The decision over whether former Nisswa Mayor Fred Heidmann will be convicted of disorderly conduct is now in the hands of a judge.

Ninth Judicial Judge Kristine DeMay Thursday, May 20, took the case under advisement.

Heidmann’s case stems from an Aug. 29, 2020, incident where police were conducting a traffic stop of a third party along Highway 371 south of Nisswa as part of the Toward Zero Deaths program. Heidmann, who was at his business along Highway 371, began videotaping the traffic stop and then walked across the four-lane highway toward the vehicle that was pulled over.

According to police reports, Heidmann was advised he could videotape the incident but was told to stand back away from the highway to be safe. Heidmann asked what the officers were doing and why they stopped the vehicle and words were exchanged. The incident ended with Heidmann being cited for two misdemeanors — obstruction of the legal process and disorderly conduct. The obstruction of the legal process citation was dismissed in December.

In the case, filed in Crow Wing County District Court in Brainerd, Heidmann is representing himself and Assistant County Attorney Michael D. Hagley with St. Louis County is representing the state. Last month, testimony was heard and DeMay gave the defense and the prosecution a timeline to submit their final arguments, which ended Wednesday. DeMay now will review the final arguments and make her decision.

Prosecutor's final argument

The state prosecution May 14 submitted a 12-page argument and the defense May 17 submitted an 88-page argument, of which 77 pages were from the court reporter’s transcript of the April 21 evidentiary hearing, where two police officers testified.

Hagley said Heidmann’s speech was disorderly and the two officers did not react violently to his speech. The argument stated a person can be convicted for disorderly conduct based on utterance of “fighting words” without the prosecution having to prove violence actually resulted. Focus, he said, is properly on the nature of the words and circumstances in which they were spoken rather than on actual response.

Hagley argued Heidmann’s speech directed at police officers does not allow him to escape responsibility.

“Although police officers expect to deal with abusive behavior on a regular basis, disorderly conduct may be found where officers are ‘subjected to indignities that go far beyond what any other citizen might reasonably be expected to endure,’” the document stated. Hagley referred to a Minnesota Supreme Court case that ruled “the fact that the vile and abusive language was directed toward a policeman and was not overheard by members of the public does not prevent it from being a violation.”

Hagley argued Heidmann’s speech when combined with his conduct and physical movements and “measured as a package against the controlling statute” meets the required elements of disorderly conduct.

Concerning Heidmann’s other arguments, Hagley stated Heidmann seeks to dismiss the charge due to procedural defects in the state's Dec. 28, 2020, complaint and for lack of probable cause that a crime was committed. Hagley argued the court should deny Heidmann’s motions because his procedural argument lacks merit; his speech and conduct together constitute disorderly conduct; and there is sufficient evidence before the court to justify denial of a motion for directed verdict.

Hagley said the state’s complaint filed against Heidmann was timely as it was filed within two weeks of the December hearing; the procedural defects in the filing don’t place the state out of compliance with the court order; and no charging document will be dismissed, nor will the trial, judgment or proceedings be affected by reason of a defect that does not harm Heidmann’s substantial rights, the court document stated.

Hagley stated Heidmann was advised of the charges against him sufficiently enough for him to craft at least eight motions seeking the dismissal of those charges. He said Heidmann claims his substantial rights were harmed, but the former mayor failed to articulate any harm beyond the time and cost normally associated with litigation.

Heidmann’s argument, Hagley wrote, boils down to a disagreement with the facts alleged in the state’s probable cause statement. Hagley said Heidmann appears to believe the state continuing to prosecute the case after he voiced his disagreement constitutes an “intentional fraud on the court.” Hagley stated statute makes it a criminal offense to knowingly offer false information into evidence as a genuine document. Hagley said Heidmann’s argument to support that is not in the record before the court.

Hagley argued even if the court determines the state’s filings were untimely or the defects incurable, the proper remedy is dismissal without prejudice, which could mean further prosecution for the same offense will not be barred.

Defense’s final argument

Heidmann argued the state stretched the term “fighting words” between himself and the officers, ignoring the reality and meandering on with flimsy arguments. Heidmann stated the court case the state used in its argument where a drunk male accosted a female — who was not an officer or government worker — is not the same.

