PEOPLE'S LEGAL FRONT

In the Circuit Court of Greene County, Missouri

Associate Division 23

City of Springfield, Plaintiff, Vs Robin C. McDermott Defendant

) ) ) ) ) ) ) )

Case No.: 398MU0065

Motion to take Judicial Notice

        COMES NOW, 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.

                                          & nbsp;           Criminal Intent is an Implied Element of 26-17.

        Defendant relies 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.

                                          & nbsp;          Verbal Interruption is Protected Speech

        The United 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" and 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 offensive.                                           & nbsp;          "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.

        WHEREFORE, Defendant moves that the Court take judicial notice:

1. 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.
2. 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.
3. That "Verbally Aggressive" is not the same as "Resist or Obstruct".

_____________________________________________

Robin C. McDermott on 11/12/1998

[Forum] [EMail] [Index] [Home]

Self Help Law Library

Case Law $7/Month 50 States + Fed
I use this service.

We push the limits on discount hosting!