                                                                        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        This order and judgment is not binding precedent, except under the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.

                                         -2-
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


                                            -3-
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***


                                             -4-
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


                                             -5-
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


                                          -6-
