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It’s a fact—the defendant’s hair looked “marvelous”!

State v. Keith J. Eggum, 2016AP2036-CR, District 2, 11/8/17 (one-judge decision; ineligible for publication); case activity (including briefs)

And that factual finding dooms Eggum’s claim that his “noticeably disheveled” appearance made his trial unfair. Eggum’s complaint about the presence of extra officers for courtroom security fares no better. And topping it all off, Eggum’s First Amendment defense to the disorderly conduct charge makes no headway, either.

Let’s start with the First Amendment issue. Eggum was charged with DC after he loudly and profanely objected to police orders to vacate the beer tent at The Rumble by the River after the event was closed early due to rain and thunderstorms. (¶¶4, 7-11). He moved to dismiss the complaint on the ground that the charge was based on his speech alone and that his speech was protected because it consisted of statements of protest of police action and didn’t constitute fighting words or a true threat. That motion failed, so he asked for the DC jury instruction to be modified to advise the jury he could be convicted only if his words or expressive conduct constituted fighting words or true threats. That request was denied, too, but his lawyer was allowed to argue in closing that Eggum shouldn’t be convicted for verbally challenging or opposing a police decision. (¶¶4, 12-13, 28).

The court of appeals rejects Eggum’s claims that the complaint and trial evidence show he was prosecuted and convicted for his speech alone:

¶18     …. Pure speech is generally not susceptible to criminal prosecution; penalizing conduct, however, is another matter. See State v. Douglas D., 2001 WI 47, ¶16, 243 Wis. 2d 204, 626 N.W.2d 725. “It is not ‘an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.’” State v. Robins, 2002 WI 65, ¶42, 253 Wis. 2d 298, 646 N.W.2d 287. Conduct that tends to cause a disturbance, even if interwoven with protected speech, is itself not subject to First Amendment protection. See State v. Zwicker, 41 Wis. 2d 497, 509, 164 N.W.2d 512 (1969). ….

¶19     Thus, punishing disorderly “conduct” is constitutionally permissible even when speech is involved. ….

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¶24     Turning to the complaint, it alleged that Eggum cursed and shouted at the police, refused to leave the beer tent despite being ordered to do so, and had to be “forcibly removed from the tent.” All of this boisterous conduct, according to the complaint, was in the midst of a weather situation thought to be dangerous enough to ask patrons to leave the premises. Considering the surrounding circumstances, the circuit court correctly denied the motion to dismiss. Refusing to leave in a potentially dangerous situation despite a lawful order to do so while screaming and cursing at the officers moves well beyond protected protest; it is conduct that tends to provoke a disturbance.

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¶27     Consistent with the allegations in the complaint, the evidence at trial established the following facts. The police and the event organizers decided to end the Rumble by the River prematurely due to safety concerns—a decision they had every right to make. As there was no private security, the task of convincing the revelers to leave—and forcing them to do so if they refused—fell to the police. Although it was not a popular decision, most complied without incident. Eggum, however, did not. According to [Police Chief] Gaglione, Eggum was ordered to leave and refused to do so in a loud, boisterous, and profanity-laden manner, testimony Eggum does not dispute in any meaningful way on appeal. Eggum escalated his already inappropriate conduct by poking Gaglione in the chest. Patrons the police were attempting to convince to leave stopped to watch instead of vacating the area. Eggum’s conduct also drew two other officers away from their duties to assist Gaglione in his attempt to get Eggum to leave peaceably, actions which delayed getting other festival-goers to safety. His refusal to leave eventually required the officers to forcibly remove Eggum from the beer tent. ….

It follows that there was no reason to modify the standard jury instruction, as it correctly stated the law. (¶36). A similar instruction was approved in Zwicker, 41 Wis. 2d at 514, which also involved a situation of conduct interwoven with speech. (¶¶31-34). And contrary to Eggum’s argument, neither Douglas D. nor State v. A.S., 2001 WI 48, 243 Wis. 3d 173, 626 N.W.2d 712, held that § 947.01 is overbroad; nor did they overrule or cast doubt on Zwicker. (¶¶29, 35).

Finally, the court rejects Eggum’s assertion he didn’t get a fair trial because: 1) the court wouldn’t allow him to get a haircut before trial, causing him to look “noticeably disheveled” before the jury; and 2) and the court permitted additional officers in the courtroom for security reasons, making him seem dangerous.

When Eggum objected to proceeding to trial without a haircut, the trial court found—and memorialized with photographs taken in court—that there was nothing “inappropriate” about Eggum’s hair that would affect the jurors. “It’s not wild. It’s not thrown about in disarray or anything like that. It’s a decent head of hair.” (¶6). The court reaffirmed this finding when it denied Eggum’s postconviction motion, saying Eggum’s haircut and appearance were presentable, even “marvelous.” (¶¶14, 40). The court of appeals’ judge took a look at the photographs, too, and holds the circuit court’s factual findings about Eggum’s appearance are not clearly erroneous. (¶40).

As to the extra officers, present in response to “security issues” occasioned by Eggum’s conduct in jail, Eggum concedes the case law allowed for this “greater show of force,” Jones v. State, 66 Wis. 2d 105, 113-14, 223 N.W.2d 889 (1974) (no prejudice where court admonished jury to make no inference from prison guard presence); State v. Clifton, 150 Wis. 2d 673, 682-83, 443 N.W.2d 26 (Ct. App. 1989), and his argument that the case law should be reevaluated and overturned is for the supreme court, not the court of appeals. (¶41).

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