City of Alamogordo v. Ohlrich , 95 N.M. 725 ( 1981 )

OPINION

HENDLEY, Judge.

Defendant appeals his disorderly conduct conviction pursuant to § 6-2-8 of the Codified Ordinances of the City of Alamogordo. Defendant raised three points with respect to subsection (D): (1) the statutory construction of the words “average person”; (2) the unconstitutionality of the subsection as applied to the facts; and (3) the insufficiency of the evidence to sustain a conviction. Point three is dispositive and we reverse.

About 11:00 P.M. defendant was working as a disc jockey at a radio station. He observed Officer Compton stopping a motorist on the street for a traffic offense. Defendant stepped outside to observe the incident, returned to the station to re-cue more music, then again stepped outside. Compton testified that defendant shouted to him, “You mother fucking son-of-a-bitch” as Compton got back into his car after the stop. Compton assumed that defendant, who was standing about twenty yards away, shouted at him. Compton got mad and decided to arrest defendant on the basis of the words he allegedly spoke.

Defendant was charged with violating subsections (A) and (D) of the ordinance:

DISORDERLY CONDUCT. Disorderly conduct consists of either:

A. Engaging in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct which creates a clear and present danger of violence that tends to disturb the public peace; or ******

D. Using, in any public place, words which are inherently likely to provoke an immediate violent reaction in an average person to whom such words were addressed.

The City in its Answer Brief states that it “makes no claim that Defendant was convicted by the District Court of violating Subsection A of Section 6-2-8”, primarily because there was insufficient evidence to establish that defendant’s conduct created “a clear and present danger of violence that tends to disturb the public peace.” Thus, we only review the facts in relation to subsection (D).

The ordinance speaks of “an average person to whom such words were addressed.” A trained police officer is not an average person. Compton had been a police officer for over nine and one’-half years and was familiar in using restraint in dealing with the public. See also, Justice Powell’s concurrence in Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974). One element of the ordinance is “an immediate violent reaction.” Compton testified that after hearing the words allegedly spoken by defendant, he saw the defendant twenty yards away, decided to arrest him for disorderly conduct, got in his car and called for assistance, and pulled it around to defendant’s position. Compton then emerged from his car with his slapper. The facts do not support the conviction under the ordinance. See, Matter of Welfare of S. L. J., 263 N.W.2d 412 (Minn.1978), where under somewhat similar facts, the Minnesota Supreme Court found no disorderly conduct. See also, State v. Doe, 92 N.M. 100, 583 P.2d 464 (1978).

Reversed and remanded for dismissal of the conviction because of a failure of proof. State v. Losolla, 84 N.M. 151, 500 P.2d 436 (Ct.App.1972).

HERNANDEZ, C. J., dissents. LOPEZ, J., concurs.