City of Wichita v. Griffie
| Decision Date | 18 November 2022 |
| Docket Number | 124,412 |
| Parties | City of Wichita, Kansas, Appellee, v. Gabrielle Griffie, Appellant. |
| Court | Kansas Court of Appeals |
NOT DESIGNATED FOR PUBLICATION
Appeal from Sedgwick District Court; ERIC WILLIAMS, judge.
Dylan P. Wheeler, of Depew Gillen Rathbun &McInteer, LC, of Wichita, for appellant.
Nathaniel Johnson and Jan Jarman, assistant city attorneys and Jennifer Magana, city attorney, for appellee.
Before SCHROEDER, P.J., MALONE, J., and TIMOTHY G. LAHEY, S.J.
The City of Wichita (City) charged Gabrielle Griffie with unlawful assembly under Wichita Municipal Code of Ordinances (W.M.O.) § 5.73.030 (2020) several days after she organized and participated in a protest on the streets of Wichita and the steps of its federal courthouse. The City's theory of the case was that Griffie planned the protest for the purpose of engaging in "disorderly conduct"-more specifically, engaging in "noisy conduct tending to reasonably arouse alarm, anger or resentment in others." W.M.O. § 5.24.010(c) (2020). After the municipal court found Griffie guilty, she appealed to the Sedgwick County District Court and requested a jury trial. Griffie argued that the district court should strike down the "disorderly conduct" provision used to support the unlawful assembly charge as unconstitutionally overbroad because it prohibits a wide range of expressive conduct protected under the First Amendment to the United States Constitution. The district court denied Griffie's request, and a jury found her guilty of unlawful assembly under the "noisy conduct" definitional ordinance. Griffie appeals, renewing her constitutional challenge to the "noisy conduct" provision of W.M.O. § 5.24.010(c). For the reasons stated in this opinion, we reject Griffie's facial challenge to the constitutionality of the ordinance and affirm the district court's judgment.
On July 29, 2020, a group called Project Justice ICT held a protest in downtown Wichita as a symbol of the group's solidarity with protesters in Portland, Oregon, who were engaging in ongoing protests over the murder of George Floyd by a Minneapolis, Minnesota police officer. Griffie served as the executive director of Project Justice ICT, helping the group to organize food drives, protests, and other community events.
Project Justice ICT advertised the event on Facebook, telling its supporters to The Wichita Police Department monitored the group's online activity and prepared for the event. Project Justice ICT failed to obtain a community event permit to close off the streets for its demonstration; this raised concerns by the police that the demonstration could obstruct traffic or even cause a pedestrian/vehicle collision. Despite the group's lack of a permit, the police decided not to interfere with the protest, and instead tried to block off the streets around the group's demonstration to limit the amount of contact with motorists.
On the day of the demonstration, about 40 to 60 people showed up at Century II in downtown Wichita to participate in the protest. They marched en masse, chanting various slogans-such as "No justice, no peace" and "Black lives matter"-as they walked down the almost entirely empty streets. Griffie carried a megaphone and a homemade shield as she marched at the front of the group, chanting and leading the other protestors.
Despite the efforts by police to divert traffic away from the protest, during the group's march down the street, a man named Jeremy McTaggart came across the group while driving. The protestors were walking in the middle of the street obstructing the center two lanes of traffic leaving the outer lanes clear and unimpeded, but McTaggart did not move to the right lane because he was trying to make a left turn. At least one of the protesters-not Griffie-touched McTaggart's car and shouted at him. Griffie was a couple of car lengths ahead of the encounter and later testified that she did not see or hear it. After about 30 seconds, McTaggart drove away without further incident.
The protestors continued to march until they arrived at the federal courthouse in downtown Wichita. The group walked around to the front of the building and stayed on the footsteps of the courthouse for about 30 minutes, during which Griffie and others gave speeches to the crowd over megaphones. The group finally dispersed when it began to heavily rain. The police made no arrests during the protest, nor does it appear that the group had any interaction with police other than hurling insults at some of the officers who were blocking traffic and monitoring the march.
