If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

October 29, 2020

v No. 348863

Wayne Circuit Court

BRADLY THOMAS PETERSON, LC No. 18-007293-01-FH

Defendant-Appellant.

Before: METER, P.J., and SHAPIRO and RIORDAN, JJ.

PER CURIAM.

Defendant appeals as of right his jury-trial conviction of disturbing the peace, MCL 

750.170, for which he was sentenced to 90 days in jail, with credit for 118 days served. On appeal, 

defendant argues that his actions were constitutionally protected by the First Amendment and so 

MCL 750.170 was unconstitutional as applied to him. He also argues that the statute is 

unconstitutional on its face and that he is entitled to a new trial because the jury instructions were 

erroneous and his trial attorney rendered ineffective assistance for failing to object to those 

instructions. We conclude that defendant’s public threats of violence are not constitutionally 

protected and that he could be properly convicted based on those threats. However, the jury also 

heard substantial evidence of other statements made by defendant that are protected speech, and 

the jury was not properly instructed. Therefore, we remand for a new trial, but defendant fails to 

carry his burden of showing that MCL 750.170 is facially unconstitutional. 

I. BACKGROUND

On April 12, 2017, defendant went to the 33rd District Court in Woodhaven, Michigan 

with his brother and girlfriend to provide support for his girlfriend, who was there for sentencing. 

When the district court judge denied his girlfriend’s motion to withdraw her plea, defendant uttered 

the word “asshole.” Defendant was ordered to leave the court building, which he did without 

protest or incident. He then waited outside the courthouse for his brother and girlfriend.

While outside, defendant paced back and forth and began talking to himself. Robert 

Williams, a court patron, was also outside smoking a cigarette. Williams testified that defendant 

stated that he was going to “shoot up the building” and also threatened to shoot Williams. 
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Defendant denied threatening anyone and claimed he was merely talking to himself. Williams 

entered the courthouse and informed Brian Cozzaglio, a court security officer, that defendant was 

making threats outside. Cozzaglio testified that he was informed by another court patron that 

defendant stated he “loved” ISIS and Osama bin Laden. Officers from the Woodhaven Police 

Department were dispatched to the scene.

The officers arrived on the scene and asked defendant “what was going on,” to which he 

replied, “you tell me what the f***’s going on.” What happened next is disputed, but the officers 

eventually took defendant to the ground in an attempt to restrain and arrest him. Defendant was 

charged with resisting arrest, MCL 750.81d, and disturbing the peace, MCL 750.170. The jury 

found defendant not guilty of resisting arrest but convicted him of disturbing the peace. This 

appeal followed.

II. ANALYSIS

MCL 750.170 provides:

Any person who shall make or excite any disturbance or contention in any tavern, 

store or grocery, manufacturing establishment or any other business place or in any 

street, lane, alley, highway, public building, grounds or park, or at any election or 

other public meeting where citizens are peaceably and lawfully assembled, shall be 

guilty of a misdemeanor.

The First Amendment provides that the government “shall make no law . . . abridging the 

freedom of speech.” US Const, Am 1.1 “[T]he First Amendment means that government has no 

power to restrict expression because of its message, its ideas, its subject matter, or its content.” 

People v Vandenberg, 307 Mich App 57, 63; 859 NW2d 229 (2014) (quotation marks and citation 

omitted).

“A constitutional challenge to the validity of a statute can be brought in one of two ways: 

by either a facial challenge or an as-applied challenge.” In re Forfeiture of 2000 GMC Denali and 

Contents, 316 Mich App 562, 569; 892 NW2d 388 (2016). “An as-applied challenge . . . alleges 

‘a present infringement or denial of a specific right or of a particular injury in process of actual 

execution’ of government action.” Bonner v City of Brighton, 495 Mich 209, 223 n 27; 848 NW2d 

380 (2014), quoting Village of Euclid, Ohio v Ambler Realty Co, 275 US 365, 395; 47 S Ct 114; 

71 L Ed 303 (1926). In First Amendment cases, “[a]n as-applied challenge contends that the law 

is unconstitutional as applied to the litigant’s particular speech activity, even though the law may 

be capable of valid application to others.” Foti v City of Menio Park, 146 F3d 629, 635 (CA 9, 

1998).

