Faust v. State

Johnson, J.,

filed a concurring opinion.

I am mindful of the extremely sensitive nature of constitutional issues that arise out of encounters between police officers who are acting under the color of their authority and private citizens. The Court’s decision today — that Section 38.15 was not unconstitutionally applied to appellants — is based upon our finding that the police officers’ exercise of authority was lawful. But, what if the police had set up- a skirmish line that was not lawful? Could appellants have rightfully disregarded it?

Section 38.15- does not contain language that expressly provides for a peace officer’s reasonable interpretation of his au*751thority to perform his duties without interference. However, the legislature has addressed a similar issue by placing subsection (b) in Texas Penal Code section 38.03, which, prohibits a person from resisting an arrest.1 In Gonzalez v. State, 574 S.W.2d 135, 137 (Tex.Crim.App.1978), we held that “[r]egardless of whether [Gonzalez’s] arrest was lawful or unlawful, the deputy constable was in the lawful discharge of his duty when he attempted to arrest [Gonzalez].” In State v. Mayorga, 901 S.W.2d 943, 945 (Tex.Crim.App.1995) (citing Barnett v. State, 615 S.W.2d 220, 223 (Tex.Crim.App.1981)) (quoting Ford v. State, 538 S.W.2d 633, 635 (Tex.Crim.App.1976)), we stated, “Several states have eliminated either by statute or by judicial decision the common law right to resist an unlawful arrest. This reflects a growing realization that the use of self-help to prevent an unlawful arrest presents too great a threat to the safety of individuals and society to be sanctioned. The line between an illegal and legal arrest is too fíne to be determined in a street confrontation; it is a question to be decided by the courts.”

These policy reasons seem to support a similar limitation on a citizen’s right to interfere with the reasonable exercise of police authority, regardless of the constitutionality of the purpose behind such interference. The issue of whether officers are exercising their lawful authority in enforcing a skirmish-line order should not be made by those intending to disobey that order. The societal interest in the orderly settlement of disputes between citizens and their government should arguably outweigh any individual interest in resisting a questionable police directive, particularly one as nonintrusiv'e' as' á skirmish line. And, under current statutory law, we should not- craft such an exception when none is provided.

The remedy for citizens who believe that they have been arrested in violation of their constitutional rights lies in Title 42, section 1983, of the United States Code.2 That statute provides, in pertinent part, that “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, ... subjects ... any ,.. person ... to the deprivation of any rights,' privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law ... for redress..'..” To obtain relief pursuant to Section 1983, a plaintiff must show that he was deprived of a right under the Constitution or laws of the United States by a person acting under color of state law. Resident Council of Allen Parkway Vill. v. U.S. Dep’t of Housing & Urban Dev., 980 F.2d 1043, 1050 (5th Cir.1993). The threshold question is whethér the alleged facts show that the officer’s conduct violated a constitutional right. See Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If a plaintiff shows that he had a clearly established right that was violated, the next inquiry is whether a reasonable official could have believed his conduct was lawful. See, e.g., Freeman v. Gore, 483 F.3d 404, 415 (5th Cir.2007) (a reasonable officer would have known that he could not lawfully search the plaintiffs home); see also Pritchard v. Downie, 326 F.2d 323, 325 (8th Cir.1964) (dismissing complaint against police; marchers broke through police line, thus justifying a finding that conduct of some of the marchers was riotous and that, therefore, police could arrest' them' without violating their First Amendment rights).' Only if the officer could not reasonably determine that *752his actions were lawful is there injury of a constitutional dimension.

The First Amendment protects speech and expressive conduct. Crossing a street is neither speech nor, in this case, expressive conduct. Thus it is not subject to First Amendment protections. In this ease, appellants were never prevented from crossing a street in order to go to the east, west, or north, and crossing a street in order to go south and harass parade marchers and watchers is not expressive conduct. Appellants’ right to express their views by speech and expressive conduct was at all times unfettered, even when their expression of their views was laden with foul, abusive, and offensive language. Only where they could express those views was limited, and only temporarily. They were arrested, not for speech, but for interfering with public duties by failing to obey the lawful order of a police officer and for pushing one or more officers, acts without First Amendment ramifications.

I also note that nowhere in appellants’ complaints is any mention of the First Amendment rights of the parade marchers and attendees. The old adage that says that my right to swing my fists ends at your nose applies here. The persons at whom appellants directed their invective may be shouted down by appellants, but they may not be physically abused by appellants under a claim of First Amendment rights. Given a known pattern of behavior by appellants and other members of their group, the police properly determined that, to prevent physical abuse of the marchers, the two groups must be kept a reasonable distance apart for a reasonable period of time. This principle has repeatedly been demonstrated and approved over decades as police formed skirmish lines to separate Klan members from civil-rights marchers in Montgomery, Alabama, Neo-Nazis from gatherings of Jewish holocaust survivors in Skokie, Illinois, and members of the Wistaria Baptist Church from funeral services for fallen American warriors in a number of cities. I join the opinion of the Court.

