(Code 1863, § 4271; Ga. L. 1865-66, p. 233, § 2; Code 1868, § 4306; Ga. L. 1872, p. 9, § 1; Code 1873, § 4372; Ga. L. 1875, p. 25, § 1; Code 1882, § 4372; Ga. L. 1890-91, p. 83, § 1; Penal Code 1895, § 396; Penal Code 1910, § 387; Ga. L. 1919, p. 103, § 1; Code 1933, § 26-6303; Ga. L. 1963, p. 455, § 1; Code 1933, § 26-2610, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1974, p. 470, § 1; Ga. L. 1992, p. 6, § 16; Ga. L. 1995, p. 574, § 3.)
Cross references.- Constitutional guarantee of free speech and press, Ga. Const. 1983, Art. I, Sec. I, Para. V.
Further provisions regarding unlawful communications by telephone, § 46-5-21.
Use of telephone to transmit obscene or lewd communications for commercial purposes, § 46-5-22.
Law reviews.- For article recommending more consistency in age requirements of laws pertaining to the welfare of minors, see 6 Ga. St. B.J. 189 (1969). For article, "Misdemeanor Sentencing in Georgia," see 7 Ga. St. B.J. 8 (2001). For note discussing First Amendment problems in application of this Code section with particular reference to Breaux v. State, 230 Ga. 506, 197 S.E.2d 695 (1973), see 25 Mercer L. Rev. 371 (1974). For comment discussing the constitutional standard for judging obscenity, in light of Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973), see 10 Ga. St. B.J. 327 (1973).
JUDICIAL DECISIONSANALYSIS
General Consideration
Statute not vague.
- O.C.G.A. § 16-11-39(a)(1) was not unconstitutionally vague as a person of common intelligence could ascertain from the word "tumultuous" that the person could be found guilty of disorderly conduct when that person acted in a disorderly, turbulent, or uproarious manner towards another person, which placed the other person in reasonable fear for their safety. Freeman v. State, 302 Ga. 181, 805 S.E.2d 845 (2017).
O.C.G.A. § 16-11-39(a)(1) was not unconstitutionally overbroad as the statute only could reach conduct which involved no lawful exercise of a First Amendment right; as applied to expressive conduct, the statute only reached expressive conduct that amounted to "fighting words" or a "true threat". Freeman v. State, 302 Ga. 181, 805 S.E.2d 845 (2017).
Language may be obscene or vulgar without any reference to sexual matters. Holcombe v. State, 5 Ga. App. 47, 62 S.E. 647 (1908).
Abusive and obscene language has been limited to "fighting words," which are words which by their very utterance inflict injury or tend to incite an immediate breach of the peace. Bolden v. State, 148 Ga. App. 315, 251 S.E.2d 165 (1978).
Mere use of obscene and vulgar or profane language is not necessarily a crime unless such language is also "opprobrious or abusive" and therefore constitutes "fighting words." Crolley v. State, 182 Ga. App. 2, 354 S.E.2d 864 (1987).
Opprobrious and abusive "fighting words" need not necessarily be obscene and vulgar or profane to be proscribed. Crolley v. State, 182 Ga. App. 2, 354 S.E.2d 864 (1987).
Employer's use of obscene, vulgar, and profane language in the course of venting the employer's anger at one of the employer's employees for not informing the employer that it was raining while the employer's automobile convertible top was down did not constitute "fighting words." Crolley v. State, 182 Ga. App. 2, 354 S.E.2d 864 (1987).
Examples of "fighting words."
- Pointing to a police officer and yelling to a large crowd of people that "this man here is a dog" is the type of language commonly called "fighting words" which naturally tend to provoke violent resentment. Brooks v. State, 166 Ga. App. 704, 305 S.E.2d 436 (1983).
Act of calling sheriff a "no-good son of a bitch" and admonishing that defendant should kick the sheriff's "ass" constituted fighting words. Anderson v. State, 231 Ga. App. 807, 499 S.E.2d 717 (1998).
Language directed at police officer.
- Defendant's conviction of disorderly conduct, O.C.G.A. § 16-11-39(a)(3), was reversed; although defendant was angry, defendant's question to a police officer concerning why the officer was blocking a road did not constitute fighting words, as required by the statute. Delaney v. State, 267 Ga. App. 377, 599 S.E.2d 333 (2004).
