                  IN THE SUPREME COURT OF TENNESSEE
                             AT KNOXVILLE
                                 January 5, 2011 Session

             STATE OF TENNESSEE v. TEDDY RAY MITCHELL

              Appeal by Permission from the Court of Criminal Appeals
                         Circuit Court for Hamblen County
                    No. 06CR464      John F. Dugger, Jr., Judge


                 No. E2008-02672-SC-R11-CD - Filed March 31, 2011




S HARON G. L EE, J., concurring in part and dissenting in part.


       I write separately to dissent from the majority’s decision to affirm the defendant’s
conviction for disorderly conduct. After giving proper deference to the jury’s verdict, I
cannot agree that the evidence is sufficient to support Mr. Mitchell’s conviction for
disorderly conduct. Moreover, I conclude that Mr. Mitchell’s conduct was protected as free
speech.

       An anti-immigration rally was planned for the afternoon of June 24, 2006, on the lawn
of the Hamblen County Courthouse. The rally organizers encouraged participants to attend
and “wave the American flag proudly and display signage that educates.” Teddy Mitchell
attempted to do just that, but was arrested before he could enter the rally.

       Anticipating a possible confrontation between pro-immigration and anti-immigration
participants at the rally, the Hamblen County Sheriff’s Department assembled between eighty
and ninety police officers from various police agencies in and around the rally site. The
police presence included officers from the Hamblen County Sheriff’s Department, the
Morristown Police Department, the Sevierville Emergency Rescue Squad, and the Tennessee
Highway Patrol. Most of the officers were in uniform; some were in riot gear, many were
in full body armor and carried loaded M-16 weapons; and others carried AK-47
weapons. Police officers were on the ground, snipers on rooftops, and a half-track tank was
hidden in the bushes of the courthouse lawn.

       Parking around the courthouse was restricted. When Mr. Mitchell attempted to park
in a restricted area, he had a verbal exchange with two police officers and used a racial
epithet. As Mr. Mitchell drove off to park his car elsewhere, the two officers walked to the
rally entrance and told the officers there “Hey, this guy coming, he’s mad.” Mr. Mitchell,
then sixty-one years old, arrived at the rally entrance carrying in his right hand a soft drink
can and in his left hand an American flag, poster, and a folding lawn chair. There were at
least seven officers standing at the sidewalk entrance to the courthouse lawn. As Mr.
Mitchell attempted to enter the sidewalk, he was stopped by Officer Stuart and was told that
he could not take his flag into the rally. Mr. Mitchell protested loudly. On the video, he can
be heard saying “Can you take the damn Mexican flag in there? Can you take the Mexican
flag in there? You are telling me that American flag . . . .” The videos depict a scene where
Mr. Mitchell is agitated, but the police officers and bystanders appear undisturbed by Mr.
Mitchell’s conduct. Indeed, not a single person testified that he or she felt threatened by Mr.
Mitchell.

       At this point, an order came across the radio from Officer Weisgarber, who was
stationed next to the courthouse, to remove Mr. Mitchell. Officer Weisgarber never saw Mr.
Mitchell until after his arrest. Officer Stuart, who made the arrest, explained:

                     An order came across the radio to remove Mr.
              Mitchell. A place like this right here at times other than the
              news that you see on a rally of this effect, one person causing a
              problem can get the whole crowd of people irate and it could
              escalate real quick. So, we thought we would eliminate the
              problem and everyone else could have a peaceful rally.

When asked what Mr. Mitchell did that was disorderly conduct, Officer Kyle, who also
participated in the arrest, explained “Sir, when you cause a scene in public you are
disorderly.”

                                   Sufficiency of Evidence

       Mr. Mitchell was arrested and indicted for disorderly conduct and resisting arrest. He
was found not guilty of resisting arrest, but was convicted of the crime of disorderly
conduct. At trial, the state had the burden of proving beyond a reasonable doubt that Mr.
Mitchell was 1) “in a public place,” 2) “with intent to cause public annoyance or alarm,” and
3) “engag[ing] in . . . violent or threatening behavior.” Tenn. Code Ann. § 39-17-305(a)(1)
(2003) (emphasis added).

       Although Mr. Mitchell’s conduct was rude and belligerent, the fatal flaw in the State’s
case was its failure to establish that Mr. Mitchell’s conduct was violent or threatening. There
is an important and critical distinction between belligerence and violent or threatening

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conduct. “Belligerent” is defined as “[g]iven to or marked by hostile or aggressive
behavior.” State v. Millsaps, No. 03C01-9409-CR-00313, 1996 WL 397445, at *2 (Tenn.
Crim. App. July 17, 1996) (quoting The American Heritage Dictionary of the English
Language (1969)). To be considered threatening behavior, belligerent behavior must be
combined with an “overt act or direct threat of harm.” Id.; see also State v. Melton, No.
M1999-01248-CCA-R3-CD, 2000 WL 1131872, at *7 (Tenn. Crim. App. Aug. 4,
2000). “Violent” behavior is defined as follows: “1. Of, relating to, or characterized by
strong physical force. 2. Resulting from extreme or intense force. 3. Vehemently or
passionately threatening.” Black’s Law Dictionary 1564 (7th ed. 1999).