We begin by noting a significant omission in defendant’s briefing. Although he argues 

that everything he said outside the courthouse was protected speech under the First Amendment, 

he fails to explain how a threat to kill a member of the public and shoot up a courthouse is 

 

1 The First Amendment is applied to the states through the Fourteenth Amendment. People v 

Rapp, 492 Mich 67, 72 n 10; 821 NW2d 452 (2012).
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protected. Clearly it is not. Application of the statute so as to criminalize such statements in a 

public place is not unconstitutional. “ ‘[A] State may punish those words which by their very 

utterance inflict injury or tend to incite an immediate breach of the peace,’ including ‘fighting 

words,’ ‘inciting or producing imminent lawless action,’ and ‘true threat[s].’ ” TM v MZ (On 

Remand), 326 Mich App 227, 238; 926 NW2d 900 (2018), quoting Virginia v Black, 538 US 343, 

359; 123 S Ct 1536; 155 L Ed 2d 535 (2003).

We agree with defendant, however, that some of the statements used to convict him were 

constitutionally protected speech. Most significantly, defendant’s unpopular political statements 

outside of the courtroom expressing his admiration of ISIS and Osama bin Laden constitute 

protected speech. See Street v New York, 394 US 576, 592; 89 S Ct 1354; 22 L Ed 2d 572 (1969) 

(“It is firmly settled that under our Constitution the public expression of ideas may not be 

prohibited merely because the ideas are themselves offensive to some of their hearers.”); 

Terminiello v Chicago, 337 US 1, 4; 69 S Ct 894; 93 L Ed 1131 (1949) (“[A] function of free 

speech under our system of government is to invite dispute. It may indeed best serve its high 

purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, 

or even stirs people to anger.”). Also, there was no evidence that his statements regarding ISIS 

and bin Laden, if heard by anyone other than the court patron who reported it to security, “[made] 

or excit[ed] any disturbance.” MCL 750.170. Similarly, the prosecutor questioned defendant 

about his recent protest outside of a courthouse that involved waving the Confederate flag and 

displaying signs reading “Black Lives Don’t Matter” and “Indian Lives Don’t Matter.” Aside 

from having no relevance to whether defendant disturbed the peace on April 12, 2017, and being

highly prejudicial, this conduct also involved protected speech and cannot serve as the basis of a 

disturbance under MCL 750.170. See Snyder v Phelps, 562 US 443, 458; 131 S Ct 1207; 179 L 

Ed 2d 172 (2011) (display of signs “at a public place on a matter of public concern” is speech 

“entitled to ‘special protection’ under the First Amendment.”). And while defendant’s threats to 

police officers inside the police car could be prosecuted under another statute, they do not fall 

within the scope of MCL 750.170. Those statements were not made in a public place or directed 

at creating a general disturbance. 

Nevertheless, the jury heard testimony about all of these statements. There was no limiting 

instruction, and the jury was free to convict on the basis of any of defendant’s statements it 

concluded were covered by MCL 750.170. A review of the trial record does not provide us with 

any basis to determine which of defendant’s statements were the basis for his conviction, and so 

we cannot conclude that defendant was convicted solely on the basis of his constitutionally 

unprotected threat to shoot members of the public in a public place. 

Defendant failed to preserve his constitutional claims at the trial level.2 Nor did he seek a 

bill of particulars to require the prosecution to clarify which of his statements constituted a 

 

2 We note, however, that defendant objected on the basis of hearsay to Cozzaglio testifying that an 

unidentified court patron reported that defendant was outside proclaiming his love of ISIS and 

Osama bin Laden. The trial court overruled the objection after the prosecutor argued that the 

statements were being offered solely to explain the course of conduct and not to prove the truth of 

the matter asserted. However, the prosecutor then repeatedly referenced the statements regarding 
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violation of the statute. Accordingly, we may not reverse on this basis unless we conclude that 

admission of the relevant statements was plain error. See People v Green, 322 Mich App 676, 

681; 913 NW2d 385 (2018) (“Constitutional challenges must be raised in the trial court; otherwise, 

those challenges are not properly preserved for appellate review.”). “To avoid forfeiture under the 

plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was 

plain, i.e., clear or obvious, 3) and the plain error affected substantial rights.” People v Carines, 

460 Mich 750, 763; 597 NW2d 130 (1999). Whether the error affected substantial rights 

“generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower 

court proceedings.” Id. Even if those elements are met, “[r]eversal is warranted only when the 

plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error 

seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings’ independent 

of the defendant’s innocence.” Id. at 763-764 (quotation marks and citation omitted).

