conduct statute would be unconstitutionally overbroad if it were interpreted to affirm a conviction on the evidence in this record, we reverse and remand with directions to dismiss the charge.

I.         On October 29, 1996, as two uniformed members of the Phoenix Police Department night gang enforcement squad drove an unmarked car on McDowell Road, they saw eight to ten juveniles standing across the street from the Arizona State Fairgrounds. In their midst was a man who appeared to have fallen off his bicycle. As the man picked up his bicycle, the juveniles made hand gestures toward each other and the man. Suspecting an altercation of some sort, the officers made a U-turn and came back to the scene. By then the juveniles were leaving in two groups, and the man with the bicycle was also walking away.
        Sergeant Martin ("the officer") followed the larger group of juveniles, yelling, "We need to talk to you." Some of the group stopped but Appellant and others did not, so the officer yelled two more times. Appellant then screamed responses like, "Fuck you. I don't have to talk to you. We don't have to say shit to you." According to the officer, this "back and forth" with Appellant continued for "maybe thirty seconds to a minute." The officer said that Appellant "was very loud. It stayed consistent for quite some time." When Appellant stopped walking, the officer "contacted" him to tell him to calm down. When Appellant pulled away from this contact, the officer "went to grab onto him" and felt a bulge under his jacket. As Appellant continued trying to pull away, he screamed protestations such as, "Fuck you. You don't have a right to touch me. You don't have a right to search me."
        The officer, aided by another officer, promptly handcuffed Appellant and searched for the bulge under his jacket. They found a flower; a cellophane-wrapped rose Appellant had bought for his girlfriend. The officers then put Appellant into the back seat of a police car, where he soon calmed down and apologized. The exchange between officers and Appellant was witnessed by twenty to thirty people, including families with young children, as they were leaving the State Fair. The officers did not find the man with the bicycle or evidence that he had been a crime victim.
        The State charged Appellant with delinquency, to wit, disorderly conduct in violation of Arizona Revised Statutes Annotated ("A.R.S.") section 13-2904 (Supp. 1997). As may be relevant here, the statute provides as follows:

        A.        A person commits disorderly conduct if, with intent to disturb the peace or quiet of a neighborhood, family or person, or with knowledge of doing so, such person:

        1.        Engages in fighting, violent or seriously disruptive behavior; or

        2.        Makes unreasonable noise; or

        3.        Uses abusive or offensive language or gestures to any person present in a manner likely to provoke immediate physical retaliation by such person.

        Sergeant Martin was the only witness at the adjudication hearing. His entire testimony covers fourteen pages of transcript. Our jurisdiction of the appeal is pursuant to A.R.S. section 8-236 (1989) and Rules 24 through 29 of the Rules of Procedure for the Juvenile Court.

II.         "We review juvenile court dispositions for abuse of discretion." Maricopa County Juvenile Action No. JV-512016, 186 Ariz. 414, 418, 923 P.2d 880, 884 (App. 1996). We accept the court's findings unless they are clearly erroneous or unsupported by reasonable evidence. Maricopa County Juvenile Action No. JS-9104, 183 Ariz. 455, 458, 904 P.2d 1279, 1282 (App. 1995).
        Appellant does not contest the constitutionality of the disorderly conduct statute; he argues that he did not violate the statute because his speech was protected under the First Amendment to the United States Constitution. He recognizes that the First Amendment right to free speech is not absolute. Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942); Cohen v. California, 403 U.S. 15, 19 (1971). "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem." Chaplinsky, 315 U.S. at 571-72. This limited class of unprotected speech includes "'fighting' words." Id. at 572. Fighting words are "those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Id. A "fighting words" statute must be narrowly drawn. Arizona's statute passes this test. See State v. Starsky, 106 Ariz. 329, 334, 475 P.2d 943, 948 (1970) (holding A.R.S. § 13-2904 constitutional).
        The State argues that Appellant used fighting words, and it relies mainly on State v. Brahy, 22 Ariz. App. 524, 529 P.2d 236 (1974), a case in which the defendant screamed at airport authorities for searching her purse as she attempted to enter the boarding area, and she screamed at an approaching police officer, "You fucking son of a bitch, I will spit in your face." Id. at 525, 529 P.2d at 237. She then did so, in front of about twenty people. Id. On appeal from her disorderly conduct conviction, Brahy relied on recent Supreme Court decisions to attack the constitutionality of the statute. Id. The court affirmed, with a dissent, and we agree with the majority's analysis of the cases relied on by Brahy:

