State v. A. S.
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2001 WI 48 SUPREME COURT OF WISCONSIN Case No.: 99-2317 Complete Title of Case: In the Interest of A. S., a person Under the Age of 17: State of Wisconsin, Petitioner-Appellant, v. A. S., Respondent-Respondent-Petitioner. REVIEW OF A DECISION OF THE COURT OF APPEALS 2000 WI App 94 Reported at: 234 Wis. 2d 527, 611 N.W.2d 471 (Unpublished) Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: JUSTICES: Concurred: May 16, 2001 October 3, 2000 Circuit Dane Moria Krueger ABRAHAMSON, C.J., concurs (opinion filed). BABLITCH, J., concurs (opinion filed). Dissented: Not Participating: ATTORNEYS: For the respondent-respondent-petitioner there were briefs by Stephen P. Hurley, Marcus J. Berghahn and Hurley, Burish & Milliken, S.C., Madison, and oral argument by Marcus J. Berghahn. For the petitioner-appellant the cause was argued by Jeffrey J. Kassel, assistant attorney general, with whom on the brief was James E. Doyle, attorney general. 2 2001 WI 48 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 99-2317 STATE OF WISCONSIN : IN SUPREME COURT In the Interest of A.S., a person Under the Age of 17: FILED State of Wisconsin, MAY 16, 2001 Petitioner-Appellant, Cornelia G. Clark Clerk of Supreme Court Madison, WI v. A.S., Respondent-Respondent-Petitioner. REVIEW of a decision of the Court of Appeals. Affirmed and cause remanded to the circuit court. ¶1 WILLIAM A. BABLITCH, J. A.S., a juvenile, seeks review of two determinations by the court of appeals: (1) that the alleging facts as pleaded in a delinquency petition disorderly conduct were sufficient to constitute probable cause, and (2) that A.S.'s statements were not protected speech under the First Amendment. The disorderly conduct charge was based on statements made by A.S. threatening violence toward a number of named individuals. A.S. argues that (1) speech alone cannot constitute disorderly conduct; (2) his speech is protected under the First Amendment; and (3) under the facts of this case, the No. elements of disorderly conduct are not met. speech alone in certain contexts can 99-2317 We conclude that constitute disorderly conduct; that in context A.S.'s speech is not protected by the First Amendment; and that the two elements of disorderly conduct are met here. Accordingly, we affirm. I ¶2 On April 29, 1999, the State of Wisconsin (State) filed a delinquency petition against A.S., charging him with two counts of disorderly conduct. The circuit court dismissed the second count of the petition on June 4, 1999, after concluding that the petition lacked sufficient facts to support a finding of disorderly conduct on this count. this dismissal. ¶3 the first The State does not contest Thus, our review is limited to the first count. The petition alleges the following facts in support of count. On April 27, 1999, the DeForest Police Department received a report from a juvenile girl, A.H., about several threatening comments that A.S. made on April 26, 1999, at a local youth center. At that time, A.S. was 13 years old. The petition states in relevant part as follows: A.H. reported that while [she, A.S. and another girl, M.L.] were playing a computer game, A.S. made several statements that he was going to kill everyone at the middle school, that this would occur over a 10 minute period of time, and while discussing the Colorado school shootings, A.S. stated that he was going to "do something similar." A.H. further reported that A.S. stated that he was going to "make people suffer" and that he wished to kill everyone except for [A.H.], M.L., and some other buddies. A.H. further reported that A.S. stated that he wanted to "hang" DeForest 2 No. 99-2317 Police Officer O'Neill as well as beat her at the knees. A.H. reported that A.S. stated that he would have Assistant Principal McHugh lie on the ground face down with his hands behind his back, that he would tell McHugh to count to 10, and prior to reaching 10, he would then shoot McHugh. A.H. reported that A.S. also stated that he wanted to shoot Mr. Clifford, the social studies teacher. A.H. further reported that A.S. also informed her that he would "rape" M.P., then let her go, and that A.S. appeared to be excited about this rape. (Names of juveniles replaced with initials.) According to the petition, possibly commit the rape. A.H. believed that A.S. would A.H. noted that A.S. was not laughing when he made these statements and that he spoke in a "very matter-of-fact manner." The reference to school shootings in Colorado in the petition pertains to the shooting deaths