Is Wichita’s disorderly conduct law unconstitutional? Kansas Supreme Court to decide

The Kansas Supreme Court is poised to consider whether a provision of Wichita’s disorderly conduct ordinance unconstitutionally limits freedoms of speech and assembly protected under the First Amendment.

On Tuesday, the court will hear an appeal brought by Gabrielle Griffie, the Project Justice ICT organizer who was sentenced to probation for her role in demonstrations demanding accountability after the May 2020 police killing of George Floyd in Minneapolis.

The city accused Griffie of planning the protest to engage in “disorderly conduct,” more specifically, engaging in “noisy conduct tending to reasonably arouse alarm, anger or resentment in others.” Griffie argued that the law in question infringes on a wide range of protected activities.

That “noisy conduct” provision was used to support her conviction on two misdemeanor counts of unlawful assembly during the protest, which took place in parts of downtown and the Delano neighborhood. A split appeals court panel upheld Griffie’s conviction last year, sustaining the lower court’s finding that protesters had no right to block lanes of traffic without a permit.

A city spokesperson declined to comment on the case, citing the pending litigation.

The ACLU of Kansas filed an amicus brief with the Kansas Supreme Court in July arguing that the disorderly conduct ordinance fails to meet the constitutional standard for regulating free speech in a public place, leaving it up to officers’ discretion when they choose to enforce it.

“The issues raised in this case are really significant because at its heart, it goes to whether law enforcement can criminalize protected conduct under the guise of labeling it quote unquote ‘noisy,’” ACLU Legal Director Sharon Brett told The Eagle.

“The vagueness in the wording of the statute and the overbreadth of the application that results from that vagueness is fairly problematic because it can be used to justify law enforcement action against individuals for something as simple and as constitutionally protected as protest,” she said.

The city has asserted that the law is not unconstitutionally broad, emphasizing in court proceedings that it prosecuted Griffie for her disorderly conduct on the day of the protest, not for the content of her speech.

Violators of the disorderly conduct ordinance are subject to a fine of up to $500 and a sentence of up to 30 days.

The Wichita protests were part of the nationwide Black Lives Matter movement that mobilized around calls for an end to police brutality and the defunding of law enforcement agencies. During the demonstrations, Wichita protesters chanted “Black Lives Matter,” “Defund the Police,” and “No Trump, No KKK, No Fascist USA.”

Griffie told The Eagle in 2021 that she believed her arrest and the arrest of other protesters by police were “a blatant scare tactic to try to keep the organizers of Project Justice ICT from marching in the streets.” Police contended at the time that people involved with Griffie’s organization “refuse to demonstrate lawfully,” in part because they did not seek a permit from the department before demonstrating.

The exact language of Wichita’s disorderly conduct ordinance matches that of a 2014 state statute.

The appeals court found that the law is not overly broad because it includes the word “reasonably” when describing what conduct could elicit alarm, anger or resentment in others, and because “the ordinance is only violated when the person ‘knows or should know’ that this conduct is prohibited.”

If the Supreme Court overrules that decision, it doesn’t necessarily mean the law will come off the books in Wichita or other jurisdictions that have adopted it. The court could, for instance, specify under what circumstances the law can and cannot be applied.

“The reach of any potential decision in this case to jurisdictions other than Wichita will depend entirely on the court’s reasoning and the scope of that reasoning,” Brett said.

The case is set to come before the Supreme Court at 10:30 a.m. Tuesday.

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