City of Whitefish v. O'Shaughnessy, 84-544

• Decision Date: 26 June 1985
• Docket Number: No. 84-544,84-544
• Parties: CITY OF WHITEFISH, Plaintiff and Respondent, v. Brian J. O'SHAUGHNESSY, Defendant and Appellant.
• Court: Montana Supreme Court

Page 1021

704 P.2d 1021

216 Mont. 433

CITY OF WHITEFISH, Plaintiff and Respondent, v. Brian J. O'SHAUGHNESSY, Defendant and Appellant.

No. 84-544.

Supreme Court of Montana.

Submitted May 2, 1985.

Decided June 26, 1985.

Neil E. Halprin argued, Missoula, for appellant.

Leif B. Erickson argued, Whitefish, for respondent.

HARRISON, Justice.

The appellant, Brian O'Shaughnessy, was charged with two counts of disturbing the peace. A Whitefish City Court convicted him on both counts. On appeal the District Court convicted him on one count of disturbing the peace. He was sentenced to five days in jail and fined $350. This appeal followed and is the second time this matter has been before this Court.

The following issues are presented for this Court's consideration:

1. Whether the appellant's behavior constituted disturbing the peace when, allegedly, a breach of peace must contain a threat of violence or pose a threat of a violent response and, allegedly, neither threat was present in this instance.

2. Whether section 7-32-4302, MCA, which empowers cities and towns to prevent and punish disturbances of the peace, section 45-8-101(1), MCA, which defines the offense of disorderly conduct, and Whitefish Municipal Ordinance 9.64.010, which defines the offense of disturbing the peace, are unconstitutional for vagueness and overbreadth.

3. Whether the sentence imposed on the appellant was excessive in light of a similar state statute with a maximum penalty less than that imposed in this instance.

The appellant appealed to the District Court of the Eleventh Judicial District. The District Court dismissed the appeal from the City Court judgment on December 5, 1983.

The appellant appealed to this Court. This Court vacated the District Court order dismissing the appeal from City Court.

Trial was then had at District Court on September 17, 1984. A six person jury convicted the appellant of one count of disturbing the peace. Appellant was then sentenced to five days in jail and fined $350. This appeal followed.

In part, the parties set forth different versions of the facts. Both do agree that the appellant had just closed his restaurant and bar at about 2:00 a.m., February 22, 1983, and was proceeding with a friend and an employee towards another restaurant. While walking, the appellant and his friends were approached by a patrol car operated by Officer Merkley of the Whitefish Police Department. The parties set forth different versions of the facts as to what then occurred.

The appellant, Brian O'Shaughnessy, admits that he and his friends were engaged in a conversation that was louder than normal. As Officer Merkley's patrol car approached, appellant waived at the officer and they then engaged in a conversation. During the conversation the officer told appellant to "hold it down." According to the appellant, at the close of the conversation he approached the officer and said, in a friendly way, "Give me five, [f.'er]." The officer then arrested the appellant.

The respondent, City of Whitefish, alleges that Officer Merkley had heard loud hollering from a block or more away and thought that a fight or argument was going on. The officer approached appellant and told him to "hold it down" and did so because there were a number of apartments in the area. The appellant then told the officer that he could not hold it down because it was such a "beautiful day." The officer asked the appellant three to five times to "keep it down" and warned appellant of a possible arrest for disturbing the peace.

The respondent alleges that the appellant got into the back of the patrol car and was asked to get out. After removing himself he got into the patrol car again and was asked to get out. Then the appellant wanted to shake hands with the officer but the officer refused. Appellant then said, "Well, [m.f.], I will holler and yell when and wherever I want if I want to ..." This was said "visually" and directly to the officer. The appellant was then arrested. The respondent alleges that the appellant continued to be vulgar and threatening after the arrest, and before a female employee working at the desk at the police station.

As to the first issue, the appellant argues that he did not threaten violence and there was no threat of a violent response so there could be no breach of peace. The facts are to the contrary. The jury found that the appellant stated "Well, [m.f.] ...", and that this statement was made willfully, maliciously, visually, and directly to the officer, and that the language used constituted "fighting" words.

