Flores v. City and County of Denver, 16374

• Decision Date: 05 June 1950
• Docket Number: No. 16374,16374
• Citation: 122 Colo. 71,220 P.2d 373
• Parties: FLORES et al. v. CITY AND COUNTY OF DENVER.
• Court: Colorado Supreme Court

Page 373

220 P.2d 373

122 Colo. 71

FLORES et al. v. CITY AND COUNTY OF DENVER.

No. 16374.

Supreme Court of Colorado, en Banc.

June 5, 1950.

Menin & Conry, Denver, for plaintiff in error.

J. Glenn Donaldson, Denver, Abe L. Hoffman, Denver, for defendant in error.

STONE, Justice.

Shortly after seven o'clock on the evening of December 21, 1948, several police officers, who were the principal witnesses for the city as to the conduct of the defendants resulting in their arrest, went to the residence of the Governor of the State of Colorado in response to information that a group of people expected to demonstrate before the Governor's house. They testified in substance that they found a crowd of from fifty to seventy people assembled in front of the house, some merely watching and some milling around in a counter-clockwise circle on the sidewalk and lawn, chanting such phrases as, 'Governor Knous come out of the house'; 'the death of Reuben Garcia is on your shoulders'; 'clean up Golden'; 'stop beating the boys.' Some carried placards containing such statements as, 'Gov. Knous appoint a citizen's committee to investigate Golden'; 'stop the whipping of boys'; 'clean up Golden breeding house of crime'; 'we demand a full investigation of Reuben's tragic death,' and 'Mr. Gov. thousands of dollars for race tracks but only pennies for our boys.' Most of the chanting was in a high-pitched voice, more or less like a football game, but perhaps not quite so loud, and could be heard in the neighborhood of two blocks. This continued for approximately half an hour when the chief of police and city attorney came on the scene. After observing the conduct of the group from ten to fifteen minutes, the chief made inquiry as to who was in charge of the group and, upon being advised, requested him to have the group dispersed for the asserted reason that they were violating the city ordinance against loitering and disturbance. One of the leaders replied that they had agreed to continue the demonstration for an hour and had been there forty-five minutes so they only had fifteen minutes to go and they would disperse when that time was up. The chief insisted that they disperse immediately and, upon their declining to order such dispersal, the leaders and some of the others were placed under arrest and charged with violation of section 1307, article IV of the Denver Municipal Code of 1927. The several cases were consolidated for trial and all of the defendants were found guilty in the police court; thereafter appeal was taken to the county court and upon trial de novo defendants again were found guilty of violating said section and fines were assessed against them.

Numerous challenges are raised in behalf of plaintiffs in error, but the only one we deem it necessary to consider is the challenge as to the sufficiency of the evidence to support the judgment of the trial court. The applicable ordinance reads as follows:

'Section 1307. Any person who shall disturb the peace of others by violent, tumultuous, offensive or obstreperous conduct or carriage, or by loud or unusual noises, or by unseemly, profane, obscene or offensive language, calculated to provoke a breach of the peace, or by assaulting, striking or fighting another, or any person who shall permit any such conduct in or upon any house or premises owned or possessed by them or under their management or control, when within their power to prevent, so that others in the vicinity are disturbed thereby, shall, upon conviction thereof, be fined in a sum of not less than five dollars nor more than two hundred dollars for each and every offense.'

This ordinance makes it an offense 'to disturb the peace of others' by any of the means specifically set out therein. So far as disclosed by the record here, no person complained to the police or to any other person that his peace had been disturbed. There is no showing that there were any persons present in the neighborhood other than those voluntarily gathered for the purpose of participating in or watching the demonstration, including the police officers, a newspaper photographer, and a newspaper man from Fort Collins, who testified at the trial, none of whom appear to have lived in that vicinity. There is no evidence of 'violent, tumultuous, offensive or obstreperous conduct or carriage'; there is no evidence of 'unseemly, profane, obscene or offensive language, calculated to provoke a breach of the peace'; there is no evidence of 'assaulting, striking or fighting.' The only method of disturbance covered by the ordinance and disclosed by the evidence is that of 'loud or unusual noises,' described by the witnesses as like those of a football game. It further affirmatively appears that the noises of which complaint is made consisted of a chanting of grievances of which the protesting group sought redress from the Governor by demonstrating at his residence. One of the police officers testified:

'Q. Then as a matter of fact, what was going on there was that these people were picketing because of a grievance they had against the Governor? A. That was my idea of it.

'Q. That was your idea and that is the impression anybody else would have gotten, wasn't it? A. Yes, sir.

'Q. They went back and forth in front of the Governor's house picketing the Governor's house for redress that they thought they were entitled to? A. Evidently they did, yes. That was my opinion.

'Q. Nobody was disturbed? A. I had no complaints of it so I couldn't say.'

There is no evidence as to any particular improper conduct of any one of the defendants here appearing. At the most they were parading about, vociferously protesting conditions at Golden and demanding action thereon by the Governor. The protests of the defendants are not shown to have been in any wise violent or threatening, or to have been likely to produce violence, or to cause consternation or alarm. The carrying of placards as here shown was a form of free speech. Our Colorado Constitution protects the right peaceably to assemble, and the right to apply to those invested with the powers of government for redress of grievance by petition or remonstrance, as well as the right of free speech. Article II, section 24. Those rights may be asserted as well at the residence of the Governor as at the State House.

If the ordinance here involved is to be strictly and literally construed, then, in order that any person 'shall disturb the peace of others,' it is necessary that the peace of others be actually disturbed, and, to...