City of Englewood v. Hammes

• Decision Date: 31 October 1983
• Docket Number: No. 81SC267,81SC267
• Citation: 671 P.2d 947
• Parties: CITY OF ENGLEWOOD, Petitioner, v. John David HAMMES, Respondent.
• Court: Colorado Supreme Court

Page 947

671 P.2d 947

CITY OF ENGLEWOOD, Petitioner, v. John David HAMMES, Respondent.

No. 81SC267.

Supreme Court of Colorado En Banc.

Oct. 31, 1983.

Rehearing Denied Nov. 29, 1983.

Rick DeWitt, City Atty., City of Englewood, Loretta B. Huffine, Asst. City Atty., Englewood, for petitioner City of Englewood.

Mark Cameron Johnson, Allen J. Kincaid, Allen J. Kincaid & Associates, Brush, for respondent.

Max P. Zall, City Atty., City of Denver, Norman R. Bangeman, Lee G. Rallis, Howard E. Willner, Asst. City Attys., Denver, for amicus curiae City and County of Denver.

DUBOFSKY, Justice.

We granted certiorari to review the judgment of the Arapahoe County District Court reversing the municipal court conviction of the defendant, John Hammes, of "interfering with an officer" under City of Englewood (Englewood) Municipal Ordinance 11-6-15. ¹ The district court determined that the ordinance was unconstitutional. We limit the ordinance to knowing conduct, and as limited, uphold it as constitutional. However, because there was no evidence that the defendant knowingly interfered with police officers, we affirm the result reached by the district court.

On February 15, 1980, an Englewood city grader was removing ice which had accumulated on West Grand Avenue over a long period of time. Ahead of the grader, two Englewood police officers were impounding vehicles left on the street in violation of temporary signs restricting parking which had been put up by the street department the day before. The defendant's roommate was the owner of two vehicles parked on the street, and when the grader was ready to remove the ice in front of the defendant's apartment, the police officers, after noting the registered owner's name on the defendant's mailbox, told the defendant that if the vehicles were not moved they would be impounded.

The defendant called his roommate at work, informed him of the problem, and then went to his roommate's place of employment and brought him back to remove the vehicles. Meanwhile, the officers wrote up the impoundment and called tow trucks. The roommate, while waiting to be picked up, had called city offices and been told that an Englewood ordinance required posting of restricted parking for 48 hours before violators could be towed. Therefore, when the roommate arrived home he insisted that the police officers show him the local ordinance before he would move his vehicles. Because the grader and tow trucks were waiting, the officers informed him that he first must move his vehicles or they would be towed. The roommate replied that he would not move his vehicles and would not allow them to be impounded. When the officer told the roommate that he was under arrest, a physical altercation between the two officers and the roommate ensued.

The defendant, according to the testimony of the police officer, was advised by one of the officers to step back although the officer said the defendant had done nothing except be involved in the conversation, siding with the roommate. Both the defendant and the officer testified that the defendant did step back, and according to the defendant he went to the other side of his pickup truck while the officers and his roommate were wrestling on the curb-side of the truck. As other officers arrived, the two officers pushed the roommate to the ground, and the defendant came back around his truck to see what was happening. While the officers were trying to handcuff the roommate, the defendant approached close enough, according to the testimony of one officer, that the officer felt threatened. Because the defendant was yelling at the officers not to hurt the roommate the officer feared that the defendant was going to become involved in the altercation. The substance of the defendant's remarks was that "he [the roommate] had both hands behind his back already." The officer testified that the defendant was four to six inches away from him when he told him to get back or he would be arrested. The defendant testified that he did not approach the officer; instead, the officer approached him, and that he was not closer than eight feet to the fight. When the defendant ignored the officer's order to get back, the defendant was arrested.

The defendant was pro se at his trial in municipal court, and the municipal court judge, prefacing his remarks with "your state of mind might be material to the charge that is against you," asked questions in an attempt to elicit testimony about whether the defendant understood the problem with moving the vehicles and was trying to alleviate it, or trying to complicate it. In response, the defendant stated that it was apparent that the roommate only needed to move his vehicles, that he went to get his roommate to move the vehicles, that he also wanted to see the code, and that the whole thing became "quite ridiculous." He also testified that he never yelled or screamed and "was never even mad," but that he saw no reason to step back further than the other observers.

