This is an appeal by the State from an order dismissing a misdemeanor prosecution for obstructing legal process, Minn. Stat. § 609.50(2) (1986). The trial court concluded the statute is unconstitutionally vague and overbroad, significantly impinging on first amendment rights to freedom of speech. Two amici curiae, Minnesota County Attorneys Association and Minnesota Police and Peace Officers Association (MPPOA) have been granted leave to file amicus briefs. We affirm.
Respondent Eileen Krawsky was tab charged with a misdemeanor violation of Minn.Stat. § 609.50(2), which prohibits obstruction of legal process without force or violence. No complaint has been filed, and there is no stipulation as to the facts. Respondent moved to strike the appendices of the state's brief and the brief of one amicus because the appendices contain a police report giving the state's version of the
Basing its decision on City of Houston v. Hill, ___ U.S. ___, 107 S.Ct. 2502, 96 L.Ed. 2d 398 (1987), the trial court found Minn. Stat. § 609.50
Is Minn.Stat. § 609.50 unconstitutionally vague or overbroad?
The trial court found Minn.Stat. § 609.50 so similar to the ordinance struck down in Houston that it "must also be found to be unconstitutionally overbroad on its face." The court also implied the ordinance was unconstitutionally vague, finding it gave police "unconstitutional discretion in enforcement."
The Houston ordinance provided:
See Houston, ___ U.S. at ___, 107 S.Ct. at 2506 (emphasis added). The Supreme Court held this language rendered the statute facially invalid because it reached a substantial amount of constitutionally protected conduct. Houston, ___ U.S. at ___, 107 S.Ct. at 2512. See also Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982) (in overbreadth and vagueness issues, court must determine whether enactment reaches substantial amount of constitutionally protected conduct).
The trial court found the last phrase, "interferes with a peace officer," to be sufficiently similar to the Houston ordinance to be unconstitutional under Houston. We agree.
The term "interferes" does not carry significantly less connotation of verbal conduct than did the term "interrupt" in Houston. Generally, the term "interfere" means to intervene or to meddle. Webster's New World Dictionary, 734 (2d College ed. 19 —). Even assuming, arguendo, that the term "interrupt," particularly as modified by the phrase "in any manner" as it was in the Houston ordinance, is easier to apply to speech than the Minnesota term "interferes," we find no difference significant enough to override the concerns of the first amendment.
A police officer's duties involve verbal as well as physical conduct; therefore, interference with those duties can be verbal. Cf. Minn.Stat. § 609.502 (1986) (person who "interferes with body or scene of death" generally would be doing so physically).
Mere verbal remonstrances or disagreements with an officer, standing alone, would not generally be considered an obstruction or a hindrance to the performance of his duty to the point of rendering the speaker guilty of criminal conduct. Moccia v. State, 174 Ga.App. 764, 331 S.E.2d 99 (Ga.Ct.App.1985) (defendant who made no threat of violence or physical advance on officer did not obstruct officer); see also English v. State, 293 So.2d 105 (Fla.Dist. Ct.App.1974) (business owner who stood in front of officers in his own place of business and asked them to conduct investigation outside did not resist or obstruct officers).
In order to be held facially invalid, a statute must "make unlawful a substantial amount of constitutionally protected conduct." Houston, ___ U.S. at ___, 107 S.Ct. at 2508 (citing Hoffman, 455 U.S. at 494, 102 S.Ct. at 1191). In Houston, the supreme court stated:
Id. at ___, ___, 107 S.Ct. at 2509, 2510. Although the connotations of the Minnesota language may be "slightly" different than in Houston, our statutory language prohibiting "interfer[ence]" with police officers reaches a substantial amount of "verbal criticism and challenge directed at police officers." Id. at ___, 107 S.Ct. at 2509.
The state and amicus County Attorneys Association argue that the statutory intent requirement saves Minn.Stat. § 609.50 from overbreadth. This suggestion, raised in the concurring and dissenting opinion in Houston,
Amicus MPPOA's argument also seems directed more at the majority opinion in Houston than the trial court's application of it. Amicus argues Minn.Stat. § 609.50 is limited to "intrusive" conduct and therefore is not overly broad. However, verbal "challenges" and opposition to police actions, which Houston holds are protected speech, are certainly as "intrusive," as is "meddling" or "interfering."
We recognize the supreme court's conclusion in Houston was aided by a history of
The state contends limiting construction can save Minn.Stat. § 609.50 from overbreadth, but does not suggest how it should be more narrowly construed. We find that the Minnesota statute cannot be limited to "fighting words" to save it because the statute is intended to cover nonverbal conduct, as well as speech, and because it applies only to speech directed at police officers. Cf. Welfare of S.L.J., 263 N.W.2d at 418-19 (disorderly conduct statutory language punishing just words unconstitutional except when limited to "fighting words"). "Fighting words" may have no effect on the officer's performance of his duty. See Houston, ___ U.S. at ___, 107 S.Ct. at 2510 (noting police officer's training in restraint). However, other words, such as encouraging an arrestee to resist, may have great effect, so "fighting words" is not the answer.
Amicus County Attorneys Association contends the statute should not be declared unconstitutional in total if it is possible to sever any separable provisions which are constitutional. In general, a court should refrain from invalidating all of a statute for overbreadth if the constitutional provision is severable from the unconstitutional portion. Regan v. Time, Inc., 468 U.S. 641, 652-53, 104 S.Ct. 3262, 3268-69, 82 L.Ed.2d 487 (1984); see also New York v. Ferber, 458 U.S. 747, 769, n. 24, 102 S.Ct. 3348, 3361, n. 24, 73 L.Ed.2d 1113 (1982) (only unconstitutional portion of statute should be stricken, if the statute is severable). However, in order to apply the severability doctrine, the constitutional portion of the statute must be fully operative as law in the absence of the unconstitutional portion. See Regan 468 U.S. at 653, 104 S.Ct. at 3269.
On this record we cannot determine whether respondent could be charged with "obstruction" (first phrase). Thus, we cannot determine whether the first phrase of Minn.Stat. § 609.50 was controlling in the officer's decision to charge respondent. What record we have supports the trial court's apparent conclusion that the challenged second phrase, "interferes," was an integral part of, and formed the basis for the charge. Thus, since not separated, the entire statute must rise or fall on Houston.
We construe the failure to sever Minn. Stat. § 609.50 against the state. The state concedes the police report was not part of the record at the hearing, was not marked and offered as an exhibit by the state, and was not stipulated to by the parties for purposes of the trial court hearing. At oral argument, respondent declined to stipulate to the accuracy of the police report and asserts there is a dispute as to the facts. The state contends the trial court referred to the police report during its post-hearing deliberations. The record does not show the report was ever filed or considered, and we cannot make that assumption. Had a written, sworn complaint been made part of the trial court record, we then might well have been able to address the issue of severability and determine whether only the constitutional portion of the statute was being relied upon for prosecution. But it was not, and the trial court did not address severability as a separate issue, and we do not.
The statute was challenged as facially invalid, not as being unconstitutional as applied to the facts of this case. Accordingly, pursuant to Houston, we affirm the trial court's holding that the statute is unconstitutionally overbroad insofar as it prohibits "interfer[ence] with a peace officer * * *."
The second phrase of Minn.Stat. § 609.50, prohibiting "interfer[ence] with a peace officer * * *," is unconstitutionally overbroad.