Present: Hassell, C.J., Koontz, Kinser, Lemons, Goodwyn, and
Millette, JJ., and Carrico, S.J.
E. DUANE HOWARD
OPINION BY
v. Record No. 080383 SENIOR JUSTICE HARRY L. CARRICO
January 16, 2009
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In a bench trial in the Circuit Court of the City of
Roanoke, the defendant, E. Duane Howard, was convicted on a
summons charging him with disorderly conduct in violation of
Section 21-9(a)(2) of the Roanoke City Code for his alleged
disruption of a meeting of the city council. The circuit court
imposed upon Howard a fine of $100.00, suspended upon condition
that he keep the peace and be of good behavior for a period of
six months. Howard appealed his conviction to the Court of
Appeals of Virginia. In a published opinion, the court affirmed
Howard’s conviction. Howard v. City of Roanoke, 51 Va. App. 36,
654 S.E.2d 322 (2007). We awarded Howard this appeal. We will
also affirm his conviction.
Roanoke City Code § 21-9 provides in pertinent part as
follows:
(a) A person is guilty of disorderly conduct if, with the
intent to cause public inconvenience, annoyance or alarm,
or recklessly creating a risk thereof, he:
. . . .
(2) Wilfully . . . disrupts any meeting of the city council
. . . if such disruption prevents or interferes with the
orderly conduct of such meeting . . .; provided, however,
such conduct shall not be deemed to include the utterance
or display of any words.
Roanoke City Code § 21-9 parallels the provisions of Va.
Code § 18.2-415, which authorizes the governing bodies of
counties, cities, and towns “to adopt ordinances prohibiting and
punishing the acts and conduct prohibited by this section.” The
state statute includes the same exception as the Roanoke City
Code regarding “the utterance or display of any words.”
BACKGROUND
The following narrative is taken from a transcript of the
evidence at trial and a videotape of the city council meeting in
question. The meeting was held on November 7, 2005, for public
discussion of the question whether Roanoke’s Victory Stadium, a
memorial to World War II veterans, should be renovated or
demolished. The issue was an emotional one, and the council
chamber was filled to capacity with other attendees viewing
proceedings on a remote television in another room.
Officer John T. Rogers of the Roanoke City Police
Department was assigned to provide security at the meeting.
Prior to the scheduled two o’clock p.m. start of the meeting,
Howard and a companion engaged Officer Rogers in conversation
and asked him why he was present. Rogers replied that he “was
there to make sure that everything ran fast and smoothly and
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everything was secure.” Rogers was questioned about whether he
would ask people “to leave,” and he replied, “yes, sir.” Howard
asked, “what if they don’t want to leave?” Rogers responded,
“sir, fortunately there’s a thing called pain compliance.”
Howard “just kind of halfway laughed.”
At the two o’clock beginning of the meeting, Mayor Nelson
Harris made an opening statement in which he outlined the rules
that would apply to the meeting. The rules provided that each
of the 54 scheduled participants could speak only once for three
minutes from the podium, that comments would be confined to the
issue of the disposition to be made of Victory Stadium, and that
no “outbursts” or “verbal attacks . . . against city council or
any other people” would be tolerated. The mayor told the
audience that police officers were present “to make sure that
[the rules were] enforced” and that any offenders would “first
. . . be asked to leave, and if they didn’t,” the officers would
“escort them out.”
Howard was one of the scheduled speakers, and after his
turn at the podium he took a seat at the rear of the council
chamber. At 4:10 p.m., the twenty-seventh speaker, John Kepley,
stated that the middle initial of the mayor’s name, “L.,” meant
“liar.” The mayor “stopped the council meeting,” stated “that
this would not be tolerated,” again “laid down the rules of
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exactly what he expected,” and urged everyone to conduct
themselves in a civil manner.
Howard interrupted the mayor, “yelling out loud,” with his
hands “[c]upped around his mouth” and saying, “let him speak,
let him speak.” While “[e]verybody was a little bit rumbling,
[Howard] was the loudest all the way from the back row.”
The mayor said, “Mr. Howard,” and then called out, “where
is the police officer? Where is the officer?” Officer Rogers,
who had stepped outside the council chamber to speak to his
relief, Officer Johnson, heard the mayor’s call for “the police
officer” over the intercom. Officer Rogers immediately returned
to the council chamber and approached Howard, whereupon the
mayor said, “thank you sir, thank you sir. Council stands in
recess, Mr. – officer,” and rapped the gavel.
