City of Wichita v. Griffie

544 P.3d 776

CITY OF WICHITA, Kansas, Appellee,

v.Gabrielle GRIFFIE, Appellant.

No. 124,412

Supreme Court of Kansas.

Oral Argument Held September 12, 2023.

Opinion Filed March 15, 2024.

Review of the judgment of the Court of Appeals in an unpublished opinion filed November 18, 2022. Appeal from Sedgwick District Court; Eric Williams, judge.

Kurt Harper, of Depew Gillen Rathbun & McInteer, LC, of Wichita, argued the cause, and Dylan P. Wheeler, of the same firm, was on the briefs for appellant.

Nathaniel Johnson, assistant city attorney, argued the cause, and Jan Jarman, assistant city attorney, and Jennifer Magana, city attorney, were with him on the briefs for appellee.

Anthony J. Powell, solicitor general, Ryan J. Ott, assistant solicitor general, and Kris W. Kobach, attorney general, were on the brief for amicus curiae State of Kansas.

Sharon Brett, of ACLU Foundation of Kansas, of Overland Park, was on the brief for amicus curiae American Civil Liberties Union Foundation of Kansas.

The opinion of the court was delivered by Standridge, J.:

This case requires us to decide whether the provision within Wichita Municipal Code of Ordinances (W.M.O.) § 5.24.010(c) criminalizing "noisy conduct tending to reasonably arouse alarm, anger or resentment in others" is unconstitutionally overbroad under the First Amendment. Both the district court and the Court of Appeals held the provision constitutional. We disagree. Applying the substantial overbreadth doctrine used by Kansas courts to adjudicate First Amendment overbreadth challenges, we conclude the noisy conduct provision within W.M.O. § 5.24.010(c) is unconstitutionally overbroad because it prohibits a substantial amount of protected activity in relation to the provision’s plainly legitimate sweep. But our conclusion does not require us to strike subsec- tion (c) in its entirety because there is a satisfactory method of severing the unconstitutional "noisy conduct" provision from the constitutional "fighting words" provision within the same subsection.

Facts

In July 2020, Project Justice ICT (ICT) organized a protest against police brutality in downtown Wichita following the May 2020 murder of George Floyd. Gabrielle Griffie served as the executive director of ICT. She helped coordinate food drives, protests, and community events. City of Wichita v. Griffie, No. 124,412, 2022 WL 17072292, *1 (Kan. App. 2022) (unpublished opinion).

ICT promoted the protest on Facebook, informing interested, participants to "[b]ring shields, umbrellas, and other protective gear. We will be marching." ICT did not obtain a community event permit to close off streets for the march. But the Wichita Police Department monitored the group’s online activity and prepared for the event by blocking off the streets around the group’s planned route to limit the amount of contact with motorists. 2022 WL 17072292, at *1.

Between 40 and 60 people showed up to participate in the protest. While marching, they chanted slogans such as, "No justice, no peace," and, "Black lives matter." 2022 WL 17072292, at *1. They also chanted, "Whose streets? Our streets." The streets were "almost entirely empty." 2022 WL 17072292, at *1. Griffie marched at the front, leading the group with a megaphone and a homemade shield. 2022 WL 17072292, at *1.

For part of the march, protesters walked in the two middle lanes of the four lanes of traffic along the route. Despite the police traffic diversion, there were some open streets providing access to the marching route. On one of these open streets, Jeremy McTaggart drove a white Chevy Tahoe north on the route into the march.

"LJ," an independent journalist, recorded a video of the protest for an independent group called "Liberty ICT" and posted it to Facebook. Liberty ICT is not part of Project Justice ICT. LJ’s recording shows McTaggart honking, slowing his Tahoe, honking again, and then continuing to drive his vehicle until it collided with a protester. The video shows the protester McTaggart hit with his, Tahoe becoming visibly irritated with McTaggart. At first, she did not move out of the way. Another protester in the group grabbed her and dragged her out of the way.

The rest of the two-hour recording shows no other traffic confrontations. But the protesters yelled the following at police: "get a real job," "you fascist people," "learn to code," "useless piece of shit," "go home," "fuck you, fascist," "I didn’t know pigs knew how to ride bikes," "pigs are smarter than cops," and more.