When an arrestee allegedly called an officer "a fucking asshole" and was arrested, the officer was properly denied summary judgment based on qualified immunity as to the arrestee's claims under the Fourth Amendment because the officer did not have arguable probable cause to arrest the arrestee for disorderly conduct under Georgia law since the arrestee was not shouting and did not appear to be a danger to anyone as the arrestee walked away. Merenda v. Tabor, 506 Fed. Appx. 862 (11th Cir. 2013)(Unpublished).
Arresting officer lacked probable cause to arrest the defendant for disorderly conduct when the only evidence cited or set forth in the stipulated facts showed that the defendant yelled, cursed, referenced the defendant's "damn ID," and said "fuck you" once to the officer and there was no indication that the defendant exhibited any non-verbal aggressive behavior. Knowles v. State, 340 Ga. App. 274, 797 S.E.2d 197 (2017).
Section makes no distinction between types of persons to whom words are uttered.
- Fact that police officer admits that the officer is accustomed to hearing obscene language during performance of the officer's duties is not a defense available to a defendant under the disorderly conduct statute. The jury is only required to determine that words uttered were those which as a matter of common knowledge and under ordinary circumstances will, when used to or of another person in that person's presence, naturally tend to provoke a violent response. Bolden v. State, 148 Ga. App. 315, 251 S.E.2d 165 (1978); Evans v. State, 188 Ga. App. 347, 373 S.E.2d 52 (1988).
Opprobrious words in remonstrance of illegal arrest, heard only by arresting officer, do not violate former Code 1933, § 26-2610 (see now O.C.G.A. § 16-11-39). Scott v. State, 123 Ga. App. 675, 182 S.E.2d 183 (1971).
Failure to obey deputy.- After an arrestee refused a deputy's order to turn around and pushed away from the deputy, the arrestee's false arrest claim failed because there was probable cause to arrest the arrestee for disorderly conduct since, inter alia, it was not unreasonable for the deputy to be concerned for the deputy's safety. Anthony v. Coffee County, F.3d (11th Cir. Sept. 2, 2014)(Unpublished).
Offense not included in offense of cruelty to children.
- Offense of use of fighting words is not included in the offense of cruelty to children as a matter of law. Shuler v. State, 195 Ga. App. 849, 395 S.E.2d 26 (1990).
State need not prove effect of words upon a particular individual; that is, whether individual to whom words were addressed was incited to action by their utterance. Bolden v. State, 148 Ga. App. 315, 251 S.E.2d 165 (1978).
In determining if words uttered are such as to incite an immediate breach of the peace, it is not necessary that the state prove the effect of the words upon a particular individual; that is, whether the individual to whom the words were addressed or in whose presence the words were spoken was incited to hostile action. Davenport v. State, 184 Ga. App. 214, 361 S.E.2d 219 (1987).
Acquittal of use of obscene language does not bar prosecution for using abusive language.
- Acquittal of offense of using obscene and vulgar language will not bar prosecution for using abusive language to and of another. McIntosh v. State, 116 Ga. 511, 42 S.E. 783 (1902).
Fact that the defendant is ultimately acquitted of the charge of using opprobrious and abusive language does not make the defendant's original arrest illegal thereby entitling the defendant to resist arrest. Brooks v. State, 166 Ga. App. 704, 305 S.E.2d 436 (1983).
State must prove that words were without provocation. Fuller v. State, 72 Ga. 213 (1883); Dowling v. State, 7 Ga. App. 613, 67 S.E. 697 (1910).
Sufficiency of provocation is question for jury under all circumstances of case. Dyer v. State, 99 Ga. 20, 25 S.E. 609, 59 Am. St. R. 228 (1896); Ray v. State, 113 Ga. 1065, 39 S.E. 408 (1901); Wiggins v. State, 17 Ga. App. 748, 88 S.E. 411 (1916); Cleveland v. State, 22 Ga. App. 124, 95 S.E. 540 (1918).
That there was no provocation may be shown by circumstantial as well as direct evidence. Hays v. State, 10 Ga. App. 823, 74 S.E. 314 (1912).
Considerations in determining sufficiency of provocation.
- Sufficiency of provocation depends not only upon language employed, but upon relationship of parties, state of feeling existing between them, tone, manner, and spirit in which language is used, and other circumstances from which jury may in some instances determine that words apparently or ordinarily innocent afforded reasonable cause for provocation under the circumstances or in the manner in which they were used. Hamilton v. State, 9 Ga. App. 402, 71 S.E. 593 (1911).