The entire protest was videotaped and posted on Facebook. Detective Marianna Hoyt reviewed the videotape and another officer, Lieutenant Drew Sielor, helped Hoyt identify Griffie out of the crowd of protestors. Hoyt eventually decided to charge Griffie with unlawful assembly under W.M.O. § 5.73.030. The complaint alleged that Griffie had "participat[ed] in the meeting or coming together of at least five persons for the purpose of engaging in conduct constituting disorderly conduct . . . by blocking traffic."
Griffie proceeded to a bench trial before the Wichita Municipal Court and was found guilty. She then appealed her conviction to the Sedgwick County District Court. At the de novo trial, the assistant city attorney noted that the City was not relying on the brawling, fighting, or disturbing an assembly varieties of disorderly conduct in W.M.O. § 5.24.010(a) and (b), and instead had "really honed [the case] down [to] fighting words or conduct" under W.M.O. § 5.24.010(c). Griffie's attorney argued that the particular provision in the ordinance on noisy conduct needed to be construed to only encompass fighting words under State v. Huffman, 228 Kan. 186, 612 P.2d 630 (1980). The district court disagreed, finding Griffie's argument was "not consistent with the law" and that both her words and conduct could be considered separately.
McTaggart was the first witness to take the stand. Sielor and Hoyt also testified for the City and the two-hour videotape of the entire protest was played for the jury. After the City rested its case-in-chief, Griffie moved for acquittal. The district court denied her motion after walking through the elements of the unlawful assembly offense stating, "The simple fact that she was engaged in this meeting of not less than five people, for purpose of this meeting was for the engagement of noisy conduct in such a nature it would tend to reasonably arouse alarm, anger, or resentment in others." Griffie's attorney requested permission to submit a trial brief requesting reconsideration, which the court granted.
The next morning, before Griffie presented evidence, the district court addressed the arguments raised in her brief. Griffie argued that the "noisy conduct" portion of the definition of disorderly conduct was "either so unconstitutionally broad and vague that it should either be struck down, or we can . . . authoritatively construe it in such a matter [sic] that it only encapsulates unprotected speech." Essentially, Griffie asked the court to instruct the jury that the City was required to show that she "used fighting words and unprotected form[s] of speech during [the] assembly" and to drop the "noisy conduct" portion of the subsection defining the offense to prevent the possibility of incidentally criminalizing her for engaging in protected speech.
In response to these arguments, the City clarified that it was only arguing that Griffie's conduct constituted disorderly conduct, not that she had used fighting words. The City elected to proceed under the "noisy conduct" portion of W.M.O. § 5.24.010(c), omitting the "fighting words" provision. Griffie again alleged the City was trying to stifle the free expression of ideas, but the district court denied her motion for reconsideration, explaining that her conduct was "well past any expressive activities, and that played no role in the expression of the ideas." The court also denied Griffie's motion regarding the constitutionality of the "noisy conduct" portion of the disorderly conduct ordinance.
After the district court rendered its decision, Griffie testified on her own behalf. Griffie, who owns a vintage shop in downtown Wichita, stated that she got involved in organizing political activist groups and was eventually asked to serve as the executive director of Project Justice ICT. The group held distribution events as well as organized protests. Griffie stated that before any protests, she would tell participants that they were not going to engage in or cause fights or otherwise agitate people, and that their job was simply to "march down the street, do some chants, bring awareness or whatever." On cross-examination, Griffie admitted that on July 29, 2020, the protest group intentionally tried to block the streets of Wichita and that was one of the reasons they were there.
Griffie's attorney submitted a proposed instruction that required the jury to find that she personally engaged in conduct constituting disorderly conduct and argued that she could not be found guilty based on the actions of the other protesters that she did not actively encourage, but the district court denied the requested instruction. As for the elements of the offense of unlawful assembly, the district court instructed the jury:
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