City of Cincinnati v. Hoffman

• Decision Date: 19 July 1972
• Docket Number: No. 71-424,71-424
• Citation: 60 O.O.2d 117,285 N.E.2d 714,31 Ohio St.2d 163
• Parties: , 60 O.O.2d 117 CITY OF CINCINNATI, Appellee, v. HOFFMAN et al., Appellants.
• Court: Ohio Supreme Court

Page 163

31 Ohio St.2d 163

285 N.E.2d 714, 60 O.O.2d 117

CITY OF CINCINNATI, Appellee, v. HOFFMAN et al., Appellants.

No. 71-424.

Supreme Court of Ohio.

July 19, 1972.

Syllabus by the Court

1. A city ordinance making it 'unlawful for any person to willfully conduct himself or herself in a noisy, boisterous, rude, insulting or other disorderly manner, with the intent to abuse or annoy any person,' is not so vague that men of common intelligence must necessarily guess as to its application and does not lack ascertainable standards of guilt. (Connolly v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322; Palmer v. Euclid, 402 U.S. 544, 91 S.Ct. 1563, 29 L.Ed.2d 98.)

2. To willfully conduct oneself in a noisy, boisterous, rude, insulting or other disorderly manner, with the intent to abuse or annoy another, is to perform such conduct with an evil or wrongful purpose, and a city ordinance proscribing such behavior does not prohibit the lawful exercise of any constitutional right of the lawful enjoyment of any constitutionally protected freedom. (Colten v. Commonwealth (1972), 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584.)

3. Where, under one state of facts, the operation of a statute is constitutional, a court will not declare it invalid because under another state of facts, not involved its operation would be unconstitutional. (State, ex rel. Herbert, v. Ferguson, 142 Ohio St. 496, 52 N.E.2d 980.)

4. A city ordinance will not be declared unconstitutional upon the basis of its conflict with a state statute where the record does not affirmatively show that such conflict worked to the prejudice of the complaining party. (State v. Stanton, 15 Ohio St.2d 215, 239 N.E.2d 92.)

5. Where a city ordinance conflicts with a state statute in that the former does not specifically enunciate the requirement of mens rea proscribed in the latter, a conviction under the ordinance will not be reversed upon the basis of such conflict where the court charged the jury that a finding of mens rea was an essential prerequisite to a verdict of guilty.

On March 7, 1970, these appellants were arrested by police officers of the city of Cincinnati. Thereafter, Brown was convicted of violating Section 901-d4 of the Code of Ordinances of that city (disorderly conduct), and Hoffman and Berliner were convicted of violating Section 901-r2 (resisting an officer). Further facts appear as warranted in the opinion.

The Court of Appeals for Hamilton County affirmed the convictions and the causes were consolidated for appeal.

William A. McClain, City Sol., Ralph E. Cors and William P. Whalen, Jr., Cincinnati, for appellee.

Allen Brown, Andrew B. Dennison and Robert S. Plotkin, Cincinnati, for appellants.

HERBERT, Judge.

These arrests came amid a confrontation between demonstrators and police officers, subsequent to the unceremonious hauling down of an American flag by someone in the crowd. As is not unusual, the evidence concerning events immediately preceding the arrests is conflicting and the testimony voluminous. Repetition here of what was maintained at the trial by one side or the other would serve no fair or useful purpose, since the jury found guilt from evidence which is legally sufficient to sustain its verdicts.

Appellants question the constitutional validity of the respective ordinances under which they were prosecuted and convicted. Appellant Brown was found guilty of violating Section 901-d4, which states:

'It shall be unlawful for any person to willfully conduct himself or herself in a noisy, boisterous, rude, insulting or other disorderly manner, with the intent to abuse or annoy any person or the citizens of the city or any portion thereof.'

Brown asserts that the foregoing ordinance is vague, indefinite, overbroad and lacking in proper guidelines for enforcement, and that it is violative of the Fourteenth Amendment to the Constitution of the United States.

It is fundamental that 'no man * * * be held criminally responsible for conduct which he could not reasonably understand to be proscribed.' United States v. Harriss (1954), 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989. Thus, in order to comport with that concept of due process of law, a criminal statute or ordinance must be phrased in terms of readily ascertainable standards of guilt, so that men of common intelligence will not have to guess at its meaning. Connolly v. General Construction Co. (1926), 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322; Palmer v. Euclid (1971), 402 U.S. 544, 91 S.Ct. 1563, 29 L.Ed.2d 98.

