City of Kennewick v. Keller, 830--III
| Decision Date | 07 August 1974 |
| Docket Number | No. 830--III,830--III |
| Citation | 11 Wn.App. 777,525 P.2d 267 |
| Parties | The CITY OF KENNEWICK, Respondent, v. Leon B. KELLER, Appellant. |
| Court | Washington Court of Appeals |
William F. Nelson, Miracle & Pruzan, Seattle, for appellant.
H. W. Felsted, Staples & Felsted, Pasco, for respondent.
Defendant, Leon B. Keller, was charged in the municipal court of Kennewick with disorderly conduct in that he
'did wrongfully and unlawfully conduct himself in a disorderly manner, to-wit: by using abusive, lewd, vulgar or obscene language in the presence of another'
in violation of the Kennewick Municipal Code 10.09.010. 1 He was also charged with resisting and hindering the police and malicious destruction of property in violation of sections 10.03.010 and 10.21.070, respectively. After being found guilty of all charges in municipal court, the defendant appealed to superior court where the charges were retried de novo to the court. The charge of malicious destruction of property was dismissed; he was found guilty of disorderly conduct and resisting arrest. From these convictions, defendant appeals.
Defendant contends: (1) Certain findings of fact are unsupported by the evidence and neither the facts properly found nor the evidence are sufficient to sustain the defendant's convictions of disorderly conduct and resisting arrest; and (2) The ordinance under which the defendant was found guilty of disorderly conduct is unconstitutional.
The record must be viewed by this court in a light most favorable to the state. The flavor of the events leading to the defendant's arrest can best be described by the actual testimony. Officer William Clark, who had been with the Kennewick Police Department for a little over two years, testified:
Q Were you working the evening of December 11, 1971?
A I was.
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Q What are the hours of that shift, Officer Clark?
A We go on duty at 8 o'clock p.m., and the shift ends at 4 a.m.
Q . . . In the course of that day, did you have occasion to observe a motor vehicle driven by the defendant, Mr. Keller?
A I did.
Q When did you first observe this motor vehicle, Officer?
A I was on routine patrol in the Kennewick mall district. . . . I observed a small wedding party proceeded through this area, all the vehicles, and I observed a brown Ford van which I later found that the defendant was driving in the procession.
Q Was there anything unusual about this, Officer?
A I followed the procession, and at the intersections of Kennewick and Cascade, and Kennewick and Dayton, the brown Ford van squealed its tires as it was leaving the stop signs there.
Q . . . What else happened?
A As the vehicle left the intersection of Dayton and Kennewick Avenue, there was a vehicle between my vehicle and his. The street there turns in to a 4-lane. There are 2 lanes in 1 direction. I got ground the other vehicle and I observed the Ford van accelerating rapidly. I started to clock the Ford van at Ione and Kennewick Avenue. My clock ran from Ione Street to Mayfield. The clock indicated on my speedometer, it registered 55 miles per hour, and that it was a 35-mile-an-hour zone.
Q Then what did you do?
A As I stated, the clock ended at Mayfield. At Newport, I turned on my red lights. I was behind the van at this time, and the van made a right-hand turn onto North Olympia and went about a half block and pulled to the right side of the roadway.
Q What did you do then, Officer?
A I exited my vehicle and contacted the driver of this van.
Q Who was the driver?
A I found him to be the defendant, Leon Keller.
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Q What did you do at that time, Officer?
A I requested to see his operator's license, which he produced. I was examining the license at the scene. We were between his van and my vehicle, and I was contacted by a bystander and was interrupted by bystander that had something to say, that I just didn't have the time to talk to him at the time.
Q What happened then?
A That subject was subsequently arrested for hindering a police officer.
Okay. Then what did you do, Officer?
A I returned to Mr. Keller. There was quite a crowd gathering at this time. This location is only a half block from the Arctic Circle. There was (were) quite a few kids coming over from that area to see what was going on, apparently. There were quite a few of the neighborhood people standing outside the residents (sic) watching. I contacted Mr. Keller. Under the circumstances, I didn't feel it was too good an idea to stay in the area due to the traffic hazards the citizens were causing and also the possible explosiveness of the situation with the amount of kids.
Q How many people are there, Officer?
A I would estimate between 50 and 75 people.
Q What did you do then?
A At that time, Mr. Keller was demanding his license back, and I requested that he follow me to the Police Station so I could discuss his driving with him.
Q What did he say?
A He retorted with, 'I wouldn't follow you fucking pigs anywhere.'
Q Then what did you do?
A At this time, Officer Sydor came over and asked him to follow me again.
A My backup unit that evening. . . . He advised Mr. Keller to follow me to the Police Station. Mr. Keller repeated the same statement again, that he wouldn't follow us. Officer Sydor advised him to watch his language.
Q Now this is kind of a question of fact, Officer: What did Mr. Keller say the next time?
A He reported (retorted) again that he wouldn't follow we 'fucking pigs' anywhere.
Q So what did Officer Sydor do then?