        This distinction between belligerent behavior and violent or threatening behavior was
evident in Millsaps. Police officers responded to a disturbance call at a restaurant and
learned that the defendant had been a participant in the disturbance. Id. at *1. When the
officers asked the defendant to step outside for additional questioning, the defendant became
“belligerent,” refused to go with them, and “toss[ed]” his car keys at one of the
officers. Id. Once he was outside, the defendant began “cussing,” “hollering,” and became
“very belligerent.” Id. Although the police officers testified that the defendant’s actions
were violent or threatening, neither officer regarded the defendant’s tossing of his car keys
as threatening or menacing. Id. at *2. The Court of Criminal Appeals reversed the disorderly
conduct conviction, finding that the “[b]elligerent actions do not rise to the level of violent
or threatening.” Id.

        The distinction between belligerent behavior and violent or threatening behavior was
also evident in State v. Scott, No. 17, 1989 WL 22736 (Tenn. Crim. App. Mar. 16, 1989). In
Scott, the defendant became upset with the local sheriff for arresting her husband for reckless
driving. Id. at *1. Upon her husband’s arrest, which the defendant apparently thought was
not warranted, she and two other individuals who were present “mounted a loud, profane and
lewd verbal assault on the sheriff.” Id. As a grand finale, she flung a cup of ice across the
parking lot and called the sheriff a “fat son of a bitch.” Id. She was convicted of breach of
the peace. In reversing the conviction, the Court of Criminal Appeals held that the
defendant’s words were mere insults and that there was no evidence that she had threatened
or counseled any physical assault on the sheriff. Id. Further, the sheriff did not appear to be
“greatly stirred by the insults.” Id. The court did note that the sheriff had a concern that
there was a crowd present and things could get out of hand: “[i]t is reasonable to infer . . . the
sheriff believed he was faced with an explosive situation and made the arrest to prevent
violence.” Id. at *3. However, the court held that this was an insufficient reason to arrest
the defendant because the “‘clear and present danger’ test requires the reviewing court to
make its own inquiry into whether the ‘danger’ existed.” Id. (citing Landmark Commc’ns,
Inc. v. Virginia, 435 U.S. 829 (1978)). Accordingly, in reversing the conviction, the court
emphasized that the defendant had not threatened anyone with physical assault, that there was

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no evidence that members of the crowd present were “incited or inclined to intervene,” and
that “there was no ‘clear and present danger’ of violence to weigh against her right of free
expression.” Id.

        Other decisions reveal what is required for the State to establish “threatening conduct”
for a disorderly conduct conviction. In State v. Creasy, 885 S.W.2d 829 (Tenn. Crim. App.
1994), the defendant was arrested for disorderly conduct after calling a police officer a
number of profane and insulting terms, clenching his fist, and pointing his finger at the
officer. Id. at 831. On appeal, the court noted that the “words” were not sufficient to
establish disorderly conduct but that the defendant’s words coupled with clenching his fist
and pointing his finger at the officer constituted “threatening behavior” and supported the
conviction. Id. at 832. Moreover, the court specifically emphasized the officer’s testimony
that he felt “personally threatened.” Id.

        In State v. Roberts, 106 S.W.3d 658 (Tenn. Ct. App. 2002), the defendant was
adjudicated delinquent based on his disorderly conduct in getting into a heated discussion
with a school official and stating, “I’ll take care of you.” Id. at 661. After the official called
911, the defendant told the official to “come on outside” and made gestures indicating that
the official should come outside; the official interpreted the defendant’s actions as
threatening. Id. On appeal, the court noted that “mere verbal epithets, unless the epithets can
be considered ‘fighting words,’ cannot by themselves support a conviction under Tennessee’s
disorderly conduct statute.” Id. at 663. “Verbal epithets accompanied by some physically
threatening behavior, however, will support a conviction under our disorderly conduct
statute.” Id. (citing Creasy, 885 S.W.2d at 831-32). In affirming the conviction, the court
noted that the defendant’s statements “were threatening in nature” and emphasized the
official’s testimony that he felt apprehensive and threatened. Roberts, 106 S.W.3d at 663.

