PEOPLE'S LEGAL FRONT
BECAUSE THESE ARE NOT THE TRADE SECRETS OF ATTORNEYS
LAWS MOTIONS LINKS
In the Circuit Court of Greene County, Missouri
Associate Division 23
Motion to take Judicial Notice
City of Springfield,
Robin C. McDermott
|Case No.: 398MU0065
Defendant Robin C. McDermott to ask the court to take judicial notice that
an implied element of this crime is criminal intent. That even though the
City Code 26-17 doesn't expressly state that the crime must be done knowingly,
that it is implied. Defendant also asks that the Court take judicial notice
of Houston v. Hill that held that an ordinance is unconstitutionally overbroad
if it infringes on the First Amendment right to free speech. Defendant
also asks that the Court take judicial notice that the City Code states
"resist or obstruct" as an element of the crime and that the City has alleged
"verbally aggressive" which is not the same thing.
Criminal Intent is an Implied Element of 26-17.
on the case of Kansas City v. Larose, 524 S.W.2d 112 which is a similar
case to this one. In that case the Court upheld a similar Kansas City ordinance
as constitutional even though it didn't contain the language "willfully
and knowingly". However, it did rule that the element of scienter or guilty
knowledge is implied in the ordinance, stating:
"I believe it is implicit in the Kansas City ordinance
that the hindering, obstruction, etc. of the officer be done willfully
and knowingly. Thus there is no conflict between the statute and
the ordinance. I do not believe that a person would be guilty of violating
the Kansas City ordinance and subject to fine or imprisonment if the person
were unwittingly or perhaps carelessly to hinder or obstruct an officer
in the discharge of his official duty by, for example, accidentally or
negligently getting in his way. A person might be driving through an intersection
on a green light and fail to yield the right of way to a police vehicle
chasing a suspect, thereby resulting in a collision with the police vehicle
and the escape of the suspect. I doubt if this would constitute a violation
of the ordinance, although it would under its literal terms. The other
statutes referred to in the majority opinion -- Secs. 557.230-280 and Secs.
557.300-330, RSMo 1969 -- dealing with rescuing or helping prisoners to
escape, do not in terms require criminal intent, but I doubt if we
would sustain convictions under them in the absence of criminal intent."
In State v. McLarty, 414 S.W.2d 315 (Mo. 1967), we had
for consideration the words of the statute against tampering with an automobile,
Sec. 560.175(1), RSMo 1969, which provides: "No person shall drive, operate,
use or tamper with a motor vehicle without the permission of the owner
thereof." The statute says nothing about criminal intent, knowledge,
or willfulness. Yet we held that criminal intent was an essential element
of the offense proscribed, even though punishment therefor could
be as little as a $1 fine or a day in jail. See also Davis v. State, 499
S.W.2d 445 (Mo. banc 1973) and State v. Tate, 436 S.W.2d 716 (Mo. 1969).
Similarly here I do not believe the Kansas City ordinance applies regardless
of intent. Interfering with a police officer in the performance of
his duty involves an aspect of moral turpitude or wrongdoing accompanied
by guilty knowledge or intent. It is not the same as a parking
or speed limit violation, where no criminal intent need be shown.
In her verbal disagreement with the officer over a difference
of opinion as to his right to execute an illegal search of a vehicle without
a warrant or consent, the Defendant affirmatively denies that her intention
was to obstruct or resist an officer executing his lawful duties. The City
has the burden of proving guilty knowledge and criminal intent.
Verbal Interruption is Protected Speech
States Supreme Court, in the case of CITY OF HOUSTON, TEXAS v. HILL, 482
U.S. 451, 107 S. Ct. 2502, 96 L. Ed. 2d 398, 55 U.S.L.W. 4823, held that
if it were to be construed that verbalizations constituted a violation
of City Code 26-17, then the City Code would be unconstitutional. Houston
v. Hill states:
HELD: A municipal ordinance that makes it unlawful to
interrupt a police officer in the performance of his duty is substantially
overbroad and therefore invalid on its face under the First Amendment.
The ordinance in question criminalizes a substantial amount of, and is
susceptible of regular application to, constitutionally protected speech,
and accords the police constitutional enforcement discretion, as is demonstrated
by evidence indicating that, although the ordinance's plain language
is violated scores of times daily, only those individuals chosen by police
in their unguided discretion are arrested. Appellant's argument
that the ordinance is not substantially overbroad because it does not inhibit
the exposition of ideas, but simply bans unprotected "core criminal conduct,"
is not persuasive. Since the ordinance's language making it unlawful to
"assault" or "strike" a police officer is expressly pre-empted by the State
Penal Code, its enforceable portion prohibits verbal interruptions of police
and thereby deals with speech rather than with core criminal conduct. Moreover,
although speech might be prohibited if it consists of "fighting words"
that by their very utterance inflict injury or tend to incite an immediate
breach of the peace, the ordinance in question is not limited to such expressions
but broadly applies to speech that "in any manner . . . interrupt any policeman"
thereby impermissibly infringes the constitutionally protected freedom
of individuals verbally to oppose or challenge police action. Appellant's
contention that the ordinance's sweeping nature is both inevitable and
essential to maintain public order is also without merit, since the ordinance
is not narrowly tailored to prohibit only disorderly conduct or fighting
words, but impermissibly provides police with unfettered discretion
to arrest individuals for words or conduct that are simply annoying or
"Verbally Aggressive" is not "Resist or Obstruct"
The Information filed by the City charging the Defendant assumes that "Verbally
Aggressive" constitutes "Resist or Obstruct". This assumption seems to
have been pulled out of thin air and there is no logical basis for making
this assumption. How is a defendant to make an argument if the City is
allowed to arbitrarily redefine the English language? Defendant asks the
Court to resolve these definitions.
Defendant moves that the Court take judicial notice:
That criminal intent is an implied and necessary element
of this offense and that the City is required to allege and to prove that
the Defendant acted knowingly and willfully and that the jury be so instructed.
That the United States Supreme Court held, in Houston v.
Hill that the Defendant's conduct alleged in the Information constitutes
constitutionally protected First Amendment free speech.
That "Verbally Aggressive" is not the same as "Resist or
Robin C. McDermott on 11/12/1998
Self Help Law Library
Case Law $7/Month 50 States + Fed
I use this service.
We push the limits on discount hosting!