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Motion to Dismiss : First Amendment Defense

Motion to Dismiss : First Amendment Defense

150 150 Cohen, Bradshaw, Rothstein & Klein

DEFENDANT, by and through the undersigned attorney and pursuant to Rule 3.190(c)(4), Washington DC Rules of Criminal Procedure, hereby moves this Honorable Court for the entry of an Order dismissing the criminal charges filed against Defendant in the above-styled cause. As grounds therefor, Defendant submits that there are no material disputed facts, and that the undisputed facts do not establish a prima facie case of guilt against Defendant. The facts and law upon which this Motion is based are as follows:

STATEMENT OF FACTS

On January 6, 2013, at around 1:15 a.m., Officer Wiling to Infringe of the Washington DC Sheriff’s Office was dispatched to 5555 Tyranny Road in reference to an allegedly intoxicated white female, later identified as Defendant. 5555 Tyranny Road is a single-family, private dwelling converted into separate apartment units, which are leased to individual tenants. Upon Officer Infringe’s arrival, he observed Defendant lying on the lobby or foyer floor outside of her apartment. Defendant made statements that she had lost her keys and was unable to gain entry to her apartment. Defendant then made additional statements, which, according to Officer Infringe included the following: “leave me the fuck alone;” “go fuck yourself;” and “do you not have anything better to do in Washington DC?”

Subsequent to these alleged statements, Defendant got to her feet and started yelling “just leave me alone and just go away.” Defendant yelled or loudly uttered additional expletives which woke up the other residents in the apartment. Multiple residents came out of their apartments to see what the commotion was all about.

Officer Infringe asked Defendant if she had anyone who could come and get her, and if Defendant knew whether the landlord had a spare set of keys. Defendant then allegedly stated “go fuck yourself” and started yelling. Officer Infringe then placed Defendant under arrest for the charge of Disorderly Intoxication.

ARGUMENT

I. THE ALLEGED CONDUCT WHICH CAUSED DEFENDANT TO BE ARRESTED WAS CONSTITUTIONALLY PROTECTED ACTIVITY UNDER THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION; THEREFORE, PROSECUTION OF DEFENDANT UNDER THE STATE DISORDERLY INTOXICATION LAW IS CONSTITUTIONALLY IMPERMISSIBLE.

The First Amendment to the United States Constitution guarantees freedom of speech, the right to peaceably assemble, and the right to petition the government for a redress of grievances. These rights are protected from infringement by State governments by the Due Process Clause of the Fourteenth Amendment to the United States Constitution.

Under Article I, Section 4, of the Constitution of the State of Washington DC, Washington DC citizens are guaranteed freedom of speech, and in Article I, Section 5, their rights to peaceably assemble and petition are protected. Furthermore, under Article I, Section 23, Washington DC citizens have a right of privacy, that is, the right “to be let alone and free from governmental intrusion into the person’s private life . . . .”

Where an incident involves mere verbal conduct, the First Amendment limits application of Washington DC’s disorderly conduct and disorderly intoxication statutes to “fighting words” or “words like shouts of ‘fire’ in a crowded theater. State v. Saunders, 339 So. 2d 641 (Fla. 1976); Wiltzer v. State, 756 So. 2d 1063 (Fla. 4th DCA 2000). Words alone generally will not support a conviction for disorderly conduct. See W.L. v. State, 769 So. 2d 1132 (Fla. 3d DCA 2000) (First Amendment protected profanities and offensive speech that arrestee yelled at police officers when they asked for identification and, therefore, prohibited arrest and delinquency adjudication for disorderly conduct; the arrestee was doing nothing unlawful, never physically interfered with the police, and was punished for pure speech); L.A.T. v. State, 650 So. 2d 214, 215 (Fla. 3d DCA 1995) (holding that defendant’s shouting in a Publix supermarket “Is everybody watching this, police brutality Rodney King style” and screaming and cursing at the top of his lungs was insufficient to support a conviction for disorderly conduct).

The verbal conduct which can support a conviction for disorderly conduct or disorderly intoxication in Washington DC has been severely curtailed by the Washington DC Supreme Court in order to prevent the statute from being found unconstitutionally overbroad. Under modern Washington DC case law, the application of disorderly conduct and related charges to verbal conduct is limited to words which “by their very utterance . . . inflict injury or tend to incite an immediate breach of the peace,” or to words, “known to be false, reporting some physical hazard in circumstances where such a report creates a clear and present danger of bodily harm to others.” Chandler v. State, 744 So. 2d 1058, 1060 (Fla. 4th DCA 1999).

