State of Minnesota, Respondent,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A24-1585

State of Minnesota,
Respondent,

vs.

Lee McFadin Miller,
Appellant.

Filed August 4, 2025
Reversed
Johnson, Judge

Crow Wing County District Court
File No. 18-CR-24-796

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Donald F. Ryan, Crow Wing County Attorney, Quinn Hoffman, Assistant County
Attorney, Brainerd, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Sean Michael McGuire, Assistant
Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Smith, Tracy M. , Presiding Judge; Worke, Judge; and
Johnson, Judge.
NONPRECEDENTIAL OPINION
JOHNSON, Judge
A Crow Wing County jury found Lee McFadin Miller guilty of disorderly conduct
based on evidence that he made crude, offensive, and disrespectful statements to the
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Crosslake police chief. We conclude that Miller’s statements are protected by the Free
Speech Clause of the First Amendment. Therefore, we reverse the conviction.
FACTS
This prosecution arose from an interaction between Miller and the police chief of
the city of Crosslake, Jacob Maier, during the afternoon of March 5, 2024. The interaction
occurred at the Crosslake police station and lasted less than three minutes. The entire
interaction was recorded by Chief Maier’s body-worn camera, and the videorecording was
introduced into evidence. Our recitation of the relevant facts is based almost entirely on
our review of that videorecording and a transcript of the videorecording that was admitted
as a court exhibit.
Miller walked into the lobby of the police station and said that he would like to
speak to Chief Maier. Chief Maier activated his body-worn camera and walked from his
office to the lobby to meet Miller. Miller began the conversation by saying, “Til the end
of this week, if you don’t release my truck down there at the towing company, [and] I’ve
got to go to $12,000, then I’m suing the city here for it.” Chief Maier told Miller to remove
his hands from his pockets so that his hands were visible. Miller refused to comply. Chief
Maier pointed to the door and told Miller to leave. Miller did not immediately do so. Chief
Maier grabbed Miller’s coat and gestured toward the door.
Miller eventually walked out the doorway and continued walking away on a
sidewalk. Miller occasionally stopped, turned around, and made various statements to
Chief Maier. While Miller was in gradual, intermittent retreat, Chief Maier slowly
followed him and made responsive statements but stayed approximately five to twenty feet
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away from Miller. The two men continued to exchange comments. Miller directed
numerous insults at Chief Maier, while Chief Maier told Miller to “get” or “leave” or he
would be arrested.
During this interaction, Miller made the following statements to Chief Maier:
The best day of my life was when they exterminated two of
you f---ers a week ago. . . . Arrest me, arrest me, arrest me.
C’mon! Arrest me! Arrest me! . . . Suck my dick. Suck my
dick again. . . . I hope they exterminate you. . . .1 Take that
badge off and come out in the woods. . . . I’d whoop your ass
so bad you wouldn’t wake up. . . . Let’s do it. . . . You don’t
know nothing ’ about your f---ing job. . . . Suck my dick
again. . . . Touch me. Touch me. . . . You can’t tie your f---in’
shoes, you f---in, moron. . . . You’re the poster child for
abortion. . . . Put your hands in your f---in’ pockets you queer
mother f---er and play with yourself.

After two minutes and 43 seconds of interaction, Chief Maier told Miller that he was under
arrest. Miller immediately placed his hands behind his back, and Chief Maier handcuffed
him.
On the same day, the state charged Miller with disorderly conduct, in violation of
Minn. Stat. § 609.72, subd. 1(3) (2022). The case was tried to a jury on one day in August
2024. Miller represented himself at trial, having discharged his attorney. The state called
Chief Maier as its sole witness. His testimony was brief. To prove what Miller said, the
state relied solely on the videorecording created by Chief Maier’s body-worn camera,
which captured the entirety of the interaction between Miller and Chief Maier, including

