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

SHARON G. LEE, 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 localsheriff 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 decisionsreveal what isrequired 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 themselvessupport 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 welldefined 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 principlesin several casesinvolving

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

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do notsupport 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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