of 15 individuals at Columbine High School in Littleton, Colorado on April 20, 1999. Two caused these deaths. students who attended the high school This incident received extensive national media attention. ¶4 The petition also states that the police interviewed two other juveniles, M.L. and J.G., about A.S.'s statements at the youth center. M.L. confirmed the allegations made by A.H. concerning A.S.'s statements at the youth center. M.L. also alleged that she told A.S. that his statements scared her and that she had to ask A.S. several statements before he stopped. times to stop making the J.G. reported that he heard A.S. talking to two girls at the youth center about bringing guns to school with him. 3 No. ¶5 Finally, interviewed A.S. making them. the petition about his states statements that and 99-2317 the that he police admitted The petition provides in relevant part as follows: A.S. admitted that he stated, "I'm going to take over the school like in Colorado." A.S. admitted that he also made statements about shooting [the assistant principal] as he knelt and counted to 10. A.S admitted that he also stated he would hang Officer O'Neill by her wrists, break her legs and shoot her. A.S. further admitted that he also made statements that he would like to rape M.P. (Names of juveniles replaced with initials.) Based on these facts, the delinquency petition alleges that A.S. "engage[d] in abusive and otherwise disorderly conduct under circumstances in which such conduct tended to cause or provoke a disturbance; contrary to Section 947.01 of the Wisconsin Statutes. . . ." ¶6 granted A.S. moved to dismiss the petition. A.S.'s motion. statements needed constitute disorderly The "some court additional conduct. The circuit court concluded basis" Although that before the A.S.'s they court would believed A.S.'s comments were "repulsive and shocking," it regarded the statements as "an extreme level of adolescent 'trash talking,'" which produced no immediate disorder. failure of the listener to report The court noted that the A.S.'s conduct until the following day showed a lack of any immediate disorder and that such circumstances were "simply not of the type (charged, tense, volatile, disruptive, interfering, etc.) so as to allow probable cause to be found that these disorderly.'" 4 actions were 'otherwise No. ¶7 The decision, court of reversed the appeals, order in a one-judge of dismissal. 99-2317 unpublished The court first concluded that A.S.'s comments were not protected speech under the First Amendment. It opined that A.S. could be prosecuted because the government has an interest in protecting individuals from such threats of violence. allegations in the petition The court then found that the could support a conclusion that A.S.'s statements constituted disorderly conduct. As a result, based the on the totality of the circumstances and specific nature of A.S.'s statements, the court concluded that further proceedings on the disorderly conduct count were justified. A.S. petitioned this court for review. ¶8 The following three issues are presented for review: whether the disorderly conduct statute can be applied solely to speech; whether A.S.'s speech is protected under the First Amendment; and whether the elements of disorderly conduct are met in this case. We address each issue in turn. II ¶9 The disorderly (1999-2000),1 states as conduct statute, Wis. Stat. follows: "Whoever, a in § 947.01 public or private place, engages in violent, abusive, indecent, profane, boisterous, under unreasonably circumstances in loud which or otherwise the 1 conduct disorderly tends to conduct cause or All subsequent references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise indicated. 5 No. 99-2317 provoke a disturbance is guilty of a Class B misdemeanor." statute contains enumerated in two the elements: statute or (1) conduct similar of thereto, The the and type (2) the conduct must be engaged in under circumstances which tended to cause or provoke a disturbance. State v. Zwicker, 41 Wis. 2d 497, 515, 164 N.W.2d 512 (1969). ¶10 The delinquency petition in this case reveals that the disorderly conduct charge against A.S. is based solely on his statements to other juveniles at the youth center. A.S. argues that it is impermissible for the State to proceed in this manner because the disorderly conduct statute cannot be applied solely to his speech. Instead, A.S. contends that, consistent with prior cases that have applied the statute, the statute can only be applied to speech when the speech is accompanied by conduct. A.S. argues