Being Obnoxious

Discussion in 'Off-topic' started by Malum Prohibitum, Jul 25, 2007.

  1. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Being obnoxious, loud, arguing with the police, and refusing to move more than eight feet from the police on command where such distance does not interfere with the performance of police duties does not constitute probable cause to believe that disorderly conduct has occurred. Conduct that does not rise to actual interference or obstructing a police officer does not constitute disorderly conduct under the Columbus ordinance, although the Columbus Police Department uses such facts and circumstances as a lesser violation for less blatant conduct for arguing with the police or refusing to obey an officer.


    Furthermore, to argue with, curse loudly at, to verbally interrupt a police officer while making the arrest of another does not constitute obstruction of a police officer. See 1. Moccia v. State, 174 Ga.App. 764, 331 S.E.2d 99 (1985); see also Statham v. State, 41 Ga. 507, 513(3) (1871); McCook v. State, 145 Ga.App. 3, 5(2), 243 S.E.2d 289 (1978). To obstruct, resist, or oppose for purposes of obstructing an officer implies forcible resistance and does not mean the refusal to merely obey the police officer's command to move more than eight feet from where the arrest was being made so that the police could perform their duties unimpeded. Whaley v. State, 175 Ga.App. 493, 494, 333 S.E.2d 691 (1985); Moses v. State, 6 Ga.App. 251, 253(2), 64 S.E. 699 (1909); see also Vince v. State, 113 Ga. 1070, 1071, 39 S.E. 435 (1901); Chaplin v. State, 141 Ga.App. 788, 790(2), 234 S.E.2d 330 (1977).

    For speech to rise to the level of obstruction, it must be reasonably interpreted to be a threat of violence to the officer, which would amount to obstruction or hindrance. **599 1. Dumas v. State, 159 Ga.App. 517, 518-519, 284 S.E.2d 33 (1981); Evans v. State, 154 Ga.App. 381, 268 S.E.2d 429 (1980). Lying or intentionally misleading an officer in the lawful discharge of his duty can also constitute verbal obstruction. Duke v. State, 205 Ga.App. 689, 423 S.E.2d 427 (1992).FN1 Warning*850 the subject of an investigation or inciting others to interfere and to hinder an investigation can constitute verbal obstruction. However, none of these acts occurred in this case.

    In this case, Woodward made no threat of violence, nor did she lie to Officer Gray. No obstruction, therefore, occurred either under State law or the Columbus ordinance. The policy or practices of the Columbus Police Department to treat verbal abuse and argument with an officer that does not physically interfere with or use words intended to incite others to physically interfere with the lawful exercise of police duties and refusal to move from an area more than eight feet from an arrest or crime scene perimeter does not constitute obstruction and cannot be treated as disorderly conduct under the circumstances of this case.
    1.
    Police can create a reasonable crime scene perimeter, put up a crime scene tape to avoid destruction or tampering with evidence, or exclude the public from a reasonable physical zone of an arrest within which there is a risk of physical contact between the officer, suspect, and public or a passing of weapons or evidence. However, a command to clear the general area entirely beyond the zone of police operations constitutes an overly broad and unreasonable demand that exceeds reasonable law enforcement procedure and needs.
    1. [11] (b) Disorderly conduct may arise from various conduct both under State statute and local ordinance, i.e., a threat of violence toward a person or property, use of “fighting words,†or the use of obscene, vulgar, or profane language in the presence of someone under 14. OCGA § 16-11-39. “Language is obscene, vulgar or profane when, under the circumstances and manner in which such utterance was made, it would clearly offend a reasonable person's sense of decency.†Breaux v. State, 230 Ga. 506, 508(1), 197 S.E.2d 695 (1973); Grantham v. State, 151 Ga.App. 707, 708(3), 261 S.E.2d 445 (1979), aff'd, 244 Ga. 775, 262 S.E.2d 777 (1979).
    [12] For the use of obscene words to constitute a disturbance of the peace, it must be made in the presence of a member of the “public†and not merely a police officer. Thus, an obscenity heard by Officer Gray and other officers but not heard by the public would not have disturbed “the public or some member thereof,†who must be disturbed in their peace and tranquility. See Wood v. Haynes, 148 Ga.App. 640, 641-642(2), 252 S.E.2d 69 (1979).
    [13] [14] [15] The language directed at Officer Gray did not constitute “fighting words,†i.e., “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.†Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942); Anderson v. State, 231 Ga.App. 807, 499 S.E.2d 717 (1998); Bolden v. State, 148 Ga.App. 315, 316(2), 251 S.E.2d 165 (1978). *851 Fighting words, when uttered to provoke another, fall outside of constitutional protection. Bose Corp. v. Consumers Union & c., 466 U.S. 485, 504-505, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984). A police officer may be the victim of fighting words, i.e., “son of a bitch,†“motherfucker,†“bastard,†“bitch,†“motherfucking pig,†or “pig.†**600 Bolden v. State, supra at 316, 251 S.E.2d 165. “Fighting words†for purposes of statutory prohibition should be viewed with regard to the factual circumstances of their utterance. State v. Klinakis, 206 Ga.App. 318, 319-323(1), 425 S.E.2d 665 (1992). In this case, however, plaintiff called Officer Gray no derogatory names but merely accused her of harassing her brothers without just reason, which in fact was the case. There existed no provocation in plaintiff's conduct that would breach the peace; she did not seek to incite family and neighbors against the police.
    [16] “Disorderly conduct†means some act or conduct which tends to breach the peace or at least disturb that portion of the public which may see or hear the conduct claimed to have been disorderly. See Johnson v. State, 111 Ga.App. 298, 141 S.E.2d 574 (1965). Under none of the provisions of the Columbus ordinance does plaintiff's conduct constitute disorderly conduct. Therefore, the arrests on such charge have been employed by the Columbus Police Department as a means to control anyone who argues with them or who refuses to follow their orders to leave an area. Under the circumstances presented here, such conduct exceeded the lawful authority of the police.

    Woodward v. Gray
    241 Ga.App. 847, 527 S.E.2d 595
    Ga.App.,2000.

    SHE did lose her case, though. No damages awarded.