1The transcript of the videorecording, which was prepared by the prosecutor and
admitted as a court exhibit, describes this statement as “I’d like to exterminate you.” In
Miller’s principal brief, he asserts that he said, “I hope they exterminate you.” After careful
review of the videorecording, we agree with Miller’s interpretation.
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the arrest. Miller testified briefly in a narrative fashion. The district court instructed the
jury on the definition of “fighting words.” The jury found Miller guilty. At sentencing,
the district court ordered Miller to serve 90 days in jail but stayed the sentence for one year.
Miller appeals.
DECISION
With the assistance of appellate counsel, Miller makes two arguments for reversal.
First, he argues that his conviction must be reversed because it rests solely on speech that
is constitutionally protected. Second, he argues that the district court erred by discharging
his trial attorney without ensuring that Miller made a valid waiver of his constitutional right
to counsel.
We begin with Miller’s first argument. Miller argues that his conviction of
disorderly conduct is constitutionally invalid because it rests on evidence of statements that
are protected by the Free Speech Clause of the First Amendment to the United States
Constitution. In response, the state argues that Miller’s statements are not constitutionally
protected because they are “fighting words.” The parties agree that, if Miller’s statements
are constitutionally protected, there is no valid evidence to support the conviction.
The relevant clause of the applicable statute provides that a person commits the
crime of disorderly conduct if he or she “engages . . . in offensive, obscene, or abusive
language tending reasonably to arouse alarm, anger, or resentment in others” and does so
“in a public or private place, . . . knowing, or having reasonable grounds to know that it
will, or will tend to, alarm, anger or disturb others or provoke an assault or breach of the
peace.” Minn. Stat. § 609.72, subd. 1, 1(3) (alterations added).
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It is well established that the disorderly conduct statute may not always be enforced
as written. In In re Welfare of S.L.J., 263 N.W.2d 412 (Minn. 1978), the supreme court
held that section 609.72, subdivision 1(3), as enacted, “clearly contemplates punishment
for speech that is protected under the First and Fourteenth Amendments.” Id. at 419. To
ensure that criminal defendants are not convicted of a crime for engaging in speech that is
protected by the First Amendment, the supreme court narrowly construed the statute to
criminalize speech only if it consists of “fighting words,” which are not constitutionally
protected. Id. at 416-19. The supreme court explained that “fighting words” are “those
‘personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter
of common knowledge, inherently likely to provoke violent reaction,’” id. at 418 (quoting
Cohen v. California, 403 U.S. 15, 20 (1971)) ; words that “‘by their very utterance inflict
injury or tend to incite an immediate breach of the peace,’” id. (quoting Lewis v. City of
New Orleans, 415 U.S. 130, 132 (1974)); or words that “‘hav[e] an immediate tendency to
provoke retaliatory violence or tumultuous conduct by those to whom such words are
addressed,’” id. at 419 (quoting State v. Hipp, 213 N.W.2d 610, 614 (Minn. 1973)). We
apply a de novo standard of review to the question whether a defendant’s speech constitutes
“fighting words.” In re Welfare of M.A.H., 572 N.W.2d 752, 757 (Minn. App. 1997).
Whether a defendant’s speech constitutes fighting words depends on “the nature of
the words and the circumstances in which they were spoken.” City of Little Falls v.
Witucki, 295 N.W.2d 243, 246 (Minn. 1980 ). Miller contends that, in the particular
circumstances of this case, his statements to Chief Maier were not likely to “incite or
provoke a violent response or immediate breach of the peace.” He emphasizes the fact that
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his statements were made to a police officer. He cites a Supreme Court opinion recognizing
that “the First Amendment protects a significant amount of verbal criticism and challenge
directed at police officers.” City of Houston v. Hill, 482 U.S. 451, 461 (1987). The
Supreme Court commented in that opinion that “‘a properly trained officer may reasonably
be expected to exercise a higher degree of restraint than the average citizen, and thus be
less likely to respond belligerently to fighting words.’” Id. at 462 (quoting Lewis, 415 U.S.
at 135 (1974) (Powell, J., concurring)) (other quotation omitted).
The Minnesota Supreme Court and this court have considered several appeals in
which a defendant was convicted of disorderly conduct based on statements made to police
officers. Some of those convictions were affirmed. For example, in State v. White, 292
N.W.2d 16 (Minn. 1980), police officers saw a man engage in reckless driving and then
enter a bar. Id. at 17. The officers followed the man into the bar and asked him to step
outside to talk about his driving. Id. The man “us[ed] vulgar language, put up his clenched
fists and threatened to knock the officers down if they tried to take him outside.” Id. The
supreme court affirmed the conviction. Id. at 18.
As another example, in State v. Lynch, 392 N.W.2d 700 (Minn. App. 1986),
undercover police officers conducted a traffic stop of a scooter driver. Id. at 701-02. The
defendant emerged from her nearby home with ten to fifteen other persons, walked toward