        Likewise, in Melton, the defendant was convicted of disorderly conduct after refusing
to move his illegally parked truck as instructed by a police officer, calling the officer a
number of profane names, and throwing his driver’s license at the officer, striking him in the
chest. 2000 WL 1131872 at *2. The police officer, who described the defendant as over six
feet tall and two hundred and fifty pounds, testified that he felt threatened because “thrown
items can be used to distract an opponent while attempting to find a means of attack.” Id. In
affirming the conviction, the court distinguished both Scott and Millsaps:

       [W]e note that, unlike the defendant in Scott, the appellant did not throw his
       driver’s license across the parking lot. Rather, like the defendant in Creasy,
       he directed his action at the police officer. Moreover, unlike the defendant in
       Millsaps, the appellant did not “toss” his driver’s license in the direction of the
       officer. Rather, he threw the license with sufficient force to strike the officer

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       in the chest. . . . Finally, unlike the officers in Millsaps, [the police officer]
       testified that the appellant’s behavior in throwing the driver’s license
       appeared menacing.

Melton, at *7 (emphasis added); see also State v. Bason, E2000-02276-CCA-R3-CD, 2001
WL 1152820 (Tenn. Crim. App. Oct. 1, 2001) (defendant convicted of disorderly conduct
after cursing at police officers, screaming, and reaching into his pocket that contained a
knife); State v. Moore, No. 03C01-9904-CR-00133, 1999 WL 1125235 (Tenn. Crim. App.
Dec. 9, 1999) (defendant convicted of disorderly conduct after cursing at officers, swinging
his arms, and kicking at officers).

        After considering the principles in these cases and the evidence in the record before
us, I am convinced that the proof was not sufficient to sustain the conviction for disorderly
conduct. In vociferously challenging the officers’ authority to deny him permission to enter
the rally with his American flag, there is no doubt Mr. Mitchell was rude, loud, and
belligerent. However, the entire verbal exchange between the numerous officers and Mr.
Mitchell appears to have lasted less than 15 seconds. There was no proof that Mr. Mitchell
made any threats of violence. There was no proof that any of the seven police officers at the
entrance felt threatened at any time by Mr. Mitchell. There was no proof that Mr. Mitchell
committed any act of violence toward any of the police officers or counseled others to do
so. Although the State argues that Mr. Mitchell “shook the flag pole and poked Officer
Wallen two or three times with the eagle attached to the end of the flag pole,” this argument
is simply not supported by the videotapes that captured the entire encounter. Obviously, the
jury’s role is to resolve conflicts in the proof; however, the State’s argument that Mr.
Mitchell used his flag to poke Officer Wallen in a threatening or violent manner and that this
conduct somehow took place outside of the video cameras’ view is sheer conjecture.

       Accordingly, even after giving the jury’s verdict the deference to which it is entitled,
I conclude that a rational jury could have found Mr. Mitchell to be belligerent, rude, or loud,
but no rational jury could have found him guilty of violent or threatening behavior beyond
a reasonable doubt. I would reverse and dismiss the disorderly conduct conviction.

                                         Free Speech

       Given the absence of violent or threatening conduct, it is clear that Mr. Mitchell was
arrested because the officers feared he would incite others to become irate; indeed, Officer
Kyle admitted that Mr. Mitchell was arrested for “causing a scene in public,” which he
equated with being “disorderly.” Although the State did not address the free speech
implications of this case in its brief before this Court, it argued in its brief before the Court
of Criminal Appeals that Mr. Mitchell’s actions were not protected free speech because they

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“had the potential to create a dangerous situation, given the proximity of the offense to others
attending the rally.”

         “‘The First Amendment reflects a profound national commitment to the principle that
debate on public issues should be uninhibited, robust, and wide-open.’” Snyder v. Phelps,
___ U.S. ___ , No. 09-751, 2011 WL 709517, at *5 (2011) (quoting N.Y. Times v. Sullivan,
376 U.S. 254, 270 (1964)). “[S]peech concerning public affairs is more than self-expression;
it is the essence of self-government.” Connick v. Myers, 461 U.S. 138, 145 (1983) (quoting
Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964)). Speech concerns a public matter when
it can “be fairly considered as relating to any matter of political, social, or other concern to
the community.” Id. at 146. “‘[I]n public debate, [we] must tolerate insulting, and even
outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected
by the First Amendment.’” Snyder, 2011 WL 709517, at *9 (quoting Boos v. Barry, 485
U.S. 312, 322 (1988)).

        There is no question that Mr. Mitchell’s words and conduct at a public rally on the
topic of immigration concerned a matter of “public, social, or other concern to the
community.” Connick, 461 U.S. at 146. This does not mean, of course, that there were no
limits to Mr. Mitchell’s conduct; for example, the United States Supreme Court historically
has excluded so-called “fighting words” from the ambit of free speech protection. In
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), the defendant was convicted for cursing
a municipal officer; in upholding the conviction, the Court said that “[t]here are certain well-
defined classes of speech, the prevention and punishment of which has never been thought
to raise any Constitutional problem.” Id. at 571-72. The Court then described “insulting or
fighting words – those which by their very utterance inflict injury or tend to incite an
immediate breach of the peace.” Id. at 572.

