State v. Hipp

• Citation: 298 Minn. 81,213 N.W.2d 610
• Decision Date: 07 December 1973
• Docket Number: No. 43042,43042
• Parties: STATE of Minnesota, Respondent, v. Linda M. HIPP, et al., Appellants.
• Court: Supreme Court of Minnesota (US)

Page 610

213 N.W.2d 610

298 Minn. 81

STATE of Minnesota, Respondent, v. Linda M. HIPP, et al., Appellants.

No. 43042.

Supreme Court of Minnesota.

Dec. 7, 1973.

Syllabus by the Court

1. Our unlawful assembly statute, Minn.St. 609.705(3), which, as construed, prohibits three or more assembled persons from conducting themselves in such a disorderly manner as to threaten or disturb the public peace by unreasonably denying or interfering with the rights of others to peacefully use their property or public facilities without obstruction, interference, or disturbance, is neither unconstitutionally vague nor overbroad nor unconstitutionally applied to participants engaged in a demonstration protesting the erection of a restaurant in an area near the University of Minnesota campus.

2. The evidence is insufficient to support the convictions of defendants Linda Hipp and Anne Schendel, and the charge against each defendant of participating in an unlawful assembly is dismissed. The record is inconclusive as to the sufficiency of evidence of participation in an unlawful assembly by defendant Richard Enga, so his conviction is reversed and a new trial ordered.

C. Paul Jones, Public Defender, Jon F. Tuttle, Wood R. Foster, Jr., Special Asst. Public Defenders, Minneapolis, for appellants.

Warren Spannaus, Atty. Gen., St. Paul, Keith M. Stidd, City Atty., Edward C. Vavreck Asst. City Atty., Minneapolis, for respondent.

Heard and considered en banc.

ROGOSHESKE, Justice.

Following a joint trial, defendants-appellants were found guilty by a Hennepin County Municipal Court jury of unlawful assembly in violation of Minn.St. 609.705(3), which provides:

'When three or more persons assemble, each participant is guilty of unlawful assembly, which is a misdemeanor, if the assembly is:

'(3) Without unlawful purpose, but the participants so conduct themselves in a disorderly manner as to disturb or threaten the public peace.'

On May 7, 1970, a 'demonstration protesting the Red Barn Organization,' presumably over the propriety of erecting a Red Barn restaurant in an area known as 'Dinkytown' near the University of Minnesota campus, took place in front of an existing Red Barn restaurant also near the campus of the University of Minnesota and close to the intersection of Oak Street and Washington Avenue Southeast in the city of Minneapolis. When city police officers were called to the scene and failed in negotiating with the participants to voluntarily reduce the size and number of pickets, about 30 persons were arrested. Of those subsequently charged with violation of § 609.705(3), three pled guilty to reduced charges of breach of the peace prior to the start of trial while at least three defendants could not be located at the time trial commenced. At the close of the state's evidence, the court dismissed the charge against nine defendants and the jury found two defendants not guilty and seven defendants guilty. The seven, namely, Linda Hipp, Richard Enga, Anne Schendel, Terry Parczyk, Patricia Parczyk, Paul Wojenski, and John Norstad, appeal from the judgment and from an order denying their motion for a new trial.

The issues properly before us on this appeal are (1) whether the statute quoted is unconstitutionally vague or overbroad on its face under the First and Fourteenth Amendments to the Federal Constitution; (2) whether it is unconstitutional as applied to the conduct or activity of the alleged participants; and (3) whether the evidence is sufficient to support the conviction of defendants Hipp, Schendel, and Enga.

Upon our limiting construction of the statute, we hold the statute constitutional on its face and as applied and affirm the convictions except as to the three defendants whose convictions are reversed for want of sufficient evidentiary support.