While the record does not contain a charging instrument, it is clear that the appellant was charged under the following ordinance:

"Whitefish Municipal Ordinance, 9.64.010. No person within the municipality, or within three miles of the municipal limits, shall willfully and maliciously disturb the peace and quiet of any street, neighborhood, family, or person by loud, tumultuous noise, or by tumultuous or offensive conduct, or by using offensive, loud radio or television sets, or by threatening, quarreling, scolding, hallooing, hollering, challenging to fight, or fighting, or by cursing, swearing, uttering obscene, profane, vulgar, or indecent language in the presence of any person or persons, or by committing any obscene, vulgar, indecent, or lewd act in any public place, or in view of any person or persons."

The record shows that this breach of peace charge is not based on the "loud noise" of the appellant and his friends while they were talking before the police officer arrived. The District Court instructed the jury on this point:

"The two offenses of disturbing the peace with which defendant is charged do not involve the allegations that he made loud noises." (Instruction No. 10.)

The District Court specifically instructed the jury on the law set forth in the ordinance under which appellant was charged:

"No person within the municipality shall willfully and maliciously disturb the peace and quiet of any street, neighborhood, family, or person by loud, tumultuous noise, or by tumultuous or offensive conduct, or by threatening, quarreling, scolding, hallooing, hollering, challenging to fight, or fighting, or by cursing, swearing, uttering obscene, profane, vulgar, or indecent language in the presence of any person or persons." (Instruction No. 5.)

The District Court specifically instructed the jury on the definitions of "willfully" and "maliciously":

"The word 'willfully,' when applied to the intent with which an act is done or omitted and as used in my instructions, implies simply a purpose or willingness to commit the act or to make the omission in question. The word does not require in its meaning any intent to violate law, as to injure another, or to acquire any advantage. (Instruction No. 6.)

"The words 'malice' and 'maliciously' mean a wish to vex, annoy, or injure another person, or an intent to do a wrongful act.

"If you find that the defendant's conduct was not malicious--in other words, not done with the intent of annoying or injuring another person, then you must find the defendant not guilty as charged." (Instruction No. 7.)

The District Court also specifically instructed the jury that the words and language of the defendant must have been "fighting words":

"You are instructed that the words and language of the defendant must have been of such nature that men of common intelligence would understand would be words likely to cause an average person hearing such words to fight. Threatening profane, and obscene words, said without a disarming smile, are generally considered to be 'fighting words.' " (Instruction No. 9.)

On appeal from a jury trial in a criminal case, the evidence is viewed most favorable to the State, State v. Meader (1979), 184 Mont. 32, 43, 601 P.2d 386, 392. The State's version of the offensive remarks is the one we must consider. The charge and conviction have to do with the appellant's offensive statement to the police officer, that is, "Well, [m. f.], I will holler and yell when and wherever I want to ..." Here, the jury was instructed as to the required elements of this offense--willful and malicious--and the jury heard testimony that the appellant made the offensive remarks "visually" and directly to the officer. In addition the jury was instructed that it must find "fighting" words to convict. For our purposes the statement made will be referred to with that context in mind.

The right to free speech is Constitutionally protected. Congress shall make no law abridging the freedom of speech. U.S. Const. amend. I. The states are bound by the guarantees of the First Amendment through the due process clause of the Fourteenth Amendment. Gitlow v. New York (1925), 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138. Our law in Montana provides that no law shall be passed impairing the freedom of speech and every person shall be free to speak whatever he will on any subject, being responsible for all abuse of that liberty. 1972 Mont. Const., art. II, § 7.

The right to free speech, however, is not absolute. In Chaplinsky v. New Hampshire (1942), 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031, where a person had been taken into custody by a traffic officer and while being escorted to city hall had, upon meeting a city marshall, said "You are a God damned racketeer ... a damned Fascist ..." The Supreme Court stated:

"Allowing the broadest scope of the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words--those which by their very utterance inflict injury or tend to incite an immediate breach of peace. It has been...