Fact that opprobrious words are true is not a legal provocation for their use. Dyer v. State, 99 Ga. 20, 25 S.E. 609, 59 Am. St. R. 228 (1896).
Banging on windows sufficient to justify brief investigatory stop.
- Trial court erred by granting defendant's motion to suppress the evidence of a DUI violation obtained during the traffic stop of the defendant's vehicle by committing clear error in finding that the officer lacked a reasonable, articulable suspicion to stop defendant's car as the officer had received a radio dispatch and had obtained information from a fast-food restaurant employee that suspicious persons in a vehicle were banging on the windows and cursing at the fast-food restaurant. Such actions involved engaging in disorderly conduct, which was an allegation of a crime that gave the officer grounds for conducting a brief traffic stop of defendant's vehicle for investigatory purposes. State v. Melanson, 291 Ga. App. 853, 663 S.E.2d 280 (2008).
Middle finger not fighting words or true threat.
- Defendant's act of raising the defendant's middle finger as a form of protest, without more, did not rise to the level "fighting words" or a "true threat" and, thus, could not support a disorderly conduct conviction. Freeman v. State, 302 Ga. 181, 805 S.E.2d 845 (2017).
Sufficiency of evidence.
- Evidence authorized a jury charge on the offense of "fighting words," where defendant schoolteacher was indicted for battery and cruelty to children, and the proof tracked the indictment which set forth words defendant said to a student which would fall within the parameter of those forbidden. Shuler v. State, 195 Ga. App. 849, 395 S.E.2d 26 (1990).
When the victim testified that defendant made a dozen or more calls for the purpose of annoying and harassing the victim, there was sufficient evidence to find defendant guilty of the offense of harassing phone calls, even though there was evidence of only one call in which defendant threatened the victim. Saldona v. State, 219 Ga. App. 762, 466 S.E.2d 655 (1996).
Evidence that, while seated at a bar, defendant, in a loud and boisterous voice, thrust obscenities upon innocent bystanders was sufficient for conviction. Tucker v. State, 233 Ga. App. 314, 504 S.E.2d 250 (1998).
Evidence that defendant made a statement that was plainly designed to goad or incite a security officer who was trying to handle a difficult situation involving several people at an amusement park supported a conviction for a violation of O.C.G.A. § 16-11-39(a)(3). Evans v. State, 241 Ga. App. 32, 525 S.E.2d 780 (1999).
Trial court properly denied defendant's motion for directed verdict on a charge of disorderly conduct, since the evidence did not demonstrate that defendant's cursing and violent movement of defendant's car door was directed solely at the passenger, as defendant alleged, but was directed at the victim; furthermore, there was evidence that defendant "violently" shook defendant's keys at the victim, and the victim saw defendant actually damaging the victim's vehicle by scratching it with a key. Crutcher v. State, 267 Ga. App. 410, 599 S.E.2d 353 (2004).
Evidence was insufficient to sustain defendant's conviction for disorderly conduct arising out of an incident in which defendant drove by a police officer, yelled "you bastards" out of the window, and continued down the road because the words used by defendant did not constitute fighting words under O.C.G.A. § 16-11-39(a)(3), in that defendant was not engaged in a face-to-face confrontation with the officer tending to incite an immediate breach of the peace when the words were spoken, but instead, defendant continued to travel past the officer in defendant's vehicle. Turner v. State, 274 Ga. App. 731, 618 S.E.2d 607 (2005).
Because defendant, who was angry and upset, approached a former girlfriend's home uninvited when it was late at night, shouted profanities and fighting words to the victim and the victim's husband, and demanded to talk to the victim and called the victim a "bitch," the evidence was sufficient to support defendant's conviction for disorderly conduct, in violation of O.C.G.A. § 16-11-39(a)(3); defendant uttered "fighting words" that were abusive and would have naturally tended to provide a violent resentment, and the words were profane in that they would have clearly offended a reasonable person's sense of decency. Thomas v. State, 276 Ga. App. 79, 622 S.E.2d 421 (2005).
Since the only statements shown in the evidence to have been uttered by the defendant to an officer during an incident at a store were, "Arrest me" and "Damn, I'm calling corporate office" did not rise to the level of required "fighting words," the defendant's conviction of disorderly conduct, O.C.G.A. § 16-11-39(a)(3), was not supported by sufficient evidence. Sandidge v. State, 279 Ga. App. 86, 630 S.E.2d 585 (2006).
