K.Y.E., A CHILD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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K.Y.E., a child, was convicted of breach of the peace and obstructing a police officer for singing an offensive song on her front porch. The appellate court reversed both convictions, holding that her speech was protected by the First Amendment and that because the underlying arrest was illegal, the obstruction conviction must also fail.
K.Y.E.'s speech was protected by the First Amendment because it did not evoke a response tending to inflict injury or incite an immediate breach of the peace, and therefore her arrest was illegal. Because the underlying arrest was illegal and involved no force or violence, the conviction for obstructing or opposing an officer without violence must also be reversed under the common law rule permitting lawful resistance to an illegal arrest without force or violence.
[1] Speech, even if offensive, is protected by the First Amendment unless it incites immediate violence or a breach of the peace.
[2] A conviction for obstructing or opposing a police officer without violence cannot stand if the underlying arrest was illegal.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The child's speech, while annoying and offensive to the arresting officer, at best contributed to attracting a group of curious onlookers, but she did not breach the peace.”
Establishes that offensive speech alone, without tendency to incite immediate breach of peace, is protected by the First Amendment.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceK.Y.E. repeatedly interrupted an officer's conversation and was directed to her front porch. She then continually sang 'Fuck the police,' which could …
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BARFIELD, Judge.
K.Y.E. a child, appeals from a judgment and sentence for breach of the peace and obstructing or opposing a police officer without violence. She asserts that her speech and conduct, which provided the basis for her arrest for breach of the peace, were protected by the First Amendment of the United States Constitution. She also asserts that, as a result of her illegal arrest for breach of the peace, her arrest for obstructing or opposing a police officer without violence was invalid. We agree and reverse both convictions.
The testimony at the bench trial established that the child continually sang, “Fuck the police,” after she repeatedly interrupted an officer’s conversation with another individual and retreated to the front porch of her home at a second officer’s direction. According to the second officer’s testimony, he arrested the child because her singing could be heard across the street where adults and children were gathered. However, the record discloses no evidence that the child’s singing evoked a response tending to inflict injury or incite an immediate breach of the peace.1 The child’s speech, while annoying and offensive to the arresting officer, at best contributed to attracting a group of curious onlookers, but she did not breach the peace.2 Under these circumstances, we conclude that her speech and conduct fell within the protections afforded by the First Amendment.
Because we reverse the conviction for breach of the peace, we must also reverse the conviction for obstructing or opposing an officer without violence. While the illegality of the underlying arrest is no defense to resisting the arrest with force or violence, Blake v. State, 433 So. 2d 611 (Fla. 1st DCA 1983), section 776.051, Florida Statutes (1989), the common law rule still remains that a person may lawfully resist an illegal arrest without using any force or violence. Smith v. State, 399 So. 2d 70 (Fla. 5th DCA 1981); Davis v. State, 381 So. 2d 285 (Fla. 1st DCA 1980); Morley v. State, 362 So. 2d 1013 (Fla. 1st DCA 1978); Lowery v. State, 356 So. 2d 1325 (Fla. 4th DCA 1978); Marshall v. State, 354 So. 2d 107 (Fla. 2d DCA 1978).
Accordingly, we REVERSE the conviction for breach of the peace and the conviction for obstructing or opposing an officer without violence.
ERVIN and WENTWORTH," JJ., concur. . See State v. Saunders, 339 So. 2d 641 (Fla.1976); L.J.M. v. State, 541 So. 2d 1321 (Fla. 1st DCA), review denied, 549 So. 2d 1014 (Fla.1989); W.M. v. State, 491 So. 2d 335 (Fla. 3d DCA 1986); Delaney v. State, 489 So. 2d 891 (Fla. 1st DCA 1986); C.J.R. v. State, 429 So. 2d 753 (Fla. 1st DCA), review denied, 440 So. 2d 351 (Fla.1983).
. See e.g., D.C.E. v. State, 381 So. 2d 1097 (Fla. 1st DCA 1979), cert. denied, 386 So. 2d 635 (Fla.1980); Harbin v. State, 358 So. 2d 856 (Fla. 1st DCA 1978); Clanton v. State, 357 So. 2d 455 (Fla. 2d DCA), cert. denied, State v. Clanton, 362 So. 2d 1056 (Fla.1978); Phillips v. State, 314 So. 2d 619 (Fla. 4th DCA 1975).
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Cited By (14 total)
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JAY v. State, 731 So. 2d 774 (Fla. 4th DCA 1999)…g it.” In re T.M.M., 560 So. 2d at 807 (citing Dean v. State, 466 So. 2d 1216, 1217 (Fla. 4th DCA 1985)). “[T]he common law rule still remains that a person may lawfully resist an illegal arrest without using any force or violence.” K.Y.E. v. State, 557 So. 2d 956, 957 (Fla. 1st DCA 1990)(citing Smith v. State, 399 So. 2d 70 (Fla. 5th DCA 1981)); see also Lowery v. State, 356 So. 2d 1325, 1325-26 (Fla. 4th DCA 1978). Although Jay was not charged with obstructing the officer, the state maintains that the atte…
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Bradford v. State, 567 So. 2d 911 (Fla. 1st DCA 1990)…that a determination of impropriety in an officer’s performance of his legal duty at the time of a defendant’s forcible resistance of that officer is not a defense to the charge of resisting an officer under section 843.01. See also K.Y.E. v. State, 557 So. 2d 956 (Fla. 1st DCA 1990). The sequence of events set forth above which would support a conviction of a simple battery would also support a conviction on the charge of resisting arrest with violence. Thus, the officer’s pursuit, arrest and search of appel…
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Porter v. State, 582 So. 2d 41 (Fla. 4th DCA 1991)…ers. See C.L.A. v. State, 478 So. 2d 872 (Fla. 3d DCA 1985); Goffin v. State, 560 So. 2d 421 (Fla. 4th DCA 1990). These cases are to be distinguished from those cases where the conduct or language is merely abusive or offensive. See K.Y.E. v. State, 557 So. 2d 956 (Fla. 1st DCA 1990). [*43] As concerns Houston v. Hill, 482 U.S. 451, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987), relied upon by appellant, it may be readily distinguished from the instant case because in Houston there was no obstruction or impediment of…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (17 total)
- State v. Saunders, 339 So. 2d 641 (Fla. 1976)
- Lowery v. State, 356 So. 2d 1325 (Fla. 4th DCA 1978)
- Smith v. State, 399 So. 2d 70 (Fla. 5th DCA 1981)
- Kenton Anthony Blake v. State, 433 So. 2d 611 (Fla. 1st DCA 1983)
- Phillips v. State, 314 So. 2d 619 (Fla. 4th DCA 1975)
- Marshall v. State, 354 So. 2d 107 (Fla. 2d DCA 1978)
- Clanton v. State, 357 So. 2d 455 (Fla. 2d DCA 1978)
- Morley v. State, 362 So. 2d 1013 (Fla. 1st DCA 1978)
- Harbin v. State, 358 So. 2d 856 (Fla. 1st DCA 1978)
- D. C. E. v. State, 381 So. 2d 1097 (Fla. 1st DCA 1979)