Reversal: Disorderly conduct conviction violated Indiana Constitution

A woman convicted of disorderly conduct as police intervened in a neighbor’s domestic dispute secured a reversal Wednesday, with the Indiana Court of Appeals finding the woman’s right to free political expression under the state Constitution had been violated.

The case of Lorraine McCoy v. State of Indiana, 20A-CR-723, began Aug. 10, 2019, when Kendallville Police Sgt. Nathaniel Stahl was dispatched to a residence for a domestic dispute involving Shawn Fritz, who had invited Shay Bell to live with him a few days earlier but now wanted her to leave.

Fritz went to Lorraine McCoy’s residence to ask her for the name and address of the landlord, which she provided and which Fritz shared with Stahl and other officers who arrived on the scene. Senior Judge John Sharpnack describes the events that ensued and were captured on police body cameras:

“McCoy then came out of her residence and began asking questions, advising Fritz and the officers as to the legal implications of the situation, and arguing with the officers about how to handle the situation with Bell. Sergeant Stahl told McCoy, ‘This over here does not involve you.’ McCoy argued with the Sergeant, stating that she became involved when Fritz knocked on her door for the landlord information. The sergeant repeated that the situation did not involve her. McCoy then marched up to Sergeant Stahl, looked at the tag on his uniform to obtain his name, and began to walk away. As she did so, the sergeant instructed her, ‘You stay over there.’ … McCoy stopped, turned around, and began walking back toward Sergeant Stahl and yelled, ‘No! You don’t need to talk to me disrespectfully!’ … Sergeant Stahl replied, ‘Ma’am, you’ve got a disorderly conduct warning. Go to your residence.’ McCoy remained where she was and yelled at Sergeant Stahl: ‘Really?! Really?! Cuz I . . . I . . . I . . . my right . . .’

“Sergeant Stahl pointed to McCoy’s residence, possibly grazing her arm with his finger as he pointed, and ordered, ‘Ma’am, go to your residence.’ McCoy screamed, ‘Get your hands off of me!’ The sergeant replied, ‘I’m going to tell you one more time …,’ but he was interrupted by McCoy screaming, ‘No! My right. Free speech!’ At that point, Sergeant Stahl put McCoy in handcuffs,” Sharpnack wrote.

McCoy was charged with misdemeanor counts of Class B misdemeanor disorderly conduct and Class A misdemeanor resisting law enforcement. Noble Superior Judge Steven C. Hagen conducted a bench trial at which he found McCoy guilty of disorderly conduct and not guilty of resisting. She was sentenced to 180 days, suspended to four days and no probation.

The appeals panel reversed “on the ground that the evidence is insufficient to support a conviction for disorderly conduct that would be consistent with article 1, section 9 of the Indiana Constitution,” Sharpnack wrote.  That section provides, “No law shall be passed, restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever: but for the abuse of that right, every person shall be responsible.”

The panel found McCoy had met both prongs of the test under Whittington v. State, 669 N.E.2d 1363, 1367 (Ind. 1996). She showed that the state restricted her political expression and that she had not abused the right to speak.

The COA noted that evidence of mere annoyance or inconvenience is not sufficient grounds to abridge a person’s rights under Article 1, Section 9. The state was required under Whittington to show “that McCoy’s speech inflicted particularized harm analogous to tortious injury on readily identifiable private interests.”

“The only evidence presented by the State was the testimony of Officer Pegan, Sergeant Stahl, and Officer Kline, all of whom testified that McCoy was ‘yelling.’ However, Deputy Polly testified that he was ‘fifty feet or more’ from McCoy, and he could not clearly hear what she was saying. … In its brief to this Court, the State notes that, in the officers’ body camera footage, McCoy’s neighbors can be seen ‘entering and exiting their house,’ and children can be seen ‘playing across the street.’ The fact that neighbors were outside their homes is not sufficient to show that their peace and tranquility were infringed upon. Indeed, on cross examination Officer Kline acknowledged that neighbors were packing things into a vehicle and that children across the street were hollering at the officers to get them to wave and that none of these activities changed throughout the course of the afternoon,” Sharpnack wrote.

“Thus, the evidence showed that McCoy’s neighbors were undisturbed by her extremely brief interaction with Sergeant Stahl and that they went on with their business as usual. The State failed to show that McCoy’s speech infringed upon the peace and tranquility of the neighbors or that any nearby resident was caused actual discomfort,” the panel found in reversing McCoy’s disorderly conduct conviction.