City of Bismarck v. Schoppert

• Decision Date: 07 May 1991
• Docket Number: Cr. N
• Citation: 469 N.W.2d 808
• Parties: CITY OF BISMARCK, Plaintiff and Appellee, v. Thomas SCHOPPERT, Defendant and Appellant. o. 900263.
• Court: North Dakota Supreme Court

Page 808

469 N.W.2d 808

CITY OF BISMARCK, Plaintiff and Appellee, v. Thomas SCHOPPERT, Defendant and Appellant.

Cr. No. 900263.

Supreme Court of North Dakota.

May 7, 1991.

Thomas M. Tuntland of Tuntland and Donovan, Mandan, for defendant and appellant.

Paul H. Fraase, Asst. City Atty., Bismarck, for plaintiff and appellee.

LEVINE, Justice.

Thomas Schoppert appeals from a judgment of conviction entered upon a jury verdict finding him guilty of disorderly conduct. We reverse.

Early on April 1, 1989, Schoppert approached a police car in which Officer Eileen Elhard and volunteer police chaplain George Walker were sitting. As he walked past the car from its front to its back, Schoppert gestured with his middle finger and said, "Fucking, bitching cop." Schoppert continued walking, never breaking stride. Elhard backed the car in order to follow Schoppert and attempted to talk to him through her car window. Three times she asked Schoppert what was the matter and three times he replied, "Fuck you."

Elhard got out of the car and stopped Schoppert by grabbing his left arm. She asked him to identify himself. He replied, "Fuck you." He smelled of alcohol. Elhard was joined by her supervisor, Officer Dwight Offerman, and she described to Offerman what had occurred. Schoppert asked Offerman why he was being detained. Offerman said that making a vulgar gesture and saying "Fuck you" could be considered disorderly conduct. Schoppert responded, saying "Fuck my ass." He told the officers, "You don't know who you're fucking with. You just bought yourself a federal lawsuit." While he was talking to Offerman, Schoppert took one step toward the officer. After this exchange, Offerman asked Elhard to arrest Schoppert for disorderly conduct.

Schoppert was charged with violating Bismarck City Ordinance 6-05-01(3). ¹ He demanded a jury trial and his case was transferred to county court. Schoppert moved for a dismissal of the complaint on the ground that subsection 3 of the ordinance, under which he was charged, invalidly conflicted with and, therefore, superseded state law. The trial court dismissed and the City appealed. Bismarck v. Schoppert, 450 N.W.2d 757 (N.D.1990). (Schoppert I ) Based on Bismarck v. Nassif, 449 N.W.2d 789 (N.D.1989), we reversed. 450 N.W.2d at 758. In Nassif, the defendant argued that Bismarck Ordinance 6-05-01(3) conflicted with 12.1-01-05, NDCC, because the ordinance prohibited conduct different from the statute. We concluded there was no conflict between the ordinance and the statute because the additional language in the ordinance simply "clarifies the particular language which it prohibits. It literally expresses what the state statute must be construed to include to be constitutional." Nassif, 449 N.W.2d at 794. Compare Bismarck Ordinance 6-05-01(3) with NDCC Sec. 12.1-31-01(3). ²

On remand, Schoppert made a second motion to dismiss the complaint on the grounds that the ordinance was vague and overbroad and that it was unconstitutionally applied. The trial court denied the motion. Schoppert was convicted after a jury trial and now appeals.

On appeal, Schoppert advances several arguments, two of which, taken together, are dispositive. Schoppert first challenges the jury instructions defining disorderly conduct and then argues there was insufficient evidence to support the jury's verdict. The sum of his argument is that the ordinance, as applied to him, violates the first amendment.

Schoppert challenges two jury instructions submitted by the City and given by the court.

"PROOF OF OFFENSE

"In this case the following facts must be proved beyond a reasonable doubt to justify a verdict of guilty:

"1. That on the 1st day of April, 1989, in Bismarck, Burleigh County, North Dakota, the defendant knowingly in a public place used abusive or obscene language or made an obscene gesture, which language or gesture by its very utterance or gesture inflicts injury or tends to incite an immediate breach of the peace; and

"2. That the defendant did so with the intent to harass, annoy, or alarm another person or in reckless disregard of the fact that another person was harassed, annoyed or alarmed by his behavior." (Emphasis added.)

