By Howard Fischer
Capitol Media Services
PHOENIX -- The Arizona Court of Appeals ruled Tuesday that people can't be convicted in Arizona of disorderly conduct if they didn't actually disturb the peace of those who police say were their victims.
The case stems from a 2018 incident involving Bob Prosise and Levi Guffey, a Forest Service supervisor, in a parking lot of the Chino Valley Ranger Station.
According to court records, Prosise was upset because the Forest Service had closed a road as a fire prevention measure. That led to a confrontation in the rear parking lot where Guffey later testified that Prosise was "irate,'' used profanity and spoke in an "elevated voice.''
The whole incident lasted about 40 seconds. Guffey said his supervisor told him to contact the Chino Valley Police Department as a matter of "due diligence.''
Prosise was convicted in municipal court on charges of both disorderly conduct and acting in a threatening or intimidating manner. That latter charge was thrown out by a superior court judge, leaving the disorderly conduct count.
Appellate Judge David Gass, writing for the three-judge panel, said that charge, too, had to go.
He pointed out that the charge of disorderly conduct applies if a person intends to disturb the peace engages in "fighting, violent or seriously disruptive behavior.''
Gass said the Arizona Supreme Court has made it clear that if someone is charged with disturbing the peace of an individual "the state must prove that the individual's peace was indeed disturbed.''
"Further, such conduct does not become criminal under our current statutes unless it disturbs the peace of (ITALICS) someone (ROMAN) by (ITALICS) seriously disrupting something,'' (ROMAN) the judge noted.
None of that, Gass wrote, applies here.
"Guffey was not, in fact, disturbed by Prosie's angry words,'' the judge said.
He pointed out that Guffey is a Forest Service supervisor with 14 years experience who testified he "deals with irate individuals quite often.'' And Gass said Guffey testified that Prosise did not threaten him and that his comments were "vague'' rather than personal.
Beyond that, the judge said that what Prosise did was not "seriously disruptive,'' as the station was closed at the time and its operations were not impaired.
Gass was quick to say that the court is not excusing what Prosise did.
"To the extent Prosise had a legitimate concern about road closures, his method of expressing it cannot be condoned and should not be disregarded,'' he wrote. And the judge said that the same conduct, if directed at someone else who might have interpreted it differently, might merit criminal charges.
But in this case, Gass said, there was no basis for the charge because Guffey was not assaulted, did not feel threatened, was not provoked to physically retaliate, and did not feel the need to protect himself.