Victim and other witness testified that the defendant followed the victim through a store, "got in the victim's face," pointed a finger at the victim, loudly called the victim a bitch and a whore, and accused the victim of forgery. This evidence was sufficient to allow the jury to conclude that the victim was placed in the requisite fear for the victim's safety to support the defendant's disorderly conduct conviction. Mayhew v. State, 299 Ga. App. 313, 682 S.E.2d 594 (2009), cert. denied, No. S09C2059, 2009 Ga. LEXIS 786 (Ga. 2009).
Trial court did not err in convicting the defendant of driving under the influence of alcohol to the extent it was less safe for the defendant to drive, possession of an open container of alcoholic beverage, and disorderly conduct because the testimony of the driver accosted by the defendant and the arresting officer was sufficient to enable a rational jury to find the defendant guilty beyond a reasonable doubt of the charged crimes. Corbin v. State, 305 Ga. App. 768, 700 S.E.2d 868 (2010).
Evidence was sufficient to convict the defendant of felony obstruction, possession of a knife during the commission of a felony, and disorderly conduct because the defendant slammed the refrigerator door twice, breaking items stored in the door; the victim called9-1-1 seeking assistance for a domestic dispute in progress; when one of the responding officers told the defendant that the defendant would have to leave the house as the victim did not want the defendant living there, the defendant told the officer that the officer could not make the defendant leave; and, when the officer unsnapped a taser from the taser's holster and approached the defendant, the defendant grabbed a knife with an eight-inch blade and threatened the officers with the knife. Owens v. State, 329 Ga. App. 455, 765 S.E.2d 653 (2014).
Evidence was sufficient to convict the defendant of disorderly conduct because, although there was no first-person testimony regarding whether the defendant's conduct placed the defendant's father and brother in fear for their safety, and the brother later recanted the brother's statements at trial, the appellate court could not say that there was no evidence that the defendant's conduct placed the defendant's father and brother in such fear, given the brother's statement to the 911 dispatcher that the home's residents felt unsafe; the fact that the father told the brother to call the police; the urgency of the brother's request for police assistance; and the other circumstances presented. Haygood v. State, 338 Ga. App. 189, 789 S.E.2d 404 (2016).
Trial court should have granted the defendant's motion for directed verdict on the defendant's disorderly conduct charge because the state had to show the victim's interest in the property was more than mere control over the property of someone else, but the state failed to present any evidence that the nurse had more than the permission of the owner - the hospital - to exercise control over the medical equipment at risk of being damaged by the defendant. Mays v. State, 351 Ga. App. 434, 831 S.E.2d 1 (2019).
Continuance improperly denied after amendment to accusation.
- Because the state amended its accusation against the defendant before trial to include additional charges of disorderly conduct, in violation of O.C.G.A. § 16-11-39, O.C.G.A. § 17-7-71(f) required the trial court to grant the defendant's request for a continuance, and erred when it failed to do so; moreover, defendant had no pretrial notice of the need to defend against a tumultuous act that did not physically harm the wife. Martin v. State, 278 Ga. App. 465, 629 S.E.2d 134 (2006).
General and special demurrer to an amended accusation was properly overruled where the accusation followed the language of O.C.G.A. § 16-11-39 and, so, was sufficient in substance, and where the special demurrer did not raise a claim with sufficient specificity. Tucker v. State, 233 Ga. App. 314, 504 S.E.2d 250 (1998).
Court erred in permitting jury to consider verdict of guilty but mentally ill on a misdemeanor count of making harassing telephone calls, as that verdict is available only in felony cases. Converting, on appeal, the verdict to guilty would have constituted an impermissible substantive change in the verdict, violative of O.C.G.A. § 17-9-40, and therefore the verdict had to be reversed. Levin v. State, 222 Ga. App. 123, 473 S.E.2d 582 (1996).
Trial court erred in excluding evidence of provocation.
- Because the trial court erroneously excluded evidence relevant to the defendant's claim that there was provocation sufficient to excuse the use of the fighting words the defendant uttered and made the basis of a disorderly conduct charge, the defendant's conviction was reversed; moreover, in determining whether or not there was sufficient provocation for the defendant's use of the fighting words uttered, the jury was entitled to consider all the facts and circumstances tending to prove provocation, not just facts and circumstances contemporaneous with the use of the fighting words. Talmadge v. State, 287 Ga. App. 332, 651 S.E.2d 469 (2007).