In Cincinnati v. Coates (1970), 21 Ohio St.2d 66, 255 N.E.2d 247, a majority of this court held:

'A city ordinance making it 'unlawful for three or more persons to assemble * * * on * * * sidewalks * * * and there conduct themselves in a manner annoying to persons passing by' is not vague or uncertain but is, on its face, sufficiently clear to inform a person of common intelligence of the nature of the acts prohibited by the ordinance.'

'Annoying,' the majority said at page 69, of 21 Ohio St.2d, at page 249 of 255 N.E.2d in the opinion in Coates, 'is a widely used and well understood word; it is not necessary to guess its meaning. 'Annoying' is the present participle of the transitive verb 'annoy' which means to trouble, to vex, to impede, to incommode, to provoke, to harass or to irritate.'

Subsequently, however, this court's decision was reversed by the United States Supreme Court in Coates v. Cincinnati (1971), 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214, on the ground that the ordinance was unconstitutionally vague and broad. The ordinance was held vague for the reason that it subjected the exercise of the right of assembly to an unascertainable standard, i. e., 'conduct that annoys some people does not annoy others.' The ordinance was found overbroad in that it authorized punishment of constitutionally protected conduct, i. e., the right of the people to gather in public places free from indiscriminate 'enforcement of a prohibition against annoying conduct.' Appellant Brown urges us to examine Section 901-d4 against the backdrop of the result in Coates and subsequent Supreme Court cases. See Gooding v. Wilson (1972), 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408; Cohen v. California (1971), 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284.

In our opinion, the case at bar is readily distinguishable from Coates. The Coates ordinance simply prohibited 'annoying' conduct; the instant ordinance prohibits willful disorderly conduct which is performed with the intent to abuse or annoy. The plain meaning of this ordinance, in requiring that the proscribed conduct be done with intent to abuse or annoy, is that the specified intent governs the reading of the entire section. The injection of scienter provides a precise and comprehensible standard which is well within the ability of a person of common intelligence to understand. Conduct that is willfully performed in a 'noisy, boisterous, rude, insulting or other disorderly manner,' is clearly chargeable to its initiator when gauged against his own preconceived intent to annoy or abuse.

We gain a considerable measure of support in this regard from the recent decision in Colten v. Commonwealth (June 12, 1972), 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584.

In that case, Colten was charged with violating Ky.Rev.Stat. Section 437.016(1)(f), which states:

'(1) A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:

'* * *

'(f) Congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse. * * *'

In affirming Colten's conviction, the Supreme Court quoted the following interpretation of the statute by the Kentucky Court of Appeals:

"As reasonably construed, the statute does not prohibit the lawful exercise of any constitutional right. We think that the plain meaning of the statute, in requiring that the proscribed conduct be done 'with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof,' is that the specified intent must be the predominant intent. Predominance can be determined either (1) from the fact that no bona fide intent to exercise a constitutional right appears to have existed or (2) from the fact that the interest to be advanced by the particular exercise of the constitutional right is insignificant in comparison with the inconvenience, annoyance or alarm caused by the exercise."

Although Colten had engaged in conduct sheltered by the First Amendment earlier on the day he was arrested, the court agreed with the finding of the Kentucky court, that '* * * at the time of his arrest, 'Colten was not undertaking to exercise any constitutionally protected freedom.' Rather, he 'appears to have had no purpose other than to cause inconvenience and annoyance. So the statute as applied here did not chill or stifle the exercise of any constitutional right.''

Neither did the court, in Colten, find the statute impermissibly vague or broad. The court said:

'* * * 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. We agree with the Kentucky court when it said: 'We believe that citizens who desire to obey the statute will have no difficulty in understanding it * * *' Colten v. Commonwealth, 467 S.W.2d 374, 378 (Ky. 1971).' (Emphasis added.)

Colten also urged the court to strike down the Kentucky statute on the authority of Cox v. Louisiana (1965), 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471. In that case, a breach of the peace statute was invalidated because it permitted conviction for disobedience of a police...