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Inside the Criminal Case: Can a defendant be convicted for being ‘annoying?’

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Inside CC Bell GaerteIn 2012, the General Assembly amended Indiana’s public intoxication statute to provide, in part, that a person was guilty of public intoxication if the individual is intoxicated “in a public place” and “annoys … another person.” Indiana Code §7.1-5-1-3(a)(4). But what constitutes “annoying?”

The Supreme Court of the United States once noted that “[c]onduct that annoys some people does not annoy others.” Coates v. Cincinnati, 402 U.S. 611, 614 (1971). Sometimes the wives of the authors of this article find us annoying when we deem ourselves to be objectively hilarious. If publicly intoxicated, can a police officer’s annoyance really result in the criminal conviction of another? The recent case of Morgan v. State addresses this issue.

Rodregus Morgan was thought to be drunk before he fell asleep at an Indianapolis bus shelter on Ohio Street. Morgan v. State, No. 49A02-1304-CR-386, 2014 Ind. App. LEXIS 51 at *2-3 (Ind. Ct. App. Feb. 13, 2013). Morgan and his brother were the only two occupants of the shelter, and his brother was yelling at Morgan in order to wake him up. Id. at *2. The commotion attracted the attention of Officer Garner, an off-duty police officer working private security for the bus company, but who was nonetheless dressed in an Indianapolis Metropolitan Police Department uniform. Id. at *1-2.

Officer Garner approached Morgan and noticed that Morgan was exhibiting signs of being intoxicated. Id. at *3. Garner also noted that Morgan was “unsteady on his feet” and his “behavior was annoying.” Officer Garner therefore arrested Morgan for public intoxication. Id. After being handcuffed, Morgan continued to yell at Officer Garner asking him if “he was ‘happy with [himself] for locking a brother up’” and insisted that he would kick Officer Garner’s “ass just like he did in high school.” Id. at *3-4. However, Garner and Morgan had not, in fact, been classmates. Id.

The public intoxication statute, as applied to Morgan, makes it a Class B misdemeanor if a person is intoxicated while in public and “harasses, annoys or alarms another person.” Indiana Code §7.1-5-1-3(a)(4). On appeal, Morgan argued that the term “annoy” is unconstitutionally vague in that there is no objective definition of what conduct is proscribed and that the term allows for arbitrary or discriminatory enforcement. Morgan at *6. In response, the state argued that “a person of ordinary intelligence would know that lying drunk in a public bus shelter … would annoy others” especially in conjunction with that person’s refusal to move when asked to do so. Id. at *9.

Personally, the authors of this article have walked past this particular bus shelter on numerous occasions and have never been annoyed by the conduct of others. However, we have never asked anyone to move from the bus shelter. Furthermore, no one has ever declared that we have “ordinary intelligence.”

On review, the Court of Appeals found that the statute was unconstitutionally vague. Id. at *15. The appellate court cited three reasons for this determination: First, the statute does not require a defendant’s specific intent to annoy. Id. Second, it does not use an objective standard to assess whether a defendant’s conduct was annoying. Id. Third, the statute did not mandate that the defendant be warned that his behavior was annoying. Id. As a consequence, the statute allows for arbitrary and discriminatory enforcement “because the illegality of any conduct – no matter how trivial or how substantial – is based solely on the subjective feelings of a particular person at any given time.” Id. Therefore, according to the Court of Appeals, a Hoosier may not be convicted under the subjective standard of “annoying.”•

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James J. Bell and K. Michael Gaerte are attorneys with Bingham Greenebaum Doll LLP. They assist lawyers and judges with professional liability and legal ethics issues. They also practice in criminal defense and are regular speakers on criminal defense and ethics topics. They can be reached at jbell@bgdlegal.com or mgaerte@bgdlegal.com. The opinions expressed are those of the authors.

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  1. Someone off their meds? C'mon John, it is called the politics of Empire. Get with the program, will ya? How can we build one world under secularist ideals without breaking a few eggs? Of course, once it is fully built, is the American public who will feel the deadly grip of the velvet glove. One cannot lay down with dogs without getting fleas. The cup of wrath is nearly full, John Smith, nearly full. Oops, there I go, almost sounding as alarmist as Smith. Guess he and I both need to listen to this again: https://www.youtube.com/watch?v=CRnQ65J02XA

  2. Charles Rice was one of the greatest of the so-called great generation in America. I was privileged to count him among my mentors. He stood firm for Christ and Christ's Church in the Spirit of Thomas More, always quick to be a good servant of the King, but always God's first. I had Rice come speak to 700 in Fort Wayne as Obama took office. Rice was concerned that this rise of aggressive secularism and militant Islam were dual threats to Christendom,er, please forgive, I meant to say "Western Civilization". RIP Charlie. You are safe at home.

  3. It's a big fat black mark against the US that they radicalized a lot of these Afghan jihadis in the 80s to fight the soviets and then when they predictably got around to biting the hand that fed them, the US had to invade their homelands, install a bunch of corrupt drug kingpins and kleptocrats, take these guys and torture the hell out of them. Why for example did the US have to sodomize them? Dubya said "they hate us for our freedoms!" Here, try some of that freedom whether you like it or not!!! Now they got even more reasons to hate us-- lets just keep bombing the crap out of their populations, installing more puppet regimes, arming one faction against another, etc etc etc.... the US is becoming a monster. No wonder they hate us. Here's my modest recommendation. How about we follow "Just War" theory in the future. St Augustine had it right. How about we treat these obvious prisoners of war according to the Geneva convention instead of torturing them in sadistic and perverted ways.

  4. As usual, John is "spot-on." The subtle but poignant points he makes are numerous and warrant reflection by mediators and users. Oh but were it so simple.

  5. ACLU. Way to step up against the police state. I see a lot of things from the ACLU I don't like but this one is a gold star in its column.... instead of fighting it the authorities should apologize and back off.

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