that, by applying the statute solely to his speech, the State has effectively transformed the disorderly conduct statute into a content-based regulation, and as a result, an examination of the constitutionality of the statute must take place in asserts light of that the this classification. application of the In particular, statute in this A.S. manner requires us to ensure that the statute is narrowly drawn to proscribe only speech outside the protections of the First Amendment. ¶11 conduct speech In essence, this challenge asks whether the disorderly statute can be is unaccompanied unreasonably loud. applied to by any regulate physical speech conduct when and is that not We acknowledge that no Wisconsin court has 6 No. 99-2317 ever examined whether the statute can be permissibly applied in this manner. This question, one of the nature and scope of the disorderly conduct statute, presents a question of law that we review de novo. ¶12 We examined the regulatory scope of conduct statute in Zwicker, 41 Wis. 2d 497. the disorderly In that case, we particularly examined whether the statute was vague and overly broad and whether its application could be extended into the area of protected speech. Id. at 507-11. statute designed was sufficiently to We concluded that the overcome an attack for vagueness and that it was not so broad that it could be applied to conduct protected by the constitution. also noted that the intertwined with statute could protected be Id. at 507-09. applied to but only freedoms," We "activities if these activities were "carried out in a manner" consistent with the disorderly conduct statute. ¶13 noted In the that the proscribing course Id. at 509. of our disorderly conduct in we specifically conduct statute is of results that terms reasonably expected therefrom. examination, the Id. at 508. aimed could at be In other words, the statute is not aimed at circumscribing the content of speech directly. Cf. City of Madison v. Baumann, 162 Wis. 2d 660, 673, 678-81, 470 N.W.2d 296 (1991) (citing Zwicker, this court upheld the constitutionality "substantially concluding speech). that analogous" the of to a the ordinance's city ordinance disorderly purpose was that was conduct statute, not regulate to However, we noted in Zwicker that, even though such 7 No. general regulatory statutes, like the disorderly 99-2317 conduct statute, are not aimed at directly controlling speech, their application may content speech. of result in the Zwicker, incidental 41 limitation Wis. 2d at 510 on the (quoting Konigsberg v. State Bar of California, 366 U.S. 36, 50 (1961)); cf. State v. Wickstrom, 118 Wis. 2d 339, 353-54, 348 N.W.2d 183 (Ct. App. 1984) (citing Zwicker, the court of appeals concluded that Wis. Stat. § 946.69(1), which prohibits falsely assuming to act as a public officer or employee, could also incidentally limit speech because the statute penalized conduct, not speech). We noted that this limitation on speech is permissible because: Constitutionally protected rights, such as freedom of speech and peaceable assembly, are not the be all and end all. They are not an absolute touchstone. The United States Constitution is not unmindful of other equally important interests such as public order. To recognize the rights of freedom of speech and peaceable assembly as absolutes would be to recognize the rule of force; the rights of other individuals and of the public would vanish. Zwicker, 41 Wis. 2d at 509. ¶14 the Indeed, in Feiner v. New York, 340 U.S. 315 (1951), United conduct States statutes, Supreme which Court are not recognized designed that to disorderly specifically proscribe pure speech, may apply to incidentally limit speech in this manner. The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts but acts and words likely to produce violence in others. No one would have the hardihood to suggest that the principle of freedom of speech sanctions 8 No. 99-2317 incitement to riot or that religious liberty connotes the privilege to exhort others to physical attack upon those belonging to another sect. When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order appears, the power of the State to prevent or punish is obvious. Feiner, 340 U.S. at 320 (quoting Cantwell v. State of Connecticut, 310 U.S. 296, 308 (1940)). ¶15 In Zwicker, we discussed certain types of speech, which by their very nature cause a breach of the peace. