Diehl v. State

• Decision Date: 13 October 1982
• Docket Number: No. 67,67
• Citation: 294 Md. 466,451 A.2d 115
• Parties: Robert G. DIEHL v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 466

294 Md. 466

451 A.2d 115

Robert G. DIEHL v. STATE of Maryland.

No. 67.

Court of Appeals of Maryland.

Oct. 13, 1982.

John H. McDowell, Hagerstown (Andrew G. W. Norman and Paul Ottinger, Hagerstown, on the brief), for appellant.

Stephen Rosenbaum, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ^* ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

COLE, Judge.

The question presented in this case is whether it is disorderly conduct for a passenger in a car, which has been stopped by police for a traffic violation, to loudly assert that he has a right to leave the scene (punctuating the assertions with a four letter expletive) after being told by the officer to get back into the car. We summarize the facts as follows.

Vincent Gavin, Chief of Police of the Hancock Police Department, was on routine patrol during the evening of January 8, 1980, driving a marked patrol vehicle and in full uniform. At about 10:25 p.m. he heard and saw the operator of a Cougar squealing wheels on Main Street in Hancock, Maryland. As he drove up behind the Cougar, Gavin noted that there were several people in the vehicle. He pulled the vehicle over in an A & P parking lot, up the street from where he saw the traffic violation, and radioed for a back-up unit.

There is considerable conflict in the testimony as to what happened next. Gavin testified that as he was approaching the vehicle after he had stopped it in the parking lot, James Golden, the driver, got out of the car on the driver's side and Robert Diehl got out on the passenger's side. Gavin ordered both men to get back into the vehicle and Golden complied. Diehl, however, refused to get back into the car and, as the Police Chief repeated his command, Diehl began yelling, said that he knew his rights, and said that Gavin could not tell him to get back into the car. Specifically, Gavin testified that Diehl said, "Fuck you, Gavin;" "I know my rights;" "you can't tell me what to do;" and "things like that." Gavin advised Diehl that his "dealings weren't with him, they were with the driver," and again ordered Diehl into the car.

At some time during this exchange between Gavin and Diehl, Gavin advised Diehl that if he did not get back into the car he was going to be arrested. Gavin testified that "[p]eople were beginning to gather," that "[w]ithin a short time after [the car stop], they were on the street, across the street and people were stopping and looking." Diehl refused to get into the car and Gavin arrested him for "screaming obscenities and ... drawing a crowd."

Gavin further testified that Diehl refused to submit to arrest; that after he was handcuffed Diehl began kicking and struggling, lying on the ground, and refused to get into the patrol vehicle. By this time Officer Simmons of the State Natural Resources Police, who happened to be in a store across the street when this was happening, came to Gavin's assistance and the two of them were able to force Diehl into Gavin's cruiser. However, Gavin became involved in a fracas between another individual and another police officer on the same parking lot and Diehl used this opportunity to flee from the police car.

About a half hour later, Diehl, lying under a loading ramp of the A & P, was apprehended by Trooper Blenard of the Maryland State Police. Diehl refused to stand up and the trooper dragged him across the parking lot. When they arrived at Trooper Blenard's cruiser Diehl again began kicking and screaming. With the assistance of another trooper, Trooper Blenard placed Diehl into the police car. Trooper Blenard was treated for a minor injury to his finger and Gavin received bruises to his legs for which he did not seek treatment.

Diehl's testimony was that after Gavin pulled the car over in the parking lot he physically yanked Diehl out of the car and arrested him for trespassing on the parking lot. Diehl denies using the language Chief Gavin accused him of using but testified that after he was placed under arrest he told the chief he was "full of shit" and "a crazy son-of-a-bitch." According to Diehl after he was arrested a struggle ensued and the chief got Diehl on the ground and began beating him. He denied assaulting any of the officers. Diehl was charged with two counts of assault and battery, two counts of resisting arrest, and disorderly conduct. He prayed a jury trial and was subsequently tried by a jury in the Circuit Court for Washington County. Diehl made a motion for judgment of acquittal at the end of the State's case and at the close of all the evidence. The trial judge denied the motions and the jury subsequently convicted Diehl of disorderly conduct and two counts of resisting arrest but found him not guilty on each assault charge. Diehl was sentenced to three consecutive terms: thirty days for disorderly conduct and three years for each charge of resisting arrest.