When the protestors arrived at the federal courthouse, they stood on the front steps and gave speeches to the crowd over megaphones for about 30 minutes. One megaphone-equipped speaker quoted a chant that previously had been used during a protest in Portland, Oregon, "There is no riot here, why are you in riot gear …." A speaker also said, "What did we do, block some fucking streets?" The same speaker mentioned an armed officer’s appearance within the courthouse behind them and said, "He’s moving to a different tactical position … so he can come and fucking blast us if he wants to …. What are they going to do? Teargas us when we’re just standing around? … We need to be out here every fucking day." Based on exhibits the State later presented at trial, this speaker may have been Griffie.

Several days after the protest, Detective Marianna Hoyt reviewed the videotape posted on Facebook. Lieutenant Drew Sielor helped Detective Hoyt identify Griffie out of the crowd of protestors. Detective Hoyt ultimately issued Griffie a citation for unlawful assembly under W.M.O. § 5.73.030. The complaint alleged Griffie violated W.M.O. § 5.73.030(1) when she "participat[ed] in the meeting or coming together of at least five persons for the purpose of engaging in conduct constituting disorderly conduct … by blocking traffic." (Emphasis added.) Griffie, 2022 WL 17072292, at *2. To support the unlawful assembly charge, the City of Wichita relied on its disorderly conduct ordinance, W.M.O. § 5.24.010:

"Disorderly conduct is, one or more of the following acts that the person knows or should know will alarm, anger or disturb others or provoke an assault or other breach of the peace:

"(a) Engaging in brawling or fighting; or "(b) Disturbing an assembly, meeting, or procession, not unlawful in its character; or "(c) Using fighting words or engaging in noisy conduct tending to reasonably arouse alarm, anger or resentment in others.

"As used in this section, ’fighting words’ means words that by their very utterance inflict injury or tend to incite the listener to an immediate breach of peace.

"Every person convicted of violating this section shall be punished by imprisonment of a term not to exceed 30 days or a fine of not more than $500.00 or both such imprisonment and fine."

Procedural History

Griffie appeared for a bench trial in Sedgwick County Municipal Court. The court found Griffie guilty of violating W.M.O. § 5.73.030(1) as charged.

Griffie appealed the municipal court’s decision to the Sedgwick County District Court and requested a jury trial. Before trial, the City clarified its theory of the case: Griffie violated the unlawful assembly ordinance by meeting with five or more persons with the intent to engage in "noisy conduct tending to reasonably arouse alarm, anger or resentment in others." In response, Griffie argued that over 40 years ago, the Kansas Supreme Court examined a state statute mirroring the Wichita ordinance and, in order to avoid holding the entire statutory subsection unconstitutional, construed the language in subsection (c) narrowly to mean only "fighting words." See State v. Huffman, 228 Kan. 186, 612 P.2d 630 (1980). Based on the holding in Huffman, Griffie argued the "noisy conduct" provision in subsection (c) is unenforceable. The district court was not persuaded by Griffie’s argument.

The case proceeded to trial. McTaggart testified first, followed by Lieutenant Sielor and Detective Hoyt, The two-hour videotape of the protest was played, for the jury. The City rested its case, and Griffie moved for acquittal. The district court denied her motion. Griffie’s attorney asked for permission to submit a trial brief for reconsideration, which the court granted. On reconsideration, Griffie argued the "noisy conduct" part of the disorderly conduct definition in subsection (c) is unconstitutionally overbroad and should be struck from the ordinance because it prohibits all noisy conduct, even if the conduct is protected under the First Amendment. The court remained unpersuaded and denied Griffie’s motion for reconsideration.

Griffie testified last. She acknowledged her role as the executive director of ICT, though she denied having chosen the position. She believed she was given the position "because nobody else really wanted to do the work" and that it was ‘‘forced upon [her]." Griffie testified that ICT’s decisions were made as a group. Griffie’s time on the stand established that she had told other protestors to bring shields as defensive and symbolic tools, that she wished she would have tried "to keep people more compact or organized," and that she felt Wichita police targeted her because she was the face of ICT. Griffie also testified about the impact on her resulting from the City’s decision to prosecute her for participating in the protest:

"I don’t think in the future I would ever organize any more protests, like, that’s just not really my jam. But I think, yeah, eventually I would like to get involved in some other, like, I really enjoyed doing, like, distributions. I really enjoyed, you know, speaking to people, on these things, but I don’t think protest is the way for me."

A jury found Griffie guilty of unlawful assembly. The court imposed $346.50 in fines and costs. At sentencing, the prosecutor noted Griffie was "a great asset to the community and does a lot of things," and suggested Griffie could do community service rather than paying the fine. The court held Griffie could...