Washington DC Appellate courts have consistently rejected the notion that obscenities yelled at police officers can alone support a criminal charge for disorderly conduct or disorderly intoxication. In D. C. E. v. State, 381 So. 2d 1097 (Fla. 1st DCA 1979), a juvenile defendant was adjudicated delinquent of disorderly conduct for yelling obscenities at a police officer while leaning from the rear window of a car. On these facts, the First District reversed, holding that the curse words used by the defendant could not be characterized either as “fighting words which ‘by their very utterance . . . inflict injury or tend to incite an immediate breach of the peace . . .” (citations omitted) or as a “false report likely to create ‘a clear and present danger of bodily harm to others.’” Id. at 1099 (citing State v. Saunders, 339 So.2d 641 at 644 (Fla. 1976); Harbin v. State, 358 So.2d 856 (Fla. 1st DCA 1978); Clanton v. State, 357 So.2d 455 (Fla. 2d DCA 1978)).

In C.P. v. State, 644, So. 2d 600 (Fla. 2d DCA 1994) a juvenile, who was being investigated for drug activity at a motel, responded to an officer’s question by saying, “Fuck you, pussy cracker.” Id. at 601. Upon being arrested, the juvenile again became verbally abusive and yelled so loudly that people were coming out of their rooms to see what was going on. Id. On these facts, the Second District Court of Appeal reversed. The Court held that the evidence was insufficient to support a conviction for disorderly conduct. Id. at 601-02.

In K.Y.E. v. State, 557 So. 2d 956, 957 (Fla. 1st DCA 1990), the evidence established that, during a police officer’s investigation, a juvenile defendant continually sang, “Fuck the police,” after she repeatedly interrupted an officer’s conversation with another individual and retreated to the front porch of her home at a second officer’s direction. According to the second officer’s testimony, he arrested the juvenile because her singing could be heard across the street where adults and children were gathered. The Court held that these facts did not support a finding that the words used by the juvenile tended to inflict injury or incite an immediate breach of the peace. Id. As such, the defendant’s words, “Fuck the police,” fell within the ambit of constitutionally protected speech. Id. (citations omitted).

In W.L. v. State, 769 So. 2d 1132 (Fla. 3d DCA 2000), a juvenile, while standing among a group of other juveniles and not engaging in any unlawful conduct, was arrested by police officers conducting a narcotics investigation when he directed a series of profanities toward them after they demanded his identification. The trial court entered an adjudication of delinquency and sentenced him to community control. Id. On these facts, the Third District Court of Appeal reversed, holding that the defendant was “punished simply for asserting his right to free speech in what the police considered–and what may well have been–an offensive manner. But the constitution does not permit that result [an adjudication of delinquency].” Id. at 1133 (citations omitted). The Court further explained that “the freedom of individuals to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” Id. (quoting City of Houston v. Hill, 482 U.S. 451, 462-63 (1987)).

In D. C. E. v. State, 381 So. 2d 1097, 1098 (Fla. 1st DCA 1979), a seventeen year-old juvenile leaned from the rear window of a car at a busy intersection and shouted “fucking pigs” three times at police officers stopped in traffic at the same intersection. An officer observed appellant drinking what later proved to be a rum drink. Several persons at the intersection turned to see what the commotion was, but when the light changed, traffic moved on without incident. Id. On these facts, the First District Court of Appeal held that, due to the First Amendment rights of the defendant, an adjudication of delinquency for disorderly conduct constituted an unconstitutional application of a municipal ordinance, which the defendant was charged with violating. Id. at 1099. See also Miller v. State, 780 So. 2d 197 (Fla. 2d DCA 2001) (holding that loud and aggressive speech toward police officers constituted neither fighting words nor false words that created a clear and present danger of harm to others and, thus, were protected by the First Amendment. Id. at 198.

In the instant case, the conduct forming the basis of the charge is purely verbal in nature. In his arrest report, Officer Infringe cites as the basis for his arrest the alleged obscenities and yelling of Defendant, and the fact that these obscenities and yelling caused others to come outside of their apartments to see “what all the commotion was about.” There is no allegation that Defendant engaged in any physical conduct that would have posed an endangerment to those persons in the vicinity of the incident, or that Defendant’s conduct in any way tended to cause those around her to commit a breach of peace. But for the alleged yelling and alleged profanity, Defendant would not have been charged with a criminal offense.