Diehl appealed his conviction to the Court of Special Appeals. The case was briefed and argued before that court. However, prior to reaching a decision on the merits the intermediate court, under the authority of Maryland Rule 1015(a), certified the entire matter in controversy to this Court. Pursuant to Rule 815(c), this Court granted the application for certification and issued its writ of certiorari to consider the important issues presented.

Diehl was charged with a violation of Maryland Code (1957, 1976 Repl. Vol.), Art. 27, § 121 which provides in pertinent part that

Any person ... who shall wilfully disturb any neighborhood in ... [any] city, town or county [of this State] by loud and unseemly noises, or shall profanely curse and swear or use obscene language upon or near to any such street or highway within the hearing of persons passing by or along such highway ... shall, upon conviction thereof, be sentenced to a fine of not less than one dollar and not more than one hundred dollars or shall be subject to imprisonment for not more than thirty days, or shall be subject to both such fine and imprisonment, in the discretion of the court and shall pay costs of the prosecution. [Emphasis supplied.] ¹

Diehl contends that, interpreting the evidence in the light most favorable to the State, ² his language was not obscene as that term is constitutionally defined; that the words exchanged with Chief Gavin were not fighting words; that he did not make loud and unseemly noises as there was no evidence that people were disturbed, incited, or offended; and that, as mere loudness is not enough to constitute disorderly conduct, there was no probable cause for his arrest. Diehl further maintains that, since there was no probable cause for his arrest, he was justified in using reasonable force to resist the arrest and, therefore, the resisting arrest convictions should fall with the disorderly conduct conviction.

The State, on the other hand, urges two grounds for sustaining Diehl's conviction for disorderly conduct. First, it maintains that Diehl violated Article 27, Section 121 by making loud and unseemly noises in refusing "to obey Gavin's proper order." Second, it claims Diehl used speech toward Gavin intended to incite Gavin to violence and as such the words used were unprotected by the First Amendment ³ under the "fighting" words doctrine laid down in Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). We shall first address the State's argument under the statute.

Article 27, Section 121's proscription against "profanely curs[ing] and swear[ing] or us[ing] obscene language" obviously, by its very terms, will often attempt to regulate speech. However, because of the general nature of the phrase "loud and unseemly noises," the State argues that this aspect of § 121 applies to verbal behavior, and as such is a non-speech regulation, the purpose of which is to maintain some kind of order in "neighborhoods" by the prohibition of disruptive oral conduct. In order to determine whether a speech interest is involved here, we shall examine the circumstances surrounding Diehl's utterance in light of his intention and action at the precise time. For if the words that caused the arrest were uttered or shouted in order to convey a message, then some accepted reason must be found for excluding them from First Amendment safeguards; if however, the verbal conduct was noncommunicative but, nevertheless could be reasonably expected to cause a potentially violent disruption, then there was no speech interest involved and the conduct may be constitutionally controlled.

Diehl's oral communication in this situation clearly constituted speech. Our examination of the record indicates that Gavin ordered Diehl to get back into the car; however, the officer did not have any right to make this demand on Diehl. Only then did Diehl begin to address Gavin. Diehl's communication expressed his outrage with this unlawful police conduct, it was addressed only to Gavin (he was not trying to disturb others or exhort them to breach the peace), and his words were chosen to emphasize his outrage (not to offend others). Gavin's order precipitated the entire episode; Diehl's speech was merely a response. Even the time and decibel level of this response was a communication that although distasteful, should not have been surprising to Gavin.

Once this communication has been defined as speech, it is clear that the statute does not apply in light of Diehl's First Amendment rights in this communication. Section 121 proscribes conduct when the offender: (1) "wilfully disturb[s] any neighborhood by loud and unseemly noises," or (2) "profanely curse[s] and swear[s] or use[s] obscene language" at a place within the hearing of persons passing by.

Diehl's speech does not meet the elements of the first possible proscription. Diehl did not wilfully disturb anyone. Diehl was speaking to Gavin. His actions were motivated solely as a response to Gavin's...