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, and libelous, and the insulting or "fighting" words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. Zwicker, 41 Wis. 2d at 510 (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942)). Thus, even though, as in this case, the disorderly conduct statute is being applied to speech, this application is permissible because the application directed at the content of the speech itself. is not Instead, the prosecution is directed at controlling the harmful effects of the speech. ¶16 Because the disorderly conduct statute only proscribes speech that result in is the not constitutionally statute becoming protected, overly broad. it does See In not the Interest of Douglas D., 2001 WI 47, ¶¶21, 24, ___ Wis. 2d ___, 9 No. ___ N.W.2d ___. 99-2317 As Douglas D. concludes, the disorderly conduct statute does not infringe on speech that is protected under the First Amendment because the statute sanctions only categories of speech that have been traditionally protection of the First Amendment. be prosecuted only if his regarded Id. speech as beyond the Thus, A.S.'s speech can is one of the limited categories of speech that fall outside the protections of the First Amendment. ¶17 statute We conclude that application of the disorderly conduct to speech circumstances. alone is permissible under appropriate The right of free speech is not absolute. When speech is not an essential part of any exposition of ideas, when it is utterly devoid of social value, and when it can cause or provoke a disturbance, the disorderly conduct statute can be applicable. III ¶18 A.S. also argues that, even if the disorderly conduct statute can be applied solely to his speech, application of the statute in this case is unconstitutional because his statements are protected under the First Amendment of the United States Constitution and Article I, Section 10 3 of the Wisconsin No. Constitution.2 A.S. contends that his speech is 99-2317 protected because it is mere hyperbole and that it is simply, as the trial court stated, immature "trash talking." A.S. argues that, in order for his speech to fall outside the protections of the First Amendment, it must have either incited immediate lawless action or caused an immediate physical reaction from a listener. A.S. contends that neither occurred in this instance. As a result, the petition must be dismissed because it is based on speech that is protected under the First Amendment. ¶19 This challenge determine de novo. presents a question of law that we State v. Weidner, 2000 WI 52, ¶¶6-7, 235 Wis. 2d 306, 611 N.W.2d 684; see also State v. Pallone, 2000 WI 77, ¶¶26-27, 236 Wis. 2d 162, 613 N.W.2d 568 (concluding that application of constitutional principles to a set of facts is a question of constitutional fact, which is a question of law). ¶20 444 A.S. relies primarily on Brandenburg v. Ohio, 395 U.S. (1969), protected. to support his argument that his speech is Brandenburg involved the conviction of a Ku Klux Klan leader for violating Ohio's criminal syndicalism statute. 2 "The First Amendment of the United States Constitution states that 'Congress shall make no law . . . abridging the freedom of speech . . . .' It applies to the states via the Fourteenth Amendment." State v. Janssen, 219 Wis. 2d 362, 368 n.4, 580 N.W.2d 260 (1998). Article I, Section 3 of the Wisconsin Constitution states that "[e]very person may freely speak . . . and no laws shall be passed to restrain or abridge the liberty of speech." County of Kenosha v. C & S Mgmt., Inc., 223 Wis. 2d 373, 387 n.4, 588 N.W.2d 236 (1999). Despite differences in language, Article I, Section 3 of the Wisconsin Constitution guarantees the same freedom of speech rights as the First Amendment of the United States Constitution. Id. at 388. 11 No. Id. at 444-45. political 99-2317 This statute prohibited the advocacy of violent reform and the advocate such doctrine. assembly Id. in a group to teach or The speech at issue in Brandenburg was delivered during a rally and advocated, in part, that "if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance taken." Court reversed the leader's Id. at 446. conviction on this The statute, concluding that the mere advocacy of violence was protected by the First people to Amendment imminent as long as action. the Id. advocacy at 447. did not Relying incite on this holding, A.S. contends that his statements are protected speech because they constituted mere advocacy and did not incite any immediate lawless action. ¶21 closely The State argues, however, that A.S.'s statements more resembled "true threats," which the United States Supreme Court first recognized as a class of unprotected speech in Watts v. United States, 394 U.S. 705 (1969). the conviction of an antiwar demonstrator Watts involved under statute prohibiting threats against the President. a federal Id. at 706. Watts told a crowd of demonstrators that "'[i]f they ever make me carry a rifle the first man I want to get in my sights is L.B.J.'" Id. Based on this statement, he was convicted of "'knowingly and willfully . . . [making a] threat to take the life of or to inflict bodily harm upon the President of the United States.'" the Supreme Id. at 705. Court concluded In reversing Watts' conviction, that 12 the statute required the No. Government to initially prove a "true threat." 