In 2009, Officer Michael Case of the Brandon Police Department received a call requesting that he follow up on a complaint about dogs residing at a specific address who entered a neighbor’s garage in Brandon, Mississippi, and pulled out items.
Case went to the home with the dogs and spoke to a babysitter. Case explained that the babysitter needed to keep the dogs in the backyard, or he would be required to take the dogs. The babysitter responded, “Yes, sir,” and Case left the house without incident.
Approximately 15 minutes later, an irate individual called to make a complaint about Case’s handling of the situation. Sergeant Allen Parfait arrived at 60 Terrapin Hill in Brandon to interview the irate caller’s husband.
The caller’s husband, later identified as Steven Sendelweck, dropped the edger and approached Parfait, pointed his finger in his face, and asked Parfait if he was the dog catcher. Parfait later testified that Sendelweck’s finger was about a half inch from his face, and that Sendelweck was irate.
Parfait explained that he was not with animal control, but that he was there to take a report documenting the complaint. Sendelweck informed Parfait that he was not going to tell him anything and that he needed to get the dog catcher. Parfait described Sendelweck’s behavior as threatening and combative, and he testified that Sendelweck was gritting his teeth while talking and was completely irate.
Parfait asked Sendelweck to step back and calm down. Sendelweck continued to state that he was not going to give Parfait anything, and that he wanted the dog catcher. Parfait explained that he was not going to bring animal control to the scene, and Sendelweck responded by saying “get the f***ing dog catcher over there now.”
Parfait continued to warn Sendelweck to calm down and back away, explaining that failure to comply with the request to quit threatening him and cut out all the cussing would result in Sendelweck’s arrest for disorderly conduct. Parfait stated that Sendelweck responded by claiming “he wasn’t going no f***ing where” with the officer.
Parfait then placed Sendelweck under arrest and pulled out his handcuffs. Parfait explained that Sendelweck began walking away, so he grabbed Sendelweck’s wrist. Sendelweck pulled his arm out of Parfait’s grasp. Parfait then utilized pepper spray and arrested Sendelweck for disorderly conduct. Sendelweck claimed he did not threaten Parfait until he was pepper sprayed.
He was convicted of disorderly conduct and resisting arrest and sentenced to six months in jail.
The county court judge dismissed the disorderly conduct charge because the affidavit focused on the speech and not the conduct. The judge went on to state that there was sufficient probable cause for the disorderly conduct arrest based on the evidence but that the affidavit was defective as written. On appeal, Sendelweck argued his resisting arrest charge should have also been dismissed. MCOA affirmed.
A. Disorderly conduct
In Brendle, we cited the U.S. Supreme Court decision of City of Houston, Texas v. Hill, 482 U.S. 451 (1987), acknowledging that the First Amendment protects a significant amount of verbal criticism directed at a police officer. We said in Brendle that it is clear that Mississippi cannot, under the confines of the U.S. Constitution, regulate speech which does not fall into the categories of fighting words, obscene words, or some libelous words.
Disorderly conduct, section 97-35-7(1), is defined as follows: whoever, with intent to provoke a breach of the peace, or under such circumstances as may lead to a breach of the peace, or which may cause or occasion a breach of the peace, fails or refuses to promptly comply with or obey a request, command, or order of a law enforcement officer, having the authority to then and there arrest any person for a violation of the law, to:
(a) Move or absent himself and any vehicle or object subject to his control from the immediate vicinity where the request, command or order is given, or
(i) Act or do or refrain from acting or doing as ordered, requested or commanded by said officer to avoid any breach of the peace at or near the place of issuance of such order, request or command, shall be guilty of disorderly conduct.
Testimony was presented at trial showing that Parfait believed Sendelweck’s behavior to be threatening and combative in the public place of a residential neighborhood and that Parfait asked Sendelweck to step back and calm down. Parfait explained that he continued to warn Sendelweck to calm down and back away, to no avail.
Parfait finally advised Sendelweck that if he did not comply, he would be arrested. Parfait’s testimony provides that Sendelweck failed to comply by refusing to calm down or back away. Instead, Sendelweck continued to yell and curse.
Parfait then proceeded to arrest Sendelweck, and as previously stated, the record contains sufficient evidence supporting the county court’s determination that Sergeant Parfait lawfully arrested Sendelweck for disorderly conduct.
In Odem, we said that Odem’s language and his physical acts must be examined to determine whether he had an intent to breach the peace or whether he did in fact breach the peace. After our analysis, we then held that sufficient evidence existed for the arresting officer to have probable cause to arrest Odem for disorderly conduct, or breach of the peace, thus resulting in a lawful arrest.
The Odem Court distinguished its facts from Brendle, noting that Odem was arrested for disorderly conduct, not profanity, as in Brendle. Additionally, in Odem, the police arrested the defendant based not just on his use of profanity, but also on his conduct, behavior, and demeanor.
Similar to Odem, the record in the present case reflects that Parfait decided to arrest Sendelweck based on Sendelweck’s actions, behavior, and offensive language. We concur with the county court’s dismissal of the disorderly conduct charge because the language contained in the charging affidavit failed to state an offense in violation of section 97-35-7(1).
As previously explained, the charging affidavit for the offense of disorderly conduct was based only on Sendelweck’s refusal to stop yelling and cursing, which the county court judged explained is not an illegal act in Mississippi.
The disorderly conduct affidavit failed to mention Sendelweck’s conduct in refusing to comply with Parfait’s request to calm down and back up, although evidence of this conduct was presented at trial. Therefore, the county court properly dismissed the disorderly conduct charge.
B. Resisting arrest
In Chambers, we said that resisting arrest occurs when a person obstructs or resists his lawful arrest by force, violence, threats, or in any other manner. As stated, Parfait testified that when he attempted to place Sendelweck under arrest, Sendelweck pulled his arm out of Parfait’s grasp and walked away.
Parfait also testified that Sendelweck’s actions led Parfait to discharge his pepper spray to aid in placing Sendelweck under arrest. We find that the dismissal of the disorderly conduct charge fails to affect the county court’s judgment convicting Sendelweck for the offense of resisting arrest.