State v. Kaiser
| Citation | 204 Ariz. 514,65 P.3d 463 |
| Decision Date | 01 April 2003 |
| Docket Number | No. 1 CA-CR 02-0448.,1 CA-CR 02-0448. |
| Parties | STATE of Arizona, Appellee, v. Gerald KAISER, Appellant. |
| Court | Court of Appeals of Arizona |
David A. Pennartz, Scottsdale City Attorney by James Neugebauer, Assistant City Prosecutor, Scottsdale, Attorneys for Appellee.
Peterson & Peterson by Chris Peterson, Phoenix, Attorneys for Appellant.
¶ 1 Gerald Kaiser appeals his conviction for refusing to obey a peace officer,1 a class 1 misdemeanor violation of Scottsdale City Code section ("Code § ") 19-13. He contends that the regulation is unconstitutional because it is both vague and overbroad, thereby denying him due process in violation of the Fourteenth Amendment to the United States Constitution.2 For reasons that follow, we hold that the ordinance is constitutional.
¶ 2 Two Scottsdale peace officers stopped a car after an officer suspected that the driver, Kaiser's wife, was intoxicated. Kaiser was a passenger. When his wife got out of the car to talk with one officer, Kaiser yelled at his wife to not answer any questions or perform any field-sobriety tests. Then, despite being told by the other officer to remain in the car, Kaiser got out and attempted to approach his wife and the investigating officer. The officers repeatedly instructed Kaiser not to interfere with the investigation and to get back in the vehicle, and, when he failed to comply, they told him to return to the car or he would be arrested. Kaiser persisted, repeatedly defying their orders. Eventually, he was arrested for failing to return to and remain in the car when told to do so and for interfering with the investigation. Throughout the incident, Kaiser appeared to the officers to be angry, disruptive, aggressive and profane, making comments that the officers interpreted as threats.
¶ 3 Charged with refusing to obey a peace officer, Kaiser was convicted in Scottsdale City Court for having violated Code § 19-13, which provides in pertinent part that "[n]o person shall refuse to obey a peace officer engaged in the discharge of his duty." He appealed his conviction to the Maricopa County Superior Court, ARIZ.REV.STAT. ("A.R.S.") § 22-371 (2002), insisting that the law is vague and overbroad. The court rejected his argument and affirmed his conviction, finding that the ordinance was not vague and that Kaiser had no standing to complain that the ordinance is overbroad. Kaiser brought the same challenge to this court. A.R.S. § 22-375(A)(2002).
¶ 4 Because this matter originated in municipal court, our jurisdiction is limited to a review of the facial validity of the ordinance. State v. Alawy, 198 Ariz. 363, 364 ¶ 3, 9 P.3d 1102, 1103 (App.2000); State v. Singer, 190 Ariz. 48, 50, 945 P.2d 359, 361 (App. 1997). Accordingly, if the regulation is facially valid, we do not proceed to analyze how it was applied to the individual defendant. Alawy, 198 Ariz. at 364 ¶ 3, 9 P.3d at 1103.
¶ 5 Before we determine whether an ordinance is facially valid, however, we must first address whether a defendant has standing to challenge the constitutionality of the ordinance. Id. at 364 ¶ 6, 9 P.3d at 1103. "Even if an ordinance or statute is vague in some particulars, a person `to whose conduct a statute clearly applies may not successfully challenge it for vagueness.'" Id. (quoting State v. Trachtman, 190 Ariz. 331, 334, 947 P.2d 905, 908 (App.1997)(quoting Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974))). See State v. McLamb, 188 Ariz. 1, 6, 932 P.2d 266, 271 (App.1996),
cert. denied, 522 U.S. 814, 118 S.Ct. 60, 139 L.Ed.2d 23 (1997). Even so, "[u]nder some circumstances, litigants whose own activities are constitutionally unprotected can nonetheless challenge a statute as overbroad if the law `substantially abridges the First Amendment rights of other parties not before the court.'" State v. Musser, 194 Ariz. 31, 32 ¶ 5, 977 P.2d 131, 132 (1999)(quoting Village of Schaumburg v. Citizens for a Better Env't, 444 U.S. 620, 634, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980)).
¶ 6 Peace officers may "take such steps as [are] reasonably necessary to protect their personal safety and to maintain the status quo" during an investigatory stop. United States v. Hensley, 469 U.S. 221, 235, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). Kaiser does not contest the validity of the traffic stop or that the officers could properly investigate whether his wife was driving under the influence of alcohol. He does not contest that the officers were engaged in the discharge of their duties. He does not deny that he got out of his car several times and attempted to approach his wife and the investigating officer despite being told repeatedly to return to and remain in his vehicle and not interfere with the investigation. He complains only that the ordinance he violated is itself a violation of his constitutional right to due process.
¶ 7 Kaiser's conduct falls within the activity regulated by Code § 19-13 such that it cannot be said that the ordinance is facially vague or overbroad regardless of any theoretical unconstitutional application of the ordinance to others not before the court. Nevertheless, we may consider Kaiser to have standing and so we address the constitutionality of the ordinance.
945 P.2d at 361 (quoting State v. Phillips, 178 Ariz. 368, 370, 873 P.2d 706, 708 (App.1994)). See Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972).
The Constitution only requires that language convey a sufficiently definite warning as to proscribed conduct when measured by common understanding and practices. That there will be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense.
McLamb, 188 Ariz. at 5, 932 P.2d at 270 (quoting State v. Cota, 99 Ariz. 233, 236, 408 P.2d 23, 26 (1965)).
¶ 10 Kaiser argues that Code § 19-13 is vague because no mens rea is required. He adds that, under the ordinance, "every contact between the police and the public provides the potential of an arrest for declining to obey whatever a policeman may decide he wants" resulting in arrest and conviction at the "whim" of the officer whether the failure to comply is intentional or not.
¶ 11 First, the ordinance does contain a mens rea requirement: It requires that a person "refuse" to obey an order. To refuse an order is an affirmative act of rejection, not a bare failure to obey but a knowing and deliberate decision to not obey.3 Absent a refusal to obey, as opposed to a mere failure to obey, there can be no violation of the ordinance.
¶ 12 Second, as Code § 19-13 provides, the order must be one of "a peace officer engaged in the discharge of his duty." While the Scottsdale City Code does not define "peace officer" or "discharge of duty," the Arizona legislature has defined a "peace officer" to be "any person vested by law with a duty to maintain public order and make arrests," A.R.S. § 13-105(25), and this duty can only be accomplished through the lawful enforcement of state and local laws. In other words, there is no violation of Code § 19-13 if the order that is refused is not one made in connection with the discharge of the duties of the peace officer. A legislative enactment "is not void for vagueness `simply because it may be difficult to determine how far one can go before the statute is violated.'" McLamb, 188 Ariz. at 5, 932 P.2d at 270 (quoting Phillips, 178 Ariz. at 370, 873 P.2d at 708)(quoting Berenter v. Gallinger, 173 Ariz. 75, 81, 839 P.2d 1120, 1126 (App.1992)).
¶ 13 Kaiser relies heavily on City of Chicago v. Morales, 527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999), in which the Supreme Court found facially invalid an ordinance that provided that, if a police officer reasonably believed that at least one of two or more persons present in a public place was a member of a "criminal street gang" and that the persons were loitering by remaining in a place "with no apparent purpose," the officer must order all the persons to disperse "from the area." However, the analysis is fully distinguishable from that pertinent to this case.
¶ 14 In Morales, the Court first noted that "the freedom to loiter for innocent...
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