Radford v. State , 1994 Ind. App. LEXIS 39 ( 1994 )

SHIELDS, Judge.

The issue we address is whether the evidence is sufficient to sustain Robbie D. Rad-ford's conviction of disorderly conduct, a class B misdemeanor.¹ Because we conclude that it is not, we reverse the judgment of the trial court and remand the cause with instructions to enter a judgment of acquittal.

FACTS

Shortly after noon on June 24, 1992, Indiana University Police Officer Leslic Mumford was dispatched to the second floor of University Hospital. A report had been made regarding the possibility that a terminated employee was removing hospital property from her former work area. Office Mumford came upon Radford as she walked down the hallway of the hospital in an area adjacent to the OB-GYN clinic and close to the nursery. The officer asked Radford to step into an alcove off the hallway to avoid obstructing traffic in the busy passageway. He also told her that he needed to see the contents of the box that she was carrying.

Radford loudly protested the "harassment"² and refused the officer's requests. Officer Mumford asked Radford to quiet down at least three times, but she refused and "continually got angry and in a very loud and abusive voice." Record at 27. Mumford was charged and convicted of disorderly conduct.

DISCUSSION

Radford asserts that her conviction for disorderly conduct is not sustained by sufficient evidence. Based upon Price v. State (1993), Ind., 622 N.E.2d 954, we agree.

In Price, our supreme court addressed a constitutional challenge to the subject statute and a challenge to the sufficiency of the evidence to sustain Price's conviction of disorderly conduct. Our supreme court initially concluded that "federal 'overbreadth analysis' has [not] taken root in the jurisprudence of the Indiana Constitution," id. at 958, and, accordingly, "pass[ed] over Price's contention that [IC 35-45-1-8] is overbroad." Id. Then, addressing the challenge based upon Article I, § 9 of the Indiana Constitution, the supreme court concluded that:

[Section] 9 limits legislative authority over expression to sanctioning encroachments upon the rights of individuals or interference with exercises of the police power.... In furthering [the objectives of the police power the legislature] may subject persons and property to restraints and burdens, even those which impair "natural rights." . Such a conclusion fails to recognize, however, that in Indiana the police power is limited by the existence of certain preserves of human endeavor, typically denominated as interests not "within the realm of the police power," ... upon which the State must tread lightly, 'if at all.... Accordingly, while violating a rational statute will generally constitute abuse under § 9, the State may not punish expression when doing so would impose a material burden upon a core constitutional value.

Id. at 959-60 (citations omitted). The court then assumed that the section of the disorderly conduct statute here in question was rationally calculated to advance the public good. However, because Price's conduct, " 'screaming' profanities while objecting first to [a third party's] arrest and then to her own," id. at 957, stemmed from a protest about the legality and appropriateness of the police conduct, the court concluded that while it had "little regard for either Price's contumacious manner or her epithet ... her overall complaint constituted political speech." Id. at 961. Having reached that conclusion, the court further determined that § 9 "enshrines political expression as a core value" and, accordingly, it had to determine when enforcement of a rational anti-noise statute amounts to a material burden on that core value. Id.

The supreme court rejected the argument that political expression may be unreasonably noisy when it constitutes a "public nuisance."

We thus conclude that treating as abuse political speech which does not harm any particular individual ("public nuisance") does amount to a material burden, but that sanctioning expression which inflicts upon determinable parties harm of a gravity analogous to that required under tort law does not.... We therefore hold that political expression becomes "unreasonably noisy" for purposes of [IC 85-45-1-8(2)] when and only when it inflicts upon determinant parties harm analogous to that which would sustain tort liability against the speaker.

Id. at 964.

Radford's speech, like that of Price, protested the legality and appropriateness of police conduct.³ Therefore, like the speech of Price, Radford's speech was political speech. Also, like the speech of Price, Rad-ford's speech at most comprised a public nuisance and did not inflict upon a determinant party any harm analogous to that which would sustain tort Hability.

We reverse Radford's conviction and remand this cause to the trial court with instruction to enter a judgment of acquittal.

FRIEDLANDER, J., concurs. STATON, J., dissents, with separate opinion.

1 . See IC 35-45-1-3 (1988).

2 . According to Officer Mumford, Radford "very loudly complained about being hassled by me ... and our department," Record at 20, and "[she again loudly refused, told me she was leaving, that I was hassling her...." Id. at 22.

3 . Police Officer Leslie Mumford testified that Radford "very loudly complained about being hassled by me and her department and our [police] department." Record at 20. This evidence is indistinguishable from the defendant's "very loud" objection to the arrest of another person and then herself which was declared by our supreme court to constitute political speech in Price.