CONCURRING OPINION

Yeary, J.,

filed a concurring opinion.

Police have a difficult enough job without the added burden of individual citizens physically interfering with them in the performance of their duties. According to the F.B.I. Uniform Crime Reporting Program publication entitled Law Enforcement Officers Killed and Assaulted, in the year 2014, 96 officers were killed in the line of duty (51 of those were “feloniously killed,” and 45 were “accidentally killed”), and 48,315 officers were assaulted while performing their duties. Fed. Bureau of Investigation, 2014 Law Enforoement Officers Killed & Assaulted (2014), https:// www.fbi.gov/about-us/cjis/ucr/leoka/2014/ home. It is no surprise to find, therefore, that Texas has made it a crime to interfere with an officer who is performing his duty. Tex. Penal Code § 38.15(a)(1) (Interference with Public Duties).

Appellants in these cases have been charged with and convicted of doing exactly that: interfering with officers who were performing their duties. Appellants have complained on appeal, in turn, that it was not they who interfered with the officers, but the officers who were interfering with them in the exercise of their constitutional right to speech protected by the First Amendment to the United States Constitution. The court of appeals agreed and reversed their convictions — actually rendering judgments of acquittal. Faust & Marroquin v. State, Nos. 02-13-00222-CR & 02-13-00223, 2014 WL 2611186, at *4 (Tex.App.-Ft. Worth June 12, 2014) (mem. op., not designated for publication). We, then, granted the State’s petitions for discretionary review to determine whether *753the court of appeals’s decision was correct.1

My colleague, Judge Newell, raises an important question — one that I am frankly drawn to and which I believe may quite possibly be correct — that the court of appeals should never have reached the issue that was raised on appeal in this case. He concludes that Appellants never obtained an adverse ruling — a necessary systemic requirement to an appellant’s right to bring up an issue on appeal — on the question addressed by the court of appeals. See Tex.R.App. P. 33.1(a)(2). He concludes that Appellants obtained an adverse ruling only on their request for an acquittal, and based on my reading of the record, I think he might be correct. But I am not certain. And the issue is not one that is so easily decided that I am prepared to resolve it without requesting briefs from the parties. Moreover, that is not the issue upon which this Court granted review. Consequently, I believe the more prudent course for this Court now is to focus on and resolve the issues stated in the grounds for review which we agreed to address.

The majority opinion, as well as the dissent by Presiding Judge Keller, attempt to do just that. They each address the issues on which this Court granted review, albeit in different ways. The Majority and Presiding Judge Keller’s opinions debate, as did the court of appeals, whether Appellants’ First Amendment rights were violated. Presiding Judge Keller’s opinion is concerned about the purpose of the police skirmish line and argues that it was formed to prevent Appellants from “expressing] their views because their words are hateful.” Dissenting Opinion of Presiding Judge Keller at 1. The Majority, also, is concerned with the constitutionality of the skirmish line, appearing to me to conclude that the legality of that police action should determine the outcome in these cases. Majority Opinion at 15-19. The Majority holds, nevertheless, “that the temporary skirmish line was a lawful means to effect the police purpose of preserving the peace.... ” Majority Opinion at 19.2

*754But. I see this case differently than both Presiding Judge Keller and the Majority. Correctly framed, the issue in this case, it seems to me, is not whether Appellants had a First Amendment right to. speak out against the Gay Pride Parade, its organizers and participants, and its message. Of course they did. The issue in this .cáse is also not whether the skirmish line established by the police had the incidental effect of delaying Appellants’ access to a location from which, they claim, they wished to exercise their First Amendment rights. The issue, I believe, is whether Appellants were arrested and charged with a crime for exercising their First Amendment rights or whether they were arrested and charged with a crime for interfering with peace officers who were performing their duty.

Appellants were charged with the state criminal offense of interfering with the public duties of a peace officer. Tex, Penal Code § 38.15(a)(1) (Interference with Public Duties). That statute provides, in relevant part, that “[a] person commits an offense if the person with criminal negligence interrupts, disrupts, impedes, or otherwise interferes with: (1) a peace officer while the peace officer is performing a duty or exercising authority imposed or granted by law.” Id. The charging instruments alleged that each defendant did then and there,

WITH CRIMINAL NEGLIGENCE INTERRUPT, DISRUPT, IMPEDE OR INTERFERE WITH ... A PEACE OFFICER, WHO WAS PERFORMING A LAWFUL DUTY, TO-WIT: CONTROLLING THE CROWD AND MAINTAINING THE PEACE AT A GAY PARADE.... 3