"DISORDERLY CONDUCT

"A person who, with intent to harass, annoy, or alarm another person knowingly or in reckless disregard of the fact that another person is harassed, annoyed or alarmed by his behavior, in a public place uses abusive or obscene language, or makes an obscene gesture, which language or gesture by its very utterance or gesture inflicts injury or tends to incite an immediate breach of the peace, is guilty of disorderly conduct." (Emphasis added.)

The inclusion of the underlined phrase "inflicts injury," Schoppert says, under the circumstances of this case, allowed the jury to convict him for conduct that is constitutionally protected. We agree.

The challenged phrase, "inflicts injury," which is found in subsection 3 of the Bismarck City Ordinance, see supra n. 1, is obviously derived from Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). However, that language has never been given independent substance or a life of its own and has never been held to be, by itself, a valid basis for a criminal conviction. Indeed, in Bismarck v. Nassif, 449 N.W.2d at 793, this court pointed out that subsection 3 of the ordinance was constitutional because it was limited to "fighting words" by the language "tends to incite an immediate breach of the peace." In Chaplinsky, the United States Supreme Court said that the "freedom of speech" protected by the first amendment to the Constitution does not prevent a state from punishing the speaking of "insulting or 'fighting' words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." 315 U.S. at 572, 62 S.Ct. at 769. Chaplinsky did not, however, involve words that "inflict injury"; it involved words that "tend to incite an immediate breach of the peace." The Supreme Court noted that the New Hampshire Supreme Court had declared the state statute's purpose as preserving the public peace, "no words being 'forbidden except such as have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.' " 315 U.S. at 573, 62 S.Ct. at 770, citing State v. Brown, 68 N.H. 200, 38 A. 731 (1895). Because its holding did not rest on the ground of inflicting injury, the Supreme Court did not attempt to define what words "inflicted injury by their very utterance." Instead, the Court held that a state may limit speech in order to prevent breaches of the peace but only that speech that is "likely to provoke the average person to retaliation, and thereby cause a breach of the peace." Chaplinsky, 315 U.S. at 574, 62 S.Ct. at 770.

Shortly after deciding Chaplinsky, the Supreme Court reversed a conviction for "breach of the peace" under a Chicago city ordinance. Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949). The Illinois courts, having overlooked the construction placed on the ordinance by the trial court in its instructions, affirmed the conviction.

"The trial court charged that 'breach of the peace' consists of any 'misbehavior which violates the public peace and decorum'; and that the 'misbehavior may constitute a breach of the peace if it stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance, or if it molests the inhabitants in the enjoyment of peace and quiet by arousing alarm.' " 337 U.S. at 3, 69 S.Ct. at 895.

The Court vetoed this construction because under it, the jury could convict if it found Terminiello's speech "stirred people to anger, invited public dispute, or brought about a condition of unrest." None of those conditions could support a conviction for disorderly conduct without violating the first amendment. 337 U.S. at 5, 69 S.Ct. at 896. To withstand constitutional challenge, the ordinance must be aimed at speech "shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest." Id. at 4, 69 S.Ct. at 896.

Sometime later, the Supreme Court found unconstitutional a Georgia statute which prohibited the use of "opprobrious words or abusive language, tending to cause a breach of the peace." Gooding v. Wilson, 405 U.S. 518, 519, 92 S.Ct. 1103, 1104, 31 L.Ed.2d 408 (1972). Reviewing Georgia decisions under the statute, the Supreme Court concluded that Georgia courts had not given the statute a construction limiting it to words that "have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed." 405 U.S. at 524, 92 S.Ct. at 1107. In Gooding, the Court applied a modified version of the Chaplinsky fighting-words test. The Court concluded that the statute reached words that conveyed disgrace or that insulted the listener, and that these words were not words "which by their very utterance ... tend to incite an immediate breach of the peace." 405 U.S. at 525, 92 S.Ct. at 1107. The Supreme Court thus edited the phrase "inflict injury" from the Chaplinsky test much like this court did in Nassif.

Whatever the Chaplinsky Court meant by the phrase "words which by their very utterance inflict injury," Terminiello and Gooding stand for the proposition that the fact that words are vulgar or offensive is not sufficient to remove them from the protection of the first amendment and into the arena in which the state can make conduct criminal. ³ As the Supreme Court recently observed, it has "repeatedly invalidated laws that provide the police with unfettered discretion to arrest individuals for words or conduct that annoy or offend them." Houston v. Hill, 482 U.S. 451, 465, 107 S.Ct. 2502, 2511, 96 L.Ed.2d 398 (1987). It is thus not a crime in this country to be a boor, absent resort to fighting words. And, fighting words are "personally...