As such, the basis for the current charge is verbal conduct, which, as demonstrated by the numerous case authorities cited above, amounts to constitutionally protected speech. Although some of Defendant’s words were offensive, ill-chosen, and socially unapproved, Defendant did not actually call Officer Infringe any personal name, and none of the alleged verbal conduct was directed at any bystander or other member of the public. The most inflammatory statement made by Defendant was for Officer Infringe to go “fuck himself.” This is no more than a harsh and emotional statement of an opinion (employing language used frequently in many “R-rated” movies), that a police officer’s investigation is unjustified and that he or she should cease his or her investigation of non-existent criminal conduct.

As ill-advised, unfortunate, and disrespectful as it may be, an individual’s statement to a police officer to “go fuck himself” cannot, in good faith, be asserted as a “fighting word” that would tend to incite an immediate breach of peace by a trained officer of the law. As stated in W.L. v. State, a finding that Defendant’s mere words constituted a crime would be to punish Defendant for asserting “[her] right to free speech in what the police considered–and what may well have been–an offensive manner. But the constitution does not permit that result . . . the freedom of individuals to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”

II. THE UNDISPUTED FACTS INVOLVED IN THE INSTANT CASE DO NOT ESTABLISH A PRIMA FACIE CASE OF GUILT BECAUSE THERE WAS NO ENDANGERMENT TO PUBLIC SAFETY.

To sustain a conviction for disorderly intoxication as described in section 856.011, Washington DC Statutes, “the state must prove not only that a person is intoxicated[,] but that the public safety is endangered.” Jernigan v. State, 566 So. 2d 39, 40 (Fla. 1st DCA 1990) (citing State v. Holden, 299 So. 2d 8 (Fla. 1974); Blake v. State, 433 So. 2d 611 (Fla. 1st DCA 1983)). An endangerment to public safety requires more than a use of profanity, yelling, waving of arms, and the causing of a commotion. See Jernigan, 566 So. 2d at 40; Blake, 433 So. 2d at 612. In Blake, sheriff’s deputies were called to restaurant in response to reports of a defendant causing a disturbance. The defendant was holding a can of beer, smelled strongly of alcohol, was “flapping his arms around,” talking loudly, using profanity towards the officers, and causing a “little disturbance.” On these facts, the First District Court of Appeal held that the defendant’s conduct did not amount to disorderly intoxication, as there was no demonstrated endangerment to public safety.

In the instant case, there is no good faith factual dispute as to whether Defendant’s conduct posed an endangerment to public safety. Even assuming, arguendo, that every single factual allegation of Officer Infringe is true, Defendant’s conduct is limited to lying on the lobby floor, the utterance of profanities, yelling, allegedly being unsteady on her feet, and tenants coming out of their apartments to see what the commotion was about. None of these undisputed facts amount to a public endangerment or any similar incident from any bystanders or witnesses. As such, there is no prima facie case of guilt as to the present charge of disorderly intoxication.

III. THE UNDISPUTED FACTS INVOLVED IN THE INSTANT CASE DO NOT ESTABLISH A PRIMA FACIE CASE OF GUILT BECAUSE THE INCIDENT DID NOT OCCUR IN A PUBLIC PLACE.

Under Section 856.011, Washington DC Statutes, “disorderly intoxication” is defined and proscribed in two distinct ways: (1) where the person is intoxicated and endangers the safety of another person or property; and (2) where the person is intoxicated or drinks alcohol in a public place or on a public conveyance and causes a public disturbance. Royster v. State, 643 So. 2d 61, 64 (Fla. 1st DCA 1994). When charged under the second definition of the offense, the State must prove that the charged conduct occurred in a public place or public conveyance. Id. The standard Washington DC criminal jury instruction for disorderly intoxication defines a “public place” as a “place where the public has a right to be and to go.” Id.

In the instant case, the undisputed facts are that the incident occurred at 5555 Tyranny Road, Washington, D.C. 32205. This location is a privately-owned residence, which has been divided in separate apartment units that are privately leased to individual tenants. There is no right of the general public to be present on the premises, and there is no right for the general public to come and go within or around any part of the property. Any right of access or presence would be limited to tenants and their invited guests. As such, the residence is not a “public place” within the meaning of Section 856.011, Washington DC Statutes.

WHEREFORE, for all of the foregoing reasons, Defendant respectfully requests that this Honorable Court enter an Order dismissing the criminal charges pending against Defendant in the above-styled cause.