The statute provides a defense to prosecution where “the interruption, disruption, impediment, or interference alleged consisted of speech only.” Tex. Penal Code § 38.15(a)(1).4 'But' this case does not seem to me to turn on the question of the applicability of the “speech only” defense provided for in the statute. No one seems to be arguing that by “cross[ing] a street after being ordered not to cross said street ....”, or by “attempting to cross a line or row of police officers by attempting to push through said line of police officers,” Appellants engaged in conduct that consisted of “speech only.” Instead, Appellants complain in this Court that the con*755duct of the officers in forming the skirmish line in the first instance Violated their right to free speech guaranteed by the First Amendment. They seem to claim that they were privileged to disregard the authority of the police officers who were in their way on that day and in that location because their interest in communicating their message from the place that they wished to communicate it outweighed their duty to refrain fiom interfering with peace officers who were discharging their duty to keep the peace.

This Court has previously determined, in the context of a prosecution for resisting arrest, that “it is no defense to prosecution that the arrest or search was unlawful.” State v. Mayorga, 901 S.W.2d 943, 945 (Tex.Crim.App.1995). In that ease, this Court adhered to its reasoning in previous cases in which we stated that “the use of self-help to prevent an unlawful arrest presents too great a threat to the safety of individuals and society to be sanctioned,” and that “[t]he line between an illegal and legal arrest is too fine to be determined in a street confrontation; it is a question to be decided by the courts.” Id. (quoting Barnett v. State, 615 S.W.2d 220, 223 (Tex.Crim.App.1981)). Í am drawn to the wisdom and the logic of a rule prohibiting interference with officers even when citizens believe the officers are wrong. It seems to me that a citizen’s dispute with an officer should ordinarily be settled in court, not on the street.

Interestingly, I have found no cases in which the United States Supreme Court has squarely considered whether a statute prohibiting resisting arrest or search is applied constitutionally when the officers’ actions violate a citizen’s constitutional rights. I am similarly unaware of any cases, by either this Court or the United States Supreme Court, that have squarely addressed that same issue in the context of a statute prohibiting interference with the public- duties of an officer. But in my opinion,'to say ■■anything-other than that interference with an officer (other than by speech only) is a crime' regardless of whether the officer is violating a person’s rights, except in very' limited circum-stánces justifying the use of reasonable force for'self-defense only, is to invite citizens to seek Vindication of their rights on the streets against police officers who may reasonábly believe, although they may be mistaken, ‘that they are using lawful means to effect their duties. We should n'ot invite that kind of street justice.

There is no question that a requirement-of submission to police authority on the street might mean that, in some cases, a perfect vindication of a deprived right can never be had. Some might argue, for example, that if they lose the one opportunity that was available to them to protest at a particular parade, in a particular location, at a particular time of day, no amount of money damages — and even the firing of the peace officer who. violated their rights — can restore that lost opportunity. I am troubled by possible deprivations like that one. But ■ the problem I see with authorizing individuals to seek -their own street justice is that it comes at a terrible price — an increased risk of harm, both to -the person seeking vindication of their rights and to others present who may attempt to come to the aid of either the citizen or the officer. If such a situation escalates, people can get hurt,- or injured, or even killed, and the Constitution cannot defend the right of a dead person to speak. Such a person can only be heard then by the living in memory, or in books or other writings, or through other recorded media.

Even the United States Supreme Court has recognized that police are authorized to use physical coercion in order to effect their duties. See Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d *756443 (1989) (“Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory-stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it”). That is certainly true in Texas. Our law authorizes officers to effect their duties using “all lawful means.” Tex.Code Crim. Proc. art. 2.13(a). Our law explicitly authorizes the use of force by peace officers when they reasonably believe it is immediately necessary to make or assist in making an arrest or search or to prevent an escape after arrest, as long as they reasonably believe the arrest or search is lawful. Tex. Penal Code § 9.51(a). It also authorizes, in limited circumstances, the use by an officer of deadly force. Tex. Penal Code § 9.51(c).

I certainly do not want officers to violate the constitutional or statutory rights of our citizens. Nevertheless, I am convinced that rights that are lost in community-based citizen/police encounters — between citizens who believe their rights are being violated and officers who reasonably believe the means they have chosen to effect their duties are lawful and constitutional— are outweighed by the danger of encouraging lawless disregard for an officer’s authority on the street. While rights lost may never be vindicated fully in the sense that a right lost in a moment in time may never be restored, those rights can be somewhat imperfectly vindicated by subsequent court actions. It is better to encourage citizens to settle their disputes with police in a courtroom than to encourage them to settle them on the street, with the potential for violence — especially when the violence could be deadly.