It was plain error to admit statements by defendant that are either protected speech or as a 

matter of law are not grounds for conviction. Admission of this evidence without a limiting 

instruction did not merely place defendant in a bad light that may have prejudiced him; it allowed 

the jury to convict defendant because he made statements that are either constitutionally protected 

or outside the scope of the statute. And considering the prosecutor’s repeated reliance on those

statements in closing argument, we conclude that there is a reasonable probability that this error 

affected the verdict. Thus, defendant meets the third prong of the plain-error test. Lastly, this 

error both raised questions about defendant’s guilt and affected the integrity and fairness of the 

proceeding. We therefore reverse defendant’s conviction and remand for a new trial consistent 

with this opinion.

Defendant also argues the trial court erred when it instructed the jury that it could convict 

defendant for exciting a “contention” under MCL 750.170. This too constituted plain error, 

considering that this part of the statute was found to be constitutionally infirm by this Court in 

1971 in Purifoy, 34 Mich App 318, a ruling that was reaffirmed in People v Mash, 45 Mich App 

459; 206 NW2d 767 (1973) and more recently in Vandenberg, 307 Mich App at 66 (“In sum, for 

more than four decades, this Court and federal courts have acknowledged that the reference in 

MCL 750.170 to ‘exciting a contention’ unconstitutionally infringes protected speech by 

criminalizing the peaceable public expression of ideas, merely because those ideas might be 

offensive to others”). While plaintiff argues that defendant waived this argument by failing to 

object to the trial court’s instructions, defendant also claims ineffective assistance of counsel based 

on the lack of objection. “To establish ineffective assistance of counsel, defendant must first show 

that (1) his trial counsel’s performance fell below an objective standard of reasonableness under 

the prevailing professional norms, and (2) there is a reasonable probability that, but for counsel’s 

 

ISIS and Osama bin Laden in closing argument. The highly prejudicial nature of these statements 

is clear. After Williams testified, a juror posed a question asking whether Williams was the one

who reported defendant’s comments regarding ISIS and bin Laden. The trial court rephrased the 

question to omit reference to ISIS or bin Laden because “certainly bringing in ISIS would . . . be 

unduly suggestive and potentially . . . unfairly prejudice[ial] to defendant.” Unfortunately, the trial 

court did not take this into consideration when it allowed the statements in the first place.
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error, the result of the proceedings would have been different.” People v Uphaus, 278 Mich App 

174, 185; 748 NW2d 899 (2008). There is no question that trial counsel’s failure to object to the 

trial court’s instruction that the jury could convict defendant for exciting a contention fell below 

an objective standard of reasonableness. By itself, it is questionable whether this error was 

outcome determinative, i.e., it is unclear whether, more likely than not, the jury found that 

defendant excited a contention and convicted him on that basis. However, when considered along 

with the statements that the jury was improperly allowed to considered, the plainly improper 

instruction supports our decision to reverse as it is a cumulative error. See People v Knapp, 244 

Mich App 361, 388; 624 NW2d 227 (2001).3

Beyond seeking a new trial, defendant also asks that we declare MCL 750.170 facially

overbroad. 

“A statute is overbroad when it precludes or prohibits constitutionally protected conduct in 

addition to conduct or behavior that it may legitimately regulate.” People v Gaines, 306 Mich App 

289, 320-321; 856 NW2d 222 (2014). “[T]he overbreadth doctrine is an exception to the general 

rules of standing that permits a defendant to challenge the constitutionality of a statute on the basis 

of the hypothetical application of the statute to third parties not before the court.” People v Rogers, 

249 Mich App 77, 96; 641 NW2d 595 (2001). However, “there must be a realistic danger that the 

statute itself will significantly compromise recognized First Amendment protections of parties not 

before the Court for it to be facially challenged on overbreadth grounds.” Los Angeles City Council 

v Taxpayers for Vincent, 466 US 789, 799; 104 S Ct 2118; 80 L Ed 2d 772 (1984). “The party 

challenging the constitutionality of a statute bears the burden of proving its invalidity.” People v 

Boomer, 250 Mich App 534, 538; 655 NW2d 255 (2002).

Our Court has repeatedly declined to hold MCL 750.170 unconstitutional despite numerous 

opportunities to do so. See People v Weinberg, 6 Mich App 345; 149 NW2d 248 (1967); Purifoy, 

34 Mich App 318; Mash, 45 Mich App 459; Vandenberg, 307 Mich App 57. We see no basis to 

reach a different result here. The reasoning of those cases is sound and defendant does not present 

any compelling new arguments other than his reliance on the Michigan Supreme Court’s decision 

in People v Rapp, 492 Mich 67, 75; 821 NW2d 452 (2012), which struck down a Michigan State 

University ordinance making it a crime to “disrupt the normal activity or molest the property of 

any person, firm, or agency, while that person, firm or agency is carrying out service, activity or 

agreement for or with the University.” 