        Since Chaplinsky, the Supreme Court’s “fighting words” cases have focused primarily
on whether a defendant’s words or conduct incited imminent unlawful behavior or
violence. In Cohen v. California, 403 U.S. 15, 20 (1971), for example, the Court emphasized
that the defendant’s speech, (in the form of a jacket that said “Fuck the Draft”), was not a
“direct personal insult,” and did not create a clear and present danger of a violent physical
reaction. Likewise, in Bradenburg v. Ohio, 395 U.S. 444, 447 (1969), the Court stated that
“free speech and free press do not permit a State to forbid or proscribe advocacy of the use
of force or of law violation except where such advocacy is directed to inciting or producing
imminent lawless action and is likely to incite or produce such action.” See also Hess v.
Indiana, 414 U.S. 105 (1973) (concluding there was no present threat of imminent lawless
action).




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        Importantly, the Supreme Court has applied these principles in several cases involving
a citizen’s encounters with police officers. In Norwell v. City of Cincinnati, Ohio, 414 U.S.
14, 16 (1973), the Court reversed a conviction under an ordinance prohibiting “noisy,
boisterous, rude, insulting or disorderly” conduct. The Court stated:

       [T]he petitioner was arrested and convicted merely because he verbally and
       negatively protested [a police officer’s] treatment of him. Surely, one is not
       to be punished for nonprovocatively voicing his objection to what he obviously
       felt was a highly questionable detention by a police officer. Regardless of
       what the motivation may have been behind the expression in this case, it is
       clear that there was no abusive language or fighting words.

Id. Similarly, in Gooding v. Wilson, 405 U.S. 518 (1972), the Court reversed the conviction
of a defendant who told officers: “White son of a bitch, I’ll kill you.” Likewise, our
Tennessee courts have recognized these principles. See Creasy, 885 S.W.2d at 831
(Defendant’s “words were not ‘fighting words’ because they neither inflicted nor tended to
incite an immediate breach of the peace.”); see also Roberts, 106 S.W.3d at 663 (“[M]ere
verbal epithets, unless the epithets can be considered ‘fighting words,’ cannot by themselves
support a conviction under Tennessee’s disorderly conduct statute.”).

        Application of these vital constitutional protections necessarily involves a close, case
by case analysis. Here, the State’s brief before the Court of Criminal asserted that “the proof
reveals [Mr. Mitchell] was arrested for disorderly conduct after he publicly approached
officers in a loud, abrasive manner designed to call attention to his frustration over the flag
pole restriction.” This characterization, with which I would completely agree, demonstrates
that Mr. Mitchell may have been “loud,” “abrasive,” and “frustrated,” but he was not violent
or threatening; thus, the State’s argument does nothing to limit the free speech implications
of this case.

        The State’s brief in the Court of Criminal Appeals, in an apparent reference to the
standards in Cohen and Brandenburg, also asserted that Mr. Mitchell’s “actions had the
potential to create a dangerous situation, given the proximity of the offense to others
attending the rally.” The State cited officers’ testimony that Mr. Mitchell’s conduct “could
get a whole crowd of people irate” because he was “creating a scene,” and that officers
needed to “eliminate the problem.” This, however, is the Achilles’ heel in the State’s
position. Mr. Mitchell’s belligerent encounter with officers, during which he carried a drink,
a chair, a flag, and a poster, lasted less than 15 seconds. None of the officers testified they
felt threatened during the encounter. There was no evidence that Mr. Mitchell incited or
produced imminent lawless action by others or that his behavior was likely to incite or
produce such action. Not a single rally attendee testified to this effect, and the videotapes

                                               7
do not support the conclusion. Officers’ mere speculation as to what may have happened was
not a basis to arrest Mr. Mitchell for boisterously expressing his views on a matter of public
concern. Therefore, I would hold that Mr. Mitchell’s conduct was protected free speech
under the First Amendment.

                             Evidence of Defendant’s Statements

        I concur with the majority’s conclusion that the trial court did not abuse its discretion
in admitting into evidence statements Mr. Mitchell made to police officers while he was
attempting to park his automobile before his arrival at the entrance to the rally and before his
arrest for disorderly conduct. Although I do not think the statements were particularly
relevant on the issue of whether he was guilty of disorderly conduct, I cannot say that it was
an abuse of discretion to admit the evidence.

                                          Conclusion

        After giving proper deference to the jury’s verdict, I cannot agree that the evidence
is sufficient to support Mr. Mitchell’s conviction for disorderly conduct. I conclude that
absent evidence of violent or threatening conduct, Mr. Mitchell’s conduct, in which he
protested his inability to “wave the American Flag proudly” at a rally on an issue of public
concern, was protected speech.




                                            ___________________________________
                                            SHARON G. LEE, JUSTICE




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