Dempsey v. People, No. 04SC362.

Docket NºNo. 04SC362.
Citation117 P.3d 800
Case DateAugust 22, 2005
CourtSupreme Court of Colorado

Page 800

117 P.3d 800
Petitioner: Matthew Charles DEMPSEY,
v.
Respondent: The PEOPLE of the State of Colorado.
No. 04SC362.
Supreme Court of Colorado, En Banc.
June 27, 2005.
Rehearing Denied August 22, 2005.*

Page 801

Holme Roberts & Owen, LLP, Bradford E. Dempsey, Denver, for Petitioner.

Musgrave & Thesis, LLP, Steven J. Perfrement, Denver, Nancy L. Dempsey, Arvada, Co-counsel for Petitioner.

Mary T. Keenan, District Attorney, Twentieth Judicial District, Adrian A. Van Nice, Deputy District Attorney, Boulder, for Respondent.

Justice BENDER concurs in part and dissents in part.

Justice MARTINEZ does not participate.

---------------

Notes:

* Justice MARTINEZ does not participate.

---------------

KOURLIS, Justice.


Matthew C. Dempsey petitions for relief from the order of the district court acting as an appellate court, sustaining his convictions in Boulder County Court for disrupting lawful assembly and obstructing a peace officer. The charges arose out of accusations that Dempsey had disrupted an election campaign rally and hindered the officers' attempt to issue him a summons for the disturbance. Dempsey appealed the denial of his motion for judgment of acquittal to the district court, challenging the sufficiency of the evidence and arguing that his convictions contravened constitutional guarantees of free speech and due process of law. The district court upheld the convictions and Dempsey petitioned for certiorari to this court.1 We granted the petition and now reverse in part and affirm in part. We view the Colorado statute defining the crime of disrupting a lawful assembly as constitutionally applied in this case because the jury was instructed that it must find that the defendant intended the disruption and that a significant disruption occurred. Nonetheless, we hold that the evidence was insufficient to demonstrate that Dempsey's conduct did significantly disrupt the political rally. We therefore reverse Dempsey's conviction on that charge. As to the conviction for obstructing a peace officer, we conclude that there was sufficient evidence that the officers reasonably believed at the time at the time of the incident that Dempsey had committed a crime and therefore were justified in detaining him for the purposes of issuing a summons; and that Dempsey's conduct, when viewed as a totality, constituted a knowing obstruction of that process. We sustain that conviction, and remand to the trial court for further proceedings.

I. FACTS AND PROCEDURAL HISTORY

On October 26, 2002, Boulder County police arrested Matthew C. Dempsey on allegations of disrupting a lawful assembly,2 and resisting arrest.3 Dempsey subsequently

Page 802

moved to dismiss both charges on constitutional grounds, while the People moved to add an obstructing a peace officer charge.4 The trial court denied the defendant's motion and granted the People's motion to add the additional charge.5 The three charges were tried to a jury on May 6, 2003.

The events culminating in Dempsey's arrest began with an election 2002 campaign rally held at the Pearl Street Mall in Boulder, Colorado. The event was designed to promote several ballot initiatives and to provide various candidates, including Tom Strickland, Democratic candidate for the United States Senate, a forum. Strickland and one of his supporters, actor Robert Redford, were scheduled to address the crowd of 200 to 500 attendees. There was a stage on the Mall from which speakers, aided by amplified equipment, could address the crowd. A group of fifteen gymnasts, between the ages of eight and twelve, were performing on mats near the stage, to support Child Violence Alternative Week.

Dempsey was working with the campaign for the reelection of Republican Senator, Wayne Allard, the incumbent whom Strickland was challenging. Dempsey was among about fifteen Allard supporters who appeared at the rally, seeking to voice their opposition to Strickland's campaign. Dempsey, as the leader of his group, approached Officers Guzman and Gryniewicz, before the rally began, to inform them of his presence and his intent to present an opposing viewpoint. The officers informed Dempsey that he and his group could conduct their activity in a nonviolent manner, and admonished the group to remain separated a few yards from the Strickland campaign.6 Dempsey left the rally and returned an hour later. At that point, the group included two individuals who wore gasmasks, one who wore a "waffle-man" costume and two others who carried megaphones or bullhorns. The group carried several signs that read: "Toxic Tom", "Lawyer Lobbyist", and "Polluters' Lobbyist." Dempsey carried one of the bullhorns.

