Last week, the SOG offered a criminal law update featuring various members of the criminal law faculty. If you missed it and are interested viewing the recording, the webinar should be posted here within a few weeks. This post will be familiar to those who attended, as I covered the topic there. Consider watching the program—it is free to view for educational purposes, and a modest cost if you need the CLE credit. For those that prefer their criminal law updates from the blog, read on!
RDO. In 2019, the offense of resist, obstruct, or delay of a public officer (hereafter “RDO”) was one of the most common misdemeanor convictions in the state, a pattern consistent with previous years (see here and here for 2018 and 2017 data). The crime is codified at G.S. 14-223. A recent case, State v. Humphreys, ___ N.C. App. ___ (Dec. 31, 2020), struck down a conviction for RPO, and highlights some interesting limitations on the offense. Today’s post examines the decision and some of its implications.
Facts. In State v. Humphreys, ___ N.C. App. ___ (Dec. 31, 2020), the defendant’s daughter drove the defendant’s car to high school. During a random canine walkthrough of the school’s parking lot, the dog alerted on the car. The defendant was notified and quickly arrived on scene. She was “belligerent, cursing, and very loud” from the time she arrived. Slip op. at 3. She ultimately consented to a search and closely watched the officers during their search. An officer asked her to move back from car as officers searched, but she refused. While one officer was on the passenger side of the car and another officer was at the rear driver side, the defendant walked towards to front of the driver side. One of the officers requested that she come back closer towards the rear of the vehicle. The defendant did not immediately comply and briefly moved out of the officer’s sight. She came back within the officer’s line of sight in no more than three seconds but refused to come closer to the officer at the back of the car, stating “You can keep an eye on me from right there.” Id. at 4. The officer asked if she was refusing to come closer towards him, and the woman responded, “I’m not breaking no law.” Id. She was arrested for RDO based on failure to obey commands, and for disorderly conduct at a school based on her profanity directed at officers (partly in the presence of students walking through the parking lot). The officer testified at trial that he believed the defendant committed RDO by interfering with his ability to watch her when she moved out of his sight. She was convicted on both counts at trial and appealed.
Mere Remonstration of an Officer. A unanimous Court of Appeals reversed, finding the evidence insufficient to support the RDO conviction (the court also found insufficient evidence of the disorderly conduct conviction, but my focus on the RDO). According to the court, the evidence showed that the defendant did no more than merely criticize the officers, which was insufficient to support the “resist, obstruct, or delay” element of the offense. The general rule relied upon by the court:
[M]erely remonstrating with an officer in [sic] behalf of another, or criticizing or questioning an officer while he is performing his duty, when done in an orderly manner, does not amount to obstructing or delaying an officer in the performance of his duties. State v. Leigh, 278 N.C. 243, 251 (1971).
Here, the defendant stayed within the officer’s line of sight except for the three seconds she stepped away, and she returned to where she had been standing when requested to do so. Importantly, she did not directly interfere with the officers’ search and did not make physical contact with the officers. “[H]er actions and words were not aggressive or suggestive of violence. Rather, she appeared to orderly, if loudly, remonstrate [the officers] . . .” Humphreys Slip op. at 16. This was so despite defendant’s aggressive language, which included “F*** you” and “F*** all of you mother****ers” directed at the police.
The court explicitly distinguished this situation from other cases involving violence, threats, or actual obstruction. See State v. Bell, 164 N.C. App. 72 (2004) (defendant pushed the officer, leaned into the patrol car, and stood between the officer and the door of his patrol car while the officer tried to enter, among other acts and abusive language); State v. Singletary, 73 N.C. App. 612 (1985) (defendant approached officer with raised fists and refused commands to stop in addition to abusive speech). “Defendant never pushed either of the officers or physically obstructed their search.” Humphreys at 16. Because the defendant’s conduct here only amounted to remonstration, the element of resisting, obstructing, or delaying the officer was not met, and the conviction was vacated.
Only “Orderly” Remonstration? Humphreys raises the question of when a defendant’s remonstration might rise to the level of RDO (or another crime, like disorderly conduct). Despite the defendant’s abusive language towards the officers, the court found the defendant’s situation fell within the remonstration rule and referred to her speech and acts as “orderly.” That sure seems to set a low bar for “orderly” criticism. Where then is the line between “orderly remonstration” versus language rising to the level of RDO? Could a defendant commit RDO by speech alone?
Free Speech and Fighting Words. In short, no—mere speech will not support a conviction for RDO. Humphreys, Leigh, and other North Carolina cases applying the mere remonstration rule implicitly recognize this principle as a matter of sufficiency of the evidence. But another consideration (and likely root of the mere remonstration rule) is the First Amendment’s protections of free speech.
