Wednesday, April 19, 2017

Bugging the Mayor (and Everyone Around the Mayor) is not Disorderly Conduct

State v. Teale (HSC February 27, 2017)
Background. Laulani Teale was arrested at a May Day event under suspicion of harassment. HRS § 710-1101(1)(a) and (3). At her trial, the prosecution called officers to testify. The officers testified that Teale was part of a group of activists blowing conch shells and carrying signs and a banner. At the event, Teale attempted three to five times to approach the mayor to speak with him. She repeatedly said she wanted to talk to the mayor, but officers intervened and said that she needed to go through proper channels before talking to him and that at this event, it would be inappropriate. The officers described her as “aggressive,” “loud,” and disruptive. While the mayor was sitting down watching performances, Teale tried for a final time. Officers surrounded the mayor. Teale had a conch shell in her hand. The officers instructed her to walk away. Teale stood up and tried to walk around the officers. Teale was picked up by the officers and arrested. The trial court found Teale guilty of disorderly conduct. The ICA affirmed.

“Tumultuous Behavior” Theory of Disorderly Conduct. A person commits the offense of disorderly conduct when “with the intent to cause physical inconvenience or alarm by a member or members of the public, or recklessly creating a risk thereof, the person: (a) Engages in . . . tumultuous behavior.” HRS § 711-1101(1)(a). The prosecution asserted that Teale engaged in “tumultuous behavior” on May Day. The term is undefined and has not been fleshed out by the appellate courts.

The HSC noted that even though there is no clear definition of the term in statutes or case law, the commentary to the disorderly conduct statute is helpful. According to the HSC, the commentary stated that the statute is intended to provide a narrow kind of conduct deemed “disorderly” that excludes the petty annoyances and conduct directed only at police officers and added that it is aimed at “actual fights and at other behavior tending to threaten the public generally[.]” Commentary on HRS § 711-1101. The HSC also looked to the Model Penal Code and courts of other jurisdictions.

Tumultuous Behavior = Violent Agitation and Extreme Outbursts. The HSC concluded that the term “tumultuous behavior” is defined as “conduct involving violent agitation or extreme outbursts.” This definition calls attention to the actor’s conduct, not whether the conduct created a crowd of bystanders or agitated others around the actor. See, e.g. State v. Faulkner, 64 Haw. 101, 105, 637 P.2d 770, 774 (1981) (pedestrians and motorists stopping to watch altercation does not indicate whether conduct is “disorderly”).

There was no such evidence in Teale’s case. The HSC noted that Teale may have annoyed audience members. She may have failed to comply with the officers’ orders. But she was not engaging in “tumultuous behavior” and could not be convicted of the disorderly conduct offense. The judgment was reversed.

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