This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).





State of Minnesota,



Nathan Webb Clay,



Filed September 14, 1999


Harten, Judge


Winona County District Court

File No. T4-98-3041


John M. Stuart, State Public Defender, Susan K. Maki, Assistant Public Defender, 2829 University Avenue S.E., Suite 600, Minneapolis, MN 55414 (for appellant)

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Richard F. Blahnik, Winona County Attorney, Bruce A. Nelson, Assistant County Attorney, 206 Norwest Bank Building, Fourth and Main Streets, P.O. Box 167, Winona, MN 55987-0167 (for respondent)

Considered and decided by Short, Presiding Judge, Crippen, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant challenges his disorderly conduct conviction under Minn. Stat. § 609.72, subd. 1 (3) (1998), claiming that his language did not rise to the level of disorderly conduct because it did not provoke violent retaliation by the officers who arrested him. We conclude that appellant’s speech contained actionable "fighting words" and affirm the district court.


After midnight, on May 10, 1998, the Winona Police Department received a report of a fight. An officer responded and saw one of the suspects, appellant Nathan Webb Clay, walking down the street with his hand bleeding. When the officer asked him what happened, appellant said that he had been jumped by four men but had "kicked their asses." Appellant then became agitated and called the officer a "white racist motherf**ker." When a second officer arrived on the scene, appellant also accused the second officer of racism and told the officers that he wished their mothers would die. It was Mother’s Day weekend, and one of the officers had recently lost his father. During the encounter, appellant was swinging his arms in a threatening manner. The first officer testified that although he was concerned for his safety and feared that appellant might strike out, none of the swings came close to being a blow.

The officers arrested appellant when he began to walk away from them. Both officers testified that despite appellant’s behavior, they did not consider retaliation. After objectively evaluating appellant’s actions and words, the district court found him guilty of disorderly conduct. This appeal followed.


1. Standard of Review

In a bench trial, we give the district court’s findings the same weight as a jury verdict and will not set them aside unless they are clearly erroneous. Walker v. State, 394 N.W.2d 192, 196 (Minn. App. 1986). We review questions of law de novo. State v. Murphy, 545 N.W.2d 909, 914 (Minn. 1996). Under the applicable standard of review, we view the evidence in a light most favorable to the state but independently determine as a matter of law whether appellant’s language falls outside of the protection of the First Amendment. In re M.A.H., 572 N.W.2d 752, 757 (Minn. App. 1997).

2. Disorderly Conduct

Appellant challenges the district court’s finding that he engaged in disorderly conduct. Minn. Stat. § 609.72 provides:

Whoever does any of the following in a public or private place * * *, knowing, or having reasonable grounds to know that it will, or will tend to, alarm, anger or disturb others or provoke an assault or breach of the peace, is guilty of disorderly conduct, which is a misdemeanor:

* * * *

(3) Engages in offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others.

Minn. Stat. § 609.72, subd. 1 (1998).

The disorderly conduct statute prohibits only "fighting words;" other speech is protected under the First Amendment of the United States Constitution. In re S.L.J., 263 N.W.2d 412, 418-419 (Minn. 1978). Charges under Minn. Stat. § 609.72, subd. 1(3), must therefore be closely scrutinized and should be not be used to punish rudeness or to undertake social engineering. M.A.H., 572 N.W.2d at 757 (citations omitted).

To determine that actions and words amount to disorderly conduct, the district court must find that the speech was either

(1) personal insults whose utterance under the circumstances would be inherently likely to provoke retaliatory violence by the police at whom the insult was directed or (2) intended to and likely to produce imminent lawless action by the surrounding [persons].

Id. at 758 (citations omitted). A defendant’s words must be viewed in the light of surrounding circumstances and in connection with his or her physical movements and conduct. Id. at 757. These circumstances may involve an explicit verbal or physical threat of violence where victims are placed in fear of imminent physical harm. Whether or not there is actual retaliation is relevant but not determinative. Id. Police officers are expected to endure more abusive language than others, but disorderly conduct may be found when officers are subjected to "indignities that go far beyond what any other citizen might reasonably be expected to endure." Id. at 758 (citations omitted). A defendant’s language must be "directed at and intended to be about a person, as opposed to merely expressing a controversial political opinion in a vulgar way." Id. (quotations and citations omitted).

In the instant case, the issue is whether appellant’s speech was such as would likely provoke retaliatory violence by police. There were no surrounding individuals to incite to lawless action. The district court found that

[l]ooking at this case from the perspective of the victims, they came across a man who has * * * been in a fight * * * still bleeding * * * who is flailing his arms about and swearing at them loudly and invoking irrational comments. I think it’s entirely credible that those officers would be in fear of imminent physical harm. Indeed, [one officer] feared that he would be assaulted[.]

I also find that these officers were subjected to indignities beyond what they or other citizens might be expected to endure. These kinds of comments * * * in a threatening manner * * * can reasonably be expected to invoke retaliation of a violent sort.

Because the police officers did not retaliate, we must decide whether appellant’s speech nevertheless may be categorized as "fighting words." Generally, the absence of the target’s actual retaliation does not prevent an insult from being "fighting words."

The fact that the addressee and object of the fighting words exercised responsible and mature forbearance in not retaliating cannot be relied upon by defendant to escape responsibility for his own actions. A defendant can be convicted for disorderly conduct based on the utterance of fighting words without the prosecution having to prove that violence actually resulted. The focus is properly on the nature of the words and the circumstances in which they were spoken rather than on the actual response. The actual response of the addressee or object of the words is relevant, but not determinative, of the issue of whether the utterances meet the fighting words test.

City of Little Falls v. Witucki, 295 N.W.2d 243, 246 (Minn. 1980) (upholding conviction of disorderly conduct where victim did not retaliate); see also Cohen v. California, 403 U.S. 15, 20, 91 S.Ct. 1780, 1785 (1971) (fighting words are "personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction"); Chaplinsky v. New Hampshire, 315 U.S. 569, 573, 62 S. Ct. 766, 770 (1942) (upholding statute where, among other things, state supreme court determined that whether fighting words existed was an objective, not a subjective, standard).

The district court found that despite there being no retaliation, the appellant’s words were sufficiently egregious to provoke retaliatory police violence. Appellant continuously called police "racist motherf**kers," and said that he wished their mothers would die on Mother’s Day weekend.

Moreover, the M.A.H. factors support the district court. The district court found that at least one officer was placed in fear of imminent physical harm by appellant, who was flailing his arms and cursing loudly; the officer testified that he personally felt threatened as well. See State v. White, 292 N.W.2d 16, 17 (Minn. 1980) (affirming a conviction for disorderly conduct where the defendant cursed and raised his fists towards police). The district court found that the officers were subjected to "indignities that go far beyond what any other citizen might reasonably be expected to endure" because appellant in addition to cursing them, expressed the wish that their mothers would die. M.A.H., 572 N.W.2d at 758 (quotations omitted); see State v. Ackerman, 380 N.W.2d 922, 926 (Minn. App. 1986) (affirming a conviction for disorderly conduct where the defendant yelled obscenities and threatened lives). Finally, appellant’s language was directed at the officers and was not merely the expression of a controversial opinion; while calling the officers "white racist motherf**kers" may be protected, wishing death upon an officer’s mother is not. M.A.H., 572 N.W.2d at 758 (language must be directed at and about a specific person).

We agree with the district court that in this context appellant’s speech constituted "fighting words" that, when viewed objectively, would likely provoke violent retaliation by the police officers. Accordingly, appellant was lawfully convicted of disorderly conduct.