State v. Jones4/14/2000
instruction. See Padilla, 1997-NMSC-022, 7. The Supreme Court's goal in Padilla-to separate felonious conduct from lesser offenses-would be undermined if these terms are not included in an instruction to the jury. Without language that focuses upon the context of the act and the nature of the injury, the jury is not instructed, as it must be under Padilla, to distinguish mere rude, insolent, or angry conduct that could be punished as a misdemeanor, from truly felonious conduct that poses a threat or a challenge that is proportional in consequence to the punishment extracted.
Language focusing on context may be critical because, as Padilla demonstrated, a contextual analysis is necessary to determine what constitutes a meaningful challenge to authority or an actual threat to safety. Although the behavior in that case involved squirting baby oil on corrections officers as they subdued an inmate, the opinion noted that the atmosphere inside the jail, the context of the battery, had already become unruly to the point of rebellion. See id. 8. Under these circumstances, the Court held that "a jury could find beyond a reasonable doubt that [the defendant's] acts exacerbated a serious situation in the jail and created unnecessary danger for or jeopardized the authority of the detention officers." Id. Thus, the jury must be directed to look to the surrounding circumstances to determine whether a battery is merely offensive in the ordinary civil sense, or whether it rises to the level of "unnecessary danger" envisioned by the definition of unlawfulness in Padilla, 1997-NMSC-022, 8.
By restricting the class of conduct punishable as a felony, Padilla reflects the accepted legal principle that police are trained to tolerate more than the average citizen is expected to endure. See City of Alamogordo v. Ohlrich, 95 N.M. 725, 726, 625 P.2d 1242, 1243 (Ct. App. 1981). A useful analogy can be drawn to the use of "fighting words," which are not protected as speech under the First Amendment to the United States Constitution. See Chaplinsky v. New Hampshire, 315 U.S. 568, 573 (1942). Fighting words are not protected because their utterance would cause an average person to react violently. See State v. James M., 111 N.M. 473, 476, 806 P.2d 1063, 1066 (Ct. App. 1990). In New Mexico, the use of fighting words is punishable when directed towards a fellow citizen. See id. at 475, 806 P.2d at 1065 (yelling obscenities at another citizen was likely to incite a breach of the peace). However, if similar language is directed towards the police, we expect greater restraint and self-control. See Ohlrich, 95 N.M. at 726, 625 P.2d at 1244 (dismissing disorderly conduct conviction of defendant who yelled obscenities at police officer). Our legislature has not made the use of profanity towards peace officers a crime, much less a felony, although some would argue that condoning this behavior is to "foster disrespect for law and order." Id. at 727, 625 P.2d at 1244 (Hernandez, J., dissenting). We recently declined an invitation to lower our expectations of police officers, reiterating that they are "`expected to have a higher tolerance for offensive conduct.'" State v. Hawkins, 1999-NMCA-126, 11, 128 N.M. 245, 991 P.2d 989 (quoting James M., 111 N.M. at 477, 806 P.2d at 1067). We presume the legislature is aware that police are held to a higher standard when it comes to defining unlawful conduct punishable as a felony. See State v. Cleve, 1999-NMSC-017, 14, 127 N.M. 240, 980 P.2d 23; Padilla, 1997-NMSC-022, 6. And we believe our Supreme Court's construction of Section 30-22-24, as expressed in Padilla, reflects this "higher tolerance" expected of police officers with respect to minor,
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