99-2317 Id. at 708. The Court concluded that a "true threat" was not proven; instead the court regarded the statement made by Watts as mere "political hyperbole." Id. The Court reasoned that "[t]aken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners,3 we do not see how it could be interpreted otherwise." Id. The Watts Court did not provide any other guidelines for determining "true threats." ¶22 We conclude that the factual allegations in the petition more closely resemble that of a threat under Watts than of an incitement to action under Brandenburg. A.S.'s statements examination, we under apply a a "true test threat" for a Thus, we examine analysis. "true threat" In our that was adopted in our decision in State v. Perkins, 2001 WI 46, ___ Wis. 2d ___, ___ N.W.2d ___. reasonable person standard This test employs an objective and defines a "true threat" as follows: A true threat is a statement that a speaker would reasonably foresee that a listener would reasonably interpret as a serious expression of a purpose to inflict harm, as distinguished from hyperbole, jest, innocuous talk, expressions of political views or other similarly protected speech. It is not necessary that the speaker have the ability to carry out the threat. In determining whether a statement is a true threat, the totality of the circumstances must be considered. 3 At the circuit court level, it was noted that the comments made by Watts were greeted with laughter and applause. Watts v. United States, 402 F.2d 676, 682 (D.C. Cir. 1968). 13 No. Id. at ¶29. 99-2317 Consideration must be given to "the full context of the statement, including all relevant factors that might affect how the statement could reasonably be interpreted." Id. at ¶31. To this end, various factors should be considered, including: how the recipient and other listeners reacted to the alleged threat, whether the threat was conditional, whether it was communicated directly to its victim, whether the maker of the threat had made similar statements to the victim on other occasions, and whether the victim had reason to believe that the maker of the threat had a propensity to engage in violence. Id. (citation omitted). ¶23 In applying the test to A.S.'s statement, we conclude that his statements, as alleged in the petition, did constitute true threats. Under the totality of the circumstances, a reasonable speaker in the position of A.S. would foresee that reasonable listeners would interpret his statements as serious expressions of an intent to intimidate or inflict bodily harm. M.L. told him that his statements were scaring her. him several times to stop making the statements. She asked The recent events at Columbine High School, which A.S. made reference to during the course of his statements, heightened the anxiety of the listeners. A reasonable person in the position of A.S. had to his know that listeners were concerned about what had happened at Columbine and about what could happen if A.S. was determined to carry out his threats. ¶24 The alleged facts in the petition also indicate that he made the statements in a very matter of fact manner and was 14 No. not laughing at the time. 99-2317 There was nothing in the statements, nor was there anything in the context, that would indicate that A.S. was simply dissent. engaging in hyperbole, These were true threats. jest, or political A.S. had no more right to make these statements than, in the words of Holmes, does a man have the right to cry "fire" in a crowded theater. IV ¶25 Our conclusion that, based on the facts in the petition, A.S.'s statements constituted a "true threat" is alone not determinative cause for of disorderly whether the conduct. pleading Indeed, contains the State probable is also required to provide sufficient facts in the petition to support the charge of disorderly conduct. See State Wis. 2d 659, 664-66, 188 N.W.2d 449 (1971). petition in this respect, arguing that it v. Becker, 51 A.S. challenges the must be dismissed because it fails