City of Wichita v. Edwards

• Citation: 23 Kan.App.2d 962,939 P.2d 942
• Decision Date: 23 May 1997
• Docket Number: No. 75213,75213
• Parties: CITY OF WICHITA, Kansas, a Municipal Corporation, Appellee, v. John A. EDWARDS, Appellant.
• Court: Court of Appeals of Kansas

Page 942

939 P.2d 942

23 Kan.App.2d 962

CITY OF WICHITA, Kansas, a Municipal Corporation, Appellee, v. John A. EDWARDS, Appellant.

No. 75213.

Court of Appeals of Kansas.

May 23, 1997.

Syllabus by the Court

1. Section 5.01.010 of the Wichita City Code, a bias crime or ethnic intimidation ordinance, is not unconstitutionally overbroad when authoritatively construed to encompass speech only within the limited category of fighting words.

2. Section 5.01.010 of the Wichita City Code is not an unconstitutional content-based regulation of speech, but rather penalizes conduct undertaken by reason of specific motivations or intents.

3. Section 5.01.010 of the Wichita City Code is not unconstitutionally vague.

4. Section 5.01.010 of the Wichita City Code does not violate the Equal Protection Clause. The ordinance distinguishes between types of crimes based on the motivations underlying the crime and is rationally related to the State's legitimate interest in protecting its citizens from bias-related crimes.

5. Under the facts of this case, the evidence required at trial to prove ethnic intimidation also necessarily proved battery and disorderly conduct, and therefore the convictions are multiplicitous.

Gerald J. Domitrovic, Wichita, for appellant.

Sharon L. Dickgrafe, Assistant City Attorney, and Kelly Rundell, Assistant City Attorney, for appellee.

Before BRAZIL, C.J., MARQUARDT, J., and EDWARD E. BOUKER, District Judge, assigned.

BRAZIL, Chief Judge:

In this direct criminal appeal, the defendant John Edwards challenges the constitutionality of the Wichita City Code ethnic intimidation or bias crimes ordinance. Edwards contends the ordinance is unconstitutionally overbroad and vague, and also violative of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Edwards further argues that his conviction under the ordinance is multiplicitous with his convictions for battery and disorderly conduct. We affirm in part and reverse in part.

Edwards and his girlfriend, Terri Smith, were at a club when Smith and her ex-roommate, Marie Anderson, met and had a conversation. Anderson asked for and received her house key from Smith. Anderson is black. Edwards, who is white, was wearing a T-shirt with the slogan "white power" on the front. According to Edwards, Anderson upset Smith by calling her a "Nazi-loving slut" and threatening to expose her cocaine habit.

According to Anderson, Edwards shoved her chair, pinning her up against the bar, and said, "You goddamn nigger bitch, if you ever talk to Terri again, I'll fucking kill your ass." Edwards then spat in her face. Anderson described Edwards as very hostile, hateful, and angry. Edwards released her and left the club.

Although Edwards did not recall touching Anderson's chair, he admitted yelling at Anderson and calling her names. Edwards stated that he told Anderson he would "cut her fat nigger legs off" if she did not leave Smith alone. Edwards stated that he did not approach Anderson because she was black, but did so because he wanted to tell her to leave Smith alone. Edwards denied spitting on Anderson. Edwards also acknowledged that he was a skinhead and has the word "skinhead" tattooed on the back of his head.

Edwards was charged under the Wichita City Code with battery, disorderly conduct, and ethnic intimidation. The municipal court found Edwards guilty of all three charges, and he appealed to the district court. Edwards moved to dismiss the ethnic intimidation charge on constitutional grounds, but the court rejected his arguments. The court expressly adopted the reasoning set forth in the trial brief filed by the City of Wichita (City). The court found that the ethnic intimidation ordinance was not unconstitutionally vague or overbroad and did not violate the Equal Protection Clause. The court also found the charges were not multiplicitous. After an evidentiary hearing, Edwards was convicted and sentenced on all three charges.

The ethnic intimidation ordinance, section 5.01.010 of the Wichita City Code, provides:

"5.01.010 Ethnic intimidation or bias crimes.

"(a) Any person who violates or attempts to violate any of the following ordinances of the Code of the City of Wichita, Kansas, and any amendments thereto, by reason of any motive or intent relating to, or any antipathy, animosity or hostility based upon, the race, color, gender, religion, national origin, age, sexual orientation, ancestry, disability, or handicap of another individual or group of individuals shall be guilty of a misdemeanor:

"1. Chapter 5.10, Assault and Battery;

"2. Chapter 5.24, Disorderly Conduct;

"3. Section 5.66.010, Criminal Damage to Property;

"4. Section 5.66.050, Criminal Trespass;

"5. Chapter 5.82, Interfering with Telephone Service;

"6. Chapter 5.88, Unlawful Use of Weapons."