The First Amendment generally sets a high bar for criminalizing speech-based activities. Beyond certain narrow and well-defined categories of unprotected speech, the government typically cannot prosecute someone based only on his or her speech. Fighting words doctrine is one category of unprotected speech, and cases examining the category provide helpful context for our “mere remonstration” rule. “…[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.” City of Houston v. Hill, 482 U.S. 451, 461 (1987). Critical speech, even if voiced in a crude and insulting manner, is generally protected speech that cannot be criminalized unless it rises to the level of fighting words (or another category of unprotected speech). Fighting words are those that “which by their very utterance inflict injury or incite an imminent breach of peace.” Chaplinksy v. New Hampshire, 315 U.S. 568, 572 (1942). To qualify as fighting words under Chaplinsky and its progeny, the language must be communicated in person, using words likely to provoke imminent violence against the speaker by the person to whom the comments are addressed. See Cohen v. California, 403 U.S. 15, 20 (1971) (defining fighting words as “personally abusive epithets which, when addressed to the ordinary citizen, are . . . inherently likely to provoke violent reaction.”). This definition categorically excludes hostile, offensive invective directed towards an entity (such as the police in general), or towards a political or ideological cause (such as the draft in Cohen), because such words are not directed at an individual. According to a concurring justice in Chaplinsky, the standard for fighting words may be even higher when the language is addressed towards a police officer. “…[A] properly trained officer may reasonably be expected to ‘exercise a higher degree of restraint’ than the average citizen, and thus be less likely to respond belligerently to ‘fighting words.’” Chaplinsky at 135 (Powell, J., concurring) (citation omitted). Notably, the Supreme Court has not recognized or defined any language as fighting words since the Chaplinsky case in 1942, supporting the notion that the category is a narrow (and possibly archaic) one.
At least one North Carolina RDO conviction based on the defendant’s speech has been reversed based on these principles. In Brooks v. N.C. Dept. of Corrections, 984 F. Supp. 940 (E.D.N.C. 1997), the federal district court granted habeas relief to a petitioner seeking to have his RDO conviction vacated as a First Amendment violation. In the words of the court:
Even if, as the officers alleged, Petitioner used profanity such as ‘get the hell away from me,’ ‘don’t put your damn hands on me,’ and ‘I’m not going any f***ing where,’ his comments [did] not tend to incite a violent response in the intended recipient because they were not personal insults directed at any particular officer. Brooks at 960.
The Brooks court noted that critical First Amendment question is not whether the words were spoken in a peaceful and “orderly” manner, but whether the language rose to the level of fighting words. To the extent the RDO statute (or any other statute) allowed punishment of offensive speech not rising to the level of fighting words, it violated the First Amendment as applied to the defendant.
Accordingly, the “orderly” language in the mere remonstration rule must be read as “not rising to the level of fighting words” (as opposed to “polite” or “civil”) in order to pass constitutional muster. [Note that the same analysis is relevant to a disorderly conduct charge brought under the (a)(2) prong of that offense, which effectively prohibits fighting words.]
Speech Issues at Trial, and in Real Life. As a practical matter, I do not recommend testing the limits of the fighting words doctrine during your next law enforcement encounter. As a matter of First Amendment law though, abusive and insulting comments towards officers will likely qualify as protected speech and will not support a conviction for RDO (or other crime) unless the language qualifies as fighting words (an apparently tall order) or is accompanied by something more than mere speech.
Where the prosecution is based on the defendant’s speech (critical of the police or otherwise), defenders must raise the First Amendment argument at trial to preserve the issue for appellate review. See, e.g., State v. Maness, 363 N.C. 261, 279 (2009) (constitutional issues not raised at trial are waived on appeal). Move to dismiss for insufficiency of the evidence at the close of the State’s evidence and argue that the speech is protected as a matter of First Amendment law, in addition to sufficiency arguments based on the elements.
Defenders may also consider requesting a special jury instruction on the point if the motion to dismiss is denied. The pattern jury instructions for different RDO scenarios (here, here and here) allow the court to instruct the jury on justification or excuse when the defendant’s evidence raises the issue, but there is no specific provision for mere remonstration or First Amendment protections. In the Leigh case, the court reversed the conviction based on the trial court’s failure to instruct on the free speech issues that were integral to the defendant’s defense. Where there is evidence that that the defendant’s speech or her actions were mere remonstration or otherwise justified as protected speech, the defendant is entitled to have the jury instructed on the issue. Consider a requesting a special instruction in writing when those issues are pertinent to the case. That could include a request that the instructions include the Leigh rule (perhaps sans the “orderly” part of the rule). It could also include a separate request for an instruction on First Amendment free speech protections—one that explains to jurors that speech is not normally punishable and that provides a constitutionally adequate definition of fighting words (or other First Amendment principles), as needed.
Not Willful Either. The Humphrey’s court also found that the element of unlawful and willful conduct by the defendant was not met as another, independent ground for reversal of the RDO conviction. [The court relied on a definition of willful with long roots in North Carolina. See State v. Whitener, 93 N.C. 590 (1885).] In the words of the court:
[W]illful is to be interpreted as something more than an intention to do a thing. It implies the doing [of] the act purposely and deliberately, indicating a purpose to do it without authority —careless whether [someone] has the right or not —in violation of law, and it is this which makes the criminal intent without which one cannot be brought within the meaning of a criminal statute. Humphreys slip op. at 18 (citation omitted).
Because the defendant here did not act in deliberate and purposeful violation of the law and believed she had a right to act the way she did, the evidence of this element too was insufficient. This is an additional and separate limit on RDO, and this aspect of the decision is also important, but one that must be left for another day, I’m afraid. For now, I just wanted to flag it for readers as another avenue to attack the sufficiency of evidence at trial for RDO.
As always, please feel free to email me with questions, comments, or concerns at dixon@sog.unc.edu.