Welfare of M.A.H., Matter of

• Citation: 572 N.W.2d 752
• Decision Date: 30 December 1997
• Docket Number: C8-97-756,Nos. C0-97-668,s. C0-97-668
• Parties: In the Matter of the WELFARE OF M.A.H. and J.L.W.
• Court: Minnesota Court of Appeals

Page 752

572 N.W.2d 752

In the Matter of the WELFARE OF M.A.H. and J.L.W.

Nos. C0-97-668, C8-97-756.

Court of Appeals of Minnesota.

Dec. 30, 1997.

Syllabus by the Court

The profanities shouted by two juveniles at the police officers who had asked them to leave an area do not constitute "fighting words" or incitement to imminent lawless action under the circumstances and therefore cannot support a disorderly conduct adjudication consistent with the First Amendment.

Fred Friedman, Chief Public Defender, Daniel K. Lew, Assistant Public Defender, Duluth, for Appellant M.A.H.

Nathaniel Stumme, Indian Legal Assistance Program, Duluth, for Appellant J.L.W.

Hubert H. Humphrey III, Attorney General, St. Paul, for Respondent.

Alan L. Mitchell, St. Louis County Attorney, Melanie S. Ford, Assistant County Attorney, Duluth, for Respondent.

Considered and decided by LANSING, P.J., and DAVIES, and WILLIS, JJ.

OPINION

WILLIS, Judge.

Two juveniles appeal their delinquency adjudications for disorderly conduct arising from shouting profanities at police officers. We find their speech protected under the First Amendment and therefore reverse.

FACTS

At approximately 9:00 p.m. on December 5, 1996, Duluth police officers Steven Peterson and James Hansen, driving separate squad cars, responded to a call regarding a fight between juveniles with approximately 30 other children watching. Peterson arrived at the scene and was told the fight had broken up at the sound of sirens. Peterson noticed a group of about 20 juveniles, ranging from teenagers to children as young as six, headed west, some of them walking in or across the street and forcing cars to go around them. The group stopped, whereupon Peterson and Hansen approached and told them to leave the area. Some of the juveniles left; the majority remained in the area, but some moved to the side of the street.

From inside his squad car, Hansen again asked the remaining juveniles to leave. At this point, 17-year-old J.L.W., who was standing on the boulevard between the sidewalk and the street approximately eight feet from Hansen's squad car, shouted, "We can f* * *ing be out here if we want to be!" Hansen got out of his car, admonished J.L.W. for his language, and again told him to leave the area. According to the arrest report, J.L.W. responded, "What the f* * * are you gonna do about it? We can be here if we f* * *in' want to!" Hansen arrested J.L.W. for disorderly conduct and placed him in handcuffs in the rear of the squad car.

More juveniles left after J.L.W.'s arrest, but approximately eight to ten remained, including some of the young children. A third officer arrived on the scene, and Peterson testified that other passing squad cars were visible. At this point, from a distance of 10 to 15 feet from the squad cars, 15-year-old M.A.H. yelled, "This is bulls* * *! This whole thing is f* * *ed up! We can do anything we f* * *in' want to do!" Hansen and Peterson got out of their cars, arrested M.A.H. for disorderly conduct, handcuffed him and placed him in Peterson's squad car, at which point the other children dispersed.

At the consolidated juvenile court hearing, Peterson testified that he was not sure whether M.A.H.'s comments were directed at him or "if it was as a show for the other kids in the area." Hansen testified that M.A.H. was facing the squad cars and that he assumed the comments were directed at the police. There was no testimony with regard to where J.L.W.'s shouts were directed.

Peterson and Hansen both said on cross-examination that they were never tempted to retaliate or provoked to violence and that they never felt the officers were losing control of the situation, although Hansen added that they "didn't want to get to that point either." Hansen testified that he did not feel that his physical safety was threatened. Peterson testified that the other children were not threatening or throwing things, and both officers said they were armed. Asked whether he felt M.A.H.'s statement could provoke retaliatory violence or a riot, Hansen answered,

[I]t's really hard to say what would happen at that point, you know. * * * [T]hat type of behavior or--or conduct in front of a group of kids--other kids in the area wasn't appropriate and I didn't know how they would react to that.

The court found both J.L.W. and M.A.H. guilty of disorderly conduct, reasoning:

[A]lthough there is a First Amendment constitutional argument here, the fact that [J.L.W.'s] comments were made in a loud and angry voice * * * means that they were not only addressed to the officers; clearly the other 18 kids, or however many there were at that point, heard them. And the Court finds, as a result, that there was an attempt to arouse alarm or a breach of the peace because these kids had already been told to move along.