Viewing the evidence most favorably to sustain the convictions, as we must, the jury could find these facts: The demonstration in question commenced at about 2 p.m. on May 7, when 100 to 150 demonstrators crowded into the Red Barn restaurant dining area, designed for a capacity of about 80, and announced their intention to remain until the restaurant was closed for the day. They interrupted the normal business being carried on; pasted 'Ban the Barn' signs on the windows; blocked the entrance to nondemonstrators; bent the frames of the two side doors; blocked the front door; and grabbed the keys from Russell Swanson, assistant manager of the restaurant, and threw them into the crowd. Swanson called Robert Lafferty, a vice president of the Red Barn Company, who in turn notified the city police and requested their assistance. Mr. Lafferty and several police officials arrived and succeeded in persuading the demonstrators to leave the building, and all finally dwindled out by about 4:30 p.m. Some 75 or 80 began picketing in front of the entrance on the restaurant's concrete (porch) driveway, the sidewalk in front of the restaurant and adjoining properties, and at times spilling into the street. When the deputy chief of police joined a police inspector who was on the scene at about 4:30 p.m., he observed about 20 persons participating in the demonstration on the sidewalk in front of the restaurant. Believing the situation called for no action, the deputy chief left the scene without conversing with any of the participants and went to the University Police Department parking lot, some 3 blocks from the scene, where police officers were beginning to assemble in the event they would be needed. He gave orders there that the officers were to remain at the parking lot and, after about 20 minutes, he returned to the scene. He noticed that the number of pickets on the sidewalk in front of the building had increased to about 40 and that a large crowd of observers was gathering across the street. He then addressed some of the participants, urging them to limit the pickets to a single line of about 10 to 14 persons. He next entered the restaurant, joining the general manager, some of the employees, and three other supervising officers, to observe the situation. Some attempt by the participants was made to limit the number of the pickets, but in a short time a double line rather than a single line began picketing, and the participants, shouting obscenities, began urging others standing nearby to join the demonstration. At this time, someone threw a milk carton, splattering its contents against the large plate glass window fronting the street. By about 5:45 p.m., the participating demonstrators increased to 75 or 80, and the noise from beating on lawn chairs and shouting began to increase. The deputy chief then decided to give orders to call up the assembled officers from the parking lot, approximately 60 of whom had then gathered. In the meantime, the number of participants had increased, and one of them asked permission to use the bullhorn (which the officer had not used to this time) to speak to the group in an effort to get them to disperse. A University official also spoke to the demonstrators, and perhaps a city alderman who was on the scene. The deputy chief then described the situation:

'But, the situation was the chanting was getting louder and the crowd was getting lager. I took the bull horn and said--indicated once again--asked them to limit the number of pickets. Somebody said, 'How many--Fourteen? Can't do that. Don't have the right.' I said, 'I am not here to exercise any rights or to take yours. I am just suggesting.' There was no response to that. Then I said, 'I'm declaring this an unlawful assembly.'

'Q Because they had rejected your offer of 14 pickets ?

'A No. Because the street was blocked; crowd was getting noisier; the emotions were running high; the sidewalk was completely blocked; the private property of the Red Barn was completely filled; the profanities and the shouting, as I said before, in the street. In my opinion it was an unlawful assembly. I indicated to the group we would give them time to disperse. And a great many of them did leave.'

The deputy chief, who had served with the Minneapolis Police Department for over 19 years, concluded:

'* * * (B)ased upon my experience, the situation had deteriorated and if we hadn't taken action there would have been destruction of property and possible injury.'

1. The first issue raises for the first time a constitutional challenge to our unlawful assembly statute adopted as part of the 1963 revision of our criminal laws. In addressing this issue, we start with the fundamental that a law which forbids conduct or activities in language so vague that 'men of common intelligence must necessarily guess at its meaning and differ as to its application' is unconstitutional on its face. Connally v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, 328 (1926). Such laws violate the Federal constitutional standard of due process under the developing doctrine of vagueness and overbreadth when the language employed fails to define the conduct or activities clearly enough to give fair notice of what is prohibited or specifically enough to avoid the potential of sweeping and improper applications which pose a significant danger to suppressing constitutionally protected speech and association. The difficulty in applying the doctrine of vagueness and overbreadth arises where the challenged statute not only plainly prohibits conduct or activity which is constitutionally within the power of the state to punish, such as obstructing traffic, blocking sidewalks, damaging property, or using 'fighting' words--"those which by their very utterance inflict injury or tend to incite an immediate breach of the peace" ¹--, but also, by employing general language, conceivably may be applied to conduct or activities protected by the constitutional right of speech and assembly. Coates v. City of Cincinnati, 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971). When a defendant is charged under such a statute and...