In response to a call reporting a suspicious black man wearing high heels, police arrested Allen Galbreath for disorderly conduct.  Galbreath lived across the street and was in the park to exercise in women’s shoes while carrying a purse. The state subsequently dropped disorderly conduct charges.  Galbreath sued, claiming that his arrest occurred because his gender “expressions do not conform to traditional gender stereotypes or mainstream tastes.”

Galbreath claimed this violated his constitutional rights.  He sought an injunction against further enforcement of the disorderly conduct statute, claiming that it was unconstitutionally void for vagueness and that it was overbroad facially and as applied, criminalizing expressive conduct protected by the First Amendment.  The city moved for summary judgment.  The court found that the police had probably cause to arrest Galbreath and that the accompanying search of his purse was lawful.

The court expressly rejected his claim that the disorderly conduct statute was unconstitutional.

Municipal Code § 30-81 provides in part:

A person is guilty of disorderly conduct, a Class “a” offense, when such person:

(b) causes public alarm without justification.

The statue has two requirements: the person must engage in conduct that causes apprehension by the public and there must not be an apparent explanation or justification for the behavior. The court concluded that the statute defined the offense with sufficient definiteness that it did not violate Galbreath’s due process rights. The court noted that “(o)rdinary people can understand what conduct is prohibited and the offense sets forth minimal guidelines to govern law enforcement and prevent arbitrary enforcement.

“For no apparent reason, (Galbreath) was behaving in a public place in an alarming or disconcerting manner. When given the opportunity to explain, (Galbreath) replied “my morning exercises” and proceeded immediately with conduct which a reasonable person might have viewed as threatening, or at least as something other than an ordinary “morning exercise.”  (Although) (his) arrest, under the circumstances as we now know them to be, was perhaps unfortunate, it did not violate his due process rights,” the court concluded.

The court thus granted the city’s motion for summary judgment.

News report.

Translaw summary of prior holding.

Galbreath