to allege sufficient facts to support a finding of disorderly conduct. ¶26 The sufficiency of a criminal complaint is a question of law, which we review de novo. State v. Smaxwell, 2000 WI App 112, ¶5, 235 Wis. 2d 230, 612 N.W.2d 756. that apply when reviewing the The same principles sufficiency of a criminal complaint apply to a petition in juvenile court proceedings. In Interest of L.A.T., 167 Wis. 2d 276, 283, 481 N.W.2d 493 (Ct. App. 1992). law, must In turn, a petition "must charge a crime under the describe the conduct alleged to constitute the offense, and must contain sufficient facts to persuade a neutral 15 No. 99-2317 and detached magistrate that the charged crime has probably been committed by the accused." State v. O'Connor, 77 Wis. 2d 261, 275-76, 252 N.W.2d 671 (1977). The petition should state what charge is alleged, who is charged, when and where the offense is alleged to have taken place, why this juvenile is being charged, and who is making the allegations. Becker, 51 Wis. 2d at 663; State 40 ex rel. Evanow v. Seraphim, Wis. 2d 223, 230, 161 N.W.2d 369 (1968). ¶27 It is not necessary that the petition establish the juvenile's guilt beyond a reasonable doubt. State v. Hoffman, 106 Wis. 2d 185, 200, 316 N.W.2d 143 (Ct. App. 1982). petition's function is informative, not adjudicative. Olson, 75 Wis. 2d 575, 583, 250 N.W.2d 12 (1977). The State v. The petition will be sufficient if the facts, by themselves or together with the reasonable inferences to which they give rise, lead a fairminded magistrate to reasonably conclude that the facts alleged justify further criminal proceedings. Becker, 51 Wis. 2d at 662-63. ¶28 We examine the facts alleged in the petition in light of the elements of the charged offense. two elements. violent, The abusive, first profane, otherwise disorderly. requires that boisterous, Disorderly conduct has the conduct unreasonably must be loud, or To satisfy this element, the petition alleges that A.S.'s statements were both abusive and otherwise disorderly. ¶29 We provided a limited definition of "abusive" language in Lane v. Collins, 29 Wis. 2d 66, 70-72, 138 N.W.2d 264 (1965). 16 No. In Lane, the defendant was arrested for violating 99-2317 a city disorderly conduct ordinance after he called a police officer a "son-of-a-bitch." Id. at 70-71. We concluded that the city ordinance was similar in import to the first element of the state disorderly conduct statute and noted: The underlying reason for disorderly conduct statutes and ordinances proscribing abusive language is that such language tends to provoke retaliatory conduct on the part of the person to whom it is addressed that amounts to breach of the peace. Calling another person a "son-of-a-bitch" under charged circumstances might well constitute abusive language which is likely to have that result. Id. at 71-72 (footnote omitted). Thus, following this language, A.S.'s statements will constitute "abusive" statements if under the circumstances they tended to provoke retaliatory conduct on the part of the person or persons to whom the statements were addressed. ¶30 The petition alleges that A.S. told two girls that he intended to kill everyone at the middle school, except the girls and some other friends, and that he would make people suffer in the process. would use A.S. then provided graphic detail on the manner he to kill or seriously harm specific individuals, including a teacher, an assistant principal, a police officer, and a classmate. were made during Colorado. under such The petition states that A.S.'s statements a discussion of recent school shootings in This context could provide charged circumstances, and circumstances, such language may tend to provoke retaliatory conduct from the persons hearing the statements. 17 As No. 99-2317 a result, the petition contains sufficient facts to establish probable cause that the language was abusive. ¶31 We also conclude that the petition contains sufficient facts to support a finding of probable cause that A.S.'s conduct was "otherwise disorderly." We have examined the "otherwise disorderly" provision in other cases, such as City of Oak Creek v. King, 148 Wis. 2d 532, 436 N.W.2d 285 (1989), and State v. Werstein, 60 Wis. 2d 668, 211 N.W.2d 437 (1973); however we have never examined this provision in a context where the conduct Nevertheless, Werstein and King consists solely of pure speech. provide guidance on how this section should be interpreted. ¶32 In particular, in Werstein, we recognized that our analysis of whether certain conduct is "otherwise disorderly" must include an