The nature and extent of the group's activities at the rally was the subject of conflicting evidence at trial. Dempsey testified that he and his group returned to the Mall around 3:00 p.m., the time of Strickland's scheduled appearance, though neither Strickland nor Redford had yet appeared. Several Boulder police officers were on foot patrol at the rally, including Officers Guzman, Gryniewicz, and Schelble. At the time of Dempsey's arrival, the gymnasts were performing on landing pads and mini-trampolines behind the stage. Dempsey said he and his group approached the stage, standing about ten feet from the gymnasts and separated from them by the crowd of rally attendees. He and one other person then spoke into the bullhorns. Dempsey yelled, "Lawyer Lobbyist" and "Toxic Tom," while the other Allard supporters repeated those words. The other person yelled into the second bullhorn, "Smokestack, smokestack, smokestack burn, let's see your tax returns!"

Dempsey testified that, immediately after those initial statements, Officer Guzman tapped him on the shoulder, telling him the bullhorn was "overkill" and Dempsey stopped using it.7 Dempsey said he agreed that he was perhaps "going too far," testifying that the bullhorns were not usually an element of his presentation. He testified further that Officer Guzman then informed him that he could be arrested for assault for endangering the gymnasts. Dempsey responded that neither he nor any of his associates was close enough to touch the gymnasts.

Page 803

Dempsey admitted that Officer Guzman informed him that he was being detained so that the officer could issue him a summons, and testified that he cooperated with the officer and never attempted to leave.

Dempsey said he then asked to speak with his lawyer, but was denied that opportunity. When asked to produce his identification, Dempsey said he complied after one officer took his signs and bullhorn away, allowing him to access his wallet more easily. While Officer Guzman inspected his license, Dempsey reached in his pocket for his cell phone and said he began to dial when the officers arrested him. He testified that he presumed he was being issued a summons for assaulting a gymnast.

The officers presented a different version of the incident. Officer Guzman testified that Dempsey's use of the bullhorn muffled the voices of rally speakers, such that the speakers could not be heard or understood. He added that he observed Dempsey "pushing people and children out of the way to get toward that stage." On cross-examination, Guzman said he saw Dempsey "push by children and adults." Officer Gryniewicz testified he saw Dempsey "barging his way" through the gymnasts, stepping on their mats. Officer Guzman stated he saw one mother grab her child and yell something at Dempsey. At that point, Guzman testified that he believed he needed to intervene. He approached Dempsey and asked to speak with him. Dempsey responded that it was his First Amendment right to be there. Officer Guzman asked Dempsey to move away from the crowd. He was then joined by Officer Gryniewicz.

Officer Guzman said he informed Dempsey that he had "crossed the line" by endangering the gymnasts. Dempsey denied having done so. The officer then asked to see Dempsey's identification. Dempsey asked whether he was under arrest. The officer informed Dempsey that he was detained until the officer could issue him a summons. Dempsey responded that he was calling his lawyer. The officer told Dempsey he would serve him a summons for disorderly conduct; Dempsey again said he was calling his attorney, and attempted to walk away, while placing his hand in his pocket. Officers Guzman and Gryniewiczs grabbed Dempsey's arms for officer safety. While Dempsey struggled to pull away, a cellular phone fell out of his pocket. The officer denied that he had threatened Dempsey with reckless endangerment or assault charges. He also denied that he had told Dempsey to refrain from using the bullhorn. The officers did agree that Dempsey stopped speaking into the bullhorn once they made contact with him.

Both Dempsey and Officer Guzman testified that in response to the Allard group activities, some rally attendees approached the group. Dempsey testified that some rally attendees clapped in response to his chants, assuming "we were with them." There was no testimony that any of the rally attendees complained to the officers. The officers also did not suggest that other attendees located further away from Dempsey and his group were unable to hear the rally speakers, who were at the time using amplified equipment setup for a large open-air audience. The officers themselves offered the only testimony that Dempsey and his group disrupted the rally.

