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

Defendant's Motion in Limine and suggestions opposing Plaintiff's Motion in Limine

        COMES NOW, Defendant Robin C. McDermott to ask the court to order some of the Prosecutor's evidence to be barred or limited to proving the facts that constitute elements of the offense that the Defendant is charged with. The Defendant will also argue in opposition to the Plaintiff's Motion in Limine.

What the issues are in this case

        As the Defendant understands it, the process of being tried for a crime consists of an Information which alleges a law that has been violated. The Information has to state the elements of the law, and the facts that constitute a violation of each of the elements indicating that a crime was committed. The state then has to present evidence supporting the facts that constitute elements of the crime. Evidence is included or excluded in relation to whether or not it is relevant to proving the facts in the Information. That is why Rule 23.00 requires that the Information contain facts.

        In this case the Information contains no facts. If there are no facts then, in theory, the City shouldn't be allowed to present any evidence because there are no facts to support. Knowing however that this court isn't going to exclude all of the City's evidence, the Defendant will have to guess as to what the facts are in order to present arguments as to what evidence is or isn't admissible.

        The Defendant is charged with obstructing Officer Royal through verbalizations. These verbalizations occurred while the Defendant was standing on her front porch a good distance from the truck where Officer Royal was conducting an search. The Defendants son had already been arrested and was in custody in the back of a police car in handcuffs before the alleged verbalizations occurred and that the arrest isn't relevant to the City's case because the Defendant couldn't have obstructed an event that had already occurred in the past. This issue before this court is, what did the Defendant do to Officer Royal that constituted obstruction and no other issue is relevant.

        The Information charges the Defendant with a violation of City Code 26-17 indicating only that the Defendant Resisted or Obstructed Officer Thomas Royal by becoming verbally aggressive. Therefore, the City's evidence should be limited to only those items that would support facts relating only to Officer Royal and how he was obstructed and by what verbalizations. The City should be allowed to present only witnesses who actually saw and heard the verbalizations and can testify as to what was said. City's witnesses John Brooks, Stephanie McCallister, Sgt. Robert Greer did not witness the verbalizations and their testimony wouldn't be relevant to this action.

        The City has the burden of proving, beyond a reasonable doubt, that the Defendant uttered verbalizations that were so serious that a 135 pound woman, from her front porch, using only her voice, was able to criminally obstruct Officer Royal who was supported by a dozen other officers on the scene. The City has the burden of proving criminal intent and has to show that the Defendant wasn't merely having a difference of opinion, that she was acting willfully and knowingly to deliberately obstruct Officer Royal in whatever Officer Royal was doing. The City has the burden of proving that verbalization constitutes obstruction. The City also has to prove that the verbalization is not constitutionally protected free speech. It is therefore the position of the Defendant that the City can present only evidence that supports these elements and no other evidence.

        The Defendant suggests to the Court that the City not waste a lot of time testifying that the Defendant merely used improper of offensive language. The Defendant asks the Court to take judicial notice of the following cases.

Houston v. Hill, 482 U.S. 451, 107 S. Ct. 2502, 96 L. Ed. 2d 398, 55 U.S.L.W. 4823

The incident that sparked this lawsuit occurred in the Montrose area on February 14, 1982. Hill observed a friend, Charles Hill, intentionally stopping traffic on a busy street, evidently to enable a vehicle to enter traffic. Two Houston police officers, one of whom was named Kelley, approached Charles and began speaking with him. According to the District Court, "shortly thereafter" Hill began shouting at the officers "in an admitted attempt to divert Kelley's attention from Charles Hill." App. to Juris. Statement B-2. *fn1 Hill first shouted: "Why don't you pick on somebody your own size?" After Officer Kelley responded: "Are you interrupting me in my official capacity as a Houston police officer?" Hill then shouted: "Yes, why don't you pick on somebody my size?" App. 40-41, 58, 71-74. Hill was arrested under Houston Code of Ordinances, § 34-11(a), for "willfully or intentionally interrupt a city policeman . . . by verbal challenge during an investigation." App. 2. Charles Hill was not arrested. Hill was then acquitted after a non-jury trial in Municipal Court. *fn2

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.

Lewis v. City of New Orleans, 415 U.S. 130, 94 S. Ct. 970, 39 L. Ed. 2d 214 The facts in Lewis are: "On January 3, 1970, appellant and her husband were in their pickup truck following a police patrol car that was taking their young son to a police station after his arrest. An Officer Berner in another patrol car intercepted and stopped the truck. Berner left his car and according to his testimony, asked the husband for his driver's license. Words were exchanged between Berner and appellant and Berner arrested appellant on a charge of violating section 49-7. The parties' respective versions of the words exchanged were in sharp contradiction. Berner testified that appellant left the truck and 'started yelling and screaming that I had her son or did something to her son and she wanted to know where he was. . . . She said, "you god damn mother fucking police - I am going to (Superintendent of Police) about this"' App. 8. Appellant's husband testified that Berner's first words were "'let me see your god damned license. I'll show you that you can't follow the police all over the streets." . . . After (appellant) got out and said "Officer I want to find out about my son." He said "you get in the car woman. Get your black ass in the god damned car or I will show you something."' App. 27. Appellant denied that she had used 'any profanity toward the officer.' App. 37. The Municipal Judge credited Berner's testimony and disbelieved appellant and her husband." 415 U.S. at 131, n. 1.

On remand from this Court for reconsideration in light of Gooding v. Wilson, 405 U.S. 518, appellant's conviction of violating a New Orleans ordinance making it unlawful "to curse or revile or to use obscene or opprobrious language toward or with reference to" a police officer while in performance of his duties was again sustained by the Louisiana Supreme Court, which did not narrow or refine the words of the ordinance although stating that it was limited to "fighting words" uttered to specific persons at a specific time.

Held : The ordinance, as thus construed, is susceptible of application to protected speech, and therefore is overbroad in violation of the First and Fourteenth Amendments and facially invalid. The ordinance plainly has a broader sweep than the constitutional definition of "fighting words" as being words "which by their very utterance inflict injury or tend to incite an immediate breach of the peace," Chaplinsky v. New Hampshire, 315 U.S. 568, 572; Gooding v. Wilson, supra, at 522, since, at the least, "opprobrious language" embraces words that do not fall under that definition, the word "opprobrious" embracing words "conveying or intended to convey disgrace," id., at 525. It is immaterial whether the words appellant used might be punishable under a properly limited ordinance. Pp. 131-134.

Chaplinsky v. New Hampshire, 315 U.S. 568, 572; On the authority of its earlier decisions, the state court declared that the statute's purpose was to preserve the public peace, no words being "forbidden except such as have a direct tendency to cause acts of violence by the persons to whom, individually, the remark is addressed." *fn7 It was further said: "The word 'offensive' is not to be defined in terms of what a particular addressee thinks. . . . The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight. . . . The English language has a number of words and expressions which by general consent are 'fighting words' when said without a disarming smile. . . . Such words, as ordinary men know, are likely to cause a fight. So are threatening, profane or obscene revilings. Derisive and annoying words can be taken as coming within the purview of the statute as heretofore interpreted only when they have this characteristic of plainly tending to excite the addressee to a breach of the peace. . . . The statute, as construed, does no more than prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee, words whose speaking constitutes a breach of the peace by the speaker -- including 'classical fighting words', words in current use less 'classical' but equally likely to cause violence, and other disorderly words, including profanity, obscenity and threats." 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".

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Robin C. McDermott on 11/12/1998

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