        In Cohen v. California, 403 U.S. 15 (1971), and in Gooding v. Wilson, 405 U.S. 518 (1972), the United States Supreme Court struck down a portion of the "disturbing the peace" statutes . . . . The Court found the statutes too broad when they included as a violation any conduct that was offensive to public sensibilities. The Court, however, did follow the guidelines of Chaplinsky . . . and held that certain classes of speech such as profane, insulting or "fighting" words . . . are not protected free speech under the First Amendment. The statute must be drawn or interpreted to include . . . only those epithets amounting to "fighting words."

        Id. The court noted that Arizona's disorderly conduct statute included only fighting words and did not offend the First Amendment. Id. In addition, the court found that defendant's conduct was "likely to incite others to violence." Id.
        The volume and profanity of Appellant's oral conduct sounds similar to that of the Brahy defendant--minus the spitting--but many differences exist between the cases. We will mention only the main difference, which is this: Appellant was asserting rights and Brahy was starting a fight.
        The Brahy court found that her speech was "not an exercise of rights." Id. at 526, 529 P.2d at 238 (quoting State v. Starsky, 106 Ariz. at 333, 475 P.2d at 946), and we agree. Brahy threatened the officer and she then spit in his face. This sort of behavior constitutes "fighting words" within the meaning of disorderly conduct statutes in Arizona and elsewhere. See City of East Peoria v. Moushon, 359 N.E.2d 1205, 1208 (Ill. App. 1977) (affirming conviction where defendant, while brandishing a baseball bat, threatened to bash in the officer's head); State v. Cunningham, 237 S.E.2d 334, 335 (N.C. App. 1977) (affirming conviction where defendant told officer to get his "g.. d... ass out of the way before he [Cunningham] ran over [him]"; State v. Read, 680 A.2d 944, 946 (Vt. 1996) (affirming conviction where defendant directed a tirade at the officer, said that the officer was "dead," and exhibited such threatening demeanor that the officer became "afraid of the possibilities of an imminent attack by Mr. Read upon me"); State v. Brown, 303 A.2d 886, 887 (N.J. 1973) (affirming conviction where defendant threatened to kick the "s..." out of the officer and to kill him if he took his badge off).
        We now discuss some cases in which conduct similar to Appellant's was found not to constitute "fighting words." In Swann v. City of Huntsville, 455 So. 2d 944, 946 (Ala. App. 1984), defendant, whose traffic accident was being investigated by the officer, became "loud and belligerent" and made statements like, "This is some shit. . . . Damn you; you're just doing this because I'm black. You're bringing us back a hundred years." The court reversed defendant's disorderly conduct conviction because, although the language "may have aroused the anger and resentment of [the officer]," it was not "calculated to provoke physical retaliation, especially in view of the probable training received by the officer in dealing with similar situations." Id. at 950.
        In Duncan v. State, 686 So. 2d 1279, 1281 (Ala. App. 1996), the officer told defendant to stay in the passenger seat and defendant swore and said "he wasn't going to do a damn thing." When asked for his driver's license, defendant said he would not show it, and demanded to know "what in the hell had he done." Id. In reversing the disorderly conduct conviction, the court stated:

        The facts presented do not establish that the [defendant] engaged in fighting or in violent tumultuous or threatening behavior. The [defendant] disobeyed [the officer's] order to produce a driver's license, but . . . remained "sitting in the truck" during their conversation. . . . Regarding the cursing, the [defendant's] saying "fuck you" to the officer were [sic] not fighting words so as to constitute disorderly conduct . . . .

