United States v. McKinney , 9 F. App'x 887 ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 25 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
vs. No. 00-3228
(D.C. No. 00-CR-40008-RDR)
BEATRIX MCKINNEY, (D. Kan.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, MCWILLIAMS, and JONES, ** Circuit Judges.
Ms. McKinney was convicted of disorderly conduct in violation of 18
U.S.C. § 13 and Kan. Stat. Ann. § 21-4101(c), and sentenced to one year’s
probation and attendance at an anger management program. On appeal, she
argues that there was insufficient evidence to support her conviction. We have
jurisdiction under 28 U.S.C. § 1291 and we reverse.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Honorable Nathaniel R. Jones, Circuit Judge, U.S. Court of Appeals,
**
Sixth Circuit, sitting by designation.
Background
In response to inquiries by a military police officer, Ms. McKinney twice
told the officer to “go f*** himself.” Ms. McKinney was charged with
brawling or fighting; or using offensive, obscene, or abusive
language or engaging in noisy conduct tending reasonably to arouse
alarm, anger, or resentment in others, with knowledge or probable
cause to believe that such acts will alarm, anger, or disturb others or
provoke an assault or other breach of the peace, in violation of Title
18, United States Code, Section 13, and K.S.A. 21-4101. 1
R. doc. 2. At trial, the magistrate judge concluded that Ms. McKinney’s remarks
constituted disorderly conduct under the circumstances. R. doc. 3, at 57-58. The
district court affirmed the conviction for substantially the same reasons. R. doc.
9, at 5. We discuss other relevant facts as necessary for our disposition.
Discussion
Section 21-4101(c) prohibits only fighting words. State v. Huffman , 612
P.2d 630, 635-36 (Kan. 1980). Accordingly, Ms. McKinney’s conviction can
1
K.S.A. § 21-4101(c), made applicable to military bases by 18 U.S.C. §
13, provides in pertinent part:
Disorderly conduct is, with knowledge or probable cause to believe
that such acts will alarm, anger or disturb others or provoke an
assault or other breach of the peace:
....
(c) Using offensive, obscene, or abusive language or engaging in
noisy conduct tending reasonably to arouse alarm, anger or
resentment in others.
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stand only if her remarks would have “provoke[d] the average person to
retaliation, and thereby cause[d] a breach of the peace.” Chaplinsky v. New
Hampshire , 315 U.S. 568, 574 (1942).
Ms. McKinney contends that there was insufficient evidence to support her
conviction. We review the evidence adduced at trial de novo in the light most
favorable to the government. United States v. Sanders , 240 F.3d 1279, 1281
(10th Cir. 2001). We also consider the totality of the circumstances surrounding
Ms. McKinney’s conduct and remarks. State v. Beck , 682 P.2d 137, 140 (Kan.
Ct. App. 1984) . One of those circumstances is that a police officer is involved,
and while police officers are expected to display patience and restraint, they are
not required to endure “‘indignities that go far beyond what any other citizen
might reasonably be expected to endure.’” Id. (quoting City of St. Paul v. Morris ,
104 N.W.2d 902, 903 (Minn. 1960)). That said, we agree that no rational trier of
fact could have found Ms. McKinney guilty beyond a reasonable doubt.
The officer encountered Ms. McKinney during his routine patrol of the
stable grounds on Fort Riley in Kansas. R. doc. 3, at 6. While he was checking
some equipment, Ms. McKinney approached him in her vehicle. The officer
testified that “[s]he was coming at such a high rate of speed, it was causing the
vehicle to bounce, jump, and when she approached my location, she slammed on
the brakes, and the vehicle continued forward and she slid probably a quarter turn
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to the right.” Id. at 7-8. The officer moved behind his own vehicle for
protection. Id. at 8. Ms. McKinney then exited the vehicle and accused the
officer of having urinated on some equipment. Id. at 7-10. The officer denied
having done so, and asked Ms. McKinney who she was and whether she worked
at the stables. Id. at 10. Ms. McKinney was non-responsive. Id. at 12. The
officer repeated his inquiry several more times. Ms. McKinney then told the
officer to “go f*** [him]self.” She locked her vehicle and walked to a nearby
telephone, purportedly to call the officer’s commander.
When Ms. McKinney returned, the officer again asked Ms. McKinney
whether she worked at the stables. Id. at 14. She replied that she did not, but
that her horses were kept in the stables. Perhaps encouraged by this responsive
answer, the officer again asked Ms. McKinney to identify herself. McKinney
again told the officer to “go f*** [him]self,” and told the officer that she would
not give the officer “a damned thing.” Ms. McKinney then left in her vehicle at a
high rate of speed and stopped at another telephone, where the officer and
another officer arrested her for disorderly conduct. Id. at 15-17.
Though tasteless and undoubtedly offensive to many, Ms. McKinney’s
language would not provoke the average person to retaliate under the
circumstances. Ms. McKinney did not threaten or offer to fight the officer. She
left the officer’s presence both times after telling the officer to “go f***
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himself.” Furthermore, there was no evidence adduced at trial that a reasonable
person or officer would react violently to “execrations like that uttered” by Ms.
McKinney. Cohen v. California , 403 U.S. 15, 23 (1971). Under Kansas law, a
defendant may not be convicted under this statute based upon “language [that]
was simply offensive and angered others.” State v. Heiskell , 666 P.2d 207, 211
(Kan. Ct. App. 1983); see also Guffey v. Wyatt , 18 F.3d 869, 872 (10th Cir.
1994). Rather the words must be “of such a character that their very utterance
caused injury or that they tended to incite the listener to an immediate breach of
the peace.” Heiskell , 666 P.2d at 211.
Ms. McKinney’s remarks were the R-rated equivalent of other commonly
used phrases, such as “buzz off,” “go away,” “leave me alone,” and “get lost.”
Those phrases certainly would not provoke a reasonable person to violence.
Though her lack of civility may be disheartening, Ms. McKinney has a
constitutional right to voice her objections to the officer’s inquiries. See City of
Houston v. Hill , 482 U.S. 451, 461 (1987); Norwell v. Cincinnati , 414 U.S. 14,
16 (1973); Guffey , 18 F.3d at 872.
We have considered the totality of the circumstances, including the fact
that Ms. McKinney approached and departed from the officer in her vehicle in a
reckless and dangerous manner. The district court accorded this conduct undue
weight. Ms. McKinney approached the officer because she believed he had
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urinated on some equipment. This was not the reason why she told the officer to
“go f*** himself.” She made those remarks only after some time had passed and
the officer repeatedly demanded that she identify herself. The manner in which
Ms. McKinney departed from the officer in her vehicle is of no significance.
Finally, Ms. McKinney left the officer’s presence each time after telling the
officer to “go f*** himself,” diffusing the provocative nature of her remarks.
Finally, Beck is readily distinguishable. In Beck , the defendant actually
challenged the police officers to a fight. After the officers arrived at the
defendant’s residence, the defendant stated, “Come up here and I’ll f*** with
you.” 682 P.2d at 138. This challenge to fight, along with “his resistance to [the
officers’] efforts to restore tranquility to the domestic scene, and the provocative
nature of the words themselves - - all in addition to the fact that the addressees
were police officers,” was sufficient to affirm the defendant’s conviction for
using fighting words. Id. at 140. By way of contrast, Ms. McKinney did not
challenge the officer to a fight or otherwise provoke retaliation.
REVERSED.
Judge McWilliams dissents.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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