Published on:

First Amendment….cont

Likewise, in another case, the court declined to disturb a conviction that arose from a late night encounter between a bar patron and a police officer on the threshold of a busy drinking establishment. There, the defendant uttered an obscenity and spit at the officer, who was walking by; the defendant then shoved the officer as he approached. Intending to make an arrest for disorderly conduct, the officer who was alone on foot patrol directed the defendant to step onto the sidewalk. A crowd of patrons gathered, yelling at the officer to leave the defendant alone. At this juncture, the defendant retreated into the bar, the officer followed and a scuffle ensued between the defendant, the officer and a number of other bar patrons. The Court had no difficulty inferring that the mens rea requirement was met – that there had been the intentional or reckless initiation of a risk of public harm. There, the risk came to fruition since the defendant’s statement and conduct led to a brawl involving himself, the officer and other bar patrons – a predictable result given the drug context of his obstreperous statements and conduct.

In contrast, the court concluded that the public harm element was lacking in a case where a landowner engaged in a confrontation with a State Power Authority construction crew that was attempting to erect a transmission line on a right-of-way that cut through his farmland. After firing a shot into the air (and being divested of his gun), the defendant positioned himself in the path of a backhoe and, when he refused to move after being ordered to do so by police, he was arrested for disorderly conduct. Eight or ten people witnessed the incident but no one was attracted to the scene by the defendant’s conduct, nor did they get involved in his protest. The court determined that the evidence was insufficient to support the disorderly conduct conviction since the defendant’s actions took place in broad daylight on his own property far removed from any public thoroughfare, business or residence. Based on these facts, the Court observed that there was no indication that the defendant sought to incite or involve the spectators, who were in the area before the Marijuana confrontation, and the only fair inference was that the differences between the authority and the defendant were confined to these two disputants rather than spread to the public.

Although it is true in this case that a group of bystanders gathered around the defendant and his girlfriend – a fact certainly relevant to the public harm analysis – there is no evidence that the bystanders expressed any inclination, verbally or otherwise, to involve themselves in the dispute between the defendant and the officer, nor did the suppression court draw any such inference.

Finally, this case includes one more factor worthy of consideration. Here, both at its inception and conclusion, the verbal exchange was between a single civilian and a police officer. The fact that the defendant’s abusive statements were directed exclusively at a police officer – a party trained to diffuse situations involving angry or emotionally distraught persons – further undermines any inference that there was a threat of public harm, particularly since the police officer was in a position of safety and could have closed his windows and ignored the defendant. After consideration of all relevant factors the defendant’s arrest for disorderly conduct was not supported by probable cause due to insufficient proof on the public harm element.

Contact Information