Conviction of using opprobrious words to police officers was reversed when the trial court instructed the jury that "if, without provocation, he uses to, or of another, or in his presence opprobrious or abusive words" then the defendant could be found guilty because by inserting the disjunctive "or" into the language of the statute, the court thereby instructed the jury that the jury would be authorized to convict for words spoken "of another, or in his presence," which means that opprobrious words, whispered by a person in the solitude of that person's own home, would be a crime. Dinnan v. State, 253 Ga. 334, 320 S.E.2d 180 (1984).
Cited in Lovell v. State, 226 Ga. 880, 178 S.E.2d 174 (1970); Watts v. Six Flags Over Ga., Inc., 140 Ga. App. 106, 230 S.E.2d 34 (1976); Rozier v. State, 140 Ga. App. 356, 231 S.E.2d 131 (1976); D.G.D. v. State, 142 Ga. App. 266, 235 S.E.2d 673 (1977); Deavers v. Standridge, 144 Ga. App. 673, 242 S.E.2d 331 (1978); Davis v. State, 147 Ga. App. 107, 248 S.E.2d 181 (1978); Blanton v. State, 152 Ga. App. 205, 262 S.E.2d 476 (1979); Davis v. State, 153 Ga. App. 528, 265 S.E.2d 857 (1980); Curry v. State, 248 Ga. 183, 281 S.E.2d 604 (1981); Tuggle v. Wilson, 248 Ga. 335, 282 S.E.2d 110 (1981); Dumas v. State, 159 Ga. App. 517, 284 S.E.2d 33 (1981); Williamson v. State, 249 Ga. 851, 295 S.E.2d 305 (1982); Stephenson v. State, 171 Ga. App. 938, 321 S.E.2d 433 (1984); Boyette v. State, 172 Ga. App. 683, 324 S.E.2d 540 (1984); Gay v. State, 179 Ga. App. 430, 346 S.E.2d 877 (1986); Hall v. State, 201 Ga. App. 328, 411 S.E.2d 274 (1991); Person v. State, 206 Ga. App. 324, 425 S.E.2d 371 (1992); Rooks v. State, 217 Ga. App. 643, 458 S.E.2d 667 (1995); State v. Vines, 226 Ga. App. 779, 487 S.E.2d 521 (1997); Vines v. State, 269 Ga. 438, 499 S.E.2d 630 (1998); Johnson v. State, 255 Ga. App. 537, 566 S.E.2d 349 (2002); Helton v. State, 284 Ga. App. 777, 644 S.E.2d 896 (2007); In the Matter of Jones, 293 Ga. 264, 744 S.E.2d 6 (2013); Harper v. State, 337 Ga. App. 57, 785 S.E.2d 691 (2016);.
State v. Brienza, 350 Ga. App. 672, 829 S.E.2d 894 (2019).
Constitutionality
Former Code 1933, § 26-2610 (see now O.C.G.A. § 16-11-39) was not an unconstitutional violation of U.S. Const., amends. 1 and 14. Grantham v. State, 151 Ga. App. 707, 261 S.E.2d 445 (1979).
Former Code 1933, § 26-2610(a) (see now O.C.G.A. § 16-11-39(a)) was not unconstitutional on its face as being vague and overbroad resulting in inconsistent application by state courts. Lamar v. Banks, 684 F.2d 714 (11th Cir. 1982).
Section constitutional.
- While it is matter for jury determination in each case whether under all facts and circumstances words used were of such character that their use was calculated to cause breach of peace, as well as to determine whether there was provocation sufficient to excuse their use, this does not render former Code 1933, § 26-6303 (see now O.C.G.A. § 16-11-39) so vague, indefinite, and uncertain as to render it unconstitutional. Wilson v. State, 223 Ga. 531, 156 S.E.2d 446 (1967), cert. denied, 390 U.S. 911, 88 S. Ct. 839, 19 L. Ed. 2d 885 (1968).
State has power constitutionally to punish "fighting" words under carefully drawn statutes not also susceptible of application to protected expression. Gooding v. Wilson, 405 U.S. 518, 92 S. Ct. 1103, 31 L. Ed. 2d 408 (1972); Lamar v. Banks, 684 F.2d 714 (11th Cir. 1982).