examination of the circumstances surrounding the conduct. Werstein, 60 Wis. 2d at 672-73. We concluded that such an examination is necessary because certain circumstances may require criminal culpability, even in instances where the alleged disorderly Amendment. ¶33 King, Specifically, 'otherwise may be protected under the First Id. at 673. In specific conduct we noted enumerations, disorderly we that in provided "'[w]hen a additional the 'catchall' conduct' which statute, clause tends to guidance. after the proscribes 'provoke a disturbance,' this must mean conduct of a type not previously enumerated but similar thereto in having a tendency to disrupt good order and to provoke a disturbance.'" King, 148 Wis. 2d at 541 (quoting State v. Givens, 28 Wis. 2d 109, 115, 135 N.W.2d 18 No. 780 (1965)). This ejusdem generis.4 interpretation is based Givens, 28 Wis. 2d at 115. on the 99-2317 rule of In light of this analysis, we noted the conduct must be of the type that tends to "disrupt following good order." Werstein and King, King, 148 Wis. 2d conduct will at 540. fall Thus, under the "otherwise disorderly" provision if under the circumstances the conduct is of the type that tends to disrupt good order. This test requires an objective analysis of both the conduct and the circumstances. ¶34 threats expressed According to the petition, A.S. made several violent about these specific, threats identifiable in a serious individuals. manner and A.S. provided specific accounts on the violent manner in which he would carry out the threats. In addition, A.S. made these threats during a discussion of recent murders that occurred at Columbine High School in Colorado. We conclude that under these circumstances such conduct supports a finding of probable cause of "otherwise disorderly" conduct. Such violent threats are of the type that tend to disrupt good order under the circumstances because they could cause the listeners to be seriously concerned about the safety of those threatened. We conclude, therefore, that the petition is sufficient on the first element. 4 Ejusdem generis is a "canon of construction that when a general word or phrase follows a list of specific persons or things, the general word or phrase will be interpreted to include only persons or things of the same type as those listed." BLACK'S LAW DICTIONARY 535 (7th ed. 1999). 19 No. ¶35 facts We acknowledge, as the circuit court did, that some and inferences from the petition may weigh finding that the conduct was otherwise disorderly. the age and relative immaturity countervailing factor. were 99-2317 not directed of A.S. is against a For example, one possible Another is that A.S.'s alleged threats toward any person who heard the threats. However, in reviewing a motion to dismiss, we do not weigh the facts in the petition and legitimacy of the claim. make a determination as to the We only determine whether the petition establishes probable cause. ¶36 Having concluded that the petition contains sufficient facts for probable cause on the first element, we now examine the second whether element. under the This element circumstances cause or provoke a disturbance. requires A.S.'s us to statements determine tended to In making this determination, we do not examine whether a particular person was disturbed or annoyed. Givens, 28 Wis. 2d at 116. Further, it is not necessary that an actual disturbance result from the conduct of a defendant. King, 148 Wis. 2d at 545. Instead, the court only examines whether the conduct was of the type that tends to cause or provoke a disturbance under the circumstances as they then existed. ¶37 Id. We conclude that the petition was establish probable cause on the second element. sufficient to As mentioned in the analysis of the first element, the petition alleges that A.S. made violent and detailed threats about specific individuals during a discussion about the murders at Columbine 20 No. High School. 