“This isn’t the same ballfield as two uniformed police officers receiving a dressing down by their mayor, it’s not even the same sport,” Heidmann wrote in his argument.

Heidmann argued it is absurd his language constitutes disorderly conduct when there are “countless cases” he cited showing “how ridiculous this prosecutorial opinion is, the State would have the Court believe that virtually every single BLM (Black Lives Matter) protester should have been imprisoned any time they uttered an impassioned vulgarity. This position ventures past tyrannical into absurdity.”

Heidmann also argued the state’s claim that the officers were forced to remove his dog from the lane of traffic is untrue. Heidmann stated although the dog was pulling at the leash, it was not in traffic. Heidmann stated the dog was clearly leashed and under his control. He stated the dog subsequently forced its way out of its collar for a few seconds and he retrieved it and left the scene. Heidmann argued it is clear that he didn’t intend the dog to get loose.

“... It is laughable that the State would argue that a dog tugging at its leash is ‘conduct tending to reasonable to arouse anger in (the two officers),” Heidmann stated. “Neither officer testified even being remotely angry nor appeared angry on the video from the dog’s conduct as they would have enough common sense to know this angle is preposterous.”

Heidmann stated the most compelling reason to dismiss the disorderly conduct charge is based on lack of probable cause and not in opposition of what the state argued, but what it didn’t argue. The defense argued Heidmann was arrested after he returned to the scene and continued to yell and curse at officers and the people in the stopped vehicle. Heidmann claims the state’s original position is untenable and the prosecutor never mentioned in his argument what was actually happening but rather stated the officer testified in the second encounter that he never saw or heard Heidmann swearing or yelling.

In conclusion, Heidmann stated: “The problem with burden shifting is that the State has the opportunity of narrative shifting and the State and its officers have been doing plenty throughout this prosecution.

“The cold facts are that swearing a few times at police officers in critique of their duties while pointing into neighborhoods and telling them to patrol there may be unprofessional and possibly disrespectful, but criticizing the government in exercise of 1st Amendment is not disorderly conduct and should never be a cause for imprisonment.”

Beyond the merits of the disorderly conduct charge itself, Heidmann offered a number of procedural arguments in his defense.

“The State continues to take advantage of every conceivable advantage presented,” Heidmann wrote. “From the ever changing goal posts to material inconsistencies between police reports and ‘formal complaints’ to endless bites at the apple of amending complaints to neglecting responses in opposition to motion by Defendant and Defendant’s memoranda leaving matters uncontested in the moment to shifting narratives from the officers from paper to oral storytelling to the end result of burden shifting.”

Heidmann argued the state failed to file an adequate formal complaint within the court-ordered two weeks and did not attempt to correct their errors until he filed a motion to dismiss the complaint.

Heidmann stated, “... the State continued to file erroneous and fatally flawed ‘complaints’ over and over forcing Defendant to be prejudiced in time and cost in pointing out their errors even following their FIFTH attempt at a charging document.” He continued to argue that the state simply stated the court may permit a complaint to be amended, instead of stating it was opposed to it and then continued to blindly file new amended complaints.

Heidmann argued when the state filed its complaint, it hoped the court would continue the case — a case the former mayor called a “catastrophic waste” and the “flimsiest argument for life support on a disorderly conduct charge,” Heidmann stated in his argument. “Worse yet, the State shows their disrespect and indignance toward the Court by stating ‘The State had no obligation to serve Defendant, as there is no service requirement for misdemeanor complaints.’”

Heidmann argued the state contradicts its fifth complaint and stated there is no way he “could have divined the latest amalgamation of fact and fantasy from the State to have poised a defense against it.

“This burden shifting has give the State a clear advantage in the controversy and more importantly makes the prejudice irreconcilable. ... (Heidmann) is now forced to defend the latest incarnation post hearing, post discovery, and post examination,” making it unfair and inappropriate for due process, Heidmann wrote.

JENNIFER KRAUS may be reached at jennifer.kraus@brainerddispatch.com or 218-855-5851. Follow me at www.twitter.com/jennewsgirl on Twitter.