A He was advised to watch his language by Officer Sydor, and he retorted with the same words again, and Officer Sydor then placed him under arrest for disorderly conduct.
Officer Clark then described how Officer Sydor took hold of defendant's right arm and started towards the patrol car. Defendant pulled away and Officer Clark then took defendant's other arm. He jerked free with both arms and started swinging, striking Officer Clark on the side of the head. At that point, Officer Clark grabbed him around the neck and Officer Sydor grabbed his legs and started for the patrol car. Thereafter, Officer Clark described the physical difficulty they encountered in getting him into the patrol car. At one point, defendant crawled partially under the partrol car. He was finally placed in the car after another officer arrived on the scene and used mace.
On cross-examination, Officer Clark said he saw defendant along with two or three others get out of the driver's side of the van and further testified:
A I never did charge him with speeding.
Q He was arrested for his disorderly conduct?
A Right. I just wanted to talk to him about his driving. . . . I didn't have a chance to really talk to him very long. I was examining the license, and I was interrupted by bystander which took my time for a few minutes. . . . I believe he came from another vehicle. . . . He said that he had seen the whole thing and that Mr. Keller had not exceeded 35 miles per hour.
Q Are you sure he didn't say that Mr. Keller wasn't driving the van?
A No. The only thing he stated was the fact about the speed. . . . He was charged with hindering a police officer. . . . I dropped the charges that night when we talked it over in the station.
Q Where was Officer Sydor located?
A He arrived behind me. His vehicle was parked behind mine on the same side of the street, and he was attempting to disperse the crowd or get them out of the street. They were a traffic hazard at the time.
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Q When you placed Mr. Cheney (the bystander) under arrest, where did you put him?
A I took to the rear of my patrol car, placed him in the rear seat. I tried to identify the subject, and he refused to identify himself adequately, I should say.
Q And then you redirected your attention to Mr. Keller?
A Yes, sir.
Q You walked up to him, I take it, and what did you say to him?
A I believe that is when I asked him to follow to the police station. As I previously stated, I thought the situation warranted it, our leaving the area.
Q And you asked him to follow in the van?
A Yes, sir.
Q What all did he say?
A Well, he demanded his license back, and I advised him it would be returned at the station, but I was going to hang on to it. And then that is when he made his remark. . . .
Q And you didn't get violent or anything like that? That remark didn't get violent or anything like that?
A It embarrassed me.
Q It didn't incite you to some kind of violence or lose control or anything like it, did it?
A Well, of course, it would be just my opinion, if that is what you want.
Q But you didn't do anything violent?
A No. I didn't swing or anything.
Q. Have you ever been called that before?
A Yes, sir.
Q Very many times?
A I wouldn't say it is the usual occurrence. It is a situation that is usually explosive at the time.
Q Tempers are high?
A Right.
Q So I take it, it is something that you just have to learn to live with in your job, I take it, is that a fair statement?
A Well, we get into a difference of opinion. It is against the law as far as I am concerned, and that is where I would-- Q So it is grounds to make an arrest in your opinion?
A In my opinion, yes.
(Italics ours.) Although Officer Clark states that he thought defendant was the driver of the van, the court after hearing all the evidence found that defendant was not in fact the driver.
Officer Robert Sydor, who had been 3 years on the Kennewick police force, related his observations on arrival at the scene:
Q What did you observe when you first arrived at the scene?
A . . . I observed several subjects standing around there in the street and the sidewalks.
Q And you observed Mr. Keller at that time?
A When I started asking him to step bakc onto the sidewalk is when Mr. Keller advised me that Officer Clark has the driver's license, and I said, 'Stand by the car.'
Q . . . Who did you advise to step bakc to the sidewalk?
A People that were just standing around there. People who had...
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State v. Steen, 39625–1–II.
...v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 63 L.Ed. 470 (1919). And the Washington Supreme Court, in City of Kennewick v. Keller, 11 Wash.App. 777, 785, 525 P.2d 267 (1974), confirmed the illegality of “fighting words,” words “ ‘which by their very utterance inflict injury or tend to ......
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City of Seattle v. Eze
...failed to specify the requisite criminal intent. See Everett v. O'Brien, 31 Wash.App. 319, 641 P.2d 714 (1982); Kennewick v. Keller, 11 Wash.App. 777, 525 P.2d 267 (1974).3 Because Eze has neither raised nor argued the applicability of the parallel state constitutional provision, Const. art......
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State v. Valentine
...followed the common law rule as expressed in Rousseau in 1952 for at least another 30 years. For example, in City of Kennewick v. Keller, 11 Wash.App. 777, 787, 525 P.2d 267 (1974) the illegally arrested defendant, faced with loss of liberty "alone," resisted the unlawful arrest by jerking ......
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State v. Steen
...v. United States, 249 U.S. 47, 52, 39 S. Ct. 247, 63 L. Ed. 470 (1919). And the Washington Supreme Court, in City of Kennewick v. Keller, 11 Wn. App. 777, 785, 525 P.2d 267 (1974), confirmed the illegality of "fighting words," words "'which by their very utterance inflict injury or tend to ......