99-2317 Under these circumstances, such violent threats to kill and seriously harm others could only serve to frighten and cause serious concern to the listeners. ¶38 In addition to considering the potential effects of a defendant's conduct in disorderly conduct cases, our prior cases also indicate that the actual effects of a defendant's conduct are probative. For example, in State v. Maker, 48 Wis. 2d 612, 180 N.W.2d 707 (1970), we reviewed a defendant's conviction of disorderly conduct and specifically considered the reaction of those observing the defendant's conduct. In Maker, the defendant performed as part of a musical group in a tavern in Milwaukee, and while on stage, he wore only a supporter and body paint. Id. at 613, 617. The testimony at the defendant's trial indicated that the crowd's reaction to the defendant was not delayed; the crowd stood on tables to see the defendant and yelled loudly in reaction to the defendant's performance. at 618. In light of this reaction, we noted that "it is as a reasonable there Id. alternative existed a inference situation of that, mounting tension and predictable explosiveness. in a crowded disorder, tavern, accumulating This inference the trial court drew finding that the defendant did in fact 'cause and provoke a disturbance.'" Id. We concluded that when viewing the conduct in light of the circumstances, especially the time and place of the conduct, the defendant's actions disorderly and did cause and provoke a disturbance. 19. 21 were Id. at 618- No. ¶39 99-2317 In A.S.'s case, the reaction of the listeners and the other actual effects of A.S.'s conduct are also probative. particular, the petition indicates that M.L. was In allegedly frightened by A.S.'s statements and that she asked him several times to stop making the threats. The petition also indicates that A.H. was concerned enough to report A.S.'s conduct to the police the next day. The police then spent considerable time conducting interviews concerning A.S.'s threats. These actual effects of A.S.'s conduct support our finding that his conduct tended to cause or provoke a disturbance. ¶40 A.S. asserts that our prior case law interpreting this statute has required an immediate physical and visible reaction by those subject to the conduct, and because the petition in his case lacked any information on an immediate reaction from the listeners, the petition is insufficient. the cases upon which A.S. relies We disagree. state that an None of immediate, physical reaction is necessary for disorderly conduct to occur. See King, 148 Wis. 2d 532; Werstein, 60 Wis. 2d 668; State v. Elson, 60 Wis. 2d 54, 208 N.W.2d 363 (1973); Maker, 48 Wis. 2d 612; Lane, 29 Wis. 2d 66; Givens, 28 Wis. 2d 109. of the conduct cases recognize statute is not that on the the emphasis reaction of of Indeed, all the the disorderly listener or observer, but instead on the conduct itself in light of the circumstances. ¶41 As a result, this argument is without merit. Finally, we acknowledge that only conduct fall under the statute, specifically: 22 certain types of No. 99-2317 The statute does not imply that all conduct which tends to annoy another is disorderly conduct. Only such conduct as unreasonably offends the sense of decency or propriety of the community is included. The statute does not punish a person for conduct which might possibly offend some hypercritical individual. The design of the disorderly conduct statute is to proscribe substantial intrusions which offend the normal sensibilities of average persons or which constitute significantly abusive or disturbing demeanor in the eyes of reasonable persons. Zwicker, 41 Wis. 2d at 508. of this language and We make our determination in light conclude that the petition set forth sufficient facts to establish probable cause that A.S.'s conduct constituted disorderly conduct. By the Court. The decision of the court of appeals is affirmed, and the cause is remanded to the circuit court for further proceedings. 23 99-2317.ssa ¶42 my SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE (concurring). concurrence to In the Interest of Douglas D.: In State v. Douglas D., 2001 WI 47, ___ Wis. 2d ___, ___ N.W.2d ___, I explained why the § 947.01) should not disorderly apply conduct to the pure statute content (Wis. of Stat. speech, unaccompanied by any disorderly conduct, and why specific intent is required if the statute is to apply to a true threat. I am bound, but not bowed, by the majority opinion in Douglas D., now precedent in this state. ¶43 For the reasons set forth, I write separately. 1 No. 99-2317.wab ¶44 WILLIAM A. BABLITCH, J. (concurring). A majority of this court adopts the definition of "true threat" found in State v. Perkins, 2001 WI 46. I would adopt a more stringent test for a true threat when the crime charged, as here, does not require intent. See In the Interest of Douglas D., 2001 WI 47 at ¶¶61- 64 (Bablitch, J., concurring). I conclude, however, that, under either test, the statements made by A.S. would constitute a true threat. For this reason, I concur in this case. concurrence in Douglas D., which adopting a different test. 1 explains my I refer to my reasons for
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