From City of Las Cruces v. Flores (N.M. Ct. App.), decided Mar. 11 but only posted on Westlaw this week:

{Because we conclude that the officers were without reasonable suspicion to detain Defendant, we need not address Defendant's argument that his conduct was protected by the First Amendment.}

The officers ran after Defendant and once in Defendant's yard, pushed Defendant to his knees, tased him, and pepper sprayed his face. Defendant was handcuffed and arrested. Following a bench trial, Defendant was convicted of two counts of resisting, evading or obstructing an officer and one count of concealing identity. Defendant now appeals….

The officers repeatedly demanded Defendant provide his identification. Defendant responded, "I don't need to identify myself to you, because I have not committed [a] crime." One of the officers replied, "The crime is disorderly conduct." According to the officers, Defendant was obstreperous with them, denied their repeated request to produce identification, and ultimately started to walk away into his yard.

Following his conversation with the neighbor, the officer approached Defendant, who was standing with another officer, and asked him for identification. Defendant turned his phone toward the approaching officer, held up his other hand in a gesture to stop and told the officer "step back." As the officer continued to approach, Defendant said "stay away from me." The officer told Defendant "if you keep yelling and you keep screaming, and you keep causing people to come outside, you will be arrested for disorderly conduct."

At some point, Defendant's neighbor came outside and spoke with one officer while the other officer remained with Defendant. The neighbor stated that he came outside because he heard his dogs barking, not due to Defendant's yelling. The neighbor testified that he saw Defendant holding up his cell phone like he was recording the officers and verbally criticizing the police about his belief that police waste taxpayer money. The neighbor told the officer that Defendant was not bothering him but said that Defendant was "always yelling." He further testified that Defendant was talking in a "high tone of voice" and in an excited, but not agitated, manner. There were no complaints from other neighbors.

The evidence presented below is undisputed. The trial testimony established that two officers were in Defendant's neighborhood investigating a report of a stolen car. Defendant, apparently believing the officers were attempting to catch and ticket traffic violators just to generate revenue, recorded the officers on his cell phone and yelled that they were wasting taxpayer dollars and should go collect revenue elsewhere.

[A.] Reasonable Suspicion as an Element of the Charges

Like its state statute counterpart, one of the essential elements of the LCMC crime for evading an officer is that "the person committing the act of … evasion has knowledge that the officer is attempting to apprehend or arrest him[.]" Our Supreme Court in State v. Gutierrez, stated that the definition of "apprehend" in Section 30-22-1(B) means a "seizure[ ] in the name of the law" and equated such an apprehension "to include a situation in which an officer is attempting to briefly detain a person for questioning based on reasonable suspicion." Hence, our Supreme Court concluded that the presence of reasonable suspicion is crucial to a determination of sufficiency of the evidence for evading and eluding an officer because if the detaining officer lacked reasonable suspicion then he also lacked the legal authority to detain the defendant.

Further, like the state statute, one of the elements of concealing identity pursuant to Las Cruces, N.M., Code of Ordinances, art. I, Section 19-4 requires proof that the officer is acting "in a legal performance of his duty." In Ortiz, this Court recognized well-established law that "[a]n officer detaining a suspect for the purpose of requiring him to identify himself, has conducted a seizure subject to the requirements of the Fourth Amendment." Reasonable suspicion is required for such a seizure. Consequently, we held that absent reasonable suspicion to detain, the seizure of the defendant was unlawful, and the prosecution failed to prove that the officer was in the legal performance of her duty…..

[B.] The Officers' Lacked Reasonable Suspicion to Detain Defendant …

The district court—apparently without regard to the neighbor's testimony—concluded that the officers had reasonable suspicion to investigate disorderly conduct based on the fact that Defendant loudly criticized police. Disorderly conduct consists of: "[e]ngaging in violent, abusive, profane, boisterous, unreasonably loud or otherwise disorderly conduct which tends to disturb the peace[.]"Conduct is not criminal, or suspicious, simply because it is boisterous or unreasonably loud; the conduct must also tend to disturb the peace.

This is particularly true when the conduct at issue is comprised of words alone. New Mexico courts have criminalized only limited classes of speech: "the lewd and obscene, the profane, the 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."

The public's sensibilities are tough enough that, typically, the act of yelling alone does not shatter public order or threaten to do so. Although the Legislature has not specifically defined "conduct that tends to disturb the peace," our Supreme Court has implicitly defined it as "a disturbance of public order by an act of violence, or by an act likely to produce violence, or which, by causing consternation and alarm, disturbs the peace and quiet of the community." Our Supreme Court has instructed that we construe the disorderly conduct statute narrowly, and "unless the acts [that are alleged] fall clearly within the statute, they are not disorderly.