Defendant’s reliance on Rapp is misplaced. First, Rapp did not overrule or criticize this 

Court’s decisions in Weinberg, Purifoy, Mash, and Vandenberg finding that the statute was neither 

overbroad or vague. Second, the ordinance in Rapp was far more obtuse than MCL 750.170. As 

observed by the Supreme Court, it allowed for “enforce[ment] against anyone who disrupts in any 

way anyone carrying out any activity for or with MSU.” Id. at 76. The Court went on to note that 

“there are seemingly infinite ways in which someone might ‘disrupt’ another who is engaged in 

an ‘activity’ for or with MSU.” Id. at 76-77. The ordinance largely rendered criminal normal 

activities that might have the effect of even slightly interfering with any employee, student or 

contractor of the university engaged in any activity at any location. By contrast, MCL 750.170, 

 

3 To be clear, however, defendant’s successful as-applied challenge, by itself, warrants reversal.
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as we observed in Weinberg, falls within the state’s authority to adopt “properly drawn statutes 

and ordinances designed to promote law and order, protect the community against disorder, 

regulate traffic, safeguard legitimate interests in private and public property, or protect the 

administration of justice and other essential governmental functions.” Weinberg, 6 Mich App at 

362, quoting Cox v Louisiana, 379 US 559, 574; 85 S Ct 476; 13 L Ed 2d 487 (1965) (quotation 

marks omitted). Further, MCL 750.170 does not rely on a subjective interpretation of the “normal 

activities” of individuals that are disrupted. Instead, MCL 750.170 objectively prohibits 

disturbances in public places.4 Moreover, we have already limited the scope of MCL 750.170 to 

remove any violation on the basis of exciting a contention, which the ordinance in Rapp arguably 

contained. 

Further, if we can interpret the statute in a manner that meets First Amendment 

requirements we are required to do so. See People v Patton, 325 Mich App 425, 432; 925 NW2d 

901 (2018) (“When reviewing a constitutional challenge to a statute, this Court must construe it to 

be constitutional unless its unconstitutionality is clearly apparent.”). And by remanding for a new 

trial where substantial evidence was admitted regarding activities that are constitutionally 

protected without a limiting instruction, we hold that protected speech, in and of itself, may not 

serve as a basis for a conviction under MCL 750.170. Beyond the circumstances of this case, 

which can be addressed without striking the statute, defendant has not established a real danger 

that MCL 750.170 is preventing the exercise of free speech.5 See Village of Hoffman Estates v 

Flipside, Hoffman Estates, Inc, 455 US 489, 503; 102 S Ct 1186; 71 L Ed 2d 362 (1982) (“We do 

not suggest that the risk of discriminatory enforcement is insignificant . . . . At this stage, however, 

we are not prepared to hold that his risk jeopardizes the entire ordinance.”). 

By addressing the specific issues involving defendant’s conviction while not striking down 

the statute, we preserve the ability of law enforcement to prohibit truly disruptive activities, while 

also preserving the First Amendment rights of citizens. Because we read the statute to exclude 

prosecution for constitutionally protected speech, we reject defendant’s claim that MCL 750.170 

is facially unconstitutional.

 

4 As for defendant’s vagueness challenge, we see no basis to conclude that a person of ordinary 

intelligence would not understand that standing outside a public building and threatening to shoot 

it up was prohibited under the law. See People v Assy, 316 Mich App 302, 308; 891 NW2d 280 

(2016). MCL 750.170, which prohibits “mak[ing] or excit[ing] any disturbance,” provides fair 

notice to individuals that threatening to “shoot up” the court building would cause a disturbance

and is, therefore, illegal. See TM, 326 Mich App at 239 (observing that, consistent with the First 

Amendment, states may prohibit “those statements where the speaker means to communicate a 

serious expression of an intent to commit an act of unlawful violence to a particular individual or 

group of individuals.”) (quotation marks and citation omitted).

5 Defendant argues that MCL 750.170 could be used to quell protests and counter-protests. 

However, the seeming prevalence of protests and counter-protests in recent years suggests that the 

statute is not having a chilling effect on protected speech.
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Reversed and remanded for a new trial consistent with this opinion. We do not retain 

jurisdiction. 

/s/ Patrick M. Meter 

/s/ Douglas B. Shapiro 

/s/ Michael J. Riordan