Unconstitutional application.
- Former paragraph (3), relating to engaging in indecent or disorderly conduct in the presence of another in a public place, impermissibly delegated basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications. Satterfield v. State, 260 Ga. 427, 395 S.E.2d 816 (1990).
Concurrent jurisdiction with federal labor legislation.
- Even under situations involving the jurisdiction of the National Labor Relations Act the state has retained concurrent jurisdiction to enforce this section as it directly relates to the prevention of, or incitement to, immediate violence or to the prevention of the threat of immediate violence or violent injury. State v. Klinakis, 206 Ga. App. 318, 425 S.E.2d 665 (1992).
When accusation included only former paragraph (1) of section, conviction under former paragraph (2) violated due process. Sarnie v. State, 247 Ga. 414, 276 S.E.2d 589 (1981).
Former paragraph (3) void for vagueness.
- Because former paragraph (3), relating to engaging in indecent or disorderly conduct in the presence of another in a public place, failed to define in any manner what was meant by indecent or disorderly conduct, it did not provide fair warning to persons of ordinary intelligence as to what it prohibited so that they could act accordingly. The paragraph was therefore too vague to justify the imposition of criminal punishment for its violation. Satterfield v. State, 260 Ga. 427, 395 S.E.2d 816 (1990).
Paragraph (2) (now paragraph (a)(4)) was not so vague, indefinite, and overbroad as to violate due process and equal protection clauses of state and federal Constitutions. Breaux v. State, 230 Ga. 506, 197 S.E.2d 695 (1973).
Language not protected by First Amendment.
- Language such as calling a police officer a "[goddamn] liar" and telling the officer to "[fuck off]" is not protected by the First Amendment. Evans v. State, 188 Ga. App. 347, 373 S.E.2d 52 (1988).
Obscene, Vulgar, or Profane Language
Nature of language proscribed.
- Former Code 1933, § 26-2610 (see now O.C.G.A. § 16-11-39) refers to utterances which are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. Breaux v. State, 230 Ga. 506, 197 S.E.2d 695 (1973).
When language is obscene, vulgar, or profane.
- Language is obscene, vulgar, or profane when, under 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, 197 S.E.2d 695 (1973); Grantham v. State, 151 Ga. App. 707, 261 S.E.2d 445 (1979).
Evidence was sufficient to sustain "fighting words" conviction of schoolteacher who told student "go to the bathroom and beat off." Shuler v. State, 195 Ga. App. 849, 395 S.E.2d 26 (1990).
Officer's testimony that defendant used disgustingly profane words which disparaged the dignity of motherhood, childhood, and the intellect of police officers while defendant was being served with a traffic citation was sufficient to authorize finding defendant guilty of using fighting words. Nunn v. State, 224 Ga. App. 312, 480 S.E.2d 614 (1997).
Defendant's comment to a female during an interview that, "You have nice tits" did not constitute language so opprobrious or inherently abusive as to be "fighting words" within the meaning of the law. Lundgren v. State, 238 Ga. App. 425, 518 S.E.2d 908 (1999).
Sufficient evidence - swear words yelled and screamed.
- Evidence of explicit swear words that defendant screamed and cursed at a victim was sufficient to support defendant's misdemeanor disorderly conduct under O.C.G.A. § 16-11-39. McCarty v. State, 269 Ga. App. 299, 603 S.E.2d 666 (2004).
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. Woodward v. Gray, 241 Ga. App. 847, 527 S.E.2d 595 (2000), overruled on other grounds, Stryker v. State, 297 Ga. App. 493, 677 S.E.2d 680 (2009).
In an action alleging, inter alia, assault and false arrest, three police officers were entitled to official immunity under Ga. Const. 1983, Art. I, Sec. II, Para. IX(d) because the officers' conduct in arresting plaintiff arrestee for disorderly conduct was based on a discretionary act and was not shown to be based on actual malice; the arrestee used expletives in telling the officers to leave the arrestee's home after the officers executed an arrest warrant for the arrestee's fiance, and there were children who heard the offensive language outside the arrestee's home. Selvy v. Morrison, 292 Ga. App. 702, 665 S.E.2d 401 (2008).
Directing obscene language at officer.
