Opinion
No. CX-98-2325.
Filed August 24, 1999.
Appeal from the District Court, Anoka County, File No. KX-96-15230.
Randall D.B. Tigue, (for appellant).
Mike Hatch, Attorney General, and
Michael J. Scott, (for respondent)
Considered and decided by Crippen, Presiding Judge, Short, Judge, and Harten, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
This appeal is from a judgment of conviction for failure to obey a lawful police order in violation of Minn. Stat. § 169.02, subd. 2 (1996). Because we conclude the evidence is sufficient to support the conviction, and the police order was neither unlawful nor unconstitutional, we affirm.
FACTS
Appellant James Mangan was charged with failure to obey a lawful police order and two other misdemeanor offenses after he ignored a police officer's order to move out of the street, where he had been campaigning (as a candidate for public office) during the 1996 Anoka Halloween Parade, and onto the sidewalk. Mangan moved to dismiss the charges on various grounds, including a lack of probable cause and a challenge to the police order, and to the parade committee rule on which it was based, as a violation of the First Amendment.
At the omnibus hearing, the chairman of the Anoka Halloween Parade Committee testified that the committee did not allow campaigning politicians to be in the parade, in part because there were too many of them and the parade was limited to 125 units. The committee allowed only those organizations that had a parade permit to walk in the street, selling or handing out items. A few nonprofit groups, most of them associated with a unit in the parade, were also approved in advance by the parade committee to walk in the street.
The committee chairman testified that he was monitoring the crowd along the parade route, trying to keep them as close to the curb as possible, for safety reasons. He saw Mangan in the street twice, and told him to get on the curb. Mangan complied.
A volunteer marshal for the parade testified that he saw Mangan on the street passing out literature and stickers and told him to get on the sidewalk. Mangan complied, but then returned to the street. When the marshal repeated the instruction, Mangan again complied, but soon returned to the street. The third time Mangan was told to get on the sidewalk, he replied, "kiss my ass;" this occurred in front of small children, whose parents complained. When the marshal saw Mangan back in the street a fourth time, he asked an Anoka police officer to handle it.
Sergeant Small of the Anoka police testified that he was in uniform helping with crowd control at the parade, trying to keep parade watchers back near the curb, when he saw Mangan in the street, about eight feet from the curb. Small testified that the parade marshal said he had already spoken to Mangan three or four times. Small testified that he told Mangan to move onto the sidewalk, which he did, but when Small looked back, Mangan was in the street again. Small then arrested Mangan.
The district court denied Mangan's motion to dismiss. Mangan agreed to waive a jury trial and submit the case to the court based on stipulated facts. The district court solicited memoranda on the additional legal issue posed by the parade committee's exclusion of political candidates from the parade. The court concluded that this exclusion of political candidates was a reasonable, content-neutral "time, place, and manner" restriction on speech. The district court found Mangan guilty of failure to comply with a lawful order and sentenced him. This appeal followed.
DECISION
Mangan's challenges to the lawfulness of Sergeant Small's order and to the constitutionality of the prohibition it enforced present legal issues subject to de novo review. See State v. Wright , 588 N.W.2d 166, 168 (Minn.App. 1998) (applying de novo standard of review to constitutionality of statute), review denied (Minn. Feb. 24, 1999); State v. Kiminski , 474 N.W.2d 385, 389 (Minn.App. 1991) (applying de novo standard of review to issue of statutory construction), review denied (Minn. Oct. 11, 1991).
1. Validity of Police Order
The statute under which Mangan was convicted provides:
It is a misdemeanor for any person to willfully fail or refuse to comply with any lawful order or direction of any peace officer invested by law with authority to direct, control, or regulate traffic.
Minn. Stat. § 169.02, subd. 2 (1996) (emphasis added). Although this provision is found in the chapter on traffic regulation, a person can violate the statute other than by driving. See City of St. Paul v. Willier , 304 Minn. 430, 431, 231 N.W.2d 488, 489 (1975) (holding that driver who refused to produce driver's license in his driveway after exiting car was properly found guilty).
Mangan argues that Sergeant Small's order that he leave the street was not a lawful order because Small was not enforcing a state law or city ordinance but merely the rule of a private organization, the Anoka Halloween Parade Committee (AHPC). We disagree.