Edwards argues that the ethnic intimidation ordinance is unconstitutionally overbroad. Whether the ordinance is constitutional presents a question of law over which this court's review is unlimited. See State v. Bryan, 259 Kan. 143, 145, 910 P.2d 212 (1996).

It is a fundamental principle of Kansas law that statutes are presumed constitutionally valid. See Barnes v. Kansas Dept. of Revenue, 238 Kan. 820, Syl. p 1, 714 P.2d 975 (1986).

"This court adheres to the proposition that the constitutionality of a statute is presumed, that all doubts must be resolved in favor of its validity, and before a statute may be stricken down, it must clearly appear the statute violates the constitution. Moreover, it is the court's duty to uphold the statute under attack, if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done. [Citation omitted.]" State v. Huffman, 228 Kan. 186, 189, 612 P.2d 630 (1980).

See State ex rel. Schneider v. Kennedy, 225 Kan. 13, 19-21, 587 P.2d 844 (1978).

"An overbroad statute makes conduct punishable which under some circumstances is constitutionally protected from criminal sanctions." Huffman, 228 Kan. at 189, 612 P.2d 630. To avoid overbreadth, criminal statutes governing speech must be drawn with "the required narrow specificity to prohibit only a limited class of speech not protected by the First Amendment." Huffman, 228 Kan. at 190, 612 P.2d 630 (discussing Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972) ); see State v. Stauffer Communications, Inc., 225 Kan. 540, 546, 592 P.2d 891 (1979). "[A] statute or ordinance which is facially overbroad is to be construed and restricted to embrace only conduct which is not constitutionally protected." City of Prairie Village v. Hogan, 253 Kan. 423, 427, 855 P.2d 949 (1993).

The ethnic intimidation charge alleged Edwards committed battery and disorderly conduct, and Edwards contends that the ordinance is unconstitutional when applied to the disorderly conduct charge. Disorderly conduct includes the use of "offensive, obscene, or abusive" language, and Edwards argues that the ethnic intimidation law impermissibly criminalizes protected First Amendment speech.

The First Amendment prohibits the States from punishing use of language except in certain narrowly limited classes of speech, Huffman, 228 Kan. at 190, 612 P.2d 630, including "fighting words," which are defined as "those by which their very utterance inflict injury or tend to incite an immediate breach of the peace." Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942).

In Huffman, the Kansas Supreme Court construed the disorderly conduct statute, K.S.A. 21-4101, to prohibit speech only within the limited category of fighting words. 228 Kan. at 192, 612 P.2d 630. The Wichita City Code provision prohibiting disorderly conduct, section 5.24.010, is identical to K.S.A. 21-4101 and thus must also be narrowly construed to apply only to fighting words, which are not protected by the First Amendment.

Edwards contends that even if the ethnic intimidation ordinance does not directly punish protected speech, it has a chilling effect on expression of ideas because those expressions could subsequently be used as evidence of an individual's motivation or animosity. The United States Supreme Court has expressly rejected this contention, finding that "the prospect of a citizen suppressing his bigoted beliefs for fear that evidence of such beliefs will be introduced against him at trial ... is simply too speculative a hypothesis to support [an] overbreadth claim." Wisconsin v. Mitchell, 508 U.S. 476, 489, 113 S.Ct. 2194, 2201-02, 124 L.Ed.2d 436 (1993). Edwards points out that past expressions have been and will continue to be used as evidence of motivation or animosity. This fact, however, does not alter or diminish the Mitchell Court's conclusion.

Edwards next cites R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992), where the court considered a city ordinance which made it a misdemeanor to place on public or private property a " 'symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender.' " 505 U.S. at 380, 112 S.Ct. at 2541. The court held that even construing the ordinance as limited to fighting words, the ordinance was unconstitutional because it impermissibly regulated speech based on its content. 505 U.S. at 381, 391-96, 112 S.Ct. at 2541, 2547-50. The ordinance regulated fighting words that contained messages of bias-motivated hatred, but did not encompass fighting words that contained other messages. The court held that although the government may in certain instances constitutionally regulate fighting words, it may not regulate based on hostility or favoritism towards the underlying message expressed. 505 U.S. at 381-86, 112 S.Ct. at 2541-45.

Edwards...