The municipal court found that the defendant did not intend to entirely prevent the officers from doing what they were doing, but ruled that when a fracas involves police officers, any interference with how the officers view their duty will sustain a conviction under the ordinance. The municipal court also observed that the defendant's motives "were not entirely bad." The municipal court fined the defendant $50.00 plus costs.

The defendant appealed to the Arapahoe County District Court which reversed, holding that the ordinance at issue was unconstitutionally vague and overbroad on its face, as well as unconstitutional as applied to the defendant's conduct, and that the evidence was insufficient to support the conviction. Englewood sought certiorari review.

I.

The district court found the ordinance to be overbroad in that it did not limit its application to speech to "fighting words," citing, Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972), and Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). But see Colten v. Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972) (upholding a conviction for disorderly conduct where the defendant had intentionally caused inconvenience to police by refusing to move on and by using speech devoid of "fighting words"). The district court also found the terms "interfere with" and "hinder" to be vague and indefinite, and implied, in its reliance on Landry v. Daley, 280 F.Supp. 968 (N.D.Ill.1968), that the phrase "in the discharge of his duty" is unconstitutionally vague. The district court did not mention People v. Del Toro, 155 Colo. 487, 395 P.2d 357 (1964) in which this Court held that an identical Aurora ordinance was not vague or uncertain in meaning. See generally Smith v. Goguen, 415 U.S. 566, 581, 94 S.Ct. 1242, 1251, 39 L.Ed.2d 605 (1974) (The United States Supreme Court, in dicta, stated: "There are areas of human conduct where, by the nature of the problems presented, legislatures simply cannot establish standards with great precision. Control of the broad range of disorderly conduct that may inhibit a policeman in the performance of his official duties may be one such area, requiring as it does an on-the-spot assessment of the need to keep order.")

Before the constitutional issues in this case may be considered, we must resolve the issue of the defendant's standing to raise them. Generally "[t]he proper inquiry on standing is whether the plaintiff has suffered injury in fact to a legally protected interest as contemplated by statutory or constitutional provisions." Marco Lounge, Inc. v. City of Federal Heights, 625 P.2d 982, 984 (Colo.1981); Cloverleaf Kennel Club, Inc. v. Colorado Racing Commission, 620 P.2d 1051, 1056 (Colo.1980); Wimberly v. Ettenberg, 194 Colo. 163, 168, 570 P.2d 535, 539 (1977). In First Amendment cases, however, the rules of standing are broadened to permit a party to assert the facial overbreadth of statutes or ordinances which may chill the constitutionally protected expression of third parties, regardless of whether the statute or ordinance could be applied constitutionally to the conduct of the party before the court. May v. People, 636 P.2d 672, 675 (Colo.1981); Marco Lounge, Inc. v. City of Federal Heights, supra, at 985. Where a statute purports to regulate conduct, rather than pure speech, however, the facial overbreadth exception to traditional rules of standing will be applied only when the overbreadth is real and substantial "judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2918, 37 L.Ed.2d 830 (1973); May v. People, supra, at 676. Moreover, facial overbreadth rarely will be found when a statute is susceptible to a suitably limiting construction. May v. People, supra, at 675-676; Marco Lounge, Inc. v. City of Federal Heights, supra, at 986.

The ordinance at issue purports to regulate conduct rather than pure speech. As interpreted by the district and municipal courts, it prohibits any interference with police officers whether through words or action. Because of the myriad of ways in which citizens, in the exercise of expressive or associational rights, might interfere unintentionally with police action, ² the ordinance, as interpreted by the lower courts here, is capable of chilling the exercise of First Amendment rights. However, because we find the ordinance to be susceptible to a limiting construction, ³ the ordinance is not substantially overbroad within the meaning of Broadrick and May. Therefore, we hold that the defendant lacks standing to raise the issue of facial overbreadth in this action.

Similarly, the defendant in this action lacks standing to raise the alleged vagueness of the ordinance except as it applies to his own conduct. The essence of a vagueness challenge is that the law "fails to reasonably forewarn persons of ordinary intelligence of what is prohibited...