In general, the authority of police officers is broadly construed. See generally Duellman v. Erwin , 522 N.W.2d 377, 380 (Minn.App. 1994) (noting that police must be accorded wide degree of discretion in order to encourage responsible law enforcement), review denied (Minn. Dec. 20, 1994). Police must be accorded some authority to enforce the rules of a private party, to oust the unruly patron or bar the gate crasher, if that is necessary to maintain public order. If police may control traffic at major events by directing drivers to ignore traffic laws, such as red lights, for the sake of public order and convenience, their authority is certainly not limited to enforcing statutes and ordinances. See generally Minn. Stat. § 626.84(g) (1998) (defining "reserve officer" as officer with authority to engage in traffic and crowd control, and other functions, but not to enforce general criminal laws or arrest suspects). Mangan's argument reflects too narrow a view of police authority.
Small stepped in to order Mangan off the street only after parade workers had reminded Mangan at least five times of the rule requiring him to stay off the street, and Mangan had verbally abused a parade marshal. Small's order was, at that point, perhaps the only means of preventing a breach of the peace. It was certainly a "lawful" order.
2. Free Speech Restrictions — Public Safety
Mangan argues that Sergeant Small's order was not "lawful" because the AHPC rule on which it was based violated Mangan's right to free speech. We disagree. The right of free speech is protected only against government infringement. See State v. Wicklund , 589 N.W.2d 793, 801 (Minn. 1999) (holding that state constitutional protections, like those of federal constitution, are triggered only by state action). Mangan challenges a rule enacted and administered by the AHPC, a private organization. Admittedly, public streets are generally considered public fora, in which free speech enjoys the strongest protection. See Perry Educ. Ass'n v. Perry Local Educators' Ass'n , 460 U.S. 37, 46, 103 S.Ct. 948, 954-55 (1983). But although Main Street in Anoka, on which Mangan was prevented from passing out campaign materials, is a public street, at the time of the parade it was closed off to traffic and dedicated to a parade run by a private organization. See generally Hurley v. Irish-American Gay, Lesbian and Bisexual Group , 515 U.S. 557, 572-76, 115 S.Ct. 2338, 2347-48 (1995) (viewing parade as communicative activity of its private organizers, subject to their control, not a "public accommodation").
The Eighth Circuit Court of Appeals has concluded that there was no state action in a similar case in which a private festival committee using a public park for a weekend festival banned political candidates from operating a booth or handing out campaign literature. Reinhart v. City of Brookings , 84 F.3d 1071, 1073 (8th Cir. 1996). A political candidate had sued the city alleging a civil rights violation under 42 U.S.C. § 1983, but the Eighth Circuit held that the festival committee's policy could not fairly be treated as that of the municipality. Id. The court cited a number of undisputed facts concerning the policy and the relationship of the festival committee to the city government. Id.
Here, Mangan has presented virtually no evidence regarding any role played by the City of Anoka in the management of the Halloween Parade. Nevertheless, even assuming that Mangan has shown state action and that Main Street remained a traditional public forum, we find no constitutional violation.
In a traditional public forum, the state may enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.
Perry Educ. Ass'n , 460 U.S. at 46, 103 S.Ct. at 955 (citations omitted). Mangan was restricted from distributing campaign literature only on the street (where safety would generally prohibit it anyway) and during the Halloween parade. The restriction was content-neutral because the record establishes that it was enforced against all politicians, not just Mangan, and applied to nonpoliticians who were not appropriately licensed by the AHPC or associated with a unit in the parade. Moreover, the regulation allowed Mangan the alternative communicative channel of passing out literature and stickers on the sidewalks.
The AHPC rule was narrowly tailored to serve public safety, a significant government interest. Although the record bears out Mangan's claim that the crowd itself crept forward further into the street as the parade progressed, the parade committee still had a significant public safety interest in limiting the number of vendors and leafletters present in the street to draw the crowd (particularly children) away from the curb.
In sum, we conclude that the regulation that kept Mangan from distributing campaign literature in the street was a reasonable time, place, and manner restriction.
3. Sufficiency of Evidence
Mangan argues that the evidence is insufficient to prove that he disobeyed Sergeant Small's order to move out of the street. In reviewing a claim of insufficient evidence, this court must view the evidence in the light most favorable to the finding, assuming that the factfinder believed the state's witnesses and disbelieved any contrary evidence, and determining whether the evidence was sufficient to permit the factfinder to reach the finding that it did. State v. Webb , 440 N.W.2d 426, 430 (Minn. 1989); State v. Moore , 438 N.W.2d 101, 108 (Minn. 1989).
The stipulated record establishes that Mangan disobeyed Small's order by immediately returning to the street he had been ordered to leave. The record does not support Mangan's claim that it was physically impossible for him to leave the street, or that Small's order was rendered ambiguous by Mangan's position in a portion of Main Street intersecting with another street. Accordingly, the evidence is sufficient to support the conviction.
Affirmed.