In its ruling that Defendant's conduct toward the officers provided reasonable suspicion to investigate disorderly conduct, the district court explained:

"[Y]ou're not allowed to be so boisterous and so loud to police officers, and accusing, and threatening—I think that was the disorderly conduct. When police officers approach us and want to investigate something, it's "yes" or "no, sir", or somebody can end up dead. … When a police officer approaches you and asks you for ID, you give it to them. That's the way that goes. Now if you're just standing on the street, I guess, you know and doing absolutely nothing, which is not your situation, I suppose you legally have a right not to give your ID, but then you probably are making a judgment call that you need to let a judge make."

Contrary to the district court's reasoning, our Supreme Court and this Court have applied the rule that in most instances "arguing with a police officer, even when using profane and insulting words, will not be enough to constitute disorderly conduct, unless the words are coupled with threatening behavior." Merely yelling obscenities at an officer, without more, does not create reasonable suspicion to investigate or probable cause to arrest for disorderly conduct. {Although the district judge implied that Defendant's conduct was accusing and threatening, our review of the record and lapel tape is devoid of evidence that Defendant by word or action made any threats to the officers and neither party has asserted on appeal that Defendant's criticisms of the officers were threatening.}

"Police officers, by nature of their training, are generally expected to have a higher tolerance for offensive conduct and language." … "We are not indifferent to the officers in the case." These officers play an invaluable role in serving and protecting our community, and unfortunately, they are often subjected, as they were here, to ill-advised behavior. "However, it is because of their degree of skill, training, and experience that we rely on officers," not only to complete their duties, but "not to react to verbal provocation, at the risk of escalating a situation rife with conflict."

Without evidence of anything more than Defendant's loud remarks and cell phone recording of the officers, all of which occurred in their presence, the testimony did not give rise to an objectively reasonable suspicion that Defendant had committed or was committing the crime of disorderly conduct…. "New Mexico is among the states that holds police officers to a higher standard of tolerance for abuse or offensive language…."

We next address the City's argument that, even in the absence of reasonable suspicion to investigate disorderly conduct, Defendant's repeated refusal to produce identification or, following this refusal, to respond to officer commands not to walk away justified Defendant's detention and arrest. While the City is correct that officers "do not need justification to approach a person and ask that person questions," this is true only so long as the person remains free to leave and is not required to answer their questions. "[A] person has the constitutional right to walk away from an officer who lacks reasonable suspicion and simply wants to question the person[.]"A defendant who flees a seizure that is unsupported by reasonable suspicion cannot be punished for exercising his right to end the encounter and walk away. In sum, the officers did not have reasonable suspicion to detain Defendant and demand his identification….

Lastly, to the extent the City argues that it was reasonable for the officers to detain defendant to investigate his yelling and whether he was disturbing the tranquility of the community, we disagree. The evidence does not support a conclusion that it was reasonable for the officers to investigate Defendant's conduct as tending to cause "consternation and alarm."

Our review of the record does not reveal, nor does the City point to, any threatening behavior or violent conduct accompanying Defendant's verbal criticisms and cell phone recording of the officers. Additionally, the record does not reflect that Defendant's behavior toward the officers tended to have any effect on others at all, let alone that it rose to the level of tending to cause "alarm" amongst his neighbors.

While the testimony established that a neighbor came out of his home during the encounter between officers and Defendant, Defendant was not the reason that the neighbor came outside. The officers' testimony did not articulate any objective facts which would establish that Defendant's conduct tended to disturb the peace. Indeed, the record is void of any evidence that Defendant's yelling and cell-phone recording annoyed or bothered anyone other than the officers….

[T]here must be evidence that those who heard a defendant's remarks were negatively affected by or reacted to the statements in order to show that remarks were likely to incite listeners to breach the peace because "[t]o hold otherwise would be to allow police routinely to add disorderly conduct charges to any underlying charges because it is not uncommon for those being arrested to become belligerent and for crowds to gather at the sight of an arrest[.]" … Without more, Defendant's loud criticism of the police and his act of recording them on his cell phone were not enough to provide an objectively reasonable suspicion to investigate Defendant for disturbing the tranquility of the community.

Absent reasonable suspicion establishing the officers' legal authority to detain Defendant, there was insufficient evidence to support Defendant's convictions for evading arrest and concealing identity. Accordingly, we do not address the remaining elements of the charges.