Id. at 1281-82.
        In Matter of M.W.G., 427 A.2d 440, 441 (D.C. App. 1981), the juvenile told the officer, "[I]f you wasn't wearing that gun, I'd f___ you up." The breach of peace conviction was reversed for failure to prove the "fighting words" element; the court found that "[the juvenile's] behavior was not such that it should have provoked a violent response by police officers." Id. at 442.
        The officer testified that he stopped Appellant only to see if he had been in a fight, and the message he got from Appellant was that he did not want to be stopped or searched, and he didn't think the officer had a right to do it. Appellant may have been right. The officer had no legal reason to arrest or search Appellant when he called out to him, and even if he had a right to stop Appellant for a brief interrogation, the officer could not force him to talk. Although the State does not argue that a person who asserts constitutional rights in a loud and profane manner can be convicted of disorderly conduct, that is essentially what happened in this case.
        The State argues that, "Needless to say, the situation was highly volatile. . . . [Appellant's] epithets were . . . highly likely to provoke [his] companions or other persons from the passing crowd, and thereby incite a breach of the peace." The evidence does not support the argument.
        The witnesses to this street scene were people leaving the State Fair; the group included families with young children. When the officer was asked to describe the witnesses' reaction to Appellant's behavior, he said it was "nothing more than they were walking by. They stopped, just were watching what was going on, listened to the language." That was the only evidence about the passersby, and there was no evidence of what Appellant's companions were doing. This evidence does not prove that anyone was likely to breach the peace because of Appellant's futile protestations to the officer. See People v. Douglas, 331 N.E.2d 359, 363 (Ill. App. 1975) ("Vulgar language, however distasteful or offensive to one's sensibilities, does not evolve into a crime because people standing nearby stop, look, and listen").
        The State proved that Appellant was loud and profane to an officer, but more is required for a "fighting words" conviction. To interpret Arizona's disorderly conduct statute to affirm the conviction in this case would make the statute as broad as the ordinance held unconstitutional in Houston v. Hill, 482 U.S. 451 (1987). In that case, defendant shouted at officers to distract them from questioning a friend who was blocking traffic. Id. at 453. After further dialogue, defendant was charged with violating a city ordinance making it illegal to "in any manner oppose, molest, abuse or interrupt any policeman in the execution of his duty." Id. at 455. After defendant was acquitted, he sued to have the ordinance declared unconstitutional. Id. The Fifth Circuit found the ordinance facially overbroad and thus unconstitutional. Id. at 456-57. The Supreme Court affirmed, stating:

        [T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers. "Speech is often provocative and challenging. . . . [But it] is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest." In Lewis v. City of New Orleans, . . . the appellant was found to have yelled obscenities and threats at an officer who had asked appellant's husband to produce his driver's license. Appellant was convicted under a municipal ordinance that made it a crime "'for any person wantonly to curse or revile or to use obscene or opprobrious language toward or with reference to any member of the city police while in the actual performance of his duty.'" We vacated the conviction and invalidated the ordinance as facially overbroad. Critical to our decision was the fact that the ordinance "punishe[d] only spoken words" and was not limited in scope to fighting words that "'by their very utterance inflict injury or tend to incite an immediate breach of the peace.'"

        Id. at 461-62 (citations omitted).
        As we have discussed, Arizona's disorderly conduct statute is limited to fighting words and it meets the standard required by Chaplinsky and its progeny. In our opinion the evidence in this case cannot reasonably be construed to meet that standard. The evidence does not support a conclusion that Appellant's speech was "likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest." Houston, 482 U.S. at 461. Nor does it support a conclusion that Appellant spoke words that "by their very utterance inflict injury or tend to incite an immediate breach of the peace." Chaplinsky, 315 U.S. at 572.
        The adjudication is reversed and the matter is remanded with directions to dismiss the charge.        


CONCURRING:
        JEFFERSON L. LANKFORD, Presiding Judge
        WILLIAM F. GARBARINO, Judge