Officer Rogers approached Howard from the back because
“he’s on the last row.” The officer “bent over” Howard and
said, “you’ve already had your time . . . why don’t you be a
gentleman, stand up with me, and we’ll walk out of here like two
. . . full-grown adults?” Howard responded, “I have a right to
speak.” Officer Rogers asked Howard again, “why don’t you stand
up and walk with me?” Howard replied, “if you want me out of
here, you have to drag me out.” Officer Rogers asked two women
sitting alongside Howard to move. When they had moved, Officer
Rogers came around in front of Howard and he and Officer Johnson
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tried to get Howard to stand up but he said again, “[i]f you
want me out, you have to drag me out.” Officer Rogers then “put
on [Howard] what we call a wristlock,” which made Howard “stand
up.” Officer Rogers “walked [Howard] out applying pressure each
time he went to stop.”
Once outside the council chamber, Howard claimed that
Officer Rogers had broken his wrist, and Officer Rogers asked
him “if he wanted rescue.” Howard replied, “yes,” the rescue
squad was summoned, and Howard “went with the rescue.” Officer
Rogers later went to a magistrate and secured the summons upon
which Howard was tried in the circuit court.
Howard testified in his own defense at trial. He conceded
that the mayor had the right to establish rules for the meeting,
that he broke the rules by speaking out of turn and not having
been recognized to address the council from the podium, that the
mayor was speaking when he, Howard, was “yelling out,” and that
he resisted Officer Rogers’ request to leave by saying, “you
would have to drag me out.”
On appeal, Howard argues that a violation of the mayor’s
rules is not an element of the crime of disorderly conduct.
Howard says that while the mayor “had a right to set rules and
enforce rules that don’t violate the First Amendment, he did not
have the right to create for that one day a new element of the
crime of disorderly conduct under Roanoke City [Code §] 21-9.”
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Continuing, Howard asserts that “[a] person can be guilty of
violating the rules of the meeting (a civil violation) without
being guilty under the criminal [provisions of the Roanoke City
Code].”
Howard next argues that Roanoke City Code § 21-9 was
enacted to punish conduct and not words and, with the exclusion
of “the utterance . . . of any words” from its coverage, has
insulated him from any criminal responsibility for his “let him
speak, let him speak” utterance at the council meeting. He
concedes that he was not insulated from all consequences, that
“the mayor had a right to [evict] people who violated his rules
[from] the meeting,” but contends that the “matter should have
ended when [he] was escorted from the city council chambers.”
And, Howard maintains, the fact he may have “yell[ed] loudly”
does not make him a criminal. He asks, “[w]ho is to determine
when the volume rises to criminal levels?” “This blurring of
the line between conduct and speech,” Howard opines, “could
result in arguments that the statute is unconstitutionally
vague.”
Howard also argues that, while “[t]here was conduct during
the recess that the Commonwealth could argue was disorderly,”
he is not criminally responsible for his refusal to leave the
council chamber when ordered to do so. “[A]t that point, there
was no public meeting going on,” Howard avers, “so there was
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nothing that prevented or interfered with the orderly conduct of
the meeting.”
ANALYSIS
In Adams Outdoor Advertising v. City of Newport News, 236
Va. 370, 381, 373 S.E.2d 917, 922 (1988), we stated as follows:
To safeguard free speech, the Supreme Court requires
that a regulatory measure be content neutral. The doctrine
of content neutrality provides that governmental
regulations may not “restrict expression because of its
message, its ideas, its subject matter, or its content.”
Police Dept. of City of Chicago v. Mosley, 408 U.S. 92, 95
(1972).
The doctrine of content neutrality, however, does not
preclude all governmental regulation that restricts
expression. Restrictions on the time, place, and manner of
expression are permissible if “they are justified without
reference to the content of the regulated speech, . . .
serve a significant governmental interest and . . . leave
open ample alternative channels for communication of the
information.” Virginia Pharmacy Board v. Virginia Citizens
Consumer Council, 425 U.S. 748, 771 (1976).
Furthermore, “[a]lthough citizens may be given the
privilege to speak during a public meeting, the right to do so
is not unlimited.” Mannix v. Commonwealth, 31 Va. App. 271,
280-81, 522 S.E.2d 885, 890 (2000). “Whether the forum be the
courtroom or the chamber of the legislature itself or of a
political subdivision of the State, there must be order. It is
frivolous to suggest the First Amendment stands in the way of
that imperative.” State v. Smith, 218 A.2d l47, 150 (N.J.