Mayor William Toor, the mayor of Boulder, and Douglas Felkey, the coach of the performing gymnasts, were the only independent witnesses to testify at trial. Mayor Toor was in attendance in order to introduce Strickland at the rally. He denied hearing a bullhorn or witnessing any commotion. Felkey testified that he heard megaphones and saw someone clad in a waffle-man's outfit and other individuals with gasmasks, but he did not state that the bullhorns disrupted the rally or the gymnasts. Felkey also denied seeing anyone interfere with or...

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149 practice notes
  • People v. Lacallo, Court of Appeals No. 12CA0001
    • United States
    • Colorado Court of Appeals of Colorado
    • June 19, 2014
    ...v. Jones, 2013 CO 59, ¶ 11, 311 P.3d 274 (a trial court's evidentiary rulings are reviewed for an abuse of discretion); Dempsey v. People, 117 P.3d 800, 807 (Colo.2005) (a trial court's rulings on questions of law are reviewed de novo). This is true whether a contention is preserved, see Kr......
  • People v. Lacallo, Court of Appeals No. 12CA0001
    • United States
    • Colorado Court of Appeals of Colorado
    • June 19, 2014
    ...v. Jones, 2013 CO 59, ¶ 11, 311 P.3d 274 (a trial court's evidentiary rulings are reviewed for an abuse of discretion); Dempsey v. People, 117 P.3d 800, 807 (Colo.2005) (a trial court's rulings on questions of law are reviewed de novo). This is true whether a contention is preserved, see Kr......
  • People v. Kadell, Court of Appeals No. 13CA2021
    • United States
    • Colorado Court of Appeals of Colorado
    • October 5, 2017
    ..., 983 P.2d 771, 777 (Colo. 1999). We review the record de novo to decide whether the prosecution met that test. Dempsey v. People , 117 P.3d 800, 807 (Colo. 2005).9 If an insufficiency claim is preserved, and the appellate court finds error under the de novo test, the standard of reversal w......
  • People v. McCoy, Court of Appeals No. 11CA1795
    • United States
    • Colorado Court of Appeals of Colorado
    • June 18, 2015
    ...De Novo Review ¶ 37 When reviewing the sufficiency of the evidence de novo, we apply the substantial evidence test. See Dempsey v. People, 117 P.3d 800, 807 (Colo. 2005). Under this test, we consider whether the evidence, viewed as a whole and in the light most favorable to the prosecution,......
  • Request a trial to view additional results
149 cases
  • People v. Lacallo, Court of Appeals No. 12CA0001
    • United States
    • Colorado Court of Appeals of Colorado
    • June 19, 2014
    ...v. Jones, 2013 CO 59, ¶ 11, 311 P.3d 274 (a trial court's evidentiary rulings are reviewed for an abuse of discretion); Dempsey v. People, 117 P.3d 800, 807 (Colo.2005) (a trial court's rulings on questions of law are reviewed de novo). This is true whether a contention is preserved, see Kr......
  • People v. Lacallo, Court of Appeals No. 12CA0001
    • United States
    • Colorado Court of Appeals of Colorado
    • June 19, 2014
    ...v. Jones, 2013 CO 59, ¶ 11, 311 P.3d 274 (a trial court's evidentiary rulings are reviewed for an abuse of discretion); Dempsey v. People, 117 P.3d 800, 807 (Colo.2005) (a trial court's rulings on questions of law are reviewed de novo). This is true whether a contention is preserved, see Kr......
  • People v. Kadell, Court of Appeals No. 13CA2021
    • United States
    • Colorado Court of Appeals of Colorado
    • October 5, 2017
    ..., 983 P.2d 771, 777 (Colo. 1999). We review the record de novo to decide whether the prosecution met that test. Dempsey v. People , 117 P.3d 800, 807 (Colo. 2005).9 If an insufficiency claim is preserved, and the appellate court finds error under the de novo test, the standard of reversal w......
  • People v. McCoy, Court of Appeals No. 11CA1795
    • United States
    • Colorado Court of Appeals of Colorado
    • June 18, 2015
    ...De Novo Review ¶ 37 When reviewing the sufficiency of the evidence de novo, we apply the substantial evidence test. See Dempsey v. People, 117 P.3d 800, 807 (Colo. 2005). Under this test, we consider whether the evidence, viewed as a whole and in the light most favorable to the prosecution,......
  • Request a trial to view additional results

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