the officers, called them “motherf---ing pigs,” and criticized the officers for making the
traffic stop. Id. at 702. She “continued swearing” as the crowd grew to 50 to 100 persons
or more, and her behavior “had the effect of inciting the crowd” and “draw[ing] more
people to the scene,” which caused the officers to call for back-up. Id. This court affirmed
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the conviction, reasoning that the defendant engaged in fighting words because “[s]everal
persons in the crowd were brandishing clubs, and . . . appellant’s language had the effect
of inciting that crowd.” Id. at 704-05.
In other cases of disorderly conduct convictions based on statements made to police
officers, the convictions were reversed. For example, in S.L.J., two police officers
apprehended some teenage boys and questioned two teenage girls. 263 N.W.2d at 415. As
the girls were walking away, 14-year-old S.L.J. said to the officers, “f--- you pigs.” Id.
When she made this statement, the girls were between 15 and 30 feet from the officers,
who were sitting in a squad car. Id. The supreme court reversed the disorderly conduct
delinquency adjudication because the juvenile’s words were “spoken in retreat from more
than 15 feet away rather than eye-to-eye” and “there was no reasonable likelihood that they
would tend to incite an immediate breach of the peace or to provoke violent reaction by an
ordinary, reasonable person.” Id. at 420.
Similarly, in M.A.H., police officers were attempting to clear the scene of a fight
between juveniles when a 17-year-old boy shouted at an officer, “ We can f ---ing be out
here if we want to be! . . . What the f--- are you gonna do about it? We can be here if we
f---in’ want to!” 572 N.W.2d at 754-55. Another juvenile, a 15-year-old boy, who was 10
to 15 feet from squad cars, yelled, “This is bulls---! This whole thing is f---ed up! We can
do anything we f---in’ want to do!” Id. at 755. Both juveniles were adjudicated delinquent
for disorderly conduct, and this court reversed both adjudications. Id. at 755-56, 760. With
respect to the first juvenile, this court reasoned that neither the police officers nor other
juveniles “reacted violently” and that, given the circumstances, the juvenile’s words were
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not likely to provoke a violent reaction. Id. at 758-59. In addition, this court reasoned that
“the officers testified that [the first juvenile’s] comments did not place them in fear of
imminent harm” and found “it unlikely that a reasonable officer, armed and with backup,
would feel such fear under the circumstances.” Id. at 759. With respect to the second
juvenile, this court reasoned that, given the circumstances, his words were unlikely to
provoke the other children to violence. Id.
With this caselaw in mind, we consider the facts and circumstances of this case.
Miller made a series of statements to Chief Maier that were filled with profanity, vulgarity,
and hostility. But the evidence does not show that the statements were “likely to provoke
violent reaction” or “incite an immediate breach of the peace.” See S.L.J., 263 N.W.2d at
418 (quotations omitted). Miller made most of the offensive comments after he had exited
the police station and was walking away. Nothing about Miller’ s physical posture or
gestures indicates a likelihood that he would escalate the verbal barrage into a physical
conflict. Similarly, nothing indicates a need for Chief Maier to have initiated a physical
response. Even Miller’s statement about going “into the woods” was not provocative or
threatening, as demonstrated by the fact that Chief Maier instinctively responded with mild
laughter or chuckles. To be sure, Miller sought to offend, insult, and annoy Chief Maier.
But, to reiterate, “the First Amendment protects a significant amount of verbal criticism
and challenge directed at police officers.” Hill, 482 U.S. at 461. When viewed in context,
it is apparent that Miller’s words did not go beyond constitutional limits.
We acknowledge that, when given their literal meaning, Miller’s words appear to
be provocative and threatening. But, to reiterate, we must consider both “the nature of the
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words and the circumstances in which they were spoken.” Witucki , 295 N.W.2d at 246
(emphasis added). Miller’s statements were admitted into evidence in only one form: the
videorecording created by Chief Maier’s body-worn camera. Notably, the state did not
elicit any testimony from Chief Maier that might have been relevant to the question
whether Miller’s statements were fighting words, even though the district court instructed
the jury on the definition of that term. Thus, our review of the evidence necessarily is
visual and auditory. We can ascertain Chief Maier’s perceptions of Miller’s statements
only by assessing his visible and audible responses, which are relevant, though not
determinative. See M.A.H., 572 N.W.2d at 757-58. To his credit, he did not give any
indication that he was provoked to violence, as one would expect from “a properly trained
officer” with “a higher degree of restraint than the average citizen.” See Hill, 482 U.S. at
462.
Thus, based on the nature of Miller’s words and the surrounding circumstances, as
reflected in the videorecording of the incident, we conclude that the statements for which
Miller was convicted are not “fighting words” and, thus, are protected by the First
Amendment. Therefore, we reverse Miller’s conviction. In light of that conclusion with
respect to Miller’s first argument, we need not consider his second argument.
Reversed.