Under my reading of the Interference with Public Duties of an Officer statute, a person is not authorized to interfere with an officer even if the person believes their rights are being violated by the officer— and this is so regardless of whether the person’s assessment of the propriety of the officer’s chosen means of effecting his duty might later be vindicated by a court. The statute simply prohibits interfering with an officer while the officer is performing his duties. The statute provides a defense if the interference consists of “speech only.” Tex, Penal Code § 38.15(d). Interference beyond “speech only” is proscribed. Period. A dispute about the means an officer uses to carry out his duties “is a question to be settled by the courts.” Barnett, 615 S.W.2d at 223.5

The Majority and Presiding Judge Keller’s opinions suggest that citizens have the right to interfere with peace officers if the citizens believe that their rights are being violated by the means chosen by the officers to effect their duties. Their opinions suggest that if the citizen’s belief is one that would later be vindicated by the courts, the citizen is justified in interfering with the officer’s performance of his duties. It is not hard to imagine that such interference might get someone harmed or even killed. That might hurt the citizens whose rights were violated by the police, and it might harm the officer too, who might only later learn that he has harmed a citizen physically when it was he, the officer, who provoked the citizen’s interference due to a mistaken but reasonable belief that his conduct was justified.

I respectfully concur only in the judgment of the court.

. 42 U.S.C. § 1983: "Civil Action For Deprivation of Rights,” ,

.We granted the following grounds for review:

1. Did the Second Court of Appeals err in implicitly holding that citizens can use the First Amendment to the United States Constitution as a shield to disobey lawful orders of law enforcement and forcibly cross a police skirmish line set up at a Gay Pride Parade in Fort Worth, Texas, when those measures by law enforcement are taken to preserve the peace and the safety of the public?
2. Notwithstanding that police action may infringe on a citizen’s First Amendment rights, does a citizen have a right to disobey the orders of a police officer, forcibly breach a skirmish line, and interfere with the officer’s duties?
3. Did the Second Court of Appeals err in failing to conduct a proper "as applied” First Amendment analysis when it concluded that the Fort Worth Police Department’s action in constructing a skirmish line at a Gay Pride Parade violated the First Amendment to the United States Constitution?
4.Did the Second Court of Appeals err in concluding that the skirmish line set up by the police department during the Fort Worth Gay Pride Parade was not a reasonable action as to “time, place, or manner” under the First Amendment to the United States Constitution?

. The Majority seems to take it as a foregone conclusion that the Interfering with Public Duties statute itself imposes, as an element, a requirement of proof that the public duties ■ being interfered with are being carried out by lawful and constitutional means. Majority Opinion at 11. The statute provides that the officer interfered with must be “performing a duty or exercising authority imposed or grant-edbylaw.” Tex. Penal Code § 38.15(a)(1). It is not at all as clear to me, as it seems to be to Judge Newell, that the phrase "imposed or granted by law” modifies both “authority” and “duty” in the statute. Dissenting Opinion of Judge Newell at 3. Discerning whether the words "authority” and “duty” are both modified by the phrase “imposed or granted by law” is no simple grammatical endeavor. *754But even if both are modified by that phrase, it is beyond dispute that the officers in this •case had a duty "imposed .. .■ by law” to preserve the peace at the parade. See e.g., Tex.Code Crim. Proc. art. 2.13(a) ("It is the duty of every peace officer to preserve the peace within the officer’s jurisdiction.”). Indeed that is what gave them cause to be present when Appellants • violated their skirmish line. But as Judge Newell also notices — and I agree with him about this — there is a proper distinction to be made between a duty imposed by law on an officer and the ' "means” the officer uses to effect that duty. ' Id. ("To effect this purpose [the duty to preserve the peace], the officer shall use all lawful means."). Given that understanding of the language of the statute, I do not believe the statute calls for an acquittal or dismissal, even when it is shown that the reason a person interfered with an officer was because the officer was first interfering with the person’s constitutional rights.

. The charging instrument in Faust’s case alleged further that he committed the offense: “BY ATTEMPTING TO CROSS A STREET AFTER BEING ORDERED NOT TO CROSS SAID STREET....” The charging instrument in Marroquin’s case alleged further that he committed the offense: "BY ATTEMPTING TO CROSS A-LINE OR ROW OF POLICE OFFICERS BY ATTEMPTING ■ TO PUSH THROUGH SAID LINE OF POLICE OFFICERS,...”

. The United States Supreme Court has held that a similar ordinance, without such a defense, was unconstitutional. City of Houston, Texas v. Hill, 482 U.S. 451, 467, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987).

. That is not to say that a person has no right to resist an officer no matter what the circumstances. Certainly there is a limited right to self-defense against an officer "if before the actor offers any resistance, the peace officer [] uses or attempts to use more force than necessary to make the arrest or search; and [ ] when and to the degree the actor believes the force is immediately necessary to protect himself against the peace officer’s ... use or attempted use of greater force than necessary.” Tex. Penal Code § 9.31(c). Thankfully, that issue is not raised in this case.