PHYLLIS WALZ HARBIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Phyllis Harbin was convicted of disorderly conduct and resisting arrest with violence after cursing a deputy sheriff at her residence during a domestic dispute. The court reversed her disorderly conduct conviction, holding that mere profane words not tending to incite an immediate breach of the peace cannot support such a conviction under controlling Florida Supreme Court precedent, but affirmed her conviction for resisting arrest with violence.
The court reversed Harbin's disorderly conduct conviction, holding that her profane words, uttered at her own residence in broad daylight without tending to incite an immediate breach of the peace, do not satisfy the constitutional limitations on the disorderly conduct statute. The court affirmed her conviction for resisting arrest with violence under § 843.01.
[1] Mere words, used as a tool of communication, are constitutionally protected unless, by their manner of use, they invade the rights of others to pursue lawful activities,…
[2] Profane language directed at police officers in the presence of other persons does not, by itself, constitute disorderly conduct.
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Join FLexlaw to unlock all legal intelligence“We hold that mere words, used as a tool of communication, are constitutionally protected. The protection fails only when 1) by the manner of their use, the words invade the right of others to pursue their lawful activities, or 2) by their very utterance, they inflict injury or tend to incite an immediate breach of the peace.”
The Florida Supreme Court's controlling standard in White v. State establishing the constitutional limits on the disorderly conduct statute.
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Join FLexlaw to unlock all legal intelligenceA Gadsden County Deputy Sheriff was sent to accompany Harbin's husband to their trailer to retrieve his clothes following a domestic dispute. When the…
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McCORD, Chief Judge.
Appellant, convicted below of disorderly conduct and resisting arrest with violence, disputes here the legality of her arrest for disorderly conduct. The record reveals that the arrest took place when appellant began cursing a Gadsden County Deputy Sheriff who had been sent to accompany appellant’s husband to the couple’s trailer while he picked up his clothes after a domestic dispute. Appellant contends that her “mere words” were not sufficient to justify a disorderly conduct arrest under the latest Florida Supreme Court decisions construing § 877.03, Florida Statutes (1975).
In White v. State, 330 So. 2d 3 (Fla.1976), the Florida Supreme Court upheld the constitutionality of the disorderly conduct statute with the following limiting construction:
“We hold that mere words, used as a tool of communication, are constitutionally protected. The protection fails only when 1) by the manner of their use, the words invade the right of others to pursue their lawful activities, or 2) by their very utterance, they inflict injury or tend to incite an immediate breach of the peace.”
In State v. Morris, 335 So. 2d 1 (Fla.1976), the Court, following White, supra, reversed the disorderly conduct conviction of an appellant who had “use[d] . . . profane language to police officers in the presence of other persons.” More recently, in State v. Saunders, 339 So. 2d 641 (Fla.1976), the Court limited the application of § 877.03 even further,
“so that it will hereafter only apply either to words which ‘by their very utterance . . . inflict injury or tend to incite an immediate breach of the peace,’ White v. State, 330 So. 2d at 7; see Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942); or to words, known to be false, reporting some physical hazard in circumstances where such a report creates a clear and present danger of bodily harm to others.”
The focus of our inquiry here, then, must revolve around whether appellant’s admittedly profane words tended to “incite an immediate breach of the peace.” The only evidence presented by the State on this point was that a neighbor of appellant’s opened her window during the incident. Other testimony established, however, that the dispute took place in broad daylight at approximately 3:30 in the afternoon, and that it occurred in the yard immediately in front of appellant’s own private residence. On these facts, the most that can be said about appellant’s epithets is that they were offensive to the deputy who made the arrest and perhaps an object of curiosity to the neighbor who opened her window. Compare Williams v. State, 340 So. 2d 498 (Fla. 1 DCA 1976), where this Court upheld a disorderly conduct conviction of a defendant who had banged on an apartment door at 11:30 p. m. and twice created such a disturbance that apartment occupants were forced to call the police. In addition, we find it significant here that the only person who arguably could have been “incite[d to] an immediate breach of the peace” was the deputy who had been sent to the scene to keep the peace.
Appellant’s conviction for disorderly conduct is reversed but her conviction under § 843.01, Florida Statutes (1975), for resisting arrest with violence is affirmed. See § 776.051(1), Florida Statutes (1975), and footnote 2 of State v. Saunders, 339 So. 2d 641 (Fla.1976).
SMITH and MELVIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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L.A.T. v. State, 650 So. 2d 214 (Fla. 3d DCA 1995)…words” finding is therefore constitutionally unjustified as a matter of law. See Morris v. State, 335 So. 2d 1 (Fla.1976); Gonzalez v. City of Belle Glade, 287 So. 2d 669 (Fla.1973); C.P. v. State, 644 So. 2d 600 (Fla. 2d DCA 1994); Harbin v. State, 358 So. 2d 856, 857 (Fla. 1st DCA 1978); Ware v. City & County of Denver, 182 Colo. at 177, 511 P. 2d at 475; People v. Douglas, 29 Ill.App.3d 738, 742, 331 N.E. 2d 359, 363 (1975) (no finding of breach of peace in absence of evidence of effect of defendant’s cond…
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K.Y.E. v. State, 557 So. 2d 956 (Fla. 1st DCA 1990)…89 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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Kenton Anthony Blake v. State, 433 So. 2d 611 (Fla. 1st DCA 1983)…utes, and discussed in State v. Holden, 299 So. 2d 8 (Fla.1974) and T.L.M. v. State, 371 So. 2d 688 (Fla. 1st DCA 1979). However, we do not agree that all of the charges must fail along with the charge of disorderly intoxication. In Harbin v. State, 358 So. 2d 856 (Fla. 1st DCA 1978), this court reversed a disorderly conduct conviction, but upheld the conviction for resisting arrest with violence, citing Section 776.-051(1), Florida Statutes, and State v. Saunders, 339 So. 2d 641 (Fla.1976) (footnote 2). A re…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Chaplinsky v. New Hampshire, 315 U.S. 568 (U.S. 1942)
- State v. Saunders, 339 So. 2d 641 (Fla. 1976)
- White v. State, 330 So. 2d 3 (Fla. 1976)
- Isom v. State, 335 So. 2d 1 (Fla. 1976)
- Sylister Ed Williams v. State, 340 So. 2d 498 (Fla. 1st DCA 1976)