- Officer had probable cause to arrest the defendant for disorderly conduct based on the defendant's yelling obscenities at the officer. Therefore, the defendant's claim that the defendant was entitled to a directed verdict on charges of misdemeanor obstruction of an officer, O.C.G.A. § 16-10-24(a), because the defendant was resisting an unlawful arrest was without merit. Steillman v. State, 295 Ga. App. 778, 673 S.E.2d 286 (2009).
Defendant was not lawfully arrested for disorderly conduct because Georgia law did not criminalize obscene language; therefore, because the defendant was not in lawful custody, the defendant could not be charged with escape in violation of O.C.G.A. § 16-10-52(a)(2) when the defendant elbowed the chief of police during a pat down and ran from the scene. Meadows v. State, 303 Ga. App. 40, 692 S.E.2d 708 (2010).
Defendant officer was not entitled to qualified immunity on plaintiff's Fourth Amendment claim because the officer had no arguable probable cause to arrest the plaintiff for misdemeanor obstruction under O.C.G.A. § 16-10-24(a) or disorderly conduct under O.C.G.A. § 16-11-39(a)(3) as it was undisputed that the plaintiff uttered an epithet as the plaintiff was walking away, thus ending any face-to-face confrontation, and that the officer was the only one to hear the phrase. Further, there was no arguable probable cause to arrest the plaintiff. Merenda v. Tabor, F. Supp. 2d (M.D. Ga. May 7, 2012), aff'd in part, appeal dismissed in part, No. 12-12562, 2013 U.S. App. LEXIS 2351 (11th Cir. Ga. 2013).
Juvenile's statement insufficient to sustain delinquency adjudication.
- Delinquency adjudication based on an allegation of disorderly conduct, O.C.G.A. § 16-11-39, was improper because the mere fact that the juvenile used a curse word to emphasize the juvenile's statement did not support the disorderly conduct charge; the statement was not sufficiently threatening, belligerent, profane, or abusive enough to constitute "fighting words", and Georgia law no longer criminalized the use of unprovoked language threatening an immediate breach of peace, which was obscene, vulgar, or profane, that was directed to a person older than 14 years of age, unless such language also constituted "fighting words." Moreover, the surrounding circumstances, including the juvenile's behavior and other statements, did not transform the words into fighting words. In re L. E. N., 299 Ga. App. 133, 682 S.E.2d 156 (2009).
Defendant with another who was using profane language.
- Defendant's arrest outside the defendant's home for disorderly conduct was not supported by probable cause because there was no evidence that the defendant used fighting words, although a woman with the defendant was cursing police officers, or that the defendant placed officers in fear for their safety. Williams v. State, 305 Ga. App. 657, 700 S.E.2d 653 (2010).
RESEARCH REFERENCES
Am. Jur. 2d.
- 12 Am. Jur. 2d, Breach of Peace and Disorderly Conduct, § 8. 16A Am. Jur. 2d, Constitutional Law, §§ 522, 523.
C.J.S.- 11 C.J.S., Breach of the Peace, § 2 et seq. 67 C.J.S., Obscenity, §§ 12, 13. 86 C.J.S., Telecommunications, § 173.
ALR.
- Abusive language addressed to trespasser as breach of peace, 34 A.L.R. 575.
Abusive or insulting language addressed to group as breach of peace, 34 A.L.R. 580.
Participation of student in demonstration on or near campus as warranting imposition of criminal liability for breach of peace, disorderly conduct, trespass, unlawful assembly, or similar offense, 32 A.L.R.3d 551.
Validity, construction, and application of state criminal statute forbidding use of telephone to annoy or harass, 95 A.L.R.3d 411.
Gesture as punishable obscenity, 99 A.L.R.3d 762.
Validity and construction of statute or ordinance prohibiting use of "obscene" language in public, 2 A.L.R.4th 1331.
Validity and construction of statutes or ordinances prohibiting profanity or profane swearing or cursing, 5 A.L.R.4th 956.
Insulting words addressed directly to peace officer as breach of peace or disorderly conduct, 14 A.L.R.4th 1252.
Telephone calls as nuisance, 53 A.L.R.4th 1153.
Validity, construction, and application of state statutes and municipal ordinances proscribing failure or refusal to obey police officer's order to move on, or disperse, on street, as disorderly conduct, 52 A.L.R.6th 125.
Validity, construction, and operation of federal disorderly conduct regulation (36 C.F.R. § 2.34), 180 A.L.R. Fed. 637.