81 Wn.2d 510, THE CITY OF PASCO, Respondent, v. DOUGLAS EARL DIXSON, Appellant.
[No. 42075. En Banc. Supreme Court November 16, 1972.]
THE CITY OF PASCO, Respondent, v. DOUGLAS EARL DIXSON,
Appellant.

This brings us to what we perceive to be the weightiest claim of error. Putting the defendant's conduct in the worst possible light and viewing the evidence most favorably to the prosecution, the question persists, Did the defendant's conduct as shown by the record constitute a violation of the ordinance? On this question, to support a conviction, the proof must show that the defendant was disorderly in public by using obscene language in the presence of another, that is, uttering obscenities so as to amount to a public disorder in and of itself, or to cause, produce, or tend to cause or produce a public disorder.

Holmes' famous aphorism, that the most stringent protection of free speech would not protect a man in falsely shouting "fire" in a crowded theater, is preceded by an equally trenchant truism that the character of every act depends upon the circumstances in which it is done. Schenck v. United States, 249 U.S. 47, 51, 63 L. Ed. 470, 39 S. Ct. 247 (1919). Both ideas are entitled to equal respect in Dixson's case. To show a public disorder, actual or threatened, existing or impending, the uttered words must, therefore, be related to the circumstances in which they were uttered. Thus, the prosecution carried the burden of proving disorderly conduct as charged in the complaint arising from the language spoken by the defendant, i.e., the uttering of obscenities in public so as to cause, produce, or tend to cause or produce, a public disorder or in such a way that their very uttering of them in and of itself amounted to a public disorder.

[2] Was there prima facie proof that, under the circumstances shown by this record, the defendant violated the ordinance as charged by using obscene language in a public place so as to create a public disturbance? An analysis of the evidence will show - and the arresting officer acknowledged it to be so - that the arrest was made and

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prosecution maintained because of the defendant's solitary utterance, "Shit, you pigs got no right." This incomplete thought unrepeated might well be deemed vulgar speech or, in other circumstances, obscene if done repeatedly and with design to offend or in disregard of whether it offended others peaceably in the park. But the record makes clear that the statement was not made under circumstances of public disorder, violence or danger then existing or threatened and thus under circumstances from which the jury could properly infer disorderly conduct. The record is devoid of proof that this remark was made with design or intent to create a public disturbance or to offend other occupants of the park - except perhaps the police officers who testified they were not offended - or to disturb others in the quiet enjoyment of the park or that the remark would tend to produce any of such consequences, for no evidence was presented from which a public disorder, disturbance or even commotion could be inferred except that created by the officers in sweeping noisily through the park and barking orders to the peaceable citizenry then occupying it. Nor does the record show the offensive language to have been used in such a loud, repetitious or persistent manner as to amount to a disorder in and of itself.

From the outset, the record shows the defendant quietly standing or sitting in a group of other peaceable and quietly behaved individuals in a public park during lawful hours on a summer evening, 3 hours before park closing time. It shows the Pasco police department in full strength moving swiftly through the park, barking orders and telling everyone to stay in place. It shows sudden and drastic police action and the threatened resort to force upon apparent peaceful and law-abiding citizens where there was no imminent public danger, nor threat of violence, nor probable cause to believe that the defendant or others near him were in the process of committing, were about to commit, or were withdrawing from the scene of a crime. The sole and avowed purpose of the so-called police raid was to serve four warrants, two upon named defendants and two

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John Doe warrants, upon individuals whose identities but not names were known to these police officers. The police knew the four individuals for whom they were looking and soon learned that the defendant was not one of them.

Without legal justification so far as this record shows, some of the officers ordered the defendant and those near him to sit down when they had an apparent legal right to stand; told him to "shut up" when he had a right to speak; told him to put his cigarettes in his pocket when he had a right - without littering - to place them on the ground before him; told him he could not smoke when the law allowed him to smoke; ordered him and others to leave the park when he had a right to remain. His solitary 6-word utterance, made under these circumstances, did not, we think, as a matter of law, constitute a public disorder nor otherwise rise to the magnitude of a criminal violation of the Pasco disorderly conduct ordinance prohibiting public obscenity toward others. There was nothing about the situation in the park that summer evening endangering the public safety or threatening injury to life or property as shown by this record to warrant the police in ordering people about or running them out of the park before closing time. The public peace and safety was not and had not been threatened; there was no threat of riot impending; there was no dangerous or unlawful assemblage. Spokane v. McDonough, 79 Wn.2d 351, 485 P.2d 449 (1971).

The law and the people who employ police officers demand much of them - perhaps too much. It expects of police officers not only courage in the face of danger, but helpfulness in the presence of infirmity, courtesy in the face of rudeness, and patience and calmness where the circumstances may engender neither in an ordinary citizen. To these sublime virtues, the law insists that police officers in furthering the public interest, safety and convenience, accept the discipline of the job, assume the continuing burdens of training and in-service education, develop a professional competence and, above and beyond all this, exercise sound

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judgment when the public itself in like circumstances would in all probability be incapable of exercising it.

Assuming arguendo that the defendant's words standing alone were as a matter of law to be treated as an obscenity, its solitary utterance unrepeated and unaccompanied by any other conduct or behavior evincing a design or purpose to create a public disturbance, and with no public disorder or danger impending or threatened, did not, we think, descend to the quality of criminality described in the ordinance as "obscene language used in the presence of another" so as to constitute disorderly conduct punishable by imprisonment.

In the same context, the words reputedly uttered by the defendant after his hands had been painfully and forcibly handcuffed behind his back and as he was being led to the police car under arrest, although probably obscene in a general sense, obviously amounted to no more than an afterthought in the prosecution's case. These words, directed as they were not to the public but to the officers leading him away to jail, were uttered under such circumstances that the defendant was without any present ability to create or even foster a public disorder. Uttered under circumstances of extreme provocation, unaccompanied by any attempt to or incitement of others to resist the police, whose actions toward the defendant were at the time, to say the least, of doubtful legality, the spoken words in and of themselves did not constitute an offense under the Pasco city ordinance.

We are of the opinion that the record fails to show even prima facie that defendant committed the crime whereof he was charged and convicted.

The judgment is reversed and the case dismissed.

FINLEY, ROSELLINI, and NEILL, JJ., and RYAN, J. Pro Tem., concur.

HUNTER, J. (dissenting) - The majority has reversed a judgment entered upon a jury verdict, charging the defendant with "conducting himself in a disorderly manner by

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creating a disturbance . . . in the presence of another by using abusive, lewd, vulgar or obscene language in the presence of another or by using loud, profane, vulgar or obscene or lewd language toward anyone. Towit: Volunteer Park."

If, in fact, the defendant's conduct was within the ambit of this charge, he was clearly in violation of the Pasco disorderly conduct ordinance which is as follows:

It is unlawful for any person to conduct himself or herself in a disorderly manner by creating a disturbance within the city in the presence of another by fighting or arguing or using abusive, lewd, vulgar, or obscene language in the presence of another, or by using loud, profane, vulgar, obscene or lewd language toward anyone or by urinating in public view or by having his or her clothing in such disarray that he or she would appear indecent to the general public. Pasco City Code 9.04.020 (formerly § 10-5.156).