1966).
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Howard correctly argues that the exception in Roanoke City
Code § 21-9 pertaining to the “utterance . . . of any words” has
a plain meaning and needs no interpretation. See Jenkins v.
Johnson, 276 Va. 30, 34-35, 661 S.E.2d 484, 486 (2008). Howard
is also correct in arguing that, since the Code section is
criminal in nature, it must be strictly construed against the
Commonwealth. See Jones v. Commonwealth, 276 Va. 121, 124, 661
S.E.2d 412, 414 (2008).
We agree with Howard that a violation of the mayor’s rules
is not an element of the crime of disorderly conduct. This does
not mean, however, that conduct which violates the rules cannot
also be a violation of Roanoke City Code § 21-9.
With respect to Howard’s argument that the Code section’s
exclusion from coverage of the “utterance . . . of any words”
insulates him from any criminal responsibility for saying what
he did just before the recess, we will give him the benefit of
the doubt and assume for the purpose of this discussion that he
is not punishable for saying, “let him speak, let him speak.”
We will give the same treatment to Howard’s argument on the
loudness issue and assume that he is not punishable because he
“yell[ed] loudly” during the city council meeting. ∗
∗
This treatment of the loudness question renders moot
Howard’s contention that any “blurring of the line between
conduct and speech could result in arguments that the [Roanoke
City Code section] is unconstitutionally vague.”
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It does not follow, however, that we must reverse Howard’s
conviction. His troubles did not end when he stopped yelling.
We disagree with Howard’s contention that he cannot be held
accountable for his conduct after the recess was called, conduct
he admits “the Commonwealth could argue was disorderly,” because
there was then “no public meeting going on so there was nothing
that prevented or interfered with the orderly conduct of the
meeting.”
The circuit court held at one point in the trial that the
mayor “called the recess because [Howard] was disrupting the
meeting” and at another point that “the recess was called solely
to facilitate the removal of Mr. Howard from the chambers.”
Howard does not question either ruling. Indeed, Howard’s
counsel said with respect to the latter ruling that, “I accept
that ruling.” It is the client, however, who must accept the
consequences of the rulings: Howard will not be allowed to use
the recess he caused as a shield against the disorderly conduct
in which he engaged during the recess.
Howard argues, however, that there was no evidence that his
refusal to leave the council chamber lengthened the recess and
thus disrupted the meeting. “We do not know,” Howard says,
“whether the Council went out to dinner during the recess or how
long the recess was . . . . [I]t could literally have been a
minute or two.” But Howard himself supplied some information on
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the subject. He testified to the warnings the mayor gave “to
people during the four (4) hours of council meeting.” The
meeting started at 2:00 p.m. The recess occurred about 4:10
p.m., after twenty-seven, or half, of the speakers had been
heard and about two hours had passed. If the meeting ended at
6:00 p.m., as Howard’s testimony indicates, after twenty-seven
more speakers had been heard and another two hours had passed,
it is highly unlikely the council members went out to dinner or
otherwise lingered during the recess.
In any event, how long the recess lasted is irrelevant.
What is relevant is the length of time it took the police
officers to talk to Howard in an effort to get him to leave
peacefully, to get him on his feet by use of a wristlock when
that effort failed, and to force him by “pain compliance” across
the chamber and out the chamber door, force sufficient to make
Howard think his wrist had been broken by Officer Rogers.
Whether the time taken to remove Howard was one or two
minutes or something more or less, it was of sufficient length
to disrupt the meeting in a manner proscribed by the Roanoke
City Code section. As the circuit court stated in finding
Howard guilty, “the conduct associated with [Howard’s] removal
. . . certainly lengthened . . . the recess and prevented the
orderly conduct of the meeting.”
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That the disruption was wilful cannot be doubted. Howard
disclosed his disruptive inclinations in his conversation with
Officer Rogers before the meeting even started and continued to
display them throughout the meeting until he was finally evicted
from the council chamber.
CONCLUSION
The evidence amply supports the conclusion that Howard,
“with the intent to cause public inconvenience [and] annoyance,
. . . [w]ilfully . . . disrupt[ed the] meeting of the city
council [of Roanoke on November 7, 2005, and] such disruption
prevent[ed] or interfere[d] with the orderly conduct of such
meeting.” Hence, he was properly proven guilty of disorderly
conduct under Roanoke City Code § 21-9(a)(2). Accordingly, we
will affirm the judgment of the Court of Appeals.
Affirmed.
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