* * * * * *

Respondent [J.L.W.] at that time had been placed under arrest based on his words and the fact that they would arouse alarm, not necessarily in the officer, because he clearly says that he wasn't worried about his physical safety or that there was going to be an immediate riot, but he didn't know what the other kids were going to do as a result of [J.L.W.'s] words.

[M.A.H.] then decides to speak up and does use * * * inappropriate language also with the officer * * *. [M.A.H.] used a loud, belligerent voice, profane, abusive * * * words. Common sense tells me that it is not only to the officer but to the crowd. * * * I'm finding Respondent [M.A.H.] guilty of disorderly conduct because although people had been told to leave, he chose to use these words not only to an officer but to the general crowd that was there and that it would tend to reasonably arouse others to a possible breach of the peace.

Both boys appeal the adjudications of delinquency on First Amendment grounds, and we reverse.

ISSUES

1. Did the district court err in holding that J.L.W.'s and M.A.H.'s actions supported a disorderly conduct adjudication consistent with the First Amendment?

2. Is the evidence sufficient to adjudicate J.L.W. and M.A.H. delinquent for disorderly conduct independent of their profane language?

ANALYSIS

First Amendment Standards

M.A.H. and J.L.W. were adjudicated delinquent for disorderly conduct, which is defined as follows:

Whoever does any of the following in a public or private place * * *, knowing, or having reasonable grounds to know that it will, or will tend to, alarm, anger or disturb others or provoke an assault or breach of the peace * * *:

* * * * * *

(3) Engages in offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others.

Minn.Stat. § 609.72, subd. 1(3) (1996). The supreme court has narrowed the reach of the disorderly conduct statute by stating that a prohibition on language arousing "alarm, anger or resentment" is overbroad and vague. In re Welfare of S.L.J., 263 N.W.2d 412, 418-19 (Minn.1978). The court has instead construed the statute to prohibit only "fighting words" as that term has been defined by the United States Supreme Court, explaining:

The real test is whether, under the facts and circumstances of this case, appellant's mere utterance of these vulgar, offensive, insulting words would tend to incite an immediate breach of the peace, [is] inherently likely to provoke violent reaction, or [would] have an immediate tendency to provoke retaliatory violence or tumultuous conduct by those to whom such words are addressed.

Id. at 419 (citations and internal quotes omitted). The court in S.L.J. reversed the adjudication of delinquency of a 14-year-old girl who, while walking away from a squad car, turned and said "F* * * you, pigs," from 15 to 30 feet away, reasoning that

there was no reasonable likelihood that [S.L.J.'s words] would tend to incite an immediate breach of the peace or to provoke violent reaction by an ordinary, reasonable person.

Id. at 420.

The standard articulated in S.L.J. actually incorporates two distinct lines of United States Supreme Court case law. The S.L.J. opinion defines "fighting words" in terms of whether a mere utterance would "tend to incite an immediate breach of the peace." Id. at 418 (quoting Lewis v. City of New Orleans, 415 U.S. 130, 132, 94 S.Ct. 970, 972, 39 L.Ed.2d 214 (1974)). Other Supreme Court decisions, however, state that for an utterance to be considered fighting words, it must be an insult personally directed at an individual. See, e.g., Cantwell v. Connecticut, 310 U.S. 296, 309-10, 60 S.Ct. 900, 906, 84 L.Ed. 1213 (1940) (overturning fighting words conviction for lack of "personal abuse"); see also Gooding v. Wilson, 405 U.S. 518, 524, 92 S.Ct. 1103, 1107, 31 L.Ed.2d 408 (1972) (holding that fighting words must "have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed"). The separate issue of "intentionally provoking a given group to a hostile reaction," Cohen v. California, 403 U.S. 15, 20, 91 S.Ct. 1780, 1786, 29 L.Ed.2d 284 (1971), is analyzed according to whether the language in question is "directed to inciting or producing imminent lawless action and * * * likely to incite or produce such action." Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 1829, 23 L.Ed.2d 430 (1969). See Cohen, 403 U.S. at 20, 91 S.Ct. at 1785-86 (rejecting independent arguments that wearing jacket emblazoned with "F* * * the Draft" constituted fighting words and/or incitement); accord, Hess v. Indiana, 414 U.S. 105, 107-08, 94 S.Ct. 326, 328, 38 L.Ed.2d 303 (1973) (holding that anti-war demonstrator's announcing, to no particular individual or group, "We'll take the f* * *ing street again," after police had cleared street in question, was neither fighting words nor incitement under applicable precedent).

Disorderly Conduct Standards

"Charges brought under Minn.Stat. § 609.72, subd. 1(3) must be closely scrutinized." State v. Klimek, 398...